England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/03/2011

Lord Justice Jackson :

1. This judgment is in 4 parts, namely:

Part 1. Introduction,

Part 2. The Facts,

Part 3. The Appeal to the High Court,

Part 4. Conclusion.

Order and Note


Part 1. Introduction
2. This is an appeal by a solicitor against a decision of the Solicitors' Disciplinary Tribunal that he be struck off the Roll of Solicitors. Mr Thaker was the respondent before the Solicitors' Disciplinary Tribunal and is the appellant in this court. The Solicitors' Regulation Authority was the applicant before the Solicitors' Disciplinary Tribunal, and is the respondent in this court. In order to avoid confusion, I shall refer to the parties respectively as "Mr Thaker" and "the SRA".
3. The proceedings against Mr Thaker before the Solicitors' Disciplinary Tribunal were governed by the Solicitors (Disciplinary Proceedings) Rules 1994. I shall refer to these as "the 1994 Rules". The 1994 Rules have subsequently been replaced by new rules in 2007, but the 2007 rules are not relevant to these proceedings. Rule 4 of the 1994 Rules provides as follows:

"4. (1) Applications and Forms

(a) An Application to the Tribunal:

(i) To strike the name of a solicitor off the Roll of Solicitors, or

(ii) To strike the name of a registered foreign lawyer off the Register of Foreign Lawyers maintained by the Society, or

(iii) Making allegations against a solicitor, a former solicitor, or a registered foreign lawyer, or

(iv) Making an allegation against a Recognised Body

shall be in Form 1.

……

(2) Statements

Applications made under this Rule shall be supported by a written statement setting out the allegations in Applications made under Paragraph (1)(a)(i)(ii)(iii)(iv), (b) or (e) and setting out a summary of the facts in support of all Applications."

4. In this judgment I shall refer to a statement served under Rule 4 of the 1994 Rules as a "Rule 4 statement". It should be noted that there are similarities between the requirements of the 1994 Rules in respect of the Rule 4 statements and the requirements of Rule 16.4 of the Civil Procedure Rules 1998 in respect of particulars of claim. In both cases the rules require the draftsman to set out the allegations and also the facts relied upon. In relation to the facts, rule 16.4 of the CPR requires "a concise statement of the facts on which the claimant relies". Rule 4(2) of the 1994 Rules requires "a summary of the facts in support". There is no great difference between these requirements. Sometimes, for brevity, I shall refer to the process of drafting a Rule 4 statement as "pleading".
5. Rule 30 of the 1994 Rules provides as follows:

"(i) In proceedings before the Tribunal which involve the decision of another court or tribunal, the following rules of evidence shall apply provided that it is proved in each case that the decision relates to the relevant party to the Application.

(a) conviction of a criminal offence may be proved by producing a certified copy of the certificate of conviction relating to the offence; proof of a conviction shall constitute prima facie evidence that the relevant party to the Application was guilty of the offence the subject thereof.

(b) the finding and sentence of any tribunal in or outside England and Wales exercising a professional disciplinary jurisdiction may be proved by producing a certified copy of the judgment.

(c) the judgment of any civil court may be proved by producing a certified copy of the judgment.

(ii) In any case set out in paragraph (i) of this Rule, the findings of fact by the court or tribunal upon which the conviction, finding, sentence or judgment is based shall be admissible as prima facie proof of those facts."

6. In Constantinides v The Law Society [2006] EWHC 725 (Admin) this court held that there could be no reasonable objection to the Solicitors' Disciplinary Tribunal reading a civil or criminal judgment in which the judge had made findings as to the dishonesty of a solicitor appearing before the tribunal, provided that the tribunal was clear and rigorous in its approach to that judgment. The judgment would be admissible to prove background facts, but not to prove the Law Society's case against the solicitor in the disciplinary proceedings.
7. This court also gave guidance in Constantinides as to the drafting of a Rule 4 statement. At paragraph 35 of the judgment Lord Justice Moses, delivering the judgment of the court, said:

"We should stress that we do not consider that the allegations of dishonesty were clearly and properly made in the Rule 4 statement. The Rule 4 statement, after alleging conduct unbefitting a solicitor, should have identified that conduct and stated with precision in relation to each aspect of the allegedly guilty conduct the respects in which it was said to be dishonest. It should have alleged that when the appellant acted, despite the conflict of interest, that that conduct was dishonest by the ordinary standards of honest behaviour and that he knew that he was transgressing the ordinary standards of honest behaviour."

