Solicitors Regulation Authority v Uddin [2014] Judgment yet to be transcribed

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The Solicitors Regulation Authority [SRA] appealed the determination of the Solicitors Disciplinary Tribunal [SDT] to fine a solicitor who knowingly instructed an incompetent expert witness under a Conditional Fee Arrangement [CFA] for 15 months. The SDT sanctioned a £2,000 fine and the SRA argued that the appropriate sanction was a suspension.

Facts

The solicitor was acting on housing disrepair cases and had instructed E (the expert) as an expert witness under a CFA. E was only to be paid if the case was won and the costs recovered from the other side. In a ruling on the CFA case, the Judge said that E was unable to claim his costs back from the solicitor's firm as it "offended" public policy. This was because E was found to be incorrectly holding himself out as an expert witness without having the requisite capabilities. Following this judgment the instructing solicitor was subsequently referred to the SRA.

The SRA brought the matter before the SDT and the SDT found that the solicitor had no initial reason to question E's abilities as an expert witness; however from 2007 onwards, the solicitor was aware of E's deficiencies and his lack of moral character when presenting information that was not true. The SDT also determined that the terms of the CFA were questionable and the other parties involved did not have full knowledge of its contents.

The SDT heard the solicitor's defence that he had acted in the best interests of his clients and they found that although the misconduct had taken place over 15 months, it was limited to this particular CFA and therefore the solicitor did not pose a risk to the public. The SDT imposed a £2,000 fine. The SRA appeal the decision.

The SRA made out two grounds of appeal:

  1. the SDT's conclusion that there had not been multiple failures was an error of law; and
  2. the sanction handed down was too lenient taking into account all considerations, and that the appropriate sanction was a striking off or suspension Order.

Judgment

Appeal allowed.

  1. The Judge held that the SDT's finding of misconduct and the reasons given behind this finding, was not easily reconcilable with a fine. The SDT had not adequately referred to the fact that the solicitor had knowingly continued to instruct E despite his unsuitability as an expert witness. Nor had they considered that the solicitor did not adequately disclose the contents of the CFA to the other parties involved. The SDT should have concluded that there were multiple failings surrounding the solicitor's misconduct. Further to this, no specific reference was made by the SDT to the need to maintain public confidence in the profession and the Court felt it was in the interests of the public to interfere with the findings in this case.
  2. The Court voiced its concerns regarding the SDT's consideration of the facts as a whole. The Court saw that the solicitor had committed numerous acts of misconduct by instructing E on over 30 separate occasions within the 15 months. The Court thought it inappropriate that the SDT had considered the solicitor's motivation as to achieve access to justice for his client as acceptable, as in effect he had achieved the opposite and in arguing this, had shown a serious lack of insight. The Court found that the solicitor had acted in such a way that would damage the public's trust in the legal profession and therefore the sanction of a fine was inappropriate. (Case applied: Bolton v Law Society [1994] 1 W.L.R. 512. Case followed: Salsbury v Law Society [2008] EWCA Civ 1285, [2009] 1 W.L.R. 1286).
  3. The Court surmised that the sanction of a fine was an inappropriate sanction in this case. The particulars of the SDT's findings were not challenged, however by not considering that the solicitor had committed numerous failings and in finding his explanation as satisfactory, the SDT had erred in proceeding on this basis. The Court found that the appropriate sanction was a 12 month Suspension Order.