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 WC2A 2LL
		28th June 2007

1. MR JUSTICE TREACY: The appellant, Kevin Gregory, appeals the decision of the Solicitors' Disciplinary Tribunal on 17th July 2006 that under section 43 of the Solicitors Act 1974, and as from 16th July 2006, no solicitor, registered European lawyer or incorporated solicitors practice should employ him without permission in writing of the Law Society and subject to any conditions they think fit to specify. Mr Gregory appeals against the Tribunal's order on the grounds that it was too severe, unnecessary and disproportionate.
2. Mr Gregory is 37 years old. The Law Society's application for the section 43 order arose out of events which occurred some years ago. Mr Gregory had in the past set up and worked for a charity called Legal Action which provided legal advice and assistance. He had also set up Mahoney Mea Legal Advisors which was not a firm of solicitors, but in due course he assisted in the setting up of a solicitors practice entitled Mahoney Mea of which the sole principal was a Mr David Charity. Mr Gregory was employed as the Practice Manager. The practice was registered with the Law Society on 1st October 2001. It is said to have been effectively abandoned by Mr Charity in November 2002. The Law Society eventually intervened in practice in early July 2003.
3. Initially there were seven allegations made against Mr Gregory. The case came on for hearing on 9th May 2006. On that occasion the Law Society warned the Tribunal that it wished to call an ex-girlfriend of his, a Miss Lowe, to give evidence in relation to allegation 2. This was a late application made by the Law Society and the solution which was devised was that the Tribunal would proceed to hear allegation number 1 on its own. The Chairman of the Tribunal stated that if that allegation was proved, the Tribunal would make the order sought by the Law Society.
4. The Tribunal proceeded to try allegation number 1 and found it to be proved. However, having found that allegation to be proved, it made a finding that Mr Gregory had not been guilty of dishonesty in relation to allegation number 1, and so in the light of that it did not make the order sought by the Law Society. The case therefore had to be adjourned for a hearing of the remaining allegations.
5. The subject matter of allegation 1 needs briefly to be considered. The allegation was to the effect that Mr Gregory had falsely represented that he personally was a solicitor, a trainee solicitor or an acting solicitor. There was documentation before the Tribunal which was unchallenged as to what it showed. It showed that in January 2002 Mr Gregory had signed a claim form accompanied by a statement of truth in such a way as to describe himself as a solicitor. In a later document concerned with those proceedings, he had described himself as the acting solicitor. In the following month in proceedings relating to the same matter, but now before the County Court rather than the High Court, he had represented himself to be a trainee solicitor. It was also clear from contemporaneous documentation that the local authority in those proceedings, against whom an action had been brought, and which was essentially being conducted by Mr Gregory, had been told by him that he was a trainee solicitor.
6. The fact was that he was not a trainee solicitor, having never entered into a trainee contract. He and Mr Charity had had some form of arrangement whereby Mr Charity said that he would provide training to Mr Gregory which could count towards the vocational stage of the training requirement. Forms had been submitted to the Law Society which had allocated numbers to Mr Charity and to Mr Gregory, but the number which was allocated to Mr Gregory did not relate to training, it was a practice manager number. That indeed was the role which Mr Gregory performed within Mahoney Mea.
7. The proceedings which came before the court in January 2002 were emergency judicial review proceedings to prevent a single mother being evicted from a hostel. Those are the proceedings in which the local authority was the respondent. Mr Gregory explained to the Tribunal that he had signed the necessary documentation in a hurry and so had not attended to the need for an accurate description of himself on the claim form and other documentation which he had filed with the court. He asserted that the High Court Judge handling the emergency application had been told by him what the position was and had not objected to his appearing, saying that he was in effect standing in the shoes of his principal. He therefore submitted to the Tribunal that whilst there were misdescriptions on the documentation, it had to some extent been sanctioned by the High Court Judge and was also the product of acting in haste in circumstances where he was making an emergency application to the court. Having had what he saw as the sanction of the judge, he had continued to represent himself in the litigation in the way described.
8. The conclusion of the Tribunal was this: that it was clear that the respondent had described himself as a trainee solicitor, or a solicitor, or as an acting solicitor when he was none of those things, but it found that he had done so without any intention to deceive or gain advantage. He had done so on his understanding of the ruling of the High Court Judge or believing that a description of his status reflected the true position. The Tribunal went on to express concern that an unqualified person should at any time and for whatever reason describe himself as a solicitor or similar when he was not. The Tribunal concluded that Mr Gregory had acted perhaps unwisely, and certainly recklessly, in making the assertions that he did, but it also accepted that the circumstances relating to the making of those inaccurate statements were difficult, and further recognised that he had been badly supervised by his principal. It found specifically that his actions were not deliberately dishonest.
