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
		11th March 2008

1. MR JUSTICE LLOYD JONES: This is the substantive hearing of an appeal pursuant to section 49(1)(a) of the Solicitors Act 1974 against an order of the Solicitors Disciplinary Tribunal made on 21st November 2006. By that order, the appellant was struck off the Roll of Solicitors.
2. The appellant was admitted as a solicitor on 1st August 1986. He was born on 21st June 1961. In 1992 he became a partner in the firm of Kofteros & Yerolemou. In 1998 his partner, Maria Kofteros, left the partnership and he became a sole practitioner. This firm became the subject of an intervention by the Law Society in November of 1999 in circumstances to which I shall return. In June of 2000 the appellant resumed practice with a firm called MacMillans where he had previously been a partner.
3. The present proceedings were commenced on 23rd March 2006 and contained the following allegations:

(1) That the appellant had failed and/or delayed in complying with three undertakings to Bristol & West Plc made on 28th June 2001.

(2) That he failed to keep his client informed of the reason for the delay in complying with these undertakings.

(3) That he failed and/or delayed in replying to correspondence from the Law Society.

(4) That he made representations both orally and in writing to the Law Society which were misleading and/or inaccurate.

(5) That he failed and/or delayed in complying with an undertaking given to the Bank of Cyprus dated 19th July 2001.

(6) That he failed to keep his client, the Bank of Cyprus, informed of the reason for the delay in complying with the undertaking.

(7) That he failed and/or delayed in replying to correspondence from the client.

(8) That he failed and/or delayed in complying with an undertaking given to the Bank of Cyprus dated 2nd December 2004.

The particulars of these allegations are set out at paragraph 5.1 to paragraph 8 of the statement pursuant to rule 4(2) of the Solicitors Disciplinary Proceedings Rules of 1994:

"5. Allegations (i), (ii), (iii), (iv) and (vii) - Bristol & West Plc

5.1 . By letter dated 20th January 2004 Bristol & West Plc made complaint to the then Office for the Supervision of Solicitors concerning the Respondent's conduct. The Respondent received three mortgage instructions from the Bank dated 31st May, 5th June and 6th June 2001 in respect of their borrowers, Mr Kalopedis, Mr Miltiadou and Mr Papaloizou in relation to three flats at 222 Archway Road London (pages 1-2). The instructions were to complete and register a mortgage in respect of each borrower. The Respondent completed Certificates of Title in respect of each of the three flats all signed and dated 28 June 2001, containing an undertaking to the effect that;

'we, the Conveyancers named above, give the Certificate of Title set out in the Appendix to Rule 6(3) of the Solicitors Practice Rules 1990 as if the same were set out in full, subject to the limitations contained in it' (pages 4, 7 and 10).

The Bank was concerned that contrary to the Respondent's undertaking, he had failed to effect registration of the leasehold titles.

(Note, the Certificate of Title set out in the Appendix to Rule 6(3) at paragraph (c) reads '... Will within the period of protection afforded by the searches referred to in paragraph (b) above;

(i) complete the mortgage;

(ii) arrange for stamping of the transfer if appropriate;

(iii) deliver to the Land Registry the documents necessary to register the mortgage in your favour and any relevant prior dealings;

(iv) effect any other registrations necessary to protect your interests as mortgagee)' (page 19 of The Guide to the Professional Conduct of Solicitors).

5.2 . The freehold title was registered on 31st March 2003 but as at the date of the complaint the registration of the three leasehold titles had not been effected.

5.3 . In response to correspondence from Bristol & West Plc the Respondent wrote by letter dated 20th February 2002 indicating that registration had not yet been completed and that 'we anticipate registration will be completed within the next two to three weeks' (page 4). By letter dated 19th April 2002 Bristol & West wrote to the Respondent indicating that they were unable to trace a copy of the priority search and that the title deeds had not been received. The Respondent was asked to provide details as to the Title number and when Bristol & West could expect to receive the Deeds (page 5). The Respondent failed to reply to that letter and it was necessary for Bristol & West to write again on 14th May 2002 expressing concern as to the Respondent's failure to reply to their correspondence. They requested an explanation for the delay in registration of the charges (page 6). The Respondent failed to reply and it was necessary for Bristol & West to write to him again by letter dated 21st June 2002 stating 'unless we hear from you in writing within 7 days with either the Title numbers and current searches or the Deeds, we will place a caution against each property with a charge of £100 per caution' (page 7). This prompted the Respondent to reply by letter dated 28th June 2002 in which he apologised for the delay, indicating he was updating the searches and would revert 'in the course of the next week in this respect' (page 8). Contrary to the Respondent's assertions in his letter of 28th June, he failed to update the searches and provide the information requested and it was necessary for Bristol & West to write again by letters dated 12th July 2002, 5th August 2002 and 8th October 2002 (pages 9-11 herein). The Respondent replied by letter dated 18th October 2002 apologising for the delay and stating 'we would expect that registration will be completed within 4-6 weeks and we shall renew our Land Registry searches and forward copies to you in the next few days' (page 12). The Respondent failed to comply with the terms of his letter and it was necessary for Bristol & West to write to him on 12th November 2002, 19th December 2002, 25th January 2003 and 3rd February 2003 (pages 13-18 herein).

