England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand London WC2 Monday, 29th January 2001

Monday, 29th January 2001

1. LORD JUSTICE TUCKEY: Simon Edmund John Kaberry applies for permission to appeal against two decisions: the first of the Divisional Court on 11th April 2000 refusing him an extension of time to apply for permission to appeal from an order of the Solicitors Disciplinary Tribunal of 27th July 1995 striking him off the roll of solicitors; the second of Burnton J on 4th October 2000 striking out two claims for damages against the Law Society and ordering him to pay costs assessed at about £6,000.
2. There is a long history to this matter which I do not propose to set out in other than the briefest outline in this judgment. It is set out in much greater detail in the judgment of Lord Bingham CJ in the judgment which he gave in the Divisional Court.
3. The applicant was admitted as a solicitor in 1974. From 1986 he practised in Leeds as Simon Kaberry and Co. In March 1991 he was found guilty of four allegations of conduct unbefitting a solicitor. In March 1994, following a police search of his home and office, the Solicitors Complaints Bureau intervened and took over his practice. He stopped practising as a solicitor and was later made bankrupt.
4. The Disciplinary Tribunal found nine charges of professional misconduct proved. The applicant did not appear at that hearing his although solicitors had asked for it to be adjourned in a long letter which sets out his reasons for contending that it was not right for the proceedings to go ahead on that day. The Tribunal found that the applicant had behaved dishonestly. He had utilized clients' monies for improper purposes, attempted to disguise what he had done by, for instance, making monthly payments to lenders in respect of mortgages which he had led the clients to believe had been redeemed and which ought to have been redeemed. Huge sums of money had gone missing. The clients would have suffered substantial losses if it had not been for the Law Society's Compensation Fund.
5. The time for asking for a re-hearing (which the applicant could have done since the matter was decided in his absence) or appealing against the Tribunal's decision, was 14 days. The application to the Divisional Court was served on 3rd June 1999, three years and ten months out of time.
6. One of the applicant's reasons for not appearing at the hearing or appealing was because he also faced criminal charges arising out of the conduct of his practice. In April 1997 he was acquitted of 14 counts of theft, false accounting and procuring the execution of a valuable security by deception. At the criminal trial medical evidence was put before the jury to the effect that the applicant was not mentally responsible for the conduct alleged against him (which he largely admitted) because of the effect of drugs which had been prescribed as sleeping pills over a number of years by his GP. That evidence showed that these drugs which are in the BDZ group as sleeping pills combined with alcohol were (I quote the applicant's words) "to make him functionally blind, to make him a pawn in the hands of others so as to make him give in to unreasonable demands without demure and to cause him to be amnesic."
7. At the hearing in the Divisional Court the applicant was represented by leading counsel and solicitors. Counsel argued that the Tribunal should have adjourned the hearing because of the criminal proceedings which were imminent. The Divisional Court were informed of the medical evidence but the various reports I have seen were not actually put before them. Counsel complained about the conduct of Mr Williams, the solicitor instructed by the Office for Supervision of Solicitors to prosecute the applicant, who it was alleged had agreed with the applicant to support his application for an adjournment and had presented the Tribunal with an unfair, misleading and incomplete picture of the case, omitting among other things the fact that for many months the applicant had been in communication with the relevant body of the Law Society about the state of his practice and had been co-operating with them. Further, at the hearing in the Divisional Court, counsel gave explanations for the delay which had occurred which in summary amounted to the fact that he had been advised by his solicitors not to appeal whilst the criminal charges were pending and there had been other difficulties with his lawyers.
8. In rejecting the application, the Lord Chief Justice said that the issues in the criminal trial were not the same as those before the Tribunal. He said in the course of his judgment:

"If the Tribunal had heard the medical evidence which the jury heard they might have accepted that the overdosage of certain drugs had adversely affected Mr Kaberry's professional judgment and caused him to act in a way which he would not otherwise have done. But the Tribunal would not and in my view could not have taken the view on all the facts that Mr Kaberry at the material time was acting like a man in a dream or in a trance. The Tribunal might have thought his responsibility was reduced but could not properly have regarded it as extinguished. He was effectively accepting that the facts alleged against him were correct. On those facts, and in the light of authority over the last decade or so, the Tribunal could not properly have regarded Mr Kaberry as a proper person to remain on the Roll of Solicitors. If a solicitor can act in this way and escape the ultimate sanction, public confidence in the profession would be gravely undermined and that is a crucial matter for the Tribunal to bear in mind."

