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
		10th March 2005

1. LORD JUSTICE MAURICE KAY: Allen Phillip Elliott seeks to appeal to this court pursuant to section 49 of the Solicitors Act 1974. The background to the case is that he, as a solicitor, faced disciplinary proceedings in the Solicitors' Disciplinary Tribunal. I shall say a little more of those proceedings in a short while, but the overall position is that he was found to have committed numerous disciplinary offences amounting to conduct unbefitting a solicitor, and the sanction imposed was one of striking off.
2. The disciplinary proceedings arose in relation to Mr Elliott's practice. On 17th March 2000 the Law Society intervened in that practice. Almost a year later, on 1st March 2001, they instituted disciplinary proceedings by service of a Rule 4 statement. That is a statement of the kind identified in Rule 4(2) of the Solicitors (Disciplinary Proceedings) Rules 1994. It contained 15 allegations of conduct unbefitting a solicitor. They all related to Mr Elliott's activities and those of his firm in running an investment scheme, which appears to have been the principal activity of Mr Elliott and his firm.
3. Without reciting all the particulars of the 15 allegations, it is appropriate to observe that they included allegations of conflicts of interest between Mr Elliott and clients; failure to account to clients of commission; failure to disclose material information to clients; the making of misleading or inaccurate representations in advertisements; the conduct of discrete investment business when the firm was not authorised so to do; the making of personal recommendations or effecting transactions without assessing the suitability of such recommendations or transactions; the making of recommendations without having taken reasonable steps to enable the client to understand the nature of the risks involved; the sending of misleading and inaccurate correspondence to investor clients; the improper witnessing of a document in the absence of the signatory; the provision of inaccurate and/or misleading information to the Solicitors' Indemnity Fund, and so on.
4. In addition, there was a specific allegation that Mr Elliott's conduct overall was such as to give rise to breaches of Rule 1 of the Solicitors' Practice Rules 1990, in that his independence and/or integrity was compromised or likely to be compromised; and/or the duty to act in the client's best interests was compromised or likely to be compromised; and/or the good repute of the solicitors' profession was compromised or likely to be compromised.
5. When the matter came to be dealt with by the Tribunal, there was also added a further allegation of conduct unbefitting a solicitor by providing a misleading representation to the Law Society on his application for admission as a solicitor in this country. So far as that was concerned, Mr Elliott had practiced as a solicitor in Australia. He had been found guilty of unprofessional conduct there. But he did not disclose that upon his application in this country, apparently taking the view that the specific question on the application form related to findings of "professional misconduct" and that "unprofessional conduct" was not of that character. However, the form also required a declaration in these terms:

"I also understand that I must bring to the Society's attention any other matter which questions my fitness to become a solicitor."

6. In the summer of 2001 the trial of the disciplinary allegations was fixed for hearing in the Tribunal on 3rd December 2001. It was to be a ten-day hearing. A week or more before it was due to begin, the Law Society served on Mr Elliott a detailed opening note by leading counsel who was to present the case on behalf of the Law Society (not Mr Treverton-Jones). It made it abundantly clear that, whilst the disciplinary offence of conduct unbefitting a solicitor may be committed with or without dishonesty, the case for the Law Society was that Mr Elliott's transgressions were coloured by dishonesty.
7. At that time Mr Elliott was represented by a firm of solicitors, Irwin Mitchell, and on 23rd November 2001 they gave notice that they intended to apply for an adjournment of the hearing as a result of Mr Elliott's lack of ability to fund his representation. On 29th November his solicitors wrote to Mr Elliott in the following terms:

"I emphasise my advice to you that if your application for an adjournment is unsuccessful, you should indicate to the Tribunal that you mean no disrespect but you are now withdrawing and taking no further part in the proceedings. I would strongly advise you not to allow yourself to be dragooned into staying because that will make it impossible for you to make an application under rule 25 of the Solicitors Disciplinary Proceedings Rules 1995 ..."

That letter was produced in the course of the subsequent proceedings.