8. Having outlined the rules of procedure and certain judicial guidance which is relevant to this appeal, I must now turn to the facts.
Part 2. The Facts
9. Doctor Frederick Chiluba was President of Zambia between 1991 and December 2001. During that period Dr Chiluba and his associates stole some US $46 million from the Zambian State. Much of that stolen money passed through the Zambia National Commercial Bank Limited in London.
10. Following a change of government the Attorney General of Zambia, on behalf of the Republic of Zambia, brought proceedings in the Chancery Division in London against Dr Chiluba and his associates for conspiracy to defraud. I shall refer to these proceedings as "the Chancery action". Those proceedings were successful. On 4^th May 2007 Mr Justice Peter Smith gave judgment against Dr Chiluba and his principal associates for approximately $46 million damages. Other conspirators were held liable in damages for lesser sums.
11. The Attorney General had also joined as defendants in the action two firms of solicitors, namely Meer Care and Cave Malik. Mr Thaker was at all material times a partner in Cave Malik and was the eighth defendant in the action. Mr Justice Peter Smith held that both firms of solicitors were liable to the Republic of Zambia for dishonestly assisting the principal defendants to carry out their thefts. In the case of Cave Malik and Mr Thaker, Mr Justice Peter Smith held that their liability amounted to approximately $3 million.
12. Both firms of solicitors appealed against the decision of Mr Justice Peter Smith. Meer Care succeeded in their appeal. On 31^st July 2008 the Court of Appeal set aside the judgment against that firm. The appeal of Cave Malik and Mr Thaker did not proceed to a hearing. Instead that appeal was settled on terms which were confidential and are, therefore, unknown to this court.
13. In March 2007, shortly before Mr Justice Peter Smith gave judgment in the Chancery action, proceedings were commenced against Mr Thaker in the Solicitors' Disciplinary Tribunal pursuant to the Solicitors Act 1974. The initial Rule 4 statement alleged two relatively minor breaches of the Solicitors Accounts Rules 1998. More importantly, the Rule 4 statement also alleged that Mr Thaker had compromised or impaired his independence or integrity, and had compromised or impaired the good repute of himself and the profession, as a consequence of having permitted money to pass into and out of his client account when there was no underlying transaction, or in the course of which he either failed to be alert or deliberately closed his eyes to a number of suspicious features. These allegations were based upon Mr Thaker's role in relation to the various Zambian transactions. A brief account of Mr Thaker's role in these matters was then set out.
14. In May 2007 the SRA received a copy of Mr Justice Peter Smith's judgment in the Chancery action. It decided to amend the Rule 4 statement in order to incorporate material emerging from that action. There was then a delay of no less than two years before the SRA served its amended Rule 4 statement dated 11^th June 2009. This amended Rule 4 statement was defective in many respects.
15. On the 29^th September 2009 the Tribunal made the following order:

"That the Applicant should identify those parts of the High Court judgement upon which he will be placing reliance at the substantive hearing and serve an amended rule 4 statement reflecting that within 28 days. Self evidently in undertaking this exercise the Applicant should be mindful of not including any material from the High Court judgement which would be irrelevant or unfairly prejudicial to the Respondent's position, taking into account in particular the Court of Appeal judgment."

16. On the 11^th November 2009 the SRA served a re-amended Rule 4 statement with accompanying schedule. The schedule was said to specify the parts of the judgment in the Chancery action upon which the SRA would rely. I will refer to the re-amended Rule 4 statement as "the RAS" (adopting the abbreviation used throughout the present appeal). I shall refer to the accompanying schedule as "the schedule". In paragraph 2 of the RAS the SRA stated as follows:

"2. The allegations against the Respondent are as follows:

….

2.3 That contrary to the provisions of Rule 1 of the Solicitors' Practice Rules 1990 he has compromised or impaired, or was likely so to do, either or both of the following:

(i) his independence or integrity;

(ii) his good repute or that of the solicitor's profession.

2.4 The particulars are that he:

2.4.1 Permitted money to pass into and out of his client account when there was no underlying legal transaction or the provision of legal services and where he was merely acting as a conduit to receive and pass on or return monies to clients or third parties. In so doing he was grossly reckless.

