DPP Law Ltd v Greenberg [2021] EWCA Civ 672

“just wanted to know what to do with it. Let me know.”

“I’ll leave it to your conscience!”

“This discussion about the addendum DS and the late arrival of the witness details caused Jake’s father to make an off the cuff expression of frustration about Paul, using words to the effect of ‘I wouldn’t mind but I even paid his expenses to go and see them [the witnesses]’ I told John Walsh that he didn’t need to do that as the case was legally aided and the LAA would pay Paul’s expenses. John then responded with words to the effect of ‘I know but I thought it might get him to hurry up a bit’.”

“I did attend Canterbury Crown Court with Charlotte and the client, together with members of his family. After the conference, I travelled directly to Broadstairs with the intention of taking witness statements. When I arrived at The Little Albion Pub, I was unable to take statements as there was a Wake, and all of the witnesses were unable to give me any time due to the pub being very busy, noisy and the witnesses having to serve drinks and food. I spoke briefly to the witnesses but did not take statements from them as it was not practical to do so.”

“I cannot, of course, comment on the conversation between John Walsh and Charlotte as I was not present. However, I confirm that on 5 June 2017, and having attended The Little Albion Pub in Broadstairs, the client’s father did give me £150.00 indicating same was a gift. The client was not present. For the avoidance of any doubt, throughout my dealings with the client and/or his father, I have at no point asked for any money whatsoever, and at all times perceived the two amounts provided by the client’s father as gifts.”

“1. That you accepted two separate cash payments from the father of a publicly funded client in the sum of £300 (on 18th January 2017) and £150 (on 5th June 2017) respectively. It appears that all parties understood the first payment of £300 had been offered to you as a gift. In respect of the second payment, which you have accepted you received in the sum of £150, it is suggested in the statement from Charlotte Surley (Counsel) that she had been told by the client’s father that he had made the £150 payment to you as ‘expenses’ to go and see witnesses and to speed up your work. This was in the context of the client’s father telling Ms Surley that he was frustrated with the delay on your part having previously made this payment to you to get you to ‘hurry up a bit’. 2. That having received the payment of £150 from the client’s father, which was the second cash payment he had made to you in the same matter within the space of 6 months, you did not see fit to: a. Refuse the payments; b. Report the payment to me as the company’s COLP; c. Disclose the payment to any other Directors within the company; or d. Consult the Law Society’s ethics helpline for guidance. 3. That by acting in the way described above, you: a. Breached paragraphs 8.41 to 8.43 of the company’s Legal Aid contract; b. Brought the company into serious disrepute with the Legal Aid Agency and other members of the legal profession; c. Potentially put in jeopardy the company’s Legal Aid contract upon which you are aware the company relies for the majority of its fee income. d. Behaved in a way that was contrary to the rules governing the conduct of solicitors, as set out by the Solicitors’ Regulatory Authority. e. Fundamentally breached the duties and trust and confidence placed in you by the other directors and shareholders of the company. f. Even if, as you allege and contrary to what is indicated in the statement of Ms Surley, you perceived the second payment of £150 to be a genuine gift, you failed to exercise reasonable skill and care in your role as a director of the company by not identifying that repeated cash payments by the father of the client in a legally aided matter were likely to severely compromise your integrity as a solicitor. g. You allowed your judgment to be adversely affected by the opportunity for personal gain.”

“At no time had either gift been requested by either Paul or the barrister, Charlotte. At no time had any money payment been mentioned whatsoever. It was a voluntary act which I did to show my appreciation for what I considered to be the very good work undertaken by both of them. At no time was it to top up any expenses that they may be received from the Legal Aid Board. At no time was it “to hurry Paul up” which I understand has been suggested.”

“Just as he was about to leave, I put £150 in notes into Paul’s car through the open window. Paul told me through the window that I didn’t need to give him any money but I walked off quickly. That was a thank you to Paul for what I continued to believe was excellent service that he had provided. He did not ask me for any money. I gave it to him voluntarily. It was nothing other than a gift. It was not intended to be any favouritism or priority in my son’s case or to hurry him up.”

“After I had finished I went to my car which was parked outside the pub and rolled the window down. John Walsh lives very near that pub. He had come along to introduce me to the witnesses. We had a chat and then just before John Walsh turned to walk away he literally dropped £150 through the open window of my car. I had not requested any monies from John. I did not suggest that I needed or wanted any money for expenses. I have never once suggested that if he gave me money it would improve his son’s case or cause me to give priority to his son’s case over any other case. I believed, and still believe (as he has in fact confirmed) that this was simply another show of his gratitude for what he considered to be my good efforts and service. I told Mr Walsh that he really did not need to give me any gift. However, he just walked off. I was 80 miles from home and it was Friday afternoon and I needed to be home for 6.30 as my wife and I were holding a dinner party for friends. I did not want to cause any offence to John Walsh and I knew that it was not improper to receive an unsolicited insignificant gift – as Nolan had implicitly confirmed in relation to the previous, larger gift.”

