QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SOLICITOR'S DISCIPLINARY TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
MR. JUSTICE GOLDRING
MICHAEL JOHN DARBY
- and -
THE LAW SOCIETY
(THE OFFICE OF THE SUPERVISION OF SOLICITORS)
Mr. David Barton (instructed by The Law Society) for the Respondent
Hearing date: 19th June 2003
Crown Copyright ©
Lord Justice Auld :
The allegations and the appeal
2) between 20th and 29th May 1998, he compromised or impaired his duty to act in the best interests of his client by refusing at unreasonably short notice to attend, on Mr. L's behalf, a taxation of costs hearing, and gave him inaccurate information about the hearing; 3) in late 1998 and early 1999, he compromised or impaired his independence or integrity by writing offensive or inappropriate letters to Mr. L and his wife, Mrs, L, and Mr. H, the manager of the branch of the Midland Bank at which Mr. L maintained an account; 4) in late 1998 and early 1999, he compromised or impaired his good repute and that of the solicitors profession, by writing such letters; and 5) in late 1998 and early 1999, he failed to keep the affairs of his client, Mr. L, confidential by writing such letters to Mrs. L and Mr. H.
Failure to provide information on costs
" You know from my previous correspondence and also from our several telephone conversations concerning this matter that my view is that you should not proceed with the claim against Mrs. C if there is any reasonable prospect of settling it on an economical basis.
"As I have had no response to my correspondence to R s I have to assume they are not interested in the proposal put forward and it is therefore up to you to decide what to do.
As you are aware from previous correspondence I have not yet fully considered the merits of the claim against Mrs. C but if you wish me to proceed then I will do so. In that case I obviously need to see you again so that we can discuss the case and decide on way forward.
To date I have acted on your behalf in what I regard as a 'fire fighting capacity . to stop the Judgment being enforced against you in the Mrs. C case. If you want me to proceed to trial in respect of Mrs. C then under the provisions of the Law Society guidelines I am required to notify you of my terms of business. Enclosed separately is what I colloquially term as a 'client care' letter which give [sic] details of who will be looking after the case on your behalf and who you should contact if you need information or have information to give.
Details of the charge out rate are for the current year. My charging terms for the work done so far are slightly less and doubtless the rate will increase in line with inflation and any other excuses as time goes on.
With regard to costs thus far, I still feel that these should be met by R s but I obviously need to know what you propose to do with regard to a claim against them for negligence.
I look forward to hearing further from you. "
We should add that Mr. Darby had annexed to the terms of business a schedule, which, inter alia, identified the "Date of commencement" of the solicitor/client relationship to which they related, as November 1994.
"It is normal practice to obtain a payment on account of anticipated costs and disbursements, the amount of which will vary and be dependent upon the type of work for which you have engaged the company [sic]. In this case the amount of the payment on account is indicated in section 9 [of the schedule, where the entry was "nil"] and this amount should be paid as soon as possible to enable your case to be considered further.
Interim bills will be prepared and submitted to you at regular intervals for work carried out during the conduct of this matter. This assists our cash flow and enables you to budget for costs. You will doubtless understand that in the event of a payment being requested and not made then the fee earner must reserve the right to decline to act any further and will account to you fully in respect of work done up to that time.
Accounts should be settled within 14 days of receipt "
" . I am extremely disappointed in the way that you have not honoured promises that you made to me. As you know, I have put a considerable amount of time and personal financial effort into your problems with Mrs. C. The result I know is not a good one for you, but you were kept fully appraised throughout the course of that matter and willingly accepted the risks of a final judgment against you, particularly having regard to the repercussion this would have upon your potential claim against the R s.
We discussed on many occasions a transfer of assets to cover my fees. As I have indicated to you before, my fees are in the order of approximately £25,000 for work done on the C file, and despite having made numerous, what I consider to be, friendly requests for you to sort the matter out, you have not done so.
It must appear that our professional relationship cannot proceed in those circumstances. I therefore propose that I will submit a bill to you for all the work that I have done on your behalf and I suggest that you let me know how you propose to discharge it. .
"My Taxing Clerk has now completed the tortuous task of preparing the full details of the Schedule of Costs and Disbursements in connection with the claim against Miss C.
I can, if you wish, now prepare a bill for taxation in respect of the C case and I will then lodge this at Court and apply for the bill to be taxed. I am bound to say that this will cost further money which I will seek to recover from you, and there will also be a substantial taxing fee payable in view of the amount of the bill.
I have been provided with evidence confirming that the action taken against Miss C is on behalf of the partnership between the two of you, so that enforcement of the sums due is a joint and several liability of you both, which means I can pursue either both or either of you in respect of it. I feel extremely badly treated by you in your not having made any attempt to discharge the monies due to me, and I must say therefore that I would have little hesitation in applying for your joint bankruptcy if I felt that this step was necessary to liquidate your assets for the benefit of all creditors. Please do not force me into this action, and let me have within the next 10 days please, your clear proposals as to how you propose to discharge this liability.
