England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
On appeal from the Solicitors Disciplinary Tribunal

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/09/2014

MR JUSTICE WILKIE:

Introduction

1. Alastair Brett, a solicitor of the Supreme Court admitted on 15^th October 1975, appeals, pursuant to Section 49 of the Solicitors Act 1974, against a decision of the Solicitors' Disciplinary Tribunal (SDT), dated 6^th December 2013. It followed a hearing held on 5^th December 2013. The SDT decided that Mr Brett should be suspended from practice as a solicitor for 6 months, commencing 16^th December 2013, and that he pay the costs of those proceedings summarily assessed at £30,000.
2. The findings of the SDT, giving rise to that order, were that he was guilty of two breaches of the Solicitors Code of Conduct 2007. Those breaches were: of Rule 1.02, that he failed to act with integrity; and, of Rule 11.01, that he knowingly allowed the Court to be misled in the conduct of litigation. The SDT's reasons are contained in a judgment dated 17^th January 2014, filed with the Law Society on 22^nd January 2014.
3. Mr Brett appears before us as a Litigant-in-Person. He was represented before the SDT by counsel and solicitors. Timothy Dutton QC appeared before the SDT for the Solicitors' Regulation Authority (SRA), which prosecuted the allegations of breach, and he has appeared before us in that capacity.
4. Mr Brett was, until recently, Legal Manager at Times Newspapers Ltd (TNL) a position which he held for over 30 years. He was, in effect, their in-house solicitor.
5. The matters giving rise to the allegations of breach of the code of conduct concerned litigation in the High Court of Justice, Queen's Bench Division, Case No HQ09X02293. The claimant sought an injunction against TNL preventing it from publishing a story revealing him as the author of a blog under the name of "Nightjack". There were two hearings. The first, on the 28^th May 2009, was before Mr Justice Teare and resulted in temporary relief being obtained in the form of undertakings pending a substantive hearing. The substantive hearing was before Mr Justice Eady on the 4^th June 2009. That gave rise to a judgment dismissing the claim for an injunction. On the 12^th June 2009 the judgment was sent in draft form to the parties for the correction of any errors or omissions; it was handed down on 16^th June 2009.

The legal framework

6. Section 46 of the Solicitors' Act 1974 establishes the SDT. One of the tasks of the SRA, the body charged with supervising the professional practice, conduct and discipline of solicitors and clerks, is to present, in an appropriate case, an application before the SDT requiring a solicitor to answer allegations of breaches of the Solicitors' Code of Conduct (Section 47 (1) (b)).
7. The SDT, on the hearing of any such application or complaint, has the power to make such orders as it may think fit including, by Section 47 (2) (b), the suspension of that solicitor from practice, indefinitely or for a specified period, and, by Section 47(2) (i), the payment of the costs in such amount as the Tribunal may consider reasonable.
8. Section 49 provides for an appeal to the High Court. The powers of the High Court are:

"4) The High Court … shall have the power to make any such order on an appeal under this section as (it) may think fit."

9. It is common ground that the approach this court takes on hearing an appeal pursuant to Section 49 is that it will only allow an appeal if the SDT misdirected itself as to the law or the court concludes that the SDT, despite having seen and heard the evidence, and after according the SDT an appropriate measure of respect, reached a decision which was wrong (Langford v The Law Society [2002] EWHC 2802 at paras 14 and 15, and Salsbury v The Law Society [2009] 1WLR 1286 at paragraph 30).
10. The Solicitors' Code of Conduct 2007, at Rule 1, contains "core duties". Rule 1.01 provides:

"You must uphold the rule of law and the proper administration of justice.

1.02

"Integrity

You must act with integrity"

11. The Code of Conduct contains guidance. Its guidance to Rule 1 provides as follows:

"…

2 The core duties perform a number of functions:

a. They define the values which should shape your professional character and should be displayed in your professional behaviour.

b. They form an overarching framework within which the more detailed and more context specific rules in the rest of the code can be understood, thus illuminating the nature of those obligations and helping you to comply.

c. The core duties can help you to navigate your way through those situations not covered in the detailed rules, as no code can foresee or address every ethical dilemma which may arise in legal practice.

d. The core duties are fundamental rules. A breach may result in the imposition of sanctions.

3. Where two or more core duties come in to conflict, the factor determining precedence must be the public interest, and especially the public interest in the administration of justice, compliance with the core duties, as with all the rules, is subject to any over riding legal obligations. …"

12. In respect of Rule 1.02, the guidance says as follows:

"6. Personal integrity is central to your role as the client's trusted advisor and must characterise all your professional dealings – with clients, the court, other lawyers and the public."

13. Rule 11 of the Code of Conduct concerns litigation and advocacy. Rule 11.01 is entitled "deceiving or misleading the Court". It provides as follows:

"(1) You must never deceive or knowingly or recklessly mislead the court"

14. The guidance in the Code of Conduct concerning Rule 11 provides as follows:

"….. 12 Rule 11.01 makes a distinction between deceiving the court when knowledge is assumed and misleading the court which could happen inadvertently. You would not normally be guilty of misconduct if you inadvertently mislead the court. However if, during the course of proceedings, you become aware that you have inadvertently misled the court, you must, with your client's consent, immediately inform the court. If the client does not consent you must stop acting. Rule 11.01 includes attempting to deceive or mislead the court

13 You might deceive or mislead the court by for example:

a. submitting inaccurate information or allowing another person to do so;

…

c. calling a witness whose evidence you know is untrue…."

It is to be observed that there is no further guidance on the distinctions, within Rule 11.01, between deceiving the court and knowingly or recklessly misleading the court.

The underlying facts.

