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
		30th March 2006

Lord Justice Moses :

Introduction

1. This is an appeal by a solicitor against an order of the Solicitors' Disciplinary Tribunal. On 5 April 2005 the Solicitors' Disciplinary Tribunal ordered that the appellant be suspended from practice for a period of three years, commencing on 4 May 2005. The appellant appeals against that order, contending that no such onerous punishment should have been imposed.
2. The appellant also contends that the Tribunal erred in failing to take account of representations which he made following the order of 5 April 2005. The Tribunal held that having made that order it was functus officio.
3. The appellant was charged with conduct "unbefitting a solicitor". One of the allegations related to a reference which he provided to a bank in 1994. The statement, pursuant to Rule 4(2) of the Solicitors' (Disciplinary Proceedings) Rules 1994 ("the 1994 Rules") read:-

"That he provided a reference in circumstances in which he knew or ought to have known, were improper and/or unprofessional."

The appellant admitted that allegation but the precise extent of that admission provoked both confusion and submission; I shall deal with it later.

4. There was a further allegation, the first allegation, under the same rubric of "conduct unbefitting", which read:-

"That between 4 February 2002 and 5 March 2002, he gave evidence in High Court proceedings before Etherton J. which the court found to be manifestly untrue."

5. That allegation was dismissed. It was the subject-matter of a cross-appeal by the Law Society. Its dismissal led to an order that the Law Society pay 30% of the appellant's costs.
6. There were further cross-appeals by the Law Society against interlocutory orders made by the Tribunal on 4 April 2005 refusing amendment of the allegations. Those cross-appeals were not pursued so the court was not required to rule as to whether it had jurisdiction to hear any appeal against an interlocutory order, contrary to a previous decision of the Court of Appeal (Re. a Solicitor 27 April 1994, The Times 4 May 1994, 138 SJLB 100).
7. The Law Society did not pursue its cross-appeals once we had indicated that we would refuse the appeal against suspension. Thus, the issues which fall for determination are:-

i) Was the tribunal functus officio once it had announced its order, dated 5 April 2005?

ii) Was the order of suspension plainly wrong?

iii) Did the Tribunal err in law in ordering the Law Society to pay 30% of the appellant's costs?

The outline facts

8. The appellant was born in 1964 and admitted as a solicitor in 1990. In 1994 he was in sole practice. During the course of that year and, particularly, in memoranda he drafted in May and July 1994, he gave advice in relation to setting up arrangements for loans from a pension fund in a manner which would not infringe the statutory limitations on employer related investment and which would, in addition, avoid liability to United Kingdom tax on any sums withdrawn. In accordance with a second memorandum, drafted by the appellant in July 1994, pension fund monies were paid into his client account and then distributed. They were lost to the fund and to the pensioners, who were retired employees and their families. Those involved in the abstraction of that money were sued by the trustees of the pension scheme in proceedings in the Chancery Division heard by Etherton J. in 2002. He gave judgment on 17 April 2002.
9. The appellant was found not to have knowingly assisted in breaches of trust but was ordered to repay his fee of £50,000.
10. During the course of the hearing before Etherton J. it emerged that the appellant had written a reference, dated 2 December 1994, to the manager of Barclays Bank plc, Harrogate, in relation to someone who was alleged to be a Mr. Nurkiman. He wrote:-

"Re: Mr. Nurkiman

We are pleased to confirm that Mr. Nurkiman is known to this firm and has satisfied our identification requirements in relation to Money Laundering Regulations 1993. We are further pleased to confirm that he is a person of integrity and good standing.

We nevertheless disclaim all and any responsibility for any loss or damage consequent upon any actions that you may take."

