High Court: opposing rulings in course of a month
A High Court judge has overturned a decision by the Solicitors Disciplinary Tribunal (SDT) to strike off a former partner of national law firm Bond Dickinson, because the distinction it drew between acting without integrity and being dishonest meant the whole case against him was flawed.
Mr Justice Mostyn’s decision that a lack of integrity and dishonesty on the part of a solicitor are synonymous comes only a month after another High Court judge, Mr Justice Morris, ruled that they were not.
The case of Malins v SRA [2017] EWHC 835 (Admin) concerned John Michael Malins, a construction partner at what was, at the time, Bond Pearce.
He was handling a dispute where his client, the claimant, took out after-the-event (ATE) insurance of around £420,000, with the premium set at £181,700. This happened in March 2013, just weeks before the recovery of ATE premiums was to end, with LASPO coming into force on 1 April.
The transitional provisions meant that if a claimant sent the defendant a copy of Form N251, notifying him of the funding arrangements, before 1 April 2013, the ATE premium would still be recoverable for the losing defendant at the end of case.
However, it became apparent a year later that the form had not been filed and served – Mr Malins blamed an assistant.
So Mr Malins “modified” an old Bond Pearce letter (by now the firm was Bond Dickinson) so that it was dated 19 March 2013 and purported to be a letter attaching the N251. He separately created an N251, before sending copies of both to the other side as ‘evidence’ that the form had been served in time.
Mr Malins eventually admitted what had happened to the firm, which reported him to the Solicitors Regulation Authority (SRA); he also reported himself to the regulator.
He was referred to face the SDT on separate charges that he created and backdated the letter and N251, and a third charge that he then relied on and/or acquiesced in others as his firm relying on the backdated documents in the claim for costs.
The SRA submitted that each showed a lack of integrity, but it only accused him of dishonesty in relation to the third charge. He was found guilty on all charges.
Mostyn J recognised that in the “iconic decision” of Bolton v The Law Society, the key authority for solicitors’ disciplinary cases, Thomas Bingham MR drew a distinction between being found guilty of acting with dishonesty, and of acting without “integrity, probity and trustworthiness”.
However, Mostyn J said that “no attempt was made to explain the difference between the two concepts”.
He found that, in fact, there was no difference. Citing other authorities, he explained: “The legal and dictionary definitions of the words honesty and integrity are aligned and… are synonyms. It means 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. Want of integrity and dishonesty are not only the same thing but must be proved to the same standard, in my judgment.”
He went on: “It follows from this that the attempts in this case to accuse the appellant, in relation to the creation of the documents, of acting without integrity, but not dishonesty, and to try to maintain a cordon sanitaire between the two concepts was always going to run into trouble.
“As will be seen, the cordon sanitaire was repeatedly breached and the appellant found himself defending dishonesty allegations in relation to the first two charges which he never expected to have to meet, and which had not been spelt out against him.”
Mostyn J said that “notwithstanding repeated assertions to the contrary” by the SRA, Mr Malins found himself facing a case of dishonesty in relation to the first two allegations.
“It is elementary, and supported by abundant authority, that if you are accused of dishonesty then that must be spelt out against you with pitiless clarity.
“In my judgement, you cannot circumvent this obligation by pleading the same facts and matters as want of integrity. We do not have in our system dishonesty in the first degree and dishonesty in the second degree.”
As a result, Mostyn J ruled the SDT findings on the first two charges to be “contaminated” and “reached in violation of a basic right of the appellant”. It was not, as the SRA had argued, an editorial error, he said. “It was of a piece with a flawed process which bedevilled this case from the start.”
Additionally, the judge said that the SDT gave “seriously inadequate” consideration to both the character evidence and medical evidence – showing that he was suffering from serious depression at the time – that Mr Malins had produced. “In this regard also, I am satisfied that the tribunal erred.”
Mostyn J allowed Mr Malins’ appeal, ruling that it was “too late” for the first two allegations to be “boosted” to incorporate dishonesty. However, he said the solicitor should be retried on a redrafted version of the third allegation, including dishonesty.
An SRA spokesman said: “We note the judgment and will consider an appeal given that there is express disagreement between judges on the inter-relationship of dishonesty and integrity.”
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