15. There was no dispute between Mr Brett and the SRA as to the underlying facts upon which the SDT was invited to rule. They are, in so far as is relevant and in summary form, as follows.
16. Until early 2009 DC Horton (RH) a constable with the Lancashire Constabulary published an internet blog under the pseudonym "Nightjack". It was an anonymous chronicle of his life as a police officer. It acquired a high public profile. It attracted the Orwell Prize for Journalism in April 2009 when the author was still anonymous.
17. On 20^th May 2009 Patrick Foster (PF), a 24 year old junior reporter at The Times, told Mr Brett, in his role as legal manager, that he had identified "Nightjack" as RH by gaining unauthorised access to RH's private email account.
18. This information was given to Mr Brett in a one to one conversation in which PF asked if they could talk "off the record" as he needed legal advice. PF claimed that RH was using confidential police information on his blog and his activities were prima facie a breach of police regulations. As such, PF felt there was a strong public interest in exposing RH and in publishing his identity. When Mr Brett asked how PF had identified RH he was told that it was as a result of unauthorised access to Nightjack's email account.
19. Mr Brett told PF that what he had done was totally unacceptable. The story was unpublishable, from a legal perspective, if it was based on unlawfully obtained information. It was "dead in the water" unless the same information could be obtained through information in the public domain.
20. PF told Mr Brett that he thought that he could identify Nightjack using publicly available sources of information. PF was told that, even if he could do so through totally legitimate means, he would have to put the allegation to RH before publication.
21. PF sought to verify that RH was Nightjack by a process of deduction known as "jigsaw identification" using publicly available information. On 30 May 2009, PF sent an e-mail to Mr Brett stating that he "had cracked it and could do the whole lot from publicly accessible information".
22. In the meantime Mr Brett telephoned a junior barrister, AE, seeking advice as to whether a crime had been committed. He was advised that, potentially, a crime, contrary to the Data Protection Act, had been committed but that there might be a Public Interest defence.
23. On 27^th May 2009, PF contacted RH informing him that The Times was planning to publish an article exposing him as Nightjack. RH immediately instructed solicitors to commence High Court proceedings for an injunction against TNL preventing publication. They sought an undertaking from TNL that the story would not be published the following day. Such an undertaking was given, but only to the extent that The Times would not publish the article without giving RH's solicitors 12 hours prior notice.
24. Such prior notice was given on 28^th May 2009. High Court proceedings were immediately commenced by RH seeking an injunction. A different junior counsel Jonathan Barnes was instructed by Mr Brett to represent TNL at a hearing before Mr Justice Teare. Jonathan Barnes was not told by Mr Brett about PF's email hacking of RH's account or that PF had originally identified RH as Nightjack by accessing his emails.
25. The hearing before Teare J resulted in an adjournment to the 4^th June 2009 to permit TNL to prepare evidence setting out how PF had deduced Nightjack's identity from publicly available information. In the interim, TNL offered an undertaking not to publish the article until 4^th June 2009.
26. On 1^st June 2009, RH's solicitors, Olswangs (O), wrote to Mr Brett, amongst other things, as follows:

"During the hearing last Thursday, your counsel … stated that our client was identified by your journalists as the author of the blog "largely" by a process of deduction. This suggests that our client was so identified, in part, by a process other than deduction, most obviously we assume by a source."

In that letter O also responded to a request by TNL for access to the blog in order to assist them in presenting evidence. O's response was that they were prepared to do so, but that TNL should:

"… first set out to us (by all means simply in a letter)

(1) How it is contended precisely that your journalists identified our client as the author of the blog and

(2) to the extent that it is contended that this was by a process of deduction from the pages from the blog, the pages on which you rely in this regard …

We also ask that your journalist … in a witness statement verify by a statement of truth provided to us

(1) set out how he ascertained the following information concerning our client (i) his home address, (ii) his mobile telephone number, (iii) his literary agent, and

(2) confirms that he did not at any time make any unauthorised access into any email account owned by our client. In this regard a suspicion arises … PF may indeed have done so, bearing in mind …"

The letter then set out a number of allegedly suspicious circumstances. They included:

"(c) we understand that [PF] has a history of making unauthorised access into email accounts …"

Reference was then made to certain press articles.

27. At this stage Mr Brett became aware of the possibility that PF's access to the email account of RH could constitute a criminal offence in breach of Section 1 of the Computer Misuse Act 1990, to which there was no public interest defence.
28. Mr Brett replied to O by letter on 2^nd June 2009. He enclosed a final draft of PF's witness statement, to which I will return. Mr Brett turned his attention to:

"the suggestion that [PF] might have accessed your client's email address because he has "a history of making unauthorised access to email accounts"

He then said:

"I regard this as a baseless allegation for the sole purpose of prejudicing the Times Newspaper's defence of this action. He then went on: For the record …"

Then there appeared a passage setting out an account of circumstances in which PF, when a student, was subject to a university disciplinary action concerning an allegation of unauthorised access to emails. At the end of that passage there appeared the following:

"As regard his deductive abilities please see his witness statement"

29. The witness statement of PF contained an account of what PF had done, as we now know at the insistence of Mr Brett, to demonstrate that the identity of RH could be revealed by a jigsaw investigation, piecing together items of information at various locations in the public domain. In the course of that account PF introduced, or commented upon, his investigatory efforts in the following terms:

"12. I began to systematically run ...

