QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE EDIS
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SOLICITORS REGULATION AUTHORITY |
Appellant |
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- and - |
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NABEEL AMER SHEIKH |
Respondent |
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Mr Ian Stern QC (instructed by RSW Law) for the Respondent
Hearing dates: 27th and 28th October 2020
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Crown Copyright ©
LORD JUSTICE DAVIS :
Introduction
The required approach
"It is essential to focus on the traditional question whether or not there is evidence (taking the prosecution case at its highest) upon which a reasonable jury, properly directed, could infer guilt."
Background facts
"He was evidently a major influence within the firm as well as having a 50% share in it and, on the face of it, there is very good reason to suspect him of having been complicit in a serious fraud involving large sums of money. The apparent rule breaches are also of grave concern."
"The present position is as follows. The Lord Chancellor submits, and Mr Patel and Neumans both accept, that the DCO should be revoked. In our view, this is plainly right. The facts are set out in the Lord Chancellor's case and in the witness statements of Mr Fitzgerald-Morris, including the points by reference to the detail in the Registrar's report and the conclusions are clear. They have not been answered by either Mr Patel or Neumans and they are in no position to contest the facts. If the true facts had been known, we are clear that the court would not have made the original DCO. Additionally on the basis of largely unchallenged facts, as they have now belatedly emerged set out in the Lord Chancellor's case and evidence, we are quite satisfied the DCO should be revoked and we so order."
The papers were also directed to be referred to the Director of Public Prosecutions and the SRA.
The Report of Master Egan QC
"Nabeel, it is important that no evidence of interim invoices appear on the file."
The proceedings in the SDT
"1.3. On or about 27 June 2011, the Respondent caused a bill of costs and supporting materials (together "the Bill of Costs") to be submitted to the Court of Appeal pursuant to a Defendant's Costs Order made by the Court of Appeal in the Proceedings, which sought payment of £2,916,396 plus VAT, when the Bill of Costs:
….
c) made claims as to the work undertaken for Client A [Mr Patel] which did not reflect the work actually undertaken;
d) did not include documents and information which ought properly have been provided to the Court, including, in particular:
i. eight invoices sent by the Firm to Client A and settled by Client A;
ii. a purported "Capping Agreement" in relation to the Proceedings; and
iii. a purported "Deed of Variation" in relation to the Proceedings.
and by reason of the matters set out at 1.3 a) to d) above or any of them, breached one or more of Rules 1.02, 1.06 and 11.01 of the Solicitors Code of Conduct 2007.
….
Dishonesty
2. It is the SRA's case that the Respondent acted dishonestly in respect of the matters set out at allegations 1.1 to 1.3 above, or any of them. Dishonesty is not an essential ingredient to the allegations at 1.1 to 1.3 above and it is open to the Tribunal to find those allegations proved with or without a finding of dishonesty."
The decision of the SDT
"116.4 The final statute bill of costs was prepared at the request of the CACD. The Tribunal determined that the Respondent sought expert advice from costs specialists Masters to settle the Bill. On the basis of the documentary evidence before it and submissions made, the Tribunal accepted that Masters had to reconstruct the matter files, in respect of time spent, from the Respondent's attendance notes as iLaw did not accurately reflect the time expended. The reconstruction exercise took a considerable period of time and it was plain that the Respondent relied upon/was steered by Masters in that regard as well as the manner in which the Bill was prepared. The Tribunal was satisfied that having sought specialist advice from costs draftsmen and counsel, the Respondent was entitled to rely upon the same. The Tribunal noted that the Applicant made no criticism of RM or TH of Masters approach or advice given as to Client A's costs.
116.5 With regards to the Bill itself the Tribunal noted that only Part 1, in relation to work undertaken by Charles Russell Solicitors, had been taxed. Part 2, in relation to the Respondent and the Firm, had not been assessed or taxed. The Tribunal found that the Bill had been submitted, queries raised, enquiries answered which led to the DO referring the Bill to Master Egan for investigation. The Tribunal scrutinised the conclusions reached by Master Egan, which was predicated on documents received and misconceived assumptions, for example that the Deed was a sham, the absurdity of the Deed, the inability to accept that Client A agreed to an increased costs liability and that any time not recorded on iLaw simply was not done on a case of this size and complexity. JQ's analysis of iLaw was of limited assistance to the Tribunal as it expanded upon Master Egan's conclusion which the Tribunal did not accept. Leaving aside the Tribunal's findings at paragraph 116.2 above it was a matter of concern to the Tribunal that JQ's evidence related to the obtaining of the iLaw records and the electronic interrogation of the same was in fact expert evidence with no explanation of his experience or expertise as is required of a witness undertaking technical work."
"The Tribunal was cognisant of the fact that the Respondent accepted that there was an error on the Bill in relation to the exhibits. On that basis…no Tribunal properly directed could find beyond reasonable doubt that the hours in respect of the exhibits were falsely claimed".
And dealing with the example of the 2 lever arch files it said this:
"The Applicant invited the Tribunal to infer that "an excessive amount of time was spent on tasks with very little output." One example of 100 hours spent reviewing two lever arch files was given and was predicated on Master Egan's conclusions. Master Egan erroneously reported that the time claimed was between 17 March and 23 July 2007 when in fact it was 17-23 March 2007. Master Egan did not review the lever arch files in question. The applicant invited the Tribunal to accept the conclusions reached by Master Egan. The Tribunal, having not been taken to the underlying documents, was unable to assess their significance to the criminal proceedings which were successfully defended. As such, the Tribunal concluded that, properly directed, it could not find beyond reasonable doubt that the time spent reviewing the files was excessive."
"Having found that the Respondent sought guidance from costs specialists Masters in respect of the Bill and the Deed, the Tribunal concluded that the Respondent was entitled to rely upon the same. The Costs Section of the CACD asked Masters, by way of letter dated 5 September 2011, for copies of all invoices. Masters did not disclose them. The Tribunal accepted that it was Masters who advised the Respondent not to disclose the invoices so as not to confuse matters."
Disposal
(1) Given that iLaw was in use for preparing two of the interim bills of costs submitted for the period prior to the Capping Agreement, on what basis could a further 500 hours then be claimed for work done in that self same period, as sought to be claimed in the Bill of Costs?
(2) A demonstrably unsustainable claim was made for 100 hours work done on exhibits AS100/AG200 before they had even been served. It was no function of the SDT, at the half-time stage and having regard to all the other evidence, simply to accept uncritically (as it did at paragraph 119.3) the assertion made in correspondence and submissions that this was "human error".
(3) It was also quite wrong simply to reject at the half-way stage, for example, the point that the respondent had unjustifiably claimed over 100 hours of time in reviewing just two lever arch files of (by their description, anodyne) documents on the basis that the SDT had not itself been taken through those two files. That approach seems not to place that individual allegation into the context of the totality of the evidence.
Conclusion
MR JUSTICE EDIS: