Choudhury v Solicitors Regulation Authority [2014] EWHC 809 (Admin)

The Administrative Court has declined to overturn a finding by the Solicitors Disciplinary Tribunal (the tribunal) that a solicitor, C, had acted dishonestly by failing to pay clients' funds into his firm's client account. It found that, on the facts, the tribunal's decision was 'unimpeachable'.

The tribunal's decision

The Solicitors Disciplinary Tribunal found that C had breached the Solicitors Accounts Rules in a number of ways. These included not keeping proper books of account and having failed to pay client money into client account without delay (and/or instructing his assistant K to delay paying funds into client account) and instead using those funds for his own purposes. It found that he had acted dishonestly in that last respect and ordered that he be struck off.

The appeal

C appealed. The grounds of his appeal were that the tribunal:

  • had erred in finding that C had breached the Solicitors Accounts Rules in not paying client money into client account without delay
  • had erred in finding that C had acted dishonestly
  • had erred in preferring the evidence of C’s assistant K to that of C
  • had failed to give any or sufficient weight to factors including that the material evidence against C was the uncorroborated evidence of K,
  • that the tribunal had been unreasonable to conclude that there was no reasonable doubt in respect of those allegations
  • that in the absence of findings of dishonesty C would not have been struck off.

K had also been a respondent in the tribunal proceedings. His name had been struck off but he did not appeal.

The court was of the view that C’s appeal (as advanced by his counsel in oral submissions) boiled down to two heads of complaint which were that the tribunal had

  • failed to apply the proper standard of proof before making findings of dishonesty and
  • accorded too much weight to the evidence of K, and had failed to overlook inconsistencies in K's evidence.

The court noted that, in a bad case, a solicitor who fails to ensure that proper books of account are kept may be struck off even without a finding of dishonesty against him, as demonstrated by the decision in Weston v Law Society (21 Law Society Gazette Reports p 35). However, in this case, as the findings of dishonesty were so clearly the basis for the tribunal’s decision, the question was whether those findings should be upheld.

C’s counsel accepted that, in a case of this kind, it was not necessary for a finding of dishonesty for the regulator to prove an intention to deprive the client permanently of funds (ie, the charge was not one of theft under the general law). In that connection, the court recited the dictum in Bultitude v Law Society [2004] EWHC 1370 (Admin) (approved by the Court of Appeal: Bultitude v Law Society [2004] EWCA Civ 1853):

"Such is the sanctity of the rule in the solicitors' profession of preserving a strict separation in their accounts between their own and their clients' funds that any deliberate and knowing breach by a solicitor of it… is dishonest and seriously so."

The court also noted that there was a 'heavy onus' (although 'not an impossible task') on an appellant seeking to overturn findings about the credibility of witnesses made by the tribunal which had seen and heard those witnesses. A court could, for example, overturn findings of dishonesty where the tribunal's findings had been made on an illogical basis.

In respect of the first main ground of appeal, the court found that, by comparing the evidence of C and K, and preferring that of K, the tribunal had not lost sight of what was described as 'the basic requirement that in a disciplinary case where dishonesty is alleged the regulator must prove dishonesty beyond all reasonable doubt.' In respect of the second main ground of appeal, the court found that the tribunal's findings of fact were 'unimpeachable'.

With the facts that were found by the tribunal to have been proved including 'dishonesty in what might be called the Bultitude sense', the court held that the sanction to strike C off was, pursuant to a long line of authorities starting with Bolton v Law Society, 'inevitable'.