“53. The Respondent was only ever concerned with the second payment, Mr Nolan having accepted in the letter of 25 October that everyone understood the first payment had been offered as a gift. There was never any dispute that the Claimant had accepted the second payment. The issue for Mr Kilty, and Mr Lewis on appeal, was whether the Claimant knew, or should have known, that the second payment was, or might be perceived to be, a top-up payment. 54. Mr Kilty accepted in cross-examination that he could have dealt with the disciplinary process differently, for example by postponing his decision until the Claimant had been able to respond to the letter of 25 October containing the disciplinary allegations. He maintained, however, that he genuinely concluded on objective grounds that the Claimant had committed gross misconduct as regards the second payment from Mr Walsh. He said he gave significant weight to Ms Surley’s statement because she was “acting completely impartially”

“60. The issue for the Respondent, therefore, was whether the Claimant knew, or should have known, that the second payment from Mr Walsh was, or might be perceived to be, a top-up payment. In other words, did the Claimant reasonably believe that the payment was a gift and did he act reasonably in accepting it? Even if he genuinely believed it was a gift, it could be grossly negligent to accept it if doing so could compromise his integrity and/or jeopardise the legal aid contract. 61. The evidence before Mr Kilty consisted of Ms Surley’s statement, the Claimant’s own account provided in his email of 23 October, Ms Blain’s email and Mr Nolan’s statement. 62. Ms Surley, an independent professional person, had given a detailed account which suggested that John Walsh had intended the payment to “hurry up” the Claimant in obtaining witness evidence, and that he was frustrated by the lack of progress. That was not implausible, given that the Claimant had, on his own account, been unable to take the witness statements on that day, and by 3 October, some six weeks before the trial date, the statements had still not been produced. 63. Even on the Claimant’s own account, the circumstances of the second payment appeared very different to the first. The first was cash given to both the Claimant and Ms Surley simultaneously, with a card saying, “thank you”, shortly after Jake Walsh had been granted bail. The second was cash given only to the Claimant after an unsuccessful attempt to obtain witness statements, and there was no mention of any accompanying card, note, or even any words said that would indicate it was a gift. I note that the Claimant did not say anything about the money having been put through the car window. 64. The Claimant’s contention that he relied on the advice given in relation to the first payment was either not credible or was wholly unreasonable. Mr Nolan’s “advice” (“I’ll leave it to your conscience”) was not helpful, but it was certainly not express approval to accept the first payment, let alone the second. A further cash payment was bound to give the impression that these were, in fact, top-up payments intended to ensure that the case was given particular attention or priority. That was especially so when there was no apparent indication of it being a gift on the second occasion and there was no obvious reason for John Walsh to thank the Claimant at that stage. 65. The Claimant relies on the SRA’s decision not to take the matter further as evidence that the Respondent’s decision was unreasonable. There are at least three reasons why the SRA’s approach is of limited relevance. First, the SRA’s remit was to consider possible breaches of the Code of Conduct only. The disciplinary process was wider than that and focused principally on the requirements of the legal aid contract specification. Insofar as the SRA letter addressed that issue, it acknowledged that there was a particular risk in accepting any gift in a legally aided case. The implication that a solicitor might not be acting improperly by accepting a gift of up to £499 in cash from a legally-aided client, provided advice is sought from the COLP, is somewhat surprising, and might be explained by the fact that the SRA is not concerned with the enforcement of the requirements of the LAA. Secondly and in any event, the SRA applies a higher standard of proof (beyond reasonable doubt) than applies in an internal disciplinary process. Thirdly, the task of the Tribunal is to consider whether the Respondent’s approach fell within the band of reasonable responses. It is quite possible for the Respondent to reach a different conclusion to the SRA and for both to be reasonable. 66. In light of the above I consider that there were reasonable grounds to conclude that all of the disciplinary allegations were made out with the exception of the allegation that the Claimant acted contrary to the solicitors’ Code of Conduct. As noted above, the Respondent has not pointed to any provision in the Code which deals with accepting cash not as a gift. The other matters were clearly sufficient to justify a finding of gross misconduct. It was reasonable to conclude that the Claimant’s acceptance of the second payment was either knowingly improper, such that it seriously compromised his integrity, or was reckless to the extent of gross negligence. I acknowledge that £150 is not a large sum to someone with an income at the level of the Claimant’s, but nor it is insignificant and it is certainly not impossible that he was motivated by personal gain. This is especially so given that it was the second payment and the Claimant might have assumed that it would not be the last. 67. The evidence before Mr Lewis on the appeal differed only in that the Claimant corrected the date of the second payment, he alleged that he had spoken to Ms Blain about it afterwards and he provided the two statements from John Walsh. None of those factors made any material difference to the assessment set out above. If anything, the change of date made it more likely that the second payment was given to “hurry up” the Claimant because the trial date was much closer than it appeared from Ms Surley’s version of events. Even if the Claimant did mention the payment to Ms Blain, that does not alter the fact that it either was, or risked appearing to be, a top-up payment. She was not a senior director or shareholder and was not the COLP. As for John Walsh’s statements, it is notable that he did not deny using the words alleged by Ms Surley or give any details of the circumstances in which the second payment was given. Further, even if he genuinely intended the second payment as a gift, what mattered was the Claimant’s perception and how the transaction was likely to be viewed by others, so it was reasonable for the Respondent to consider that his assertion that it was a gift was of limited relevance.”

