QUEEN'S BENCH DIVISION
Royal Courts of Justice
B e f o r e :
MR JUSTICE GIBBS
|ANTHONY JAMES LOADER||(APPELLANT)|
|THE LAW SOCIETY||(RESPONDENT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR G TREVERTON JONES appeared on behalf of the RESPONDENT
Crown Copyright ©
"3.50 Organisations must have documented arrangements for periodic reviews of the management of files. The review must, except where there is only one caseworker/adviser in the organisation, be carried out by a caseworker/adviser who has not been involved in the day-to-day conduct of the matter.
3.70 Organisations must have documented procedures for taking instructions which ensure that caseworkers/advisers agree and record:
(a) the requirements or instructions of the client;
(b) the advice given;
(c) action to be taken by the organisations;
(d) the possible effect of the statutory charge;
(e) advice to the client on the best information possible about likely total cost of the matter and any potential liability for costs ...
(f) the client's potential obligation to pay any Legal Aid contributions ...
(g) who will be responsible for the conduct of the case; and
(h) key dates in the matter, and record these in the file and in a back-up system.
3.71 Organisations must confirm (a) to (g) above with the client, ordinarily in writing".
"Mr Loader accepts that, for a limited period of time leading up to the pre-franchise audit in 1995, he was responsible for inserting documentation (client care letters and/or CHKD forms) [I interpolate CHKD forms were the case review forms] into a limited number of client files and applying dates to those documents which would not have coincided with the date on which the letters would have been sent or the files reviewed. The act of inserting documentation did not mean that files had not been reviewed or that client care letters had not been delivered to clients, but the effect of inserting the documentation was that a limited number of files would have given the appearance of being more compliant with franchise requirements than was, in fact, the case. Mr Loader accepts that his actions necessarily involved a degree of deception in his dealings with the Legal Aid Board.
Mr Loader accepts his conduct constitutes an admission to a breach of the relevant Solicitors Practice Rules 1990 and that, in doing the above, he acted in a manner which was contrary to his position as a solicitor. Mr Loader further accepts that the breach of the Solicitors Practice Rules 1990 necessarily incorporates a breach of the Legal Aid Board Franchise Specifications.
You have accepted and acknowledged that there can be no suggestion that Mr Loader's client care was in fact deficient and that all the available evidence indicates that Mr Loader was, and continues to be, a very good, well respected solicitor. Furthermore, you acknowledge that, to his credit, Mr Loader approached the Legal Aid Board and voluntarily disclosed his own conduct within two months of the initial complaint by Rachel Spring and Diane Keen".
The grounds of appeal
"The Chairman: We do not have quite a lot of information really.
Mr Owen: You do not, sir. It is a point that could have been made in terms of the specificity of the charges. No point has been taken on that. But it is necessarily the case, not just because of the passage of time, but by definition, very difficult to nail down with precision what was actually being done. It is a situation in which I do submit the Tribunal, in the traditional way, in circumstances of an agreed basis of plea, can do more than approach the sentencing issue on the basis on which Mr Loader has entered his admissions.
The Chairman: I can see that. There are also slight differences between a letter of admissions and some of the things said in the statements to the Legal Aid Board in the interviews.
Mr Owen: There are. In terms of the statement, I invite you, in effect, to disregard that statement. There are a number of points which could have been made and would have required an examination of the full context in which that statement was taken, what assurances were given and so on which would quite properly have been raised in terms of an application to exclude the statement or even potentially as an abuse of process.
I am not taking that point. Mr Loader is not instructing me to take any point on that. In fairness, Mr Jackson of the Legal Aid Board, the investigator, would be entitled to deal with the extra points and allegations that I would have put to him about what was said to Mr Loader at the time. That is another reason why I do submit it is right that the Tribunal should deal with Mr Loader on the basis of what is agreed rather than --
The Chairman: I am not sure we can promise that we will not have regard to the statement we have from Mr Loader.
Mr Owen: Well --
The Chairman: I am not sure we can agree that that would be our position.
What do you think, Mr Goodwin?
Mr Goodwin: It is right to say that the letter from Peters & Peters [that is to say, the letter of 3rd October] has been advanced as the agreed basis of the admission which I hope I sought to clarify yesterday.
The Chairman: Yes.
Mr Goodwin: If the Tribunal has concern if there is any inconsistency, I would say that consistency on, to adopt Mr Owen's words, the substance rather than the form of what this allegation relating to Mr Loader is about, in that notwithstanding what is said in relation to letters may have been sent to the client, he does accept the nub of the allegation that, effectively, he created and backdated letters. He accepted in so doing, quite properly accepts, that that was contrary to his position as a solicitor and it must involve some degree of deception on the Legal Aid Board.
