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
		08/11/2012

Mr Justice Foskett:

1. The Appellant, who is now aged 50, appeals to this court against the decision of the Solicitors Disciplinary Tribunal (the 'SDT') to strike him off the roll of solicitors. The decision was announced on 29 October 2010 following a hearing that had taken place on 27 and 28 October. The written reasons for the decision were dated 1 December 2010 and filed with the Law Society on 8 December. The Appellant launched this appeal in time, but it has had a somewhat chequered history in its process to the court. Nonetheless, it has arrived here finally and has been fully argued.
2. The Appellant has appeared in person and has articulated his arguments clearly, courteously and concisely. I do not consider that he has been disadvantaged by not having Counsel to act for him. Mr Geoffrey Williams QC, who acted for the Solicitors Regulation Authority (the 'SRA'), very fairly drew my attention to one matter of some potential significance that might tell in the Appellant's favour to which I will refer later (paragraph 21).
3. There is a rather long history to this matter, although I can record the salient aspects reasonably shortly. The net effect of what has occurred is that the Appellant has been struck off as a solicitor for just over six years and the unusual feature of the case is that by the time of the decision of the SDT under challenge in this appeal he had already been struck off already for four years for certain of the matters that were before the SDT on that occasion. He now seeks an opportunity to re-establish himself within the profession. I will return to this in due course.
4. The background can be expressed quite shortly as follows. The Appellant became a Fellow of the Institute of Legal Executives in October 2002 and was admitted as a solicitor in November 2003. Prior to his admission as a solicitor he was involved in a firm of solicitors called Chris Dale and Co. It was a firm that was set up in December 2002. At the beginning, of course, the Appellant was not a qualified solicitor but he made an agreement with someone who was qualified, Mr Godwin Ijomanta, that Mr Ijomanta should put his name as the sole partner of the firm, with the Appellant named as practice manager, and yet the Appellant would effectively act as a solicitor from the outset. In fact Mr Ijomanta played hardly any part at all in the business. The Appellant's case is that he funded Mr Ijomanta so that the firm would be ready for him, the Appellant, to assume a proper partnership upon his admission as a solicitor.
5. Following investigations the Appellant faced five allegations that were dealt with by a SDT ('the first SDT') in September 2006. The five allegations where these:

i) Set up and/or been involved in a solicitors firm, Chris Dale & Co, in circumstances in which he had known or ought to have known had been improper and/or unprofessional.

ii) Falsely witnessed a mortgage deed on 13 January 2003 and had falsely stated that he had been a solicitor with a current practising certificate.

iii) Produced three practising certificates that had been false.

iv) Attempted to deceive The Law Society by producing three false practising certificates.

v) Misrepresented to the Law Society his involvement in the practice of the solicitors firm of Chris Dale & Co.

6. He appeared jointly with Mr Ijomanta who was the subject of allegations arising out of the arrangement to which I have referred. Mr Ijomanta faced allegations (i), (iii), (iv) and (v) although the phraseology of each differed slightly to reflect his alleged participation. The substance of the case against him was similar to that advanced against the Appellant.
7. The Appellant, who was unrepresented, admitted allegations (i), (ii) and (v), but denied (iii) and (iv). Mr Ijomanta contested all the allegations. The case against the Appellant on allegations (iii) and (iv) were found proved, but not proved against Mr Ijomanta. He was found guilty of (i), but not guilty of (v). The Appellant was struck off and Mr Ijomanta was suspended for two years.
8. The Appellant appealed and this resulted in a consent order dated 14 October 2008 by virtue of which the appeal was allowed in the sense that the case was remitted for another hearing since the Appellant had obtained new evidence. However, it was agreed that he should remain struck off in the meantime. By the time of that consent order he had been struck off for two years.
9. At the new hearing before another SDT ('the second SDT') in September 2010, some two years later, when the Appellant was represented by counsel, he admitted again allegations (i), (ii) and (v), but contested (iii) and (iv). Inevitably, (i), (ii) and (v) were found proved. In relation to allegations (iii) and (iv), the SRA called two witnesses, Mrs Wendy Chikwe and Mr Ijomanta. In support of his case the Appellant gave evidence and Ms Esther Ndiragu, Ms Faith Moyo, Ms Yemi Akinbami and Mr George Akpamgbo also gave evidence. These two allegations were not found established on this occasion although the Tribunal did say that it had "not been impressed with the credibility of the new evidence" relied upon to undermine those two allegations (see further at paragraphs 15 and 16 below). However, the net effect of the second SDT's decision was that the Appellant fell to be dealt with for allegations (i), (ii) and (v) and nothing more. Furthermore, the allegations of forgery of practising certificates, and deception of the Law Society based upon them, had not been established.
10. After the conclusion of the evidence and after hearing the submissions made on behalf of the SRA, the Tribunal, through its Chair, said this first thing on the final morning:

"I would like to open with a remark from the Tribunal, as the evidence has closed in this case. We've heard the [SRA's] closing submissions already. We like to indicate that the evidence we've heard in relation to allegations (iii) and (iv) have not in our view reached the required standard of proof. And Mr Rene [Counsel acting for the Appellant] we know that you were planning to provide your closing submissions to us now and would like to address us on the basis that those allegations are not proved. And given that allegations (i), (ii) and (v) have been admitted, you may like just to move to your mitigation in relation to that, and to note please that the Tribunal does consider these allegations to be very serious, the three remaining …."

11. Because Counsel had (understandably) been expecting to address the Tribunal at some length on allegations (iii) and (iv), and had spent some considerable time preparing, he said that he was "put on the back foot" a bit by the intervention and asked for about 30 minutes to re-consider what he wanted to say. This was granted.
12. His mitigation covered a number of areas. He referred to the fact that the forgery allegations had been hanging over the Appellant for four years and that this was known within the community (by which, I imagine, he meant the local community) and how it had impacted on his ability to gain other employment. He invited the Tribunal to consider what had happened to Mr Ijomanta and there was some discussion involving Mr Peter Cadman, who represented the SRA at that hearing, which identified precisely what was found against him compared with the findings against the Appellant. Counsel for the Appellant drew attention to the courses that the Appellant had attended in the meantime and reference was made to the financial consequences for him and his wife of the earlier findings.
13. Although this is not a matter to which the Appellant drew my attention in his written or oral submissions, and it became apparent to me only when, in reading some of the documentation in preparing this judgment, I read the whole of one part of the transcript to which my attention had been drawn specifically during the argument, it does have to be noted that the Tribunal did not tell the Appellant's Counsel (a) that they did not regard the new evidence called by the Appellant as credible, (b) that they thought that his evidence had been "evasive and inconsistent", (c) that they rejected his account of why he signed the mortgage deed and (d) that they were proposing to take into account his admission in his evidence before them that his evidence before the first SDT had, in one particular respect, been untrue (see paragraphs 15 and 16 below). The Appellant's Counsel did not, therefore, have an opportunity to deal with these matters.
14. As part of his submissions on sanction his Counsel said this:

"I would submit that the four years in which he has been struck off should serve as his punishment. I would submit that it would not be proportionate to subject him to further suspension. There is no reason why Mr Obi should not be reinstated as a solicitor with strict supervision criteria imposed upon him."

15. In summarising their view of the allegations found established and the consequences in the terms of the penalty, the Tribunal said this at the time they announced their decision on 29 October 2010:

"The Tribunal has given this matter very full and careful consideration. The allegations admitted are very serious indeed … particularly allegation (v) in which the Tribunal is satisfied that the misrepresentation to the OSS in the letter dated 5th November 2003 was a blatant misrepresentation.

The Tribunal finds the witnesses called to give the new evidence were not found to be credible, the standard of proof not being achieved in the practising certificate allegations which were not proved, was nothing to do with the witness evidence that have heard.