Please do not prevaricate or come up with any other stupid excuses. You are well aware of all the work that was done on your behalf and basis upon which it was done, you are also well aware of the promises that were made with regard to settlement of the bill. Do not now try to insult me further by attempting to hoodwink me with any further false promises.
I genuinely hope all is well for you both but insist upon settlement of the outstanding monies due to me."
" It is very clear from the documents before the Tribunal that the Respondent did not achieve a punctilious compliance with Rule 15. His approach to the requirements of Rule 15 and in particular the requirement to give a client information about the calculation of costs were not closely and properly followed. The Tribunal accepts that the Respondent's letter dated 9th February 1996 and the terms of business enclosed therewith (and on the evidence the Tribunal is not satisfied that the letter was not sent) go some way to ameliorate the mischief addressed by Rule 15. The Tribunal notes that the Respondent did not apply the 'nil' payment on account set out in the schedule to the terms of business.
The Tribunal does not accept the Respondent's submission that he was not required to comply with Rule 15 at the time when he was 'looking into' the way in which Mr. L's former solicitors had conducted the action against Mrs. C, nor that the position then was different from the position when he was instructed by Mr. L to have conduct of the substantive matter. There could be no doubt that when the Respondent was instructed in the matter from the outset he was required to comply with Rule 15.
The Tribunal does, however, accept that the Respondent was not, as appears to have been alleged by Mr. and Mrs. L, responsible for seeking unreasonably to maintain an action at great cost to his client. Mr. L's contention that he had been required to pay enormous costs relating to a £460.00 claim was disingenuous. Mrs. C had, of course, counter-claimed and Mr. L was defending the counter-claim made by Mrs. C.
There was no doubt that the costs owed to the Respondent by Mr. L represented a significant proportion of the income to his firm over the period to which those costs related. The Tribunal considered that Mr. L was a businessman of some sophistication who had instructed solicitors on a number of occasions before he instructed the Respondent. There could however be no certainty that Mr. L's sophistication, expertise and knowledge would equip him to be entirely au fait with solicitors' costs and the effect on costs in litigation where his opponent was legally aided. It was dangerous for a solicitor to rely upon such an argument as an explanation for his failure to comply with Rule 15. There was no evidence before the Tribunal which satisfied it that Mr. L was so knowledgeable that he need not be given proper explanations and details of potential costs."
Failure to attend court
"Thanks for your fax. Unfortunately as you have ignored my request for £2,000 to cover Counsels fees I will be unable to attend the Taxation hearing on your behalf and you have no right of audience before the Judge. I asked for this in March but you have simply ignored the matter and that is completely unfair.
If you can let me have £2,000 then I will attend on your behalf.
Finally and perhaps predictably you have not put forward any proposals with regard to settlement of the monies due to me. Please now do so.
I am sorry if this letter seems harsh but the ball has been in your court for several months and you have completely ignored any attempt to deal with the matter."
"The Hearing is between Solicitors and the County Court Judge only and it is up to the Solicitors to justify the costs that they claim. There is no need for you to attend and indeed unless you conduct the Taxation on your own behalf I doubt that the Judge will allow you to attend. If you do wish to conduct the Taxation on your own behalf you will have to have a fairly in depth knowledge for [sic] provisions of Order 62 of the County Court Rules. This deals with the question of Solicitors costs on Taxation for litigious matters. If you wish to attend to try to negotiate a settlement before the Taxation is conducted then obviously you can do so."
"For the avoidance of doubt the minimum figure in respect of my costs at the present time for all matters upon which I have acted on your behalf and which are not yet billed is over £25,000.
What is the problem with the payment now of £2,000.00 in respect of unpaid Bills not related to the C matter and in respect of disbursements?
If I am to attend the taxation for you i.e., following the receipt of the £2,000.00, am I to find my own accommodation?"
. ... "Forgive me for writing to you personally but I do so as a courtesy to you in particular and to the Court in general. I ask that you excuse my and my firm's attendance at the Taxation Hearing today. I have been pressing Mr. L for instructions with regard to the taxation since the Bill of Costs was lodged by the Defendant's Solicitors. I also have to say that I have been pressing the Plaintiff for payment of an interim account but due to a complete failure to respond to these requests with the effect that I have received nothing for any work done on this case, I have had to impose a condition upon Mr. L that I would not attend the Taxation unless I could receive funds.
I remained hopeful that Mr. L would provide me with both instructions to attend and the relevant funds to enable me to do so but notwithstanding exchanges of faxes during the course of the Bank Holiday weekend, and as recently as yesterday, I have received nothing further from Mr. L.
Most reluctantly therefore I do not consider it appropriate to attend the taxation particularly in view of the time and distance involved and in the absence of any co-operation or courtesy from the Plaintiff himself.
