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
		3rd May 2007

1. LORD JUSTICE GAGE: The appellant is a solicitor and a sole practitioner. He is now aged 58. He seeks to appeal an order by the Solicitors Disciplinary Tribunal made on 13th April 2006 by which he was struck off the solicitors' roll. He challenges the penalty but not the findings. He has not appeared before this court. There is no reason given by him for not being here but when his case was called on there was no appearance. We have been informed this morning by Ms Willetts, who appears for the Law Society, that the Law Society has had no contact with him for some months. In the circumstances, there being no application for us to adjourn this appeal, we shall deal with the matter now.
2. The appellant was born in 1949 and was admitted as a solicitor in 1973. He practised as a sole practitioner under the name of RF Williamson LLB Solicitor from an address in Scunthorpe in Lincolnshire. In August 2002, the Royal Bank of Scotland instructed the appellant to deal with the registration of a charge in its favour at the Land Registry and subsequently to the return of its title deeds. He gave an undertaking to the Bank to carry out those instructions both by accepting the bank's standard written instruction and by completing the Report on Title on 9th August 2002. He confirmed by a letter to the Bank dated 4th November 2002 that registration of the charge was in hand. On 15th January 2003, the Bank wrote to the appellant and on ten further occasions requesting return of the title deeds. The Bank received no response from the appellant. On 5th January 2004, the Bank complained to the Law Society about the appellant's failure to register the charge and his failure to respond to correspondence. In March 2004, the Law Society began to investigate the Bank's complaint. The Law Society wrote to the appellant on a number of occasions requesting his explanation for his failure to register the bank's charge and his failure to respond to correspondence. Although the appellant spoke to the Law Society three times by telephone between March and October 2004, confirming that he was dealing with the matter, he failed to provide a written response to the Law Society. In May 2005 it was resolved to refer the matter to the Law Society's Disciplinary Tribunal.
3. On 22nd September 2005, the appellant was declared bankrupt so his practising certificate was automatically suspended. In the same month the Law Society notified the appellant that he could not practise as a solicitor as his practising certificate had been suspended on account of his bankruptcy. The appellant contacted the Law Society to confirm that he would be sending some files to another firm of solicitors and saying that he would be writing to his clients. In October 2005, the Law Society started an intervention into the appellant's practice. The Intervention Agent appointed by the Law Society ascertained that, although the appellant had taken steps to notify some clients of the closure of the practice and the need to instruct an alternative firm of solicitors, this had not been done by a comprehensive or structured method. Many clients were severely inconvenienced because the appellant did not inform them that he would not be able to practise after 22nd October 2005 because of the bankruptcy order. Examples of six such clients were before the Tribunal supported by documentary evidence either from the clients or from newly instructed solicitors. These included the striking out of one of the client's claims to the Employment Tribunal and another client's debt action. A client had been told that her conveyancing file had been sent to another firm when it had not. A client found that the appellant's office was in darkness on the date for the completion of a purchase of a property and another client had not been notified of the date of a court hearing. The appellant had also written to a client about matrimonial and financial proceedings after the date of his bankruptcy when his practising certificate had been suspended.
4. An investigation into his practice was carried out by the Law Society. He was found to be in breach of a number of aspects in respect of his accounting records. They were, in summary: the accounting records were not available for inspection by the Law Society; the accounting records had not been maintained since 31st August 2004; no client bank account reconciliations were carried out between 1st September 2004 and 30th April 2005; no explanation was provided by the appellant for two suspense ledger accounts; bills were not distinguished between disbursements and fees or between disbursements paid and to be paid; copy bills were not kept in a central file; there were inadequate accounting proceedings which did not comply with the Law Society guidelines; a minimum cash shortage on one client account was found in the sum of £2,000; and there was misleading cost information including charging a disbursement of £40 upon completion of a Stamp Duty Land Transaction rather than as a fee.
5. The applicant did not attend the hearing before the Disciplinary Tribunal. Having heard evidence and submissions, the Tribunal found the complaints proved. It found the allegations to have been substantiated. It gave its decision and its reasons in the following terms:

"32. It was a serious matter for a solicitor to breach an undertaking given to an institutional client. A solicitor's failure to deal promptly and substantively with written and telephoned enquiries made by his professional regulatory body was also to be viewed seriously. Such failures prevented the regulatory body from exercising its proper duties and functions which were in place for the protection of the public.

33. A solicitor is bound to comply punctiliously with the Solicitors Accounts Rules. Those rules are in place for the protection of the public and any breach is to be deprecated.

34. Whilst all of these matters are serious the Tribunal takes the most serious view of the inconvenience which the Respondent caused to his clients. As a solicitor he had a clear and high duty to put the best interests of his clients first and he simply abandoned that important responsibility.

35. The Respondent's behaviour could serve only to damage the good reputation of the solicitors' profession. It was clear that the public had a need to be protected from a solicitor who was prepared to allow his behaviour to fall so far below the standards of probity, integrity and trustworthiness required of a member of the solicitors' profession."

Accordingly the Tribunal ordered that the appellant be struck off the Roll of Solicitors.