11. As part of the structure in relation to the loan arrangements, a company called Kesking Ltd. was to be formed. The solicitor for Kesking was a man called Xavier, a Malaysian lawyer, whom Mr. Baxendale-Walker had met in London in July 1994. Mr. Nurkiman was alleged to be a director of that company. In fact, as Etherton J. recorded, no such person existed. It was a name used by a Canadian fraudsman.
12. On 22 September 1994 a loan of £2.135 million was made out of the pension fund to Kesking and nineteen subsidiaries. The security for that agreement was a document called the "Boesen Agreement", which proved to be worthless.
13. As Etherton J. recorded, following completion of the transaction on 22 September 1994, the appellant attempted to find a new replacement administrator for the pension scheme. In October 1994 Independent Financial Partnership Ltd., a director of which was Mr. Brian Smyth, took over as the Scheme administrator. He was their principal point of contact with the appellant. He made extensive enquiries about the loan transaction and expressed considerable concern about its propriety (see judgment paragraph 117).
14. Before the Tribunal, and before this court, the appellant attempted to put the reference into what he described as "its proper historical context". Firstly, he said that Mr. Xavier, the Malaysian solicitor whom he had met in London in July 1994, had told him that Mr. Nurkiman was one of the two owners of Kesking Ltd. After distribution of the loans, of which the pension fund was the source, it became a matter of urgency to ensure that pensioners received outstanding payments from the balance of the funds. By that time Mr. Nurkiman was sole trustee. It was necessary to transfer the balance of the pension fund from the Royal Bank of Scotland, Guernsey, to Barclays Bank in Harrogate. Mr. Nurkiman's signature was required for that purpose and also to enable authority to be given to the Bank to accept two signatories, that of IFP and solicitors within the United Kingdom, Russell Jones and Walker. A letter to that effect was sent to Mr. Nurkiman, dated 28 November 1994. Matters were growing urgent. Mr. Smyth wrote to the appellant on 30 November 1994 explaining that no signature had been received from Mr. Nurkiman. Mr. Smyth pointed out that "well before Christmas" the administrators would need the trustee's address, proof of identity in the form of a passport, and Barclays would need to take up bank references. An attendance note from Mr. Smyth, dated 30 November 1994, records a telephone conversation with the appellant. The appellant never denied the accuracy of that note. It records that Mr. Smyth reminded the appellant that:-

"£2 million had been put into a less than liquid investment, with no security for the fund and that the agreement to do this pre-dated the sale of the company and hence had been signed by individuals who were not actually in office."

There is a further reference to a discussion as to payments to the pensioners:-

"…which may or may not happen."

and Mr. Smyth then raised the issue as to whether it was certain there was no money laundering involved.

15. The note further recalled that a previous administrator told the appellant that he was "playing with dynamite" and there was a reference to an investigative journalist.
16. A letter, dated 1 December 1994, from Mr. Smyth, for the administrators, to the solicitors, Russell Jones and Walker, records that:-

"Barclays have insisted that they find out more about Mr Nurkiman and I believe they have been in touch with you direct."

A note on that letter records that that matter is to be dealt with by the appellant as well as matters concerning passport, birth certificate and recognition of signatures by a solicitor.

17. Although the letter was not addressed to the appellant, it is plain that he was aware of it because, on 2 December 1994, he wrote not only the reference to which I have already referred but also another letter confirming that signatures on attached documents to Barclays Bank corresponded to signatures:-

"that we have seen from those same persons as on other documents."

18. The appellant contended before this court, as he contended before the Tribunal, that he was under pressure to write the reference. He had received documents signed by Mr. Nurkiman in response to requests and asserted that receipt of those documents was:-

"a genuine and clear indication of Mr. Nurkiman's existence and that he was playing his proper role in the transaction."

He said he believed Mr. Nurkiman was personally known to Mr. Xavier. He took the view that he was justified in writing references to integrity and good standing because:-

"He had been dealing with a client, through another lawyer who apparently knew the client well, who was involved in a high value transaction and had been so involved for several months. Mr. Nurkiman had responded to all requests made of him in a timely and proper manner. At the time and in the circumstances that presented themselves, namely the pressure from Mr. Smyth and the knowledge that pensioners' receipt of money depended on the document, he decided to proceed as he did."

