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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Richards v The Law Society (Solicitors' Regulation Authority) [2009] EWHC 2087 (Admin) (10 July 2009)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2087.html
Cite as: [2009] EWHC 2087 (Admin)
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Neutral Citation Number: [2009] EWHC 2087 (Admin)
CO/9289/2008

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


Royal Courts of Justice
Strand
London WC2A 2LL
10 July 2009

B e f o r e :

SIR ANTHONY MAY
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE SAUNDERS
____________________

Between:
RICHARDS Claimant
v
THE LAW SOCIETY (SOLICITORS' REGULATION AUTHORITY) Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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A Merrill Communications Company
165 Fleet Street London EC4A 2DY
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(Official Shorthand Writers to the Court)

____________________

MR K HAMER (instructed by ROGER RICHARDS) appeared on behalf of the Claimant
MR T DUTTON QC (instructed by BEVAN BRITTON) appeared on behalf of the Defendant
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. SIR ANTHONY MAY: Solicitors must always be vigilant not to allow their own personal interests to intrude into their conduct of a client's affairs. If they do, there is a strong risk that a conflict of interest will arise and if they do not take proper and appropriate steps to eliminate the conflict they may stray into unbefitting conduct.

  2. Roger Richards is a solicitor now retired from his practice at Paignton in Devon and about to retire from practice completely. In 1998 Mr Wilson-Fitt, an elderly man of nearly 79, owned a leasehold house in Brixham which was worth somewhere between £50,000 and £52,500. It was subject to a mortgage in favour of the Alliance and Leicester Building Society to secure a loan then outstanding of about £17,400.

  3. On 3 October 1998 Mr Wilson-Fitt for the first time consulted Mr Richards about the making of a will. He also discussed with Mr Richards, and as I think the evidence in this case indicates asked for advice about, a proposal from a Mr John Pattern by which Mr Wilson-Fitt would charge the equity of his property to Mr Patten in return for an advance of £6,000. It was a kind of equity release scheme.

  4. Mr Wilson-Fitt said he wanted money to tide himself over and to refurbish his garden. Mr Richards told Mr Wilson-Fitt that if he wished to raise capital in this way he might be able to do better than Mr Pattern's offer. Mr Richards discussed the possibility of his own children advancing £10,000 and funding the building of a garage in return for a charge on the equity. In the event this is what happened, but it transpires that it was Mr Richards himself who provided the £10,000 and the money to build the garage to his children to enable them to pay for what was proposed. Mr Richards told Mr Wilson-Fitt if he wanted to proceed with the arrangement he would have to be separately represented because Mr Richards would be acting for his own children.

  5. On 10 October 1998 Mr Wilson-Fitt wrote to Mr Richards about him or his associates having a charge on the property and suggested an initial payment of £1,500.00, and a further amount should later be paid. He wrote that on his death the property would go to Mr Richards. Shortly after that Mr Richards visited the property. On 5 November 1998, Mr Richards wrote to the Building Society asking for the deeds to the property.

  6. On 4 December 1998 Mr Wilson-Fitt executed his will by which he devised personal property only, indicating that by then the proposal to charge the entire equity of the property had crystallised, as it may well have done in essence back in October when the will was first discussed. Mr Richards had continued to act as Mr Wilson-Fitt's solicitor in that respect until then.

  7. On 7 December 1998 Mr Wilson-Fitt wrote to Mr Richards, sending him a copy of his late wife's death certificate. This again indicated a solicitor's need to know that she did not retain an interest in the property.

  8. On 8 December 1998, Mr Richards spoke to Mr Allen, a licensed conveyancer, about Mr Wilson-Fitt. On 10 December 1998 Mr Allen wrote to Mr Wilson-Fitt saying it had been suggested that he should act for him to protect his interests, and that he would be pleased to do so. He would be in touch again when Mr Richards had sent him full details.

  9. On 10 December 1998 Mr Richards sent Mr Allen a draft charge on the property in favour of his two children. He enclosed the title deeds and said that his firm would be responsible for Mr Allen's reasonable charges.

  10. On 23 December 1998 Mr Allen saw Mr Wilson-Fitt at the property where they discussed the transaction. Mr Wilson-Fitt signed the charge, leaving the date to be inserted later. Mr Richards then gave Mr Wilson-Fitt a cheque for £3,000, drawn on his firm's reserve client account.

