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
		19th July 2005

1. LADY JUSTICE SMITH: This is an appeal by Ignoibo Robert Awoloye-Kio ("Mr Kio") and Turner Peter Dokubo Briggs ("Dr Briggs") against decisions of a Solicitors Disciplinary Tribunal. On 28th September 2004, Mr Kio was suspended from practice as a solicitor for five years. Dr Briggs was suspended from practice for one year. On the same occasion, and arising out of the same matters, Mr Anthony Nwabudike Omezie was fined £1,500 and ordered to pay £1,000 towards the Law Society's costs of the proceedings and the preceding inquiry. The remainder of the Law Society's costs were ordered to be paid as to 20 per cent by Dr Briggs and 80 per cent by Mr Kio. Mr Omezie has not appealed against the penalty imposed upon him.
2. Mr Kio was born in 1953 and was admitted as a solicitor in 1995. He then practised as a sole practitioner until 1998 when he took Mr Omezie into partnership with him. The firm was known Awoloye-Kio & Co and operated from 135 to 143 Stockwell Road, Brixton. Mr Omezie left the partnership in about October 2002. In August 2002 Dr Briggs, who had been admitted as a solicitor in November 2001 at the age of 54, became a salaried partner. He had previously been employed at the firm for some years, latterly as a salaried solicitor. Dr Briggs ceased to be a salaried partner in August 2003 and left the firm shortly afterwards.
3. The affairs of the firm first came under scrutiny by the Law Society in August 2002 following the discovery that large sums of money received from mortgage lenders had disappeared and had not apparently been applied for the purposes for which they had been lent. On a first inspection which began on 19th August 2002, it was found that the firm's books and records were not up to date. The client cash book had not been reconciled to bank statements since 30th June 2002 and individual clients' ledger accounts contained no entries after 30th June 2002.
4. Mr Kio attributed these shortcomings to a failure by the firm's accountants and explained that the firm was in the process of having the accounts transferred to a computerised system. However, when a new firm of accountants was instructed, they had to reconstruct the accounts. It is clear that in August 2002 the firm's books of accounts were in a parlous state.
5. Further investigation by the Law Society revealed irregularities of various types which were to lead, in due course, to the preferment of 12 complaints against the partners, of which two were withdrawn at the start of the hearing. In the investigation of August 2002, a comparison of a list of liabilities to clients with the cash available as at 30th June 2002 showed a shortage of over £82,000. That shortage was rectified during August and September 2002 by transfers from the office account to client account. The shortfall had arisen, as to nearly £58,000, from a series of over-payments of varying amounts on the accounts of 32 clients. These irregularities founded complaint number 3 against Mr Kio and Mr Omezie which alleged that the firm's books of account had not been kept in accordance with the Solicitors Accounts Rules 1996. That was the only complaint against Mr Omezie.
6. The largest single over-payment discovered at this time, which was of about £19,000, had arisen from a property purchase transaction in which the firm had acted on behalf of a Mr and Mrs G. The firm had received a mortgage advance of about £190,000 and had paid almost £210,000 to the vendor. The file for this transaction was missing in August 2002 and Mr Kio was unable to offer any explanation, either for the over-payment or the missing file save to say that he believed that this transaction was one of a number of fraudulent property transactions conducted by a Mr Sidney Toppin who had been employed by the firm at that time.
7. Mr Toppin had been struck off the Roll of Solicitors in 1995. The circumstances were that a number of fraudulent property transactions had taken place at his firm. When these came under investigation, responsibility for them was attributed to an unqualified clerk employed at the firm. The Disciplinary Tribunal hearing the case against Mr Toppin expressly found that he had not been dishonest. His fault had been a serious failure to supervise the activities of the clerk in question. These failures were so serious as to warrant him being struck off the Roll. We understand that following his removal from the Roll, Mr Toppin was employed by a firm of solicitors from 1996 to 2001 with the permission of the Law Society.
