England and Wales Court of Appeal (Civil Division) Decisions

ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 23 January 2002

1. LORD PHILLIPS, MR: Mr Ellis-Carr appears before me, through Derek Spencer QC, to appeal against the decision of the Solicitors' Disciplinary Tribunal (the "SDT"), filed on 10 October 2001 following a hearing on 9 August 2001. By that decision the SDT declined to restore Mr Ellis-Carr to the Roll of Solicitors.
2. The background to this appeal is as follows. Mr Ellis-Carr was admitted as a solicitor in 1980 and practised as a sole principal from March 1984. In October 1986 disciplinary proceedings were brought against him before the SDT. He was found guilty of accounting irregularities and conduct unbefitting a solicitor for which the Tribunal imposed a fine of £750. In September 1988 further disciplinary proceedings were brought against Mr Ellis-Carr before the Tribunal. Again he was found guilty of serious accounting irregularities and conduct unbefitting a solicitor. The Tribunal directed that he should be struck from the Roll of Solicitors.
3. At that time the Tribunal made no finding of dishonesty against Mr Ellis-Carr, but in March 1991 he was convicted of five counts of theft in relation to what were essentially the same facts as those which had led the Tribunal to strike him from the Roll. Those five convictions involved 25 transactions over an extended period. In relation to those transactions the Law Society's compensation fund has since paid approximately £93,000 in compensation. They were serious offences of theft.
4. Although Mr Ellis-Carr appealed unsuccessfully against his conviction and has continued to urge his innocence, he accepts his appeal before me can only be advanced on the basis that he was properly convicted and that he has been struck off the Roll in circumstances of criminal dishonesty.
5. In December 1997 the Tribunal refused an application by Mr Ellis-Carr for restoration to the Roll. He appealed against that refusal to my predecessor, Lord Woolf MR, who, in June 1998, upheld the Tribunal's decision.
6. During the majority of the time since he was struck off the Roll, Mr Ellis-Carr has been employed. There was a period of unemployment between February and December 1988, but he obtained employment as a legal assistant until August 1989. He then worked as a management consultant within the Community group for a year. He was then unemployed for a short period but in June 1994 he obtained employment with a firm of solicitors, Messrs Kaye Tesler and Co with the approval of the Law Society. He has remained in that employment to the present day as a solicitor's litigation assistant.
7. The appeal to me is almost a carbon copy renewal of the appeal made to Lord Woolf in June 1998 (just over 3½ years ago). Lord Woolf then held that the tribunal had applied a wrong test to Mr Ellis-Carr's case by approaching the application as if they had no discretion but to refuse it. In order to identify the appropriate approach to a case such as this, Lord Woolf referred to a judgment of Sir John Donaldson in a similar case where he said:

"The problem is, quite simply, one which I have met before and on which I have expressed a view before, namely that, however sympathetic one may be towards an individual member of either branch of the legal profession, if you fall very seriously below the standards of that profession and are expelled from it there is a public interest and an interest in the profession itself in hardening its heart if any question arises of you rejoining it. Neither branch of the profession is short of people who have never fallen from grace. There is considerable public interest in the public as a whole being able to deal with those professions knowing that, save in the most exceptional circumstances, they can be sure that none of them have ever been guilty of any dishonesty at all."

8. After referring to the facts of the particular case, Sir John Donaldson went on:

"There must be cases where, in the view of Parliament, a solicitor should be readmitted to the Roll, but I am bound to say that I regard that as a very exceptional situation. It must take account of the gravity of the offence. While it would be wrong, and indeed by definition it is impossible, to define 'exceptional circumstances', the sort of case I had in mind would be a case where it could be shown that, by a mental illness or overwhelming stress of some sort there was a moment of complete and utter aberration which was totally out of character and which might be lived down by subsequent conduct to such an extent that it could be said that any reasonable-minded member of the public, knowing the facts, would say, 'Really any profession should be proud to readmit the applicant as a member'."

