Brett v Solicitors Regulation Authority v Brett  EWHC 2974 (Admin)
The Administrative Court has ruled that, having made an express finding that a solicitor had not been dishonest, the Solicitors Disciplinary Tribunal could not properly go on to make a finding that the solicitor had knowingly misled the court in litigation in which he had been involved. On the facts of this case, knowingly misleading the court had been tantamount to dishonesty. The correct finding was that the solicitor had recklessly misled the court.
The Administrative Court also stated that panels in disciplinary cases needed to decide whether costs were proportionate in all the circumstances. It was not enough that lawyers' fees were in line with what regulators or the market were prepared to pay.
Factual background – the Solicitors Disciplinary Tribunal proceedings
Mr Brett, a solicitor, had been the legal manager at Times Newspapers Limited (TNL). In the course of the Leveson Inquiry, TNL disclosed documents which suggested that misleading statements had been made on behalf of TNL in a case brought by a police officer, P, who had written a popular blog using the pseudonym "Nightjack".
The Solicitors Regulation Authority (SRA) brought proceedings against Mr Brett in the Solicitors Disciplinary Tribunal alleging that Mr Brett had acted contrary to the Solicitors Code of Conduct 2007 ("the Code") in that he had "knowingly and/or recklessly" allowed the court to be misled and had acted without integrity. The Tribunal found that Mr Brett had knowingly misled the court and had acted without integrity. It suspended him for six months and ordered him to pay costs of £30,000. However, the Tribunal also expressly stated that it was not making a finding that Mr Brett had been dishonest.
Mr Brett appealed the Tribunal's findings and the £30,000 adverse costs order made against him.
Factual background – the Nightjack case
A reporter at TNL, R, identified P as Nightjack by unlawfully hacking into P's email account. When R informed Mr Brett of this, Mr Brett advised R that P's identity could not be published unless R could show that it was possible to identify P using information in the public domain. R then set about proving that it was possible to identify P using lawfully obtained information. He succeeded in doing so and The Times decided to publish the story. P applied to the High Court for an injunction to restrain publication of his identity.
P's solicitors initially claimed that R had ascertained P's identity through breach of confidence; that is, by hacking into his email account. P's solicitors noted in correspondence to TNL that R had been disciplined while at university for hacking into email accounts. However, Mr Brett stated in a letter to P's solicitors that this was a "baseless allegation". TNL then filed witness evidence which gave the impression that R had identified P by deduction rather than by unlawful means. As a result, P's advisers conceded the point at the hearing of his injunction application and agreed to proceed on the basis that P's identity had been ascertained lawfully. However, Mr Brett knew this was factually incorrect.
P's injunction application failed and his identity was published.
Mr Brett argued in the appeal that the Tribunal had failed to take sufficient account of his duties towards TNL and, in particular, the fact that legal professional privilege attached to the information given to him by R. He also argued that TNL's privilege against self-incrimination prevented him from disclosing how R had ascertained P's identity. Wilkie J, however, found that these arguments were a "red herring" and that there had been various courses available to Mr Brett which would have enabled him to comply with his duty not to mislead the court while also not breaching his duties towards TNL. These included:
- drafting witness evidence to state that P could have been identified by deduction using publicly available information, thereby correcting the misleading impression created by the evidence that had been filed, namely that P had been identified through deduction;
- or abandoning TNL's opposition to P's application. The real issues were whether the court had been misled and what Mr Brett's state of mind had been at the time.
Wilkie J concluded that the court had in fact been misled. However, the Tribunal, having not found dishonesty, could not then properly proceed to make a finding that Mr Brett "knowingly" allowed the court to be misled because this was, in effect, a finding of dishonesty. The proper finding on the evidence was that Mr Brett had acted recklessly in allowing the court to be misled and, in so doing, had acted without integrity.
Accordingly, the Tribunal's decision was quashed but only to the extent that a finding that Mr Brett had "knowingly" misled the court was substituted with a finding that he had "recklessly" done so. The Lord Chief Justice in his judgment stated: "Where an advocate or other representative or a litigator puts before the court matters which he knows not to be true or by omission leads the court to believe something he knows not to be true, then as an advocate knows [sic] of these duties, the inference will be inevitable that he has deceived the court, acted dishonestly and is not fit to be a member of any part of the legal profession".
While it upheld the Tribunal's costs order, the Lord Chief Justice, in obiter remarks, stated that: "It is now well established that the costs of proceedings which a person may be ordered to pay must be proportionate… However, the fact that the market enables such persons or firms to command such high fees does not mean that it is proportionate to make an order for costs by reference to the rates which the legal services market enables such persons or firms to command from the regulatory authority. A tribunal must assess what is proportionate, taking into account all the material circumstances".