England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
HH JUDGE ANTHONY THORNTON QC
CO/1526/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th December 2013

Lord Justice Patten :

1. This is a renewed application by Mr Brian Roberts for permission to appeal against the dismissal by HH Judge Thornton QC of his appeal against the ruling by the Solicitors Disciplinary Tribunal ("SDT") that his complaint against the respondent solicitors disclosed no case to answer. In essence, his complaint was that the respondents had between July and September 1999 forged three attendance notes in order to rebut an allegation that they had acted negligently in relation to the sale by Mr Roberts and his wife of their then property in Walthamstow, East London. The judge dismissed the appeal for what he described as four interlocking reasons: (1) that the allegations of dishonesty were too vague to allow a fair trial; (2) that there was no evidence which Mr Roberts was able to put forward which, taken by itself, could satisfy the tribunal that there was a prima facie case of dishonesty so as to throw the evidential burden on to the respondents; (3) that there had been undue delay in bringing the complaint and that the claims were now too stale 14 or 15 years after the events in question; and (4) that the complaint was, in essence, an attempted re-run of a previous application to the SDT which Calvert-Smith J had dismissed for lack of evidence some two years previously.
2. Before I come to the grounds of appeal, I need to say a little more about the background. In 1999 Mr and Mrs Roberts decided to sell their property in Walthamstow. It was tenanted. They instructed Hook & Partners (in which the respondents were partners) to handle the sale for them and conduct of the file was undertaken by a Mrs Deborah Kelly. There is a dispute as to the scope of the retainer. The respondents maintain that they were only ever instructed to deal with the conveyancing and were led by Mr and Mrs Roberts to believe that they had already taken the steps necessary to secure possession. Only later, in October 1999 when the tenant became difficult, was their assistance sought in obtaining possession. On 15^th October Mr Roberts complained in correspondence that the firm had been negligent in failing to conclude the sale due to their inability to obtain vacant possession. As a consequence, the retainer was terminated and other solicitors were instructed to handle the possession proceedings. Possession was eventually obtained in February 2000.
3. On 13^th February 2002 Mr Roberts wrote to the respondents' insurers alleging negligence. They denied liability. The file includes three attendance notes dated 13^th July, 6^th September and 13^th October 1999. The first is a note by Mrs Kelly recording a conversation with Mrs Roberts in which she said that the tenant would be prepared to vacate when the property was sold. The second attendance note, also by Mrs Kelly, records an assurance by Mr and Mrs Roberts that formal notice had been given. The third note, by Ms Karen Wilkinson, a secretary at the firm, records a complaint by Mr Roberts that the sale was not being dealt with by a solicitor. Ms Wilkinson is stated to have replied that this was not necessary and that Mrs Kelly was a fully qualified licensed conveyancer.
4. In February 2002 Mr Roberts also contacted the Law Society's Fraud Intelligence Unit ("FIU") alleging that unqualified persons had acted as solicitors or prepared instruments in breach of ss. 20 and 22 of the Solicitors Act 1974. In August 2002 the FIU declined to take the matter further. By then Mr Roberts had been given copies of the three disputed attendance notes by the respondents' insurers. Mr Roberts then discovered that Mrs Kelly had not been a licensed conveyancer at the relevant time and he made a further complaint to the FIU alleging misrepresentation. This complaint was passed by the FIU to the Law Society's Solicitors Practice Unit ("SPU") for further investigation. On 16^th March 2004 they dismissed the allegations made that the attendance notes had been fabricated on the grounds that:

(1) In relation to the first and second attendance notes (of 13^th July and 6^th September 1999), these record Mrs Kelly's understanding of the instructions from the Appellant and his wife and that, while they might show that Mrs Kelly's understanding was incorrect (and that this might be relevant to an allegation of negligence, which was outside the SPU's remit), there was no evidence that they were falsified by the First Respondent as alleged; and

(2) In relation to the third attendance note (of 13^th October 1999) that again there was no evidence in support of the allegation of falsification, though the note would be considered in relation to the second complaint (that the firm misled the Appellant as to the status of Mrs Kelly).

