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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Solicitors Regulation Authority v James  EWHC 3058 (Admin) (13 November 2018)
Cite as:  4 WLR 163,  EWHC 3058 (Admin),  ACD 10,  WLR(D) 699,  2 All ER 527
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QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JEREMY BAKER
| SOLICITORS REGULATION AUTHORITY
|- and –
|SOVANI RAMONA JAMES
- and –
|SOLICITORS REGULATION AUTHORITY
|- and –
|ESTEDDAR MARIAM MACGREGOR
- and –
|SOLICITORS REGULATION AUTHORITY
|- and –
Chloe Carpenter and Andrew Bullock (instructed by the Legal Department, Solicitors Regulation Authority) for the Appellant in the third case
Geoffrey Williams QC and Paul Bennett (instructed by Aaron & Partners LLP) for the Respondent in the first case
Gregory Treverton-Jones QC (instructed by Murdochs Solicitors) for the Respondent in the second case
Fenella Morris QC (instructed by Murdochs Solicitors) for the Respondent in the third case
Hearing dates: 31 October and 1 November 2018
Crown Copyright ©
Lord Justice Flaux:
The factual background and the judgment of the SDT in James
"It was unusual for solicitors appearing before the Tribunal to use words such as "terrified" and "fear" in the context of the workplace. The use of those words gave an indication of the Respondent's vulnerability; small issues such as getting behind on a file had magnified to the extent that the consequences anticipated by the Respondent were dire and, in her own words, she felt as if she had a massive dark cloud hanging over her. The Respondent was vulnerable, isolated, dealing with difficult home circumstances, relatively young in terms of life experience, and in what she viewed as an environment that had become toxic to her. She had lost her confidence and felt that she was no good at a job that she had previously enjoyed. This was, in effect, a 'perfect storm' of circumstances."
"During the last 10 to 15 years, and in particular in the last 5 years or so, awareness and openness concerning mental health issues have developed. Management at law firms and elsewhere should be more alert to the warning signs, which included, amongst other things, decline in performance, physical symptoms of distress, and uncharacteristic behaviour such as a drop in reliability. Management should be able to respond appropriately, for example by providing access to external counselling services. We have all become much more aware of bullying and harassment in the workplace which can have a significant impact on employees, particularly those who might be described as being vulnerable."
"The root cause of the Respondent's misconduct, including the allegations of dishonesty, was the combination of the culture of the Firm in terms of pressures placed on junior solicitors and her mental ill-health arising from the pressures of work allied with difficult personal circumstances. It was necessary to look at these overriding features cumulatively. This Respondent had an egg-shell skull personality at the time of these events. The impact of letters such as that written by Mr Smith and the culture of the Firm was greater than it would have been on a fee earner without an 'egg-shell skull'."
The factual background and the judgment of the SDT in MacGregor
"The Respondent had not behaved in a way that maintained the trust the public placed in her and in the provision of legal services. The public would not expect a solicitor to take any part in a process that they knew was being done for improper reasons whatever the solicitor's personal motivation for their conduct."
"The Respondent was, in the Tribunal's opinion, in a distressed and pressured state of mind but she had knowledge of the underlying facts as to the improper exercise and had considered what was being done to be wrong. The Tribunal was sure that the Respondent's conduct was dishonest applying the objective standard of ordinary decent people. She had been dishonest. Allegation 2 was proved beyond reasonable doubt."
As in the case of James, it is not suggested that the SDT misapplied the test.
"At the time of the dishonest misconduct, the Respondent was under a very high level of pressure both at work and at home. The Respondent was clearly an anxious person and there was medical evidence to support the fact that she may react in a particular way to certain triggers, for example around her fear of people dying. The Tribunal could not be certain that the Respondent was suffering from a mental disorder at the time of the cross-checking and the medical evidence was inconclusive. It was clear that all of the circumstances, including the Respondent's concern for Mrs A's health, placed her in a situation where she perceived unbearable pressure and this impacted on her well-being and functioning. She was deeply loyal to Mrs A and allowed her concern for her to affect her ability to conduct herself to the standards of a reasonable solicitor. In the very unusual circumstances of this case the Tribunal found that there were exceptional circumstances and that sanction should be reduced accordingly."
