Facts litigation. His client had been given an After

Facts

A tribunal judge was taken to the High Court of Justice, Queen’s Bench
Division on the April 12th, 2017. The appellant was acting on behalf
of his client which involved matters of litigation. His client had been given
an After the Event (ATE) insurance cover which would cover the costs of
liability. Due to a change in the law, the Legal Aid, Sentencing and Punishment
of Offender’s Act 2012, section 46(3) stated the premium cost of an ATE would
be 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 would
only be recoverable provided that a notice in Form N251 had been served on the
other party and had been filed with the court.” 1The
client’s opposition stated they did not receive a notice from the appellant.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

Therefore, the money from the ATE insurance cover would be irrecoverable. The
appellant did not have evidence to prove he had sent a notice and was later
informed 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 in
May 2014 he had produced a backdated Form N251 to March 2013. He also sent a
cover letter subsequent to the event insurance which he signed and created. The
legal proceedings ensued after these documents were sent to the
opposition.  In June 2014, the appellant
informed his firm that due to his failure to file the Form N251 at court before
1st of April 2013 this circumstance may give rise to a claim against the firm’s
indemnity insurance policy. The firm reported the issue to the SRA on 24th
October 2014. The SDT filed three charges against the appellant and found him
guilty of breaching principles 1 and/or 2 and /or 6 of the Solicitor’s
regulation Authority Principles 2011. This led the appellant from being removed
from his role as a solicitor. The appellant was accused of acting without
integrity and serious dishonesty by the Solicitors Disciplinary Tribunal (SDT).

He was facing the following charges:

a)     creating a
backdated Form N251 in breach of principles 2 and/or 6;

b)    creating a
backdated covering letter in breach of principles 2 and/or 6;

c)    
relying on and/or acquiescing in others
at his firm relying on the backdated documents as evidence in support of his
position when seeking to favourably negotiate a settlement with the defendant
in breach of principles 1 and/or 2 and/or 6. 

 

Issues

The legal issue concerns whether the appellant
who was facing charges of acting without integrity could also be charged with
allegations of dishonesty. The solicitor was charged for breaching the Principles 1 and/or 2
and/or 6 of the Solicitors Regulation
Authority (SRA) which made his liable for being dishonest. Mr. Malins
was charged for breaching the Solicitors Regulation Authority (SRA) Principles
which made his liable for being dishonest.

 

The SRA had charged the appellant of acting without integrity in
association to creating documents (N251 and the cover letter). They had then
alleged appellant that the deployment of this documents constituted to
dishonesty. Mr. Malins had found himself facing not only charges of dishonesty
when the initial allegation he had pleaded against was acting without
integrity. Which led to the question being asked if dishonesty and a lack of
integrity are the same thing?

 

Analysis

For an individual to be charged with dishonesty the courts will have to refer
to the criminal test for dishonesty and in Civil proceedings only the
subjective element must be satisfied. The tribunal had stated that the
respondent “chose to create and deploy
backdated documents as if they were genuine copies of originals and in doing so
the Respondent knew that he was being dishonest and the subjective test was
therefore satisfied.” 2Judge Mostyn J states
that it is “intellectually virtually impossible to understand”, how the
appellant’s creation of the document was accused of acting without integrity
but not dishonesty, this was an absurd point to make. The tribunal judgment was
incoherent 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 appellant
had not be explicitly clarified to him. Therefore, the judge states the
findings of the tribunal “were made
in violation of the basic rule that if you are facing a case of dishonesty you
have 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 this
allegation and the tribunal must also clarify the extent
to which dishonesty has to be proven.

 

Furthermore, Judge Mostyn J cites the case of In Solicitors
Regulation Authority v Wingate & Anor 2016 EWHC 3455 (Admin). However,
she disagrees with the case as integrity and dishonesty are the same but have
to be proven to the same degree. Mr.

Williams QC held the appellant to be dishonest in regard to the third
allegation. The first two allegations do not constitute to dishonesty as there
was 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 judge
had 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 in
a dishonest manner. The judge has also
found the appellant guilty of dishonesty due to the creation of the Form N251
and the covering letter.

 

Critically consider
the legal issues raised

The appellant was held guilty and faced charges of dishonesty due to
creating the N251 document and the cover letter. He had relied on his character
traits of propensity and credibility, and further provided the court with
medical proof which showed at the time he was suffering from serious
depression. This indicated his depression may have affected his motives and
state of mind. Judge Mostyn J took this factor into consideration and stated
that tribunal had not properly examined the appellant’s medical evidence and
therefore the analysis was incorrect. Judge Mostyn J explains how the SRA
Principles differ to the Bar Code of Conduct. The SRA Principles do not
explicitly state that a solicitor must be honest but Principle 2 states “you
must act with integrity”. Additionally, the Oxford English Dictionary states
that integrity and dishonesty are antonyms therefore they mean the same thing.

The SRA only stating the solicitors must act with integrity also means they
must act with honesty as they imply the same thing.

 

Judge Mostyn J in her judgement allowed the appeal but did not charge
the 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 Form
N251 and a cover letter which he backdated to 19 March 2013. This charge also
included the appellant dishonestly relying on these documents and allowing others
at his firm to rely on these documents to ensue further legal proceedings
unknowing they were documents from 2 May 2014. Further for using said documents
in his favour to negotiate a matter of litigation with this adversary. This all
led to the appellant breaching Principles 1 and/or 2 and/or 6 of the SRA
Principles 2011.

1 Civil Procedure
Rules 1998/3132
44 para 19.3(a) and (b) and (pre-1 April 2013) CPR44.3B(1)(c)

 

2 Malins v SRA (2017) EWHC 835