QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE GIBBS
|GURMIT SINGH NAHAL||(CLAIMANT)|
|THE LAW SOCIETY||(DEFENDANT)|
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR G WILLIAMS QC (instructed by Mr G Williams and Mr C Green, 2A Churhill Way, Cardiff CF10 2DW) appeared on behalf of the DEFENDANT
Crown Copyright ©
"In April 2002 the Tribunal had been asked to consider a number of allegations some of which were supported by admitted facts demonstrating deeply worrying behaviour on the part of a solicitor. The Applicant had not put the matter before the Tribunal as one in which the Respondent had been complicit in dishonest activity. He had said that it was open to the Tribunal to make an inference of dishonesty. The Tribunal is able to accept that the Respondent was not complicit in the fraud perpetrated by Mr de Serville. If the Respondent had not in reality turned a blind eye to what was going on, then his naivety reached proportions that were hard to conceive. By allowing Mr de Serville a free rein, by failing to take proper steps as a solicitor, by allowing his own conduct of affairs in his capacity as a solicitor to be dictated by Mr de Serville and perhaps worst of all in allowing Mr de Serville access to his professional stationery, the Respondent had facilitated the commission of fraud. There was no doubt in the mind of the Tribunal that to behave in such a manner went to the heart of the Respondent's fitness to practise as a solicitor.
The Tribunal had no difficulty at all in concluding that the Respondent was not fit to be a solicitor. The Tribunal therefore ordered that the Respondent be struck off the Roll of Solicitors. They further ordered that he should pay the costs of and incidental to the application and enquiry ... "
"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."
"If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension.
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."
The Master of the Rolls then went on to deal with cases where a criminal penalty had been imposed, not relevant to this case. He continued at F:
"In most cases the order of the tribunal will be primarily directed to one or other or both of two 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 standard. 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. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires."
"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."
"'...we must now apply a less rigorous test. We should simply look at the tribunal's decision in the light of the whole circumstances of the case, always having due respect for the expertise of the tribunal and giving to their decision such weight as we should think appropriate.'"
And then further:
"'Nevertheless, in following this approach we think that it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist tribunals in appeals of this kind ....'"
"If the Respondent had not in reality turned a blind eye to what was going on, then his naivety reached proportions that were hard to conceive."
This remark may in isolation be ambiguous. But, for my part, I am satisfied that the Tribunal made no finding of dishonesty, and I certainly think it right to approach the appeal on that basis.