England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/09/2015

Lord Justice Davis:

Introduction

1. The individual respondents are solicitors. The first respondent was admitted as a solicitor in 1997, the second respondent in 2005. They faced disciplinary proceedings before the Solicitors' Disciplinary Tribunal. By a decision filed on 29 October 2014 they were found to have acted in breach of the Solicitors' Code of Conduct and the Solicitors' Accounts Rules. Each was fined £15,000. The third respondent was a limited liability company, controlled by the individual respondents, which provided legal services. Its recognition as a Recognised Body was revoked by the Tribunal.
2. The Solicitors' Regulation Authority ("the SRA") challenges certain of the conclusions reached by the Tribunal and challenges the sanction imposed on the individual respondents. It argues that the Tribunal should have made further, and more extensive, findings of breach as charged: including findings that the respondents acted with a lack of integrity; acted with a lack of independence; and acted in a manner which diminished the public trust in them and in the provision of legal services. In addition the Tribunal should have found that the respondents had been connected with a business which was not reputable. It is further said that had such findings been made (as they should have been) the inevitable and only proper sanction would have been one of striking off.
3. At the outset of the hearing we granted the application of the SRA for a (very) short extension of time for the bringing of this appeal. Although respondents' notices had been filed and served, seeking to challenge the amount of the fines imposed, it was indicated that these were not being pursued.
4. Before us the SRA was represented by Mr Gott QC (who had also appeared below). Both respondents had represented themselves before the Tribunal. Before us, the first respondent (Mr Chan) was represented by Mr Kendal. The second respondent (Mr Ali) appeared in person. The respondents in effect maintained common cause on this appeal, albeit there was and is some dispute as to the degrees of their respective involvement in what occurred.

Background facts

5. The essential background to the charges lay in the way which the third respondent ("Abode"), a company providing legal services which was controlled by the first two respondents, operated, in the context of conveyancing transactions, certain schemes designed to avoid or mitigate the impact of stamp duty land tax ("SDLT"). It was in effect said, in a nutshell, that they introduced numerous clients to such schemes, which were of considerable potential risk and disadvantage to the clients but of considerable potential profit to Abode (primarily in the form of commissions and referral fees from the scheme providers) without informing clients of the aggressive and risky nature of the schemes or of their own personal opportunity to gain commissions: thereby subordinating the interests of their clients to their own personal profit.
6. The background is set out at great length in the very detailed judgment of the Tribunal. Only a brief summary of such schemes is, I think, needed at this stage.
7. The respondents routinely offered the availability of such SDLT schemes to significant numbers of their clients. By no means all elected to participate: but, as the Tribunal found, Abode completed 556 conveyancing transactions involving such schemes. The respondents received £994,693 in total by way of referral fees and commissions in consequence, in addition to the conveyancing fees charged. The activities occurred between 2009 and 2012, by which time investigations by the SRA had been started.
8. There were four SDLT schemes which were operated. One was known as the "Husband and Wife" scheme. One was known as the "Unlimited Company" scheme. One was known as the "Nominee" scheme. One was known as the "Option" scheme. The schemes were variously promoted by one or more providers, being Professional Advice Bureau; Innovative Tax Solutions Limited/Inventive Tax Solutions Limited/Inventive Tax Strategies Limited ("ITS"); Universal Planning Services Limited ("UPS"); and Omega Planning Limited ("Omega").
9. The last named was a company incorporated in the Seychelles. The directors and shareholders were the respondents. It commenced trading in September 2011, involving itself only in the Option scheme. As found, 55 clients completed transactions involving Omega. As found, none were initially informed of the respondents' connection with Omega: although (after the investigation by the SRA started) those clients engaged in ongoing transactions were then informed by Abode that "some of our directors have a financial interest" in Omega.
10. The way the four schemes were designed to work, put shortly, was this.

