Loader v Law Society [2003] EWHC 2189 (Admin)

[2003] EWHC 2189 (Admin)Case No CO/5782/2002
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 17th July 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE DYSON
MR JUSTICE GIBBS
Between
ANTHONY JAMES LOADERAppellant-v-
Between
THE LAW SOCIETYRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR T OWEN appeared for APPELLANTMR G TREVERTON JONES appeared for RESPONDENT
J U D G M E N T(As Approved by the Court)
Crown copyright©Thursday, 17th July 2003

LORD JUSTICE DYSON:

Mr

[1]Loader is a solicitor who was admitted in 1977. He appeals against a decision of the Solicitors' Disciplinary Tribunal ("the Tribunal") of 17th October 2002, whereby he was ordered to be suspended from practice as a solicitor for six months.[2]The facts in outline are as follows. In January 1993, he became a salaried partner in the firm of Martin Cray and Co. Martin Cray is the sole equity partner of the firm. On 1st April 1994, a legal aid franchise was awarded to the firm. Two of the solicitors employed by the firm were Diana Keane and Rachel Spring. Ms Keane joined the firm as a newly qualified solicitor in September 1993. Ms Spring joined the firm in May 1995, immediately after obtaining her practising certificate. They both worked at the Brighton office. According to the account that they were subsequently to give, within a short time of their joining the firm, they were being instructed, they said by Mr Cray, in relation to legal aid files to create missing documents and backdate them. They were to say that, reluctantly, they agreed to comply with these instructions. But eventually, they reported the matter to the legal aid authorities. They were interviewed by Legal Aid Board personnel on 26th February 1997 and gave witness statements on 3rd April of that year. Mr Loader approached the legal aid authorities with Mr Marsh, who was an assistant solicitor in the firm. Mr Loader was interviewed on 10th April and a witness statement taken on 22nd April. This latter witness statement has assumed some significance in the appeal to this court.[3]On 1st July, the firm's legal aid franchise was suspended. On 22nd March 1999, the Legal Aid Board lodged a complaint to the Office for the Supervision of Solicitors ("OSS") that seven solicitors in the firm, including Mr Loader, had been guilty of misconduct in that they had created and backdated client care letters and file review checklists. On 7th April 2000, the OSS resolved to refer the complaints to the Tribunal. On 24th May, the OSS also resolved to refer the cases of Ms Keane and Ms Spring to the Tribunal. On 9th August 2000, an appeal against a decision to refer their cases to the Tribunal was allowed. They subsequently received reprimands from the Law Society.[4]The allegations made on behalf of the OSS which came before the Tribunal were that five members of the firm had been guilty of conduct unbefitting of a solicitor and/or had acted in breach of the relevant practice rules. The allegations against Mr Loader were that:[5](i) He had acted in breach of rule 1(a)(c), (d) and (e) of the Solicitors' Practice Rules 1990 in that he had failed to comply with the mandatory requirements set out in paragraphs 3.50, 3.70 and 3.71 of the Legal Aid Franchising Specification and/or the requirements set out in the Law Society's Practice Management Standards;[6](ii) He instructed, or, in the alternative, caused employees to create false documentation so as to create the impression of compliance with paragraphs 3.50, 3.70 and 3.71 of the Franchise Specification and, in so doing, acted in a manner which was fraudulent or deceitful or otherwise contrary to his position as a solicitor; and[7](iii) He created and backdated correspondence and/or documentation.[8]I shall refer to these three allegations as the first, second and third allegations, respectively.[9]So far as relevant, the Legal Aid Franchising Specification provides: "3.50 Organisations must have documented arrangements for periodic reviews of the management of files. The review must, except where there is only one caseworker/adviser in the organisation, be carried out by a caseworker/adviser who has not been involved in the day-to-day conduct of the matter. 3.70 Organisations must have documented procedures for taking instructions which ensure that caseworkers/advisers agree and record:(a) the requirements or instructions of the client;(b) the advice given;(c) action to be taken by the organisations;(d) the possible effect of the statutory charge;(e) advice to the client on the best information possible about likely total cost of the matter and any potential liability for costs ...(f) the client's potential obligation to pay any Legal Aid contributions ...(g) who will be responsible for the conduct of the case; and(h) key dates in the matter, and record these in the file and in a back-up system. 3.71 Organisations must confirm (a) to (g) above with the client, ordinarily in writing".