5.4 . The Respondent replied on 7th February 2003 enclosing copies of the priority searches and advising that registration would be completed within the priority period and that 'due to an oversight the leases have not been lodged for first registration but we can assure you that we shall proceed urgently with this matter so that registration will be completed within the priority period conferred by the enclose copy priority searches' (page 19). (Copies of the searches are exhibited at pages 2 1-23, the expiry date of which was 11th March 2003).

5.5 . By letter dated 13th March 2003 Bristol & West wrote to the Respondent requesting confirmation that he had lodged the leases and had made application to register their charges (page 24).

5.6 . By letter dated 19th August 2003 Bristol & West wrote to the Respondent requesting confirmation as to when the leasehold titles would be completed (page 29). The Respondent wrote to Bristol & West by letter dated 26th September 2003 indicating that 'we are dealing with the registration formalities as a matter of urgency and we shall be renewing the Land Registry Searches today. We anticipate registration should be complete within two weeks from today's date and we would be obliged if you would bear with us during this period' (page 30).

5.7 . Bristol & West then wrote to the Respondent by letters dated 30th September 2003, 30th October 2003, 4th December 2003 and 20th January 2004 requesting a copy of the AP1 and a copy of the acknowledgment of the application to the Land Registry (pages 31-34). The Respondent failed to reply to that correspondence which then resulted in Bristol & West making complaint to the Law Society.

5.8 . Following the complaint, the Society telephoned the Respondent on 8th March 2004. The Respondent was unable to give any reasons for the delay but agreed that he would register the three leasehold titles by 31st March 2004 (page 35). Contrary to his representation he failed to have the registrations completed by 31st March. Following a telephone call to the Respondent's office on 14th April 2004 the Law Society wrote to him by letter dated 15th April 2004 confirming the consequences of his failure to comply with the undertakings and effect registration of the leasehold titles (pages 37-38).

5.9 . The Respondent replied by letter dated 23rd April 2004 and confirmed that registration had not been completed but 'I anticipate that this will be done shortly' (page 39). On 23rd June 2004 the Society telephoned the Respondent. The Respondent indicated that he was trying to sort the matter out and that 'should be done within the next 7-14 days'. He said it is his priority to get this file off his desk (page 41). Nothing further was heard and it was necessary for the Society to telephone the Respondent again on 20th July 2004. He said that he was sorting the matter out but it was taking longer than he anticipated and he expected to complete it in another seven to fourteen days (page 42). The Respondent failed to comply with the representations he made to the Society.

5.10 . The Society wrote to the Respondent by letter dated 21st September 2004 seeking his formal explanation in relation to the complaint of Bristol & West Plc (pages 43-47). The Respondent was asked to reply within fourteen days but failed to do so. On 1st October 2004 the Society telephoned the Respondent's office but were advised he was on holiday until 21st October 2004 (page 48). The Society telephoned the Respondent on 22nd October 2004, following his return from holiday when he apologised for the delay and said that he would send a reply by the following Monday (page 49). Contrary to the Respondent's assertion, he failed to provide a response and it was necessary for the Society to telephone him again on 11th November 2004. The Respondent indicated he would fax a reply by close of business the following day (12th November 2004) (page 50). Contrary to the Respondent's assertion that he would reply by the following day, he failed to do so. The Society telephoned him on 22nd November when he indicated he would reply 'by the end of the week' (page 51). The Respondent failed to do so.

5.11 . By letter dated 7th December 2004 the Society wrote to the Respondent pointing out his failure to reply to earlier correspondence and requesting a response within seven days (page 52). The Respondent did then provide a response by letter dated 14th December 2004 in which he apologised for the delay, said he had been under extreme pressure, had lost a member of staff but accepted he should have responded sooner. In relation to the registration the Respondent said 'I am endeavouring to deal with the file in question and the situation is that I need to pay some stamp duty penalty, (the leases have been presented for stamping) and once this has been done the leases will be immediately submitted for registration at the Land Registry' (page 53).

5.12 . On 22nd December 2004 the Society telephoned the Respondent when he advised that he hoped the registration would be dealt with by the end of January 2005 (page 55). The registration was not effected by the end of January 2005 or at all, and it was necessary for the Society to telephone the Respondent on 17th February 2005 when he advised that it had not been done (page 57).

5.13 . The Respondent has failed to provide a full and detailed response to the complaint or comply with the terms of his undertaking. The period of delay from the date of the undertaking to the matter being determined by the Adjudicator on 27th June 2005 represents a delay in the performance of the undertaking of approximately four years. It is an implied term of an undertaking that it be performed within a reasonable time, which the Respondent failed to do. Further, the Respondent was obliged to keep Bristol & West informed. He failed in that duty.