“The appeal succeeded on two points. First, the gravamen of the primary disciplinary case was that the evidence before the Respondent showed that the payment was plainly a top-up in breach of the LAA contract. But, however strong it was said to be, that case was, in its nature, circumstantial and inferential. In circumstances where the LAA had not expressed a concluded view, the Tribunal needed to consider what evidence it had about the specific reasoning of the two partners who decided the matter at the dismissal and appeal stages, and whether their conclusions, in particular that the Claimant had acted in breach of the LAA contract, were reasonably reached by them, drawing on the evidence before them. However, the Tribunal had wrongly based its decision on its own analysis of that evidence, and its view that it could have reasonably supported a decision to dismiss on that basis. Secondly, the Tribunal did not make sufficient findings to conclude that either of those partners would in fact have dismissed the Claimant (or upheld the dismissal) for negligence alone. Its conclusion that they could have relied on that alternative reason was also not a proper basis to uphold the dismissal as fair.”

“Mr Stuart submitted that what the Tribunal had done was simply engage in its own analysis of the evidence that was before the Respondent, and whether it could have supported a decision to dismiss, rather than reviewing such evidence as it had, as to how Messrs Kilty and Lewis had actually come to their conclusions that the charges were fully made out. As to their actual thought processes, he submitted, the evidence was scant.”

“… the conclusion that the reason for dismissal related to the second payment, did not by itself resolve the more specific questions that the Tribunal had to decide, including what particular conclusions Messrs Kilty and Lewis reached, and on what basis, about the nature of the payment, whether it breached the LAA contract, the Claimant’s state of mind in relation to it, and, potentially, the significance of what had happened in relation to the first payment (including the responses from Mr Nolan and the SRA), as well as, potentially, the significance of whether the Claimant had told Ms Blain.”

“113. As to oral evidence, the Tribunal referred to Mr Kilty saying that he gave significant weight to Ms Surley’s statement, because she was impartial. But this reference appears in the context of its reasons for rejecting the Claimant’s case as to the ulterior reason for his dismissal, and accepting that the dismissal letter set out what Mr Kilty genuinely believed. There is no other reference in the Tribunal’s reasons to any oral evidence it heard, or any other evidence it drew on, as to Mr Kilty or Mr Lewis’ more specific reasoning or findings in relation to the evidence before them. Rather, the language used by the Tribunal is, at points, redolent of it having made, and been actuated by, its own very particular, and firm, assessment of the evidence that was before the Respondent, in particular: at [62] in relation to Ms Surley’s account of what Mr Walsh said he had intended; at [63] and [64], referring to some features of the circumstances not mentioned in Mr Lewis’ letter, describing the Claimant’s reliance on the earlier advice from Mr Nolan as “not credible or…wholly unreasonable”, and commenting that a further cash payment was “bound” to give the impression that these were topup payments; in the comments at the end of [66] on the question of personal gain; and at [67] commenting on Mr Walsh’s statements.”

“114. Standing back, it appears to me that the Tribunal’s conclusion, in particular that the Respondent fairly found that the Claimant had knowingly accepted a top-up payment in breach of 54. the LAA contract, was not sufficiently rooted in findings about what the Respondent, drawing on the evidence before it, had decided and why, but amounted to a conclusion about what the Tribunal itself made of that evidence, and therefore considered that the Respondent could, properly, have made of it. At the stage of deciding whether the dismissal that had actually taken place was based on conclusions that had in fact been reasonably reached, that was not the correct approach; and that conclusion therefore cannot stand.”

“It therefore appears to me that the Tribunal was not, in this respect, evaluating whether a reason – or alternative reason – why the Claimant was actually dismissed, was one in respect of which the Respondent itself reasonably took a view that dismissal was in any event warranted. Rather, it was again setting out why it considered that the Respondent could have fairly dismissed on that alternative basis. But that was not a sufficient basis on which to uphold the actual dismissal, when the Tribunal did not actually find that this was an alternative basis on which Mr Kilty or Mr Lewis had actually, after consideration of the evidence and arguments presented to them about it, founded their respective decisions. I conclude that the Tribunal’s decision cannot therefore be upheld on this alternative basis.”

“The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which a decision is written; focussing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid”

“Industrial tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law …their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.” (3) It follows from (2) that it is not legitimate for an appellate court or tribunal to reason that a failure by an employment tribunal to refer to evidence means that it did not exist, or that a failure to refer to it means that it was not taken into account in reaching the conclusions expressed in the decision. What is out of sight in the language of the decision is not to be presumed to be non-existent or out of mind. As Waite J expressed it in RSPB v Croucher [1984] ICR 604 at 609-610: “We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity's and brevity's sake industrial tribunals are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision; and it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an industrial tribunal's favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been wellestablished by the decisions of the Court of Appeal in Retarded Children's Aid Society Ltd. v. Day [1978] I.C.R. 437 and in the recent decision in Varndell v. Kearney & Trecker Marwin Ltd [1983] I.C.R. 683.”