[10]The documented procedures had been formulated by Mr Cray following practice management standards drafted by the Law Society. These required that client care letters be sent to clients at specified intervals and also required the creation of monthly file review checklists.[11]The other respondents to the proceedings instituted on behalf of the OSS were Mr Cray, Mr Mitten, Mr Marsh and Mr Harris.[12]In advance of the hearing before the Tribunal, and, as a result of discussions between Mr Loader's former advisers and Mr Goodwin, who was the solicitor acting for the Law Society, an agreed basis of plea was formulated in respect of Mr Loader. By a letter dated 3rd October 2002, Mr Loader's solicitors wrote to Mr Goodwin in these terms: "Mr Loader accepts that, for a limited period of time leading up to the pre-franchise audit in 1995, he was responsible for inserting documentation (client care letters and/or CHKD forms) [I interpolate CHKD forms were the case review forms] into a limited number of client files and applying dates to those documents which would not have coincided with the date on which the letters would have been sent or the files reviewed. The act of inserting documentation did not mean that files had not been reviewed or that client care letters had not been delivered to clients, but the effect of inserting the documentation was that a limited number of files would have given the appearance of being more compliant with franchise requirements than was, in fact, the case. Mr Loader accepts that his actions necessarily involved a degree of deception in his dealings with the Legal Aid Board. Mr Loader accepts his conduct constitutes an admission to a breach of the relevant Solicitors Practice Rules 1990 and that, in doing the above, he acted in a manner which was contrary to his position as a solicitor. Mr Loader further accepts that the breach of the Solicitors Practice Rules 1990 necessarily incorporates a breach of the Legal Aid Board Franchise Specifications. You have accepted and acknowledged that there can be no suggestion that Mr Loader's client care was in fact deficient and that all the available evidence indicates that Mr Loader was, and continues to be, a very good, well respected solicitor. Furthermore, you acknowledge that, to his credit, Mr Loader approached the Legal Aid Board and voluntarily disclosed his own conduct within two months of the initial complaint by Rachel Spring and Diane Keen".[13]The hearing commenced before the Tribunal on 7th October 2002. At the outset, there was discussion about the admissions that were to be made by Mr Loader (and, indeed, Messrs Marsh and Harris). In the course of this discussion, Mr Loader's counsel, Mr Tim Owen QC, made clear the basis on which the first and third allegations were being admitted, and why the second allegation was not admitted. Mr Goodwin indicated that he accepted the basis for plea that was being advanced on behalf of Mr Loader and that he was content to proceed against Mr Loader on the first and third allegations alone on the basis that these constituted an admission to the charge of unbefitting conduct.[14]Having identified the basis for plea, the case against Mr Loader was adjourned by the Tribunal until 8th October, when it was agreed that mitigation would be heard on his behalf. The cases of Messrs Marsh and Harris were adjourned for mitigation to take place later. In the meantime, the case against the two solicitors who denied the charges, Messrs Cray and Mitten, proceeded before the Tribunal between 7th and 17th October.[15]It will be necessary to consider the Tribunal's findings in some detail. At this stage, it is sufficient to say that the Tribunal announced its decision on penalties on 17th October and gave written reasons for its findings on 4th December. The grounds of appeal[16]On behalf of Mr Loader, Mr Owen submits that the Tribunal acted with procedural impropriety and/or imposed a grossly disproportionate penalty because:[17](a) It must have sentenced him on the factual basis that his April 1997 statement to the Legal Aid Board was dishonest, and, in so doing, the Tribunal departed from the agreed basis of plea without giving Mr Owen an opportunity to deal with the point on behalf of Mr Loader;(b) It was disproportionate to subject Mr Loader to a six month suspension when Ms Spring and Ms Keane had been dealt with by means of a reprimand;(c) The decision to impose a six months suspension on a 56 year old solicitor "of great competence and professionalism who was held in the highest esteem by all of those who came into contact with him", in relation to the misconduct which took place more than seven years earlier, shows that the Tribunal did not attach sufficient importance to the impact of delay in the context of this case.