19. He pointed out that as a result of the references he had supplied, payments to pensioners were made on 5 December 1994.
20. Etherton J. said

"Mr. Baxendale-Walker had no ground whatsoever for saying that Mr. Nurkiman was a person of integrity or of good standing. In cross-examination, Mr. Baxendale-Walker sought to explain the letter on the basis that he had worked with Mr. X (Xavier) for six months on a project involving a significant financial transaction in which Mr. Nurkiman was one of the principals. This does not seem to me to give any proper explanation for a letter by a solicitor, apparently in connection with Money Laundering Regulations, which gave the impression and, in my judgment, was intended to give the impression, that one or more people in the firm had met and dealt with Mr. Nurkiman personally."

The decision of the Tribunal

21. The Tribunal said:-

"116. The Tribunal did not agree with Mr. Baxendale-Walker that the letter of reference given on behalf of Mr. N to a bank, which reference was both improper and unprofessional, comes at the lower end of the scale of professional misconduct. Members of the public and organisations such as banks are entitled to expect to be able to trust a solicitor to the ends of the earth.

117. At the time when Mr. Baxendale-Walker gave the reference he had been qualified for five years. The Tribunal rejected Mr. Baxendale-Walker's submission that at the time when he wrote the reference he was young and inexperienced. Mr. Baxendale-Walker held a solicitor's Practising Certificate and was entitled to practise as a fully-fledged member of the profession and on his own account.

118. People who are not qualified as solicitors are able to recognise that it is improper to give a reference on behalf of a person that they do not know. Solicitors know that they can only properly give references which are truthful in all respects. This inevitably precludes commenting on the attributes of a person who does not exist.

119. The Tribunal was in no doubt that Mr. Baxendale-Walker gave a false reference indicating that the person he referred to was a person of good standing when he neither knew nor had any opportunity to know whether that was accurate.

120. Dishonesty had not been alleged against the Respondent in this respect and if it had been the Tribunal would have had no difficulty in making an order that Mr. Baxendale-Walker be struck off the Roll of Solicitors. The Tribunal is further in no doubt that to write such a false reference was both improper and a serious breach of a solicitor's professional duty. In writing such a letter the Respondent had been at the very least extraordinarily reckless with regard to this professional duty.

121. The Tribunal concluded that it must impose a sanction and that a suspension for three years would be both proportionate to the seriousness of the allegation and would provide a clear indication, both to members of the solicitors' profession and to members of the public, that such behaviour on the part of a solicitor is wholly unacceptable and would not be permitted to go unmarked even where dishonesty was not alleged."

Order of suspension: was the Tribunal functus officio?

22. Before dealing with the substance of the appeal, I should reach a conclusion as to the first ground of appeal. This stemmed from correspondence written immediately following the announcement of the suspension on 5 April 2005. On 6 April 2005 solicitors, acting for the appellant, wrote to the Tribunal asserting that the sentence was manifestly excessive and out of line with any reported decision of the Tribunal or the courts. It contended that since the Tribunal had not yet given its reasons it was not functus officio. It referred to a number of cases in support of the submission that the order of suspension was manifestly excessive and outside the range of penalties for similar offences. The Tribunal, in its reasons, made no reference to these submissions and it is plain that it followed the advice of its clerk that it was functus officio.
23. If this court took the view that the penalty was manifestly excessive then the point is academic. Since it has been raised, it seems to me appropriate to consider it. In my view the Tribunal was correct. Once it had announced its order of suspension on 5 April 2005, it was functus officio. I reach that conclusion by reference to the statutory jurisdiction of the Tribunal and, as a matter of principle.
24. I allowed the Disciplinary Tribunal to intervene on this limited issue since, it said, it raised an important matter of principle which, should this court conclude that the Tribunal was not functus officio, would have extensive consequences.
25. It seems to me that the statute provides a clear answer to the submissions on behalf of the appellant. It envisages reasons being given subsequent to the announcement of the order. It makes it clear that once the order has been given the Tribunal is, indeed, functus. Section 46 of the Solicitors Act 1974 ("the Act") creates the Tribunal. By Section 48(1):-

"An order of the Tribunal shall be filed with the [Law] Society, and a statement of the Tribunal's findings, signed by the chairman or by some other member of the Tribunal authorised by him in that behalf, shall either be prefaced to the order or added to the file containing the order as soon as may be after the order has been made"

26. By Section 48(4):-

"An order which has been filed shall be treated, for the purpose of enforcement, as if it had been made by the High Court."