9. Lord Woolf referred to a number of testimonials in favour of Mr Ellis-Carr, including, in particular, one from Mr Kaye, the senior partner of Messrs Kaye Tesler & Co. Lord Woolf said:

"I now have to ask myself, does this case fall into that narrow band of exceptional cases where it would be appropriate for this court on the appeal to allow Mr Ellis-Carr to be readmitted? In so doing, I emphasise that I am approaching the matter afresh and I do not, for the reasons indicated at the outset, regard it as a case where I am overruling a decision of the tribunal. I approach the matter on the basis that the tribunal applied the wrong test.

Anyone who had heard Mr Ellis-Carr's background, looking at the matter from his point of view, would wish to do anything they could to assist him to get back into practice and help him to redeem himself with the community with whom he still works. However I have to remind myself that I must not only be concerned about Mr Ellis-Carr, I have to be concerned with the protection of the public. So far as that is concerned, I have no reason to think that he would default again.

I also have to think of the reputation of the profession. I am afraid that, in my judgment, it is one of the burdens of being a member of the legal profession that, in the ordinary way, you have to have an unimpeachable character. Anyone who has the convictions which Mr Ellis-Carr now has, albeit they were convictions which were committed in very special circumstances, would be extraordinarily fortunate if he was readmitted. While I have a discretion to order that he should be, I am afraid I have to say, notwithstanding the fact that, personally, I have considerable sympathy for Mr Ellis-Carr in his present position, I do not think I would be doing my duty as Master of the Rolls, in relation to the solicitors' profession, if I made that order. Notwithstanding the way that Mr Ellis-Carr has been working for Mr Kaye since 1993, this case is too grave a case of criminal conduct to permit him to be readmitted to the profession. At 46 he is still a relatively middle-aged solicitor. In giving my decision it does not mean there will not come a time when it would be proper for a Disciplinary Tribunal to take a different view. I do not see that happening for a number of years yet and I do not hold out any great hope to Mr Ellis-Carr. I merely indicate that the view which I take today may not necessarily be the same view as another Disciplinary Tribunal may take in five years' time. I hope Mr Ellis-Carr is able to go on working in the firm with whom he has employment and that he will put what is history behind him so far as it is in his power to do so."

10. On this occasion, the Solicitors' Disciplinary Tribunal has set out the material facts in great detail, including the fact that the Law Society has expressly adopted a neutral stance to the application. This follows a letter which was written to Mr Ellis-Carr on 2 May 2001 by Mr Andrew Miller of the Legal Services Department for the Office for the Supervision of Solicitors which included the following statement, referring to authorities recorded on solicitors:

"The tribunal are familiar with these authorities and indeed I would think that on any such application we would be obliged to draw their attention to them, even if they were not.

Having said this I do recognise you have a reasonable case for arguing that your circumstances are in a sense exceptional. I have in mind, in particular, the length of time since you were struck off, the period in which you have practised in approved employment and the rehabilitation this implies and the indication given by Lord Woolf when your case came before him.

With this in mind I would say therefore if you were to submit an application to the Tribunal for restoration in substantially the same form as that you put before me, then we would be minded to adopt a neutral stance in the face of that application and so indicate to the Tribunal.

I say this on the basis that I am anticipating your making such an application within, say, the next month or two. If you were to make the application some time further in the future, we might want to revisit the question."

11. Mr Cadman, who appeared for the Law Society, did exactly what Mr Miller said and adopted a neutral stance. In reaching their decision, after summarising all the material facts, the Tribunal said:

"It is well known that restoration to the Roll is an exceptional course. The applicant himself recognised that it was necessary to demonstrate that the original offences occurred in exceptional circumstances. The Tribunal recognises that the applicant as a young man found himself in an extraordinary position. The Tribunal has to balance this with the fact that client account and clients' money are sacrosanct. It is hard to imagine any circumstances in which a solicitor might be excused from taking or allowing to be taken clients' money. The Tribunal does not consider that the circumstances surrounding the respondent were so exceptional that they did excuse that behaviour.

Further the Tribunal takes into account any continuing loss to the solicitors' profession. Claims have been made on The Law Society's Compensation Fund by reason of the applicant's defaults. The Tribunal notes that the applicant has not repaid his debt. The Tribunal recognises that the applicant was adjudicated bankrupt but even since his discharge from bankruptcy he has not made any attempt to pay although he assures the Tribunal that restoration to the Roll would enable him to make good his indebtedness to the Compensation Fund and confirms that that would be his intention."