[20]Ground 1: procedural impropriety in departing from the agreed bases of plea[21]In order to understand the nature of this complaint, it is necessary to set the scene. It was common ground between Mr Owen and Mr Goodwin before the Tribunal that Mr Loader fell to be dealt with on the basis of the letter of 3rd October 2002, and this was made clear to the Tribunal by both advocates. The potential significance of Mr Loader's witness statement of 22nd April 1997 was apparent on 7th and 8th October. In that witness statement, Mr Loader had said that Mr Cray was fully aware of the arrangements for the creation and backdating of documents, and indeed had instigated them. It was understood by the beginning of the hearing before the Tribunal that these allegations, which were in large measure supported by the witness statements of Ms Keane and Ms Spring, were denied by Mr Cray. It was Mr Cray's case, ultimately upheld by the Tribunal, that he was kept in the dark and was wholly unaware of these arrangements.[22]The following exchanges took place early on during the hearing before the Tribunal. On 8th October the following exchange took place: "The Chairman: We do not have quite a lot of information really. Mr Owen: You do not, sir. It is a point that could have been made in terms of the specificity of the charges. No point has been taken on that. But it is necessarily the case, not just because of the passage of time, but by definition, very difficult to nail down with precision what was actually being done. It is a situation in which I do submit the Tribunal, in the traditional way, in circumstances of an agreed basis of plea, can do more than approach the sentencing issue on the basis on which Mr Loader has entered his admissions. The Chairman: I can see that. There are also slight differences between a letter of admissions and some of the things said in the statements to the Legal Aid Board in the interviews. Mr Owen: There are. In terms of the statement, I invite you, in effect, to disregard that statement. There are a number of points which could have been made and would have required an examination of the full context in which that statement was taken, what assurances were given and so on which would quite properly have been raised in terms of an application to exclude the statement or even potentially as an abuse of process. I am not taking that point. Mr Loader is not instructing me to take any point on that. In fairness, Mr Jackson of the Legal Aid Board, the investigator, would be entitled to deal with the extra points and allegations that I would have put to him about what was said to Mr Loader at the time. That is another reason why I do submit it is right that the Tribunal should deal with Mr Loader on the basis of what is agreed rather than -- The Chairman: I am not sure we can promise that we will not have regard to the statement we have from Mr Loader. Mr Owen: Well -- The Chairman: I am not sure we can agree that that would be our position. What do you think, Mr Goodwin? Mr Goodwin: It is right to say that the letter from Peters & Peters [that is to say, the letter of 3rd October] has been advanced as the agreed basis of the admission which I hope I sought to clarify yesterday. The Chairman: Yes. Mr Goodwin: If the Tribunal has concern if there is any inconsistency, I would say that consistency on, to adopt Mr Owen's words, the substance rather than the form of what this allegation relating to Mr Loader is about, in that notwithstanding what is said in relation to letters may have been sent to the client, he does accept the nub of the allegation that, effectively, he created and backdated letters. He accepted in so doing, quite properly accepts, that that was contrary to his position as a solicitor and it must involve some degree of deception on the Legal Aid Board. The Chairman: Yes. Mr Goodwin: That is why I was content to proceed on the basis of that. The Chairman: Very well. Mr Goodwin: I would say to Mr Owen there is this: that I will be putting Mr Loader's statement to those who do give evidence. The Chairman: Exactly; that is my point. In fact we cannot simply ignore the statement because it will form the basis no doubt, of some questions of other people. Mr Owen: I hope I will not be sounding too dismissive in the sense of saying that that is a problem which others will have to deal with.[23]The Chairman: Very well; I understand".[24]Mr Owen submits that the Tribunal departed from the agreed basis of plea in that:[25](1) It failed to take account of the fact that the deception which Mr Loader admitted did not mean that files had not been reviewed or that client care letters had not been sent to clients; and[26](2) It allowed its conclusions about Mr Loader's witness statement of 22nd April 1997, which were very adverse to Mr Loader, to affect its assessment of the gravity of Mr Loader's misconduct.[27]Before I deal with these submissions, I need to refer to the relevant parts of the Tribunal's findings.[28]At paragraph 9 of its written findings, the Tribunal wrote this: "Mr Loader admitted allegations (i) and (iii) accepting that for a limited period of time (in 1995) he was responsible for inserting client care letters and/or CHKAD forms into a limited number of client files and applying dates to those documents which would not have coincided with a date on which the letters would have been sent or the files reviewed. He accepted that his conduct constituted a breach of the relevant Solicitors' Practice Rules and in so doing he acted in a manner which was contrary to his position as a solicitor. Mr Loader further accepted that the breach of the Solicitors' Practice Rules 1990 necessarily incorporated a breach of the Legal Aid Board Franchise Specifications. Mr Loader accepted that his conduct did amount to conscious impropriety".[29]At paragraphs 203 to 223, the Tribunal summarised the submissions made by Mr Owen in the course of his mitigating remarks.[30]Then there is a section headed "The facts found by the Tribunal". That is between paragraphs 258 and 266. Paragraph 260 is of some importance. It starts as follows:
"The Tribunal was not satisfied that either Mr Cray or Mr Mitten had expressly or impliedly instructed staff to back date documents, and were not satisfied that they had any knowledge that any such backdating by staff had been carried out. Amongst the factors which the Tribunal took into account in reaching these conclusions were the following ..."
[31]There follows a list of factors in subparagraphs (a) to (y). These include the following that relate to Mr Loader's witness statement of 22nd April 1997:
"(n) Mr Loader did not give evidence and so could not be examined on his statement. However his statement was in itself contradictory and unsound in relation to his allegation that Mr Cray had given instructions in relation to backdating. (o) Mr Loader was a salaried partner who was asked to take charge of the Lewes office and supervise the staff there. Mr Loader's statement contained assertions that he interpreted instructions from Mr Cray to ensure compliance with franchise requirements as constituting instructions to create backdated documents in a dishonest manner, which he challenged but complied with to a limited extent. (p) Mr Loader's statement contained the extraordinary assertion that a failure by him to have complied with the requirement of Mr Cray would have been a breach of the Partnership Deed. If Mr Loader had indeed considered any instruction to have been dishonest he should of course not have complied. (q) The Tribunal are not satisfied that Mr Loader received any such instruction. Mr Loader's statement asserts on the one hand that he received clear instructions from Mr Cray to achieve compliance by backdating where necessary, but states on the other hand that Mr Cray 'never said that correspondence should be backdated, it was all by implication'. (r) Mr Loader's statement to demonstrate his allegation gives a single example of an alleged written instruction from Mr Cray to backdate. This was a client File Review Note dated July 1995 from Mr Cray on Mr Loader's Appraisal file which pointed out past non-compliance on the file in relation to a Green form client care letter and CHKAD and suggesting for the future that CCL and CHKAD should be dealt with at the same time and at the earliest opportunity. Mr Loader considered that the only way he could comply with this request would have been to backdate the CHKAD and client care letter. The Tribunal heard evidence that this interpretation was nonsense; that the file review note was clearly a piece of advice about proper practice to be followed in relation to legal aid funding started post the green form; that it was to be construed as indicating that the client should have been given information about the basis on which the matter was to be reviewed now that it was legally aided; that the note was in any event one which was contained on the file available to the Legal Aid auditors and could not reasonably be construed either as an overt or covert instructions to backdate. (s) The Tribunal heard evidence that whilst Mr Loader's substantive care of client matters was not in issue, he had in many cases failed over a long period, as revealed by his appraisal files, and related correspondence with the Legal Aid Board, fully to comply with the precise franchise procedure requirements. (t) The Tribunal was not provided with any satisfactory evidence that Mr Loader had complained to Mr Cray at any time about the alleged impropriety of any instructions from Mr Cray about how to achieve compliance with franchise requirements, nor that Mr Loader had, prior to making his statements to the Legal Aid Board, brought to the attention of Mr Cray at any time that he had backdated documents to secure such compliance. (u) Apart from the above allegations made by Ms Spring, Ms Keane and Mr Loader about the nature of Mr Cray's instructions as to compliance with the franchise requirements, no other respondent or member of the staff alleged Mr Cray or Mr Mitten to have given instructions to create backdated documents, or to have had knowledge of such backdating. Other witnesses disputed the evidence of Ms Spring, Ms Keane and Mr Loader in a number of material respects. (v) The Tribunal is of the view that a principal purpose of such backdating as was admitted was to conceal from Mr Cray non-compliance by the particular fee-earner of the firm's franchise procedures ..."
