Decision date: 8 November 2012

Court remits case back to re-constituted SDT in light of insufficient reasons

Following investigation, a solicitor (S) had faced allegations in September 2006 before a Solicitors Disciplinary Tribunal (‘the first SDT’).

In summary, S became a fellow of Institute of Legal Executives (ILEX) in October 2002 and was admitted as a solicitor in November 2003. Prior to his admission he had been involved in a firm called Chris Dale & Co. It had been agreed as between S and a colleague (who was qualified) that although the colleague (X) was named as the sole partner of the firm, S would effectively act as a solicitor from the outset. In practice, X played almost no part in the business. S’s case was that he was funding X so that when he qualified, the business would be ready to receive him as a partner.

The specific allegations were that S had;

  1. set up and/or been involved in a solicitors firm, Chris Dale & Co, in circumstances in which he had known or ought to have known had been improper and/or unprofessional;
  2. falsely witnessed a mortgage deed on 13 January 2003 and had falsely stated that he had been a solicitor with a current practising certificate;
  3. produced three practising certificates that had been false;
  4. attempted to deceive The Law Society by producing three false practising certificates;
  5. misrepresented to The Law Society his involvement in the practice of the solicitors firm of Chris Dale & Co.

He appeared jointly with X, who faced allegations (1), (3), (4) and (5).

At the first SDT hearing, an unrepresented S admitted allegations (1), (2) and (5) but denied (3) and (4). X denied all allegations. S was found guilty of all allegations, X found guilty of (1) only. S was struck off and X suspended for 2 years.

S appealed this decision and the matter was remitted for another hearing, it being agreed by consent between the parties in light of new evidence. A second SDT was convened, at which S was represented. He again admitted (1), (2) and (5) and contested (3) an (4). Particulars (1), (2) and (5) were duly found proved but (3) and (4) were found not established on this occasion.

After mitigation proffered on behalf of S, the Tribunal found that the allegations were ‘very serious indeed’, especially (5) which was a ‘blatant misrepresentation’. They also made reference to the fact that when S gave evidence he had accepted that he had given false evidence in his first SDT hearing. The Tribunal ordered that S’s name be struck from the roll and that he pay costs in the sum of £23,000.

It is against this decision that S appealed to the Court. It was argued that the second SDT should not have found that the particulars that had been found established were sufficient to merit a strike off and/or that insufficient account was taken of the fact that he had been, by that stage, struck off for 4 years partly on the basis of particulars that were ultimately found not to be established. He further invited the Court to contrast his treatment to that of X.

The Court expressed that it would only intervene if the sanction imposed was ‘clearly inappropriate’ (Salsbury v law Society [2009] 1 WLR 1286]; SRA v Dennison [2012] EWCA Civ 421.

Although it was well-established that where a solicitor has been found guilty of dishonesty, exceptional circumstances were needed before a decision is made not to strike off, this was not a case in which dishonesty had been explicitly expressed. It was therefore held that ‘what might be said to be the starting point in relation to sanction from that point of view did not arise’.

That having been said, the Tribunal were ‘amply justified in treating the Appellant’s conduct as falling within the category that fell “below the required standards of integrity, probity and trustworthiness”...’, that had been articulated in the case of Bolton v Law Society.

Further, it was not problematic that X’s sanction was more lenient; X had a less important role in the wrongdoing, and in any event if it was ‘more benevolent’ than it should have been, that would not operate as a reason for interfering with S’s sanction if it was otherwise justified.

However, Foskett J was troubled by the decision in three respects;

  1. the tribunal did not allow Counsel for S to address them on matters that were to later affect their determination; namely that they did not regard the evidence that S had called as credible, they thought his evidence had been evasive and inconsistent’, they rejected his account in relation to the mortgage deed and that they were proposing to take into account the fact that he had admitted that his evidence before the previous SDT had been untrue in one respect.
  2. the Tribunal made no reference to the fact that S had already been barred for 4 years by that stage
  3. the Tribunal had made no specific reference to having excluded suspension as an adequate sanction in the circumstances.

The case was therefore remitted to a differently constituted SDT for reconsideration of the issue of sanction.

It is important for panels/tribunals to allow counsel to address them on matters that may be influential in their determination, whether they are ultimately swayed by such submissions or not. Further, panels can properly and indeed should, bear in mind the negative effects a regulatory process has had on a registrant prior to the date on which he falls to be sanctioned.