2.4.2 Failed to be alert to the very substantial sums of money passing through client account and the circumstances relating to their receipt and disbursement which should have put him on inquiry as to their authenticity or legitimacy. In so doing he was grossly reckless.

2.4.3 Failed to investigate or to adequately consider the possibility that his firm was being utilised to facilitate money-laundering or other illegal activity. In so doing he was grossly reckless.

2.4.4 Failed to have any or any proper regard to the warnings issued to the solicitors' profession by the Law Society on money laundering, in particular the "Blue Card" warning first issued to the profession in April 1994, and revised in February 1999. These were circulated to all solicitors holding practising certificates in February 1995 and again on the 26/27 July 2000. In so doing he was grossly reckless.

2.4.5 On the 13 November 2001 he paid to the said Dr Chiluba (who was not a client) cash in the sum of £30,000 which he withdrew from his client account. That money represented part of a payment sent to him from the Office of the President of Zambia and was Zambian money. He withdrew and paid it on the instructions of Faustin Kabwe of APSL and in so doing was dishonest. If he was not dishonest he was grossly reckless.

2.4.6 After about the 5 June 2002, when he knew of the "Matrix of Plunder" allegations in the Zambian press he disbursed money to Irene Kabwe, to the children of Dr Chiluba, and to the children of Xavier Franklin Chungu which belonged to the Zambian Treasury. In so doing he was dishonest, but if he was not dishonest he was grossly reckless;"

17. There then followed 21 pages of exposition of the allegations in paragraphs 2.3 and 2.4 of the RAS. I regret to say that both the RAS and the schedule are chaotic documents. Although these documents are formidable at first sight, when one settles down to study them it is quite impossible to understand the case which Mr Thaker was being called upon to answer. The order in which matters are set out in the RAS is neither chronological nor logical. There are many cross references which are impossible to follow up, as the reader seeks to navigate a path through the hundreds of pages which form attachments to the RAS. Furthermore, the RAS relies upon findings of dishonesty made by the judge and thus goes beyond what is permitted by Rule 30 of the 1994 Rules and the guidance in Constantinides.
18. The schedule attached to the RAS is even more problematic. The schedule contains a large number of references to paragraphs in the judgment without specifying the facts or findings sought to be relied upon. Furthermore the schedule omits many passages in the judgment which are seemingly relied upon in the RAS. The schedule makes numerous references to passages in the judgment which have no apparent relevance to the allegations being made in the RAS. For example, some of those paragraphs relate to persons other than Mr Thaker.
19. Mr Thaker applied to the Tribunal to strike out the RAS and schedule. The Tribunal heard and dismissed that application on 5^th January 2010.
20. In those circumstances Mr Thaker commenced proceedings for Judicial Review against the Tribunal. Mr Thaker contended that the Tribunal had erred in allowing the SRA to proceed on a hopelessly defective RAS. Mr Thaker also alleged that the Tribunal was allowing the SRA to make inappropriate use of the judgment in the Chancery action.
21. The application for permission to proceed with the Judicial Review claim was heard on 29^th April 2010 before Mr Ian Dove QC, sitting as a Deputy Judge of the High Court. Mr Ian Lamacraft appeared for Mr Thaker on that occasion, as he has done in the present appeal. Mr Hopper QC appeared on behalf of the Solicitors' Disciplinary Tribunal. Mr Marriott appeared on behalf of the SRA as interested party. The Judicial Review proceedings were resolved in a sensible and constructive manner during the course of that hearing. The SRA agreed to limit its case to twelve transactions only. The first ten of these twelve transactions are set out on pages 20 and 21 of the RAS in paragraphs 50.1 to 50.10 as follows:

"50.1 Trace 2. When on the 20 March 1996 $99,995 was transferred to Kehimkar and Co direct, and on the 22 March 1996 the sum of $74,002.76 was received from Redcliffe Limited, that company having received Ministry of Finance funds in February 1996; the Respondent transferred monies as set out in the trace to various recipients;

50.2 Trace 22. When on the 1 May 1998 Kehimkar and Co received $119,970 from Meer Care and Desai. This was followed by a ledger transfer to Cave Malik to the name of PM Kabwe Financial Services;

50.3 Trace 27. On the 7 May 1998 and 12 August 1998 Kehimkar and Co received a payment of $99,905.00 and $9,612 respectively with a subsequent ledger transfer to Cave Malik and C Kaunda;

50.4 Trace 33. On the 8 March 1999 the Respondent received from Meer Care and Desai the sum of $299,995. It was credited to the ledger in the name of "PM Kabwe Access Financial Services" and distributed to a number of unknown accounts.