27. Thus the Act itself envisages the making of an order, to be filed with the Law Society and a statement of findings, or in other words, reasons, which is either filed with the order or added to the file after the order is made. There could be no clearer statutory expression of the fact that the Tribunal's statutory function is to make an order and that the reasons may be made at the same time or later.
28. Further, as a matter of principle the appellant's argument is erroneous. He contends that, because the giving of reasons is an essential part of what he described as "the judicial process", it follows that it is open to the Tribunal to reconsider its decision up until the time when it has given reasons. He relies upon that line of authority (including English v Emery Reinbold & Strict Ltd. [2002] 1WLR 2409) and many others, in which it is said that it is the duty of the court, as part of due process, to give reasons. This is a substantial non sequitur. The mere fact that it is essential to give reasons, as part of a fair judicial process, does not lead to the conclusion that until such time as a tribunal or court has given its reasons it may change them at any time. If the argument was correct, it would apply to any court or tribunal which announced a decision but gave its reasons later. It would enable any litigant to advance fresh arguments, and presumably any opponent to advance counter-arguments, with no limitation on time save the moment when the court or tribunal explains the reasons for its conclusion. There are, of course, occasions when a court may choose to reconsider its decision, usually when it itself has identified an error (see Re. Barrell Enterprises [1973] 1WLR 19 and Compagnie Noga D'Importation et D'Exploration SA v Abacha [2001] 3 All ER 513 at paragraph 47). But they are of no application in a case such as this. There is no warrant for an unending process continuing up until the time of giving of reasons. The function of the Tribunal was fulfilled at the time it made its order pursuant to section 48 of the 1974 Act.

The merits of the appeal against the suspension

29. Both sides accepted that this court should not interfere with the order of the Tribunal unless it was out of line with previous penalties imposed or otherwise plainly wrong. The modern approach to decisions of the Disciplinary Tribunal both in relation to fact and penalty is that identified by this court in Langford v The Law Society [2002] EWHC Admin 2802 at paragraph 14 and in Briggs v The Law Society [2005] EWHC Admin 1830, neither of which was cited before us in the instant appeal. The jurisdiction of this court is appellate and the court may interfere if it thinks the Tribunal is wrong. But the Tribunal, as a specialist body, is entitled to due respect.
30. Mr Stewart QC provided a number of decisions which he contended disclosed more serious misconduct where no penalty of suspension had been ordered. I do not find it possible to reach any conclusion as to whether, in reality, the facts of those cases were more serious than this. A brief account of those decisions gives some impression that some of them were less serious and in others the solicitor appears to have been fortunate. I find much more persuasive the reasoning of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512. A solicitor admitted to the Roll for two years had dispersed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The shortage in the client account remained unrectified for a period of nearly 16 months. The Tribunal found that the solicitor was honest and had not stolen client money "in a premeditated fashion". The Tribunal took the view that ordinarily the conduct would merit striking off but, in light of the facts of the case, it made a more lenient order. The Divisional Court heard fresh evidence of good character and took the view that the suspension was disproportionate, imposing a fine in substitution.
31. The Court of Appeal held that the Divisional Court had erred in interfering with the Tribunal's decision. It did not reinstate the suspension having regard to the history of the litigation and the delay. But the court's conclusion as to the propriety of the Tribunal's order are illuminating. The court recorded that the solicitor had been guilty of a flagrant departure from elementary rules (see page 516 at E). It endorsed a conclusion that a flagrant disregard of elementary rules justified a suspension even in the absence of dishonesty. The Master of the Rolls said:-

"It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness…

Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him…If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the Tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the Tribunal be likely to regard as appropriate any order less severe than one of suspension." (page 518B & D-E).

The court continued by pointing out that the purpose of an order was not merely punitive but also to maintain the reputation and sustain public confidence in the integrity of the profession.