(a) The option scheme

11. This scheme involved the purchasers (the clients of Abode) entering into an option agreement with an option company, giving the company the right to buy the property in 25 years' time at the then market price or the original purchase price plus £1,000 (whichever was the higher).
12. The respondents had obtained written advice from specialist tax counsel on such a scheme dated 27 July 2011. While counsel gave guarded approval to the efficacy of such a scheme, his advice was that an option company provided by the respondents themselves should be avoided: among other things, as seeming "highly artificial in the sense that such a company is unlikely to ever exercise any of the options it holds". Counsel also stated his view that the respondents should advise their clients that "the structure discussed in this opinion is aggressive and that there can be no guarantee of success given the lack of certainty arising out of recent decisions of the court in tax avoidance cases". He further emphasised that the requirements of the Solicitors' Code of Conduct and the Council of Mortgage Lenders' Handbook in acting for lender clients should be observed. This was particularly relevant because in many of the cases the respondents acted for lender mortgagees as well as the purchasers. Counsel also advised that all parts of the transaction be "properly implemented" with "genuine" decisions and transfers of money being made.
13. Most oddly, the view seems to have been taken at the time that such an option was not registrable against title.

(b) The husband and wife scheme

14. This scheme was provided primarily either through ITS or through UPS. Guidance notes issued by the providers (who paid commission to solicitors' firms introducing clients) said that the scheme was based on advice from specialist tax counsel.
15. The scheme involved the first purchase being contractually in the name of one party (typically the husband), albeit the purchase monies were to be advanced by the lender to both parties. After that contract for sale and purchase, the property was made the subject of a sub-sale and declaration of trust, whereby the husband would transfer all his interest in the original purchase agreement and the property into the joint ownership of himself and his wife and a declaration of trust was then made, whereby the husband had 1% of the beneficial interest and the wife 99%.
16. The evidence was that lenders were not told any of this. Further, one only has to consider the potential position arising if the relationship were subsequently to break down (the more so if the couple were not married): for the wife could then assert a 99% interest, notwithstanding that the purchase monies had been borrowed and provided jointly.

(c) The unlimited company scheme

17. This was based on a variation of a sub-sale scheme. It had the support of advice to the provider from specialist tax counsel given in 2003. In short, the vendor would contract to sell to an unlimited company. The company would then resolve to reduce its capital and at the date of completion distribute its property, by way of dividend or gift, to the true intended client purchaser: the unlimited company and the ultimate purchaser thereby (it was contended) avoiding liability for SDLT.
18. Lenders again were never advised of any of this. Their understanding was that the only purchaser involved was the individual purchaser to whom they were lending. This was so despite counsel's original advice referring to the need for the "co-operation of the mortgagee".

(d) The nominee scheme

19. Under this scheme – a variation of the husband and wife scheme – the vendor would contract to sell to the respondents' purchasing client. At the same time, a contract for sale was also entered into with a company, for example – in cases involving ITS – one called Monumental Planning Limited ("MPL"), with the deposit held to the order of the vendor. MPL would then enter into a sub-sale contract with the true intended purchaser (the client) on the basis that MPL would pay a further 65% of the purchase price with the client purchaser paying the balance. (The reality, of course, was that the client lender and client purchaser paid the whole price.) SDLT was then paid on the (lower) consideration stated in that sub-sale contract as representing that balance: which, typically, would be lower than the SDLT threshold.
20. This again was not communicated to lenders.
21. In all these schemes, the fee received by the provider (including Omega) was a percentage, typically 50%, of the SDLT saved. As found, 455 clients were referred by the respondents to UPS. It was established that that is not registered at Companies House and was not regulated by the Financial Services Authority – its status was shadowy. Further, on some occasions where UPS was the provider in the nominee scheme the company used in the nominee scheme was called Zenith (TP) Limited. A company search revealed that the directors and shareholders of that company were the wives of the individual respondents.
22. On 5 July 2011 Abode had obtained written advice from counsel. This had warned that, in the light of the Revenue's attitude to sub-sale schemes, clients should be "fully appraised of the risk of challenge" and that there was no guarantee that the structure would be effective. The need for the client fully to understand the scheme used and the need for fully informed consent was stressed. Counsel also expressed "serious concerns" about the "technical robustness" of the husband and wife scheme and warned that the Revenue had numerous open enquiries into instances where the unlimited company scheme had been used.

