England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2 Monday, 18th March 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal against a decision of the Divisional Court on 29th November 2001. On that occasion the Divisional Court dismissed an appeal by the applicant against an order of the Solicitors' Disciplinary Tribunal of 27th June 2000 that the applicant be struck off the Roll of Solicitors for professional misconduct.
2. This is a second appeal. In those circumstances, the applicant needs to show to this court that there is some important issue of principle or practice which is in issue, or, alternatively, that there is some other good reason for permission to be granted so that the appeal court should consider the appeal.
3. The issue which Mr. Sen has concentrated on relates to conclusions which the Tribunal reached as to the applicant's honesty in respect of two separate transactions. The first relates to an allegation that the applicant knowingly swore a dishonest affidavit in October 1998. As far as the affidavit was concerned, that was an affidavit which was intended for proceedings which involved the OSS itself. In the affidavit the applicant asserted that he had never been the subject matter of complaints made against him by clients when in truth there had been two such complaints. The applicant's evidence before the Tribunal had been that the affidavit had been drafted by Mr. Ullstein of counsel, that he had gone through that affidavit with Mr. Ullstein in conference before he swore it, and that it was entirely by inadvertence that the misstatement as to complaints had been allowed to remain in the affidavit. It was argued on his behalf by Mr. Beloff who appeared for him before the Tribunal that, although it was admittedly an inaccurate statement, it was not made dishonestly. In support of that he submitted that it was inconceivable that the applicant would have told a blatant lie which, in effect, is what was being alleged, to the very organization which would be the first to be able to determine whether or not the statement made in the affidavit was accurate.
4. The Tribunal, having heard the applicant's account and the submissions made on his behalf, concluded as follows:

"The respondent was a solicitor and an officer of the court. He was responsible for deposing to an affidavit which contained a blatant lie. Whoever drafted the affidavit and in whatever circumstances it was sworn, that was inexcusable and the most serious of matters. The Tribunal consider that the respondent was dishonest in swearing that affidavit which as a result gave the court an entirely false picture of the nature and number of complaints made in respect of the respondent, a material matter in intervention proceedings."

5. The complaint made by Mr. Sen on the applicant's behalf is that there is no indication in that passage of the reasoning which the Tribunal applied in coming to the conclusion that the applicant was dishonest as opposed to inadvertently mistaken. He submits that where such a serious conclusion is reached there should, as a matter of fairness if for no other reason, be an indication of the process by which the Tribunal has arrived at its decision.
6. I entirely accept Mr. Sen's submission to this extent. Clearly, there will be circumstances in which it will be necessary, in order to understand the decision of the tribunal or court, for reasons to be given. In the present case the essential facts were agreed. The conclusion that was to be reached by the Tribunal depended essentially on the views it formed of the answers given by the applicant in front of it, both to counsel and to the Tribunal itself. The Tribunal came to a clear conclusion. It seems to me that on this particular issue and in these circumstances it was not incumbent upon the Tribunal to put forward any further reasoning than was contained in the passage to which I have referred. It is clear why they came to their conclusion from the words that they have used. No further elaboration was required.
7. The second matter which Mr. Sen relies upon was the conclusion which was reached by the Tribunal in relation to the use which the applicant had made of money which he was holding on account of a client, essentially as a stakeholder. The applicant undoubtedly transferred moneys from that fund into his office account for his own purposes. His evidence to the Tribunal was that he considered that he was entitled to do that because the sums in question were covered, as it was put, by the fact that he had authority to draw from another client's account sufficient funds to replace the funds which he had taken from the client whose money was in fact misused. It was said that authority to support that assertion was given orally but that there was written confirmation ex post facto. The Tribunal having considered that explanation said as follows:

"The Tribunal are in no doubt that making transfers from monies held by a solicitor as stakeholder to his own office account ostensibly to pay his own costs was a serious breach. The Tribunal took the view that those transfers in substantial sums were made in order to bolster office account and to serve the respondent's own purposes. The Tribunal had no doubt that the respondent knew what he was doing and had made those transfers dishonestly. He was in breach not only of his duty to maintain a proper stewardship over clients' monies but had also breached his duty as stakeholder."

8. The same complaint is made by Mr. Sen in relation to the conclusions that the Tribunal reached in relation to this transaction as he made in relation to the conclusions in respect of the affidavit. His submissions are equally misplaced. It is to be remembered that the decision of the Tribunal has to be considered as a whole. The evidence of the applicant, which was being assessed by the Tribunal, was not merely the evidence in relation to this particular transaction itself but the evidence that he gave overall, and it is clear from the terms of the Tribunal's decision that the view that they took of the applicant's evidence overall was not favourable. There can be no doubt from the passage that I have read that the Tribunal concluded that, in the overall context of the case, the only proper conclusion that it could come to was that the applicant had been dishonest. It was entitled to do so and it gave adequate reasons.
9. The applicant relies in addition to those two specific matters which I have related on what are said to have been misapprehensions by the Tribunal as to the nature of another transaction, which was the remortgaging of some offices by a company called Wakesprosper Limited. The applicant was instructed by the Nationwide Building Society to act on their behalf and to take appropriate steps to safeguard their position. They did not merely instruct him generally to safeguard their position. They gave him specific instructions as to what to do. He did not follow those instructions. The Tribunal did not conclude that he acted dishonestly in that particular transaction but took the view that the evidence that he gave was not sufficient to justify the conclusion that he had, albeit not in the way instructed, managed to ensure that the Nationwide was satisfactorily protected. It seems to me that the conclusions which the Tribunal reached in respect of that transaction, which was to the effect that the applicant had failed in his duties as a solicitor, were conclusions that they were again fully entitled to reach. Overall, it seems to me that the Tribunal's decision was one which could not properly have been impugned.
10. The Divisional Court was clearly, in my judgment, correct to have dismissed the appeal. There is no merit in the application, let alone does it raise any issues of general importance, either of practice or otherwise, and there is no other reason for me to grant permission. It is undoubtedly sad for the court to have to deal with a case in which a professional person has been struck off the Register and therefore deprived of his livelihood. The Solicitors Tribunal, in my judgment, came to a conclusion which it was entitled to come to and was in the best position to judge the needs of the profession in relation to the appropriate penalty. It follows that there is no basis on which I could grant permission to appeal. Permission is refused.
Order: Application refused.