5. In relation to the complaint that Mrs Kelly should not have been held out in the third attendance note as a licensed conveyancer, the SPU decided that the matter could be dealt with by being drawn to the attention of the first respondent but that, as Mrs Kelly had not been held out as a licensed conveyancer on the firm's letterhead, no further action was necessary.
6. Following further complaints (to the same effect as before) from Mr Roberts in April 2004, the matter was passed from the SPU to the Conduct Assessment and Investigation Unit ("CAIU") which, after inviting responses from both respondents, also dismissed Mr Roberts' complaints for much the same reasons as the SPU.
7. The first involvement of the SDT came almost six years later in June 2010 when Mr Roberts complained to the SDT that the respondents had:

(1) fabricated the attendance notes of 13^th July and 6^th September 1999, in breach of Practice Rules 1(a), (c), (d) and/or (e) of the Solicitors' Practice Rules 1990 and/or Principle 17.01 of the Guide to Professional Conduct of Solicitors (8^th Edition, 1999);

(2) failed to carry out the appellant's instructions diligently and promptly, contrary to Principle 12.08;

(3) failed to provide details of the firm's qualifying insurers, contrary to Rule 46 of the Solicitors Indemnity Insurance Rules 2001;

(4) misrepresented the status of Mrs Kelly;

(5) failed effectively to supervise and manage the practice of the firm, contrary to Practice Rule 13; and

(6) failed to provide client care and costs information, contrary to Practice Rule 15.

8. The application was considered on the papers by the SDT and dismissed on the basis that the complaint disclosed no case to answer. No reasons were given. Mr Roberts appealed to the High Court largely on the grounds that the SDT had made its decision without giving him an oral hearing and had provided no reasons for its decision. The appeal was dealt with on 3^rd February 2011 by Calvert-Smith J who, after a consideration of the papers, dismissed the appeal. So far as material to this application, his written reasons were that:

"a) The appellant did not ask for an oral hearing

b) There is express power within the Rules to determine cases on the papers and to dismiss an application as disclosing no triable case.

c) These are not proceedings which Article 6 ECHR applies.

d) Such factual disputes as there were could not assist in the decision as to fabrication of attendance notes after the event.

e) The appellant's real ground for now wanting witnesses called is in the hope that one of them may incriminate themselves in such fabrication. It is not a good reason for calling witnesses that you hope that one of them will create a case for you."

9. There was no attempt by Mr Roberts to take the matter any further until 12^th January 2012 when he made a further application to the SDT making essentially the same allegations. As he confirmed later in his grounds of appeal to the High Court:

"The core allegations relating to the fabrication of attendance notes are the same as my first application to the SDT in 2010. However, I have replaced some of the breaches of the Rule with much stronger principles from the Guide to the Professional Conduct of Solicitors 1999."

10. In a covering letter to the SDT, he explained that he had attempted to cure the problem about lack of evidence identified by Calvert-Smith J by serving Civil Evidence Act notices to admit the attendance notes as evidence and notices to admit the fact that the notes were written "with the intention to deceive". No counter notices were served but no such facts were admitted. Moreover, the effect of the Civil Evidence Act notices was arguably to make the contents of the disputed attendance notes evidence of the facts which they stated, which was the very opposite of Mr Roberts' case.
11. On 23^rd June 2011 the SDT (again without an oral hearing) dismissed the application on the grounds that it disclosed no case to answer. No reasons were given. Mr Roberts appealed to the High Court on 13^th February 2012 on the grounds:

(1) the SDT had been wrong to find that his application disclosed no case to answer as, unlike his 2010 application, he had provided evidence such that the case was now "triable";

(2) he had "proved his case in the same way that the SRA as prosecutor would if they had used Civil Evidence Act Notices and not received counter notices";

(3) he had requested, but not been given, an oral hearing;

(4) although the core allegations were the same as those in his 2010 application, he had "replaced some of the breaches of the Rule with much strong principles from the Guide to the Professional Conduct"; and

(5) the purpose of the Solicitors Conduct Rules is to protect the public, but that this purpose could not be fulfilled if the public were not aware of what the rules are, as was the case for him in 1999.

12. The respondents submitted that the application was an abuse of process and Judge Thornton QC dismissed the appeal for the reasons which I have summarised earlier. In his judgment, he said:

"22. I do regard it as of some significance that it is not possible, as I see it at the moment, to identify clearly precisely what it is that Mr Hook and Ms Goss are said to have done or failed to do and the state of mind with which it is said that they did those things. Equally, it is not clear what evidence, if any, is available to seek to establish the relevant states of mind of Mr Hook and Ms Goss. As is well known, a person's state of mind is one of the hardest things to establish since only circumstantial evidence is ordinarily available in order to persuade a Tribunal that a dishonest state of mind prevailed.

