Malins v SRA [2017] EWHC 835 (Admin)

Posted by James Danks on

Summary

There is little doubt that the four weeks of certainty regarding the meaning of integrity created following Newell-Austin v SRA [2017] EWHC 411 (Admin) has been swiftly dispatched as a result of Mr Justice Mostyn's judgment in this case, which has led us to the position that there is no longer any difference between honesty and integrity. Were this not to be the correct analysis, then the SRA principles of only requiring a solicitor to only act with integrity would leave the profession open to clear abuse and criticism. 

Historically, the hurdle to cross on an integrity charge compared to that of dishonesty has been easier to cross. Whilst this could create difficulties, certainly for the SRA, for any matters currently pleaded as 'lacking integrity' but there being no charge in respect of dishonesty, it is also worth noting that this judgment has arrived at a time when the SDT's criminal standard of proof is under attack and could prove useful leverage for any representations as to why it should be amended to that of the civil standard."

Facts

For a case involving allegations of a lack of integrity and also dishonestly, the facts of the case are reasonably straightforward.

The Appellant was an experienced solicitor and partner involved in litigation matters. In March 2013, he acted for a client who received an ATE insurance cover for costs liability that was accepted by the client on 19 March 2013 and, at some point, the premium paid. Although the law at that time allowed for the ATE premium to be recovered in the event of success, this was necessitated by a requirement that the Notice be served on the opposition and filed at the court before 1 April 2013.

Whilst there was some limited relief on failing to file notice of the ATE policy on the court by 1 April 2013, a failure to serve Notice on the opposition by this date caused the premium to be irrecoverable.

The Appellant commenced proceedings for his client in April 2013 leading to mediation in early 2014. During this period, the opposition made a Part 36 offer but raised the fact that no Notice had ever been received of the Appellant's client's ATE, causing it to be irrecoverable.

Suffice to say for this summary, the Appellant could find no correspondence to show that the opposition had served either the Notice or indeed the Notice itself, which his assistant had similarly failed to file at court. The Appellant therefore created correspondence to the opposition backdated to 19 March 2013 purporting to evidence the Notice being sent. He similarly created a Notice document giving details of the ATE policy, which he subsequently signed.

The Appellant subsequently sent this letter and Notice to the opposition and relied on them in later correspondence and negotiations on costs as evidence of service pre-1st April 2013.

In June 2014, the Appellant notified his firm that there was circumstance that could lead to a claim against the firm's indemnity insurance, specifically the failure to file the Notice of the ATE at court before the necessary date. Presumably substantial internal investigations ensued, as on 4 November 2014 the Appellant self-reported to the SRA and admitted the back-dating of the correspondence and Notice.

The Appellant was brought before the SDT to face the following charges:

1.1 Created a Form N251 (Notice of funding) on 2 May 2014 which he backdated to 19 March 2013, in breach of Principles 2 and/or 6 of the SRA Principles 2011.

1.2 Created a covering letter for a Notice of funding on 2 May 2014 with a date of 19 March 2013, in breach of Principles 2 and/or 6 of the SRA Principles 2011.

1.3 Relied on and/or acquiesced in others as his firm relying on the backdated documents mentioned above from 2 May 2014 until on or around October 2014, as evidence in support of his position when seeking to favourably negotiate a settlement with his opponent in litigation, in breach of Principles 1 and/or 2 and/or 6 of the SRA Principles 2011.

1.4 Dishonesty is alleged in relation to allegations 1.3 set out above. Whilst dishonesty is alleged with respect to this allegation, proof of dishonesty is not an essential ingredient for proof of any of the allegations.

In short, the first two charges (the creation of the documents) related to the Appellant acting without integrity with the third and fourth (the Appellant's subsequent reliance on them) going to dishonesty.

The SDT subsequently found all allegations proved with the Appellant being struck off the Roll.

The Appeal

The Appellant appealed both the factual findings and sanction. For reasons that will become clear, only the factual findings were dealt with by Mr Justice Mostyn.

Mostyn J confirmed that it was "intellectually virtually impossible to understand" how the creation of the documents could 'only' lack integrity but the subsequent reliance on them was dishonest. The debate between integrity and dishonesty was reignited.

Mostyn J highlighted the difference between the Bar Code of Conduct that requires a barrister to act with "honesty and integrity" whilst the SRA Code of Conduct only requires a solicitor to act with integrity. This does not mean lacking honesty is acceptable but that "dishonesty and integrity are antonyms. This would explain why the SRA principles do not additionally require a solicitor to act with honesty. This is because it is the same thing as integrity".

There are long-standing and well known judgments that Mostyn J considered but disagreed with, specifically Bolton v The Law Society [1994[ 1 WLR 512 and SRA v Wingate and Anor [2016] EWHC 3455 (Admin), that confirmed the division between dishonesty and lack of integrity.

The Appellant was therefore left in the position of defending dishonesty charges, framed in the terms of lacking dishonesty, despite these not having been clearly set out in the charges. Whilst the SDT had not explicitly stated so, Mostyn J deemed their judgment on charges 1 and 2 to mean the tribunal had found the Appellant guilty of dishonesty and also that they had failed to appropriately consider the character and medical evidence put forward by the Appellant.

Mostyn J allowed the appeal and remitted the case back to the SDT on charge 3 alone (albeit with some variation in drafting to include dishonesty).

About the Author

James is a Senior Associate in our Professional Regulatory team, he has a decade of experience in advising regulators and respondents to disciplinary proceedings.

James Danks
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