15. … I began to work under the assumption that …

20. At this stage I felt sure that the blog was written by a real police officer …

28. I began to examine the posts on the blog in chronological order …

35. Having undertaken this process it was clear that the author of the blog was [RH] of Lancashire Constabulary."

30. On 3^rd June the partner at O, acting for RH, provided a witness statement. He repeated the concern that his client's email account might have been hacked and referred specifically to the "Oxford incident". He said that RH was:

"gravely concerned that this information may have been obtained by … the obtaining of unauthorised access to his email account"

31. Hugh Tomlinson QC acted for RH on the 4^th June. He provided the court with a skeleton argument dated 3^rd June. He referred to PF's witness statement. He said that it was noteworthy that PF had not confirmed that he had not accessed the email account used for the Nightjack blog nor explained how he found out RH's mobile telephone number and the identity of his literary agent. On 3^rd June 2009, Anthony White QC and Jonathan Barnes, counsel instructed by Mr Brett on behalf of TNL, neither of whom had been informed by Mr Brett that PF had initially identified RH by means of unauthorised access to his email account, filed a skeleton argument on behalf of TNL. At the end of paragraph 7 of that document they stated:

"[PF] was able to establish the claimant's identity using publicly available materials, patience and simple deduction."

And in paragraph 8 they stated:

"… in fact as [PF]'s witness statement shows he established the identity of the claimant from publicly accessible sources."

On 3^rd June, following receipt of that skeleton argument, O wrote to Mr Brett. They referred to the passages just quoted in the TNL skeleton argument. They then went on to say:

"This is not what the witness statement of [PF] says, … Our concerns as to whether [PF] relied solely on publicly accessible material in his pursuit of our client are exacerbated by the fact that he has offered no explanation as to how he obtained the mobile telephone number and the identity of the literary agent of our client which plainly were not stated in publicly accessible material.

If the position is that [PF] identified our client as the author of the blog solely by publicly available material and deduction we ask that he state this expressly in a further witness statement verified by a statement of truth. Absence such a witness statement we ask that your counsel amend this passage in the skeleton argument lest the court be inadvertently misled."

32. There was no further affidavit from PF nor was there any corrective to the skeleton argument settled by TNL's leading and junior counsel on 4^th June. The substantive hearing took place before Mr Justice Eady. Mr Tomlinson, introducing the claimant's case, said to the Court:

"There is something of a dispute, which you do not need to be concerned with today, perhaps it is just a matter of the way the witness statement is drafted, but [PF] describes in elaborate detail how he investigated and engaged in the detective work to find the identity of the claimant, what he never says if I read his statement is that was all he did, in other words he does not say 'this was the only way I did it, I did not rely on any confidential sources'.

We are concerned, as you will see from the evidence, that someone has hacked into my client's email account. Be that as it may, the position we accept from today, hearing this case now, you can assume that it is more likely than not, on the evidence that is before the Court today, that the identity was discovered by detective work not by, as it were, conventional breaches of confidence. We are content for you to proceed on that basis".

33. Anthony White QC, on TNL's behalf, in the course of his oral submission said as follows:

"…the claimant's case before Teare J last week was that this was old fashioned breach of confidence and The Times must have learnt of his identity from a disclosure to it in breach of confidence. We now know that that is not right".

34. The parameters of the argument having thus been agreed, Mr Justice Eady, in his reserved judgment, summarised that position as follows:

"3. It was asserted in the claimant's skeleton for the hearing of 28 May that his identity had been disclosed to The Times in breach of confidence. By the time the matter came before me, on the other hand, Mr Tomlinson was prepared to proceed on the basis that the evidence relied upon from [PF], the relevant journalist, was correct. That is to say that he had been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the internet."

35. Mr Justice Eady then proceeded to deal with the claim based, as it then was, upon the publication of allegedly private information, in contravention of Article 8 of the ECHR. That involved a two stage process: first did the claimant have a reasonable expectation of privacy in relation to the particular information in question; and, second, if so, was there some countervailing public interest such as to justify overriding that prima facie right? The judge reminded himself of the formulation of the test in relation to the first issue by the Court of Appeal in Napier v Pressdram Limited [2009] EWCA Civ 443 at paragraph 42 (Lord Justice Toulson) in which the test was said to apply in circumstances "other than under a contract or a statute".
36. Having enunciated the test and applied it to the facts of this case, Mr Justice Eady concluded that the claim failed at stage one because "blogging is essentially a public rather than a private activity" (at paragraph 11).
37. That effectively disposed of the claim, although Mr Justice Eady also concluded that the claim would have failed at stage two had it been necessary for him to decide the case on that basis.

The Complaint against Mr Brett

38. Nothing further might have happened had it not been for the obligations of TNL in connection with the Leveson Inquiry, conducted by Lord Justice Leveson. Pursuant to those obligations TNL disclosed e-mails and other material which set out the matters I have recounted at paragraphs 17-23 above in relation to PF's disclosure to Mr Brett that PF had hacked RH's e-mail account and to the circumstances in which that fact had not been disclosed to the court. On 15 March 2012 Mr Brett gave evidence before the Leveson Inquiry; his conduct of the litigation in relation to RH was subject to extensive and searching examination.
39. Subsequently the SRA brought proceedings before the SDT against Mr Brett. On 10 June 2013 the SRA set out its case in a statement, pursuant to Rule 5 of the SDT Rules. It alleged a breach of Rule 1.02, failing to act with integrity, and rule 11.01 "knowingly allowed the Court to be misled…". At paragraph 2 it set out the particulars of the allegations in the following terms:

"2.1 On or about 2 June 2009, while conducting litigation in the High Court… the respondent caused or allowed a witness statement to be served and relied on in support of TNL's defence, which knowingly, and/or recklessly, created a misleading impression as to the facts and matters deposed to in the statement.

2.2 On or about 4 June 2009 during a hearing before Mr Justice Eady the respondent knowingly allowed the Court to proceed on the basis of an incorrect assumption as to the facts and matters set out in the witness statement referred to at 2.1 above".