….

31. I approach the case, as I have indicated, on the basis of what is fair and just with the overriding objective and the general principle governing and shaping that overall conclusion. I conclude that it is not fair, and it is certainly unjust, if these proceedings are allowed to continue.

32. The four interlocking reasons why I have reached this conclusion, I have already covered, but I will summarise them. First of all, the general allegations of dishonesty are far too vague to allow a fair trial of those allegations involving professional solicitors of apparently high standing whose livelihood would be genuinely at stake if the proceedings were to continue to a decision.

33. Secondly, such evidence as I have seen, which is almost the same as the evidence that Calvert-Smith J saw, satisfies me that at present Mr Roberts does not have the basis of establishing any form of state of mind which is anywhere near being dishonest. I can only go, as Calvert-Smith J could only go, by the evidence that is before us on the day. It is not for us to speculate on what evidence might turn up and it is certainly not fair or just to speculate as to what might turn up if what I can only describe as impermissible procedural manoeuvres were adopted which involved the summoning of the respondents to a procedural hearing in the nature of inquisition aimed at trying to tease out a case of dishonesty by cross-examination.

34. Mr Roberts understood incorrectly, and I think he accepts that his understanding must have been incorrect, but he perfectly fairly reached an understanding from his internet researches that it would be possible to make good a claim for, and a finding of, dishonesty by two related means. The first by serving a civil evidence act notice under the two civil evidence acts in relation to three attendance notes. Allied to that, serving a notice to admit facts on Mr Hook and Ms Goss. It is not necessary to analyse why, both procedurally and in relation to the substantive law of evidence, either or both of those procedural steps are misconceived in relation to an attempt to obtain evidence or further evidence to support a claim for dishonesty. What I am able to do unhesitatingly is to find that, insofar as those steps have any procedural effect at all, they actually have the reverse effect to that contended for by Mr Roberts. Certainly, so far as the civil evidence act notices are concerned, they have potentially created a situation where the contents of the attendance notes will prove themselves as a result of the service of the attendance notes which is of course not what Mr Roberts is contending. He is contending that these attendance notes were not, as they seem to be, a genuine work product following meetings and telephone conversations in the 1999 period, but were manufactured to appear as if what they were from that period although they were actually created in about 2002. That does show that there is at the moment inadequate evidence to even establish that a pleading of dishonesty is present in this case."

13. Mr Roberts' grounds of appeal and skeleton argument range over a number of issues about the service of the Civil Evidence Act Notices and the principles applicable to abuse of process having regard to the judgments of the House of Lords in Johnson v. Gore Wood & Co. [2000] UKHL 65. He also challenges the judge's conclusion that there has been undue delay and that a fair trial would not now be possible. But, at the heart of all this, the same problem remains. Mr Roberts has produced no credible evidence to suggest that the attendance notes were forged with a dishonest intent to misrepresent what passed between Mr and Mrs Roberts and the respondent firm. In that respect, nothing has changed since the first appeal that was dismissed by Calvert-Smith J. Absent such evidence, the SDT had no alternative but to dismiss his complaint on the grounds they did. The service of the Civil Evidence Act notices and notices to admit facts has not altered that position and, for that reason alone, the judge was clearly right, in my view, to have dismissed the appeal. Mr Roberts obviously has a sense of injustice but he has also to adopt a sense of proportion about these matters. These are complaints made to a disciplinary tribunal. They are quasi-criminal in nature in the sense that they can result in the solicitors being struck off the Roll. They cannot therefore proceed unless there is hard evidence which placed before the SDT should lead it to conclude that there is at least a case to answer. Mr Roberts does not have that evidence as things stand and the SDT were therefore obliged to dismiss his complaint.
14. Mr Roberts has the additional difficulty that, in order to grant permission to appeal, I have to be satisfied that the criteria set out in CPR 52.13 are satisfied which means that there must also be some important issue of practice or principle which requires this Court to consider the case or some other compelling reason to give permission to appeal. As it is, none of those grounds is satisfied but, in my judgment, the application fails at the first hurdle because an appeal would have no real prospect of success.
15. The application is, for these reasons, dismissed.