50.5 Trace 36. On the 28 May 1999 Cave Malik received $3,600 from Mr Shansonga being part of monies he received from Zamtrop. The money was credited to a ledger in the name of "Redcliffe Ltd – Shansonga" and billed as costs on the 30 September 1999.

50.6 Trace 37. Money was again transferred by Mr Shansonga to the Respondent from Zamtrop;

50.7 Trace 42. On the 1 November 1999. Meer Care and Desai transferred $129,995 to Cave Malik. It was credited to a ledger in the name of Kabwe Financial Services on the 1 November 1999 and $135,000 was sent to an unknown account with the Bank of Zambia.

50.8 Trace 43. The Respondent received $7,427 on the 22 December 1999 and it was credited to a ledger in name of "Kabwe Access Financial Services". $4,279.75 went to an unknown account on the 23 December 1999.

50.9 Trace 49. On the 13 October 1998 Zamtrop transferred $799,995 to the client account of Kehimkar and Co. On the 21 October 1998 $500,000 was credited to a ledger in Cave Malik in the name of "FM Kabwe Access Financial Services" and sent to an unknown account in Barclays Liverpool. In November and December 1998 other monies were distributed to the named recipients;

50.10 Trace 52. On the 1 February 2001 $455,213.79 was received by the Respondent from Zamtrop and disbursed as set in the trace. And 9 October 1999."

22. I shall refer to those ten transactions in paragraph 50 as "the ten traces", because they are based upon ten of the traces prepared by Grant Thornton for the purpose of the Chancery action. The ten traces were to be treated in the solicitor's disciplinary proceedings as particulars of the allegations of gross recklessness set out in paragraphs 2.4.1 to 2.4.4 of the RAS.
23. The other two allegations of dishonesty which were to be pursued before the Solicitors' Disciplinary Tribunal were the two matters set out in paragraphs 2.4.5 and 2.4.6 of the RAS. These two paragraphs make allegations of dishonesty. I shall refer to the allegation in paragraph 2.4.5 as "the Chiluba payment". I shall refer to the allegation in paragraph 2.4.6 as "the post-matrix payments". I shall refer collectively to the ten traces, the Chiluba payment and the post-matrix payments as "the twelve relevant transactions".
24. It should be noted that there is an error in paragraph 2.4.6 of the RAS. The reference to 5^th June 2002 should in fact be 25^th June 2002. It can be seen from paragraphs 6.6 and 12 of the RAS that the date upon which the article entitled "Matrix of Plunder" was published was in fact the 25^th June 2002. There was no dispute about that date in the course of the present appeal. Therefore paragraph 2.4.6 of the RAS must in truth be focused upon payments made to Irene Kabwe, the children of Dr Chiluba and the children of Xavier Franklin Chungu after the 25^th June 2002.
25. The cutting down of the SRA's case to twelve key matters was recorded by the Deputy Judge as follows in his judgment:

"8. Secondly, and perhaps more substantively, in particular Mr Marriott, on behalf of the interested party, sought to help the claimant and the court by giving clarity to the nature and extent of the allegations which were imposed. In his written submissions and indeed in oral argument, he has confirmed that the transactions and the only transactions which are to be relied upon by the interested party for the Tribunal are, firstly, those specified at paragraph 50 of the re-amended statement which are allegations where it is said the claimant was reckless, and secondly, allegations at paragraph 2.4.5 and 2.4.6 of the re-amended statement which are two transactions said to be involving dishonesty on the part of the claimant.

9. Having reviewed those clarifications, it appears to me that whatever may have been the substance of the claimant's case, those clarifications resolve the difficulty with which he is presented. Indeed Mr Lamacraft was good enough to accept that considerable progress had been made as a result of the proceedings today, and that in the light of the clarifications given by Mr Marriott, it would enable Mr Thaker to prepare evidence for the hearing.