32. Mr Stewart QC contended this the offence did not warrant suspension. It represented a single error of judgment more than ten years previously. The reference had led to payment of outstanding money to pensioners. It did not cause loss.
33. Consideration of the circumstances in which it was committed was bedevilled by discussions as to dishonesty. The Law Society had in the skeleton argument served in support of the charge, described the appellant's conduct as dishonest. The appellant contended that he did not understand the charge as drawn to allege dishonesty and, in any event, he was only prepared to admit the allegation on the basis that he did not appreciate, at the time, that it was improper or unprofessional to write a reference for Mr Nurkiman; he believed him to be a man of integrity as a result of the references to Mr Nurkiman made by Mr Xavier. Had there been an allegation of dishonesty the appellant said he would have given evidence.
34. The Tribunal rejected the amendment sought by the Law Society. I shall have more to say about the preliminary skirmishing shortly. But for the purposes of the appeal against the order of suspension the Tribunal made clear that:-

"dishonesty had not been alleged against the respondent in this respect…". (120).

35. It is unnecessary to delve further into the question of what the Tribunal meant. Certain features of this reference are clear. The appellant had never met Mr Nurkiman. He knew nothing about him apart from the fact that he was, apparently, a client of Mr. Xavier. He had no basis for saying that he was a person of integrity. He had no basis for saying he was a person of good standing. He was not known to the firm of Baxendale-Walker. All of those assertions, contained in the reference, were untrue. There was no room for mistake. The appellant's attempts to suggest that there was some basis for saying that Mr. Nurkiman was "known to this firm" or was a person of integrity and good standing were unsustainable.
36. The appellant knew that Barclays Bank trusted him to provide a truthful reference. Instead, it received a fiction, on which it acted, which had no basis in fact. There was no basis for saying that the firm knew Mr. Nurkiman. There was no basis for "confirming" anything. It is not surprising that the Tribunal took a serious view of the appellant's conduct. It is difficult to see how the fact that he was young and inexperienced could justify such a serious breach of the trust placed upon a solicitor. Neither age nor experience should be needed to teach a solicitor what was obvious. The bank placed its trust in the appellant because he was a solicitor. There was delay in prosecuting the allegations from the date when the facts came to the attention of the Law Society in 2002 but it was not such as to require a more lenient approach than the facts required.
37. The arid argument as to whether the appellant was aware that such conduct was in breach of the obligations of a solicitor seems to me to add little. The Tribunal did not find that the appellant was aware that what he was doing was improper or unprofessional. But he did know that what he was saying was not correct. He knew that he did not know whether Mr Nurkiman was a person of good standing or integrity.
38. In these circumstances, it does not seem to me that the Tribunal's order of suspension was excessive or out of line with the previous approach to breaches of a solicitor's obligations. I agree that for a solicitor to write a reference about someone he has never met and about whom he knows nothing is a grave breach of his duty. In my view the Tribunal was justified in making an order for suspension of three years.
39. I cannot leave this aspect of the appeal without referring to the charge. The charge was of conduct unbefitting a solicitor. The particulars should have referred, in separate paragraphs, to an allegation that the appellant knew that to provide a reference was improper and, in a separate allegation in the alternative, that he ought to have known that it was improper. Once the Law Society sought to allege dishonesty it would, I suggest, have been better to cut the argument short and, require the appellant to state in writing the basis upon which he was prepared to admit the charge. If that basis was not acceptable then he should have been required to make submissions and, if he wished, call evidence so that the Tribunal could rule upon the factual basis which would form the foundation of any order. Arguments about what was or was not dishonest merely obfuscated the essential issues as to what the appellant did or did not know at the time he wrote the reference. In the end, however, I take the view that no injustice was done since the Tribunal made its order on the basis that the appellant was:-

"extraordinarily reckless with regard to this professional duty."

40. I understand that to mean that he was reckless as to his professional obligation. There was not, as Mr. Stewart QC seemed to suggest from time to time, any suggestion or possibility that he was reckless as to the truth of the subject matter of the reference. He knew, full well, there was no factual basis for the assertions he made in that reference. The Tribunal must have considered that, in the absence of dishonesty, the appellant took "a blinkered approach to his professional duties as a solicitor". That, as Lord Hoffmann pointed out in Twinsectra Ltd. v Yardley [2002] 2 AC 164 at paragraph 22, page 170 (not cited to the Tribunal or to the court) is not dishonest. But it is serious and merits a substantial period of suspension. I would dismiss his appeal.