  11. On 5 January 1999, Mr Allen wrote to Mr Wilson-Fitt with reference to the transaction. He said that the amount outstanding on the mortgage was £17,428. He said that the amount to be secured on the mortgage was not just the £10,000 to be advanced but the whole of the value of the property less the amount to repay the Building Society. This meant that on a sale or Mr Wilson-Fitt's death neither he nor his estate would receive anything from the sale. Mr Allen wrote that he had formed the opinion that Mr Wilson-Fitt had considered all eventualities and had decided this was the course of action he wished to take. He had accordingly invited him to sign the mortgage deed. Before he dated it Mr Allen wanted Mr Wilson-Fitt to have one more think about what he was doing. The charge was dated 6 January 1999 on Mr Wilson-Fitt's oral instructions. It charged the property with both the principal sum of £10,000 and the value of the property at the time of the sale less the amount outstanding on the Building Society mortgage. There was to be no interest payable, but Mr Wilson-Fitt remained liable to pay installments under the mortgage.

  12. During 1999, Mr Richards' children paid the cost of constructing a garage at the property and for other works, including replacement windows and new fencing. Further sums were paid as disbursements for the transaction, and to obtain planning permission for the garage. This all amounted to about £7600, so Mr Richards' children paid about £17,600 for a property which before the improvement works was valued at £50,000 to £52,500, subject to a mortgage of which about £17,450 was outstanding; put another way, they purchased an equity then worth about £32,500 for £10,000, plus an agreement to pay for some relatively minor building works which would increase the equity by an amount broadly equivalent to their cost, leaving Mr Wilson-Fitt to make the mortgage repayments.

  13. Although this appears at first blush to be a bargain which was distinctly disadvantageous to Mr Wilson-Fitt, there was financial evidence in the proceedings from which this is an appeal that this was broadly in line with going rates available from home reversion companies offering equity release schemes at the time, except that any commercial arrangement would also have insisted on the removal of the Building Society charge. Commercial companies would advance perhaps about 60 per cent of the equity value, which on one view somewhat benevolent to Mr Richards, his children did.

  14. In August 2005, Mr Wilson-Fitt went to other solicitors and in November 2005 he first complained to the Law Society. He died on 12 September 2007. In Solicitors' Disciplinary Tribunal proceedings against Mr Richards, held on 26 and 27 June 2008, the Tribunal considered allegations brought against Mr Richards by the Solicitors' Regulation Authority that Mr Richards had been guilty of conduct unbefitting a solicitor, in that he had used his position as a solicitor to take an unfair advantage of Mr Wilson-Fitt and had acted or continued to act where there was a conflict between his interests and those of his family and those of his client, Mr Wilson-Fitt.

  15. A Tribunal heard evidence from Mr Patten, Mr Allen and Mr Hoare, an expert financial adviser, and Mr Richards. The Tribunal's findings have a very full summary of this evidence and also of the submissions of the parties. In the result, the Tribunal found the allegations established. Having heard and considered mitigation they ordered Mr Richards to pay fines totaling £10,000. He appeals to this court both against the findings and contingently against the severity of the penalties.

  16. As to the allegations, the Tribunal found that a solicitor and client relationship subsisted between Mr Richards and Mr Wilson-Fitt from October 1998 until 10 December 1998. There was a clear conflict of the interest between Mr Wilson-Fitt's interests and those of Mr Richards and his family. Mr Wilson-Fitt required full and detailed advice before entering into the arrangement not only as to alternative ways of raising money, but also how the proposed scheme might affect such matters as his Income Tax position and his entitlement to state benefits; how it might restrict his options in the future; the advisability or otherwise of the scheme, and advice in connection with investing the lump sum to provide an income; a comparison of the return on his investment with the value of his property, or money that he might have raised had he sold the property and bought a cheaper one. He also needed advice about inflation. He should have been advised about the continuing obligation to meet the Building Society mortgage repayments and been told it was usual in these transactions for the first charge to be redeemed.

  17. It should have been made very clear that any increase in the value of the property would be of no use to him, and would fall to benefit Mr Richards' children. He should have been told that if he should need to go into a care home he could not raise money to do so by selling the property.