[32]At paragraph 265, the Tribunal said: "The Tribunal finds that Mr Loader undertook backdating in order to make his files appear to comply with Mr Cray's practice management standards. He was not told directly by Mr Cray to effect such backdating".[33]The final section of the Tribunal's document is entitled "The findings of the Tribunal". It is necessary to refer to some paragraphs from this section of the document: "Each of the third, fourth and fifth respondents [I interpolate that Mr Loader was the fifth respondent] had admitted that they had been guilty of conscious impropriety. There must be no doubt that any solicitor who is guilty of conscious impropriety will be treated with the utmost severity by this Tribunal. The Tribunal consider in the case of Mr Marsh and Mr Harris that their backgrounds went some way to explain their apparent naivety and lack of recognition of the seriousness of what they were doing. 271. The same could not be said of Mr Loader whose seniority and experience should not only have prevented him from taking the steps which he did but should have played a part in guiding those working the same firm as he who were of less experience ... 274. There is no doubt in the Tribunal's mind that all of the Respondents have been guilty of conduct unbefitting a solicitor ...279. The Tribunal has given anxious thought to the position of Mr Loader. Mr Loader knew what he was doing and knew that it was wrong. He had that knowledge because he was an experienced solicitor of long standing and seniority within the profession.280. He admitted that he was not good of administrative matters, found it difficult to understand why the new systems were to be imposed and had backdated documents for the sake of the appearance of the file rather than to cover up the lack of any improper handling of clients' affairs.281. The Tribunal accepted Mr Loader's submission that his actual conduct of clients' matters had always been entirely proper and conducted in the best interests of the client.282. Mr Loader was to be given credit for his co-operation with the investigating bodies and his admissions of the allegations before this Tribunal.283. There was no doubt from the evidence before the Tribunal that save for this falling from grace Mr Loader was a solicitor of great competence and professionalism who was held in the highest esteem by all of those who came into contact with him.284. The Tribunal has taken into account all the matters adduced on his behalf in mitigation, and the long period of time -- over five years -- from the admissions made to the Legal Aid Board and the longer period from the admitted conduct itself. It has also taken into account the great anxiety suffered by Mr Loader over a long period of time and the effect which the matters before the Tribunal have had on his professional career.285. The Tribunal considered it right in all of the circumstances in order to mark its extreme disapproval of what he had done to impose upon him a suspension of six months. Again, because Mr Loader had been practising as a solicitor without complaint for a number of years since these matters arose, the Tribunal considered it right to agree that the period of suspension need not commence until 2nd January 2003 to give Mr Loader the opportunity of making orderly arrangements for his clients' affairs".[34]I can now return to Mr Owen's two submissions. As regards his first submission, it is true that paragraph 9 does not record the important part of the letter of 3rd October 2002, which states that client care letters were sent out and review checklists were made. But, in my judgement, it is clear that the Tribunal had this point well in mind. At paragraph 212, the Tribunal records the submission made on behalf of Mr Loader that: "In inserting these backdated documents he was not recording something which had not happened. He was indicating that reviews had taken place on a specified date. All of the work had been done properly and in time and clients had received appropriate letters keeping them informed of the progress of their matters. In some cases a copy letter which had been written to a client had been removed and a standard letter with a required date had been substituted".[35]Again, at paragraph 258, the Tribunal say: "The admission of the fifth respondent was that for a limited period of time leading up to the pre-franchise audit in 1995 he had been responsible for inserting documentation into a limited number of client files and applying dates to those documents which would not have coincided with the date on which the letters would have been sent or the files reviewed".[36]The words "would have been sent or ... reviewed" indicate that letters were sent and files were reviewed. Finally, there is paragraph 280, to which I have just referred.