The factual background and the judgment of the SDT in Naylor
"The Tribunal had to determine the overall seriousness of the misconduct. In order to do so it considered the Respondent's culpability, the harm caused and aggravating and mitigating factors. In respect of culpability the Tribunal accepted that the Respondent had suffered from mental health issues and this affected what he did. The Respondent was not acting for any particular gain. The Tribunal considered that his actions were spontaneous in that he reacted to the emails he received and the situation he found himself in. Having misled the client once and not ensured what need to happen had happened on the file the Respondent's actions appeared to be neither planned nor spontaneous but reactive to the resulting situation he found himself in. The Respondent had significant post qualification experience at the time of the misconduct. The Respondent had acted in breach of a position of trust. He was client H's solicitor and a client expects and is entitled to expect their solicitor to tell the truth. Client H had had to prepare an extra set of accounts due to the Respondent's actions. The Respondent had direct control of and responsibility for the circumstances giving rise to the misconduct. The Respondent's level of culpability was best described as "mixed". It would have been much higher but for the medical evidence."
"The Tribunal was sure that the misconduct arose at a time when the Respondent was affected by mental ill health that affected his ability to conduct himself to the standards of the reasonable solicitor. The Tribunal had before it the reports from Dr Wilkins and Dr Garvey together with their agreed statement. The Tribunal concluded that the Respondent's mental ill health was an exceptional circumstance."
Applicable legal principles
"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…
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."
"The first stage is to assess the seriousness of the misconduct. The second stage is to keep in mind the purpose for which sanctions are imposed by such a tribunal. The third stage is to choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question."
"It seems to me, therefore, that looking at the authorities in the round, that the following impartial points of principle can be identified: (a) Save in exceptional circumstances, a finding of dishonesty will lead to the solicitor being struck off the Roll, see Bolton and Salsbury. That is the normal and necessary penalty in cases of dishonesty, see Bultitude. (b) There will be a small residual category where striking off will be a disproportionate sentence in all the circumstances, see Salsbury. (c) in deciding whether or not a particular case falls into that category, relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, such as Burrowes or over a lengthy period of time, such as Bultitude; whether it was a benefit to the solicitor (Burrowes), and whether it had an adverse effect on others."
"19. Clearly, at the heart of any assessment of exceptional circumstances, and the factor which is bound to carry the most significant weight in that assessment is an understanding of the degree of culpability and the extent of the dishonesty which occurred. That is not only because it is of interest in and of itself in relation to sanction but also because it will have a very important bearing upon the assessment of the impact on the reputation of the profession which Sir Thomas Bingham MR (as he then was) in Bolton identified as being the bedrock of the tribunal's jurisdiction.
24. It is necessary, as the tribunal did, to record and stand back from all of those many factors, putting first and foremost in the assessment of whether or not there are exceptional circumstances the particular conclusions that had been reached about the act of dishonesty itself."
"The principle identified in Bolton means that in cases where there has been a lapse of standards of integrity, probity and trustworthiness a solicitor should expect to be struck off. Such cases will vary in severity. It is commonplace, in mitigation, either at first instance or on appeal, whether the forum is a criminal court or a disciplinary body, for the defendant to contend that his case is not as serious as others. That may well be true. But the submission is of little assistance. If a solicitor has shown lack of integrity, probity or trustworthiness, he cannot resist striking off by pointing out that there are others who have been struck off, who were guilty of far more serious offences. The very fact that an absence of integrity, probity or trustworthiness may well result in striking off, even though dishonesty is not proved, explains why the range of those who should be struck off will be wide. Their offences will vary in gravity. Striking off is the most serious sanction but it is not reserved for offences of dishonesty."
"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 … 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 … 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."
"That general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts: see Smech at ; Khan v General Pharmaceutical Council  UKSC 64,  1 WLR 169 at ; Meadow at ; and Raschid v General Medical Council  EWCA Civ 46,  1 WLR 1460 at -. An appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide: Biogen at 45; Todd at ; Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC)  FSR 11 (HL) at ; Buchanan v Alba Diagnostics Ltd  UKHL 5,  RPC 34 at . As the authorities show, the addition of "plainly" or "clearly" to the word "wrong" adds nothing in this context."
"As we said earlier in this judgment, the Tribunal was, in relation to all those matters and the carrying out of an evaluative judgement as to the appropriate sanction for maintaining public confidence in the profession, an expert panel, familiar with this type of adjudication and comprising a medical practitioner and two lay members, one of whom was legally qualified, all of whom were assisted by a legal assessor. As Lord Hope said in Marinovich v General Medical Council  UKPC 36:
"28. ... In the appellant's case the effect of the Committee's order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the Committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.""