10. That, in my view, was a realistic appraisal. Whatever may have been the demerits or confusion of the schedule which was produced, on the basis that Mr Marriott, on behalf of the interested party makes plain that it is only those 12 transactions which I have specified which form the substance of the proceedings, any concerns as to Mr Thaker's ability to prepare for trial must be dissolved because the reliance on those 12 transactions makes plain what his witness evidence needs to address. Thus, even if it were right for this court to interfere at this preliminary stage, any substance in the grounds for interfering has been resolved as a result of those clarifications.

11. Secondly and in any event, if there was, notwithstanding the clear assurance given by Mr Marriott to this court that references in the judgment to other matters beyond those 12 transactions are not to be the basis of any additional evidence put before the defendant, even if that were to be attempted, I am satisfied that there is a procedural safeguard within the mechanism of the Tribunal and its procedures which would enable any such attempt, in the light of the assurances given to this court, to be rapidly snuffed out."

26. There was some discussion between counsel and the judge at paragraph 13 about the fact that certain of the "transactions", which were pleaded, involved payments to more than one person. However, it is clear by the end of that paragraph and the subsequent exchanges between bench and bar, that the case against Mr Thaker was limited to the twelve relevant transactions. The judge accepted that some of the sub-paragraphs relied upon in the RAS pleaded more than one payment. For example, paragraph 2.4.6 alleges a number of payments to different family members of Mr Kabwe, Dr Chiluba and Mr Chungu after 25^th June 2002. The judge commented that it may be better to refer to those sub-paragraphs as "allegations" rather than transactions. In this judgment I shall continue to refer to the matters in the various sub-paragraphs as "transactions", but acknowledging that some of the transactions pleaded involve more than one payment.
27. Although it was helpful to Mr Thaker and his counsel for the SRA's case at last to be identified, they still faced practical difficulties. The hearing before the Solicitors' Disciplinary Tribunal was due to start on Monday 10^th May 2010. That was just over one week away. Mr Thaker needed to prepare a witness statement addressing the twelve relevant transactions. Mr Thaker duly prepared such a statement and this was served on 12^th May.
28. In view of the lack of time for Mr Thaker and his counsel to prepare following the hearing in the Administrative Court on 29^th April, they made an application to adjourn the hearing fixed for 10^th May. That application was refused.
29. When Mr Barton, solicitor advocate appearing then as now for the SRA, opened his case before the Tribunal, matters took an unexpected course. Mr Barton sought to pursue allegations which went well beyond the twelve relevant transactions. Mr Lamacraft, counsel for Mr Thaker, objected to this part of the opening. Mr Barton responded robustly that his case was not restricted to the twelve relevant transactions.
30. The Chairman of the Tribunal (unlike Mr Lamacraft) had not, of course, been present at the Administrative Court hearing on 29^th April 2010. Nor did he have the benefit of any transcript of those proceedings. In the circumstances he allowed the SRA to present its case on a wide basis which went well beyond the twelve relevant transactions.
31. The hearing duly proceeded on the widened basis. Mr Michael Davies, a forensic investigator, gave evidence for the SRA. Mr Thaker gave evidence in his own defence. The hearing ran from 10^th to 14^th May and then resumed for a final day on 21^st May 2010. On 14^th May, the Chairman announced the Tribunal's decision. This was that all allegations in paragraph 2 of the RAS were proved. Mr Thaker's conduct in paragraph 2.4.5 was dishonest. His conduct in paragraphs 2.4.1 to 2.4.4 and in paragraph 2.4.6 was grossly reckless. On 21^st May the Tribunal dealt with certain issues as to costs.
32. After hearing Mr Lamacraft's submissions in mitigation the Tribunal ordered that Mr Thaker be struck off the Roll of Solicitors and that he pay 90% of the costs of the proceedings before the Tribunal.
33. On 15^th July 2010 the Tribunal delivered a written statement of its findings and decision. The Tribunal's written decision contains findings of fact which go beyond the twelve relevant transactions. See, for example, paragraphs 30 to 34. In paragraph 80 the Tribunal recorded one of Mr Lamacraft's submissions as follows:

"Counsel for the Respondent had stressed that following the dismissal of the Respondent's application for judicial review on 29^th April 2010, only the payments relating to the ten traces specified in the Re-Amended Statement, the payment to Dr Chiluba and the post-Matrix payments, could be considered by the Tribunal and not any of the payments to Mr Kaunda or to his family."

34. The Tribunal do not specifically comment on this submission. Instead after referring to certain other submissions, they state as follows in paragraph 81:

"Having considered all the evidence and the submissions of the parties, the Tribunal found the matters contained in the first four generic particulars relating to monies passing in and out of the Respondent's Client Account to have been substantiated on the facts and proved to the higher standard."

35. The Tribunal then embark upon further analysis. The Tribunal finally give reasons for the penalty which they had imposed on 14^th May.
36. Mr Thaker was aggrieved by the decision of the Solicitors' Disciplinary Tribunal. Accordingly he appeals against that decision to the High Court.
Part 3. The Appeal to the High Court
37. By an appellant's notice dated 27^th May 2010 Mr Thaker appeals against the Tribunal's decision on four grounds. Those grounds are described as grounds 1, 2A, 2B and 3. I shall however refer to them as grounds 1, 2, 3 and 4. I would summarise those grounds as follows. The first ground is that the Tribunal erred in failing to grant an adjournment at the start of the hearing on 10^th May. The second ground is that the Tribunal erred in allowing the SRA to make submissions and call evidence which went beyond the twelve relevant transactions. The third ground is that the Tribunal ought not to have found Mr Thaker guilty of any of the allegations of gross recklessness or dishonesty. The fourth ground is that the Tribunal erred in ordering Mr Thaker to pay 90% of the costs of the proceedings.
38. I shall now deal with these four grounds of appeal in turn.

Ground 1: Refusal to Adjourn the Hearing

39. On reviewing the whole history of the proceedings, I see considerable force in Mr Lamacraft's application to adjourn at the start of the hearing on 10^th May. The pleadings were in a state of some chaos. Mr Lamacraft and his client had only known for ten days which transactions were relied upon by the SRA. Furthermore, Mr Thaker's statement which was being prepared in great haste was still not quite ready.
40. Having said that, however, I readily acknowledge that the question whether or not to adjourn is a matter for the discretion of the Tribunal. If Mr Thaker's complaints had stopped here, I would not be prepared to substitute my opinion for the view formed by three very experienced members of the Tribunal. As the opening proceeded, however, it became clear that the SRA was presenting a case which went far beyond the twelve relevant transactions. This was not a case which Mr Thaker or his counsel were expecting to meet. This court, unlike the Tribunal, has a full transcript of the Judicial Review judgment. Armed with that additional information, we can see that Mr Thaker was being subjected to a process which was simply unfair. Furthermore this was a process in which his livelihood was at stake.
41. I have little doubt that if the Tribunal had been aware of the true position, it would not have allowed that process to continue. At the very least the Tribunal should and would have granted a period of adjournment. I would therefore uphold the first ground of appeal.

Ground 2: Allowing Submissions and Evidence to Range Beyond the Twelve Relevant Transactions

42. This ground of appeal is plainly made out. It will be recalled that in paragraph 11 of his judgment dated 29^th April 2010 Mr Dove had said: "if there was, notwithstanding the clear assurance given by Mr Marriott to this court that references in the judgment to other matters beyond those 12 transactions are not to be the basis of any additional evidence put before the defendant, even if that were to be attempted, I am satisfied that there is a procedural safeguard within the mechanism of the Tribunal and its procedures which would enable any such attempt, in the light of the assurances given to this court, to be rapidly snuffed out." Unfortunately the Tribunal were not aware of this passage. They allowed the proceedings to go forward on an extended basis.
43. Mr Barton in his opening speech made extensive references to matters which went beyond the twelve relevant transactions. For example he referred to payments made to the family of Dr Chiluba before June 2002. He referred to untraced payments after November 2001 but before June 2002, said to have been dishonest. He referred to a number of other payments made before 2002, which do not form part of the ten traces and which do not form part of the post-matrix payments or the Chiluba payment. At one point during Mr Barton's opening there was the following exchange:

"Mr Lamacraft: Sir, I need to flag again that this is excluded by the concessions.

Mr J N Barnecutt: Well, I hear what you say, Mr Lamacraft but we will make much more progress if we don't have continual objections based on the same theme."

