AC-2024-LON-000040 - [2025] EWHC 1965 (Admin)

Section 1 of the 1974 Act provides that a person is not qualified to act as a solicitor unless they have (a) been admitted as a solicitor (b) their name is on the Roll and (c) they have a current practicing certificate issued by the Law Society.

The maintenance of accounts (including, in particular, accounts holding clients’ money) is addressed at ss.32 to 34 of the 1974 Act. Professional regulation of solicitors is undertaken by the SRA which acts as the regulatory arm of the Law Society. The SRA sets out standards, regulations and codes that those who are regulated by the SRA are expected to adhere to. At the relevant time, (Footnote: ¹) the SRA Handbook set out the following ten mandatory principles:

“SRA Principles

These are mandatory Principles which apply to all.

You must:

1.

uphold the rule of law and the proper administration of justice;

2.

act with integrity;

3.

not allow your independence to be compromised;

4.

act in the best interests of each client;

5.

provide a proper standard of service to your clients;

6.

behave in a way that maintains the trust the public places in you and in the provision of legal services;

7.

comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;

8.

run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;

9.

run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and

10.

protect client money and assets.”

As set out above, this is an appeal brought pursuant to s.49 of the 1974 Act. Sections 46 to 49A of the 1974 Act make provision about the Solicitors Disciplinary Tribunal. The Tribunal adjudicates on alleged breaches of the rules and regulations applicable to solicitors and their firms, including the SRA Code of Conduct 2011, the SRA Principles 2011 and, now, the SRA Standards and Regulations. The jurisdiction of the Tribunal to strike a solicitor from the Roll and make a costs order at the conclusion of a Tribunal hearing, derives from s.47 of the 1974 Act, which provides that:

“Jurisdiction and powers of Tribunal

(1)

Any application—

(a)

to strike the name of a solicitor off the roll;

(b)

to require a solicitor to answer allegations contained in an affidavit;

(c)

to require a former solicitor whose name has been removed from or struck off the roll to answer allegations contained in an affidavit relating to a time when he was a solicitor;

(d)

by a solicitor who has been suspended from practice for an unspecified period, by order of the Tribunal, for the termination of that suspension;

(e)

by a former solicitor whose name has been struck off the roll to have his name restored to the roll;

(f)

by a former solicitor in respect of whom a direction has been given under subsection (2)(g) to have his name restored to the roll,

shall be made to the Tribunal; but nothing in this subsection shall affect any jurisdiction over solicitors exercisable by the Master of the Rolls, or by any judge of the High Court, by virtue of section 50.

(2)

Subject to subsections (2E) and (3) and to section 54, on the hearing of any application or complaint made to the Tribunal under this Act, other than an application under section 43, the Tribunal shall have power to make such order as it may think fit, and any such order may in particular include provision for any of the following matters—

(a)

the striking off the roll of the name of the solicitor to whom the application or complaint relates;

(b)

the suspension of that solicitor from practice indefinitely or for a specified period;

(c)

the payment by that solicitor or former solicitor of a penalty . . . , which shall be forfeit to Her Majesty;

(d)

in the circumstances referred to in subsection (2A), the exclusion of that solicitor from criminal legal aid work (either permanently or for a specified period);

(e)

the termination of that solicitor’s unspecified period of suspension from practice;

(f)

the restoration to the roll of the name of a former solicitor whose name has been struck off the roll and to whom the application relates;

(g)

in the case of a former solicitor whose name has been removed from the roll, a direction prohibiting the restoration of his name to the roll except by order of the Tribunal;

(h)

in the case of an application under subsection (1)(f), the restoration of the applicant’s name to the roll;

(i)

the payment by any party of costs or a contribution towards costs of such amount as the Tribunal may consider reasonable.

.../”

Pursuant to s.49(4) of the 1974 Act, the High Court has the power to make such an order on an appeal under that section as it may think fit. An appeal pursuant to s.49(4) of the 1974 Act proceeds by way of a review, unless the court considers that it would be in the interests of justice to hold a rehearing (CPR 52.21(1); Salsbury v Law Society [2008] EWCA Civ 1285, [2009] 1 WLR 1286 at [3]). Part 52 of the CPR governs this species of statutory appeal and CPR r.52.21(3)(a) provides that the court will allow the appeal where the decision of the lower court was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings.

In SRA v Day [2018] EWHC 2726 (Admin), the Divisional Court reiterated that in an appeal of this nature the general caution on the part of the appellate court applies with particular force with respect to the decision of a specialist Tribunal particularly equipped to appraise what is to be required by way of conduct from the professional who is subject of regulation, in this case a solicitor. It is a fundamental principle that the appeal court will defer to the expertise of a regulatory tribunal and recognise its relative disadvantage.

In Bawa-Garva v GMC [2018] EWCA Civ 1879, [2019] 1 WLR 1929 at [61], the Court of Appeal described the decision of a regulatory tribunal as an evaluative decision based on many factors, sometimes referred to as a “multi-factorial decision”. McGowan J in Abbas v Solicitors Regulation Authority [2024] EWHC 2775 (Admin) at [72] stated the following:

“This court should only interfere if the decision about what is necessary to protect the public and maintain proper standards in the profession is "wrong". It is not for this court to substitute its own judgment for that of the tribunal. It should interfere only if there is an error of principle in the tribunal's evaluation or because the tribunal has acted outside the bounds of what it could properly and reasonably decide. A tribunal reaches a view based on an assessment of a number of factors. In particular the conjunction of the accepted facts and the oral evidence of any witness. Such a "multifactorial" view cannot usually be dislodged unless it is demonstrated to be wrong or procedurally flawed. As established In re: a solicitor [1956] 1 WLR 131 per Lord Goddard CJ, "It would require a very strong case to interfere with sentence because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct."”