8. In August 2001, Mr Toppin was offered employment by Mr Kio. Mr Kio was aware that Mr Toppin had been struck off the Roll and that he could not be employed without the consent of the Law Society. On 22nd August 2001, some days after Mr Toppin's employment had commenced, Mr Kio applied to the Law Society under Section 41 of the Solicitors Act 1974 for permission to employ Mr Toppin. On 4th September 2001 a telephone call was received at the Law Society offices in which the caller said that Mr Kio no longer wished to employ Mr Toppin. Accordingly, the Law Society's file was closed. It is not suggested that Mr Kio made that telephone call. Indeed, it seems likely that it was made by Mr Toppin.
9. On a day in October 2001, Mr Toppin showed Mr Kio a letter which purported to have been written by an officer of the Law Society to Mr Toppin, informing him that the Law Society had given permission for him to be employed by the firm of Awoloye-Kio & Co, subject to conditions. These were that Mr Toppin would be supervised by Mr Kio personally, that he would not handle clients' money, and that all incoming and outgoing post would be supervised by Mr Kio. This letter was a forgery. Mr Kio told the Tribunal that he believed the letter to be genuine. Mr Toppin's employment continued until various fraudulent activities came to light in the Summer of 2002.
10. The employment of Mr Toppin without the permission of the Law Society gave rise to complaint number 4 against Mr Kio alone. It was clear, as has been admitted on his behalf to us, that he had no excuse at all for employing Mr Toppin between August and October 2001. Thereafter, he claims that he was duped by the production of the a letter apparently from the Law Society. However, we are of the view that that letter should have caused an alarm bell to ring in Mr Kio's head. It was written to Mr Toppin and was giving him permission to work for Mr Kio's firm, yet it was Mr Kio who had applied for permission to employ Mr Toppin and Mr Kio had never received a reply to that application.
11. On 21st November 2002 the Law Society received a complaint from Southern Pacific Mortgage Limited to the effect that the firm of Awoloye-Kio & Co had failed to register four charges in favour of Southern Pacific in respect of four separate conveyancing transactions in which Southern Pacific had instructed the firm to act on its behalf as secured lenders, and where the firm was also acting for the purchaser/borrowers. It appears that Southern Pacific had advanced money on loan ostensibly to be secured by a charge over the property to which the loan related. The money had been purloined by Mr Toppin who had transferred it to another firm of solicitors. It is not known to what extent that firm was aware of the fraud being perpetrated. Indeed, it was not clear to us from the papers before us how this fraud had been effected. Today Mr Cadman, who has appeared for Mr Kio, told us that the fraud was effected through the means of phantom transactions. False applications were made, he said, for loans on non-existent properties. When the loan monies were received, the money was sent to a firm of solicitors apparently acting on behalf of the vendors. They transferred the money to their client.
12. In all, we are told that Mr Toppin was responsible for ten fraudulent transactions involving several different mortgage lenders. However, Mr Kio was charged before the Disciplinary Tribunal only in respect of the four transactions involving Southern Pacific. Mr Kio admitted that his firm had given standard form certificate of title undertakings in all four matters. Three of these undertakings had been signed by Mr Kio personally and one was signed by Mr Toppin. Mr Kio, who was the partner with responsibility for Mr Toppin, was responsible for the performance of all four undertakings. The failure to perform the undertakings founded complaint number 1 against Mr Kio.
13. Mr Kio accepted that he had not performed the undertakings but contended that it had been impossible for him to do so. Mr Toppin's frauds had been very clever and Mr Kio had not been able to detect them, even with the proper exercise of supervision over him. He, he said, had not been at fault. He had wished to repay the loan monies when the defalcations were discovered but had been unable to do so because his assets had been placed under a freezing order. He contended that he should not be penalised for these events. It was Mr Toppin's fraud that had caused the problem in the first place and the freezing order that had prevented him from putting matters right.