In such circumstances I would ordinarily have attended the Court to offer my apologies to the District Judge personally but I am sure you will appreciate that the distances involved make this an impractical proposal. I therefore do extend my personal courtesy to you and my apologies for failing to attend but I hope you understand the difficulties in which I am placed in this matter.
I anticipate that Mr. L may attend himself and I further anticipate that I shall in due course lodge a Summons seeking to be removed from the record."
" I of course appreciate the principle of privilege. However, if you check with Mr. L you will find that he asked me to write to you to see if I could persuade you to allow this transaction to proceed. This suggestion was made when the terms between Mr. L and I were somewhat better than they are at the present time, so I will not be particularly surprised if he now reneges on this proposal as he has on other proposals.
Nevertheless, Mr. L should know that I am absolutely adamant that due to his, in my view, disgusting behaviour on [sic] failing to comply with obligations, I will have no hesitation in causing Mr. & Mrs. L as much difficulty as possible unless they come up with some satisfactory proposals. I trust therefore that you will be able to secure some instructions from Mr. & Mrs. L, rather than merely pass on correspondence for their information."
"I think it appropriate to mention that Mr. L, who is well aware all the liabilities in respect of work carried out by my firm including this matter, has declined to discuss payment of all sums due to me and has instructed other Solicitors in that connection.
It is only right that you should know, however, that I am more than prepared to discuss all of these matters with yourself, [Mrs. L] and [Mr L] at a joint meeting. [Mr. L] will, of course, wish to have his Solicitors available at such a meeting."
"I really am terribly sorry to have to trouble you but in view of [Mr. L's] disgusting behaviour with regard to monies owed to my firm I am having to try to recover the outstanding costs in respect of all matters in which I have been involved with him.
As you may know despite numerous efforts on his behalf all of which were done against promises that he would make payments in an honest and diligent manner [Mr. L] has now gone to other Solicitors and complained that we did not work in his best interests and I cannot, therefore, speak to him directly. I am giving you this information merely as background and by way of preamble to apologise for having to enclose the attached bill in respect of the formation of [a company] on behalf of yourself and Mrs. G.
Otherwise, I do trust that all is well in North Wales and again my sincere apologies for having to trouble you with this matter but as [Mr. L] refuses to deal with matters other than through Solicitors who are obviously being as unhelpful as possible in ensuring that [Mr. L] does not have to pay me monies correctly owed as they no doubt instructed to do."
"My personal experience of your husband leads me to the inevitable conclusion that he is somewhat devious and duplicitous in his manner and I fear therefore, he may not have told you the full extent of the problems that he and I have.
There is an outstanding claim on the C file for a sum payable in respect of legal costs of well over £25,000 and I am arranging to tax that bill. The bill, however, when taxed will have to be paid by either you or your husband and in view of his attitude I will have no hesitation in proceeding with bankruptcy against him and, if necessary, you unless the bill is paid.
There are, however, a number of other matters where I have represented both he and you, his Mother and his mistress and sadly he has seen fit to pay none of these bills so that there is a substantial amount outstanding.
I am sorry if this letter comes as something of a shock but your husband is well aware of the circumstances and his behaviour not only with me but with others in refusing to honour debts which are properly due is in my view utterly disgusting. It is for this reason that I will give no quarter in pursuing him and any other creditors of my firm until the correct monies due to me are paid in full."
"The Tribunal considers that if Mr. L might previously have authorised the writing of the letter to the bank, it was unlikely that any such previous authority remained in being at the time the letter was written and moreover Mr. L would not have been likely in any event to have authorised the terms in which it was written. To that extent the Tribunal found [the] allegation to have been substantiated
"The Tribunal did not find that the Respondent had been guilty of dishonesty. There had been no misappropriation of clients funds. The Respondent was responsible for ten staff and had successfully obtained a franchise from the Legal Services Commission in two areas of work. That spoke highly of the way in which his office was organised.
The Respondent told the Tribunal that he had received a visit from the Law Society's Investigation Accountant and his books of account had been given a clean bill of health.
The Tribunal finds it extraordinary that given these factors this Respondent should have behaved as he did in connection with the affairs of Mr. L.
The Tribunal concludes that the friendship formed between Mr. L and the Respondent, and the subsequent souring of that friendship, clouded the Respondent's judgement. On the face of it, it appeared to the Tribunal that Mr. L was very happy with the Respondent's legal services, advice and assistance provided he did not have to meet the costs. It was clear that Mr. L did not always answer letters or deal with matters with which the Respondent or his firm required him to deal.
The Tribunal consider the Respondent's failures to be serious and conclude that it would be right to impose a fine upon the Respondent of £3,000.00 in respect of each of the five allegations found to have been substantiated. ."
"It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness .
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 In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. 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. 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. .
"Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. "