England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2006

Lord Justice Waller :

1. This is an appeal by The Law Society under s.49 of the Solicitors Act 1974 against a decision of the Solicitors' Disciplinary Tribunal (SDT) dated 4^th July 2006, by which they dismissed certain disciplinary proceedings against the respondents. There is a cross-appeal seeking to uphold the decision by reference to other factors, relied on before the Tribunal by the respondents, and a cross-appeal against the order for costs, made by the SDT, that order only awarding the respondents half their costs as against The Law Society.
2. Upon an appeal under s.49 by sub-section 4 "the High Court . . . shall have power to make such order . . . as they may think fit." It is The Law Society's submission that the appeal should be allowed and that an order should be made remitting the matter to a differently constituted SDT for a full hearing of the allegations against the respondents. It is the respondent's submission that the SDT's decision (save for their costs' order) should be upheld or that the circumstances are such that on any view the matter should not be remitted.

The facts

3. The facts are largely not in dispute. The respondents are, or were at the material time, partners in the firm of Adcocks. That firm entered into an arrangement with the Property Search Group (PSG), by which PSG carried out local authority and other searches for the firm in conveyancing matters. Under this arrangement, the lay-client of the firm would be charged the nominal full cost of the searches, but after that fee had been paid by Adcocks, the latter invoiced PSG for "commission", calculated as £12.50 plus VAT prior to October 2000 and £17.02 plus VAT, (i.e. a gross sum of £20.00) thereafter.
4. No mention of the arrangement between Adcocks and PSG for PSG to pay Adcocks £20.00 was made to Adcocks' clients, who were charged by Adcocks the cost of searches charged by PSG as a disbursement. Adcocks' terms of business were silent on the point and between 10^th January 2000 and 1^st June 2004, Adcocks earned £20,638.46 (including VAT) from PSG in this way.
5. The way the arrangement worked is demonstrated by an example with the papers, placed before the SDT and placed before us. Clients of Adcocks, whom I shall call Ss instructed Adcocks in the re-mortgage of their house in Wednesbury and selected Adcocks' "Ready Service", a variable fee service. In a written quotation, Adcocks quoted the prices for searches totalling £186.38.
6. On 8^th September 2003 PSG invoiced Adcocks for the searches in the sum of £186.38. Thereafter on 4^th November 2003 Adcocks invoiced PSG for the £20.00 (£17.02 plus VAT).
7. The Law Society's submission is that the true cost of the searches was only £166.38. The criticism is that Ss were not told of this. Adcocks retained the £20.00 as "commission" in reliance on Rule 10 of the Solicitors' Practice Rules 1990. That rule is headed "Receipt of Commissions from Third Parties" and provides as follows:-

"(i)Solicitors shall account to their clients for any commission received of more than £20.00 unless, having disclosed to the client in writing the amount or basis of calculation of the commission or (if the precise amount or basis cannot be obtained) an approximation thereof, they have the client's agreement to retain it. . . . "

8. By Annex 14G The Law Society gave certain guidance to solicitors on commissions. Paragraph 1 of that guidance explained that the practice rule simply represented the position at law. It explained that the position at law "results from the fiduciary and agency relationships which exist between the solicitor and the client. One of the consequences of these relationships is that a solicitor cannot, unless authorised by law, contract or a trust deed, keep a secret remuneration or financial benefit arising from the use of clients' property." Paragraph 2 of the guidance is headed "To what sort of commissions does the rule apply?" It provides then as follows:-

"Any financial benefit which you obtain by reason of and in the course of the relationship of solicitor and client is caught by the rule. Examples include commission on life policies, stocks and shares, pensions and general insurances such as household contents and fire policies (including renewals). Also caught is a payment made to you for introducing a client to a third party (unless the introduction was unconnected with any particular matter which you were currently or had been handling for the client) or for opening a building society account."

9. Paragraph 8 of the guidance is headed "What is the significance of the £20.00 figure in the rules?" The answer provided is:-

"The £20.00 figure set out in the rule attempts to define, for practical purposes, what would be acceptable in law as being de minimis."