"When considering a decision made in the exercise of a discretion at first instance, the appellate court will only interfere if the first instance tribunal has exceeded the generous ambit within which a reasonable disagreement is possible (see for example Tanfern Ltd v Cameron-MacDonald (Practice Note)  1 WLR 1311."
Submissions of the parties
"I appreciate that for Mr Bultitude the proceedings have been lengthy and the penalty is devastating. It is now 15 months since he was before the Solicitors' Disciplinary Tribunal. But in my judgment, even on the facts as found in the Divisional Court, there was in this case no room for any finding other than that he be struck off. As Mr Treverton-Jones submitted, if leniency were to be extended in this case, that would lower the tariff so that it would in practice become difficult to strike off anyone not shown to be dishonest however gross his breach of the rules, and it would even become difficult to strike off anyone guilty of dishonesty not amounting to theft. That is at variance with the authorities and would be perceived by the profession and by the public as detrimental. That is why, in my judgment, it was necessary to set aside the lesser penalty imposed with some hesitation by the Divisional Court."
"Where the Tribunal concludes that the seriousness of the misconduct justifies suspension from the Roll, but it is satisfied that:
... by imposing a Restriction Order, the risk of harm to the public and the public's confidence in the reputation of the legal profession is proportionately constrained; and
... the combination of such an Order with a period of pending Suspension provides adequate protection
the Tribunal may suspend that period of suspension for so long as the Restriction Order remains in force."
"It must be emphasised that Mr Farrimond pleaded guilty to a very serious offence. Powerful mitigation was advanced on his behalf but that did not alter the character of the offence itself: there was no question of his suffering a defect of reason due to disease of the mind such that he did not know the nature or quality of his act or that it was wrong. His illness did not therefore provide a defence to the charge; he recognised this fact by his plea of guilty and he acknowledged it before this court. The sentencing judge felt able substantially to reduce the sentence to reflect the powerful mitigation but nonetheless, recognising the seriousness of the criminality involved, imposed a significant punishment. In my view, the commission of an offence of attempted murder, on facts such as these, is wholly incompatible with remaining on the Roll of Solicitors or remaining an officer of the Court."
"Furthermore, the work of a solicitor, in whatever field he or she practises, inevitably involves a degree of stress and the public must be able to expect that those whom they consult are not so susceptible to mental ill health that they are at risk of behaving as Mr Farrimond did, however difficult the work might become."
"In a different context, the error under consideration may need to be examined in the context of a dedicated practitioner working in isolation and under huge pressure of, say, an epidemic. Such circumstances may be relevant to the question whether he should be found guilty of serious professional misconduct. It may indeed provide mitigation of circumstances, unrelated to penalty. If notwithstanding this evidence the case is proved, then precisely the same circumstances may also be relevant to mitigation of penalty."
"The Tribunal was just as much entitled to take into account, in determining the appropriate sanction, systemic failings on the part of the Trust, as part of the context for Jack's tragic death and Dr Bawa-Garba's role in it, as well as matters of personal mitigation, as Nicol J was entitled to do in determining the appropriate sentence for her crime: R (Campbell) v Council v General Medical Council  EWCA Civ 250;  1 WLR 3488 at ."
"…specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
Analysis and conclusions
"…in my view it is not possible when assessing exceptional circumstances simply to pick off the individual features of the case. It is necessary, as the tribunal did, to record and stand back from all of those many factors, putting first and foremost in the assessment of whether or not there are exceptional circumstances the particular conclusions that had been reached about the act of dishonesty itself. The fact that many solicitors may be able to produce testimonials and may immediately confess the dishonest behaviour is certainly relevant to the determination of whether or not it is an exceptional case, but is not a factor that is likely to attract very substantial weight. Of far greater weight would be the extent of the dishonesty and the impact of that dishonesty both on the character of the particular solicitor concerned but, most importantly, on the wider reputation of the profession and how it impinges on the public's perception of the profession as a whole."
"Whilst ordinary decent people were likely to be sympathetic to the Respondent, particularly in light of his mental-health issues, they would not expect the Respondent to provide his client with information he knew to be untrue. Ordinary decent people would consider this a dishonest thing to do. Allegation 2 was proved beyond reasonable doubt."
Mr Justice Jeremy Baker