  18. Mr Allen was an independent adviser suitably qualified to handle the conveyancing side of the transaction, but Mr Richards should have referred Mr Wilson-Fitt to a qualified financial adviser, which Mr Allen was not. Mr Wilson-Fitt had been referred to Mr Allen without being advised it was open to him to instruct a representative of his own choice.

  19. The Tribunal found both allegations established. Mr Richards had taken unfair advantage of Mr Wilson-Fitt in that he participated in a transaction for himself and his family when he should have acted as solicitor. He should have made sure that Mr Wilson-Fitt had independent financial advice. Mr Richards took an unfair advantage not least because he formulated the terms of the transaction without ensuring that the first mortgage, with its repayment obligations, was redeemed.

  20. The Tribunal added that in making findings of fact it had applied a civil standard proof, but at such a high level that it would be indistinguishable from the criminal standard. One of Mr Richards' grounds of appeal is that the Tribunal was wrong in law to apply a civil standard of proof. It is said they should have applied the criminal standard, and there is a curious difference of view on this point between the Law Society and the Solicitors' Regulation Authority, to which end the Law Society was permitted to intervene in this appeal. The Law Society maintains that the appropriate standard of proof in solicitors' disciplinary proceedings is the criminal standard. The Solicitors Regulation Authority maintains that it should be the civil standard. At the outset of the hearing yesterday we declined to hear argument on this point for the following reasons, put shortly: first the point is academic and has no bearing upon the outcome of the appeal. This is because, first, there were and are no significant disputed facts, and nothing therefore for the standard of proof to bear upon; second, because the Tribunal in effect applied the criminal standard anyway.

  21. The court is not in the business of conducting academic seminars, because decisions which develop the law need to do so in cases where the point at issue matters. In such circumstances the point of issue has a focus which hones the formulation of the legal outcome. Decisions unrelated to issues which matter risk being flabby for want of that honing influence.

  22. Further, Mr Dutton Queen's Counsel for the Solicitors' Regulation Authority came close to accepting -- although he was not allowed to argue the point completely -- that this court is bound by the decision of this court presided over by Lord Chief Justice Lane in Re A Solicitor (1993) QB 69, as considered and applied by the Privy Counsel in Campbell v Hamlet (2005)3 All ER 1116. Insofar as these two authorities might arguably leave some minor room for manoeuvre in cases where the alleged misconduct does not have criminal overtones, that is better debated and decided in a case where the standard of proof makes a difference, and probably in the House of Lords. We strongly doubt whether the House of Lords would give leave for appeal in this case for the very reason that the debate is academic.

    23. Grounds of Appeal

  23. It is submitted by Mr Hamer on behalf of Mr Richards that any conflict of interest between Mr Richards and his family and Mr Wilson-Fitt was resolved on or after 10 December 1998 when Mr Allen was instructed. The Tribunal made no finding that the solicitor-client relationship subsisted after that. Mr Richards had no contact with Mr Wilson-Fitt after 4 December 1998, when he executed his will. On 10 December 1998 there was no concluded transaction. Subsequent payments were only made after Mr Richards heard from Mr Allen that Mr Wilson-Fitt was happy to proceed. Mr Wilson-Fitt was happy with Mr Allen and gave instructions straight to him. The Tribunal was wrong to find that Mr Wilson-Fitt should have been referred to someone qualified to give the necessary financial advice. This was not part of the Solicitors' Regulation Authority's original allegations and proper notice should have been given. There was no expert evidence to the effect that this was what Mr Richards should have done. Mr Hamer submits that it was not clear who it is said should have provided the financial advice, but that I think was obvious. It was not Mr Richards because of the conflict; it was not Mr Allen because he was not qualified. Therefore, it had to be someone else who was qualified. Mr Hamer submits that in any event Mr Wilson-Fitt made clear that he wanted to go ahead with the transaction. It is submitted that Mr Richards discharged any responsibility on him by ensuring that Mr Wilson-Fitt received legal advice. Mr Allen fully explained the transaction to him.

  24. As to taking an unfair advantage the common position before the Tribunal was that the transaction was in fact fair. I think that may be putting it rather too high. The unchallenged opinion evidence was that to receive £17,500.00 on a property whose equity was worth about £32,500.00 was in line with the then current market for equity release schemes, except that a market scheme would have redeemed the first mortgage. The evidence did not extend beyond that to consider alternative possibilities. In fact, it is said that Mr Wilson-Fitt's mortgage installments were paid by the Department of Social Security. No additional funds would have been available if the commercial lender had redeemed the Building Society mortgage. There is no evidence to show Mr Richards took an unfair advantage.