9. In the two civil cases the applicant alleges that the Law Society have been negligent in their supervision of his practice, that they defamed him by making untrue statements in the course of the disciplinary proceedings and that they abused their position by the way in which they conducted those proceedings and dealt with him in the years which followed. Burnton J considered the details of these allegations. He concluded that the negligence claim would fail because a solicitor was not owed a duty of care by the Law Society in relation to the exercise of its regulatory and supervisory jurisdiction over solicitors and the defamation claim was out of time but would fail anyway because absolute privilege attached to the statements in question. The claim based upon abuse of public office had not been properly particularised, was partly statute-barred, was a collateral attack on the Tribunal's decision and if there was such a claim it was vested in the applicant's trustee in bankruptcy who had not assigned it to the applicant.
10. In support of his applications for permission to appeal the two decisions the applicant has submitted a lengthy written argument supported by a file of documents, which I have read and carefully considered and upon which Mr Kaberry has addressed me with courtesy and skill this morning. He underlines the seriousness of his present position, which I can fully understand, with a finding of dishonesty against him. He is seriously disadvantaged in every aspect of his life which he says has been totally destroyed. His general point is that all he has sought in at least the last few years is the opportunity to clear his name and to put before a court the circumstances which persuaded the jury at his criminal trial to acquit him. Instead, he has been met by a stone wall. The Law Society have refused to discuss things with him and have resisted any attempt by him to reopen the matter.
11. Factually he goes back over the history with a view consciously or (more probably) subconsciously to show that none of what has happened is really his fault. The misconduct of his practice was the fault of his GP for negligently prescribing drugs to him and the fact that ruthless clients took advantage of his helpless state from which they gained large sums of money and he gained nothing. The Law Society then treated him dishonestly and oppressively and have continued to do so. Various lawyers then let him down by not getting on with an appeal and finally his counsel did not put all the facts before the Divisional Court as he should have done. Neither that Court nor Burnton J saw the medical evidence which would have informed them more fully about the effects of the drugs in question. If they had seen that evidence, the result might have been different. Moreover, the Court should have been informed in greater detail about the applicant's frustrated attempts to cooperate and talk to the Law Society from a time going back to well before the disciplinary hearing.
12. I am bound to say that much of this strikes me as an attempt to rewrite the history of the matter to which I have briefly referred. The Divisional Court carefully considered the effect which the medical evidence might have had on the disciplinary proceedings in the passage which I have cited. The fact is that the applicant must carry a heavy responsibility for the misconduct of his practice. The Divisional Court also considered the conduct of the Law Society in general and Mr Williams in particular, against whom they concluded the applicant's complaints were unjustified. They also fully considered the applicant's reasons for the delay in appealing. Their decision to refuse to extend time was, at the end of the day, a discretionary one. There is no prospect whatsoever of this Court interfering with the exercise of that discretion. However unpalatable and however much a challenge it may seem to Mr Kaberry, as Lord Bingham said, it is still open to the applicant to apply to the Law Society for restoration to the Roll relying on the evidence which he says has never been heard.
13. Turning to the applicant's other points on this application, which relate largely to the proceedings which Burnton J struck out, he submits that they raise questions of public importance.
14. Should a solicitor's conduct be judged any differently from that of any other professional where there is medical evidence to show that he is not responsible for what happened? There is no rule that a solicitor should be judged any differently from any other professional. As Lord Bingham said, a professional, nevertheless, carries a responsibility for the conduct of his affairs which requires him to behave in a way which maintains public confidence in the way his practice is conducted. Whatever view of Mr Kaberry's mental responsibility one takes in this case, what happened here must have been a serious blow to that confidence. That is a matter which, as Lord Bingham said, a Tribunal does and must take into account as it would in the case of any other professional in similar circumstances.
15. As to the duty of care, I think that Burnton J was right that in its regulatory role the Law Society must and must only have owed a duty to the public at large to maintain the confidence to which I have referred.
16. Other points are made as to the importance of Burnton J's decision. One arises out of the allegation of abuse of public office. Mr Kaberry asks rhetorically in his written submissions whether the Law Society are accountable for the way in which they perform those duties to the public. The answer is yes of course they are. Burnton J did not decide to the contrary. What he decided was, on the facts relied on by Mr Kaberry, there was no proper case of abuse and that there were other reasons to which I have referred why this claim was unsustainable.
17. Mr Kaberry has shown me an article dated 22nd July 2000 in which there is a statement by an officer of the Law Society about him which could give rise to a claim for defamation. I say nothing about this statement. The judge was considering statements which were made some time ago and any claim based on them was obviously statute-barred. The recent statement had not been made by the time the present proceedings were issued.
18. In his written submissions the applicant also makes a point about the Law Society's right to claim his assets, notably any compensation which he recovers directly or indirectly for the medical negligence he alleges, to reimburse them for payments made from the Compensation Fund to his former clients. But they do have such a right and the applicant's reason for denying it is simply another way of saying that he was not responsible for the misconduct of his practice.
19. Finally, Mr Kaberry submits that he should not have been ordered to pay the costs of the Law Society by Burnton J, given all that he has done to avoid litigation. But the fact is that he chose to take proceedings against the Law Society, and made very serious allegations against them which the judge found were not sustainable and should be struck out. Those facts alone entitled the judge to make the order for costs which he did. He had a discretion and I can see nothing wrong in principle with his order.
20. For those reasons I can see no real prospect of any of the points raised by Mr Kaberry succeeding in this Court. It must follow that permission to appeal in both cases should be refused.
(Permission to appeal in both cases refused)