10. On the basis of the above rule and the guidance given by The Law Society, if the £20.00 returned by PSG to Adcocks was "commission" it would appear that the solicitors were complying with The Law Society guidance if they retained the same and did not disclose it to their clients.
11. It seems that PSG were keen to market their services on the basis that the £20.00 returned to solicitors was a commission which the solicitors could retain and not disclose to their clients. They instructed solicitors who wrote to The Law Society in January 2000 seeking guidance. By letter dated 10^th January 2000 they wrote saying:-

"We act for PSG Franchising Ltd, the largest private provider of local authority searches in the UK . . . They provide local authority searches to solicitors either at the same price at which the local authority would supply them through a normal postal search, or slightly cheaper. . . . In some cases they, or their franchisees will wish to pay a commission to solicitors of around £10.00 (and certainly not more than £20.00) which relates to each set of instructions that the solicitor gives them, to be paid at the end of each month or quarter, once the total number of transactions has been assessed for that period. The purpose of this letter is to ask you to confirm that it is permissible (under the provision of Rule 10, or any other rule of conduct) for the solicitor not to have to declare this to the client. . . ."

12. An ethics' advisor, Mrs Lewis, replied on behalf of The Law Society by letters dated 12^th and 18^th January 2000. By the letter of 18^th January 2000 she said:-

"I confirm that a solicitor may use the services of your client provided it is in the best interests of his or her own client and is so instructed.

Your client may make a commission payment to the instructing solicitors. The solicitor will need to have regard to the requirements of practice Rule 10 in relation to the treatment of that commission. A solicitor will not be required to disclose to the client commission of less than £20.00, unless the aggregate of several commission payments on the same matter would be £20.00 or more."

13. It might at first sight appear obvious that an arrangement under which a charge of £80.00 was made, which resulted in £20.00 being returned, was not one involving paying "commission" of £20.00. Furthermore, such an arrangement would, at first sight, appear to be plainly misleading to clients who were told that the charge was £80.00 and paid £80.00 but did not know that solicitors were receiving £20.00 back. Within The Law Society the matter was worrying but not so obvious. The advice given in relation to how a different firm should be treated so far as disciplinary proceedings were concerned, was as follows:-

"(i) Much confusion exists in the profession at the present time in the area of entitlement to commission when using third parties to carry out local searches. It may be thought that that the practice is reprehensible, but the guidance given by The Law Society itself . . . leaves a little to be desired in its singular concern with the wording of Practice Rule 10, rather than the wider implications of Practice Rule 1.

(ii) (the Firm) discontinued using (the agents) some time ago.

(iii) It would be unfair to refer (the Firm) to the Tribunal until some formal guidance is given to the profession about the danger of entering into such arrangements." (See an advice dated 24^th January 2001, page 156 of bundle 2.)

14. Rule 1 sets out the basic principles in the following terms:-

"A solicitor shall not do anything in the course of practising as a solicitor, or permit another person to do anything on his or her behalf, which compromises or impairs or is likely to compromise or impair any of the following:

(a) the solicitor's independence or integrity;

(b) a person's freedom to instruct a solicitor of his or her choice;

(c) the solicitor's duty to act in the best interests of the client;

(d) the good repute of the solicitor or of the solicitors' profession;

(e) the solicitor's proper standard of work;

(f) the solicitor's duty to the Court."

15. At about this time the Society did seek to give guidance. First, by letter dated 25^th January 2001, Mrs Lewis wrote to PSG altering the advice she had previously given. She stated:-

"The committee also disapproves the practice whereby the solicitor pays the agency the full fee and the refund of £20.00 is returned to the solicitor, disguised as commission. The committee's view is that the profession's reputation is damaged by solicitors requesting payment from clients of a disbursement which is clearly costing the solicitor less than the clients are being told. The committee takes the view that this practice is in breach of Rule 1."