5.14 . In addition, since the initial instruction in 2001 until September 2003 the Respondent only wrote to Bristol & West on five occasions which were in response to Bristol & West's enquiries and not in compliance with his obligation to keep Bristol & West informed of his reasons for the delay.

5.15. The matter was considered by an Adjudicator on 27th June 2005 who resolved to refer the conduct of the Respondent to the Solicitors Disciplinary Tribunal.

6. Allegations (iii), (v), (vi) and (vii) - Bank of Cyprus (Undertaking - 19th July 2001)

6.1 . By letter dated 19th November 2004 Bank of Cyprus UK made complaint to the Law Society in respect of the Respondent's practice. The Bank of Cyprus (London) Limited had instructed the Respondent's practice to take a first legal charge over a property in connection with an advance in the sum of £180,000. Bank of Cyprus UK took over the business of Bank of Cyprus (London) Limited on 1st November 2004 (pages 68 69).

6.2 . The Certificate of Title signed by the Respondent on 19th July 2001 included an undertaking in identical terms to that set out at paragraph 5.1 above (pages 72-74).

6.3 . The Bank of Cyprus UK indicated that in April 2004 they discovered that the mortgage had not been registered and that the Bank's letters to the Respondent seeking explanation and update had not been responded to.

6.4 . The letter of instruction to the Respondent from the Bank of Cyprus (London) Limited dated 27th March 2001 is exhibited at pages 70-71 herein.

6.5 . By letter dated 1st April 2004 the Bank of Cyprus UK wrote to the Respondent requesting an update as to the registration formalities and requesting documentation enabling them to release the Respondent from the terms of the undertaking (page 75). The Respondent failed to reply.

6.6. By letter dated 29th June 2004 the Bank of Cyprus UK wrote to the Respondent again, requesting information and stating that the mortgage had not been registered and that the Bank had, in fact, undertaken a search with priority to protect its own position (page 76). The Respondent's firm did reply by letter dated 12th July 2004 apologising for the delay and stating that 'we have located the file and although there is a signed charge form in the file we do not appear to have applied for registration at the Land Registry. We apologise for this oversight. We are immediately attending to the registration formalities and shall, of course notify you on completion of registration' (page 77).

6.7 . By letter dated 29th July 2004 the Bank wrote to the Respondent seeking an update as the registration (page 78). No reply was received.

6.8 . Accordingly, by letter dated 28th August 2004 the Bank of Cyprus UK wrote to the Respondent indicating that its own enquiries had revealed that the Bank's charge had still not been registered despite assurances from the Respondent in his letter of 12th July 2004 that they were attending to the registration formalities. The Bank indicated that it was still relying upon the Certificate ot Title and Undertaking dated 19th July 2001 and in the event that no response was received within seven days the matter would be reported to the Office for the Supervision of Solicitors (page 79). The Respondent failed to respond within the seven days stipulated but did reply by letter dated 20th September 2004 in which he apologised and said 'we hope to have registration completed shortly whereupon we shall contact you again' (page 80).

6.9 . By letter dated 30th September 2004 the Respondent wrote to the Bank of Cyprus apologising for the delay and stressing that registration would be completed shortly (page 81). Nothing further was heard from the Respondent and the Bank then made complaint to the Society by letter dated 19th November 2004.

6.10 . The Society telephoned the Respondent on 21st April 2005 who confirmed that he was the person dealing with the matter and that he was trying to resolve same.

6.11 . By letter dated 27th April 2005 the Society wrote to the Respondent seeking his formal explanation in relation to the complaint (pages 82-85). The Respondent failed to reply to that letter. Accordingly the Society wrote to the Respondent again by letter dated 13th May 2005 requesting a formal response within eight days (pages 86-87). A copy of the correspondence was also sent to the Respondent's partner, Mr Alison. The Respondent's firm did write by letter dated 20th May 2005 to Messrs Gordons (the firm instructed to investigate the matter on behalf of the Society) indicating that the Respondent had been away from the office and that a full response would be provided by Monday 23rd May (page 89). No further communication was received from the Respondent. On 27th May 2005 a caseworker telephoned the Respondent, who indicated that a response would be provided by 31st May 2005. No response was provided.

6.12 . By e-mail dated 15th June 2005 the Bank of Cyprus UK provided an update as to the position, which confirmed that the executed legal charge was received from the Respondent's practice on 19th May 2005, but had not been appropriately completed and following the Bank obtaining the borrower's consent to complete the document, the legal charge was completed on 31st May 2005. The Bank confirmed that their Securities Department would be effecting registration of the charge with the Land Registry and whilst the matter should then be resolved they indicated a desire to pursue the complaint (page 90). By letter dated 10th August 2005 the Bank of Cyprus UK provided further representations (page 97).

6.13 . By letter dated 10th August 2005 Mr Peter Alison, the Respondent's partner, provided a response in which he confirmed that the Respondent dealt with conveyancing and he dealt with litigation (pages 98-99). He said 'in short, I was unaware that this particular undertaking had been given and unaware that it had not been complied with. Mr Yerolemou will have full knowledge of the file and will, no doubt, explain what went wrong. He has not discussed it with me, although I agree that the undertaking was not complied with and that there was undue delay' (page 99).