14. However, the Tribunal held that the breach of an undertaking was a matter of strict liability. That strict rule was required, they said, for the protection of the public. If a solicitor had any fear that he might not be able to honour an undertaking, it was open to him to enter a conditional undertaking. However, the Tribunal indicated that the circumstances in which Mr Kio failed to honour these undertakings would be taken into account in litigation. Upon hearing that ruling, Mr Kio pleaded guilty to that allegation.
15. Complaint number 2 against Mr Kio, and number 5 against Dr Briggs, each alleged a breach of Rule 16 of the Solicitors Indemnity Insurance Rules 2002. As a result of Mr Toppin's activities and claims made against the firm, the cost of its indemnity cover rose sharply. Indeed, Mr Kio was unable to obtain cover on the open market for the year commencing 1st September 2002. Accordingly, he applied for and was granted assigned risks pool cover for that year. Payment of the premium by instalments was arranged but the instalments were not paid promptly. Despite various attempts to arrange concessions, payment was not made within the year and nearly £12,000 remained outstanding after the end of the year of cover. It was eventually paid in January 2004. Both Mr Kio and Dr Briggs were found guilty of that complaint. Mr Williams QC, who has appeared today for the Law Society, accepted that this was not the most serious matter that had been before the Tribunal.
16. Complaint number 6 alleged that by reason of the five complaints already mentioned, all three solicitors had been guilty of conduct unbefitting a solicitor, and had brought the profession into disrepute.
17. As a result of the application for assigned risks pool indemnity cover, a monitoring visit took place at the firm in May 2003. This revealed further causes for concern and a further investigation visit took place in June 2003. This investigation revealed matters which formed the basis of four more complaints against both Mr Kio and Dr Briggs. Complaint number 9 alleged that the books of account did not comply with the Solicitors Accounts Rules 1996 in that the client ledger account in respect of a Mr O was incomplete and inaccurate. Mr Kio denied this matter, alleging that the document examined by the investigator had not been the proper ledger card. The Tribunal rejected that explanation and found the complaint proved. Mr Kio has not sought to disturb that finding.
18. Compliant number 10 alleged that the books of account were not in compliance with the Solicitors Account Rules as at May 2003 in that reconciliations were not being carried out every five weeks. Mr Kio denied this, claiming that the investigator had looked at the wrong folder. The Tribunal found that complaint proved and there is no appeal against that finding.
19. Those two complaints, numbers 9 and 10, were also found proved against Dr Briggs on the basis that, although he had not been directly involved in the keeping of the ledgers and the process of reconciliation, he was responsible for the breaches of the rules because he was a partner in the firm. It does not appear that Dr Briggs at any time suggested that he was not a partner during the relevant period.
20. Complaint number 11 alleged that Mr Kio and Dr Briggs had failed to reply to correspondence from the Law Society arising out of their investigations. Dr Briggs said that he had replied to all the letters he had received. He left the firm in late 2003 and had not received any letters since then. It appears that Mr Kio had not replied to two letters from the Law Society arising out of these investigations.
21. Finally, complaint number 12 alleged that the books of account were not in compliance with the Solicitors Accounts Rules in two specific respects. First, the books showed a client account shortage of £105,000 as at 28th February 2003. By 30th May 2003 that shortage had been reduced to about £9,600, but, of that sum, £5,600 had remained outstanding from the earlier shortfall of £105,000. These matters were admitted by Mr Kio. They were also admitted by Dr Briggs but he claimed that, as a salaried partner, he had nothing to do with the accounts. All such matters were under the sole control of Mr Kio. He had satisfied himself as to the state of the financial position of the firm when he became a partner in August 2002, and had taken an indemnity from the other partners.