40. The Rule 5 statement then set out, under the heading "The Conduct Alleged," in paragraphs 7-41, under a number of headings, a narrative of the relevant events which I have summarised above.
41. At paragraph 19 the narrative turned to deal with PF's witness statement It included, at paragraph 22, a criticism of the letter from Mr Brett to O dated 2 June 2009 in which it is said that:

"[Mr Brett] was making a false denial when he said that he regarded the suggestion that [PF] might have accessed [RH]'s email address as 'baseless'."

42. At paragraph 25, specific reference was made to the passages in PF's witness statement, at paragraphs 12, 15, 20 and 35, referred to above, reference was also made to the fact that, when Mr Brett was giving evidence before the Leveson Inquiry and was being questioned about this particular litigation and the statement of PF, he was recorded to have accepted that the witness statement:

"was not entirely accurate" and "it certainly doesn't give the full story".

43. The Rule 5 statement also recorded Mr Brett's evidence before the Leveson Inquiry that he had instructed PF to prepare his statement, that he had reviewed its contents and was aware at the time that he could not deny that PF had accessed "Nightjack's" emails.
44. The Rule 5 statement also contained an account of the hearing before Mr Justice Eady, including the respective oral statements of Mr Tomlinson QC and Mr White QC referred to above, as well as what Mr Justice Eady said at paragraph 3 of his judgment.
45. One of the heads of the narrative concerned the failure by Mr Brett to inform counsel instructed by TNL of the unauthorised email access.
46. The Rule 5 statement also contained information provided to the SRA by Mr Brett concerning PF's witness statement. He is recorded as having said that he:

"… may have inadvertently and unintentionally allowed the Court to potentially be misled"

and that

"… (he) may legitimately be criticised … in failing to identify and correct the wording of the [PF] witness statement in a number of places which gave the impression that [PF] had only used information and documents in the public domain to identify [RH]. This was an entirely innocent, or inadvertent, oversight on the respondent's party and, it is fully accepted with hindsight, he should have spent more time scrutinising the draft to ensure that the overall impression that it gave was not inadvertently misleading."

47. In connection with misleading the Court on 4 June, the Rule 5 statement recorded that Mr Brett acknowledged that he did not make the Court aware that PF had initially obtained the information regarding RH's identity by unauthorised access to his emails. However he did not accept that he was under a duty to breach PF's confidence and, therefore, he denied that his actions amounted to a failure on his part. Alternatively, if he were under such a duty, his failure to do so was a genuine misunderstanding of the prioritisation of his competing duties and obligations.
48. Concerning his failure to inform counsel instructed by TNL of the unauthorised email access, Mr Brett acknowledged that he did not inform counsel, but he did not accept that he was under any duty to do so. If he were under such a duty, his failure to do so was a genuine misunderstanding of the prioritisation of his competing duties and obligations.

The SDTs conclusion based on the undisputed facts

49. The SDT's conclusions are contained in paragraph 44 of the decision. It found the allegations proved beyond reasonable doubt. It turned its attention, first, to the alleged breach of Rule 11.01. At paragraph 44.1 it said:

"for the avoidance of any doubt it was not alleged that the respondent had been dishonest".

50. Having set out a brief narrative of its findings of fact, the SDT turned its attention to Mr Brett's letter of 2^nd June in response to O's letter of 1^st June. That letter was described, at 44.8, as:

"a serious and important letter… O had laid down a very clear marker as to their and their client's concerns".

51. The SDT, at 44.10, recorded Mr Brett accepting that the words:

"I regard this as a baseless allegation"

were a terrible mistake, because their meaning was ambiguous. His intention was to focus on the allegation by O that PF had a past history of unauthorised access into email accounts, though he accepted that the use of the word "I" gave the impression that he believed the allegation, that PF had obtained unauthorised access into RH's email account, to be baseless, in spite of the fact that he knew that PF had hacked into it.

52. The SDT found that, at the very least, Mr Brett was turning a blind eye to what he had been told by PF about that.
53. The SDT's finding was that the intended meaning of that phrase in that letter, for the reader, was that the suggestion that PF might have accessed RH's email account was baseless. It rejected Mr Brett's evidence as to his true intention. He was a media lawyer of over 30 years experience and was well aware of the importance of using language carefully and accurately.
54. At paragraph 44.11 the SDT considered the letter of O, dated 2^nd June, in response to Mr Brett's letter. It concluded that there could be no doubt, to anyone reading it, that O understood Mr Brett to be stating that the suggestion that PF had accessed RH's email address was baseless; but Mr Brett had taken no steps to correct that understanding whether on the 2^nd or 3^rd June or immediately before the hearing on 4^th June. He had left PF's witness statement hanging in the air.
55. At paragraph 44.12 the SDT considered Mr Brett's contention that, as PF had informed him of his unauthorised access in confidence, he had a dilemma between his duty to the Court and breaking confidence, in respect of what he regarded as privileged information provided by PF. The SDT found that his duty was to the Court rather than to PF.
56. At paragraph 44.13 the SDT found that Mr Brett had failed in his duty, as an officer of the Court, to inform TNL's junior or leading counsel of the true position which placed them in the invidious position of conducting the litigation without full knowledge of the facts and putting them in the position of unwittingly misleading the Court and the opposing party. It found that TNL's counsel, Mr White QC, had in fact done so inadvertently in his oral statement to the Court referred to above. The Court was misled, as evidenced by paragraph 3 of Mr Justice Eady's judgment, which Mr Brett had failed to correct between 12^th and 16^th June (paragraphs 44.14 and 15).
57. In consequence, the SDT found that Mr Brett knowingly allowed the Court to be misled in the conduct of litigation contrary to Rule 11.01 and failed to act with integrity contrary to Rule 1.02.
58. The SDT went on to provide its assessment of Mr Brett's evidence and expressed the view he was a

"deeply unconvincing witness" (paragraph 44.17)

The SDT explicitly stated that it had read the many impressive testimonials submitted on Mr Brett's behalf but nonetheless had come to that view.