6. In a notice of appeal to this court, a number of grounds are put forward by the appellant. First of all, he submits that in general the penalty was too severe and excessive. The particular matters upon which he relies in support of that general ground are as follows. Firstly, he pointed to the fact that he had 30 years of unblemished practice. Secondly, that in the course of those 30 years he had complied with the Accounts Rules. Thirdly, he had entrusted the keeping of accounts to a professional accountants. His manual records, he submitted, were in good order. Fourthly, charges for the Land Transaction Return were contained in every client letter. His practice was the same as that followed by other firms within his area and, finally and fifthly, he was, he submitted, a man of the utmost integrity. He had been a Deputy District Judge for the last 14 years.
7. On behalf of the Law Society, Ms Willetts has put in a very helpful skeleton argument. In it she refers to a number of authorities dealing with penalties. They are Bolton v Law Society [1994] 2 All ER 486; Weston v Law Society [1998] 31 LS Gaz 34; and Newfield v Law Society [2005] EWHC 765 (Admin). From these it is possible to deduce the following principles. The finding of dishonesty against a solicitor will almost invariably lead to an order for the solicitor to be struck off the Roll of Solicitors. Secondly, 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, such lapses are less serious but they remain very serious indeed in a profession whose reputation depends upon trust. The penalty will depend on the facts of each case. Thirdly, account rules exist to provide the public with the maximum protection against improper and unauthorised use of clients' money. These place an onerous duty upon a solicitor to ensure that the account rules are observed. Fourthly, the body best fitted to assess the seriousness of professional misconduct is the Solicitors Disciplinary Tribunal. An appellate court should be slow to interfere with a sentence or penalty of that tribunal and should only do so in a clear case.
8. In my judgment, this was a severe penalty for a man with many years of unblemished practice but, as Ms Willetts on behalf of the Law Society points out in her skeleton argument, a solicitors' profession can only retain its reputation by demanding the highest standards of integrity from its members. Although no dishonesty was proved against the appellant, by his conduct he had failed to take into account the interest of his clients and put them to a great deal of inconvenience. It is the sort of conduct the seriousness of which is best able to be judged by the panel on the Law Society's Disciplinary Tribunal. For my part, I find myself quite unable to say that the penalty imposed upon this appellant was clearly excessive or wrong and I would dismiss this appeal.
9. MRS JUSTICE RAFFERTY: I agree.
10. LORD JUSTICE GAGE: Now costs.
11. MS WILLETTS: I apply, my Lord. I make an application for a summary assessment of costs and that is pursuant to costs practice direction 13.2, which is if the appeal is being dismissed.
12. LORD JUSTICE GAGE: Now we have a schedule, have we?
13. MS WILLETTS: Yes, indeed. I have prepared a schedule and this was served on Mr Williamson by special delivery. So he does have it. May I hand one up?
14. MRS JUSTICE RAFFERTY: We need now to modify, do we not, the hearing? 3 hours at 185.
15. MS WILLETTS: My Lady, I have also made an adjustment for some expenses.
16. LORD JUSTICE GAGE: This is a revised one, is it?
17. MS WILLETTS: It needs --
18. LORD JUSTICE GAGE: No, it is not, it is exactly the same. Oh, you have deducted £175.
19. MS WILLETTS: Yes, my Lord.
20. LORD JUSTICE GAGE: For what purpose? In respect of what?
21. MS WILLETTS: That was some expenses, for hotel accommodation, which we are not taking up. If we were to deduct another £500.
22. LORD JUSTICE GAGE: So deduct £675?
23. MS WILLETTS: Yes, my Lord.
24. LORD JUSTICE GAGE: What prospect have you of enforcing the order for costs?
25. MS WILLETTS: Well, my Lord, the appellant has been discharged from his bankruptcy but we still do not have any current details of his current financial position. But that would be a matter for the costs recovery team at the Law Society to pursue in the usual way.
26. LORD JUSTICE GAGE: I notice you have four or five hours travel. That is you personally, is that right?
27. MS WILLETTS: Indeed, my Lord. I am based in the Midlands in Birmingham.
28. LORD JUSTICE GAGE: Right, and is it normal for the Law Society to instruct someone to deal with a matter such as this outside the London area, where the hearing is going to take place?
29. MS WILLETTS: Yes, my Lord. It is common place where the advocate has appeared before the Tribunal for them to retain the charge of the matter.
30. LORD JUSTICE GAGE: And how much waiting is in the five hours travel and waiting?
31. MS WILLETTS: That is all travel in fact.
32. MRS JUSTICE RAFFERTY: So strike out "and waiting". So it should read five hours travel.
33. MS WILLETTS: Yes. In fact there has been some waiting this morning but I am not pursuing that. It will all even out. It is a summary assessment. (pause)
34. LORD JUSTICE GAGE: Well these things, the summary assessment that you ask for, are summary. Doing the best we can, we think that the appropriate sum is £6,750.
35. MS WILLETTS: Thank you, my Lord.
36. LORD JUSTICE GAGE: And we assess summary costs in that sum.
37. MS WILLETTS: Thank you, my Lord, I am obliged.
38. LORD JUSTICE GAGE: We are very grateful to you. Thank you very much.