Additionally, Mr Obi gave evidence yesterday that he gave false evidence at the hearing in 2006 and this is a concern. This illustrated his lack of probity. A solicitor is required to discharge his professional duties with integrity, probity, and complete trustworthiness. This Tribunal could not find that Mr Obi met the standard. In fact, he fell far below.

The Tribunal therefore orders that the respondent ... be struck off the roll of solicitors and further orders that he pay the costs of and incidental to this application and inquiry fixed in the sum of £23,000, such order not to be enforced without leave of the Tribunal."

16. In the written reasons given some 7 weeks or so later, the Tribunal said this:

"78. The Tribunal noted the requirements for solicitors as referred to in Bolton v The Law Society [1994] 1 WLR 512 in which the Court had said that solicitors must discharge their professional duties with integrity, probity and complete trustworthiness and that any solicitor failing in such discharge must expect the imposition of severe sanctions.

79. The Tribunal was not been impressed with the evidence of the Respondent, which it considered to have been evasive and inconsistent. The Tribunal was satisfied that the Respondent had been involved in setting up a solicitors firm and had represented himself as a qualified solicitor-partner. The letter dated 15 October 2002, to the Registration Department of The Law Society, that he had signed had stated that he was a Partner and Practice Manager in the firm of Chris Dale & Co Solicitors. The attachments to that letter, in particular the Business Plan, had referred to the partners in the firm being experienced and it was clear from the letterhead that there had been only two partners in the firm; the Respondent and Mr Ijomanta.

80. The Respondent had admitted witnessing a mortgage deed as a solicitor. Looking at the wording of the mortgage deed, the Tribunal was unable to accept the Respondent's explanation that he had been signing only as a member of ILEX because the document had clearly stated that the person had been signing as "a solicitor holding a current practising certificate".

81. The Tribunal was concerned that, particularly in relation to allegation (v), the Respondent had admitted when giving evidence before it that evidence he had given on oath before the previous Tribunal in relation to his letter of 5 November 2003 to the OSS, had been untrue. The Tribunal considered the contents of that letter, particularly under paragraphs numbered 2 and 3, to have been a blatant misrepresentation of the true position to his professional regulator.

82. In the context of a solicitor being required to discharge his professional duties with integrity, probity and complete trustworthiness, the Tribunal could not find that the Respondent had met that standard in fact it found that the Respondent had fallen far below it.

83. In all the circumstances, the Tribunal considered that the appropriate penalty was that the Respondent be struck off the Roll of Solicitors and it so Ordered."

