Brett v Solicitors Regulation Authority  EWHC 2974 (Admin)
It had not been open to the Solicitors Disciplinary Tribunal, having disavowed a finding of dishonesty, to find that the Appellant had knowingly allowed the Court to be misled, as such a finding was akin to dishonesty. The correct finding was of recklessly allowing the Court to be misled.
The Appellant ('B'), appealed a decision of the Solicitors' Disciplinary Tribunal ('SDT'), under Section 49 of the Solicitors Act 1974, to suspend his practice as a solicitor for six months and that he pay the costs of the proceedings, which were summarily assessed at £30,000.
The SDT had found that B was guilty of two breaches of the Solicitors Code of Conduct 2007, namely Rule 1.02 (failing to act with integrity) and Rule 11.01 (knowingly allowing the Court to be misled in the conduct of litigation).
B was the Legal Manager at Times Newspapers Ltd ('TNL') and had been so for over 30 years. The matter giving rise to the SDT allegations were as a result of litigation in the High Court of Justice, in relation to an application for an injunction against TNL to prevent it publishing a story which would name the author of a blog, who went by the name 'Nightjack'.
Until early 2009, DC Horton ('H'), a constable within the Lancashire Constabulary, published a blog using the pseudonym 'Nightjack'. Although being a public profile, which attracted a large number of readers, it was an anonymous chronicle of H's life as a constable. On 20 May 2009, a junior reporter at The Times ('P') approached B and informed him that he had identified 'Nightjack' as H and had done so by gaining unauthorised access to H's personal email account. This information was provided in a one to one conversation where P had asked if they could speak 'off record' as he required legal advice in relation to this. P believed there to be a strong public interest in publishing H's identity. B informed P that the story could not be published. P explained that he thought he would be able to identify 'Nightjack' using publicly available sources. P, therefore, set about using the process of 'jigsaw identification' to do this and on 30 May 2009 he sent an email to B confirming that he "had cracked it and could do the whole lot from publicly accessible information." In the interim, B had telephoned a junior barrister to confirm whether P had committed a crime. The junior barrister advised that there was potentially a crime under the Data Protection Act 1998 but that there might be a Public Interest defence.
On 27 May 2009, H was contacted by P, who explained the intention to run an article exposing him as 'Nightjack'. H commenced High Court proceedings for an injunction and an undertaking was obtaining from TNL confirming that the story would not be published without giving H's solicitors 12 hours prior notice. This notice was given on 28 May 2009. A different junior counsel ('J') was instructed by B to represent TNL at the injunction hearing. J was not informed by B that H's identity had originally been obtained through P accessing H's emails. At this hearing, an adjournment until 4 June 2009 was granted in order to allow TNL to prepare evidence confirming how P had deduced H's identity.
On 1 June 2009, H's solicitors wrote to B and noted that during the hearing it had been stated that "[H] was identified by your journalists as the author of the blog "largely" by a process of deduction." It was requested that TNL identify precisely how H had been identified. The letter continued by setting out a number of suspicious circumstances, including "we understand that [P] has a history of making unauthorised access into email accounts…" B duly responded to this correspondence by stating that this was "a baseless allegation".
P produced a witness statement detailing how H's identity could have been discovered using a jigsaw investigation. On 3 June 2008, a partner of H's solicitors provided a witness statement reiterating the concern that H's email account had been hacked. A skeleton argument was produced on H's behalf which noted that P had not confirmed that he had accessed H's email account, nor had he explained how he had located H's mobile telephone number and the identity of his agent. TNL instructed a QC ('W') and J, neither of whom were made aware that P had originally identified H by accessing his email account. As such, their skeleton argument confirmed that "[P] was able to establish [H's] identity using publicly available materials, patience, and simple deduction." Upon receipt of this, H's counsel requested that P expressly state that the identity had been deduced solely through the use of publicly available material in a statement to be verified by a statement of truth. It was also noted that, in the absence of this, TNL's skeleton should be amended to ensure that the Court was not 'inadvertently misled'. No further statement was produced, nor was the skeleton amended.
The claim was disposed of by failing the first stage of the two stage test under Article 8 of the ECHR, as 'blogging is essentially a public rather than a private activity.' The Leveson Inquiry then took place and TNL were obliged to disclose emails and other material relating to P's disclosure to B. On 15 March 2012, B gave evidence before the Leveson Inquiry. Subsequently the SRA brought proceedings before the SRA against B, alleging breaches of Rule 1.02 and Rule 11.01 of the Code of Conduct. During these proceedings, B conceded that he "may have inadvertently and unintentionally allowed the Court to potentially be misled." B did not accept that he was under a duty to breach P's confidence and stated that if he were under such a duty, his failure to do so was a genuine misunderstanding of the prioritisation of his competing duties and responsibilities. B also acknowledged that he did not inform counsel of the unauthorised access to the email account but he did not accept that he was under a duty to do so, again stating that if he was under such a duty, he had misunderstood his duties.
The SDT found that B's duty had been to the Court and not B and that B had failed in his duty to inform TNL's junior or leading counsel of the true position which resulted in them unwittingly misleading the court. Thus B had knowingly allowed the Court to be misled in the conduct of litigation and had failed to act with integrity.
Although B appealed the findings of the SDT, he did not appeal his sanction of six months suspension. B's appeal centred on a failure of SDT to take into account the relationship between himself, a solicitor, and P, an employee of TNL and therefore failed to take into account the protection for communication subject to legal professional privilege. B also criticised the SDT's failure to have regard to P's privilege against self-incrimination. B further criticised the SDT's reliance on hindsight; B stated that the realisation that P's witness statement was potentially misleading only came to him when exhaustively investigated before the Leveson Inquiry.
Wilkie J, at paragraph 85, stated "in my judgment that duty, not knowingly to mislead the court or not to take the risk that the court might be misled, it is not incompatible with the duty of confidentiality owed to a person who has disclosed material on an occasion of legal professional privilege." Wilkie J stated that there were other options available to B which would not having broken P's confidence and would have avoided the Court being misled, including obtaining the agreement of P to waive privilege so the true factual position could be presented to the Court or to correct the misleading impression given by the witness statement.
It was held that the SDT, "having disavowed making any finding of dishonesty would not then properly proceed to make a finding that B had 'knowingly' allowed the Court to be misled in the circumstances of this case which was, without more, in effect, a finding of dishonesty." It was held that the SDT had decided this aspect wrongly.
It was further held that B acted 'recklessly' in allowing the Court to be misled and thus was guilty of a breach of Rule 11.01. In so acting, B was also guilty of a breach of Rule 1.02 by failing to act with integrity.
The appeal was therefore allowed to the extent of quashing the decision of the SDT that B was guilty of breaching Rule 11.01 by 'knowingly' misleading the court and instead substituted for a finding that B was guilty of breaching Rule 11.01 by 'recklessly' misleading the Court.
The appeal was rejected against the finding of the SDT the B acted in breach of Rule 1.02 by failing to act with integrity.
The assessment of costs remained unchanged.
Lord Thomas of Cwmgiedd, CJ stated 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."