The charges

23. The charges levelled against the respondents were many and varied. Unhappily, they were, as formulated, for the most part unduly and unnecessarily convoluted and prolix.
24. Something of the nature of the style of drafting of the charges (the drafting is not, I should add, that of Mr Gott) adopted can be gathered from setting out the terms of allegation 1.1:

"Allegation 1.1 – They failed, alternatively facilitated, permitted or acquiesced in a failure to disclose material information to lender and/or purchaser clients and/or failed to act in the best interests of lender and/or purchaser clients, contrary to Rules 1.02, 1.03, 1.04, 1.05, 1.06 and/or 4.02 of the Solicitors Code of Conduct 2007 ("SCC 2007") in the period up to 5 October 2011 and/or from 6 October 2011 they breached all, alternatively any, of Principles 2, 3, 4, 5 and/or 6 of the SRA Principles 2011 ("the Principles"). Further, or alternatively, from 6 October 2011, the respondents failed to achieve outcomes O(1.1) and O(4.2) of the SRA Code of Conduct 2011 ("2011 Code")."

Another example is allegation 4.1:

"Allegation 4.1 – They involved themselves in transaction and/or facilitated, permitted or acquiesced in the promotion and/or implementation of schemes to avoid the payment of Stamp Duty Land Tax ("SDLT") in circumstances where the schemes were of a dubious nature and the respondents knew, or ought to have known that concerns had been raised by both HMRC and counsel in relation to the nature of the transactions, contrary to Rules 1.02, 1.03, 1.04, 1.05, 1.06 and/or 4.02 of the SCC 2007 in the period up to 5 October 2011 and/or from 6 October 2011 they breached all, alternatively any, of Principles 2, 3, 4, 5 and/or 6 of the Principles. Further, or alternatively, from 6 October 2011, the respondents failed to achieve outcomes O(1.1) and O(4.2) of the 2011 Code."

25. This sort of drafting – whether in the context of Solicitors' Disciplinary Tribunal proceedings or any other kind of disciplinary or regulatory proceedings – is unacceptable. It would not be tolerated in the civil courts. It would not be tolerated in the criminal courts. It should not be tolerated in disciplinary tribunals.
26. As it happens, no-one in this case complained to the Tribunal of not knowing the case they were facing. That, however, may not be so in other cases; and in any event such a style of drafting charges can operate only to make the task of a tribunal more difficult. They create a real risk that a tribunal will lose sight of the larger picture and will treat the more and the less significant points alike. One can perhaps understand the desire not to leave any relevant allegation out. But allegations are capable of being relatively shortly stated, with particulars relating to each such allegation then provided. It is not acceptable to lump allegations, with a plethora of "alternativelys", "further or alternativelys" and "and/ors" and with reference to a variety of different rules, principles and outcomes, into one convoluted and rolled-up charge.
27. In addition, those drafting such charges would, in my view, be well advised to bear in mind the desirability in principle of aiming to seek to include in a charge sheet the minimum number of charges necessary to meet the justice of the particular case: and not the maximum number possible.
28. That said, certain of the Tribunal's conclusions on various of the charges are not now the subject of challenge by either the SRA or the respondents. Those conclusions that were the subject of challenge by the SRA were identified by Mr Gott as follows:

"(1) The allegations that each of the Respondents failed to act with integrity, were not proved.

(2) Two allegations that each of the Respondents compromised his independence, were not proved.

(3) One allegation that each of the Respondents acted so as to diminish the trust the public would place in the Respondents and the provision of legal services, was not proved.

