QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE SULLIVAN
|THE LAW SOCIETY||(DEFENDANT)|
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MR PH CADMAN (SOLICITOR ADVOCATE) (instructed by Penningtons, Bucklesbuoy Hse, 83 Cannon Street, EC4) appeared on behalf of the DEFENDANT
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"The appellant's notice must be filed at the court within 14 days after the date on which a statement of the tribunal's findings was filed pursuant to section 48(1)."
The reference there is to section 48(1) of the Solicitors Act 1974.
"An order of the Tribunal shall be filed with the Society, and a statement of the Tribunal's findings, signed by the chairman or by some other member of the Tribunal authorised by him in that behalf, shall either be prefaced to the order or added to the file containing the order as soon as may be after the order has been made."
Section 49 deals with appeals from the Tribunal. An appeal against striking off may be made to the High Court.
"It is, to my mind, of significance in this case that, on 10th October 1995, Beldam LJ and Buxton J gave judgment in a case involving Mr Pybus. That was a case in which a disciplinary tribunal had, in November 1993, made findings against Mr Pybus which gave rise to conduct unbefitting the solicitors' profession. The circumstances of the then conduct are immaterial. What is material is that, on that occasion, Mr Pybus sought the leave of the Divisional Court to appeal out of time against the tribunal's decision, he having failed to lodge a notice of appeal until some days after the 14day period then provided within which to appeal had elapsed.
In the course of giving judgment, Beldam LJ, at page 6D of the transcript, in a passage which cannot fail to have been known to Mr Pybus, whether or not he was present at the time that the judgment was delivered, said:
"...the time limits for giving notice of appeal were, some years ago, abridged from 28 days to 14 days, with the obvious object of ensuring that the tribunal's jurisdiction to maintain public confidence in the proper and efficient discharge of the solicitors' duty was able to be upheld within a reasonable time."
Buxton J said (at 7G):
"That those rules should be punctiliously observed is not only reasonable in the public interest but also reasonable in the interests of applicants, bearing in mind that they are themselves solicitors and, as this case has shown, are given full assistance and information by the tribunal as to the limits involved. Those, in my judgment, are principles that it is important in the public interest to uphold."
This is, therefore, the third occasion on which the appellant has filed a notice of appeal late. When asked for an explanation, he produced a lengthy chronology of what were said to be "relevant" events beginning on 11th June and ending on 25th September. Most of the events were not relevant since they predated 28th August. The appellant explained that he was attempting, he said upon counsel's advice, to challenge the order dated 6th June. As a letter from the Administrative Court Office dated 27th August explains in some detail, the appellant consistently failed to provide the court with a proper notice of appeal or with proper documentation in relation to his claim for fee exemption.
"The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not called makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes.
It is true that the Board's power of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals again sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past."
Lord Millett had referred to Evans v General Medical Council, and had said:
"For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances. The council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration."
Rose LJ mentioned that there were passages to similar effect in the Privy Council's judgment in Preiss v the General Dental Council, and in a Scottish decision MacMahon v Council of the Law Society of Scotland upon which Mr Pybus relied in his submissions. Rose LJ said that he proposed to approach the determination of the appeal before him in accordance with the tests indicated in those authorities. I, for my part, would do likewise.
"The first of those grounds relates to the reasons of the Tribunal. Section 48 of the Solicitors Act as amended requires the Tribunal to state its findings and it is common ground that the decision of the Tribunal should contain adequate reasons. The Tribunal's duty is to make clear, at least in broad outline, what facts are found to be proved or unproved, and why the Tribunal found the allegations to be established or not established. The minimum requirement is that the solicitor who is the subject of adverse findings and any professional penalty should know why the findings have been made and why the penalty has been imposed."
"We find allegations (i), (ii) and (iii) all proved. We have no doubt at all that the Solicitors' Account Rules have been breached by the respondent and we do not accept what is put forward on his behalf by Mr Stirling on this allegation.
The protection of the public is important and these breaches of accounts rules cannot be regarded as 'mistakes'. They are serious matters. The accounts rules have a serious purpose and they have not been kept to. Neither have they been put right within anything like a proper time.
We have to say that having seen Mr Pybus in the witness box that he was not particularly impressive as a witness.
Allegation number (ii) was admitted. We have heard what has been said in mitigation on that point.
Allegation number (iii), as I have said, we find proved in this case.
Having reached that decision and found these matters proved, I have to ask the Clerk if there are any previous appearances."
The clerk then dealt with the appellant's previous appearances before the Tribunal, and Mr Stirling (counsel on behalf of the appellant) was asked whether he wanted to say anything further in mitigation before the Tribunal considered sentence.
"(i) that his books of account were not in compliance with the Solicitors' Accounts Rules;
(ii) that he failed to promptly comply with a decision of inadequate professional services dated 16th September 1994 (confirmed on appeal on 21st December 1999);
(iii) that he failed to comply with the resolution of the Adjudicator dated 15th June 2000, affirmed by the Appeals Committee on 31st January 2001."