8. The reference to Rule 25 is to the rule which enables a solicitor who was absent from disciplinary proceedings to seek a rehearing in the event of adverse findings.
9. I have considered that advice that was tendered to Mr Elliott. I have to say that I am left in nothing short of a state of astonishment that such advice was given by one solicitor and acted upon by another. In his skeleton argument, Mr Treverton-Jones QC, on behalf of the Law Society, describes it as "irresponsible and wholly misguided". On any basis it was wrong advice, and I can find no sensible rationale for it. It is said that what lay behind it was Mr Elliott's immediate inability to fund representation, but that seems to me to be a wholly unreasonable basis for the proffering and acting upon such advice.
10. It was advice of a tactical kind. Almost immediately, and prior to the hearing, the Law Society through its solicitors made it clear that it was misconceived. In a letter dated 30th November the Law Society's solicitors said:

"I put you on notice that ... in the event of your client's application being unsuccessful, should he withdraw from the proceedings the Tribunal will be invited to proceed to determine the application in the absence of your client. With the greatest of respect I do not consider that Rule 25 ... would assist, because your client will have been in attendance and will have chosen voluntarily to withdraw ..."

11. Plainly Mr Elliott knew by then that the allegations against him were that his conduct was not only unbefitting a solicitor, but was dishonest. He knew of the opening note that had been served, and indeed sometime before 3rd December he submitted a response to that document rebutting the allegations.
12. On 3rd December at the commencement of the hearing, Mr Elliott appeared in person and applied for an adjournment, explaining that he sought one in order to obtain funding and representation. The application was refused, whereupon Mr Elliott withdrew from the hearing. The hearing then proceeded in his absence, but in the event only went into a second day. Of the 16 allegations which then lay again Mr Elliott, the Tribunal found all but one proved and made the striking off order.
13. The written findings of the Tribunal were filed at the Law Society on 7th March 2001. By Order 106 of the Rules of the Supreme Court the unrestricted right of appeal granted to a solicitor by section 49 of the Solicitors Act has to be exercised within 14 days from the date of filing. In other words, the short period allowed to Mr Elliott by the rules to commence an appeal to this court began and ended in March 2002. No such appeal was commenced within that period.
14. On 5th April 2002 Mr Elliott applied instead to the Tribunal for a rehearing under Rule 25. By this time he was represented by a different firm of solicitors, Messrs Murdochs, and on 24th July 2002 they wrote to the Tribunal in support of his application for an adjournment of the application for a rehearing that was due to be heard on 25th July. In that letter Mr Elliott's new solicitors made it clear that he would concede the breaches of the Practice Rules as alleged, but would deny any element of dishonesty. The letter stated:

"... Mr Elliott unequivocally accepts all the allegations in full save where they may form findings of criminal dishonesty, conscious impropriety or civil dishonesty."