(4) The allegation that each of the Respondents was connected with a business (Omega) that was not reputable, was not proved.

(5) That Allegation 4.1 was not proved against each Respondent.

(6) The allegation that against each of the Respondents, in respect of Omega, allowed the client bank account to be used as a banking facility, was not proved.

(7) The imposition of a sanction which was limited to a fine on each of the Respondents of £15,000 was wrong."

Overall, it was submitted that all such conclusions were inconsistent with the Tribunal's own primary findings of fact with regard to the respondents' conduct in respect of the various SDLT schemes.

The Tribunal's findings

29. The Tribunal's judgment was immensely detailed (as Mr Kendal was entitled to emphasise). In fact, it was 222 paragraphs and 66 pages in length. That may in part reflect the laborious detail of the charges as formulated and which the Tribunal had to confront.
30. It should be noted that, although the respondents had put in written evidence, they elected not to give oral evidence at the hearing. They have given reasons for that – including, they say, a concern that the hearing could not have concluded in the allocated time if they did. The Tribunal at all events did not draw any adverse inference from that: but at the same time it had no oral evidence explaining the respondents' position on numerous aspects of the case.
31. The first respondent had, in a written statement dated 20 January 2012, been concerned to explain an apparent shortfall on the client account of the firm of £725,752 detected by the SRA. Of this, £605,521 was identified as commission received primarily from UPS (as I have said, one of the promoters of various of the schemes). In the absence of informed consent on the part of the clients, this would potentially be due to those clients. The respondents were to say at the hearing, however, that this was not in fact commission but "compensation" for unsatisfactory service (albeit the money had been charged to client ledgers).
32. The Tribunal rejected the respondents' evidence and case on this. It found that the sums concerned were indeed commission and, in the absence of informed consent permitting the firm to retain such monies, were client monies. It found (paragraph 128.4) that the processes adopted in relation to these sums were "wholly inappropriate". It noted that the respondents' case on this was unsubstantiated and involved "an inherently unlikely explanation for receipt of that sum". It follows that the respondents had put forward misleading and unreliable evidence in support of their case on this point.
33. One point the Tribunal understandably stressed, however, was that it was not required to make any findings as to the actual efficacy (or otherwise) of the various SDLT schemes. As it held, at paragraph 113, attempted implementation of the schemes was not "in itself" any breach of any professional rules. Mr Gott did not dispute that. His complaint was as to the way in which the respondents involved their clients in these schemes.
34. Having reviewed the facts at length, and dealing with Allegation 1.1, the Tribunal made this observation (among others) at paragraph 117.10 of the judgment:

"117.10 The Tribunal was concerned that the respondents did not appear to accept, even at the hearing of this matter, that they had an obligation to disclose material facts and matters to their clients…"

35. As to the option scheme, the Tribunal found that there had been no disclosure to the clients that the respondents were the owners and directors of the company (Omega) holding the option. They made these findings:

"117.12 With regard to the OP/option scheme matters, the Tribunal noted that the respondents were the directors and shareholders of the company, registered in the Seychelles, which held the option. The respondents did not disclose to the purchaser clients that they were the owners and directors of the company which held the option. They did not disclose that the creation of the option might make future conveyances of the property complex and more expensive than usual, as OP would have to be involved in future transactions: it was unclear what would happen if OP ceased to exist or could not be traced. In the matter of Mr & Mrs T, which was exemplified, the saving of SDLT was only £648; Mr & Mrs T were not advised that their legal costs in future transactions could increase because of the complexity of involving OP and/or that there was a risk to the marketability of the property as the option day approached. Mr & Mrs T, and others using this scheme, were not advised of the aggressive nature of this tax planning scheme and of the extended period in which HMRC could challenge the transaction. The lenders were similarly not told of the nature of the transaction; the Tribunal was satisfied that this was a material consideration, which should have been disclosed. The Tribunal was satisfied to the required standard that the respondents had failed to disclose material information to purchaser and lender clients with regard to OP matters, and in so doing failed to act in the best interests of their clients, to provide a good/proper standard of service, to act with independence and to act in a way which would maintain public confidence in the profession and the provision of legal services."