16. On 1st February 2001 The Law Society placed a notice in the Gazette under the heading "Misleading charges for local searches" deprecating the practice of charging a particular sum for a local search and then refunding £20.00 as "commission". On 29^th March 2001 an editorial appeared in the Gazette entitled "Don't cheat the client", making similar points.
17. During 2001 The Law Society's internal disciplinary committees considered the conduct of another firm, who used agents to carry out searches on terms similar to those employed by PSG. A review panel resolved, so far as material to the present appeal as follows:-

"The committee were satisfied that on a strict interpretation there was no breach of Practice Rule 10. Nevertheless they considered that notwithstanding the guidance given by the Ethics department (which in any event appeared simply to be directed at Rule 10) that the practice amounted to a breach of Practice Rule 1. THE REASONS were the failure to disclose the receipt of commission to the clients amounting to taking secret profit . . ."

18. That committee also recommended that The Law Society issue further "formal guidance to the profession on arrangements of this nature." That was a recommendation made after and despite the publication in the Gazette earlier that year.
19. That decision was appealed to a compliance board adjudication panel, again an internal disciplinary committee and that adjudication panel, by decision made on 15^th November 2001, stated:-

"(i) The failure to disclose the receipt of commission to the clients did not amount to taking a secret profit.

(ii) That the arrangements involved did have sound benefits for clients is accepted by the panel's solicitor.

(iii) The arrangements involved did not impugn the integrity of the solicitor or damage the reputation of the profession.

(iv) The fact that there was not a breach of Practice Rule 10 meant that on the same facts such circumstances could not amount to a breach of Practice Rule 1. The panel therefore resolved to allow the application for review and to take no further action."

20. Thus it is that what I have described as appearing reasonably obvious, not only was not obvious to internal committees of The Law Society, but was ultimately totally contradicted by the view they took. Both the review panel and the adjudication panel took the view that Rule 10 was in play and that the £20.00 being returned was correctly described as commission. The adjudication panel resolved to take no action.
21. The books of account at Adcocks were inspected by a Mr Brumwell on an inspection commencing 27^th October 2003. A report was produced, signed by the Head of Forensic Investigations, on 30^th July 2004. That report raised no issues of compliance with the solicitors' account rules but "other matters" were raised, in particular the practice of the firm to charge the full cost of local searches undertaken by PSG on behalf of the firm, to the clients, when PSG refunded a part thereof by way of commission. During his investigation Mr Brumwell discussed the firm's practice with the first respondent, who confirmed that there was no mention of the arrangement with PSG in the firm's terms and conditions of business, and that the clients were unaware of the arrangement.
22. There followed an exchange of correspondence between The Law Society and the first respondent. By letter dated 17^th September 2004 the first respondent made clear that, prior to Mr Brumwell's visit, he was not aware of the statement, which had been issued on 10^th January 2001 and published in the Gazette. He suggested that, in relation to a matter "of such importance the statement should have been sent to the senior partner of all firms of solicitors, as, for example, had happened in relation to the money laundering regulations and on other occasions." He stressed that the payment of commission was not the motivating factor behind using the services of PSG, which he considered to be in his clients' interests and which cost more from local authorities than the sums with which clients were charged so far as PSG was concerned. He ended the letter by saying "Strictly without prejudice to the above we have, however, incorporated amendments to our R15 letters and terms of business, since becoming aware of the guidance statement. The enclosed copies of our terms of business and R15 letter confirm the changes we have made."
23. By a Rule 4 statement dated 16^th August 2005 The Law Society made an application to the SDT against the respondents. The allegations made by The Law Society in the Rule 4 statement were that the respondents:-

" have been guilty of conduct unbefitting a solicitor, namely:

(1) that they provided misleading information to clients regarding the cost of local searches and that by so doing breached Practice Rule 1(a) and (d);

(2) that they delivered inaccurate bills to clients, which included grossed up local search fees, whilst receiving commission in relation to Property Search Group (PSG)."

24. The Rule 4 statement in its final paragraph said this:-

"It was submitted on behalf of The Law Society that to notify a client that searches would cost a specific sum and to include a disbursement on the bill addressed to a client in a particular sum, knowing that a discounted figure was actually payable, without the knowledge of the client, is tantamount to false accounting and dishonest."