15. That application for an adjournment found favour and the matter stood adjourned. Indeed, it stood adjourned for a very long time, because it was only on 19th September 2003 that Mr Elliott wrote to the Tribunal asking for his application to be restored. It was then listed to be heard on 23rd October 2003. The day before the hearing, Mr Elliott's solicitors lodged a skeleton argument and a substantial bundle of documents, for the first time making the allegation that the Tribunal at the original hearing had made findings that were not open to it and that the case had been over-prosecuted on behalf of the Law Society.
16. Because of the widening of the assumed ambit of the hearing, there was not time for all matters to be considered, but there was time for the Tribunal to consider the jurisdictional question of whether this truly was a Rule 25 situation. The Tribunal concluded it was not, on the basis that Mr Elliott had not been absent for the whole of the proceedings in the original hearing. He had been present at the outset, but had subsequently chosen to withdraw following the rejection of his application for an adjournment.
17. Still Mr Elliott took no steps to appeal to this court. Instead, he sought judicial review on the issue of the proper construction of Rule 25. He obtained permission to apply, Collins J taking the view that to the extent that there was an allegation that matters had been raised in the absence of Mr Elliott, then the matter merited consideration. However, he added that it would be "a most exceptional case that it could be said to be in the interests of justice to allow a rehearing when an Appellant chose to walk out after failing to achieve an adjournment."
18. Mr Treverton-Jones points out, and it is not disputed, that the letter from Murdochs indicated that the findings of conduct unbefitting a solicitor and the sanction imposed were apparently not truly in issue between Mr Elliott and the Law Society.
19. The case presented on behalf of Mr Elliott in the judicial review proceedings was put on the rather schematic analysis that the hearing on 3rd December 2001 had fallen into two parts. It was in effect two hearings, the first of which he attended, the second of which he did not, and it was the second in respect of which he was seeking relief. His underlying complaint was that some of the findings of fact were unsupported by the evidence and that allegations of dishonesty had not been spelt out in the Rule 4 statement. Nevertheless, the findings of fact had included extensive findings of dishonesty.
20. It seems from the documents that were before the Administrative Court in relation to the application for judicial review were less accepting of the bare bones of the findings of the Tribunal than had been the letter from Murdochs. Be that as it may, in due course Leveson J gave judgment dismissing the application for judicial review. He held that the Tribunal had correctly concluded that Mr Elliott could not bring himself within Rule 25.
21. At the request of the parties, Leveson J also addressed the allegation of over-prosecution. He concluded that the allegations of unfairness levelled against leading counsel for the Law Society were wholly unbased and "should never have been made". That judgment was given on 29th April 2004. The order of the court was sealed on 6th May 2004.
22. The present appellant's notice seeking to institute a statutory appeal under the Solicitors Act is dated 23rd June 2004. It was issued on 24th June. Having regard to the 14-day time limit, it follows therefore that the proposed appeal was lodged two years and three months outside that time limit. Moreover, it was lodged over six weeks after the sealing of Leveson J's order.
23. Against that chronological background, Mr Treverton-Jones takes the preliminary point that this out of time appeal ought not to be entertained by the court. Because it seemed to my Lord and myself that this was a serious issue, we have heard submissions upon it prior to hearing submissions on the merits, and we propose to rule upon the application at this stage.
24. The application is in effect for an extension of time and has to be considered by reference to CPR Part 3. Broadly speaking, it is necessary to consider, first of all, the reasons for the long delay and, secondly, whether in all the circumstances justice and fairness should lead to the granting of an extension of time notwithstanding that long delay.
25. The reasons for the delay have been addressed by Mr Elliott in his witness statement. Essentially he states that no one ever advised him that a statutory appeal was the appropriate course -- he was always advised to pursue a rehearing under Rule 25; that he had funding problems at the time of the original adverse decision; that whilst he is a solicitor his background is not in litigation and he was dependent on the advice of solicitors acting for him; that he was oppressed by other problems, in that the history of the investment scheme and other matters had resulted in his being forced into all sorts of litigation which was unwelcome, but which had to be dealt with. He also describes how he was concerned about the proceedings also lying against a partner and an employee, and was doing his utmost to ensure that they were not found guilty. It seems that they were not. He says that as he was fairly recently arrived from Australia:

"... I had no network of fellow solicitors or barristers to fall back on ..."

He also describes difficulties in the aftermath of his defeat in the Administrative Court. He refers again to funding difficulties and to personal and family difficulties, including the deteriorating health of his mother in Australia and sad circumstances in the personal life of his daughter, whose fiancé had recently died. Those matters caused him to go to Australia at some time after the decision of Leveson J, but the witness statement does not describe precisely when he went or when he returned.

26. Against all that background, the first question that arises is whether there has been a good reason for the delay of some two years and three months. In my judgment, there has not been such a good reason. I am wholly unimpressed by the importance sought to be attached to the advice of Mr Elliott's solicitors in this case. I acknowledge that under CPR Rule 3.9 failures caused by a legal representative have properly to be considered. However, I cannot escape the conclusion that Mr Elliott is a solicitor, albeit not a litigation solicitor, and the decisions which he took from 3rd December 2001 onwards were conscious decisions, involving the pursuit of one remedial route wholly at the expense of another. I accept the submission made in Mr Treverton-Jones' skeleton argument that it is inconceivable that throughout that period of time the statutory right of appeal under section 49 was not considered. Indeed, it is apparent from material to which Mr Treverton-Jones refers that it was. Even absent that material, I would find it unthinkable that it was not considered.
27. I therefore find that it was considered and indeed rejected. Ironically in the skeleton argument put before Leveson J on behalf of Mr Elliott, one of the points made in support of the application for judicial review was:

"... it is far too late to apply for permission to appeal, nearly 2 years after the hearing."

28. To that has to be added the fact that even after the reverse before Leveson J, several weeks were to pass before the present notice of appeal was lodged towards the end of June 2004.
29. As I have observed, some six weeks passed between the sealing of Leveson J's order and the commencement of these proceedings. Again, one has to consider that in the context of the 14-day time limit which exists in this case.
30. Accordingly, I conclude that no good or reasonable explanation has been given for the very long delay. Moreover, in my judgment it has not been established that the interests of justice and fairness require the hearing of this appeal. Mr Elliott chose to leave the hearing before the Tribunal in December 2001. He chose what he would do to remedy the grievance which he felt he had about the outcome of that hearing. He decided to put his eggs in that basket: a rehearing and a judicial review of the refusal of the rehearing, rather than to mount a statutory appeal. Plainly, if he had pursued an appeal under section 49 he could have asked this court to order a rehearing before the Solicitors' Disciplinary Tribunal. He is essentially seeking to re-litigate something in a particular way, having previously decided instead to litigate it in a different way.
31. Mr Platford, on behalf of Mr Elliott, has made submissions about hardship and has emphasised the position from the perspective of Mr Elliott, whilst of course acknowledging that there are other interests which this court has to consider. It seems to me that one of those interests is the interest of the public and of the Law Society, and of other solicitors and their clients, in the expeditious disposal of disciplinary cases against solicitors. I apprehend that it is those interests which underlie the short time limit that is imposed by Order 106 in this situation. To my mind, it would make a mockery of that time limit and the reasons which have given rise to it if Mr Elliott were now permitted to pursue this appeal so long after the expiration of that short time limit, and in the circumstances where he had chosen to deal with the problem in a wholly different way.
32. As I have indicated, we have decided to resolve this question of time without hearing submissions on the merits. Accordingly, I say nothing determinative of the merits, save to add this observation. On any basis, having read the written submissions on behalf of Mr Elliott and the documents to which they refer, this is not a case in which merit manifestly springs from every page.
33. Accordingly, for my part, I would refuse an extension of time and dismiss the appeal forthwith.
34. MR JUSTICE MOSES: I agree.
35. MR TREVERTON-JONES: My Lords, may I therefore ask for an order in those terms, and may we apply for a summary assessment of costs and that those costs be paid by Mr Elliott.
36. LORD JUSTICE MAURICE KAY: Has he been served with a schedule?
37. MR TREVERTON-JONES: My Lord, yes.
38. LORD JUSTICE MAURICE KAY: Could you pass it up? (Handed)
39. MR TREVERTON-JONES: I have highlighted two entries which will not now be incurred because they were the costs of tomorrow. My Lord, if one adds those two highlighted entries together, they come to about £3,000. So I would ask for a summary assessment in the round sum of £23,000.
40. LORD JUSTICE MAURICE KAY: Yes.
41. Mr Platford, you have had a chance to look at this, have you?
42. MR PLATFORD: I have, only recently. I am applying, I am afraid --
43. LORD JUSTICE MAURICE KAY: First of all, no issue as to the principle of a costs order. So let us look at the schedule.
44. MR PLATFORD: Yes. It is not in the ordinary form because, quite properly, Mr Goodwin includes his fees as solicitor's costs rather than advocate's costs. Can I leave for the moment the second page, disbursements, and address for the moment the first page?
45. LORD JUSTICE MAURICE KAY: Yes.
46. MR PLATFORD: The total of £9,700-odd is significantly in excess of the total that we have incurred. We had to prepare, of course, the appeal and the bundle of documents for appeal. So the excessive figure seems to be at item four, perusal and preparation. That I take it must be, in effect, Mr Goodwin's preparation for this hearing, but I question whether Mr Goodwin can justify that sort of consideration and perusal and preparation --
47. LORD JUSTICE MAURICE KAY: What is the £21.50 per unit? I do not understand that.