9. Having made those findings, the Tribunal considered that although allegation 1 had been made out, there was no finding of dishonesty and said this: "In all the particular circumstances and on the facts of this allegation alone", the Tribunal had concluded that it would be neither just nor proportionate to impose an order pursuant to section 43. Those were the findings of the Tribunal in relation to the first allegation.
10. The matter then proceeded on 12th June 2006. A preliminary submission that allegations 3 to 7 could not be proved was accepted and those allegations were dismissed. The Tribunal then proceeded to try allegation number 2. The way in which the allegation was formally put was that Mr Gregory endeavoured to claim costs for legal advice at a level which he knew or ought to have known was incapable of being justified.
11. The circumstances are these, put briefly. In December 2000 Miss Lowe, at that time a girlfriend of Mr Gregory, was in dispute with her employer. She had lost her job. Mr Gregory assisted her in negotiations with those employers whilst he was operating as Mahoney Mea Legal Advisors, not, be it noted, a firm of solicitors. Mr Gregory claimed that his involvement had helped to secure an ex gratia payment of £36,000 to Miss Lowe. She was dismissive of the level of assistance that he had given to her. She denied that there was any agreement, and in particular denied Mr Gregory's assertion that there was an oral agreement between the two of them by which she agreed to pay Mahoney Mea Legal Advisors 10 per cent of any sum received from her former employers.
12. On the first day that Mr Gregory was employed by Mahoney Mea, the solicitors' firm, Mahoney Mea Legal Advisors assigned the debt which was allegedly owed by Miss Lowe. An invoice had been drawn up as evidencing the debt. The firm of solicitors, Mahoney Mea, then sued Miss Lowe in the local County Court for £3,600. Eventually this action was struck out.
13. At the Tribunal, as we have said, Miss Lowe gave evidence. Her evidence was to the effect that there had been no agreement of the sort suggested by Mr Gregory. The Tribunal found that it preferred the evidence of Miss Lowe to that of Mr Gregory and found that there was no oral agreement to charge the 10 per cent. However, the Tribunal acquitted Mr Gregory of dishonesty.
14. We turn now to the specific findings of the Tribunal. The Tribunal found that there had been no oral agreement of the sort contended for by Mr Gregory relating to the payment of charges. It found that there was no agreement for any fee. It held that, following from that finding, a claim that he was entitled to 10 per cent of Miss Lowe's settlement did amount to a claim to a level of costs which he knew or ought to have known was incapable of being justified. Having therefore found the allegation proved, the Tribunal went on to consider disposal of the matter. It found that although allegation 1 had not disclosed dishonesty, nonetheless, that behaviour in allegation 1, coupled with the behaviour in allegation 2, did disclose conduct which in its opinion led to the necessity for an order under section 43. In so holding, the Tribunal took account of the fact that the respondent had not had much experience in the legal profession, and appeared to be in ignorance of the strict rules and regulations by which members of the profession are bound. It is accepted though that he had been ill-served by his principal. It considered he had been left to his own devices in a way which was inappropriate. The Tribunal made observations that no doubt full and proper training would serve to enable the respondent, Mr Gregory, to recognise gaps in his knowledge, but it went on to say that he had a tendency to rush into situations with which he was not properly equipped to deal.
15. In relation to the second allegation, the Tribunal observed that in the case of Miss Lowe, perhaps distress over a broken relationship had clouded his judgment. Taken as a whole, and looking at both of the allegations, the Tribunal concluded that an order was appropriate.
16. The grounds of appeal assert that Mr Gregory's conduct was not of a nature which justified the making of an order, particularly when no finding of dishonesty had been made against him in relation either to allegation 1 or allegation 2. It was submitted that this was a case of somebody who had made mistakes rather than being guilty of any more reprehensible conduct and that section 43 should not be concerned with errors of that sort. Attention was drawn to the language of section 43(1)(a) which plainly envisages serious conduct by way of a criminal conviction for an offence of dishonesty, and it was submitted that that should inform the construction of section 43(1)(b) which applies in this case. It was submitted that section 43(1)(a) was an indicator of the level of conduct which must be found before section 43(1)(b) could come into play. It was submitted that the conduct found in this case fell far short of section 43(1)(b) conduct.