The SDT's decision on costs

59. The SRA applied for costs totalling just over £33,000 in accordance with a schedule of costs. The amount of costs was disputed on behalf of Mr Brett. Criticism was made of the number of hours said to have been spent on preparation, more than double that spent by Mr Brett's solicitors. Almost all the investigatory work had been undertaken by the Leveson Inquiry; very little extra work had to be done in preparation for a one day hearing. Criticism was also made of the size of Mr Dutton QC's brief fee for a one day case and the engagement of such a very senior silk on such a case.
60. The SDT considered that it was a complicated high profile, case which Mr Brett had denied so that the case had to be prepared thoroughly. He had been cross-examined by Mr Dutton QC at some length; the questioning had not been straightforward. The SDT's view was that both sides' legal representatives had represented their clients interests effectively and efficiently so as to enable the application to be heard within one day. Having made some deduction for duplication of preparation time and, on a summary assessment, the sum of £30,000 was assessed.

The Appeal

61. Mr Brett has appealed against the findings of breach by the SDT and the award of costs. He does not separately appeal the sanction of six months suspension which, we are informed, he has served in full.
62. In his full grounds he has focussed much of his criticism on the failure, he says, of the SDT to have any, or any due, regard to the relationship between himself, as solicitor, and PF as an employee of TNL. He says that the SDT failed to give effect to the fundamental right of protection given to communications subject to legal professional privilege which, he says, was attached to the information given to him by PF, that he had unlawfully accessed RH's email account. He also criticises the SDT's failure to have regard to PF's privilege against self incrimination and criticises its conclusion that the relationship between Mr Brett and PF was simply one of a witness in proceedings brought against Mr Brett's clients, Times Newspapers Ltd. He criticises the SDT for failing to identify what it is that was omitted from PF's witness statement, which could have been included without breaking such professional privilege. He says that it failed to take into account his honestly held belief concerning his obligations towards TNL and PF, in particular, having regard to the legal professional privilege and protection from self incrimination which PF's disclosures to him attracted.
63. He also criticises the SDT for an excessive reliance on hindsight. He says that his realisation that PF's witness statement was potentially misleading, in the way identified before the SDT, only came to him when the same issues were exhaustively investigated with him whilst giving evidence before the Leveson Inquiry in 2012. It was only at that stage that he realised the potential of PF's witness statement to give a misleading impression. He criticises the findings of the SDT that he was a deeply unconvincing witness in the light of his long and distinguished career and his many testimonials.
64. It is clear that Mr Brett has a deep conviction that he could not, consistent with his duty towards PF, be required to reveal to the Court that PF had in fact initially identified RH by unauthorised access to his email account. In particular, he emphasises the fact that, by requiring PF to undertake the task of identifying RH independently, by means of publicly available sources, which PF achieved, the initial unlawfulness, underpinning the identification, had in his view become history and irrelevant to the claim being made by RH for breach of privacy.
65. He also criticises the SDT for focussing on his letter of 2^nd June 2009 when it was not one of the particulars of breach of the code of conduct identified in the Rule 5 statement.
66. Finally, he argues that, as the claim of RH fell at the first hurdle, - there was no legitimate expectation of privacy - the fact that there was an initial unlawfulness in the way in which RH was identified, which was relevant only to the second stage public interest defence, became irrelevant and, accordingly, the outcome of the litigation would have been no different had the Court not been misled (if indeed it was) by PF's witness statement and/or statements made by TNL's counsel.
67. He criticises the summary assessment of costs at £30,000 for, essentially, the same reasons which were rehearsed by Mr Brett's then junior counsel before the SDT.

Discussion and Conclusions

(a) The powers of the court on appeal

68. Two preliminary issues need to be addressed. The first concerns the powers of this Court, as apply in this case, under section 49 of the 1974 Act.
69. The Rule 5 statement charges Mr Brett with a breach of Rule 11.01 of the Code of Conduct. It expresses itself in terms that he:

"knowingly allowed the Court to be misled…"

70. The particulars of the allegation, in so far as they concern the witness statement, are that the witness statement:

"… knowingly and/or recklessly created a misleading impression…"

71. The particulars concerning the breach of paragraph 11.01, in connection with the conduct of the hearing, are couched in terms of

"…the respondent knowingly allowed the Court to proceed…."

72. One of the main planks to Mr Brett's oral submissions has been an apparent contradiction in the SDT's decision between, on the one hand, disavowing any finding that he acted dishonestly and, on the other hand, finding him guilty of:

"knowingly allowing the Court to be misled"."