48. MR TREVERTON-JONES: My Lord, that is £215 per hour.
49. MR JUSTICE MOSES: It is 6-minute units. And the 200 --
50. LORD JUSTICE MAURICE KAY: Yes, I have it at the top.
51. MR JUSTICE MOSES: It is 200 units, is it?
52. MR TREVERTON-JONES: That is 20 hours.
53. LORD JUSTICE MAURICE KAY: And that entry under paragraph 4, that is all Mr Goodwin's, is it?
54. MR PLATFORD: I take it it is all Mr Goodwin's.
55. MR TREVERTON-JONES: Yes.
56. MR PLATFORD: Then we get to seven.
57. LORD JUSTICE MAURICE KAY: So all the items on this page are effectively Mr Goodwin's?
58. MR PLATFORD: Yes.
59. LORD JUSTICE MAURICE KAY: Yes.
60. MR PLATFORD: They must all be Mr Goodwin's. So we have item four is preparation for trial.
61. LORD JUSTICE MAURICE KAY: Yes.
62. MR PLATFORD: And item seven is his cost of attending trial.
63. LORD JUSTICE MAURICE KAY: Yes.
64. MR PLATFORD: So those two together make, as it were, his brief fee, as I understand it.
65. LORD JUSTICE MAURICE KAY: And on the basis of a whole day and a half day.
66. MR PLATFORD: So it would seem. So we can strike out, I suspect, immediately the whole day, because we shall have finished by a half day in terms of attendance. Looking at this as one would look at a --
67. LORD JUSTICE MAURICE KAY: You say in item seven it is £1,290 that ought to go rather than the £645, in effect?
68. MR PLATFORD: Indeed, because it is on a meter rate rather than a brief fee. So then the question is: how much of item four can be justified as a brief fee? Well when I compare that, if I can now go over the page --
69. LORD JUSTICE MAURICE KAY: Yes.
70. MR PLATFORD: -- and see that the Law Society was actually represented by leading counsel who has charged a brief fee, which must of course include the preparation and the skeleton, then in my submission it compares unfavourably with our costs and is disproportionate to the matters in issue.
71. LORD JUSTICE MAURICE KAY: It does not break down, the brief fee and the skeleton.
72. Mr Treverton-Jones, did you do the skeleton?
73. MR TREVERTON-JONES: My Lord, The skeleton was two and a half, the brief fee, including a conference yesterday, seven and a half.
74. LORD JUSTICE MAURICE KAY: So you are saying that leading counsel's brief fee is seven and a half effectively, is that how you want to put it?
75. MR PLATFORD: My Lord, no, because I know in the Court of Appeal we are required to charge separately for a skeleton argument, because in the Court of Appeal there is always the risk that the advocate at the hearing will not be the advocate who prepared the skeleton argument. Everywhere else, the skeleton is part of the brief fee. That is the necessary preparation for it. So what we have here is a £10,000 brief fee, including preparation, and Mr Goodwin is plainly not charging for the skeleton argument, although his name is on it.
76. LORD JUSTICE MAURICE KAY: But you say he is effectively charging £4,300 plus whatever he gets for today.
77. MR PLATFORD: Yes.
78. LORD JUSTICE MAURICE KAY: So, let us say in round figures £5,000.
79. MR PLATFORD: Yes. It is never a comfortable position for a member of the Bar to challenge his opponent's fee --
80. LORD JUSTICE MAURICE KAY: No. It is all very distasteful, but that is what we have to do these days.
81. MR PLATFORD: I am afraid it is.
82. LORD JUSTICE MAURICE KAY: I must say I would rather do it where the two sides come at you from different starting points, than when one sometimes has the impression that some cartel is in operation. But of course that does not apply in this case.
83. MR PLATFORD: No, it does not.
84. MR JUSTICE MOSES: Quite often the point is not taken because the counsel making the point once he has revealed what his own fee is, one sees that...
85. MR PLATFORD: I am in the happy position here of being able to say --
86. LORD JUSTICE MAURICE KAY: Total independence.
87. MR PLATFORD: I am afraid mine was a total of £4,000. I am wondering whether my clerk was out to lunch, but there we are. So I am in the happy position of being able to say that the brief fee appears to have been extremely generous, given that the addition of some £5,000 for a junior is, in my submission, out of all proportion.
88. LORD JUSTICE MAURICE KAY: So what are you pitching for, something like £20,000?
89. MR PLATFORD: In all.
90. LORD JUSTICE MAURICE KAY: In rough figures.
91. MR JUSTICE MOSES: Well, less.