  25. Mr Hamer submits alternatively that a maximum fine of £5,000.00 on each allegation was excessive, and no one could have anticipated the large rise on the property market providing a windfall to Mr Richards' children. It was submitted that the Tribunal was over influenced by the general idea that the property prices would increase.

  26. In support of the submission that the Tribunal was wrong in law to hold that Mr Wilson-Fitt should have been referred to a financial adviser Mr Hamer refers to Hanson v Lorenz & Jones, (1987) 1 FTLR 23, where May LJ, not I, said in the circumstances of that case it was no part of the solicitor's duty to advise Mr Hansen about the business prudence or imprudence about the proposed transaction. Whether the proposed joint venture between Mr Hanson and the firm of solicitors was prudent was a matter for him. Mr Hanson was, on the evidence, fully aware of the nature and effect of the proposed joint venture. The facts of that case were, however, well removed from those in the present appeal; they concerned an experienced businessman operating in his own field.

  27. A further ground of appeal is that the Law Society's contemporary 1997 Conveyancing Handbook did not require solicitors to advise a client before entering into an equity release scheme to consider advice from specialist financial advisers. That seems be me to be unpersuasive, if, as here, the particular case required such advice. This was not an exclusively conveyancing transaction.

  28. A further unpersuasive ground of appeal is that Tribunal failed to take account of Mr Richards' good character, as to which good character does not alter facts. As a matter of fact the Tribunal did refer to his good character, see paragraph 140 of the their determination, nor is a self-direction as to good character necessary in a case such as this, see Simms v the Law Society (2005) EWHC 408 Admin

  29. In his oral submissions yesterday, Mr Hamer concentrated upon two matters: first, he said that the Tribunal proceeded on the first and he would say more serious allegation on a basis which was not alleged in the Rule 4(2) statement; second, he submitted that the Tribunal did not find the first allegation substantiated on the basis that Mr Richards took an unfair advantage because he did not see that Mr Wilson-Fitt had proper financial advice. They found there was a conflict of interest and that therefore Mr Wilson-Fitt should have been referred to a financial adviser; Mr Hamer submits that this was erroneous.

  30. As to the first of these submissions the purpose of a Rule 4(2) statement is to inform the solicitor fairly and in advance of the case he has to meet. The Rule 4(2) statement in this case did not put the case against Mr Richards on the basis that he should have seen to it Mr Wilson-Fitt had financial advice, but it was made quite clear in correspondence well before the hearing that this would be part of the Solicitors' Regulation Authority's case. It went as follows: the parties exchanged witness statements. By letter dated 22 April 2008, Mr Richards referred to the written evidence, including that of Mr Allen, and contended that neither charge against him was capable of being established to the requisite standard. He invited Mrs Bromley, the Solicitors' Regulation Authority's solicitor advocate, if she intended to carry on, to say clearly how she proposed putting the case before the Tribunal.

  31. Mrs Bromley responded to this in a letter of 20 May 2008 saying that, as far as Mr Allen's evidence was concerned, she did not accept he was qualified to give an opinion that the arrangement was fair to both parties particularly where he himself accepted that he was not an expert in financial matters and no valuation of the property had been carried out.

  32. I have said that Mr Allen was selected by Mr Richards to advise Mr Wilson-Fitt. That selection was deficient because Mr Allen, a licenced conveyancer, had no expertise in financial matters and did not have the broad range of skills required to advise Mr Wilson-Fitt. That clearly put the case Mr Richards should have seen to it that Mr Wilson-Fitt received proper financial advice, but did not do so.

  33. Paragraphs 21 and 34.3 of Mrs Bromley's written opening note made the point that Mr Wilson-Fitt needed financial advice which Mr Allen was not able to give. Accordingly, Mr Richards was given fair and due notice of the financial advice point in advance of the hearing. There is nothing, therefore, in Mr Hamer's rule 4(2) submission.