17. I will return to the way the Tribunal expressed itself later, but the essential argument of the Appellant is that, having been acquitted of the two very serious allegations of forgery, the second SDT should not have found that the allegations established were sufficient to justify striking him off and/or that insufficient account was taken of the fact that he had been struck off by then for 4 years at least partly on the basis of allegations that, in due course, were found not to be established. He has also sought to contrast what happened to him and what happened to Mr Ijomanta in the final event. Each had been acquitted of (iii) and (iv), but Mr Ijomanta was merely suspended for two years whereas the Appellant was struck off. The Appellant has sought to submit before me that the second SDT (which, of course, did not have to deal with Mr Ijomanta) appeared to approach the case on the basis that only the Appellant was responsible for the wrongdoing reflected in (i).
18. In his Skeleton Argument, and in his oral submissions, he has put forward his version of the events that did give rise to the allegations that were admitted largely to counteract the way Mr Williams QC has sought to characterise them in his Skeleton Argument. For my purposes, it seems to me that I must take the circumstances as described by the second SDT as the starting point because the Tribunal had the advantage of hearing from the Appellant as a witness and having the full picture presented to them.
19. The Appellant has made an eloquent plea for, in effect, mercy from this court because, as he has put it, he has been punished for over six years for what he did which he accepts was, in effect, a great mistake. I have seen a letter from his wife addressed to the court explaining, in moving terms, the effect that the whole affair has had, not only upon the Appellant, but upon the whole family. Undoubtedly the impact of his very foolish behaviour has been very great and his hope is that he can be given a chance to redeem himself.
20. As I explained to him, it is not within the court's power to do other than to review the decision made by the SDT and to consider whether the sanction imposed at the time it was imposed was "clearly inappropriate": see Salsbury v Law Society [2009] 1 WLR 1286; Solicitors Regulation Authority v Dennison [2012] EWCA Civ 421. Whether, if he remains struck off, he can ever regain his practising certificate is not something about which the court is in a position to decide at this stage: that is a matter for the Tribunal in the sense that any application for restoration to the Roll must be made to the Tribunal. If such an application is granted then an application for a Practising Certificate must be made to SRA. It follows that the court also does not have any control at this stage on any conditions imposed on the renewal of his practising certificate.
21. It follows, as I have said, that the test for interference in this court is whether the sanction decision was "clearly inappropriate". It is well-established that where a solicitor has been found guilty of dishonesty, the approach ordinarily adopted is to look for "exceptional circumstances" before deciding not to strike the solicitor off the record. I am bound to say that when I first read the written reasons given by the Tribunal for its decision, without having focused fully on the phraseology of the allegations, it seemed to me that they were treating the case as one involving findings of dishonesty. Mr Williams very fairly disabused me of that notion early in the hearing and drew my attention to the fact that, as formulated, none of the allegations alleged dishonesty. What, therefore, might be said to be the starting point in relation to sanction from that point of view did not arise. It may also have an impact on the potential for the Appellant's restoration to the Roll (see paragraph 30 below).
22. It is clear, on further analysis and indeed by reference to the written reasons for their decision, that the Tribunal were looking on this case as one in which the Appellant's conduct (essentially setting up a firm before he was entitled to do so and masquerading as a solicitor) fell into the category said in Bolton v The Law Society to justify nothing less than suspension, namely, to protect the reputation of the profession.
23. In this context it is worth setting out in full that part of the judgment of Sir Thomas Bingham MR, as he then was, to see the parameters within which the Tribunal must be taken to have been operating:

"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.

Because orders made by the Tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."

24. There can, in my judgment, be no doubt that the Tribunal were amply justified in treating the Appellant's conduct as falling within the category that fell "below the required standards of integrity, probity and trustworthiness": it involved setting up what Mr Williams described in argument as a "bogus" firm for the period until the Appellant was admitted as a solicitor and, even leaving to one side the witnessing of the mortgage deed (which, of itself, was arguably not as serious as other matters and simply represented one instance of what the Appellant was doing at the time), actively misrepresenting the situation to the Law Society over a period of time. All that, without more, was sufficient to bring the circumstances within the category I have identified.
25. However, as the extract from Sir Thomas Bingham's judgment in Bolton demonstrates, a striking off order does not inevitably follow in such a case, although it may well do, and the decision whether to strike off or to suspend may involve "a fine and difficult exercise of judgment". This does suggest that, whatever the ultimate decision, a Tribunal faced with such a decision ought generally to indicate why it has reached the decision it has: in other words, if the decision to strike off is made, ordinarily the Tribunal should indicate that they have considered whether suspension is a sufficient sanction, but have decided that it is not for whatever reasons may, in the circumstances, be thought appropriate. This is the way in which the issue of the choice between suspension and erasure (the term used in the medical context) is considered in the context of medical disciplinary matters. There can be no distinction in principle between that situation and that of an SDT considering effectively the same issue.
26. There are three matters concerning the Tribunal's decision about which I am uneasy:

i) That the Tribunal did not indicate its thinking to the Appellant's counsel about the matters I have referred to in paragraph 13 above. At the end of the day, to the extent that two of these were matters of impression for the Tribunal, it might be said that it would have made no difference. However, Counsel might have had some submission that might have altered their minds, most particularly that, by whatever route they got to it, the Tribunal had acquitted the Appellant of allegations (iii) and (iv) and that they should put any reservations they had about the evidence concerning those allegations out of their minds. However, the Tribunal referred specifically to both these matters on the day of the announcement of their decision and in their written decision later, arguably suggesting that they may have been influenced by them.