44. After the opening speeches were complete, Mr Davies, the Forensic Investigator, gave evidence. Mr Davies referred to payments made by Mr Thaker to Mr Kaunda and his family. Mr Davies gave evidence of many other payments which fell outside the twelve relevant transactions. The Tribunal did not stop any of that evidence. At one point Mr Lamacraft made a valiant attempt to shut out inadmissible questioning. Mr Lamacraft's application was resisted by Mr Barton, and then refused by the Tribunal: see pages 123 to 125 of the transcript.
45. When Mr Thaker came to give his evidence, he was cross-examined about matters outside the twelve relevant transactions. See, for example, pages 340 to 345 of the transcript where Mr Thaker was cross-examined about payments to Mr Kaunda.
46. I do not criticise the Tribunal in this regard. The Tribunal did not have a transcript of Mr Dove's judgment. The Tribunal were accepting what Mr Barton told them was the position. It is now clear, however, that by allowing the proceedings to range far and wide, the Tribunal unwittingly caused injustice to Mr Thaker.
47. I would therefore uphold the second ground of appeal.

Ground 3: Erroneous Findings

48. Mr Thaker contends that the Tribunal ought not to have found him reckless in respect of the ten traces or in respect of the post-matrix payments. The Tribunal ought not to have found him dishonest in respect of the Chiluba payment.
49. Let me deal first with the ten traces. Mr Thaker deals with these ten transactions individually on pages 15 to 27 of his witness statement. He sets out the history of each transaction and states why he believed each transaction to be legitimate.
50. Mr Thaker's cross-examination spans 154 pages of transcript. Somewhat surprisingly, so far as I can see, there is no cross-examination about any of these ten transactions. Mr Barton did not take Mr Thaker through the details of any of those matters or suggest to him that he was being reckless in respect of that particular transaction.
51. It should also be noted that in so far as Mr Davies gave evidence about the ten traces, his evidence did not establish recklessness on Mr Thaker's part. See the cross-examination of Mr Davies at pages 142 to 144 of the transcript. See also Mr Davies exposition elsewhere in his evidence of various pages in the ledger.
52. In those circumstances the Tribunal were put in a difficult position. They did not hear Mr Thaker tested about any of the assertions on pages 15 to 27 of his witness statement. In their written decision the Tribunal do not make any specific findings about any of the individual transactions in the ten traces. Instead they deal with the matter globally at paragraph 81, as quoted in Part 2 above.
53. In their written reasons the Tribunal do not identify any feature in any of the ten traces which should have alerted Mr Thaker to the fact that the money passing through his client account was being stolen from the Zambian State by the President and his associates. It may well be the case that Mr Thaker was reckless in respect of some or all of the ten traces. But no specific facts are identified by the Tribunal as justifying that conclusion in respect of each, or indeed any, of the ten traces.
54. Undoubtedly, this is a case where much suspicion is generated. The evidence to prove recklessness in respect of each of those transactions may very well exist. However, so far as I can see, that evidence was not deployed at the hearing. Nor was it recited in the Tribunal's reasons. In my view, therefore, there has been no proper investigation or assessment of the SRA's allegations in respect of traces 1 to 10. The finding of gross recklessness in respect of those matters cannot stand.
55. I turn now to paragraph 2.4.5 of the RAS and the Chiluba payment. Undoubtedly Mr Thaker had a case to answer in respect of this allegation. This was a transaction which Mr Justice Peter Smith had regarded as dishonest: see paragraphs 862 to 865 of his judgment. However the judge's findings in respect of dishonesty cannot be relied upon in the disciplinary proceedings: see Rule 30 of the 1994 Rules and Constantinides. It should also be borne in mind, that although Cave Malik's appeal was compromised, Meer Care's appeal went to a full hearing, where the judge's approach to dishonest assistance by a solicitor was criticised.
56. The allegations in paragraph 2.4.5 of the RAS were properly put to Mr Thaker in cross-examination. He gave evidence as to why he believed that the transaction was lawful. At the relevant time Dr Chiluba was still President of Zambia. There had only been one tabloid article suggesting that Mr Chiluba was stealing Government money. The journalists who had written that article were being prosecuted for criminal libel. Mr Thaker said that he did not believe the press article. He thought that the transaction, though unusual, was lawful. Mr Thaker said that he was instructed by an existing client to make this payment to the President of Zambia, whom he had never met before.
57. The Tribunal heard Mr Thaker's evidence about these matters and they disbelieved that evidence.
58. If the disciplinary proceedings had been conducted in a fair manner up to this point, I would be inclined to say that this finding of dishonesty should stand. But those proceedings were not conducted in a fair manner, for the reasons which I have set out above. Furthermore, the Tribunal's adverse findings in respect of Mr Thaker's conduct between March 1996 and February 2001 cannot stand for the reasons stated above. Against that background the finding of dishonesty in respect of the Chiluba payment cannot be allowed to stand. In my view, Mr Thaker is entitled to a re-trial on this issue in the context of proceedings which are fairly conducted.
59. I come finally to paragraph 2.4.6 of the RAS and the post-matrix payments. My conclusions in respect of this allegation are broadly similar. If the proceedings as a whole had been conducted in a fair manner, the Tribunal's finding of gross recklessness under paragraph 2.4.6 could not be faulted. However, against the background of these proceedings the finding of gross recklessness cannot be allowed to stand.
60. Let me now draw the threads together. If a solicitor is going to be struck off the Roll for acts of dishonesty and gross recklessness, he is entitled to a fair process and a fair hearing before that decision is reached. In this case Mr Thaker did not receive either a fair process or a fair hearing. This occurred because of the manner in which the case against him was pleaded and presented to the Tribunal.
61. In those circumstances it is not necessary to consider the fourth ground of appeal. Instead I must draw matters to a conclusion.
Part 4. Conclusion
62. For the reasons set out in Part 3 above, in my view the Tribunal's findings of gross recklessness and dishonesty cannot stand.
63. Accordingly, if My Lord agrees, I would order that this matter be remitted to the Solicitors' Disciplinary Tribunal for a re-hearing on such of the allegations of gross recklessness and dishonesty as the SRA wishes to pursue in respect of the twelve relevant transactions.
64. In order to have an effective re-trial, the SRA must serve a properly drafted Rule 4 statement in respect of any of the twelve allegations which it wishes to pursue. For the avoidance of doubt a properly drafted Rule 4 statement will set out a summary of the facts relied upon. It would be helpful if those facts are set out concisely and in chronological order. The reader should not have to burrow through hundreds of pages of annexes in an attempt to piece together what acts are being alleged. It is the duty of the draftsman (not the reader) of a pleading or a Rule 4 statement to analyse the supporting evidence and to distil the relevant facts, discarding all irrelevancies.
65. If the Rule 4 statement alleges that Mr Thaker knew or ought to have known certain matters, the facts giving rise to that actual or constructive knowledge should also be set out. Once the Rule 4 statement has set out the primary facts asserted, it should then set out the allegations which are made on the basis of those primary facts. The person who drafts the Rule 4 statement should heed the guidance given by this court in Constantinides in relation to pleading dishonesty. In a complex case such as this the Solicitors' Disciplinary Tribunal needs to have a coherent and intelligible Rule 4 statement, in order to do justice between the parties.
66. In the result, therefore, this appeal is allowed on ground 1, ground 2 and, in part, ground 3. The matter is remitted to the Solicitors' Disciplinary Tribunal. All further directions are to be given by that Tribunal.