25. In the context of the history and confusion within The Law Society itself, it does seem extraordinary that any suggestion of "dishonesty" was ever made. In any event, a directions hearing was listed for 24^th November 2005. The respondents were aware of the fact that previous cases on broadly similar facts had been dealt with in-house by The Law Society. The respondents wished to discover the facts on which The Law Society had acted and the manner in which the matters had been dealt with. At that hearing the respondents sought disclosure of "all cases in which the Society has considered the conduct of solicitors in the same circumstances . . ."
26. After hearing argument the tribunal ordered disclosure of certain files to the tribunal, with a view to the tribunal ruling without any further hearings or submissions as to whether all or any part of the files should be disclosed to the respondents. On 5^th January 2006 the tribunal wrote to the parties stating that the tribunal had resolved that the files submitted by The Law Society to the tribunal should be disclosed to the respondents.
27. Having considered the contents of the files, which included the matters to which I have referred in paragraphs 13, 17 and 19 above, the respondents, through their advisors, indicated that they would seek to have the proceedings stayed or struck out as an abuse of process. On 12^th May 2006, the respondents served a substantial submission in support of that application. That document contained many serious criticisms of The Law Society and a skeleton argument in response was served by The Law Society on 24^th May 2006. A further skeleton argument in reply was served on behalf of the respondents dated 30^th May 2006.
28. The case was listed for two days, on 1^st and 2^nd June 2006. The application to strike out as an abuse had three strands. Firstly, it was said that on the agreed facts the case against the respondents simply could not be sustained. Secondly, it was asserted that disclosure from The Law Society had demonstrated that The Law Society knew that their case was unsustainable. Thirdly, it was said that The Law Society's resistance to an application for disclosure, relating to the other cases previously considered by them "appeared to demonstrate misconduct on the part of the prosecution."
29. As already indicated, the tribunal acceded to the application on the ground that on the agreed facts The Law Society simply could not succeed. The tribunal did not uphold the other strands on which the abuse application was made and, indeed, only awarded the respondents half their costs, as against The Law Society.
30. In my view there has been confusion in this case between the jurisdiction to dismiss for abuse of process and the jurisdiction to dismiss a case on its merits. To say that a case fails on its merits is not to say that to bring it would be an abuse of process. What the tribunal have done is to purport to exercise a jurisdiction to deal with a case on a summary basis, without the case for The Law Society being fully developed. Both Mr Treverton-Jones QC and Mr Hopper QC were clear that the tribunal had the jurisdiction to dismiss a case on a summary basis. They accept that under the Solicitors' (Disciplinary Proceedings) Rules 1994 (S11994 No 288) Rule 31(a) "Subject to the provisions of these Rules, the Tribunal may regulate its own procedure". They accept that under Rule 4(4)(i) a solicitor member gives preliminary consideration to the application and that the Tribunal may review the issues and the evidence in a summary manner at a subsequent stage.
31. Of course, if there are factual issues to resolve, a tribunal would need to take care before deciding matters on a summary basis. But in this instance, Mr Treverton-Jones accepted that, if the case had been developed by The Law Society, rather than being dealt with on a summary basis, the only further evidence which the tribunal would have had before the respondents could have submitted no case was the cross-examination of Mr Brumwell. It is hardly open to The Law Society to suggest that they needed their witness cross-examined before the tribunal was entitled to consider whether there was a case to answer.
32. The question, thus, is whether on the allegations made in the Rule 4 statement there was a case for the respondents to answer. A critical issue in considering that question is the true construction of Rule 10. In considering construction of that rule alone, I have serious doubts as to whether anything that The Law Society had done, vis à vis third parties previously by way of prosecution or non-prosecution, has any relevance. Equally I have doubts as to whether the view that The Law Society expressed at any stage, as to the proper construction of Rule 10, could have any relevance. The matter is one of construction. Of course, in considering whether the respondents were guilty of conduct unbefitting a solicitor, different considerations may apply. At that stage, if the profession, or a reasonable number of members of it, thought that the rule meant something different from its true meaning, that must affect the question whether the respondents were guilty of conduct unbefitting a solicitor, in their reliance on it.