36. Corresponding findings as to lack of disclosure, both with regard to client lenders and client purchasers, were then made by the Tribunal with regard to the nominee, husband and wife and unlimited company schemes. The Tribunal in terms (at para 117.16) rejected the respondents' submissions that there was no need for them to disclose to lender or purchaser clients the true nature of the transactions and the risks involved. (Indeed, I find it quite revealing that such submissions were even made by the respondents.)
37. Having made all those findings, the Tribunal nevertheless then immediately went on to say this about lack of independence at paragraph 117.17:

"117.17 The Tribunal was not satisfied to the required standard that the allegation of lack of independence had been proved to the required standard. The respondents received work from a number of sources and whilst many purchaser clients were referred to SDLT avoidance providers, not all conveyancing clients used such schemes."

It was the submission of Mr Gott that that conclusion was wholly inconsistent with what had just been found, not least in paragraph 117.12.

38. On the issue of integrity, the Tribunal then made this finding:

"117.18 The Tribunal considered carefully whether the allegation of lack of integrity had been proved. It noted that the respondents had made a lot of money from their involvement in SDLT mitigation schemes. The respondents had not made full disclosures to clients of important matters, but it was not made out to the highest standard that the respondents had lacked integrity, for example by hiding facts from clients in order to retain more money for themselves. Insofar as the SDLT schemes worked, there was some saving for purchaser clients. The respondents had referred to the fact that a number of other firms were carrying out similar work. There was no inherent illegality involved in acting in such matters. Whilst the respondents may have been incompetent in relation to their operation of the schemes, the Tribunal was not satisfied that they had acted without integrity."

Mr Gott attacked this conclusion too as unsustainable in view of the prior primary findings of fact.

39. On the issue raised of conflict of interest, the Tribunal upheld the SRA's allegations. It found (paragraph 118.9) that "the respondents had allowed their independence to be compromised, had failed to act in the best interests of clients and, by acting in matters where their interests were clearly in conflict with those of the purchaser and lender clients, had acted in a way which would reduce the trust the public would place in them and the provision of legal services". Having so found, the Tribunal went on to say this:

"118.10 The Tribunal considered carefully whether the respondents had acted without integrity. As also noted in paragraph 117.8, the Tribunal concluded that the respondents had acted in SDLT mitigation schemes without a proper understanding of those schemes or their duties to clients. The conflicts of interest were serious, and they should have been obvious, but the respondents had not fully understood what they were doing; their actions and approach were more due to incompetence than to any lack of integrity. The Tribunal was not satisfied to the required standard that the applicant had shown they had acted without integrity."

40. Corresponding findings as to the failure to prove lack of integrity were made with regard to all other (related) allegations. The allegations in this respect thus were, in essence, found proved save as to lack of integrity: essentially on the basis that the respondents had been incompetent and failed to understand the schemes, but no more than that. The Tribunal did, however, find that there had been a "series of failures to implement the SDLT mitigation schemes properly".
41. As to the involvement of Omega, this was found:

"123.7 OP began operating in September 2011. The Tribunal was satisfied to the required standard that the respondents had breached Rule 21.02 of the SCC. It was also beyond doubt that after 6 October 2011 the respondents had failed to achieve Outcome 12.1, as they owned a separate business which conducted prohibited separate business activities.

123.8 The Tribunal considered whether the other parts of this allegation had been proved to the required standard. It was not satisfied that the applicant had proved OP was not a 'reputable' separate business. Again, the Tribunal was not satisfied that it had been proved the respondents had acted without integrity; their conduct arose primarily from misunderstanding SDLT transactions and their professional duties. Whilst there were obvious concerns about whether the respondents' actions would amount to acts which might diminish the trust the public would place in them or the provision of legal services, the Tribunal had not heard sufficient evidence from the applicant to prove this allegation to the required standard."