"The Tribunal found the allegations to have been substantiated. Allegation (ii) was admitted. In relation to allegation (i) the Respondent's own accountant's report agreed that there had been a cash shortage. The Tribunal could not see any meaningful defence to the charge that the books had not been in compliance with the Solicitors' Accounts Rules. The breaches were detailed in the Rule 4 Statement and in the report of Mr Rowson. There had been no proper defence to allegation (iii) the 'defence' being rather mitigation but mitigation which did not go to the heart of the allegation. The Tribunal had not found the Respondent to be an impressive witness. His evidence had been evasive and unsatisfactory. The Tribunal having carefully considered the oral evidence, the documentation and the submissions found all the allegations proved. A failure to comply with decisions of the regulatory body was clearly conduct unbefitting a solicitor.
In relation to the breaches of the Solicitors' Accounts Rules, the Rules were there for the protection of the public. The breaches could not be regarded as just 'mistakes.' The breaches of the Rules in respect of which the Tribunal had found the Respondent's explanations unsatisfactory, did amount to conduct unbefitting a solicitor."
The Tribunal then noted the previous appearances of the respondent before the Tribunal.
"At a hearing on 11th November 1993 the following allegations were substantiated against the Respondent namely that he had been guilty of conduct unbefitting a solicitor in each of the following respects:
(a) failed to deliver up papers to a firm of solicitors within a reasonable time of a proper request being made;
(b) failed to render an account to clients within a reasonable time of the determination of his retainer.
The Tribunal was satisfied with the basic good character of the Respondent and appreciated that he was deeply affected at having to appear before them today. There was no doubt that the Respondent had allowed the entrenched position he had adopted to get out of hand and he seemed incapable of appreciating the other point of view. Nevertheless, they accepted that this was in part due to a misinterpretation of The Law Society's earlier advice and in part due to his anxiety about his own health."
The findings then record the earlier Tribunal's consideration of the appropriate penalty. In paragraph 124 there is reference to the hearing on 3rd February 2000:
"At a hearing on 3rd February 2000 the following allegations were substantiated against the Respondent namely that he had been guilty of conduct unbefitting a solicitor in each of the following particulars:
(i) failed to deliver to a client (or his solicitor) all the papers and property to which that client was entitled ...
(ii)failed to respond promptly to correspondence and telephone calls from the Office for the Supervision of Solicitors;
(iii)failed to comply with the decision of Inadequate Professional Services dated 19th August 1998 (confirmed on appeal on 20th January 1999).
The Tribunal in February 2000 considered that the allegations before it were perhaps not at the most serious end of the scale:
Having said that the Tribunal considered that the Respondent's behaviour has been a disgrace to his profession. He had made disingenuous attempts to have the substantive hearing adjourned and had lodged with the Tribunal a statement which is unhelpful, confusing and obfuscatory. The Tribunal hope that the respondent will in future moderate his wholly inappropriate attitude to his professional body and to this Tribunal. A solicitor has a duty to ensure that papers to which a client was entitled are promptly delivered to that client when he requests them. A solicitor had a professional duty to respond promptly to correspondence and telephone calls addressed to him by his own professional body and it was a serious matter if a solicitor did not comply with a decision and direction made by his own professional body.
The Tribunal imposed a fine of £6,000 upon the Respondent together with costs and made an order that the Inadequate Professional Service Direction be treated for the purposes of enforcement as if it was an Order of the High Court.
At the hearing on 6th June 2002 the Tribunal noted that this was the Respondent's third appearance before the Tribunal. The Tribunal noted what had been said about the Respondent at the hearing in February 2000 by the Tribunal. At the present hearing it had been proved against the Respondent that he had taken costs without proper authority and had a shortage on client account. He had not complied with directions of his regulatory body. The Tribunal had been asked to consider the 'special considerations' which applied to the Respondent but the Tribunal had been unable to see that there had been any special mitigating factors which reduced the Respondent's responsibility for his conduct. The Solicitor Accounts Rules were there for the protection of the public. The Respondent had not complied with those Rules and even now did not appear to accept the seriousness of that failure. Even without the Respondent's two previous appearances before the Tribunal the Tribunal would have considered a striking off order in relation to the present allegations. The Tribunal had not been persuaded by the Respondent's evidence and nothing in the submissions in mitigation were such as to make the Tribunal draw back from that penalty. The protection of the public was paramount and the Respondent had fallen lamentably short of the standards required of a solicitor in relation to the stewardship of his client's funds and in relation to his duties towards his professional body."
"Upon the conclusion of the hearing or determination of any Application the Tribunal may announce its Order while still sitting in which case the Order may be filed immediately with the Society, and the Findings shall be filed later as if judgment had been reserved, or it may reserve judgment in which case it shall announce its Findings and Order in public at a later date notice whereof shall be given to the parties by the Clerk. The Clerk shall on the day of pronouncement file the Order, or the Findings, or both, with the Society. The Clerk shall supply a copy of the Findings and Order to each party to the proceedings and to any other person present at the pronouncement who requests one."
It will be remembered that by virtue of section 48(1) the finings may be signed by the Chairman or by another member of the Tribunal authorised in that behalf by the Chairman.
"The Tribunal had not found the Respondent to be an impressive witness. His evidence had been evasive and unsatisfactory."
The appellant submitted that there was a clear difference between these findings and that this showed that there was no "nexus" between what had happened at the hearing and the Tribunal's written findings.