6.14 . The Respondent failed to provide a response to the complaint.

6.15 . The matter was considered by an Adjudicator on 27th September 2005 who resolved to refer the Respondent's conduct to the Solicitors Disciplinary Tribunal.

7. Allegations (vii) and (viii) - Bank of Cyprus (Undertaking 2nd December 2004)

7.1 . By letter dated 12th August 2005 Bank of Cyprus UK made complaint to the Law Society concerning the conduct of the Respondent's practice (pages 100-101). On 20th July 2004 the Respondent was instructed by the Bank to take a first legal charge over a property in connection with an £80,000 mortgage advance by the Bank to one of its customers. The letter of instruction to the Respondent's firm dated 20th July 2004 is at pages 102-103.

7.2 . The Certificate of Title was signed by the Respondent on 2nd December 2004, and included an undertaking in identical terms to that set out at paragraph 5.1 above (pages 104-106).

7.3 . The Bank of Cyprus UK confirmed in its letter dated 12th August 2005 that the Bank of Cyprus UK took over the business of Bank of Cyprus (London) Limited on 1st November 2004 pursuant to an order of the High Court. The effect of that was that between instructions being provided to the Respondent and the matter completing, the instructing bank changed, although the impact of the change should have been minimal because the High Court ordered all rights and obligations of Bank of Cyprus (London) Limited to be transferred to Bank of Cyprus UK so that any undertaking given to Bank of Cyprus (London) Limited became an undertaking to Bank of Cyprus UK. The Bank emphasised that it was important that security taken after 1st November 2004 was in favour of Bank of Cyprus UK.

7.4 . By letter dated 8th February 2005 Bank of Cyprus UK wrote to the Respondent's firm informing them that they had searched the Land Registry and Companies House registers and discovered that the charge had not been registered. The position was even worse because the property was still charged to the financial institution that was supposed to have been redeemed following the advance by Bank of Cyprus UK (page 107). The Respondent failed to reply. By letter dated 12th April 2005 the Bank of Cyprus UK wrote to the Respondent's firm again, indicating that a search at Companies House had revealed that the charge had been registered at Companies House, but was in the name of Bank of Cyprus (London) Limited and the Respondent was requested to take steps to rectify the error (page 108). The Bank of Cyprus UK indicated in its letter of complaint that the Respondent's firm did reply on 12th July indicating the application had been re-lodged with the Land Registry and they enclosed the Certificate of Registration of mortgage at Companies House which was still registered in the name of Bank of Cyprus (London) Limited. The letter was acknowledged by the Bank on 13th July 2005 with a request that they provide a copy of the Title information document and original legal charge form when registration was completed (page 109). The Respondent failed to reply to that correspondence.

7.5 . By letter dated 22nd July 2005 the Bank of Cyprus UK wrote to the Respondent seeking clarification as to whether registration had been completed and indicating that in the event that a reply was not received within 10 days the matter would be reported to the Law Society (page 110). The Respondent failed to reply.

7.6 . Following the complaint being put to the firm, Mr Peter Alison responded to the Society by letter dated 15th November 2005 (pages 111-113). He indicated it was not clear when Bank of Cyprus (London) instructed MacMillans to act on their behalf, which is surprising having regard to the letter from the Bank dated 20th July 2004 setting out clear instructions. There was, and is no confusion as to when instructions were received. Mr Alison purported to explain the reasons for the difficulties in dealing with the registration, making reference to the change in name at the Bank but offering no explanation for the delay between February and July 2005.

7.7 . In conclusion Mr Alison said on behalf of the firm that 'the Bank's instructions were quite clear in their letter of instruction that namely we were to register the title in the name of Bank of Cyprus (London) Limited. We accept that they changed those instructions at or about the time of completion and the failure to carry out the belatedly amended instructions was an oversight' (page 113). By letter dated 23rd November 2005 Bank of Cyprus UK provided further representations to the Society. The Bank confirmed that insofar as they were concerned the letter of 20th July 2004 was the letter of instruction, and provided further representations in relation to the comments of Mr Alison's letter dated 16th November 2005 (pages 114-115). By letter dated 28th November 2005 the Respondent provided further representations and enclosed office copy entries showing the Bank of Cyprus UK had now been registered (page 116).

8. By letter dated 9th February 2006 the Society wrote to the Respondent seeking his formal explanation in relation to the complaint (pages 120-123). The Respondent failed to reply. By letter dated 24th February 2006 the Society wrote to him again requesting a response within eight days (pages 124-125). The Respondent failed to reply within the stipulated time period but did reply by letter dated 27th February 2006. He enclosed copy letters dated 14th November 2005 from Mr Alison and his letter dated 28th November 2005 to which he said he could add nothing further (pages 127-128).

4. These allegations were admitted prior to the hearing before the Tribunal on 21st November 2006. As a result, the proceedings before the Tribunal on that occasion were limited to matters of mitigation only. The Tribunal's decisions and its reasons are set out in paragraphs 93 to 102 of its findings:

"93. Parties in conveyancing transactions place a heavy reliance upon the solicitors they instruct to ensure that the title to property purchased or charged is perfected and that mortgage advance monies are properly secured and have appropriate priority.

94. In giving the certificate of title undertakings the Respondent gave unequivocal undertakings to Bristol & West Plc that he would take the steps necessary to perfect that lender's security. He did not do so. If solicitors could give undertakings, in particular in conveyancing transactions, without absolute certainty that such undertakings could be relied upon, the system on conveyancing in England and Wales would have to be substantially revised at great cost and inconvenience to members of the public who are buying, selling and mortgaging properties.

95. The failure on the part of a solicitor to reply fully and promptly to correspondence from his own professional body prevents that body from fulfilling its proper role as a regulator and thereby places the public at risk.

96. Further, the Law Society was prevented from acting properly as a regulator by the fact that the Respondent had made oral and written representations to the Law Society that were misleading and/or inaccurate. Indeed the Respondent had given a number of assurances and had complied with none of them. He had failed in his important duty to keep his client, Bristol & West, fully informed at all times. The same criticisms of the Respondent applied in the Bank of Cyprus matters, although his failures had not been on such a large scale in those matters.

97. The Tribunal was deeply concerned that the Respondent appeared not to be aware of his fundamental and important obligation to comply with professional undertakings. He appeared to be unaware of the unacceptable inconvenience and anxiety that failure to respond to correspondence and keep parties fully informed generates or indeed the importance of being frank and honest, not only with his clients but also with the Law Society.

98. The Tribunal has given the Respondent credit for the testimonials written in his support. It has noted his assurances that such matters will not again arise. It has also taken into account the fact that the Respondent had appeared before the Tribunal on an earlier occasion.

99. The Respondent has offered no reasons or explanation for his failures and asked the Tribunal to take into account that the conveyancing matters concerned represented only a very small proportion of his overall conveyancing workload.

100. Having taken all of these matters into account, the Tribunal concluded that the Respondent's failures, which included failures to comply with professional undertakings and making misleading and/or inaccurate explanations to the Law Society, rendered him unfit to be a solicitor.

101. In order to protect the public and the good reputation of the solicitors' profession the Tribunal concluded that it was both appropriate and proportionate to order that the Respondent be struck off the Roll of Solicitors.

102. The Respondent had indicated his agreement to be responsible for the Applicant's costs and the quantum of the same and the Tribunal therefore ordered the Respondent to pay the Applicant's costs in the agreed fixed sum of £8,000."

5. The approach which this court is required to adopt to an appeal of this sort is set out in detail in the judgment of Sir Thomas Bingham MR (as he then was) in Bolton v The Law Society [1994] 1 WLR 512, in particular in a well-known passage at page 518 B to 519 A:

"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 by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. 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.

It is important that there should be full understanding of the reasons why the Tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the Tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires."

After considering the harsh consequences which sanctions may impose upon individual solicitors, the Master of the Rolls concluded that the reputation of the profession is more important than the fortunes of any individual member. Membership of the profession brings many benefits, but that is a part of the price.

6. In Nahal v The Law Society [2003] EWHC 2186 Admin, Dyson LJ considered the effect of the Human Rights Act 1998 on Bolton v The Law Society and, at paragraphs 31 to 33, he adopted the general approach taken by Sir Thomas Bingham in Bolton. He considered the Human Rights Act in no way disturbed or qualified the principles themselves. However, Dyson LJ did consider that that Act affected the general approach of the court to an appeal of this kind. He referred to Langford v Law Society [2002] EWHC 2802 Admin and to the leading judgment of Rose LJ in that case. Rose LJ considered that a greater flexibility is now appropriate in dealing with these appeals. Rose LJ expressed it in this way:

"We must now apply a less rigorous test. We should simply look at the Tribunal's decision in the light of the whole circumstances of the case, always having due respect for the expertise of the Tribunal and giving to their decision such weight as we should think appropriate."

Later Rose LJ added:

"Nevertheless, in following this approach we think that it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist Tribunals in appeals of this kind."