42. The Tribunal found that various related allegations relating to the accounts of Abode were proved. Indeed, the Tribunal found the accounts to be in a "complete mess" (paragraph 130.4).
43. On the issue of whether the respondents had knowingly engaged in schemes of a "dubious nature", the Tribunal repeated its finding that the respondents had not operated the schemes in compliance with the requirements. The Tribunal declined to find that the schemes were in themselves "dubious": it found that the damage to the legal profession arose from the specific breaches proved, and not from the allegedly "dubious" nature of the schemes themselves.
44. When it came to assessing the sanction, the Tribunal concluded (paragraph 188) that:

"188. The respondents' misconduct arose largely from their failure to understand either the requirements of the SDLT schemes or their responsibilities under the relevant Accounts Rules…"

It further found (at paragraph 194), reflecting its foregoing remarks, that:

"…Whilst there had been no dishonesty or lack of integrity, the respondents had been incompetent in the operation of the SDLT schemes and their firm's accounts systems…"

45. Having further reviewed the position, the Tribunal found that the culpability and responsibility of the respondents was the same. As to the UPS monies of over £605,000 it found that they "should have known" that the sum was commission, not compensation, and accountable accordingly. Having also found that the respondents showed no real insight and "an inability to accept they had done anything wrong", the Tribunal's conclusion on sanction was expressed (in paragraph 199) in these terms:

"199. The Tribunal considered the range of sanctions available to it. This was clearly not a case in which either 'no order' or a reprimand would be appropriate. The Tribunal considered whether suspension or striking off were required but determined that as the case arose more from a lack of understanding on the part of the respondents than any deliberate wrongdoing, it was not necessary to go so far. Taking into account all the relevant factors, the Tribunal determined that a financial penalty was appropriate. In order properly to reflect the number and seriousness of the breaches which had occurred, that fine had to be substantial. The Tribunal determined that the appropriate and proportionate amount in this case was a fine of £15,000 for each of the first and second respondents."

Legal principles

46. There is no real dispute as to the applicable legal principles.
47. It is important to note, and as Mr Kendal emphasised, that dishonesty was not alleged here.
48. As to want of "integrity", there have been a number of decisions commenting on the import of this word as used in various regulations. In my view, it serves no purpose to expatiate on its meaning. Want of integrity is capable of being identified as present or not, as the case may be, by an informed tribunal or court by reference to the facts of a particular case.
49. As to the respect to be accorded to the assessment of the Tribunal, it is clear that this court should acknowledge that the Tribunal assessed the evidence (albeit having no oral evidence from the respondents); and it was for it as a specialist and fact-finding body to evaluate that evidence and to decide what conclusions to draw and what sanction to impose. The court will not lightly, on appeal, interfere with the decision of a specialist body entrusted with finding the facts and imposing the sanction considered appropriate. But if the court's own conclusion is that the Tribunal's evaluation and conclusion are wrong then it is its duty to interfere. There is no purpose in citation of the various authorities to this effect: the approach to be applied is well-established. But Mr Kendal was again entitled to emphasise the point.