73. He contends that such a conclusion, in the circumstances of this case, implicitly involves a finding against him of dishonesty and is indistinguishable from an allegation of deceit which was specifically not charged, though it could have been, pursuant to Rule 11.01.
74. Mr Dutton QC submits that the distinction between deceit and knowingly misleading the court is that the latter is apt to apply to a case where, as is alleged here, the solicitor permits the court to proceed on an incorrect assumption as to the facts, knowing that the court is so doing even though he may mistakenly believe that he has a good reason for so doing: such as misguidedly wanting to protect a witness who has confided in him on an occasion attracting a duty of confidentiality.
75. Mr Brett accepts without demur that he was negligent in failing, on his case, to realise that the witness statement of PF was potentially misleading to the Court. He also accepts that he was negligent in failing to take steps to respond to the concerns expressed by O about that statement and the skeleton of Anthony White QC and Jonathan Barnes, which was, in turn, based on an inaccurate perception of the true position, their relying on the misleading elements in PF's witness statement.
76. This Court has power under Section 49 to make such order on an appeal as it may think fit. A breach of Rule 11.01 can arise on the basis of deceit, or knowingly or recklessly misleading the Court. In this case at least one of the particulars is couched in the alternative as knowingly and/or recklessly misleading a Court. In my judgment, it is open to this Court, if it were to conclude that the finding of the SDT was wrong on the basis of Mr Brett having:

"knowingly allowed the Court to be misled"

nonetheless, to conclude that he was guilty of a breach of Rule 11.01 on the basis that he "recklessly" allowed the Court to be misled if, on the facts properly found, that was the correct conclusion.

77. Accordingly, I will consider not only whether the SDT was wrong to conclude that Mr Brett was guilty of "knowingly" allowing the Court to be misled but also consider whether, if so, he was, nonetheless, guilty of "recklessly" allowing the Court to be misled, always remembering that Mr Brett does not accept that contention, but only accepts that he was negligent.
78. I remind myself that the word "recklessly", in criminal statutes, is now settled as being satisfied:

"with respect to (i) a circumstance when he is aware of a risk that it exists or will exist and (ii) a result when he is aware that a risk will occur and it is, in circumstances known to him, unreasonable for him to take the risk" (See R v G [2004] 1AC 1034 Archbold para 11-51.)

I adopt that as the working definition of recklessness for the purpose of this appeal.

(b) The scope of the legal professional privilege as applicable to PF

79. The second preliminary issue concerns the application in this case of the doctrine of legal professional privilege and/or the prohibition on requiring a person to incriminate themselves. Mr Brett has been much exercised by his perception that the SDT, as part of its reasoning, appeared to be of the view that he was under a duty to disclose to the court that PF had initially identified the blogger as RH by means of his unlawful access to RH's email account. That, Mr Brett asserted, would have contravened PF's legal professional privilege which was the basis upon which the disclosure by PF to Mr Brett had been made and/or would require PF to incriminate himself.
80. For my part, and with the agreement of the parties, I have approached this case on the basis that it may well be that PF made this disclosure to Mr Brett on an occasion of confidentiality, one of legal professional privilege or one where similar obligations of confidentiality arose.
81. I also accept Mr Brett's argument that it is long established, as a fundamental principle of our legal system, that there can be no requirement for a solicitor to disclose anything that is said to him on an occasion of legal professional privilege save where his client or the person who made the disclosure on such an occasion agrees to waive that privilege.
82. It follows, therefore, that in so far as the SDT in its reasoning either did, or appeared to, conclude that there was a duty upon Mr Brett to disclose that which had been revealed to him by PF on an occasion of confidence and/or legal professional privilege, then the SDT was in error.

(c) The options open to Mr Brett in safeguarding privilege and yet not misleading the court

83. In my judgment, however, this debate was by no means central to the issues the SDT had to determine. The charge against Mr Brett was one of knowingly (and/or recklessly) allowing the court to be misled in two particular ways; first, by causing or allowing a witness statement to be served and relied on (the PF statement) which created a misleading impression as to the facts and matters deposed to in that statement and, secondly, allowed the court to proceed on the basis of an incorrect assumption as to the facts and matters set out in that witness statement.
84. I address below the issue whether the court was misled. If it was then I conclude that Mr Brett, to the extent that he knew that the court would be misled or that he was aware that there was a risk that it might be misled, was required by Rule 11.01 to take steps to avoid that result.
85. In my judgment that duty, not knowingly to mislead the court or not to take the risk that the court might be misled, is not incompatible with the duty of confidentiality owed to a person who has disclosed material on an occasion of legal professional privilege. Mr Brett was, like any other lawyer, always in a position to avoid misleading the court or to remove the risk of the court being misled without breaking that privilege.
86. There were a number of options available to him. One was to obtain the agreement of PF to waive privilege so that the true factual position could be presented to the court. A second was to correct the misleading impression given by the witness statement by making it clear that the witness statement only intended to convey that the identity of Nightjack as RH could have been revealed through publicly available sources, as evidenced by the fact that PF had undertaken such an exercise. In the absence of a waiver of privilege Mr Brett could have adopted the position that TNL was not prepared to say how it was that PF, in fact, discovered the identity of Nightjack. A third was for Mr Brett to disclose to his instructed counsel, Mr White QC and Barnes, the true position concerning the circumstances in which PF initially discovered the identity of Nightjack and to invite them to correct paragraphs 7 and 8 of the skeleton and in open court to make a statement, different from the one which Mr White QC made, which would similarly avoid giving a misleading impression to the court. A fourth was for Mr Brett, on behalf of his client TNL, to abandon defending the claim without revealing the information given to him by PF on an occasion of legal professional privilege.
87. None of these options would have involved breaking the confidence in which PF had made his disclosure to Mr Brett, but each of them would have avoided allowing the court to be misled.
88. In my judgment, therefore, the focus of Mr Brett on the significance of the issue of the legal professional privilege and/or the prohibition on self-incrimination is a red herring. The real focus of the SDT's considerations, and of this appeal, are the dual questions (a) was the court in fact allowed to be misled, and, (b) what was Mr Brett's state of mind when these circumstances arose in which the court was allowed to be misled?

