Davis: Tribunal’s approach “unacceptable”
The Solicitors Disciplinary Tribunal (SDT) “fell into serious error” in finding no case to answer against a solicitor accused of making a fraudulent costs claim, the High Court has ruled.
Lord Justice Davis, sitting with Mr Justice Edis, was particularly critical of how the SDT had dismissed a report produced by the registrar of criminal appeals and the evidence of the Solicitors Regulation Authority (SRA).
He found that there was, in any event, sufficient evidence to find that there was a case to answer.
The events leading to Solicitors Regulation Authority v Sheikh [2020] EWHC 3062 (Admin) date back more than a decade, when Nabeel Sheikh, a solicitor and senior partner of London firm Neumans, acted for a client, Hitendra Patel, on an appeal against conviction.
The Court of Appeal (Criminal Division) allowed the appeal and made a recovery of defence costs order in Mr Patel’s favour. Neumans lodged a £2.9m bill of costs, the largest the court had ever received.
“Concerns were raised,” Davis LJ recorded. The court directed Master Egan QC, the then registrar of criminal appeals, to investigate and, in May 2015, he found clear evidence of fraud in the costs claim.
In December 2016, the appeal court revoked the costs order and directed repayment of £500,000 which had been paid on account. Mr Patel or Neumans did not oppose the order. The court also ordered that he be referred to the Director of Public Prosecutions and the SRA.
The SRA shut down Neumans in July 2017, saying there was reason to suspect dishonesty on the part of Mr Sheikh, a decision upheld by Mr Justice Newey in the High Court and then the Court of Appeal.
The SRA referred Mr Sheikh to the SDT but in a decision in November 2019 that was not publicised, the tribunal accepted the solicitor’s submission of no case to answer after the SRA had laid out its case.
There were five allegations and the SRA appealed against the SDT’s findings in relation only to two: first that Mr Sheikh made claims which did not reflect the work actually undertaken for Mr Patel, and in doing so did not include information which ought properly have been provided to the court, and second that he acted dishonestly.
Davis LJ found that the SDT “fell into serious error” both in its approach to the application and its conclusion.
As the criminal standard of proof applied in this case, the test for no case to answer was that of the 1981 criminal case of Galbraith.
The judge said there was “no sense here” of the SDT applying the test – namely, seeking to take the SRA’s case at its highest or asking itself whether on one possible view of the facts a conclusion to the criminal standard could properly be reached.
“Indeed, the sense one gets… is precisely to the contrary,” he said.
He said that, while the SDT was not bound by Master Egan’s report, or by the views of the Court of Appeal in acting on that report or by the views of Newey J in upholding the intervention, “that does not make those reports and judgments irrelevant. On the contrary, they had to be taken into account for these purposes: even if the ultimate decision for these purposes was that of the SDT”.
The judge said the SDT did not approach Master Egan’s report in an “acceptable” way. “Master Egan QC was not to be equated with some sort of self-appointed expert professing an ‘opinion’ whose opinion was, in its view, to be ‘disregarded’.”
The tribunal was also “completely wrong” to dismiss out of hand the evidence of John Quentin, the SRA official who wrote the report that led to the intervention into Neumans.
“It was not, as the SDT purported to hold, expert evidence with no explanation of expertise. On the contrary, it was evidence of fact based on Mr Quentin’s analysis of the documents and of his recording what they showed.
“By wrongly dismissing that evidence out of hand the SDT deprived itself of consideration of potentially powerful evidence set out in the spreadsheets (and not challenged by cross-examination) in support of the SRA’s case.”
Davis LJ went on that the SDT “inexplicably… purported to make final findings of fact adverse to the SRA’s case without seemingly asking whether a contrary conclusion was reasonably sustainable”.
The SDT’s “seriously flawed” approach to the evidential status of the Master Egan’s report and Mr Quentin’s evidence was enough to vitiate its conclusion.
“But in any event, taken as a whole the evidence adduced by the SRA had, in my judgment, demonstrably disclosed a case to answer on these particular allegations.”
As a result, he also overturned the £63,000 costs order the SDT made against the SRA.
Davis LJ remitted the case for a fresh hearing before a differently constituted panel of the SDT.
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