ii) The Tribunal made no reference at all (even if only to dismiss it as irrelevant) to the fact that the Appellant had already been barred from practice for four years (partly, at any rate, because of adverse findings on allegations (iii) and (iv) which had now been set aside) and to Counsel's argument that, for that reason, no further "suspension" should be imposed.

iii) The Tribunal made no specific reference to having excluded suspension as an inadequate sanction in the circumstances.

27. I should, perhaps, say that I do not feel any unease with a decision that differentiated between the sanction imposed on the Appellant and that imposed on Mr Ijomanta. The latter was only found guilty by the Tribunal of involvement in allegation (i) and his role, though important, could justifiably be seen as less than that of the Appellant. If that assessment is wrong, and Mr Ijomanta was the beneficiary of a more benevolent conclusion than was justified, that would not operate as a reason for interfering with a sanction imposed on the Appellant that was otherwise justified.
28. The question arises as to whether the matters to which I have referred in paragraph 26 should translate into a successful appeal. For my part, had the Appellant been found guilty of allegations (i), (ii) and (v) by the first SDT and acquitted of (iii) and (iv), but nonetheless was struck off the roll at that time, my view would have been that such a sanction was not "clearly inappropriate". I would have expected the first SDT to explain why suspension was not considered an adequate sanction, but if the SDT had said that the circumstances were so serious that only striking off was to be regarded as appropriate, that would have been a decision that, as "an informed and expert body", I would have concluded was justified.
29. The difference, of course, between the imposition of such a sanction then and the imposition of such a sanction in 2010 is that in the intervening four years the Appellant had been barred from practice and, as I have said before, barred at least partly by reference to allegations that were not established on the second occasion. Whilst I recognise that the second SDT may have taken into account four years "disqualification" from practice, the lack of reference to it in otherwise detailed reasoning does raise the question of whether it was either considered at all or considered sufficiently. Since it had been raised by Counsel specifically in the context of arguing that no further suspension was required, I am of the view that the Tribunal's decision should have addressed this issue specifically. In those circumstances, the reasons given for the conclusion were not sufficient.
30. Mr Williams has said that because the Appellant had been struck off for non-dishonest conduct he may well have realistic prospects of making a successful application to the Tribunal for restoration to the Roll which would not have been the case had he been found to have acted dishonestly – and this is so even if, as seems very likely, the Appellant would never be trusted to act as a solicitor in the future otherwise than in a closely supervised situation. Whether the relative prospect of a successful application for restoration to the Roll should have an impact on the choice between suspension and striking off is something that will doubtless be well-known to the members of an SDT and taken into account accordingly at the time of considering the sanction to be imposed.
31. I am very reluctant not to come to a final conclusion in this case given all the delays, but I can see no alternative in the circumstances but to remit the case to a differently constituted SDT for reconsideration of the issue of sanction.
32. That Tribunal would have to approach the case on the basis that allegations (i), (ii) and (v) were established as alleged and that the Appellant's explanation for (ii) was not credible and that (v) involved the "blatant misrepresentation" referred to by the second SDT. It would be necessary for the new Tribunal to ignore any matters concerning allegations (iii) and (iv). It would be open to them to receive argument about whether they should take into account the fact that the Appellant admitted to the second SDT giving false evidence about one particular matter to the first SDT, but they may feel it safer to ignore that aspect also and focus solely on the allegations that have been established. They should, of course, take into account the current position as it is when the matter is dealt with by them (which will include the fact that the Appellant has been struck off since September 2006) and any up to date mitigation and other information about the Appellant.
33. Accordingly, the appeal is allowed on the basis I have indicated. I hope that arrangements can be made for a relatively early hearing by an SDT. The Appellant may think it to his advantage to arrange for some representation before the SDT if he can do so.