7. Before us, Mr Phillips QC, on behalf of Mr Yerolemou, has advanced a number of submissions. First, the point is made that there is in this case no suggestion of any dishonesty on the part of the appellant or of personal gain from wrongdoing. In essence, the allegations amount, Mr Phillips says, to administrative failings, albeit serious ones which involved a breach of undertakings. It is Mr Phillips' submission that the character of the offences in the present case did not justify a striking off.
8. It is, of course, clearly established that solicitors may be struck off the Roll for offences not involving dishonesty or personal gain. That follows from the passage in Bolton which I have cited above. Moreover, Mr Miller, who appears on behalf of the respondent, has referred us to other authorities where the draconian sanction of striking off the Roll has been applied, notwithstanding the fact that the cases have not involved dishonesty in any sense. He has referred us to Weston v The Law Society, 29th June 1998, CO/225/1998, and to Williamson v The Law Society [2007] EWHC 1258 Admin Nevertheless, it is important to bear in mind that we are here concerned with a case in which there are no allegations of dishonesty but rather with allegations of a persistent neglect of the interests of the client and a persistent failure to respond to reminders, both from the client and in turn from the professional body, the Law Society.
9. Secondly, Mr Phillips submits that the three cases which formed the subject of the proceedings before the Tribunal represent a small minority in the volume of work undertaken by the appellant. He says that all the rest of the work was undertaken without problem and that the nature of the work is such that, had there been any problem, it is clear that there would have been similar complaints made by other clients. The evidence before the Tribunal was that over the relevant period the appellant handled 1,140 applications and 633 purchases. The point is made that these complaints were the first complaints of the kind made against the appellant. Moreover, before the Tribunal the appellant produced numerous testimonials from clients which support Mr Phillips' contention that he is capable of being a competent and trustworthy solicitor.
10. However, we are bound to say that it is regrettably the case that in these three cases, even though they do represent a tiny minority of the volume of work undertaken by the appellant, there was a persistent failure on the part of the appellant to comply with his undertakings, notwithstanding the fact that he was repeatedly reminded and chased by his clients and by the regulatory body itself. To my mind it is a particularly serious feature of misconduct that there was a failure to respond to the repeated reminders, both by clients and by the Law Society.
11. Thirdly, Mr Phillips submits that there is no evidence of any loss, although it appears that this may be subject to the qualification that some loss may have been suffered in the additional costs of obtaining priority in the transactions to which the undertakings related. He says that in respect of the charges relating to the Bank of Cyprus (two of the three matters which form the subject of these proceedings), there was evidence that the charges were subsequently successfully registered and that the bank therefore suffered no loss.
12. Nevertheless, in my view, the respondent is correct to draw attention to the importance of compliance with undertakings, both generally and in respect of such property transactions in particular. Here, Mr Miller has referred us to the judgment of Smith LJ in Briggs v the Law Society [2005] EWHC 1830 Admin where she said:

"Undertakings are the bedrock of our system of conveyancing. The recipient of an undertaking must be able to assume that once given it will be scrupulously performed. If property purchasers and mortgage lenders cannot have complete confidence in the safety of the money they put into the hands of a solicitor in the course of a property transaction, our system of conveyancing would soon break down. The breach of an undertaking given by a solicitor damages public confidence in the profession and in the system of undertakings upon which property transactions depend. Accordingly, if fault is shown, as it has been here, the matter must be treated seriously."

I also bear in mind that in the circumstances of these transactions -- certainly in the case of the Bristol & West transaction -- the undertaking given by the appellant was in fact the only protection which the Building Society enjoyed in respect of its property rights.

