England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		21 October 2004

1. MRS JUSTICE HALLETT: On 17th October 2001 the appellant, Steven Stead Wells, and his fellow director, Matthew Craig Lamb, appeared before a Solicitors' Disciplinary Tribunal constituted under the Solicitors Act 1974. Both admitted a large number of allegations. Others were proved against them. Mr Lamb was suspended from practice for a period of three years. Mr Wells was found to have acted dishonestly in two respects and was struck from the Roll of Solicitors.
2. Mr Wells wishes to appeal the findings of dishonesty and the consequent order to strike him from the Roll. Such an appeal is governed by the Rules of the Supreme Court Order 106, preserved by Schedule 1 of the Civil Procedure Rules. By Rule 12.3 the appellant's notice must be filed 14 days after the date on which a statement of the Tribunal's findings is filed. The findings in this case were filed on 30th January 2002. The notice of appeal was lodged on 17th May 2004. Accordingly, the appeal is brought substantially out of time. We have been invited to exercise our discretion to extend time.
3. In that regard, reliance is placed upon a witness statement from the applicant himself, Mr Wells, but more particularly from Teresa Newman, his present solicitor, of Andersons Solicitors of Nottingham. She sets out in her witness statement, dated 5th May 2004, the background to the present hearing. The applicant accepted he was present on 17th October 2001 when the Tribunal announced its findings. He said that he then contacted a firm of solicitors known as AMS Law in relation to making an application for public funding to appeal the Tribunal's decision. That application was refused on 15th January 2002 and AMS ceased acting for him. A Mr Allerton of Messrs Runhams Solicitors agreed to act on his behalf, initially on a pro bono basis. They launched an appeal against a refusal of public funds. That too was refused on 6th February 2002. An application for public funding for judicial review of that decision was also refused.
4. However, public funding was eventually granted on 3rd September 2002. Unbeknown, Mr Wells says, to him it was granted to AMS Law. He continued to contact Mr Allerton at Runhams, who was meant to be acting for him. He said he had difficulty in speaking to Mr Allerton but was assured the papers were with counsel, awaiting counsel's advice. Matters seem to have been complicated by the fact that Mr Allerton left Runhams Solicitors and set up his own firm. Having heard nothing more, he instructed Messrs Andersons. The funding certificate was transferred to them on 3rd October 2003. They then made strenuous efforts to obtain Mr Allerton's file, apparently unsuccessfully.
5. On 16th December 2003 Ms Newman contacted the Law Society to obtain a copy of the details and findings of the Tribunal with their reasons. These were received on 8th January 2004. Counsel was instructed and there was a conference on 24th March 2004. Public funding was then extended for the purposes of this appeal and application. Ms Newman, in her statement, invited us to extend time for the applicant on the grounds that the decision to strike him off has severely prejudiced him. He was admitted as a solicitor in 1976 and is now a man in his early 50s. He has practised as a solicitor throughout his adult life. He could have many years of practice ahead of him if enabled to do so. Ms Newman also referred us to the penalty imposed on Mr Lamb, and in her opinion the difference between the two could not be justified.
6. For my part I confess I am somewhat surprised that no-one saw fit to lodge an appeal of the Tribunal's decision within the time allowed or soon thereafter, and nobody could, by any stretch of the imagination, describe the present application to extend time as prompt. The applicant was well aware of the decision and its consequences to him, yet a man who practised as a solicitor for many years did nothing to comply with the timetable laid done by the Rules. The only steps he has taken have been in respect of public funding. I was not persuaded, therefore, that this would be an appropriate case to extend time. In my judgment no good reason or explanation has been advanced for the failure to lodge a notice of appeal within days, weeks, or even months of the findings being filed.
7. However, given the consequences of refusing to allow an extension of time to Mr Wells, and given the overriding objective and the fact that the merits of any proposed appeal should be considered, I was prepared to hear Mr Engelman on behalf of the applicant as to the merits of his proposed appeal.
8. Given the nature of the submissions made on Mr Wells' behalf as to an alleged disparity of treatment between Mr Lamb and himself, it is necessary to rehearse the findings made against both men. They each admitted the following allegations: (1) failed to keep proper accounts for the purposes of the Solicitors' Accounts Rules 1998 (hereinafter referred to as the SAR); (2) drew money from a client account other than as permitted by the SAR; (3) improperly utilised clients' funds for their own benefit; (4) improperly utilised clients' funds for the benefit of another; (5) permitted withdrawals from a client account without authority from a solicitor; (6) paid into a client account monies which were not client monies, contrary to the SAR; (7) operated a separate business which did not comply with the Separate Business Code of 1974 in three ways: (a) it failed to maintain separate paperwork and records; (b) it failed to advise clients they did not enjoy the statutory protection attaching to solicitors' clients, and indeed advising to the contrary; (c) it held money in a separate business and the solicitors' client account; (8) applied out of damages payable to a client costs contrary to the Civil Legal Aid Regulations of 1989; (9) there were two allegations that they failed to operate a complaint handling procedure contrary to the Solicitors' Practice Rules of 1990; (10) failed to apply for a remuneration certificate; (11) failed to account for commission received; and lastly, failed to comply with a decision of a Law Society Committee dated 27th March 2001.
9. Mr Wells admitted misappropriating clients' money but denied dishonesty. He further admitted a number of allegations in relation to property transactions. These included a failure to heed warnings as to transactions which had the hallmarks of mortgage fraud; acting for seller, buyer and lender, contrary to the Solicitors' Rules; acting in situations where there was a clear conflict of interest or potential conflict; and failing to disclose material facts to clients and mortgagees. In addition, he admitted failing to supervise his staff properly.
10. The Tribunal found proved against both men the following allegations: firstly, obtaining secret profits from clients; secondly, acting for clients when their own interest conflicted with the interests of those clients; thirdly, abusing the fiduciary solicitor-client relationship by taking advantage of the client; and fourthly, failing to pay interest on monies accumulated in client accounts, contrary to the SAR. These four charges related to the operation of something known as MML, a mortgage management plan of which both Lamb and Wells were directors. In addition, Mr Wells was found to have failed to carry out his clients' instructions properly and diligently. He was found to have failed to reply to communications in relation to his clients or former clients properly. Most significantly for the purposes of the present appeal and for Mr Wells himself, he was found to have acted dishonestly in respect of a misappropriation of clients' funds, and dishonestly in respect of the mortgage management plan.
11. Lamb was acquitted of dishonesty in respect of the MML. No other allegations of dishonesty were made against him. It is not necessary to refer to all the facts admitted by both men. Suffice it to say they indicate a practice which was run in a chaotic and slipshod fashion. On Mr Wells' own admission, at the very least he left his staff to their own devices. Staff were plainly not up to the job and a number of things went wrong, leading to a number of breaches of the rules.
12. The Tribunal found the following facts. It found that Mr Lamb was admitted as a solicitor in 1988 and Mr Wells in 1976. At all material times the two men were directors of an incorporated practice under the style of Listers Solicitors Limited in Bradford. The two men were also shareholders. Listers got into financial difficulties and entered into a voluntary agreement in 1998. By the time of the hearing it had gone to liquidation.
13. Before the Tribunal there was a report from an Inspection and Compliance Officer (hereinafter referred to as the ICO) dated 27th October 2000. This went into the financial details of Listers Solicitors and MML. When the ICO arrived at the practice to carry out his inspection he was informed that no reconciliation had been carried out between client liability and cash held on client bank and building society accounts since 30th April 1999. Work, it was said, was being carried out by an accountant to bring the position up to date.
14. Mr Wells and Mr Lamb accepted that there was a total cash shortage on examination of the books of £141,280. £4,878 of this shortfall was caused by the misuse of clients' money. As far as the MML was concerned, the ICO brought to the Tribunal's attention the operation of the mortgage management scheme. The scheme was marketed by mortgage brokers. The client mortgagor paid a monthly amount to Listers Solicitors Limited. This was greater than what would have been their normal monthly mortgage repayment. From this payment Listers paid the mortgage. They also charged an administration fee and a registration fee. Money paid by the client was allowed to accumulate within an account held by Listers Solicitors. These funds were to be held until such time as "it was appropriate" to make a capital payment to the mortgagor. If the participator in the scheme decided to withdraw from the plan the accumulated monies were to be returned to him.
15. The Tribunal annexed to its report copies of the brochure produced by MML. It contained the following paragraph under the heading "Ultimate Security":

"By using an account in your name, operated by a firm of solicitors, you will have the full protection offered by the Law Society and their Indemnity Fund and Compensation Scheme. At no time can anyone else gain access to your money. No one has ever lost money whilst their funds were being held in a solicitors client account."

16. A review of the clients' ledger in 2000 revealed thousands of live accounts of clients who had paid substantial sums over to Listers. £2,886,784.54 stood in Listers' client account for MML. The administration of the plan was carried out at Listers' premises. The computer system was operated by MML personnel. The accounting system used by Listers to administer the plan did not comply with the Solicitors' Accounts Rules. The ICO examined in detail the accounts of 66 individuals, accounts which were still live but for whom the balance stood at nil on 30th September 2000. It was said that in breach of the SAR no interest had been credited to those accounts and there was no machinery in place to calculate any interest due to them. For example, in one eight-week period Listers had been credited with over £130,000 in respect of interest earned on the clients' accounts in which the plan monies were held. In the same period Listers posted to the clients' accounts the sum of just over £1,500 in respect of interest.
17. Both Mr Wells and Mr Lamb told the Tribunal that although their promotional literature made no mention of the payment of interest to the clients, that was always their intention. Their computerised accounts system did not have the ability to calculate the interest and there were too many cases for a manual calculation of interest to be undertaken. The appropriate software had been ordered and, once that was up and running, the calculations would have been made. The scheme was said to be beneficial to those who otherwise lacked the discipline to save and who wished to pay off their mortgage without penalty, and it was to the benefit of the client that any calculations of interest should be postponed until the client was outside the penalty period.
18. In submissions to this court Mr Engelman on behalf of Mr Wells referred to the fact that a number of people have considered the scheme over the years: for example, the Law Society, the Department of Trade and Industry, and indeed counsel. Mr Engelman submits that it is hardly likely that a fraudulent operator would have the scheme considered by so many bodies if he intended to act dishonestly.
19. Mr Marriott, on behalf of the Law Society, informed the court that in fact the Law Society's advice was negative in respect of the planned scheme, and the Law Society expressed its concern about a number of potential breaches of the Solicitors' Practice Rules. He also reminded the court that counsel had advised that the scheme might work, but had done so on the basis that interest must be paid to the client, and that he advised that the MML scheme should be kept separate from the practice of Listers Solicitors.
20. Further allegations relating to the misuse of clients' funds came to light during the ICO's inspection. There were four matters in particular relied upon by the ICO, and in written submissions to this court we were reminded of the number of transactions that any busy solicitors' practice would be undertaking at any one time. As far as those four matters were concerned, it is necessary to deal with the details of just three.
21. Firstly, in relation to Mr D Deceased, Mr Lamb was one of Mr D's executors. Two of Mr D's residuary beneficiaries had not attained the age of majority and their total share of the estate was lodged in a client-designated deposit account. On 10th December 1998 that account was closed and the sum of just over £1,000 was transferred to the general client bank account. Two transfers were later made of the sum from the client bank account to the firm's office bank account, ostensibly in respect of the firm's costs. There was a post-it note attached to the file on which was written in Mr Wells' handwriting "taken legacies by way of costs!" Mr Wells confirmed that he had written the note. He said he had done this to bring the inaccuracies of the matter to the attention of an appropriate person. Both Mr Wells and Mr Lamb agreed that the transfer of these funds amounted to a misuse of them, and Mr Lamb accepted responsibility as a director of the practice under the rules of strict liability. Mr Wells' direct involvement and knowledge of what was happening was established by the post-it note.
22. The next matter related to the estate of a Ms M Deceased. Two cheques had been written out for just over £500 to residuary legatees. They had been returned by the post office, marked "gone away". In August 1999 the clients' ledger was charged for the transfer of the total sum of those two cheques to the office bank account in respect of the firm's costs. There was no bill of costs on the relevant file. Mr Wells' account was that he thought these costs were properly due to his firm as the executor had been a partner of the firm for a short period. He claimed there had been an agreement that he would pay the two outstanding bequests personally and the firm would take the costs. He accepted that reviewing the file he could see he had been wrong to believe the firm was entitled to this amount and the monies were still properly due to the beneficiaries. He insisted that he personally did not authorise the transfers and thought he might have been on holiday at the time in any event.
23. The next matter was in relation to a Ms C, who was involved in two sets of proceedings for which she had legal aid. Listers' costs would therefore have been paid by the Legal Aid Board. In fact, Listers transferred £1,500 of her agreed damages from her client bank account to the office account in respect of the firm's costs. There was no bill of costs in the relevant file. A handwritten bill was located in a file of bills of costs, indicating work in progress on this file. Later in December 1999 a client account cheque for £1,500 was in fact sent to the client, but this had not been debited to the relevant account in the clients' ledger.
24. There are a number of such transfers amounting to over £13,700. Coincidentally, at about the time of these transfers, payments had been made on Listers' account for their own liability in respect of PAYE and National Insurance payments and subscriptions to the Solicitors' Indemnity Fund. The ICO therefore questioned whether or not the applicant, or indeed anyone else in the firm, had been so desperate for money to pay Listers' bills that they had conducted a trawl through the balances of the clients' register and made transfers when they ought to have known the monies were not properly due to the firm. This was denied, but the fact is the money was transferred in breach of the Rules and coincidentally at a time when Listers were in desperate need of funds.
25. Mr Wells emphasised that he left matters of this kind to others within the firm. He was not the fee earner in the matters upon which reliance was placed. He accepted, however, that he was primarily responsible for financial matters within the firm and the accounts manager reported directly to him. Lamb, who was responsible for the matrimonial practice, was not involved in day-to-day operational financial management. The allegation therefore against Mr Wells was that he was at the hub of the accounts operation. He not only knew what was going on, as evidenced by the post-it note, but he authorised it and was dishonest.
26. I need not deal in any further detail as far as the conveyancing allegations were concerned. These were admitted by Mr Wells and the facts speak for themselves. Transfers were not properly recorded, material facts not properly disclosed.
27. The Tribunal also dealt with a number of complaints about the way clients and their complaints had been handled. Suffice it to say that neither Mr Wells nor Mr Lamb seems to have acted promptly or appropriately when complaints were made, nor seemed to have been aware of the duty of a professional person such as a solicitor in responding to complaints from their regulatory body.
28. Mr Marriott, on behalf of the Law Society, informed the court in his written submissions that the case against Mr Wells was presented on the basis that he was dishonest in relation to non-payment of interest in the MML scheme and in relation to the misuse of clients' fund. The only allegation of dishonesty against Mr Lamb was in respect of MML. Mr Marriott submitted that there was ample evidence before the Tribunal to make the findings and the distinctions that it did. He submitted that, as they set out in their reasons, the Tribunal correctly directed itself as to the test that had to be applied in relation to findings of dishonesty, a test originally set out in Royal Brunei v Tan [1995] 2 AC 378, later adopted in Twinsectra v Yardley [2002] UKHL 12, speeches delivered on 21st March 2002. He argued therefore that if the Tribunal directed themselves according to these two authorities, then they had plainly applied the appropriate burden and standard of proof. He further reminded us that this was an experienced Tribunal, and one which, having heard and seen the witnesses, was well able to decide whether or not dishonesty had been proved.
29. Mr Engelman, on behalf of Mr Wells, argued that Mr Lamb and Mr Wells should bear equal responsibility for the misuse of the clients' funds. He argued that on the evidence a distinction should not have been drawn between the two of them. They were both directors. He submitted that the post-it note on the file for D Deceased was not sufficient to establish the additional and highly significant finding of dishonesty against Mr Wells. Mr Wells' fault was simply in knowing of the situation and doing nothing to correct it. He was not the fee earner in any of the cases upon which reliance was placed for the misuse of client funds. The fact that he was the senior partner and took the more active role in financial matters did not, in Mr Engelman's submission, justify his having a finding of dishonesty made against him and no finding made against Mr Lamb. He reminded us, quite properly, of the test of dishonesty as set out in Royal Brunei and Twinsectra.
30. Returning to the MML scheme, Mr Engelman referred us to counsel's advice on the scheme. He referred us to the Rules. He dealt with the question of conflict of interest and the suggestion that there would be no benefit to the client. He argued that there was in fact no breach of the rules. He argued that if one looked at the scheme as advertised there was no reference to interest being paid, and in any event it was in the clients' best interest that it should be paid after the penalty period.
31. He submitted that, given the number of bodies who had examined the scheme and counsel's advice, that sat uneasily with the Tribunal's finding of dishonesty in relation to the scheme. He submitted that Mr Wells was entitled to believe the scheme was legitimate. His behaviour, it is said, was consistent with honest conduct, not fraudulent activity. In his written submissions Mr Engelman also criticised the Tribunal for finding proved an allegation of dishonesty in relation to the making of secret profits but in giving no specific reasons for that finding.
32. The Tribunal did however deal in some detail with the scheme as a whole. It said this in relation to MML, dealing first of all with Mr Lamb:

"Mr Lamb was a director of MML and of Listers. In that capacity he held money on behalf of clients, the participators in the plan, where it was clear that he intended to and did make money from the scheme. The client would have been better off making similar payments into an ordinary savings account. It was clear that Mr Lamb's making money at the expense of the client demonstrated a clear conflict of interest between himself and his client. The same set of circumstances clearly amounted to an abuse of the fiduciary duty existing between solicitor and client and did amount to taking advantage of a client to whom the scheme might have appeared to operate to his advantage when manifestly it did not.

"The Tribunal did not consider that the 'discipline' that it was said the scheme imposed on participators was such an advantage that it outweighed all other considerations. It was inevitable that the scheme would be attractive only to those who were not sophisticated in financial affairs. It has to be said that a solicitor could simply take custody of a building society passbook to prevent a client from having access to his savings if that was what the client required. In such a case there would be no deduction from those savings and the whole sum saved plus interest would be available to the client in due course. To hold a client's savings, charge him for doing so and pay him a low rate of interest on the balance did amount to taking advantage of a client who was unsophisticated in financial matters.

"It was entirely clear that no interest had been paid to the clients whose accounts revealed a nil balance, and to which a 'closing fee' had been debited. The Tribunal have not been required to decide whether Mr Lamb intended to pay interest to those clients when it could be calculated. The Tribunal does consider it very unsatisfactory that no attempt had been made to calculate and apply interest to those accounts. It is the Tribunal's view that the latest possible 'appropriate time' for such calculation and payment was the closure of the account. If the calculation was not possible on the computerised system, then another method of calculation should have been employed."

33. The Tribunal then went on to deal in this respect with Mr Wells, and said this:

"The Tribunal find that Mr Wells's culpability in connection with the non payment of interest due to clients to have been at a higher level than that of Mr Lamb. Mr Wells did fail to pay interest to clients and the Tribunal consider that he deliberately kept them out of their money and to that extent he was dishonest -- again applying the test in Royal Brunei Airlines v Tan."

34. The Tribunal had earlier described that test as "amounting to being rather worse than merely negligent and amounting to dishonesty".
35. I do not intend to rehearse the findings of the Tribunal in any greater detail. Suffice it to say that I have read the transcript of the proceedings and their findings in full and I am satisfied that they approached their task in a careful and conscientious manner. They have plainly applied the proper test for dishonesty as put forward and argued by Mr Engelman and with which I agree. They needed no reminding of the consequences of their findings and their decision. In my view they were fully entitled to come to different conclusions about the two men in front of them. They were obliged in law to look at the case against each of the two men separately, and to assess the extent of their misconduct.
36. The allegations against each man were different. Their involvement in the practice was different. The evidence again them was different. The Tribunal heard each man give evidence and heard that evidence tested in cross-examination. Plainly they rejected Mr Wells' assertion that he acted honestly throughout. He was by far the more active director in the financial affairs of Listers Solicitors and MML. It was a matter for the Tribunal, directing themselves according to the appropriate standard as they did, whether or not they found allegations of dishonesty proved.
37. I agree that the Tribunal's findings in relation to the allegations of dishonesty, and in particular dishonesty in relation to secret profits, could have been better phrased and they could have provided more detail, but I am satisfied that the Tribunal has provided sufficient rational basis for its conclusions. I am not persuaded that the Tribunal has acted in any way unreasonably, unfairly or perversely. In my judgment, looking at the evidence for myself, I am satisfied that any Tribunal faced with evidence of this kind, as called against Mr Wells, would have been driven to the same conclusions.
38. As far as the misuse of clients' funds is concerned, he was plainly more concerned in the financial operations. He was at the centre of the operations within Listers, and the post-it note indicates his knowledge of what was going on. His explanation for the posting of that note was in no way adequate, and in my view the Tribunal was right to find proven dishonesty in this respect.
39. As far as the MML scheme is concerned, from the outset this was plainly a bad scheme from the client's point of view, hence the findings against Mr Lamb. This was a firm of solicitors advertising a scheme to vulnerable clients on the basis that if they dealt with a solicitor, any dealings would be protected by the Solicitors' Indemnity Fund and Compensation Scheme. Again, Mr Wells was plainly at the centre of things. As Mr Marriott put it, Mr Lamb was kept largely in the background in relation to financial matters but Mr Wells was very much in the engine room of the administration of the MML scheme.
40. Mr Wells may feel that Mr Lamb has been treated favourably. The Tribunal however was obliged, as Mr Engelman submitted, to apply a very high standard of proof in relation to findings of dishonesty. It must be very careful before making such findings against a professional person. I am satisfied, on the evidence that I have seen in this case, that the Tribunal was justified in drawing a distinction between the honesty of these two men as far as the MML scheme is concerned. The fact that no method of calculating interest had been established in some four years of operation of the scheme is, in my view, highly significant, but so also was the fact that some payments were made. Mr Lamb took no part in deciding when payments should be made, according to his evidence. Mr Wells therefore must have authorised the payments that were made. He was in control. He was at the forefront of what was on any view a bad scheme and in breach of a number of the Rules. In his case, sadly, it became a dishonest scheme.
41. Therefore, using the court's power not only to review these proceedings but to reconsider them on their merits, I am entirely satisfied that there is no reason to disagree with the Tribunal's findings or to interfere with them.
42. As far as the penalties imposed are concerned, once one has drawn a distinction between the two men by means of findings of dishonesty, a huge difference in the penalties imposed was inevitable. Given the catalogue of findings and failings in running the solicitors' practice, failings which affected ordinary members of the public, plus the grave elements of dishonesty found against Mr Wells -- rightly in my view -- I am satisfied that the penalty of striking Mr Wells from the Rolls was inevitable. The Tribunal, in my judgment, would have been failing in its duty to the public had it not taken such a decision.
43. Accordingly, having heard all the arguments that could be advanced on Mr Wells' behalf in any appeal, I am satisfied that they are without merit, as is the application to extend time, and accordingly, for my part, I would dismiss both applications.
44. MR JUSTICE GIBBS: I agree.
45. LORD JUSTICE LAWS: I agree that these applications should be dismissed for the reasons given by my Lady. I desire only to emphasise my firm view that this is a case in which it would have been entirely wrong to extend time.
46. MR MARRIOTT: My Lord, I have one observation and one application. I think in giving the judgment you referred to the appellant as practising in Bedford. I may have misheard but I think you said Bedford. It should of course be Bradford.
47. MRS JUSTICE HALLETT: Thank you very much, Mr Marriott.
48. LORD JUSTICE LAWS: Perhaps the shorthand writer will very kindly make a note to remind my Lady to correct the transcript.
49. MR MARRIOTT: The second thing is an application. I am aware that the appellant has public funding but I would seek an order for costs for the Law Society, namely that the appellant pay the respondent's costs or for a detailed assessment, but not to be enforced without permission of the court.
50. LORD JUSTICE LAWS: I can never remember. There is some formula that the court is required to use when it decides to make such an order. Mr Engelman, do you have anything to say in principle about the application?
51. MR ENGELMAN: I have no objection in principle. There is a formula. I am afraid I cannot remember the precise formula.
52. LORD JUSTICE LAWS: Apparently there is more than one formula floating around at the moment, the associate tells me.
53. MR ENGELMAN: I have no objection to that.
54. LORD JUSTICE LAWS: We will make the order. As regards the exact form, the associate will very kindly produce something and if anyone has any problems about it they can let us know.
55. MR MARRIOTT: Thank you, my Lord.
56. LORD JUSTICE LAWS: Thank you very much.