17. Moreover, some reliance was placed on observations made at the outset of the hearing on 9th May 2006 by the Tribunal Chairman. The Chairman said this:

"It is our view that it may well have been the case that if we dealt with allegation number 1, the false representation that he was a solicitor, or a trainee solicitor, or an acting solicitor, if that was made out . . . the result is almost de minimis. If that was made out then the order will be made. Therefore it seems before the Tribunal, and if that point was dealt with first, it might foreshorten the whole operation."

I say at once that I do not attach great weight to an ex tempore remark of that sort made at the outset of a hearing when the Tribunal was preparing to focus on allegation 1, and when allegation 2 had not been considered in depth or indeed any evidence heard. It may well be that the Chairman used the expression "de minimis" when he meant to use the phrase "de trop". Whatever the position, I do not consider that those remarks, made at the stage at which they were made, can assist Mr Gregory. What needs to be looked at and concentrated on is the findings which were actually made following a full hearing of both allegations.

18. I turn next to consider section 43 in its broad terms. Section 43 is not punitive in nature. It is there to protect the public, to provide safeguards and to exercise control over those who work for solicitors, in circumstances where there is necessity for such control shown by their past conduct. Its purpose is to maintain the good reputation of, and maintain confidence in, the solicitors' profession. An order made under section 43 does not prohibit a person from working for a solicitor. The requirement is that the Law Society's permission should be obtained so that they can scrutinise the circumstances in which such a person is to be employed. There are provisions for making an application to revoke an order, either to the Solicitors' Disciplinary Tribunal or to the Master of the Rolls.
19. In assessing the decision of the Solicitors' Disciplinary Tribunal, section 49(4) provides that this court has power to make such order as it thinks fit. In practice, this court will show appropriate respect for the Tribunal's judgment in relation to the question of misconduct and as to measures which are necessary to maintain standards and public confidence. At the same time, this court must and will exercise the function of considering what was done in fact was, in the circumstances of the individual case, just, appropriate and proportionate. It certainly would not be correct for this court to interfere with the decision merely because it might not have adopted the same course. There would need to be a clear case before we would interfere.
20. In my judgment, although the Tribunal concluded that allegation 1 alone would have been insufficient to justify making a section 43 order, it was entitled to take that conduct into account in considering whether, in combination with the findings in relation to allegation 2, an order was appropriate. The Tribunal's findings show that in relation to allegation 1 the appellant had acted recklessly and unwisely. In relation to allegation 2 he had made a claim for costs in a relatively substantial sum which he knew or ought to have known was incapable of being justified. He had acted with clouded judgment. In general, he was seen in relation to these two episodes to have been a person with a tendency to rush headlong into situations with which he was not properly equipped to deal.
21. True it is that he was acquitted of acting dishonestly in either case, but section 43(1)(b) does not require a finding of dishonesty. Such a finding would strengthen the case for an order, but conduct falling short of that may suffice if it was of a nature which made it undesirable for the person concerned to be employed in connection with a solicitors practice. In considering what type of conduct is undesirable I do not read section 43(1)(a) as necessarily limiting the natural meaning to be given to the words of section 43(1)(b). Section 43(1)(a) deals with criminal activity inside or outside the work environment. Section 43(1)(b) deals with activity wholly inside the work environment of the solicitors practice.
22. I note that in the case of Ojelade [2006] EWHC 2210 Admin, this court declined to interfere with findings made in relation to "a serious error of judgment" on a single occasion, albeit a judgment that the unwell respondent had been forced into making at the last minute. That gives some indication, although it is not binding upon this court, of the level of conduct which is capable of attracting an order pursuant to section 43(1)(b).
23. An argument was made to us that because section 43(1)(b) contains the phrase "with or without the connivance of the solicitor by whom he is or was employed", that the use of the word "connivance" may be of assistance in assessing the level of misconduct sufficient to satisfy section 43(1)(b). The first thing to observe is that the use of the noun is not referring to the conduct of the person before the Tribunal, the employed person. It is referring to the state of mind of the solicitor by whom he was employed. To my mind the use of the word "connivance" is merely there to indicate a broader state of mind on the part of the solicitor than simple knowledge or consent. Mr Treverton-Jones has sought to import some pejorative undertones into the use of the word "connivance" of a sort which supports his submission that particularly grave misconduct is required to satisfy section 43(1)(b). I do not accept that submission. The word "connivance" is a perfectly ordinary noun used for a particular purpose to define the mental state of the solicitor. It does not assist, in my judgment, in construing the subsection.
24. The expressions of hope in the findings that proper training and good work experience might overcome the type of flawed behaviour which the Tribunal had found are not, to my mind, inconsistent with the order made. The order does not prohibit employment by a solicitor. It requires that such employment be approved, no doubt in circumstances where the Law Society is satisfied that the public interest is protected.
25. I am satisfied that these matters were occasioned in the course of a solicitors practice. There was a suggestion, particularly in relation to allegation number 2, that what had occurred was tangential to the solicitors practice, but it is a plain fact that it was the solicitors, Mahoney Mea, who sued on the alleged agreement between the parties based on an assignment which they had taken from Mahoney Mea Legal Advisors, and it was the solicitors' firm which therefore was the claimant in the action before the County Court.
26. I have come to the conclusion that the Tribunal was entitled to decide that a section 43 order was appropriate. I do not consider that it was wrong or unreasonable to have done so, even having regard to the mitigating circumstances it identified. The Tribunal was looking at an accumulation of conduct which led it to conclude that it would not be desirable for Mr Gregory to be employed by a solicitor in connection with his practice. The reckless use of inappropriate descriptions of himself in allegation 1, coupled with the pursuit of the claim of costs which had never been the subject of any agreement, in circumstances where he used the vehicle of a solicitor's firm to pursue that unjustified claim against his former girlfriend, are capable of falling within the subsection. This is particularly so when the appellant had been party to the assignment to the solicitors, which is a document which appears to be highly questionable and to contain one, if not two, material false statements, and when the invoice which was alleged to evidence the agreement between himself and his ex-girlfriend was also questionable in nature.
27. In the end, this was a matter for the Tribunal to assess. The level of misconduct on the part of the appellant was, to my mind, established, notwithstanding the fact that he had deluded himself into the impossible assertions which he put forward. The overall circumstances were such that a need was demonstrated, by reason of his conduct, for this individual to work under closer supervision if he is to work in the future in the employment of a solicitor. For those reasons, I would dismiss this appeal.
28. LORD JUSTICE HUGHES: I agree. I add this only in deference to Mr Treverton-Jones' submission as to the construction of section 43. I am clear that subsection (1)(a) neither governs subsection (1)(b) nor significantly assists in its construction. Subsection (1)(a) enables the Tribunal to say that a criminal offence of dishonesty may justify an order on the basis that it is undesirable that the person be employed in a solicitors' firm, even if that offence has no connection at all with his work in the practice, and even if there is no complaint whatever about his work in the practice. It by no means follows that where what is in question under subsection (1)(b) is conduct which does arise in the course of the solicitors' practice, the same kind of serious behaviour alone justifies the conclusion that it would be undesirable for him to be so employed. On the contrary. I too would dismiss this appeal.
29. Is there any other application, Mr Williams?
30. MR WILLIAMS: My Lord, I make an application for costs in favour of the Law Society. My learned friend's instructing solicitors were only able to come on the record yesterday, so whilst I prepared a schedule of costs they have not seen it and I am told they do not know enough about the case to be able to advance submissions so my application will have to be for detailed assessment.
31. MR TREVERTON-JONES: I cannot resist the application.
32. LORD JUSTICE HUGHES: You would prefer it to go to detailed assessment.
33. MR TREVERTON-JONES: My Lord, yes.
34. LORD JUSTICE HUGHES: Very well. With costs, Mr Williams, for detailed assessment.
35. MR WILLIAMS: I am very much obliged, my Lord.
36. LORD JUSTICE HUGHES: Thank you very much.
37. MR TREVERTON-JONES: My Lord, just one other matter. We are always encouraged to apply for permission to appeal straight away in the court below before going off to the Court of Appeal. My Lord, can I, as it were, reserve the position. I do not know whether your Lordships are sitting together over the next seven days.
38. LORD JUSTICE HUGHES: We are.
39. MR TREVERTON-JONES: Would your Lordships be prepared to accept a written application should Mr Gregory wish to apply?
40. LORD JUSTICE HUGHES: Certainly.
41. MR TREVERTON-JONES: Thank you very much.
42. LORD JUSTICE HUGHES: Thank you both very much indeed.