13. Mr Phillips says, fourthly, that there were considerable mitigating circumstances in this case. Before turning to consider those, it is necessary to say something in a little more detail about the background to this matter. In 1998 Maria Kofteros left the practice which she was running and the respondent assumed control of it. It was into that practice that the Law Society intervened in November of 1999. There had been a joint operation between Her Majesty's Customs and Excise and the Metropolitan Police leading to the arrest of former clients of the firm. They were charged in relation to a VAT fraud and money laundering offences. The appellant had not been complicit in these matters but at that time he fell under suspicion.
14. On 18th March 1999 the Law Society Investigation Unit conducted an inspection of the books of that firm. It was demonstrated that the books and bank accounts were up to date and professionally managed. Nevertheless, there was a cash shortfall as a result of Legal Aid funds incorrectly held in office bank accounts in a total sum of £3,200 odd. There had also been a duplicated receipt of professional disbursements paid by the Legal Aid Board, two professional disbursements of £350 and £250 respectively, which had not been paid on time.
15. The Law Society determined to intervene into that practice on 11th November 1999. Representatives of the Law Society and investigating officers from the Customs and Excise and Metropolitan Police then attended the offices where the respondent was arrested. Several months later, the respondent was notified that he was not to be the subject of any criminal proceedings. Nevertheless, the effect of the intervention was the automatic suspension of the appellant. That was not lifted until June 2000. The appellant then joined the firm of MacMillans, where he had previously been a partner, and attempted to pick up the pieces of his career and restore his reputation.
16. The investigation resulted in certain proceedings being brought against the appellant. In those proceedings, which were heard by the Tribunal on 16th and 17th July 2002, there were four charges: (1) that contrary to the Solicitors' Accounts (Legal Aid Temporary Provision) Rules 1992 he had incorrectly held funds in the office bank account received from the Legal Aid Board; (2) that he failed properly to protect the funds of parties whose funds were paid into his client account; (3) that he acted improperly in a conflict of interest situation; and (4) that the conduct of the respondent overall was such that it gave rise to breaches of rule 1 of the Solicitors' Practice Rules 1990 in that his independence or integrity was compromised or likely to be compromised, and/or the duty to act in the client's best interests was compromised or likely to be compromised, and/or the good repute of the solicitors' profession was compromised or likely to be compromised.
17. The Tribunal found the first of those allegations to be substantiated. It was, in fact, admitted by the respondent. I have already indicated the matters to which that first charge related. It was accepted by the Tribunal that the breaches had been the result of error and not the result of a deliberate act. The Tribunal did not consider that these admitted breaches were sufficient on their own to justify the imposition of any penalty. The other three alleged breaches were not substantiated and the allegations were dismissed by the Tribunal. The Tribunal having found that only one of the four allegations had been substantiated, and that being one which did not of itself justify a penalty, it did not impose any disciplinary sanction. However, the Tribunal did consider that in the absence of a full and proper explanation by the appellant, the Law Society was justified in bringing the proceedings and in all the circumstances the Tribunal decided to make no order for costs.
18. It appears, therefore, that at this time the appellant was under very considerable pressure in terms of his practice. He had to cope with these proceedings, and he was also attempting to re-establish his reputation following the intervention in his previous firm. In addition to that there was the financial pressure which was applied to him as a result of the intervention in his previous firm. Moreover, it is clear to us that he was under colossal pressure in his private life. He experienced serious matrimonial problems directly linked to the mental pressure that he was under and to the financial pressure that the household was under. He had three young children. The strain upon his marriage became intolerable and resulted eventually in the respondent leaving the matrimonial home in October 2004. It seems to us, therefore, that there was in the background to this matter some explanation as to how the breaches with which we are concerned may have come about.
19. In approaching this appeal on the basis of the more flexible approach indicated in Nahal, this court will nevertheless accord very considerable respect to the views of the specialist professional Tribunal which has dealt with this matter. However, in this regard Mr Phillips, on behalf of the appellant, submits that the weight which we should attach to this decision is reduced in this case as a result of two features of the reasoning of the decision itself. It seems to me that there is some force in these submissions.
20. Mr Phillips draws attention, first, to the fact that at paragraph 98 of its findings, the Tribunal, in a passage which at least in its initial sentences appears to be giving some credit to the appellant, then makes the point that the Tribunal has also taken into account the fact that the respondent had appeared before the Tribunal on an earlier occasion. No further explanation is provided by the Tribunal as to the precise way in which it takes this matter into account, or indeed what weight it attaches to the matter. I have already set out in some detail the nature of the previous alleged breaches and the outcome of those proceedings before the Tribunal. While not lacking in seriousness, the one alleged breach which was upheld by the Tribunal seems to me to be much lower in the scale of seriousness than the matters with which we are concerned on this appeal.
21. Secondly, Mr Phillips draws attention to the Tribunal's statement that the respondent before them had offered no reasons or explanations for his failures. Mr Phillips said that it is strictly not correct that the respondent had offered no reasons or explanations for his failure. While it is correct that submissions made by counsel then appearing for the appellant had included the concession that the appellant could not explain how he had come to behave in this particular way, or indeed was unable to offer any excuse for that conduct -- a position reflected in what was effectively a plea of guilty -- it nevertheless was the case that the mitigating factors to which I have referred were placed in their full detail before the Tribunal. It is unfortunate that the Tribunal failed to deal expressly with this matter in the course of their decision. In these circumstances, it does seem to me that the weight which is to be attached to this decision of the professional expert Tribunal is somewhat reduced.
22. Having regard to all the circumstances of the case, I consider that these breaches, while serious, were nevertheless not so serious as to require so draconian a penalty as the striking off of the appellant. I consider that in all the circumstances the penalty was clearly excessive. In coming to this view, I am influenced to a very considerable extent by the mitigating circumstances which exist in this case. I have no doubt that this appellant was under colossal pressure, both professionally and in his private life. While that provides no excuse for the serious failures which formed the subject of these breaches, it nevertheless provides some explanation. Moreover, it is relevant to the wider questions of the protection of the public. I am satisfied that the public can be effectively protected by the imposition of a lesser penalty than that imposed in this case.
23. Accordingly, I would allow the appeal to this extent. I would quash the order for striking out and would substitute an order of suspension for a period of two years. Moreover, I consider that it is appropriate that when the appellant returns to practice, he should only be permitted to do so, whether as an employed solicitor or in a partnership, under the supervision of a solicitor approved for that purpose by the Solicitors' Regulation Authority (SRA). I have considered whether it would be appropriate for the court to impose such a condition but on reflection, and having heard both counsel on the matter, I consider that the appropriate course would be for the SRA to exercise its powers under section 12(1)(f) of the Solicitors Act 1974. No doubt in imposing a condition the SRA will bear in mind the indication given by the court on this occasion. The advantage of that course, it seems to me, is that if in due course an application is to be made for the condition to be lifted, that can more conveniently be dealt with by an application to the SRA than by an application to this court.
24. I am satisfied that the course which I would adopt is one which affords adequate protection to the public, which adequately reflects the seriousness of the breaches which have taken place, and provides the necessary protection for the maintenance of the reputation of the profession.
25. LORD JUSTICE LEVESON: I agree with the outcome proposed by my Lord. When articulating its reasons, the Tribunal observed that the appellant had offered no reason or explanation for his failures. In fact, the appellant had devoted a considerable part of his mitigation to the circumstances in which he had found himself, while not excusing his abject failures to deal with his professional responsibilities in these cases. He provided a substantial explanation of the other matters with which he had to deal at the time, and in particular an involvement as a witness in a criminal prosecution (to which my Lord has referred), the ongoing effect of the intervention of the Law Society in his practice leading to automatic suspension which, having come to an end, left him in a position to rebuild his practice from scratch, and finally, the consequence of dealing with a Tribunal hearing before the Solicitors Disciplinary Tribunal in respect of which, save a small technical matter for which no penalty was imposed, he was exonerated.
26. In my judgment, none of this amounts to much mitigation but it does provide a not unimportant background against which the Tribunal had to determine whether he was rendered unfit to be a solicitor. It is unfortunate that this feature does not appear to have been taken into account, simply having regard to the way in which the Tribunal articulated its conclusion.
27. Protecting the reputation of the profession is paramount, and I entirely endorse the observations of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 at 518 H that this reputation should be capable of being trusted "to the ends of the earth". Having said that, whereas I recognise that the Tribunal remains the best body fitted to assess the seriousness of professional misconduct, in my judgment this case is sufficiently clear that it is appropriate to interfere and revisit the matter, in part for the reason that I have given and in part based upon a re-evaluation of all the circumstances expounded by Lloyd Jones J.
28. In those circumstances, I agree with the conclusion to which my Lord has come.
29. MR PHILLIPS: My Lord, thank you very much. The only outstanding matter is the question of costs. Mr Yerolemou having succeeded in what is an appeal to this court, my application is that the general rule as to costs should follow. I appreciate that Law Society disciplinary cases are not conventional litigation in many ways, but to quote what Thomas LJ said at page 301 when dealing with the costs on the Law Society on policing suspension orders and conditions:

"It may entail some costs but that is the cost of self-regulation that the Law Society must pay."

My submission is simply that the Law Society are properly parties to this appeal. Understandably they sought to uphold the decision of the Solicitors Disciplinary Tribunal. They failed and the proper order is that they should pay the costs subject to detailed assessment.

30. MR MILLER: My Lord, I would take issue with that. I submit that the most appropriate order is that each side pay their own costs. We had to be here in any event, in a sense in a public capacity. There is no other way, as it were, of looking at this matter, apart from a hearing before this court. Perhaps of more significance against that is the way in which the appeal has been conducted. It was not until the Friday that I knew what the grounds of appeal were. In fairness to Mr Phillips, I think the point your Lordships found the most attractive was only advanced this morning in a sense for the first time. While it found resonance with your Lordships, I would have liked an opportunity to consider that point. Therefore for the Society to pay costs in those circumstances, in my submission, would be unfair and I do not think it would be right.
31. LORD JUSTICE LEVESON: Mr Phillips, you have to address the question whether this is your client or your solicitors. It is a matter of indifference to me, but you will have to address the fact that, for whatever reason, this appeal has been conducted in a lamentable fashion -- until this morning.
32. MR PHILLIPS: I am indeed very grateful for the rider. I accept that the timetable has simply not been complied with.
33. LORD JUSTICE LEVESON: That grossly understates it. There is not a ground of appeal. The notice of appeal merely says the grounds will follow.
34. MR PHILLIPS: Within 14 days.
35. LORD JUSTICE LEVESON: Well, they did not. Within 14 months they almost did not.
36. MR PHILLIPS: No. Plainly I cannot defend the failure to serve the grounds of appeal or the skeleton argument. All I can do is to invite the court to focus on the real causative point: has it actually made any difference? If it has, that is a good reason for me not getting my costs. If it has not, which I submit -- in reality the Law Society would seek to defend the decision as it has this morning -- if it has not made any difference then the court must decide whether it is a proper exercise of discretion to apply what is effectively a penalty on a suspended solicitor who has already had hard financial conditions because of the failure to comply with the timetable which has had no causative effect.
37. LORD JUSTICE LEVESON: I am not so sure I entirely agree with that analysis of the position. In any event, you said that it was not the fault of your client.
38. MR PHILLIPS: Yes. I take the point. In which case, may I withdraw, because it was a bad point. I am trying not to make bad points. Let me withdraw the plea for sympathy. Let me just look at the causative point. That is really the question for the court. If there is a realistic possibility we would not have been here today, but in my submission that is not a reality.
39. LORD JUSTICE LEVESON: We will order that the Law Society pay the costs of the appellant, to be assessed if not agreed. If the matter proceeds to assessment we direct the costs judge to examine most critically the costs claimed, having regard to the failure to comply with the rules, or indeed serve a properly articulated notice of appeal until the very last moments before the hearing of this appeal. Thank you.
40. MR PHILLIPS: My Lords, thank you very much.