92. MR PLATFORD: The total bill comes to £26,000. Immediately we have to strike out --
93. LORD JUSTICE MAURICE KAY: £2,350.
94. MR PLATFORD: £2,350.
95. LORD JUSTICE MAURICE KAY: £1,290, in the way you put it.
96. MR JUSTICE MOSES: I do not understand the travel, 60 times 10.25, at eight.
97. MR PLATFORD: Mr Goodwin has come from Chester and --
98. MR JUSTICE MOSES: They could have got a junior who lived closer, could they not? So just remind me what 60 is. It is 6 hours.
99. MR PLATFORD: I suspect that Mr Goodwin could have justified his attendance as solicitor instructing, so I do not take too much --
100. LORD JUSTICE MAURICE KAY: If he had been a solicitor in the City of London, it would have been a much higher hourly rate anyway.
101. MR PLATFORD: Indeed so, which is why I find it slightly difficult to take too much of a point on the travelling time.
102. MR JUSTICE MOSES: Yes, I see. Because I had not taken that point on board. I did not realise they came so cheap in Chester.
103. LORD JUSTICE MAURICE KAY: There is a subplot, Mr Platford, but ignore it completely.
104. MR PLATFORD: So, my Lord, what I am pitching for is rather less than £20,000, on the basis that £15,000 of that, give or take, is for counsel which contrasts starkly with my £4,000.
105. LORD JUSTICE MAURICE KAY: Yes, well thank you.
106. Do you want to say anything about that?
107. MR TREVERTON-JONES: My Lord, yes. The first point is that not only do they come fairly cheap in Chester, but as my Lord will know --
108. LORD JUSTICE MAURICE KAY: Don't you start, you should know better.
109. MR TREVERTON-JONES: My Lord, I was going on to say that the quality is very high.
110. LORD JUSTICE MAURICE KAY: That is okay then.
111. MR TREVERTON-JONES: And of course the other side get the benefit of the lower rates, because actually Mr Goodwin's hourly rate is below that charged by the opposition.
112. LORD JUSTICE MAURICE KAY: He is an expert in this field.
113. MR TREVERTON-JONES: My Lord, he is an expert in the field and he charges no more for sitting behind me as an advocate than he would sit for sitting in front of me as my instructing solicitor.
114. So really, my Lords, the only two issues between us we would submit are, firstly -- and we accept the meter point as a fair one. It is now a half-day and not a full day. The only two point are, first of all, perusal and preparation which Mr Goodwin put at 22 hours and which the opposition put at nearly 14 hours, that is the only difference really there. And Mr Goodwin had of course also to consider these three and a bit lever arch files full of material that was before the Solicitors' Disciplinary Tribunal. My Lord, we submit that it really cannot be said that a difference of some 8 hours between the parties and how long they had spent at solicitor level preparing is significant.
115. My Lord, the only other issue between us really comes down to this: was it reasonable for Mr Goodwin to instruct leading counsel for this proposed appeal? Because if that was a reasonable decision, then the difference between my fees and Mr Platford's fees are really nothing to the point. The position was that I having appeared at the judicial review proceedings, Mr Dutton having had to drop out because of the allegations made against him, so I then had to read into the judicial review proceedings, Mr Goodwin felt that it was appropriate to instruct me for this appeal. In my submission, it does not really lie in Mr Elliott's mouth to criticise that decision or to say that it was unreasonable, and if it was reasonable then the amount of time spent and money charged is, in our submission, entirely reasonable.
116. As your Lordships will appreciate from the length of my skeleton, that took over a day to prepare, and then there was the preparation for the trial and conference. So, my Lord, we submit that the £23,000 charged, subject to the deduction for the meter point, is reasonable. My learned friend has given details of his costs, so your Lordships are entitled to see his solicitors' bill of costs. Again, I have highlighted the two items which will no longer be charged for. (Handed)
117. LORD JUSTICE MAURICE KAY: Thank you.
118. We make an order for costs in favour of the Law Society. We summarily assess them in what we believe to be a broad way, doing justice to the submissions that have been made to us, at £19,000.
119. Thank you both very much.