33. If the respondents are to have any answer to the allegations that they were making a secret profit, it can only be supplied by Rule 10. The argument has to be that Rule 10 replicates the law and Rule 10 justifies what the respondents did in this case. There may then be a second question, whether members of The Law Society thought the rule did justify what the respondents did, and whether therefore reliance on it represents conduct unbefitting a solicitor.
34. Rule 10 is concerned with commission and, in my view, what the respondents were doing in this case had nothing to do with receiving a commission. This was not a case of the respondents putting a third party in touch with a client and thereafter receiving a commission for having done so. Paragraph 2 of the guidance, which I have quoted above, provides examples of arrangements where commission might be obtained by a solicitor and all involve clients being put in touch with third parties, and those third parties then paying commission. Not one of the examples involves, effectively, a discount or a rebate on a price paid for services. What Adcocks did was to have an arrangement under which they effectively received a discount from the price which PSG were charging them, dressed up as a commission. Thus, in my view, Rule 10, on its proper construction, provided no answer to the conduct of the respondents in this case.
35. It follows in my view that the tribunal were wrong in the construction of Rule 10. That might, at first sight, indicate that this matter should be remitted to the SDT for reconsideration of the allegations made against the respondents and, in particular, whether their reliance on Rule 10 was conduct unbefitting a solicitor. It is totally within the discretion of this court as to whether it does remit the matter. There are various reasons why I think in this case it would be wrong to do so. First, despite the clear view I have formed as to the proper construction of Rule 10, there is no doubt that other highly respectable and influential people in The Law Society have taken a different view. Even where conduct has been criticised the view has been maintained that Rule 10 is applicable to the type of arrangement that there was with PSG in this case. It is thus inconceivable that any tribunal could find that the respondents were in any way dishonest and, as I have indicated already, it was unfortunate that that suggestion was ever made. It also seems to me very unlikely that an SDT would hold that these respondents had acted in a way unbefitting a solicitor. The Law Society has no evidence that these respondents were aware of the change in advice to PSG or of the notice put in the Gazette. Even after that notice was put in the Gazette, some criticism was made of The Law Society in relation to making the position clear to its members [see paragraphs 17 and 18 above] and The Law Society took no action. Even if an SDT did come to the conclusion that the conduct of the respondents fell foul of Rule 1, in that the arrangement which they made with PSG compromised their duty to act in the best interests of their client, it would be quite unfair to impose any great penalty on them, having regard to the way that others were treated internally by The Law Society. Finally, these respondents have had an allegation of dishonesty hanging over them for a substantial period of time and that must, on any view, have been a matter of great anxiety for them and their families, and it is time that a line were drawn under this matter.
36. That makes it unnecessary to consider at any length that aspect of the cross-appeal which seeks to rely on other matters, as amounting to abuse of process by reference to which it was said the SDT should have stopped the prosecution. Suffice it to say that it seems to me that the allegation that The Law Society knew they had no case to make is not made out. Second, to resist disclosure, as The Law Society did, could not amount to "misconduct" or, in any event, to such conduct as would give the tribunal a right to dismiss the prosecution as an abuse of process. I turn therefore to the costs appeal.
37. Mr Hopper commenced his submissions by drawing our attention to a passage in the judgment of Lord Justice Moses in Baxendale Walker v The Law Society [2006] EWHC 643, paragraph 43, where he said:-

