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
- and -
THE LAW SOCIETY
(THE OFFICE OF THE SUPERVISION OF SOLICITORS)
Mr. Gregory Treverton Jones QC (instructed by The Law Society) for the Respondent
Hearing date: 9th June 2003
Crown Copyright ©
Lord Justice Auld :
The allegations and the grounds of appeal
1) The counsel's fees matter – two offences:
first, on an allegation made in October 1998, of unreasonable delay between 1994 and 1998 in replying to correspondence from the Bar Council, the Solicitors Complaints Bureau and the OSS about payment of counsel's fees; and
second, on a complaint made in February 1999 that in 1994 and 1998 he had deceived or misled the OSS and the Tribunal about the payment of G's fees, contrary to Rule 1 of the Solicitors Practice Rules 1998 and Principle 21/07 of the Guide to the Professional Conduct of Solicitors.
(The Tribunal dismissed the earliest of the three allegations in this matter, namely of non or late payment of counsel's fees between 1987 and 1991)
2) The conveyancing matter – two offences:
first, on a complaint made in April 2001, of his conduct in July 1988 as a proposed assignee of a lease in dealing direct with the proposed assignors knowing that they were represented by a solicitor and without his consent; and
second, on a complaint made at the same time of his conduct in August 1988 of entering into possession of the premises the subject of the assignment without having paid the balance of the completion monies and without the landlord's licence for the assignment.
3) The O'Callaghan matter – one offence, on a complaint made in September 2001, of his failure, between June and September 2001, to pay the compensation that the Appeal Committee of the OSS had directed him to pay to the dissatisfied former client, Mr. O'Callaghan; and
4) The judicial review matter – two offences, both on overlapping complaints made in May 2002 about his failure on 20th and 21st February 2002 to make full and frank disclosure in his application to the Administrative Court for judicial relief and stay of the O'Callaghan complaint and thereby obtaining the sought stay.
1) unreasonable delay by the Tribunal in resolving the various proceedings from, at the latest, October 1998, the date of the earliest allegation, to the Tribunal hearing on 9th July 2002 or later, on appeal
2) bias on the part of the Tribunal in hearing the judicial review matter arising out of its earlier involvement in February 2002 in the events giving rise to it;
3) the Tribunal's finding that he had misled the OSS and the Tribunal in 1998 about G's fees;
4) the delay from July 1988 to April 2001 in making allegations in the conveyancing matter and thereafter by the Tribunal in its determination of them in July 2002 or later on appeal;
5) the Tribunal's refusal to admit expert evidence tendered on his behalf in the conveyancing matter; and
6) the Tribunal's finding that he was guilty of non-disclosure and, therefore, of misleading the Administrative Court, in the judicial review matter.
The individual grounds of appeal
1) Overall Delay
"In any case in which it is said that the reasonable time requirement … has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives ground for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive." .
2) Bias – judicial review matter
"… whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility … that the tribunal was biased. "
As to the February 2002 hearing, when faced with the threat of Mr. Aaron and his counsel to leave, the Tribunal behaved with commendable restraint and fairness, and did not decide to adjourn all three matters before it until after Mr. Aaron had made good his threat. Mr. Engelman drew attention to certain remarks of the Chairman the time suggesting a measure of irritation at the enforced adjournment. But irritation with those appearing before them is, sadly, the common lot of most courts and tribunals from time to time, and is not of itself a basis, subjectively or objectively, for requiring them to recuse themselves on account of bias from further proceedings between the same parties.
3) Misleading the Tribunal - the counsel's fees matter
"192. … the allegation related to the complaint made about the Respondent by Mr. and Mrs. M. The Respondent had very clearly stated that he had paid all the fees due to Mr. G out of an ex gratia payment made by the Lord Chancellor's Department which had been paid to the Respondent. It was clear that the Respondent had not made full payment, the Tribunal accept the Respondent's explanation that he had believed that he had settled all outstanding fees at the material time."
"203. … the Respondent when asked the question by Mr. M (who at the time was in the witness box) whether or not the fees of Mr. G had been settled, replied that they had. That had not been right. There was still money owing to Mr. G. Whatever the circumstances it was wrong of the Respondent to assert a fact which he believed to be true without being absolutely sure that it was actually true. Again the Tribunal accept that the question of Mr. G's fees was one of considerable muddle and as before accepts that it was the Respondent's belief that the matter had been closed however the answer was inaccurate and did have the effect of misleading the Tribunal. The Tribunal is able to accept that the Respondent did not seek deliberately to mislead the Tribunal but the fault on his part lay in the fact that he had not carried out a full and detailed check so that he could be sure that the answer that he gave was wholly accurate. The Tribunal does consider that the Respondent's behaviour with regard to [the] allegation … does amount to conduct unbefitting a solicitor."
"Professional misconduct is simply conduct which the Solicitors' Disciplinary Tribunal and the Judges from time to time regard it to be. 'Conduct which would be regarded as improper according [to] the consensus of professional, including judicial, opinion could be fairly stigmatised as such whether it violated the letter of a professional code or not.' Conduct does not have to be 'regarded as disgraceful or dishonourable by his professional brethren of good repute and competency' to amount to professional misconduct as even negligence may be misconduct if it is sufficiently reprehensible or 'inexcusable and such as to be regarded as deplorable by his fellows in the profession'. It will be noted that these quotations preserve the assessment of professional conduct, as to whether or not it amounts to professional misconduct, to the profession itself and to the judges."
4) Delay – the conveyancing matter
"He, as a proposed assignee of an underlease of office premises, did exchange contracts direct with the proposed assignors, whom he knew to be represented by solicitors, without the knowledge of those solicitors.
