FactsA tribunal judge was taken to the High Court of Justice, Queen’s BenchDivision on the April 12th, 2017.
The appellant was acting on behalfof his client which involved matters of litigation. His client had been givenan After the Event (ATE) insurance cover which would cover the costs ofliability. Due to a change in the law, the Legal Aid, Sentencing and Punishmentof Offender’s Act 2012, section 46(3) stated the premium cost of an ATE wouldbe recoverable if the policy had been taken out before 1 April 2013. However,the terms stated in the Pre- 1 April 2013 specified “the premium cost wouldonly be recoverable provided that a notice in Form N251 had been served on theother party and had been filed with the court.” 1Theclient’s opposition stated they did not receive a notice from the appellant.
Therefore, the money from the ATE insurance cover would be irrecoverable. Theappellant did not have evidence to prove he had sent a notice and was laterinformed his assistant had forgotten to file the Form N251 with the court. The appellant then created a self-report to the SRA, which he sent inMay 2014 he had produced a backdated Form N251 to March 2013. He also sent acover letter subsequent to the event insurance which he signed and created. Thelegal proceedings ensued after these documents were sent to theopposition. In June 2014, the appellantinformed his firm that due to his failure to file the Form N251 at court before1st of April 2013 this circumstance may give rise to a claim against the firm’sindemnity insurance policy. The firm reported the issue to the SRA on 24thOctober 2014. The SDT filed three charges against the appellant and found himguilty of breaching principles 1 and/or 2 and /or 6 of the Solicitor’sregulation Authority Principles 2011.
This led the appellant from being removedfrom his role as a solicitor. The appellant was accused of acting withoutintegrity and serious dishonesty by the Solicitors Disciplinary Tribunal (SDT).He was facing the following charges:a) creating abackdated Form N251 in breach of principles 2 and/or 6; b) creating abackdated covering letter in breach of principles 2 and/or 6; c) relying on and/or acquiescing in othersat his firm relying on the backdated documents as evidence in support of hisposition when seeking to favourably negotiate a settlement with the defendantin breach of principles 1 and/or 2 and/or 6. IssuesThe legal issue concerns whether the appellantwho was facing charges of acting without integrity could also be charged withallegations of dishonesty. The solicitor was charged for breaching the Principles 1 and/or 2and/or 6 of the Solicitors RegulationAuthority (SRA) which made his liable for being dishonest. Mr. Malinswas charged for breaching the Solicitors Regulation Authority (SRA) Principleswhich made his liable for being dishonest.
The SRA had charged the appellant of acting without integrity inassociation to creating documents (N251 and the cover letter). They had thenalleged appellant that the deployment of this documents constituted todishonesty. Mr. Malins had found himself facing not only charges of dishonestywhen the initial allegation he had pleaded against was acting withoutintegrity.
Which led to the question being asked if dishonesty and a lack ofintegrity are the same thing? AnalysisFor an individual to be charged with dishonesty the courts will have to referto the criminal test for dishonesty and in Civil proceedings only thesubjective element must be satisfied. The tribunal had stated that therespondent “chose to create and deploybackdated documents as if they were genuine copies of originals and in doing sothe Respondent knew that he was being dishonest and the subjective test wastherefore satisfied.” 2Judge Mostyn J statesthat it is “intellectually virtually impossible to understand”, how theappellant’s creation of the document was accused of acting without integritybut not dishonesty, this was an absurd point to make. The tribunal judgment wasincoherent and did not clarify the charges of dishonesty, the word ‘eschewed’is used in this context by the judge to explain the charges against the appellanthad not be explicitly clarified to him. Therefore, the judge states thefindings of the tribunal “were madein violation of the basic rule that if you are facing a case of dishonesty youhave to know you are facing a case of dishonesty. As such they cannot stand.”For an individual to be accused of dishonesty they must be aware of thisallegation and the tribunal must also clarify the extentto which dishonesty has to be proven.
Furthermore, Judge Mostyn J cites the case of In SolicitorsRegulation Authority v Wingate & Anor 2016 EWHC 3455 (Admin). However,she disagrees with the case as integrity and dishonesty are the same but haveto be proven to the same degree. Mr.Williams QC held the appellant to be dishonest in regard to the thirdallegation. The first two allegations do not constitute to dishonesty as therewas no need for proof to present a subjective element in the case of integrity.
The email which the appellant had sent alongside the documents the judgehad ruled this was a “gross act of want of integrity as well as dishonesty.” Additionally,the ‘copy’ he mentioned to have attached in his email equated to him acting ina dishonest manner. The judge has alsofound the appellant guilty of dishonesty due to the creation of the Form N251and the covering letter. Critically considerthe legal issues raisedThe appellant was held guilty and faced charges of dishonesty due tocreating the N251 document and the cover letter. He had relied on his charactertraits of propensity and credibility, and further provided the court withmedical proof which showed at the time he was suffering from seriousdepression. This indicated his depression may have affected his motives andstate of mind. Judge Mostyn J took this factor into consideration and statedthat tribunal had not properly examined the appellant’s medical evidence andtherefore the analysis was incorrect. Judge Mostyn J explains how the SRAPrinciples differ to the Bar Code of Conduct.
The SRA Principles do notexplicitly state that a solicitor must be honest but Principle 2 states “youmust act with integrity”. Additionally, the Oxford English Dictionary statesthat integrity and dishonesty are antonyms therefore they mean the same thing.The SRA only stating the solicitors must act with integrity also means theymust act with honesty as they imply the same thing. Judge Mostyn J in her judgement allowed the appeal but did not chargethe appellant with the first and second charge as it would not be reasonable.The appellant was only charged with the third charge alone, of creating a FormN251 and a cover letter which he backdated to 19 March 2013. This charge alsoincluded the appellant dishonestly relying on these documents and allowing othersat his firm to rely on these documents to ensue further legal proceedingsunknowing they were documents from 2 May 2014. Further for using said documentsin his favour to negotiate a matter of litigation with this adversary.
This allled to the appellant breaching Principles 1 and/or 2 and/or 6 of the SRAPrinciples 2011.1 Civil ProcedureRules 1998/313244 para 19.3(a) and (b) and (pre-1 April 2013) CPR44.3B(1)(c) 2 Malins v SRA (2017) EWHC 835