The Chairman: Yes.
Mr Goodwin: That is why I was content to proceed on the basis of that.
The Chairman: Very well.
Mr Goodwin: I would say to Mr Owen there is this: that I will be putting Mr Loader's statement to those who do give evidence.
The Chairman: Exactly; that is my point. In fact we cannot simply ignore the statement because it will form the basis no doubt, of some questions of other people.
Mr Owen: I hope I will not be sounding too dismissive in the sense of saying that that is a problem which others will have to deal with.
"Mr Loader admitted allegations (i) and (iii) accepting that for a limited period of time (in 1995) he was responsible for inserting client care letters and/or CHKAD forms into a limited number of client files and applying dates to those documents which would not have coincided with a date on which the letters would have been sent or the files reviewed. He accepted that his conduct constituted a breach of the relevant Solicitors' Practice Rules and in so doing he acted in a manner which was contrary to his position as a solicitor. Mr Loader further accepted that the breach of the Solicitors' Practice Rules 1990 necessarily incorporated a breach of the Legal Aid Board Franchise Specifications. Mr Loader accepted that his conduct did amount to conscious impropriety".
"The Tribunal was not satisfied that either Mr Cray or Mr Mitten had expressly or impliedly instructed staff to back date documents, and were not satisfied that they had any knowledge that any such backdating by staff had been carried out. Amongst the factors which the Tribunal took into account in reaching these conclusions were the following ..."
"(n) Mr Loader did not give evidence and so could not be examined on his statement. However his statement was in itself contradictory and unsound in relation to his allegation that Mr Cray had given instructions in relation to backdating.
(o) Mr Loader was a salaried partner who was asked to take charge of the Lewes office and supervise the staff there. Mr Loader's statement contained assertions that he interpreted instructions from Mr Cray to ensure compliance with franchise requirements as constituting instructions to create backdated documents in a dishonest manner, which he challenged but complied with to a limited extent.
(p) Mr Loader's statement contained the extraordinary assertion that a failure by him to have complied with the requirement of Mr Cray would have been a breach of the Partnership Deed. If Mr Loader had indeed considered any instruction to have been dishonest he should of course not have complied.
(q) The Tribunal are not satisfied that Mr Loader received any such instruction. Mr Loader's statement asserts on the one hand that he received clear instructions from Mr Cray to achieve compliance by backdating where necessary, but states on the other hand that Mr Cray 'never said that correspondence should be backdated, it was all by implication'.
(r) Mr Loader's statement to demonstrate his allegation gives a single example of an alleged written instruction from Mr Cray to backdate. This was a client File Review Note dated July 1995 from Mr Cray on Mr Loader's Appraisal file which pointed out past non-compliance on the file in relation to a Green form client care letter and CHKAD and suggesting for the future that CCL and CHKAD should be dealt with at the same time and at the earliest opportunity. Mr Loader considered that the only way he could comply with this request would have been to backdate the CHKAD and client care letter. The Tribunal heard evidence that this interpretation was nonsense; that the file review note was clearly a piece of advice about proper practice to be followed in relation to legal aid funding started post the green form; that it was to be construed as indicating that the client should have been given information about the basis on which the matter was to be reviewed now that it was legally aided; that the note was in any event one which was contained on the file available to the Legal Aid auditors and could not reasonably be construed either as an overt or covert instructions to backdate.
(s) The Tribunal heard evidence that whilst Mr Loader's substantive care of client matters was not in issue, he had in many cases failed over a long period, as revealed by his appraisal files, and related correspondence with the Legal Aid Board, fully to comply with the precise franchise procedure requirements.
(t) The Tribunal was not provided with any satisfactory evidence that Mr Loader had complained to Mr Cray at any time about the alleged impropriety of any instructions from Mr Cray about how to achieve compliance with franchise requirements, nor that Mr Loader had, prior to making his statements to the Legal Aid Board, brought to the attention of Mr Cray at any time that he had backdated documents to secure such compliance.
(u) Apart from the above allegations made by Ms Spring, Ms Keane and Mr Loader about the nature of Mr Cray's instructions as to compliance with the franchise requirements, no other respondent or member of the staff alleged Mr Cray or Mr Mitten to have given instructions to create backdated documents, or to have had knowledge of such backdating. Other witnesses disputed the evidence of Ms Spring, Ms Keane and Mr Loader in a number of material respects.
(v) The Tribunal is of the view that a principal purpose of such backdating as was admitted was to conceal from Mr Cray non-compliance by the particular fee-earner of the firm's franchise procedures ..."
"The Tribunal finds that Mr Loader undertook backdating in order to make his files appear to comply with Mr Cray's practice management standards. He was not told directly by Mr Cray to effect such backdating".