"In the same matter having inserted a date for completion in the contract … entered into occupation on or about that date without the knowledge of the proposed assignor's solicitors without payment of the completion monies and at a time when no licence to assign to him had been granted by the lessors."
"205. The Respondent, on the face of it to further his own ends but also in his view to further the wishes of the assignors, dealt with the matter in such a way that he simply cut out the input of the assignors' solicitors.
206. There was no evidence before the Tribunal indicating that the assignors' solicitors were aware of the Respondent's intention before he carried it out.
207. The Tribunal accepts that a letter explaining what had happened had been written after the event. The Tribunal further accepts that the Respondent had not been able to make telephone contact with the solicitors on the material date. It was clear that those solicitors considered themselves not to be in a position to discuss exchange of contracts as a licence to assign had not been obtained.
208. The Respondent's submission that the solicitors had been disinstructed on the day when they refused to undertake work on behalf of their client was in the Tribunal's view an ex post facto attempt at explaining the Respondent's extraordinary conduct.
209. It was accepted that the assignors wished the matter to proceed with all due expedition as did the Respondent. The Respondent is a solicitor and must have realised that there were constraints on his being able to enter possession and that he could not do so on the date he required, the initial legal work and formalities not having been completed.
210. A solicitor acting on his own behalf has an even higher duty to behave with the utmost propriety than he would if he were representing clients in a similar transaction.
211. The Respondent had deprived … [the assignors] of the protection that having their own solicitor would have afforded them.
212. By entering into possession of the premises without due completion of the formalities, the Respondent had put the assignors at substantial risk.
213. The Tribunal considers the Respondent's behaviour to have been heavy handed, overbearing, contrary to his position as a solicitor and altogether wholly unacceptable. The Tribunal find [the] allegations ….both to have been substantiated. His conduct was unbefitting a solicitor."
It is plain from those observations that the Tribunal, having considered the evidence and representations on both sides, did not regard this as a border-line case.
5) Non-admission of evidence – the conveyancing matter
6) The judicial review matter
1) that the disciplinary proceedings in relation to the O'Callaghan matter had commenced on 20th February 2002; 2) that there had been an application for and refusal of an adjournment of the hearing of the matter at the beginning of the Tribunal hearing on 20th February 2002; and
3) that, at the time of the application for the stay, the proceedings before the Tribunal were part heard and due to continue.
"Following your telephone call to us yesterday, and our reply call to you of this morning, we confirm:-
a. At present the complaint by the interested party Mr. Kevin J O'Callaghan is being heard, against our Mr. Aaron, by the Solicitors' Disciplinary Tribunal;
b. Accordingly, we will be glad if you will place our papers before a Judge as soon as possible, so that he or she may consider urgently granting an Interim Order staying execution in respect of the reference to the Solicitors' Disciplinary Tribunal.
We did send you a copy of our proposed draft Order by fax yesterday. A further copy of the proposed draft is attached to this letter."
The point is taken against him that the letter contained no request that it should be placed before the Judge or, in particular, that the content of paragraph a. should be drawn to his attention. But there was enclosed with it a further copy of the draft of the proposed order that it sought from him. It is not known whether the letter reached the Administrative Court before Silber J. dealt with the matter on the papers. The Tribunal, in its written findings, at paragraph 199, expressed the view that it was unlikely that the letter would have been placed before him. Mr. Treverton Jones maintained that that view is supported by enquiries made by the Law Society of the Administrative Court shortly before the start of the adjourned hearing before the Tribunal on 8th July 2002, which revealed that, although the Mr. Aaron had undoubtedly faxed the letter to the Court on that day, it did not have the letter on its file.
"199. The Tribunal finds that some reference was made to the disciplinary proceedings in letters addressed to the Administrative Court. However, such letters would be unlikely to be placed before the judge considering the application and would be likely to be regarded only as administrative in nature. The learned judge would have before him the formal application in respect of which there was a clear duty on the Respondent to make full and frank disclosure of all relevant facts. It was incumbent on him to tell the judge that at the time the application was made proceedings before the Disciplinary Tribunal were in train and, indeed, the oral hearing had commenced. He did not make the appropriate full frank and proper disclosure required of him."
"223. … There was no doubt that it was incumbent upon the Respondent in making the ex parte application to make full and frank disclosure. He was therefore required to make it very clear indeed to the Court that his failure to comply with the Direction relating to Mr. O'C[allaghan] had been referred to his professional Disciplinary Tribunal and that at that time of making the application to the Court a disciplinary hearing was currently being heard by the Tribunal. It followed that the Order made by Mr. Justice Silber had been made when he had been deprived of knowledge of the full material facts surrounding the matter. There was no doubt that the omission of the material facts from the Respondent's application served to mislead the Court and Mr. Justice Silber in particular.
224. The Tribunal can only repeat what it said before. Namely, that a solicitor acting on his own behalf with the utmost propriety and in this matter the Respondent had fallen very short of compliance with that duty. The Tribunal found … the allegation[s] to have been substantiated and find that there was serious conduct unbefitting a solicitor on the part of the Respondent."
"Bearing in mind that this was not the first appearance of the Respondent before the Tribunal, it gave very serious thought to the imposition of the ultimate sanction. The Tribunal concluded that the allegations substantiated against the Respondent were far too serious to be marked by the imposition of a financial penalty and concluded that in order to demonstrate to the Respondent that his behaviour would not be tolerated and further in order to protect the good reputation of the solicitors' profession, it was right that the Respondent be suspended from practice for a period of two years. His behaviour would be regarded as disgraceful by like minded members of the public and the profession."
Mr Justice Goldring :