With respect to the findings of fact made by a Tribunal, as noted above the Tribunal made clear in its decision that the absence of any reference in its decision to particular evidence should not be taken as an indication that the Tribunal did not read, hear or consider that evidence. The authorities further make clear that it is not reasonable to expect a tribunal to elaborate on its reasoning in the way courts and professional judges may frequently be expected to do. As indicated in Beresford v Solicitors Regulation Authority [2009] EWHC 3155 (Admin) at [43], it can also be taken that the findings of fact in relation to each allegation necessarily relate back to the evidence and submissions which the Tribunal has set out.

It is well-established that the court will be unlikely to overturn the decision of the Tribunal on the grounds that seek to criticise the findings of fact made by the Tribunal. In SRA v Day, the Divisional Court reiterated that the appellate courts should be slow to intervene in findings of fact by the Tribunal. Noting that the authorities for this proposition “are legion”, the Divisional Court demonstrated the proposition with, inter alia, a quote from the decision of Lord Reed in Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600 at [67]:

“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

This approach applies with particular force where the Tribunal has heard from the party and the witnesses. It is the tribunal that hears the evidence and is best placed to judge the credibility and reliability of a witness. In this case, as I have noted, Mr Cottam gave evidence before the tribunal and was cross-examined. Within this context, in Assicurazione Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577 at [32], Clarke LJ court stressed that the appellate court should take “particular care” before it departs from a trial judge's findings of fact, especially where the conclusions depend to a significant extent upon the fact finder’s view of the witnesses.

Within the foregoing context, in Martin v Solicitors Regulation Authority [2020] EWHC 3525 (Admin), the Divisional Court (Simler LJ and Picken J.) summarised the position as follows:

“[32]. For these reasons the well-established approach is that an appellate court should not interfere with a finding of fact unless satisfied that the conclusion is "plainly wrong": see McGraddie v McGraddie (above) and Henderson v Foxworth Investments Ltd (above). That means it must either be possible to identify "a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence" (Henderson v Foxworth Investments Ltd at [67] (Lord Reed)); or if there is no such identifiable error and the question is one of judgment about the weight to be given to the relevant evidence, the appellate court must be satisfied that the judge's conclusion "cannot reasonably be explained or justified" ([67]). Lord Reed made clear that, in determining whether a decision cannot reasonably be explained or justified, "It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge would have reached." Again, we emphasise, that is a high threshold: see to this effect, Perry v Raleys (above) at [63] (Lord Briggs).

[33]. The effect of these authorities in the context of an appeal against a decision of the Solicitors Disciplinary Tribunal ("the SDT") was summarised in SRA v Day [2018] EWHC 2726 , where, in addition to what we have said above, a number of additional considerations specific to appeals from decisions of the SDT were identified. First, the SDT is a specialist tribunal particularly equipped to appraise what is required of a solicitor in terms of professional judgment, and an appellate court will be cautious in interfering with such an appraisal. Secondly, decisions of specialist tribunals are not expected to be the product of elaborate legal drafting. Their judgments should be read as a whole; and, in assessing the reasons given, unless there is a compelling reason to the contrary, it is appropriate to take it that the tribunal has fully taken into account all the evidence and submissions. That does not mean that a decision which has failed in its basic task to cover the correct ground and answer the right questions will be upheld. A patently deficient decision cannot be converted by argument into an acceptable one.”

Turning to the question of sanction, as made clear by McGowan J in Abbas v Solicitors Regulation Authority at [72], the expertise of a specialist Tribunal must also be accorded respect in relation to the question of sanction. In Law Society v Salsbury, Jackson LJ held that:

“…the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.”

In the circumstances, this court will interfere with a sanction only if the Tribunal committed an error of law or its evaluation was wrong in the sense that it fell outside the bounds of what the Tribunal could properly and reasonably decide (see Gurpinar v SRA [2012] EWHC 192 (Admin) and SRA v James [2018] EWHC 3058 (Admin), [2018] 4 WLR 163).

With respect to the question of dishonesty, the legal test for dishonesty was set out by Lord Hughes JSC in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, [2018] AC 391 at [74]:

“When dishonesty is in question the fact-finding Tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledgeable belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the factfinder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

A dishonest state of mind may consist of a person’s knowledge that a given transaction is one in which he cannot honestly participate or it may consist in suspicion combined with a conscious decision not to make inquiries which might result in knowledge (see Barlow Clowes International Ltd (in liquidation) and others v Eurotrust International Ltd [2006] 1 WLR 1476, at [10] to [12]). In Metcalfe v Solicitors Regulation Authority [2021] EWHC 2271 (Admin), Murray J held at [103] that the Solicitors Disciplinary Tribunal was entitled to find dishonesty on the basis that the solicitor had deliberately "turned a blind eye" and avoided making relevant inquiries, lest he learn something he would rather not know.

As to the impact of a finding of dishonesty, Coulson J (as he then was) observed in SRA v Sharma [2010] EWHC 2022 (Admin) at [12] that:

“…looking at the authorities in the round…the following impartial points of principle can be identified: (a) save in exceptional circumstances, a finding of dishonesty will lead to a solicitor being struck off the roll, see Bolton and Salisbury. That is the normal and necessary penalty in cases of dishonesty, see Bultitude. (b) There will be a small residual category where striking off will [be] a disproportionate sentence in all the circumstances, see Salisbury. (c) in deciding whether or not a particular case falls into that category, relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, such as Burrowes, or [over] a lengthy period of time, such as Bultitude; whether it was a benefit to the solicitor (Burrowes), and whether it had an adverse effect on others.”