22. The Tribunal found all the individual complaints proved save, possibly, that in respect of Dr Briggs and the allegation of failing to respond to correspondence. They also held that each of the three solicitors was guilty of conduct unbefitting a solicitor. It had been urged upon them that a mere breach of the Solicitors Accounts Rules did not necessarily amount to conduct unbefitting a solicitor. Here, it was said, the breaches of the rules were not sufficiently serious. The Tribunal rejected that submission. They said that the rules were there for the protection of the public and that any breach by a solicitor was improper and served to damage the good reputation of the profession in the eyes of the public. The Tribunal was in no doubt that the conduct of each man did amount to conduct unbefitting a solicitor.
23. The Tribunal then considered the personal mitigation advanced on behalf of each man before imposing penalties. In respect of Mr Kio, it was said that all his problems had stemmed from the employment of Mr Toppin. As soon as Mr Kio had discovered the truth about Mr Toppin, he had reported him to the police, his insurers and to the Law Society. Although the breach of section 41 of the Act required a mandatory sanction, the nature of that breach, and indeed the totality of the misconduct, did not warrant striking off. The irregularities found within the books of account and the breach of the undertakings all arose as a result of Toppin's activities. It was submitted that there had been no failure of supervision. It was virtually impossible to spot dishonest conduct of Mr Toppin's kind, particularly in this case where it was said that another firm of solicitors had been involved. Mr Kio had tried to make good the defalcations caused by Mr Toppin and had lost money as a result. Indeed, he had lost virtually everything. He had sold his firm for only £1. Previously, it had been a firm of good repute in Brixton. The Tribunal was urged to impose a period of suspension and a financial penalty.
24. In imposing a penalty on Mr Kio, the Tribunal said this:

"(121) The Tribunal considered that the allegations found against Mr Awoloye-Kio represented very serious offences which have taken place over a period of time. These were not isolated incidents. Mr Kio had been cavalier in his approach to the employment of Mr Toppin. The Tribunal took into account all of the allegations substantiated against Mr Awoloye-Kio and in particular recognised that it was bound to impose a mandatory sanction upon its finding that he had been guilty of a breach of section 41.

(122) Given the gravity of the matters the Tribunal had given serious consideration to making an order striking Mr Awoloye-Kio off the Roll of Solicitors. However, the Tribunal had taken into account the steps Mr Awoloye-Kio had taken to make good client account shortages and the fact that he had been duped by Mr Toppin who had proved to be a thoroughly dishonest individual. In all the circumstances the Tribunal considered that the protection of the public and the good reputation of the solicitors' profession would be met by the imposition of a period of suspension of five years upon Mr Awoloye-Kio.

(123) In order to mark the major role played by Mr Awoloye-Kio in connection with all of the matters upon which the allegations against all three respondents were formulated, it was right that he should pay 80% of the applicant's costs."

25. In mitigation of the matters proved against him, Dr Briggs told the Tribunal that at the time of entering into the partnership, the situation within the partnership had been misrepresented to him. The nature of the misrepresentation is not entirely clear to us. However, it is clear that the Tribunal was told that the partnership agreement had been back-dated to 16th August 2002 (from what date we are not sure) and Dr Briggs' objections to that course had been overruled by Mr Kio on the ground that the Law Society had been given the names of those involved in the partnership as at 16th August 2002. A deed of indemnity had also been drafted and was dated 16th August.
26. Dr Briggs said that after he had become a partner nothing had changed. Everything was carried on as if he was still an assistant solicitor. His wages remained the same but his workload had increased as Mr Kio had faced a number of problems created by Mr Toppin. In August 2003, Dr Briggs had ceased to be a partner on the approach of the time for renewal of the firm's indemnity insurance. He reverted to his position as an assistant solicitor. Later he had left the firm, but had not been able to find employment. It was urged by him that striking off would not be warranted.
27. In respect of Dr Briggs the Tribunal said this:

"(124) With regard to Dr Briggs, the Tribunal recognised that he had not been actively involved in the practice or its administration. Nonetheless, the Tribunal could not overlook the fact that Dr Briggs had been employed by Mr Awoloye-Kio's firm for a considerable period of time. He could not have been unaware of the problems which had arisen. Dr Briggs should have been aware of the breaches of the Solicitors Accounts Rules and should have insisted on being given details of the firm's accounts. He had apparently taken no interest in the accounting affairs of the practice and had preferred to rely on the indemnity given to him by the other partners. The Tribunal considered this to be an inappropriate stand to take and considered that Dr Briggs' laissez-faire attitude had enabled the difficulties to be perpetuated without internal checks or criticism. In all the circumstances the Tribunal concluded that it would be right to mark the part played by Dr Briggs in the whole affair by the imposition upon him of a period of suspension of one year. The Tribunal considered that the level of culpability of Dr Briggs was represented by its order that Dr Briggs should pay 20% of the costs of and incidental to the application and enquiry."

28. In the appeal of Mr Kio before this court, it was submitted, first, that the Tribunal ought to have acceded to the submission put to them as a preliminary issue, to the effect that, because the undertakings given to Southern Pacific had become impossible to perform due to the actions of Mr Toppin, Mr Kio's failure to comply with the undertakings should not be regarded as a matter of misconduct. The Tribunal had rejected that submission, holding that the failure to honour an unconditional undertaking was a matter of strict liability.
29. It is not clear to us exactly what the Tribunal meant by the expression "strict liability." It is clear beyond doubt that so far as the civil law is concerned, a breach of the solicitor's undertaking will render the solicitor liable. However, the essence of disciplinary proceedings is misconduct. The Solicitors' Code of Professional Conduct states that breach of an undertaking will be prima facie evidence of misconduct. That means that it will be open to the solicitor charged to seek to explain how and why, in the particular circumstances of the case, he came to breach the undertaking without fault on his part. That is what Mr Kio sought to do. It appears that the Tribunal was not prepared to listen to that argument, holding, as they did, that the breach of an undertaking was a matter of strict liability.
30. We have listened to Mr Cadman's submissions that Mr Kio was not at fault in respect of these undertakings. He had done everything, it is said, that could be expected of him by way of supervising Mr Toppin. Mr Cadman drew attention to the fact that the Law Society had not charged Mr Kio with the failure to supervise Mr Toppin.
31. Mr Williams told us that although the Law Society had not charged Mr Kio with an offence of failure to supervise Mr Toppin, they did not thereby exonerate him from a failure to supervise. The Law Society had attempted to confine the allegations to specific matters which were more readily capable of positive proof, whereas an allegation of failure to supervise is a wide-ranging allegation difficult to prove or disprove.
32. The Law Society's case, said Mr Williams, on the undertakings was that, if Mr Kio had been supervising Mr Toppin properly he would have realised that something was amiss. On Mr Kio's own evidence, the firm began to receive letters of concern from mortgage lenders in March 2002. The concern expressed was that the lenders had not received the title deeds and executed charges for transactions that had supposedly been completed some time earlier. The first of the four transactions in respect of which Mr Kio had been charged was apparently carried out in January 2002. That was when the money had been advanced by the mortgage company.
33. Mr Kio claimed that he had asked Mr Toppin about these letters of complaint and was assured that all was in hand. When Mr Kio had asked to see the relevant transaction files he was told that they could not be found at the moment and had been misplaced by staff. Mr Kio told us, through Mr Cadman, that he had not been worried by this as it was not uncommon for there to be some delay in the registration of title and charges at the Land Registry. However, it had to be conceded that the last of the four undertakings was signed by Mr Kio in early May 2002, and it is clear that, by that time, he had had the opportunity to realise that something was seriously amiss in that title deeds and charges had still not been received and transaction files were still missing. Yet it appears that he was prepared to allow matters to ride on, on the word of Mr Toppin that all was in order. Bearing in mind Mr Toppin's background, in my view Mr Kio has failed to demonstrate that he was without fault in respect of the fourth and last of the undertakings.
34. In my view, however, the Tribunal was wrong to hold that the breach of an undertaking is always a matter of misconduct. It almost always will be, but there is room for a finding of no fault in exceptional circumstances. Here, as I have explained, there was, in my view, fault on Mr Kio's part.
35. Having said that, the Tribunal was right when they said that the breach of an undertaking is a serious matter. Undertakings are the bedrock of our system of conveyancing. The recipient of an undertaking must be able to assume that once given it will be scrupulously performed. If property purchasers and mortgage lenders cannot have complete confidence in the safety of the money they put into the hands of a solicitor in the course of a property transaction, our system of conveyancing would soon break down. The breach of an undertaking given by a solicitor damages public confidence in the profession and in the system of undertakings upon which property transactions depend. Accordingly, if fault is shown, as it has been here, the matter must be treated seriously.
36. That submission apart, Mr Kio's appeal comprised a plea that the penalty imposed of five years' suspension was too severe in the circumstances. Also, it was submitted that the order that Mr Kio should pay 80 per cent of the costs was unfair and too severe. Insufficient regard had been taken to his limited means. Mr Cadman reiterated many of the submissions that had been put before the Tribunal. Mr Kio had not been dishonest. That had never been alleged. He had lost a great deal as a result of his misfortune in employing Mr Toppin.
37. Mr Cadman referred us to a number of reported cases in which a breach of section 41 had been visited by a suspension of a few months rather than a term of years. That may well be so, but it is clear that the section 41 breach was but a small part of the totality of the misconduct for which Mr Kio fell to be sentenced. In any event, it appears to me that the circumstances of this section 41 offence were serious. I, for my part, would agree with the observation of the Tribunal that Mr Kio had displayed a cavalier attitude towards the requirements of the section.
38. In addition to the section 41 offence, there was the breach of the undertaking as to which, as I have explained, Mr Kio was, in my view, culpable. However, perhaps the most serious matter was the picture of financial and administrative chaos revealed by examination of the books of account and the breaches of the Solicitors Accounts Rules. The seriousness of such offences has been underlined by this court in the case of Weston v The Law Society reported in The Times for Wednesday July 15th 1998.
39. In my view, taking all matters into account, the Tribunal was right to give serious consideration to the possibility of striking Mr Kio from the Roll. In recognition of the various mitigating factors, particularly that there was no dishonesty on his part and because he had made real efforts to make good the shortcomings from his own resources, they held back from doing that. In my view, they were right to hold back. But, in my opinion, the case was on the very cusp of warranting striking off. If striking off were to be avoided, a long period of suspension was required for the protection of the public and to safeguard the reputation of the profession.
40. We have been reminded that the traditional approach to the exercise of the powers of this court in disciplinary matters has changed in recent years. In Bolton v The Law Society [1994] 1 WLR 512, Sir Thomas Bingham reiterated the well established principle that a professional disciplinary body is the body best able to assess the seriousness of professional misconduct, and that an appellate court should not, save in a very strong case, ordinarily interfere with its decision on penalty. However, since that time, and since the introduction of the European Convention on Human Rights into English law, it has been recognised by this court in Langford v The Law Society [2002] EWHC 2802 Admin that the approach should now be more flexible. In other words, the court, having an appellate jurisdiction rather than a supervisory one, should be prepared to exercise its own discretion and to interfere with a penalty imposed by the Disciplinary Tribunal if it thinks it right to do so. That said, this court will always pay due respect to the views of the Disciplinary Tribunal.
41. In my view, the penalty imposed by the Disciplinary Tribunal found exactly the right balance which reflected the seriousness of the offences and the strength of the mitigation. In my view, the term of five years' suspension was entirely appropriate. As for the proportion of the costs to be paid by Mr Kio, in my view, again, the Tribunal exercised its discretion in an unimpeachable way and for those reasons I would dismiss Mr Kio's appeal.