Disposition

50. Adopting that approach, I nevertheless am in no doubt that Mr Gott's complaints in this regard about the conclusions of the Tribunal are to be accepted. I think, in particular, that the allegations of want of integrity and acting with lack of independence really follow from the primary facts as found by the Tribunal: and, with all respect, its conclusion to the contrary is not sustainable.
51. One only has to consider the elements of, for example, the husband and wife scheme to see how potentially disastrous it could be if, for instance, the relationship between the purchasers subsequently broke down. If they were going to commit themselves to an outcome (with a view to saving a modest amount of SDLT) where one ended up with, on the face of it, just 1% of the equity, clear warnings as to the consequences and the need for independent legal advice were plainly needed. They never got it. Or take the option scheme. The very existence of such an option was potentially a blot on the title and fraught with difficulties: for example if (to give one instance cited by the Tribunal itself) the option holder was dissolved. As to the unlimited company scheme and nominee scheme, Mr Gott carefully took us through examples from the papers: which indicate that what was being represented by the firm to the Land Registry by no means correlated with what was being represented for SDLT reporting purposes or with the actuality of what was really intended. Nor did the lenders know of any of this. It is of little relevance to say that no lender suffered actual loss: the point is that they should have had the opportunity to decide whether to continue to lend when new entities, such as companies, were being inserted into the purchasing process and when the funds being lent were not always being held to the order of the lenders nor were they being applied strictly as they should have been in the course of the purchasing process and as they would have intended. Moreover, some lenders may well, for reputational reasons, have not wished to involve themselves in such transactions at all: and at the least should have been given the chance to decide.
52. Further, the purchaser clients were (as found by the Tribunal) never properly advised as to the aggressive nature of the various schemes or as to the risk of successful challenge by the Revenue. The obvious inference, overall, is that purchaser clients and lender clients were not informed because the respondents did not wish to deter them from entering into the arrangement.
53. The inevitable inference to be drawn from the Tribunal's findings, in my judgement, is that the interests of the clients were subordinated to the financial interests of the respondents. Not only (as found) did they not implement the schemes in accordance with the advised requirements: the clear indications are that they regarded the form of the schemes being used as no more than that: a form. Indeed, in their written submissions the respondents had stated with regard to the nominee scheme that the money transfers purportedly to or from the nominee company were "notional". As to the option scheme, they had stated that it "has never been the respondents' intention [for Omega] to exercise the options". Thus the schemes were seemingly regarded by the respondents as entirely nominal for client purposes but not for SDLT purposes: an unacceptable position and not one sanctioned by counsel's written advice. This perhaps, however, to some extent explains the respondents' complete indifference to informing the clients properly of the true position and of the potential risks involved.
54. Thus the findings in paragraphs 117.12 to 117.16 are, in my view, consistent only with a want of integrity and a failure to act with independence. The finding that the allegation of lack of independence had not been proved (paragraph 117.17) is flatly inconsistent with the prior finding in paragraph 117.12 that it was proved: that prior finding being, in my view, obviously justified. As to the conclusion that no want of integrity had been proved (at paragraph 117.18), overall that simply cannot be consistent with the previous adverse primary findings of fact against the respondents.
55. It is, in this regard, not sustainable to dismiss the allegations of want of integrity by reference to "incompetence" or "a lack of proper understanding of the schemes". The respondents knew full well what they were doing – this extending even to incorporating Omega (in the Seychelles) with a view to their own personal profit. And if it is to be said, as the Tribunal said at paragraph 118.10, that they had "no proper understanding of their duties to their clients" one wonders how such persons are then to be considered fit to be solicitors at all. It is noticeable that the Tribunal itself repeated, more than once, a continuing lack of acceptance on the part of the respondents that they had done anything wrong.
56. In argument before us, Mr Ali took us through a number of documents designed to show that clients had been appropriately informed of the true position. It is not clear to what extent all his points had been advanced below. At all events, I can see no proper basis for interfering with the Tribunal's primary findings as to what clients were – or, more precisely, were not – told. Overall, I unhesitatingly reject the suggestion that the way in which the respondents had operated the SDLT schemes vis-à-vis their clients had resulted in purely "technical" breaches of the Rules.
57. That the Tribunal, with respect, seriously underestimated the gravity of its own findings as to the respondents' conduct – as Mr Gott submitted – is, I think, further illustrated by its approach to the UPS money of over £605,000 – which, as it justifiably found, was client money. It said that the clients suffered no loss. In one sense, that is true – they were not out of pocket as such. But in another sense it is not true – for the firm was accountable to the clients, in the absence of informed consent, for these monies. But much more strikingly, the Tribunal (at paragraph 196) had apparently concluded that the respondents should have known that the money was commission and client money. That, however, is inconsistent with its prior findings, when it rejected the respondents' evidence that it was compensation ("inherently unlikely") and when it found that the process adopted for these monies was "wholly inappropriate". The obvious conclusion is that they did know that it was commission. Indeed the only obvious explanation for arguing it to be compensation was to try to get over the clear and perceived difficulty of it being commission.
58. I do not propose to say more. In my view, the evidence and the primary findings of fact of the Tribunal – all eminently justified – compel a conclusion that there was here a want of integrity and a failure to act with independence. They also compel a conclusion that the respondents so acted as to diminish the trust the public would place in the respondents and the provision of legal services. It would indeed be lamentable, on these facts, if it were adjudged otherwise. The charges were, in my view, all established on the evidence in these respects.
59. I also consider that the charge that each was connected with a business (Omega) that was not reputable was amply proved. Omega was set up by the respondents for their own financial purposes. Its involvement did not accord with the advice of counsel, who had said that the personal involvement of the respondents should be avoided. Its incorporation in the Seychelles was (it is to be inferred in the absence of explanation) at least in part to distance the respondents from ostensible involvement. The conclusion of the Tribunal at paragraph 123.8 cannot, given its own primary findings of fact, be sustained.
60. For corresponding reasons, Allegation 4.1 should also have been found to have been proved.
61. Mr Gott did also argue as his sixth ground that, in respect of Omega, the respondents had allowed the client bank account to be used as a banking facility. I do not propose to go into detail. Set in context, this is of much less moment than many of the other charges. I consider, on the whole, that the Tribunal was (in the face of rather limited material) entitled to find this particular allegation not proved.