The Law Society's Appeal as to Costs

41. The Tribunal ordered that the Law Society pay 30% of the appellant's costs because he had been successful in his defence of the first allegation and a greater proportion of the costs incurred by him would have related to that allegation. It said:-

"With regard to the question of costs, the Tribunal recognised that Mr. Baxendale-Walker had been successful in his defence of the first allegation and in such circumstances it would not be right that the Respondent pay The Law Society's costs. It would be right that The Law Society pay a proportion of Mr. Baxendale-Walker's costs. The Tribunal concluded that a fair and reasonable position with regard to costs would be achieved in ordering that the Law Society pay 30% of Mr. Baxendale-Walker's costs, such costs to be subject to a detailed assessment unless agreed between the parties. In making such an order the Tribunal recognises that a greater proportion of the costs incurred by the Respondent would have related to his defence of allegation (1) and that overall the percentage of costs to be paid by The Law Society meant that the costs order properly reflected the outcome."

42. The first allegation was:-

"That between 4 February 2002 and 5 March 2002, he gave evidence in High Court proceedings before Etherton J. which the court found to be manifestly untrue."

The facts relied upon in support of those particulars amounted to a recitation of passages of Etherton J's judgment which the judge said cast doubt on his honesty and reliability. The Tribunal found that the first allegation was not substantiated because the judge did not overall find the appellant's evidence to be manifestly untrue (see paragraph 97). It is not necessary to consider the Law Society's criticisms of that view. The allegation, as it stood for the purposes of the Rule 4(2) statement was impugned on the basis that it was an abuse. I shall turn to the form of the allegation and its particulars later in this judgment. But it is unnecessary at this stage further to consider the assertion that it amounted to an abuse because, it is plain from the transcript, that the Tribunal rejected that suggestion. The order for costs was not made on the basis that the allegation amounted to an abuse of process or was otherwise improper.