  34. As to the second submission, it somewhat broadened during Mr Hamer's address to us. Mr Richards faced two allegations. The second was that he continued to act when there was a conflict of interest, which there plainly was. The Tribunal found the allegation established with extended reference in paragraph 147 of the determination to various respects in which Mr Wilson-Fitt needed financial advice. Mr Hamer now accepts that Mr Richards did continue to act until 10 December 1998, when there was a conflict of interest. It will be recalled that during this period Mr Richards did various things which in effect set up the equity release scheme, nominally with his children, during which period he was acting for both sides. He then presented the scheme which he had set up and which had for practical purposes by then been informally agreed to Mr Allen for implementation. To this extent, the appeal in relation to allegation two must by concession fail, except perhaps as to penalty.

  35. Allegation one was that Mr Richards used his position as a solicitor to take unfair advantage. As to that the only unfair advantage identified by the Tribunal was that the first mortgage was not redeemed. Mr Hamer submits that this was no detriment to Mr Wilson-Fitt because the mortgage payments were largely made by the Department of Social Security. Insofar as they were not so paid, this merely increased the amount which Mr Richards' children would eventually pay to discharge the mortgage. I find this unpersuasive. Mr Richards' children had the advantage of not having to pay the amount required to discharge the mortgage straight away, Mr Wilson-Fitt had the disadvantage that he continued to be liable for the mortgage repayments.

  36. The main burden of Mr Hamer's oral submissions was that Mr Richards was not obliged in law to see that Mr Wilson-Fitt received financial advice. He submits that the law is encapsulated in paragraph 804 of Halsbury's Laws, volume 66, 5th edition, to the effect that there is no absolute rule that a solicitor cannot sell property to or buy property from a client. He needs to show that the client was advised as diligently as he would have been as if he had been contracting with a stranger and that the transaction was as advantageous to the client as it would have been if he had been contracting on reasonable and equal terms with the stranger.

  37. A transaction of sale or purchase between a solicitor and his client will be upheld, it is said, if the solicitor can prove (1) that he made full disclosure to the client of all relevant information (2) that the price was fair and (3) that the client was advised by an independent solicitor to whom all circumstances were disclosed. Mr Hamer says that all these conditions were fulfilled in this case. He submits that there is no duty on a solicitor to give unsought advice on the suitability of a proposed transaction. He refers to Clarke Boyce v Mouat (1994), 1 Appeal Cases 428, for this and the additional proposition that a claim for breach of fiduciary duty cannot enlarge the scope of a contractual duty. He refers to Hanson v Lorenz & Jones, to which I have already referred. This supports the proposition that in some factual circumstances a solicitor may not be obliged to give or see that a client has unasked for advice as to the commercial wisdom of a proposed transaction, but it depends on the facts.

  38. Here the facts were that Mr Wilson-Fitt came to Mr Richards asking for his views about the scheme proposed by Mr Patten. If that did not, as in fact I think it did, oblige Mr Richards to see that Mr Wilson-Fitt had financial advice, that obligation certainly arose when Mr Richards suggested that a deal with his own children would be more advantageous. That was in my view Mr Richards assuming responsibility to advise about the financial wisdom of the deal. Independently of that, in the circumstances it was obvious that Mr Wilson-Fitt needed financial advice. I shall return to that later.

  39. By putting himself in the position of conflict of interest and in effect implicitly proffering financial advice, Mr Richards became obliged to see that Mr Wilson-Fitt obtained independent advice and to satisfy himself that appropriate independent financial advice had been obtained.

  40. Mr Hamer has dutifully drawn our attention to a 19th century decision of Pisani v the Attorney General of Gibraltar (1874) LRJC 516 in which it was held that the court does not hold that an attorney is incapable of purchasing from his client, but that the court watches such a transaction with jealousy and throws on the attorney the onus of showing that the bargain is, speaking generally, as good as any that could have been obtained by due diligence from other purchasers. An attorney purchasing from his client ought to insist on the intervention of another professional adviser. Sir Montague Smith gave the opinion of the Board in the course of which he said at page 536 with reference to earlier authority that the solicitor purchasing from his client must be able to show that he has done as much to protect his client's interest as he would have done in the case of a client dealing with a stranger. It was especially his duty to point out other modes of sale which might be more advantageous, and to ascertain accurately the value of his client's life and the state of the property to be sold. Although this is an elderly decision of the Privy Counsel it seems be encapsulate a duty which may, depending on the facts, arise, and which did on the facts of this case arise.