12. The Tribunal then quoted at length from the well-known decision of the Court of Appeal in the case of The Law Society v Bolton. It continued:

"Having given due consideration to the principles set out above, and being guided by the decision in Bolton v The Law Society in the Court of Appeal, the Tribunal does not consider it right that the applicant should be restored to the Roll of Solicitors and it refused the application."

13. On behalf of Mr Ellis-Carr, Sir Derek has made four points:

(1) The offences that led to Mr Ellis-Carr being struck from the Roll were out of character. That is beyond dispute. His character before he committed those offences was of the highest and he had overcome very great difficulties to qualify as a solicitor.

(2) Sir Derek submits that the offences were committed at a time of overwhelming stress. That again is not in dispute. Mr Ellis-Carr had been deeply, personally involved in social activity on Broadwater Farm and the riots which occurred on Broadwater Farm had a devastating effect on him. He considered his life's work to have been ruined by those events and went to pieces. At the same time his offending was not a single aberration but a series of offences over a considerable period.

(3) Sir Derek emphasises the rehabilitation that is implicit in 7½ half years' employment by Messrs Kaye Tesler.

14. Although further time has elapsed, all those matters were considered by the Disciplinary Tribunal on the first occasion and, indeed, by Lord Woolf.
15. Sir Derek asked, rhetorically, what is the advance? The advance, he says, is that the Tribunal has now accepted that the original offences occurred in exceptional circumstances, but that was something to which Lord Woolf had regard. He also submits that Mr Ellis-Carr has undergone a remarkable degree of personal rehabilitation. That has been accepted by the Tribunal. Again, however, that is not a new factor. The new factor is that the period of rehabilitation has been extended by 3½ years.
16. (4) Sir Derek submitted that the Tribunal on this occasion has made the same mistake as it did on the previous occasion of approaching the case as if it were one where the Tribunal had effectively no discretion at all. I do not find it possible to draw that conclusion from the reasons advanced by the Tribunal. In particular they quoted extensively from the decision in Bolton and said they had given due consideration to the principles set out in their decision. It seems to me that it is only on the basis of the result reached by the Tribunal that Sir Derek makes the submission that they acted as if they had no discretion. That simply does not follow.
17. At the heart of this case, is not a question of punishment of Mr Ellis-Carr, nor in this case is it any danger to the public that if he were readmitted to the Roll he might re-offend.
18. At the heart of this case now is the standing of the solicitors' profession. The SDT is well placed to decide whether, and if so when, the time has come when Mr Ellis-Carr can be readmitted to the Roll without that endangering the standing of the profession. Lord Woolf suggested that in five years time a Tribunal might take a different view. That reflects the fact that rehabilitation is a very significant factor in a case such as this. The longer that elapses from the time of the offence during which a solicitor who has been struck off the Roll conducts himself in an exemplary fashion, the greater the weight to be attached to that rehabilitation.
19. Sir Derek submitted that Lord Woolf did not consider that the door was permanently shut against Mr Ellis-Carr; nor do I. The time may come when, using the words of the Court of Appeal in Bolton , the Tribunal may be satisfied that, notwithstanding the seriousness of these offences, any reasonable member would be confident, if they instructed Mr Ellis-Carr, that he was a person "of unquestionable integrity, propriety and trustworthiness" of whom the profession could be proud of having readmitted. On this occasion, however, the Tribunal has not formed that view. If I were to allow this appeal, I would be overruling the decision of the Tribunal. I do not feel that there is any basis upon which I should do so. Accordingly, I would dismiss this appeal.
20. MR CADMAN: My Lord, there is an application for costs. I have indicated the amount of costs.
21. MR SPENCER: I would submit in the view of the letter he received from the Office for the Supervision of Solicitors it was reasonable for him to bring these proceedings and he ought not to bear the costs.
22. LORD PHILLIPS, MR: I don't think there are any special circumstances here for departing from the ordinary order which is that the Law Society shall have its costs. Thank you.
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