42. I turn now to the appeal of Dr Briggs. He has failed to attend court. He had ample warning that his appeal was to be heard today. He had made clear in correspondence his objection to today's listing but failed to make a formal application for an adjournment at an appropriate time, despite the fact that he was invited to do so. He refused to accept the appeal bundle prepared by the Law Society on the basis that he was not yet ready to argue his appeal and would not be ready until he had obtained legal representation. That he would not be in a position to do until after his period of suspension had expired. In other words, he was arguing for a general adjournment of this appeal for a significant period of time.
43. Those representing Mr Kio, not unnaturally, objected to any such deferment of the appeal and it had already been determined, for obviously appropriate reasons, that the two matters ought to be heard together. Although the Law Society did not formally object to the very late application made on paper yesterday by Dr Briggs that his appeal should be adjourned, the Law Society's stance had always been that it would be a waste of their resources and money if the appeals were to be heard separately.
44. As I have indicated, Dr Briggs has been aware of this date for a long time. He had also some weeks ago declared his intention of seeking pro bono legal assistance. However, he had not arranged it. At the last minute, in an application received yesterday, he claimed that he had a hospital appointment for today. He submitted a certificate which, on examination, showed that the appointment was for a routine non-urgent test. We decided, having conferred between ourselves before we came into court, that if Dr Briggs failed to attend we would not adjourn this appeal. Not only is it unfair that the Law Society should have to appear twice on these related matters, but it also is an unreasonable waste of the resources of the court. We decided that we would consider the appeal on its merits in Dr Briggs' absence on the basis of the material which we have before us in writing.
45. In his grounds of appeal, Dr Briggs contended that before deciding that he was guilty of professional misconduct, the Tribunal should have considered whether or not he was in fact a partner in Mr Kio's firm. The Law Society had not contended that he was personally responsible for the various shortcomings, rather the case against him was that as a partner he was responsible for what went on in the firm. He contended that, at the time when these matters occurred, although he had signed a partnership agreement, the agreement was either void or voidable for misrepresentation. It was not clear from the notice of appeal exactly what the misrepresentation was said to have been. However, in my view this does not matter.
46. Assuming for the moment that there was a misrepresentation which induced Dr Briggs to enter into the contract, and assuming that Dr Briggs was or might have been entitled to rescind the partnership agreement, there can be no doubt that, at the time of the misconduct of which he was found guilty, Dr Briggs was acting as a partner in the firm and was being held out to the public in that capacity. As such, there is no merit in the suggestion that the Tribunal should have considered the Misrepresentation Act and the issue of whether Dr Briggs was not guilty of this misconduct on the basis that he was not a partner. He plainly was a partner, knew himself to be a partner, and was being held out as such. The fact that he might have been able to avoid the partnership agreement is, in my judgment, nothing to the point.
47. In my judgment, the approach of the Tribunal to his case was unimpeachable. They were right to conclude that a modest period of suspension was required. In my view, the period of 12 months was entirely appropriate. The same must be said of the proportion of costs attributed to Dr Briggs. For my part, I would also dismiss his appeal.
48. MR JUSTICE HENRIQUES: I agree.
49. MR JUSTICE SIMON: I also agree.
50. LADY JUSTICE SMITH: Both appeals are therefore dismissed.
51. MR WILLIAMS: My Lady, I make an application for costs on behalf of the Law Society against both appellants. I do not ask the court to indulge in a summary assessment in as much as the costs of the SDT have to be detailed assessed. So do the costs of the unsuccessful stay application so there has to be a major detailed assessment in any event. I would ask for the orders for costs against both appellants to be subject to detailed assessment unless agreed between the parties.
52. MR CADMAN: I cannot resist it. It may indeed be a technical matter. I do not know whether you wish to split the costs for today between one issue and the other.
53. LADY JUSTICE SMITH: We think we ought to do so and we would be minded to split them in the same way as was split by the Tribunal.
54. MR CADMAN: Thank you, my Lady. No further submissions.
55. LADY JUSTICE SMITH: Thank you very much.