  41. There may be many cases in which a solicitor is not obliged to advise a client on the commercial wisdom of a transaction, but in some case he may be obliged to see such advice is obtained. I record that Mr Dutton submitted that in the modern world Pisani does not go far enough.

  42. Mr Hamer submits that the critical question which the Tribunal did not address is whether Mr Richards acted in Mr Wilson-Fitt's best interests. If they had asked that question they may have concluded Mr Richards did not fail to protect Mr Wilson-Fitt's best interests when they found he was not a vulnerable client, and when he was intent on entering into the equity release scheme.

  43. The heart of Mr Dutton's long written submissions on the substance of this appeal is as follows. On the evidence, he says Mr Wilson-Fitt plainly consulted Mr Richards in his capacity as a solicitor in relation to a proposed equity release scheme. There was therefore a solicitor-client relationship at least until 10 December 1998. Mr Wilson-Fitt specifically approached Mr Richards as to the wisdom of entering into the proposed scheme with Mr Patten. From that moment, it was obvious Mr Wilson-Fitt needed financial advice. Mr Richards to an extent took it upon himself to give financial advice, in suggesting that the alternative transaction with his children was more advantageous. In a sense of course that was obvious, to the extent that £10,000 was £4,000 more than £6,000, but the implied advice was that the £10,000 transaction was not only more advantageous, but an appropriate transaction to make. The contention that financial advice was not in fact required is unsustainable submits Mr Dutton, and I agree. Mr Richards, it is said, further had a fiduciary duty to advise Mr Wilson-Fitt to obtain financial advice because the proposed alternative transaction was with his children.

  44. As to the contention that the need to advise Mr Wilson-Fitt to obtain financial advice was not part of the case against him, it was part of Mr Wilson-Fitt's original letter of complaint dated 10 February 2006 and the point was made in terms in the Solicitors' Regulation Authority letter of 20 May 1998, as I have already indicated. This was more than a month before the hearing, and it was repeated again as I have indicated in the Solicitors' Regulation Authority opening note dated 12 June 2008, 12 days before the hearing. There was no role, says Mr Dutton, for expert evidence in such matters because this was an expert Tribunal. It would, in any event have trespassed upon the very matter the Tribunal had to decide, see Midland Bank v Hett, Stubbs & Kemp, (1979) Chancery 384, 402 C to D. The fact Mr Wilson-Fitt wanted to go ahead with the transaction goes nowhere to show he did not need financial advice.

  45. Mr Dutton submits that the conflict of interest in this case was obvious. I agree, and it is now accepted. Mr Richards put himself in the position of counter-party to the proposed transaction. Mr Dutton points out that in the period between October and 10 December 1998 Mr Richards progressed the proposed transaction by obtaining title deeds from the Building Society, obtaining Mr Wilson-Fitt's wife's death certificate and drafting the deed of charge. He took no steps during the period to ensure Mr Wilson-Fitt obtained even legal advice. Mr Wilson-Fitt reckoned he and Mr Richards reached a deal shortly before 8 December 1998. He saw Mr Allen's role as implementing the deal. He did not advise Mr Wilson-Fitt to obtain financial advice. Mr Richards was subject to a clear conflict of interest during these two months. Mr Allen was admittedly not qualified to give financial advice. Further, there was a fiduciary relationship arising out of the relationship of trust and confidence of solicitor and client. Those duties survived any termination of the retainer, see Longstaff v Birtles (2001) 1 Lloyds Law Reports 826, especially paragraphs 1 and 35, where Mummery LJ said that a solicitor proposing either to buy property from or sell property to a client or even for a client is under a duty to cause the client to obtain independent advice. The duty flows from the relationship of trust and confidence.

  46. Mr Dutton submits it was quite clear in the circumstance that Mr Wilson-Fitt needed financial advice. In fact Mr Richards only brought Mr Allen in when the deal was in his own mind done, albeit still to be formalised. Mr Dutton submits that the concept of unfair advantage does not predicate consciously unconscionable conduct. The issue is not determined by the expert evidence that the terms of the deal were broadly in line with the existing equity release market, which it was not, in that it did not require the first mortgage to be redeemed.

