QUEEN'S BENCH DIVISION
Royal Courts of Justice
London WC2A 2LL
B e f o r e :
MR JUSTICE PITCHERS
|DAVID WINGATE STUART HAYES||(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 P CADMAN (instructed by Messrs Jameson & Hill, Herts, SG14 1BY) appeared on behalf of the DEFENDANT
Crown Copyright ©
(1) Mr Davis' train fare
(2) The meeting of 18 November 1998
(3) The wording of the bills
"158. The Tribunal found the allegations not to have been substantiated.
159. The Tribunal found Mr P [and the other two named witnesses] not to have been credible witnesses. The Tribunal found the Respondent to have been a frank and honest witness.
160. The Tribunal concluded that Mr P had pursued the Respondent through his own professional body as, what appeared to be his customary method of seeking to reduce or indeed avoid the payment of professional firms engaged by him in connection with his business activities had been foiled. Because the Respondent had insisted upon holding monies on account of costs Mr P had had to modify his established method of simply not paying to that of seeking to discredit the content of the bills submitted to him.
161. The Tribunal found that the charge for travel made by Mr Davies was a matter for Mr Davies' professional judgment and was not a matter that could sensibly be said to have been one to be laid at the door of the Respondent.
162. With regard to the 18 November lunch meeting the Tribunal accepted the Respondent's evidence that the meeting between himself and two of Mr P's professional advisors was one at which Mr P's ongoing, complex and, indeed, worrying business affairs were discussed and proposals were made and steps were identified that would assist him in achieving a satisfactory outcome."
"167. .... the failure to disclose in the bills to his client that the part of the disbursement which related to the cost of lunch in the sum of some £230 had been divided between three different client matters had nonetheless been reprehensible.
168. The tribunal was satisfied that there was no intent on the part of the Respondent to mislead the client in any way, because full detail was disclosed to his firm's accounts department to whom he provided the information leading to the preparation of the bills.
169. However, the Respondent could be criticised for not correcting the accounts department description of the apportioned disbursement simply as 'travel'. The solicitors' profession and the public are entitled to have confidence that solicitors act and record what they have done with the utmost transparency when they calculate their costs and identify their disbursements.
170. The Tribunal was satisfied that there was no sinister background to the division of the disbursements between three particular matter files."
"173. Because of the criticisms which the Tribunal felt could be made of the Respondent, he was to a considerable extent the author of his own misfortune in failing to make sure that his bills were clear and transparent when delivered. In consequence the Tribunal expressed its intention to make no order as to costs in this matter."
Jurisdiction as to costs
"Upon the hearing of an Application or complaint made to the Tribunal under this Act ... the Tribunal shall have power to make such order as it may think fit and any such order may in particular include provision for any of the following matters-
(i) the payment by any party of costs or a contribution towards costs of such amount as the Tribunal may consider reasonable."
"Upon the hearing or determination of any Application the Tribunal may in the case of an application against a solicitor, former solicitor, or registered foreign lawyer without finding any allegation of unbefitting conduct proved against the respondent or in the case of an application in respect of a solicitor's clerk, without making any Order under section 43(2) of the Act nevertheless order any party to pay the costs if having regard to his conduct or to all the circumstances, or both, the Tribunal shall think fit."
The general approach to appeals from decisions of Disciplinary Tribunals
"... in dealing with an appeal of this kind, a greater flexibility is now appropriate than was suggested in Bolton which was decided before the coming in to force of the Human Rights Act. In Ghosh at 1923, Lord Millett, giving the judgment of the Privy Council, is an appeal under the Medical Act 1983 (but, for my part, it seems that the principle should be of equal application in relation to appeals by solicitors) said this:
'The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a re-hearing in which the Board is fully entitled to substitute its own decision for that of the committee ....
It is true that the Board's powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against 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 went on to refer to Evans v General Medical Council (unreported) and just above G said this:
'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 ....'
There is a passage to similar effect in the judgment of the Privy Council delivered by Lord Cooke of Thorndon in Preiss v General Dental Council  1 WLR 1926 at paragraph 27."
Specific approach to be taken in relation to a costs appeal
"18. This court is always reluctant to interfere with the decisions of a Solicitors' Disciplinary Tribunal, for the reasons explained by Sir Thomas Bingham MR in Bolton v Law Society  1 WLR 512. That reluctance is enhanced in relation to a Tribunal's exercise of discretion in relation to costs. But if such a discretion is exercised in a plainly wrong manner, this court must put matters right.
19. We agree that the Tribunal is not bound to follow the practice of the civil courts in making orders for costs. However, we do not read Rule 22 as justifying an order for costs against a successful respondent who has been acquitted of misconduct, and whose conduct in relation to the matters in question before the Tribunal and since the commencement of the proceedings against him has not in the event been criticised."
Application of the law to the present case