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
		20/11/2013

Mr Justice Mostyn:

1. This is my judgment on the appeal against sentence mounted by Aloysius Obi against an order of the Solicitors Disciplinary Tribunal dated 4 March 2013 striking him off the roll of solicitors. The appellant argues that the sentence was disproportionate.

The test for appellate review

2. This appeal is governed by CPR 52.11(3) which provides:

"The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court"

3. In Bolton v Law Society [1994] 1 WLR 512 Sir Thomas Bingham MR propounded the relevant test by citing the well-known pronouncement of Lord Upjohn in McCoan v General Medical Council [1964] 1 WLR 1107 who in turn cited Lord Goddard CJ in In re a Solicitor [1956] 1 WLR 1312 that "it would require a very strong case to interfere with sentence in such a case, because the Disciplinary Committee are the best possible people for weighing the seriousness of the professional misconduct".
4. In Law Society v Salsbury [2008] EWCA Civ 1285 [2009] 1 WLR 1286 Jackson LJ reconsidered this test in the light of the advent of the Human Rights Act 1998 and the incorporation into domestic law of (some of) the rights within the European Convention on Human Rights signed in Rome in 1950. At para 30 he stated:

"From this review of authority I conclude that the statements of principle set out by the Master of the Rolls in Bolton remain good law, subject to this qualification. In applying the Bolton principles the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitor under articles 6 and 8 of the Convention. It is now an overstatement to say that "a very strong case" is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere. It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review; see CPR rule 52.11(1)"

5. The question of the interface of the Human Rights Act with the appellate function has recently been exhaustively considered by the Supreme Court in Re B (a child) http://www.bailii.org/uk/cases/UKSC/2013/33.html[2013] UKSC 33, [2013] 1 WLR 1911 in the context of care proceedings under the Children Act 1989. In such proceedings the appellate test had long been that the impugned decision was "plainly wrong". The wrongness was stressed adverbially, just as it was in Salsbury where the test was that the impugned decision was "clearly inappropriate".
6. At para 91 Lord Neuberger PSC stated:

"That conclusion leaves open the standard which an appellate court should apply when determining whether the trial judge was entitled to reach his conclusion on proportionality, once the appellate court is satisfied that the conclusion was based on justifiable primary facts and assessments. In my view, an appellate court should not interfere with the trial judge's conclusion on proportionality in such a case, unless it decides that that conclusion was wrong. I do not agree with the view that the appellate court has to consider that judge's conclusion was "plainly" wrong on the issue of proportionality before it can be varied or reversed. As Lord Wilson says in para 44, either "plainly" adds nothing, in which case it should be abandoned as it will cause confusion, or it means that an appellate court cannot vary or reverse a judge's conclusion on proportionality of it considers it to have been "merely" wrong. Whatever view the Strasbourg court may take of such a notion, I cannot accept it, as it appears to me to undermine the role of judges in the field of human rights."

7. I cannot see that this reasoning can or should be confined to care proceedings. Rather, it seems to me to be applicable in every civil case where an appeal is mounted against what is said to be a disproportionate disposal. Accordingly, I propose to judge this appeal by reference only to the criterion of whether the decision below was wrong, no more no less. After all, this is exactly what CPR 52.11(3)(a) says.
8. However, in determining whether a decision was "wrong" does not involve the appeal court entering into an exercise of sentencing anew. A decision will not be wrong simply because the appeal court might, had it been sitting at first instance, have awarded a different sentence. See in this regard the analysis in Re B at paras 93-94 and in particular the observation that "there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions." In such cases any appeal "must be dismissed". Further, nothing in Re B casts any doubt on the statement in Salsbury that "the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest." And that "absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal."

The principles to be applied by the Tribunal

9. These are set out in Bolton v Law Society.
10. First, where dishonesty is proved or admitted then, per para 14:

"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."

11. Second, in a case not involving dishonesty, but where the solicitor is shown to have fallen below the required standards of integrity, probity and trustworthiness, then:

"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."

12. Third, much wider considerations are in play than merely the questions of the appropriate punishment for, and the personal impact of the sentence on, the solicitor. Per paras 15 and 16:

"15. 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.

16. 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."

(emphasis added by me)

This case

13. The order here was the third time that the appellant had been struck off. On the first two occasions (29 September 2006 and 26 October 2010) the appellant mounted successful appeals. On the first occasion the appellant was found guilty of two charges of dishonest conduct as well as of three other lesser charges not involving dishonesty. He was ordered to be struck off. His appeal was allowed by consent and the matter was directed to be reheard. On the second occasion the appellant was acquitted of the two charges of dishonesty; he had admitted the three lesser charges. In sentencing him the Tribunal brought into account as an aggravating factor the fact that the appellant admitted having given perjured evidence before the first Tribunal in September 2006. The appellant's appeal against the sentence of the second Tribunal was allowed by Mr Justice Foskett on 8 November 2012. He was concerned that the Tribunal made no reference to the fact that by then the appellant had been barred from practice for over four years and also by their failure to make reference to having excluded suspension as an inadequate sanction. But his primary concern was that it appeared to him that the Tribunal, having acquitted the appellant of the two charges of dishonesty, nonetheless allowed their reservations and concerns about his conduct in relation to those events to contaminate their sentencing reasons in relation to the admitted lesser charges. And so the issue of sanction was remitted for rehearing.
14. That rehearing took place on 28 January 2013, and as I have stated, judgment was given on 4 March 2013. In the reasons at paragraph 18 the Tribunal stated that it attached "little weight" to the issue of the perjury before the first Tribunal as "this was not directly relevant to the allegations which the appellant had admitted and which were found proved".
15. The tribunal concluded that the appropriate penalty for those three admitted charges, uninfluenced by any other conduct of the respondent, was to be struck off.
16. The three charges in question were as follows:

i) the appellant set up and/or had been involved in a solicitors firm, Chris Dale & Co (of Stratford London E15), 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; and

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

17. The background to these charges was as follows. The appellant obtained a law degree from the University of Wolverhampton in 1995. On 20 October 2002 the appellant became a Fellow of the Institute of Legal Executives ("Filex"). On 17 November 2003 the appellant was admitted and enrolled as a solicitor. Obviously before his enrolment he could not have lawfully been a partner in a firm of solicitors. To hold yourself out falsely as a solicitor is a criminal offence under section 21 of the Solicitors Act 1974.
18. In the autumn of 2002 the appellant was the prime mover in setting up the solicitors firm Chris Dale & Co. He persuaded his friend Mr Godwin Ijomanta, a qualified solicitor who had his own private practice, to "front" this new firm. But his friend was no more than a cipher who had virtually nothing to do with the new firm, although he was paid £1000 a month for lending his name to it and providing, as Mr Williams QC graphically put it, a "flag of convenience". This simply cannot be disputed. On 27 October 2003 the appellant wrote a letter to his friend in which he stated:

"I regret the circumstances and arrangement of putting your name as the principal of my business Chris Dale & Co, solicitors, but it does not give you the right to sell the business without my permission. I set up the business alone without your financial contribution except your name…"

19. In similar vein the appellant wrote to the Law Society on 24 February 2004 in these terms:

"I regard the company as my business because I funded it from penny up to about £45,000. Mr Ijomanta did not contribute a dime, rather his supervisory position. There was an oral agreement and arrangement between me and Mr Ijomanta that I should fund and practice manage the firm whilst he is the principal and supervisor of the firm on trust, pending the time I am admitted as a solicitor, then we can become partners, whereof the amount spent on funding the firm will become my contribution. He was being paid £1000 a month for this arrangement ..."

20. On 15 October 2002 the appellant wrote to the Registration Department of the Law Society on the firm's letter paper. At the bottom of the letter paper the details of the participants in the firm are given. It stated:

Senior Partner: G.N. Ijomanta LLB (Hons)

Partner & Practice Manager: A.I. Obi Filex, LLB (Hons)

Legal Assistant: T Onuoha LLB (Hons)

In the text of the letter it described the personnel as follows:

1. Mr G.N. Ijomanta is the supervising solicitor with Roll No. 271312

2. Mr A I Obi is the Practice Manager

3. Mr T Onuoha is the legal Assistant

21. An eagle-eyed reader might have noticed that the appellant did not describe himself as a solicitor and that in the footer to the letter he had included the word Filex. However, it is obvious that the Law Society did not notice this as had they known that the appellant was not a solicitor they would surely not have allowed the registration of this firm on the representations made to it.
22. On 16 December 2012 the firm was registered with the Law Society as a new practice.
23. Thereafter the appellant masqueraded as a qualified solicitor and partner of the firm. No doubt he did plenty of work whereby his clients were misled as to his lack of status as a solicitor.
24. One instance of such work involved a money-laundering documents check undertaken on 13 January 2003 for a couple who wished to re-mortgage their home in Essex. They were being represented by solicitors in Winchester. The money-laundering regulations require the necessary documents to be seen by a solicitor holding a current practising certificate. If the documents are not seen by a solicitor and certified then the mortgage money will not be made available. The appellant wrote his name at the top of the form in the space supplied within the text that asserted that he was a solicitor holding a current practising certificate. He witnessed the mortgage deed and next to his signature into two places affixed a stamp or chop which described him as "a solicitor\commissioner for oaths".
25. The appellant told me, as indeed he told the tribunal, that this was a mistake. He had used the wrong stamp. He produced a letter from a stamp maker which explained that he had asked for a commissioner for oaths stamp to be made and that they had made it with the words "a solicitor\commissioner for oaths". When the appellant went to collect the stamp he rejected it as it was wrong and they made a new stamp with the words "FILEX\commissioner for oaths". Both stamps were delivered to the appellant on around 13 January 2003, the very day on which the documents were signed and witnessed. The appellant's case was that he mistakenly used the wrong stamp. I simply cannot accept this. Whether in fact the second stamp existed at that time I need not speculate about. I am convinced, however, that the appellant used the first stamp as part of his masquerade. After all, the appellant falsely represented at the beginning of the money-laundering form that he was a practising solicitor, and inevitably he was going to use a stamp that was consistent with that falsehood.
26. On 15 January 2003 the solicitor for the couple wrote a letter of enquiry to the Office for Supervision of Solicitors. They had not been able to identify online or by telephone calls to the Law Society either the firm or the appellant as a solicitor. They wanted the Law Society to confirm "that the solicitor in question is indeed a solicitor" so that they might complete the transaction. This led to an investigation by the Law Society who wrote their first letter to the appellant and to Mr Ijomanta on 22 September 2003. It would appear that this enquiry led Mr Ijomanta to bar the appellant from the firm's place of business and later to dissolve it.
27. I record at this point that Mr Ijomanta was also a defendant in the first tribunal proceedings where he was convicted on the first charge alone and suspended for two years. He did not appeal that sentence.
28. It can be seen that the three charges against the appellant, which he admitted, were very fully evidenced and that the scale of misconduct was extensive.
29. The third tribunal, the verdict of which is the subject of this appeal, took the view in paragraphs 21 to 24 of its reasons that the misconduct by the appellant was very serious indeed. Although this was not a case of dishonesty this was a very serious departure from the standards expected of a solicitor. It formed the view that the conduct would have caused serious damage to the reputation of the profession and to the trust that the public placed in members of that profession.
30. As part of the mitigation advanced by counsel instructed by the appellant emphasis was placed on "the fact that ILEX have continued his membership, knowing of the on-going proceedings against the respondent". When advancing mitigation there is in my opinion a high duty of candour imposed on the representor. In the nature of things is impossible to verify assertions made in mitigation.
31. When Mr Williams QC arose to address me he drew my attention to a surprising new development in the case. Someone in his team had alighted on the newsletter of CILex for November 2013. This revealed that CILex itself had instituted disciplinary proceedings against the appellant. It alleged that from May 2011 the appellant through a business which purported to be a limited company had held himself out to the public through established websites as having the lawful ability to provide immigration advice and services. On 2 August 2012 a CILex disciplinary tribunal found the allegations proved and excluded him from membership for five years. The appellant appealed. By the time the tribunal in these proceedings held its hearing on 28 January 2013 that CILex appeal had not been heard. Yet the appellant kept totally silent about this before the tribunal and allowed his counsel, completely innocently I have no doubt, to advance a false representation.
32. It gets worse. The CILex appeal panel dismissed the appellant's appeal on 15 August 2013. The appeal in these proceedings had by then been mounted. The appellant produced in these proceedings a witness statement dated 5 November 2013. In that statement the appellant made heartrending pleas concerning the terrible hardship that had been inflicted on him by virtue of being barred from practice for seven years. In his oral submissions to me he burst into tears when he described how he had had to work as a cleaner. It was an affecting performance. But neither in his witness statement nor in his oral submissions did the appellant once mention the parallel disciplinary proceedings mounted against him by CILex. Had it not been for some vigilant reader in the SRA this court would have been materially misled.
33. There are of course other similarities between the conduct of the appellant in these proceedings and his conduct in the parallel proceedings. They both involve him masquerading as qualified in a legal way.
34. When I asked the appellant during his submissions in reply why he had not mentioned this he merely replied that he "didn't think that he was supposed to tell this to anybody".
35. The submissions of Mr Williams QC were that in the sphere of non-dishonest misconduct the admitted charges were at the top end of reprehensible behaviour. I agree. The potential damage that could be caused by falsely masquerading as a solicitor is incalculable. The potential damage to the reputation of the profession by such conduct is huge.
36. The tribunal formed the view, exercising its specialist skills, and acting as it must as specialist guardians of the reputation of the profession, that given the scale of misconduct here nothing short of expulsion from the profession would suffice as an appropriate penalty. In my judgment that was a decision that the tribunal was plainly entitled to reach. Indeed had I been sitting on it I believe I would have reached precisely the same decision, notwithstanding my feelings of sympathy for the predicament in which the appellant finds himself. It was not a wrong decision.
37. This is not to say that restoration by application under section 47 of the Solicitors Act 1974 is an impossibility here. On any such application the appellant will have to show, in the words of Sir Thomas Bingham MR in Bolton v Law Society (which I have already quoted above) that he has made real efforts to re-establish himself and to redeem his reputation. He will however have a lot of explaining to do about the CILex proceedings.
38. For all these reasons the appeal is dismissed.

LATER

39. The SRA applies for its costs, and has produced a schedule in the sum of £17,767.50. Of this £13,000 are the fees of Mr Williams QC.
40. Plainly the SRA is entitled to its costs. In the light of my findings concerning the want of candour of the appellant it is right that these should be summarily assessed as close as I can to an indemnity assessment were the issue to go before a costs judge.
41. In my judgment given the nature of the matters raised on the appeal it was entirely reasonable that the SRA should instruct Mr Williams QC. This was a document heavy case with a long and complicated history. Further, the charging rate of £300 per hour of Mr Williams QC would be reasonable for any counsel doing a case of this nature.
42. However, even on an indemnity assessment some amount would inevitably be disallowed. The usual rule of thumb is to allow 90% on such a basis. In my judgment the right figure to award against the appellant and in favour of the SRA is £16,000.