  47. In my judgment, this appeal should fail, essentially for the reasons advanced by Mr Dutton, but for these reasons, which I express shortly in my own words. There was a solicitor-client relationship between Mr Richards and Mr Wilson-Fitt from October 1998 until at least 10 December 1998, and a persisting fiduciary relationship thereafter. During that period Mr Richards negotiated the basis of the eventual transaction, which was for his own and his family's benefit. He went so far as to draft and proffer the charge deed during this period, and he presented this to Mr Allen when he was eventually instructed. Mr Richards was treading on exceedingly perilous ground. Although the proposed transaction has been shown after the event to have been broadly in line, with one conspicuous exception, with what may have been commercially available in the contemporary equity release market, there is no evidence it was known to be so at the time and it was not obviously so. In addition, there must have been a number of other possible ways in which Mr Wilson-Fitt might have raised money. These plainly ought to have been considered.

  48. On the face of it the proposed transaction was arguably and obviously disadvantageous to Mr Wilson-Fitt. He was parting with the equity in his property, worth about £32,500.00, for £10,000.00. Although he would be entitled to live in the property for his life time, he was aged nearly 79 and, if he were to die immediately after the transaction, the purchaser would get a very cheap bargain. If he were to live for a long time there would be no equity from which to raise money to pay for his care.

  49. The building works were no doubt what he may have wanted but their value was not obviously it be set against the £32,500.00 because the work would no doubt enhance the equity in the property for the eventual benefit of Mr Richards' children. Even if the transaction was broadly in line with the contemporary equity release market, an independent financial adviser would surely have examined other possibilities and fully explained, which Mr Allen did not fully do, the consequences and disadvantages of what was proposed. It was Mr Richards' professional obligation to see that Mr Wilson-Fitt got that kind of advice if he and Mr Wilson-Fitt were to proceed with the transaction which on the face of it was advantageous to himself and his children.

  50. Mr Hamer points out that although Mr Wilson-Fitt was elderly he knew what he was doing and was capable of making up his own mind. He had a settled intention of entering into an equity release scheme. He rejected advice that the property should be valued. He had the independent advice of Mr Allen. The amount of money advanced was in line with that which would have been paid by a bank or insurance company. He himself made no complaint for over six and a half years.

  51. These matters do not in my judgment absolve Mr Richards from orchestrating and entering into the transaction without seeing scrupulously that Mr Wilson-Fitt was independently and fully advised. He did not do this. On the contrary, he secured the transaction which was advantageous to him and his children, and which may on full and proper financial consideration not have been in Mr Wilson-Fitt's best interests. The first allegation was, in my judgment, made out. The second allegation is now admitted.

  52. As to penalty, this court has held on numerous occasions that the assessment of penalty is very much a matter for the expert Tribunal whose judgment this court will not readily impugn. I see nothing obviously wrong or disproportionate in imposing the maximum financial penalty in this case where the Tribunal did not order suspension from practice or other more severe penalty. For these reasons, I would dismiss the appeal.

  53. MR JUSTICE SAUNDERS: I agree.

  54. MR HAMER: On the facts there are two small facts I feel should I correct.

  55. SIR ANTHONY MAY: Yes.

  56. MR HAMER: At one stage I think your Lordship said Mr Richards paid the £10,000.00, although later you said the children. In fact it was the children who paid the £10,000.00.

  57. SIR ANTHONY MAY: The evidence was as I understood it that the money derived from Mr Richards.

  58. MR HAMER: No. It is in the bundle at page 62, is an account ledger in the name of the children, where £8,000.00 was paid into the account, and then at page 67 Mr Richards explained that the sale of 1 Drake's Court from the children resulted in £3,000. As I understand it is the children's money.

  59. SIR ANTHONY MAY: Okay, I will correct that.

  60. MR HAMER: The other point is this: your Lordship is right of course to mention that the transaction left Mr Wilson-Fitt liable under the mortgage; we debated this during the hearing. The position of course is that the effect of the transaction did not result in him being liable for any money to the Building Society, because his mortgage payments were substantially met by the DSS.

  61. SIR ANTHONY MAY: I have said all that in the course of the judgment. It was however his liability, is the point being made.