(d) The misleading of the court

89. I am in no doubt that the court was misled. The passages in PF's statement to which I have referred can only sensibly be read as an account, by PF, of how he first identified Nightjack as RH using publicly available sources. That was, on any view, a misleading impression. What had happened was that PF had initially identified Nightjack as RH by using exclusively unlawful methods, his unlawful access to the email accounts. The exercise which he did undertake, to see whether he could identify RH as Nightjack using publicly available sources, was undertaken at the insistence of Mr Brett only after PF had disclosed to Mr Brett that he had identified RH by illegitimate means.
90. The use to which such exercise could legitimately be put was, as Mr Brett correctly advised, to demonstrate to a court that Nightjack could be identified as RH using only lawful means so as to provide a basis for seeking to resist the injunction.
91. O required PF to remove any uncertainty of what he meant in his witness statement by confirming, in a witness statement, that he did not, at any time, make any unauthorised access to any email account. Mr Brett's response, coming as it did from a hugely respected and highly experienced solicitor in the field, was understood by O to be a denial that PF had unlawfully accessed RH's email account.
92. Furthermore, TNL's counsel, in their skeleton argument, understood that to be the case. When O requested further clarification of the true position, either by a further witness statement from PF or a correction of the potentially misleading impression the skeleton argument gave, they received neither a witness statement from PF nor a correction.
93. In those circumstances, in my judgment, it is wholly understandable that Mr Tomlinson QC made, before Mr Justice Eady, the concession he made and invited the Judge to deal with the case on the basis that it was more likely than not that, based on PF's evidence, the identity of Nightjack as RH, was discovered by detective work, not by unlawful means.
94. Furthermore, it is clear that the Judge was invited to adopt this approach by Anthony White QC on exactly the same basis. He, inadvertently, misled the court because he was unaware of the true position.
95. Finally, it is clear that the judge accepted the invitation of both parties to approach the case in that way and, accordingly, proceeded to analyse the case on the assumption that RH had been identified by PF by means solely within the public domain. In so doing the Judge, TNL's counsel and RH's counsel had been misled by a combination of the misleading nature of PF's witness statement, Mr Brett's apparent denial that there had been any unlawful access to RH's email account and his failure to respond in any way to O's invitation to clarify the matter once and for all.

(e) Mr Brett's state of mind

96. The next issue is whether the SDT, on the material before it, was wrong to conclude that Mr Brett allowed the court to be misled "knowingly". In my judgment there is a fundamental difficulty with the decision of the SDT. It had been invited by the SRA to approach its task on the basis that it was not being alleged that Mr Brett was deceitful in misleading the court. The charge was not framed in that way but alleged knowing misleading of the court. The SDT adopted that approach and expressly disavowed any question of it being alleged, or of their finding, that Mr Brett had acted dishonestly. True it is that Rule 11.01 prohibits a solicitor from deceiving the court, or knowingly misleading the court. The rule is drafted on the basis that there may be cases in which a solicitor may knowingly mislead the court but not deceive the court. For my part I find that an extremely difficult distinction to draw in its general application. I find it even more difficult to draw in the circumstances of this case. Whilst it may be that, as Mr Dutton QC argues, a solicitor, who knows he is misleading the court but does so because of a mistaken belief that he is obliged to do so in order to protect the confidence of a witness, may not be acting "dishonestly", it is by no means an obvious conclusion and would need to be spelt out before the reader of the decision would be prepared to draw the conclusion that Mr Brett had not been found guilty of a charge of dishonesty.
97. The allegation was that the court was misled by the contents of PF's witness statement and by the absence of any corrective to the misleading impression given by that statement. The court was misled so as to act on the basis that PF had initially identified Nightjack as RH through the use of publicly available sources, and not by illegitimate means. It was misleading because, in fact, as, it was alleged, Mr Brett well knew, the reverse was true. PF had not identified Nightjack as RH otherwise than through illegitimate means. The allegation was that Mr Brett allowed the court to be misled on this fundamental matter knowing that it was being thus misled. I find it hard to see how that allegation could be made good without impugning to Mr Brett's honesty.
98. In my judgment, the SDT having disavowed making any finding of dishonesty could not properly then proceed to make a finding that Mr Brett "knowingly" allowed the court to be misled in the circumstances of this case which was, without more, in effect, a finding of dishonesty. If it intended not to make a finding of dishonesty whilst finding the charge of knowingly misleading proved, it would have to have spelt out its analysis of how it came about that he acted knowingly though not dishonestly. That might have been on the basis put forward by Mr Dutton QC, but in the absence of any such reasoning the reader of the decision is forced to the conclusion that the SDT has come to a finding of dishonesty against Mr Brett despite stating that it did not intend to do so. That is an unsatisfactory state of affairs and, in my judgment, amounts to the SDT having got that part of the decision "wrong".
99. On the other hand, in my judgment, it was open to the SDT on its findings of fact supported by the evidence, to reject Mr Brett's claims only to have been negligent. His claim was that he had not, at any stage until he gave evidence before The Leveson Inquiry in 2012, understood PF's witness statement to be potentially misleading. He also claimed that his failure to respond to the pressure from O to clarify the position, by a further witness statement from PF and/or by a corrective to the skeleton argument filed on behalf of TNL, was due to lack of attention and/or inability to focus sufficiently clearly because of other pressures of work. In my judgment the SDT was fully entitled to reject both of those claims and, in so doing, to regard Mr Brett's evidence, on those issues, as being unreliable.
100. In my judgment, the evidence, particularly that of the contemporaneous correspondence and the lack of any response by Mr Brett to the demands contained in it, pointed inevitably to the conclusion that Mr Brett acted recklessly, as described above, in allowing the court to be misled. On that basis it was inevitable that the SDT would, had it properly addressed the issues as it had defined them, have found him guilty of a breach of Rule 11.01 on the basis that he "recklessly" allowed the court to be misled.
101. In my judgment it follows, similarly, that in so acting, he was guilty of a breach of Rule 1.02 of failing to act with integrity.