"Each of the third, fourth and fifth respondents [I interpolate that Mr Loader was the fifth respondent] had admitted that they had been guilty of conscious impropriety. There must be no doubt that any solicitor who is guilty of conscious impropriety will be treated with the utmost severity by this Tribunal. The Tribunal consider in the case of Mr Marsh and Mr Harris that their backgrounds went some way to explain their apparent naivety and lack of recognition of the seriousness of what they were doing.
271. The same could not be said of Mr Loader whose seniority and experience should not only have prevented him from taking the steps which he did but should have played a part in guiding those working the same firm as he who were of less experience ...
274. There is no doubt in the Tribunal's mind that all of the Respondents have been guilty of conduct unbefitting a solicitor ...
279. The Tribunal has given anxious thought to the position of Mr Loader. Mr Loader knew what he was doing and knew that it was wrong. He had that knowledge because he was an experienced solicitor of long standing and seniority within the profession.
280. He admitted that he was not good of administrative matters, found it difficult to understand why the new systems were to be imposed and had backdated documents for the sake of the appearance of the file rather than to cover up the lack of any improper handling of clients' affairs.
281. The Tribunal accepted Mr Loader's submission that his actual conduct of clients' matters had always been entirely proper and conducted in the best interests of the client.
282. Mr Loader was to be given credit for his co-operation with the investigating bodies and his admissions of the allegations before this Tribunal.
283. There was no doubt from the evidence before the Tribunal that save for this falling from grace Mr Loader was a solicitor of great competence and professionalism who was held in the highest esteem by all of those who came into contact with him.
284. The Tribunal has taken into account all the matters adduced on his behalf in mitigation, and the long period of time -- over five years -- from the admissions made to the Legal Aid Board and the longer period from the admitted conduct itself. It has also taken into account the great anxiety suffered by Mr Loader over a long period of time and the effect which the matters before the Tribunal have had on his professional career.
285. The Tribunal considered it right in all of the circumstances in order to mark its extreme disapproval of what he had done to impose upon him a suspension of six months. Again, because Mr Loader had been practising as a solicitor without complaint for a number of years since these matters arose, the Tribunal considered it right to agree that the period of suspension need not commence until 2nd January 2003 to give Mr Loader the opportunity of making orderly arrangements for his clients' affairs".
"In inserting these backdated documents he was not recording something which had not happened. He was indicating that reviews had taken place on a specified date. All of the work had been done properly and in time and clients had received appropriate letters keeping them informed of the progress of their matters. In some cases a copy letter which had been written to a client had been removed and a standard letter with a required date had been substituted".
"The admission of the fifth respondent was that for a limited period of time leading up to the pre-franchise audit in 1995 he had been responsible for inserting documentation into a limited number of client files and applying dates to those documents which would not have coincided with the date on which the letters would have been sent or the files reviewed".
"Mr Owen: In that case, I wonder if I could simply say this. Clearly I will be mitigating today and it will be my submission that Mr Loader should be dealt with on the basis of the agreed basis of the plea. But should the Tribunal be of the view that anything arises after I have addressed you today which, as a matter of fairness, you feel I ought to have a chance to come back, that I would be given that opportunity.
In my submission it is difficult to see how that could arise because of the agreed basis of the plea but I simply wanted to, if you like, lay down that request.
The Chairman: You put a heavy onus on us perhaps because it is rather difficult for us to assess in what respect you might want to come back.
Mr Owen: It would be on the basis that something arises during the rest of this hearing which, by definition, we will not know about because we are not intending clearly to stay here all the time for the rest of the hearing. I will address you today on the basis of the agreed basis of the plea.
The Chairman: All right. We will bear it in mind and we will see if we can help".
"Mr Holmes [who was one of the members of the Tribunal]: -- the fact that it had been picked up on file review, perhaps, or by the fee earner and sent out, was not a deadly sin.
Mr Owen: Precisely. That was Mr Loader's belief, that it would not be regarded as a deadly sin. But the expectation that he was pressurised, he felt, to comply with was to create perfection because at that stage it was not known precisely what the Board would say".
"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".
"While I accept that there is a difference in terms of seniority between Ms Spring, Ms Keane and Mr Loader and that literally they can be regarded or, strictly speaking, Ms Spring can be regarded as the first whistle-blower, there is no difference in terms of the gravity of the actual conduct as between their admitted conduct and Tony Loader's admitted conduct. There simply is no difference if one is looking at what they actually did".
"Normally we would take a very harsh view in relation to admitted impropriety in terms of penalty. But we have taken into account all the circumstances, particularly the impact of delay -- without mentioning any culpability for delay -- but the fact of delay we have taken into account in reaching our decision on penalty".