  62. MR HAMER: Indeed.

  63. SIR ANTHONY MAY: Thank you. Yes?

  64. MR DUTTON: My Lord, we have a draft order to put before the court. There is one matter relating to costs, because of the intervention by the Law Society and the way the standard of proof --

  65. MR HAMER: Can I just mention to my learned friend the costs? I think we have been discussing the wording.

  66. MR DUTTON: Yes. My Lord, I anticipate from those brief comments that this is now not going to be controversial. The question of standard of proof as your Lordship will appreciate was raised by Mr Richards. I have accepted that the cost caused by the intervention of the Law Society should not be something Mr Richards should have to pay for, and the language therefore in paragraph two, which we both as between ourselves think is appropriate, is this, and it is going to vary slightly from the handwritten draft. Second line: save as to such costs of and occasioned by the intervention on 26 June, and my Lord I suggest 'and thereafter'.

  67. MR HAMER: Yes, thank you.

  68. MR DUTTON: As a party of the Law Society (Professional Body) on the issue of standard of proof, and then the Cost Judge will if we cannot agree those figures have a definition by which he can work. We have recorded intervention of the Law Society as your Lordship has, and no order for costs which as between the SRA and the Law Society was agreed, and I am afraid there is one final matter I need to raise. I have not been able to raise this with my learned friend because I am afraid the calculation of the costs has been rather complicated. I would seek a direction for an interim payment of the costs. My Lord, the likely costs of the SRA will, I anticipate, exceed the sum of £40,000. My Lord, it is difficult for us, I am afraid, because of the complications over preparation of the last few weeks to be precise, but an appropriate figure I might suggest for an interim payment would be £15,000.00 so that there would be absolutely no risk of an interim payment being too large and in any event there is not the slightest risk if it were the SRA would not be able to pay it back. My Lord, the total figure in fact will be substantially above that; it reaches £39,000.00 without my own involvement. If I suggest £15,000.00 it is a very modest part of the total.

  69. SIR ANTHONY MAY: Yes.

  70. MR HAMER: I am concerned about this. This is the first I have heard about this. May I tell your Lordship this: as far as the costs below are concerned they were agreed, that was for the whole of the hearing, they were £16,000.00, and paid. The £10,000.00 fine has been paid. I have not got a White Book in front of me, the basis of an interim order --

  71. SIR ANTHONY MAY: The court habitually makes interim orders for costs.

  72. MR HAMER: Frankly I would like to go outside and take instructions. I don't know if Mr Richards has that money in his bank account. I would still like to have an opportunity, I have had no prior notice of this whatsoever and should I have had notice.

  73. SIR ANTHONY MAY: There we are. Would you like to take instructions?

    74. A Short Adjournment

  75. MR HAMER: My Lord, I am pleased to say we have come to terms. £10,000.00, 14 days.

  76. SIR ANTHONY MAY: £10,000.00, 14 days it will be.

  77. MR HAMER: Can I go back to the order? I do not want there to be any misunderstanding. Can I read out how I believe paragraph two should read? The appellant to pay the respondent's costs of the appeal to be to be the subject of detailed assessment on the standard basis if not agreed, save as to such costs of the occasion by the intervention on 26 June 2009 and thereafter. I am not certain we needs the words 'as a party', simply 'by the Law Society (Professional Body) on the issue of the standard of proof.' The words 'as a party' I am quite concerned about. They did not become a party until the order in paragraph 3, it might be that the words 'as a party' are a little tautologist, or unnecessary.

  78. SIR ANTHONY MAY: It is perfectly clear the costs we are talking about are those generated from 26 June because the Law Society came along and lots of stuff was put in.

  79. MR HAMER: Not liable for those from that date onwards.

  80. SIR ANTHONY MAY: That is all right.

  81. MR HAMER: The thinking behind this is there was discussion with my learned friend as to whether the date should be 9 June, that is the date of my learned friend's skeleton argument, but we have compromised on 26 June.

  82. SIR ANTHONY MAY: Yes, okay, thank you very much. Do you want to say any more?

  83. MR HAMER: No, I am very grateful to your Lordship.

  84. SIR ANTHONY MAY: Yes. In that case the order is as follows:

  85. The appeal is dismissed.

  86. The appellant pay the respondent's costs of the appeal to be the subject of detailed assessment on the standard basis if not agreed, save as to such costs of and occasioned by the intervention of on 26 June 2009 and thereafter as a party of the Law Society (Professional Body) on the issue of the standard of proof.

  87. Interim payment on account of costs of £10,000.00 to be paid within 14 days for the Law Society (Professional Body) and permission to be to heard as a party or there be no order for costs of the Law Society (Professional Body). Thank you very much, I am grateful to everybody.

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