Summary of conclusions

102. Accordingly, I would allow this appeal by Mr Brett, but only to the extent of quashing the decision of the SDT that he was guilty of a breach of Rule 11.01 by "knowingly" misleading the court and substituting for it a finding that he was guilty of Rule 11.01 by "recklessly" misleading the court. I would reject his appeal against the finding of the SDT that he acted in breach of Rule 1.02 by failing to act with integrity on that occasion.

The appeal against costs

103. Whilst I can see from the SDT's decision, that there were arguments put forward by Mr Brett's counsel at the end of the hearing before the SDT as to why the claim for costs of £33,000 odd was excessive, there has been no argument before us on the detail of the Bill of Costs which was submitted in support of that claim. The SDT was engaged in a summary, rather than a detailed, assessment and it is unsurprising that it came to a round figure. That figure was just under 10% less than the sum claimed and the SDT identified the way in which it had reduced the sum claimed to the figure it awarded.
104. The question of the correctness of a summary assessment of costs is well established to be essentially a matter for the discretion of the tribunal hearing the case and the exercise of that discretion is only to be interfered with on the clearest evidence that they were wrong in assessing the sum which they did. No such clear evidence has been put forward to support this ground of appeal. I would, therefore, dismiss the appeal on this ground. The award of costs summarily assessed in the sum of £30,000 should remain unchanged.

Lord Thomas of Cwmgiedd, CJ :


 


105. I agree. I add two observations of my own.

(a) The duty to the court

106. It has always been the duty of a barrister, solicitor, legal executive or any other professional representing a client in proceedings before any court to discharge not only the duties to his client but the duty to the court. That duty is in part reflected in s.188 of the Legal Services Act 2007 as a duty applicable to anyone exercising rights of audience or conducting litigation in the court by virtue of an authorisation under the Act as a duty to "act with independence in the interests of justice". The content of the duty to the court is spelt out in a number of cases.
107. In Arthur J.S. Hall v Simons [2002] 1 AC 615, Lord Steyn emphasised at 680D the importance of the overriding duty of the advocate to the court, as did Lord Hope at page 715F. Lord Hoffmann summarised some of the duties at 686E:

"Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case. They may not make imputations of dishonesty unless they have been given the information to support them. They should not waste time on irrelevancies even if the client thinks that they are important. Sometimes the performance of these duties to the court may annoy the client. So, it was said, the possibility of a claim for negligence might inhibit the lawyer from acting in accordance with his overriding duty to the court. That would be prejudicial to the administration of justice."

108. In Ridehalgh v Horsefield [1994] Ch 205 at page 234 Sir Thomas Bingham, MR (as he then was) made clear that although a legal representative of the parties was bound to strive to win a case, he must do so without in any way seeking to evade the rules intended to safeguard the administration of justice. In Medcalf v Mardell [2003] 1 AC 120 Lord Hobhouse made clear at paragraph 54 the fact that the duties to the court reflected the public interest in the administration of justice. Further statements of the duty can be found in numerous other cases, including Lumsdon v The LSB [2014] EWHC 28 (Admin) at paragraphs 57-9 and Randall v The Queen [2002] 1 WLR 2237 (in the judgment of Lord Bingham at paragraph 10).
109. These duties find some expression as regards solicitors in the Solicitors' Code of Conduct to which Wilkie J has referred at paragraphs 10-14 above (now to be found in the SRA Code of Conduct 2011). The Bar Code of Conduct was and is in very similar terms.
110. Every lawyer must be alive to the fact that circumstances can arise during the course of any lawyer's professional practice when matters come to his knowledge (or are obvious to him) which may have the effect of making his duty to the court his paramount duty and to act in the interests of justice. In many cases it will be clear what course the lawyer must take, either through the way in which the case is presented or by withdrawing from acting for the client. In others it may be more difficult. The lawyer may not be absolutely sure that his actions will discharge his duty to the court. In such a case, for reasons which I shall explain, a lawyer would be ill-advised if he did not put the matters before a person more senior within his firm or before independent counsel, making full and complete disclosure to such a person of all the relevant circumstances.
111. The reason why that is so important is that misleading the court is regarded by the court and must be regarded by any disciplinary tribunal as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession's duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice in England and Wales and the standing of the profession depends particularly upon the discharge of the duties owed to the court.
112. Where an advocate or other representative or a litigator puts before the court matters which he knows not to be true or by omission leads the court to believe something he knows not to be true, then as an advocate knows of these duties, the inference will be inevitable that he has deceived the court, acted dishonestly and is not fit to be a member of any part of the legal profession.
113. As conduct that is dishonest, such as misleading the court with such knowledge will inevitably be, is so serious, it is of the utmost importance that in difficult circumstances which can confront any advocate or litigator, that advocate or litigator has at the forefront of his mind his duty to the court, the necessity to avoid breach of that duty and, if he has any doubt as to how to discharge that duty, by taking independent advice.

(b) Costs

114. It is now well established that the costs of proceedings which a person may be ordered to pay must be proportionate. It may well be that in a particular case, the regulatory authority bringing proceedings will wish to instruct a person or firm who in the current state of the legal market can command high fees which the regulatory authority may be prepared to pay. However the fact that the market enables such persons or firms to command such high fees does not mean that it is proportionate to make an order for costs by reference to the rates which the legal services market enables such persons or firms to command from the regulatory authority. A tribunal must assess what is proportionate, taking into account all the material circumstances.