Sanction

62. That leaves the question of sanction.
63. I do not need to consider whether the sanction of a fine of £15,000 was appropriate even on the conclusions of the Tribunal as they stood. Clearly such a sanction cannot be maintained if conclusions as to want of integrity and acting with a lack of independence and bringing the profession into disrepute are to be brought into account (as in my opinion they should be). On any view, moreover, on the Tribunal's own findings, it remains most troubling that the respondents showed, and continue to show, a total failure of understanding of their obligations and responsibilities as solicitors.
64. Mr Gott, as an initial point, and reflecting an eighth ground of appeal, complained that the Tribunal unwarrantedly rejected out of hand his written submissions on sanction. I reject that. It received the document. Its point was – correctly – that it was for it to decide on the appropriate sanction.
65. Mr Gott nevertheless maintained that there can be only one possible sanction – that is, that each respondent be struck off. He submitted that no other sanction could be appropriate, given the circumstances.
66. I have hesitated on this. In my view, this was serious misconduct, showing overall a heedless indifference to the interests of the clients, both lenders and purchasers, by reason of a desire to maximise, without proper disclosure to the clients, the personal profits of the respondents. But I have to remember that dishonesty is not alleged. I cannot at this stage be entirely satisfied that some lesser sanction than striking off possibly may be adjudged by the Tribunal to be appropriate. In such circumstances, I would accept Mr Kendal's submission and remit the matter to the Tribunal for further consideration of the appropriate sanction, in the light of this court's decision and in the light of any consequential further representations hereafter to be made.
67. I would add that Mr Kendal has sought to maintain, both on the issue of conduct and on the issue of sanction, that the first respondent was in a position different (in the sense of more favourable) from that of the second respondent. It is said that he was, in effect, managing partner with no day-to-day involvement in client or conveyancing activities. In my view, however, the Tribunal's finding that the overall culpability and responsibility of the respondents was the same was a perfectly proper one and was open to the Tribunal on the evidence. It cannot now be challenged.

Conclusion

68. Accordingly I would be for allowing this appeal on each of the grounds advanced (save for those set out in grounds 6 and 8). I would, in the light of that, remit the matter to the Tribunal for re-determination of the appropriate sanction.

Mr Justice Ouseley:

69. I agree.