"43. The question thus arises as to whether the order that The Law Society should pay a proportion of the appellant's costs and that no costs should be paid by the appellant was correct, as a matter of law. The principles, in relation to an award of costs against a disciplinary body, were not in dispute. A regulator brings proceedings in the public interest in the exercise of a public function which it is required to perform. In those circumstances the principles applicable to an award of costs differ from those in relation to private civil litigation. Absent dishonesty or a lack of good faith, a costs order should not be made against such a regulator unless there is good reason to do so. That reason must be more than that the other party has succeeded. In considering an award of costs against a public regulator the court must consider on the one hand the financial prejudice to the particular complainant, weighed against the need to encourage public bodies to exercise their public function of making reasonable and sound decisions without fear of exposure to undue financial prejudice, if the decision is successfully challenged.

44. Those principles can be derived from a number of cases summarised by Jackson J in Gorlov v Institute of Chartered Accountants [2001] EWHC Admin 220 at Part 4, paragraphs 30-35 (and see, in particular, the three principles distilled by Lord Bingham of Cornhill CJ in City of Bradford Metropolitan District Council v Booth [2000] COD 3388)."

38. The sentence of particular concern is where Moses LJ says "Absent dishonesty or lack of good faith a costs order should not be made against a regulator unless there is good reason to do so." Mr Hopper submits that that sentence simply does not reflect any of the three principles distilled by Lord Bingham in City of Bradford MDC case. Those three principles Lord Bingham put in this way:-

"23. I would accordingly hold that the proper approach to questions of this kind can for convenience be summarised in three propositions:

24. 1. Section 64(1) confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them.

25. 2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection.

26. 3. Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonable, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without rear of exposure to under financial prejudice if the decision is successfully challenged."

39. I would agree that Moses LJ has put the matter too highly in favour of a regulator. Lord Bingham does not, as I understand him, suggest that there should be a presumption, one way or another; he simply makes clear that there are particular circumstances to bear in mind where a public body or a regulator is concerned.
40. In their ruling on costs the tribunal recognised the importance of the role of The Law Society as regulator. There is, however, no sign that they made any presumption of the kind suggested by Moses LJ. They then decided that the respondents should get half their costs, saying this:-

"150. The tribunal had been concerned that The Law Society had given a firm written confirmation to PSG that the arrangement in place was acceptable. It had exonerated another firm, which in geographical terms was quite close to that of the respondents, which had conducted conveyancing work for clients on precisely the same basis as that adopted by the respondents. The respondents had made a reasonable interpretation of Practice Rule 10 and The Law Society's guidance relating thereto.

151. The respondents might not, however, completely escape criticism. It is a fundamental principle that a solicitor puts the best interest of his client first and he has a clear and high duty to operate a system of client care, which includes full and detailed costs information. Although the respondents' scheme on the face of it complied with the letter of the practice rule and the guidance, it could be argued that regularly taking commission for routine work was a matter that could very easily have been included in a client-care letter, dealing with full costs information as was evidenced by the fact that, when concern about the arrangement was expressed to the respondents, they did include such information.

The tribunal considered that justice and proportionality would be served by ordering that The Law Society pay one half of the respondents' costs on the standard basis. . . ."

41. This court should only disturb an order for costs in rare circumstances and only if, in the exercise of its discretion, the tribunal has misdirected itself or reached a conclusion which this court would not have reached, and where the solution preferred by the tribunal has exceeded the general ambit within which a reasonable disagreement is possible.
42. Where then can it be said that the tribunal has gone wrong? It seems to me that the tribunal have failed to take account of the fact that The Law Society alleged dishonesty – that, as it seems to me, was never a proper charge to make. It also seems to me that the reality of what The Law Society desired was a ruling by the SDT on the proper construction of Rule 10, albeit the quality of such misconduct as they were ever likely to establish would normally have merited only a reprimand. They thus put the respondents in a position in which they had hanging over them the charge of dishonesty for a considerable period of time, and put them to the expense of fighting a test case, which, if the quality of the conduct of these particular respondents was all that had been of concern, could have been disposed of before any reference to an SDT.
43. I thus think that the tribunal did misdirect itself and that it must be for this court to exercise the discretion afresh. In saying that, it is still important to take account of the views of the tribunal that, for example, it was their view that the respondents' conduct was not beyond criticism. Indeed, my view as to the proper construction of Rule 10 would underline that as a proper view. Furthermore, it clearly is a relevant factor in considering whether an order should be made against The Law Society that The Law Society has the public duty to investigate.
44. The order which seems to me to do justice in this particular case would reflect the fact that The Law Society should not have to pay the respondents' costs of dealing with the investigation but that they should pay the costs once the matter had been referred to the SDT.

Mr Justice Treacy : I agree.

LORD JUSTICE WALLER: For the reasons given in the judgments handed down, the Law Society's appeal under section 49 will be dismissed. The cross-appeal relating to costs should be allowed to the limited extent indicated. Having read the submissions in relation to who should pay the costs of the appeal, the Law Society should pay the costs of this appeal.