Mr Justice Sweeney:

67. I agree.
_________________________________ ORDER _________________________________

UPON this appeal coming before this Honourable Court for hearing on the 1 March 2011

AND UPON HEARING Counsel for the Appellant and the Solicitor Advocate for the Respondent

AND UPON READING the written submissions and documents filed by the parties.

IT IS ORDERED as follows:

1. That the Appeal be allowed on the grounds stated in the judgment at paragraph 66.

2. That the Order of the Solicitors Disciplinary Tribunal dated the 14 May (as varied on the 21 May in relation to costs) be set aside;

3. That the disciplinary proceedings numbers 9697/2006 be remitted back to the Solicitors Disciplinary Tribunal for rehearing before a differently constituted Tribunal;

4. That the Respondent do pay (i) the Appellant's costs of this appeal and (ii) Mr Thaker's costs of the proceedings before the Solicitors Disciplinary Tribunal. Such costs to be subject to a detailed assessment unless agreed;

5. The Respondent do make an interim payment of £20,000 on account of costs within 14 days.

_________________________________ NOTE _________________________________

The reasons for paragraph 4 of the order dated 22^nd March 2011 are that the costs of the previous proceedings before the Solicitors' Disciplinary Tribunal have been wholly wasted as a result of errors on the part of the SRA. Whatever the ultimate outcome of this case, the SRA should bear the previous costs which have been thrown away.