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 338).
45. In the instant appeal, in my view there was no basis for the order made by the Tribunal. The only ground on which it relied was that the appellant had been successful in his defence of the first allegation. That was not a sufficient ground to order the Law Society to pay any of his costs. There was no finding that the allegation was misconceived, without foundation or born of malice or some other improper motive. In those circumstances the order was without foundation. The mere fact that resistance to the first allegation required greater expenditure in time and money was not a basis for making the Law Society pay any of the appellant's costs.
46. Further, the order is silent as to the costs consequential on the Law Society's success in relation to the second allegation. There was no basis whatever for not ordering the appellant at least to pay the costs in relation to that allegation. Yet the Tribunal is silent as to those costs.
47. Accordingly, I would rule that the Tribunal was wrong to make the order that the Law Society pay 30% of the appellant's costs. It did not identify any proper basis for doing so.
48. The allegation that the appellant gave untruthful evidence was based on passages in Etherton J's judgment cited in the Rule 4 statement. Mr. Stewart QC asserted that it was not possible to say from those passages whether the appellant was accused of giving untruthful evidence knowing that it was untruthful or whether it was contended that he had merely made a mistake. Examination of the passages in Etherton J's judgment demonstrates clearly that he did find that the appellant gave evidence which he knew to be untruthful. The judge explains the relevance of each passage, cited by the Law Society, was to cast doubt on the appellant's honesty. If the passages were merely relied upon as showing that the appellant was unreliable, the judge would not have expressed himself in the way he did. Further, the responses of the appellant, whilst asserting that there was no specific finding by the judge that the evidence was "consciously untrue" demonstrates that the appellant knew that he was being accused of giving deliberately untruthful evidence (see in particular his responses to the allegation concerning the May and July memoranda). It is unnecessary to deal with this matter in greater detail since the charges were dismissed. But the inadequacy of the drafting did not, in my view, establish that the allegation amounted to an abuse. For that reason I am unable to identify any proper basis for making the Law Society pay any part of the appellant's costs.
49. The next question which arises, however, is whether this court ought to make any order of costs against the appellant. Normally, it must be stressed, the correct proportion of costs which a party should bear is a matter for the discretion of the Tribunal. This court has none of the advantages which the Tribunal had of assessing the extent to which the appellant should bear the costs of the hearing notwithstanding the fact that one of the allegations was unsuccessful. Since the solicitor brought these proceedings upon himself and since they were, in part, successful, normally I would expect the Tribunal to order the appellant to pay all of the costs, even though one of the allegations was not found to have been proved. After all, the allegation was of conduct unbefitting. It was found proved.
50. The Tribunal might, in some circumstances, reflect the failure of one of the allegations by making an order that the unsuccessful solicitor should not have to pay all of the costs. But that is a far cry from saying that he should be paid some of his costs. In the instant case it is not possible to reach any detailed view as to the proportion of time engaged in the first allegation. But we have seen the appellant's responses to the first allegation. I take the view that justice will be done by ordering the appellant to pay 60% of the Law Society's costs before the Tribunal. He brought these proceedings upon himself. He was unsuccessful and he has been suspended. The Law Society has successfully vindicated the integrity of the profession.
51. I cannot leave this aspect of the case without further reference to the first allegation. As I have recalled, the appellant sought to contend that it amounted to an abuse. The foundation for this suggestion was that the allegation merely recorded one aspect of Etherton J's judgment but never alleged that the evidence was untrue. Although the argument as to abuse led to a fruitless interlocutory battle in which the Law Society itself sought to amend the charge, I take the view that the whole problem could have been avoided by more careful and clearer drafting of the Rule 4 statement. The particulars in support of the allegation that the appellant had been guilty of conduct unbefitting a solicitor should have identified the parts of the evidence, given by the appellant, which the Law Society contended were untrue. It seems to me that to add the adverb "manifestly" was to invite dispute. As I understand it, the adverb "manifestly" was used for the purposes of alleging that the appellant knew his evidence was untrue. If that was what was alleged then there was no reason why that should not be said. The particulars could then have read that he gave the following evidence "knowing that it was untrue".
52. Those particulars should not be confused with the facts and matters relied upon in their support. The facts and matters relied upon in their support were contained in the judgment of Etherton J. Etherton J's judgment should have been cited as evidence in support of particulars which alleged the giving of untruthful evidence, knowing that it was untrue. There is no doubt but that the judgment of Etherton J. was itself evidence of the facts found (see Rule 30 of the Solicitors (Disciplinary Proceedings) Rules 1994). It formed a proper basis to support the allegation of giving untruthful evidence. The vice in the present statement in the instant case is that it confuses the allegation, namely that of giving false evidence knowing that it is false, with the facts and matters relied upon to support that allegation, namely the cited passages in Etherton J's judgment.
53. Had that clear distinction been made it is to be hoped that the arguments as to abuse and the discussion relating to the amendments sought by the Law Society could have been avoided.
54. As it is, I would for my part, dismiss this appeal and allow the Law Society's appeal as to costs substituting for the Tribunal's order an order that the appellant pay 60% of the costs of the disciplinary proceedings.

Mr Justice Stanley Burnton:

55. I agree.

LORD JUSTICE MOSES: For the reasons given in the judgment we hand down, the appeal is dismissed.

MR DUTTON: Your Lordship may be about to say and the respondent's appeal --

LORD JUSTICE MOSES: Yes.

MR DUTTON: My Lord, Mr Nigel Burroughs is here today before you for Baxendale-Walker. We have agreed a short minute of order to your associate.

LORD JUSTICE MOSES: Very well then, I will make that.

MR DUTTON: We do not oppose my learned friend's application for an extension of 14 days, but Mr Stewart did not have time to prepare an application to the Court of Appeal, so if he could have a further 14 days to make the application.

LORD JUSTICE MOSES: Yes, thank you very much. Yes, does that have to be put in the order?

MR DUTTON: My Lord, an order will have to be made, yes, that can be done.

LORD JUSTICE MOSES: Can you help the associate with the form of the order?

MR DUTTON: Yes.