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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Solicitors Regulation Authority v Uddin [2014] EWHC 4553 (Admin) (24 October 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4553.html Cite as: [2014] EWHC 4553 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2A 2LL |
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B e f o r e :
MRS JUSTICE COX DBE
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SOLICITORS REGULATION AUTHORITY | Appellant | |
v | ||
KAMAR UDDIN | Respondent |
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Mr K Rogers and Mr S Paxi-Cato (instructed by Smart & Co Solicitors) appeared on behalf of the Respondent
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Crown Copyright ©
The Legal Framework
"It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness. That requirement applies as much to barristers as it does to solicitors. If I make no further reference to barristers it is because this appeal concerns a solicitor, and where a client's moneys have been misappropriated the complaint is inevitably made against a solicitor, since solicitors receive and handle clients' moneys and barristers do not.
Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension.
It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely to be, so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.
"It would require a very strong case to interfere with sentence in such a case because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct."
"From this review of authority I conclude that the statements of principle set out by the Master of the Rolls in Bolton remain good law, subject to this qualification. In applying the Bolton principles the Solicitors Disciplinary Tribunal must also take into account the rights of a solicitor under articles 6 and 8 of the Convention. It is now an overstatement to say that 'a very strong case' is required before the Court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed Tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless, if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the Court will interfere. It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review; see CPR Rule 52.11(1)."
The Relevant Background.
The Tribunal Decision
"that in entering into and then proceeding with conditional fee arrangements with Flavell Co for Mr Flavell to provide 'expert' advice and reports in connection with housing disrepair claims in the circumstances set out below and (so far as necessary) by doing so where he knew or ought to have known that (a) Mr Flavell was not fit, competent or appropriately qualified to act as an expert and/or (b) was willing to profess to competence and/or qualifications which he did not possess and/or views which he did not hold, and/or (c) the conditional nature of the fee arrangement would not be disclosed to the other opposing parties to the claims, the Second Respondent:
2.1 (at all material times) acted in a manner unbefitting a solicitor.
2.2 (before 1 July 2007)
2.2.1 compromised his integrity and independence and/or acted in a manner likely to compromise his independence and integrity contrary to Rule 1(a) of the Solicitors' Practice Rules 1990 ("the SPR"); and/or
2.2.2 acted in a manner likely to compromise or impair his good repute and/or the good repute of the solicitors' profession contrary to Rule 1(d) of the SPR.
2.3 (after 1 July 2007)
2.3.1 compromised his integrity and independence contrary to Rules 1.02 and 1.03 of the SCC;
2.3.2 acted in a manner likely to diminish the trust the public placed in him or the legal profession contrary to Rule 1.06 of the SCC; and/or
2.3.2 acted in breach of Rule 11.07 of the SCC."
The respondent was not suspended pending the hearing before the tribunal.
"The Tribunal found beyond doubt that the Firm had instructed Mr Flavell in matters in which it was known he was not competent, qualified or fit to give expert evidence after the point at which both Respondents knew he was unfit."
At paragraph 54:
"... the Tribunal found that by early June 2007 both were aware that Mr Flavell was prepared to present himself as possessing expertise which he did not in fact possess, and which expertise had been challenged in at least two court hearings. For an expert witness to profess to expertise s/he does not possess is a serious matter and undermines the trust which can be placed in that expert's reliability and integrity."
Paragraph 56:
"The Tribunal was satisfied to the required standard as a fact that both Respondents knew by 6 June 2007 that Mr Flavell was prepared to say things which he did not believe to be true, either in court or in giving an account of his expertise. Whatever his practical experience, his conduct in this regard meant he was unfit to be an expert witness in any cases. Further, both knew that such behaviour was not consistent with the professional standards expected of any expert witness in litigation; both had told the Tribunal that they were aware of the duties of experts, as set out for example in CPR Part 35 and the related Practice Direction."
"There was no doubt that after 6 June 2007 Mr Flavell was instructed by the Firm to produce reports, in particular on s11 LTA claims but also on at least four occasions... reports relevant to s82 EPA claims. On those reports Mr Flavell had specifically stated:
'I confirm that I have not entered into an arrangement whereby my fee is in any way dependent upon the outcome of this case.'"
They also found (at paragraph 72) that a number of small sums were in fact paid to Mr Flavell after June 2007 and that each payment was made only after the claim was concluded and costs had been recovered from the other party.
"... the Tribunal was satisfied that not only had the Second Respondent engaged Mr Flavell under a CFA, he had done so when he knew that Mr Flavell was not fit, qualified or appropriately qualified to act as an expert witness. Further, the Second Respondent knew (by June 2007 if not before) that Mr Flavell was willing to profess to expertise he did not have. The Second Respondent had admitted in evidence that most claims in which Mr Flavell produced reports would not result in court proceedings and, hence, that the conditional nature of the fee arrangement would not be disclosed to the opposing party."
Sanction
"He had not shown that he understood the conflict between the expert's duty to the court and the natural hope to be paid if the outcome of the case were favourable. The reputation of the profession had been damaged and the Second Respondent had compromised his integrity. These were serious matters, and the mischief had continued over a period of about 15 months. However, the allegations were limited to the effects of one improper agreement; there had not been multiple failings. The seriousness of the breaches and the harm done were not sufficiently serious to justify interfering with the Second Respondent's ability to work in the profession. There was no suggestion that he was a danger to the public. He had suffered substantially since October 2008 and the Tribunal was satisfied that he had learned some lessons since then concerning his professional conduct. There was no suggestion there had been further breaches since the matters in issue in these proceedings.
110. The Tribunal determined that the seriousness of the matters found proved merited a financial penalty rather than a greater or lesser sanction. The Tribunal considered that the circumstances merited a substantial fine and determined that the appropriate amount would be £10,000."
However, having regard to his poor financial situation the Tribunal decided that the appropriate sanction was a fine of £2,000.
The Appeal
"30. Suspension from the Roll will be the appropriate penalty where the Tribunal has determined that:
• the seriousness of the misconduct is such that neither a Reprimand nor a Fine is a sufficient sanction or in all the circumstances appropriate.
• there is a need to protect both the public and the reputation of the profession from future harm from the respondent by removing his/her ability to practise, but
• neither the protection of the public nor the protection of the reputation of the profession justifies striking off the Roll.
• public confidence in the profession demands no lesser sanction.
• professional performance, including a lack of sufficient insight by the respondent, is such as to call into question the continued ability to practise appropriately.
31. Suspension from the Roll, and thereby from practice, reflects serious misconduct."