[37]In my view, there is no basis for concluding that the Tribunal departed from the agreed basis of plea by leaving out of account the fact that care letter were in fact sent and that cases were in fact reviewed, albeit on the wrong dates.[38]I turn to the second submission. Mr Owen accepts -- rightly, in my view -- that the Tribunal was entitled to make findings as to the truthfulness of the contents of Mr Loader's witness statement of 22nd April 1997 when considering the case against Mr Cray. The case against Mr Cray, that he knew of the backdating arrangements, was substantially based on the allegations contained in the witness statements of Ms Keane, Ms Spring and Mr Loader. The contents of these statements were put to Mr Cray in cross-examination.[39]In my view, the Tribunal could not simply ignore these statements. They had to reach a view about them. But I agree with Mr Owen that the Tribunal could not properly and fairly take into account its conclusions about Mr Loader's witness statement against him without giving him an opportunity to deal with the suggestion that its contents were untruthful and that he had made the statement in order to deflect blame from himself on to Mr Cray. The question, therefore, is whether the Tribunal did in fact take into account its conclusions about the witness statement when considering and arriving at a decision as to the gravity of Mr Loader's misconduct.[40]Mr Owen submits that the Tribunal did take them into account because:[41](a) The phrase "in all of the circumstances" in paragraph 285 is unqualified and must include the conclusions reached at paragraph 260 (n) to (r) about the witness statement; and(b) There is no other reasonable explanation for the severity of the penalty imposed and the fact that Mr Loader was treated so much more severely than Ms Keane and Ms Spring. Alternatively, Mr Owen submits that there must be a doubt as to whether the Tribunal ignored the witness statement when dealing with Mr Loader's case and that that is a sufficient reason to allow the appeal.[43]I do not consider that the phrase "in all of the circumstances", in its context, suggests that the Tribunal had regard to its findings about the witness statement when deciding what penalty to impose on Mr Loader. Paragraph 285 is the last paragraph of the section which discusses the position of Mr Loader, that is paragraphs 279 to 285. There is no reference in this section to the witness statement at all. There is no reason to doubt that the circumstances to which the Tribunal is referring at paragraph 285 are those mentioned in this section, which in turn are a fair summary of the essential elements of Mr Owen's mitigating submissions.[44]As regards the severity of the sentence, it is important to have in mind paragraphs 270 and 271 of the findings, which I have already quoted.[45]Mr Owen has a separate criticism of paragraph 270. He submits that this paragraph shows that the Tribunal did not heed his plea that it should not adopt what he called a "monochrome" view of deception, and that it should regard Mr Loader's deception as being at the bottom end of the scale of gravity.[46]But what is clear from paragraphs 270 and 271 is that:[47](a) The Tribunal considered all cases of "conscious impropriety" as requiring treatment with the utmost severity; and(b) What made Mr Loader's case worse than that of Messrs Marsh and Harris was his seniority and experience.[49]In my judgment, it is very significant that the only factor identified by the Tribunal as justifying treating Mr Loader more seriously than Messrs Marsh and Harris, who were both suspended for three months, was his seniority and experience. There was no criticism by the Tribunal of Mr Marsh or Mr Harris for making false statements with a view to implicating others and exonerating themselves. If the Tribunal had been of the view that Mr Loader's witness statement was an aggravating factor in his case, one would have expected that point to be made as an additional feature justifying the disparity of treatment between Mr Loader on the one hand and Messrs Marsh and Harris on the other.[50]In my view, this point is not mentioned here, or indeed anywhere else in the findings, because it was not taken into account by the Tribunal as against Mr Loader. Nor should this be a matter of surprise. The Tribunal would no doubt have had in find the following exchange that took place between Mr Owen and the Chairman before Mr Owen started his plea in mitigation on 8th October: "Mr Owen: In that case, I wonder if I could simply say this. Clearly I will be mitigating today and it will be my submission that Mr Loader should be dealt with on the basis of the agreed basis of the plea. But should the Tribunal be of the view that anything arises after I have addressed you today which, as a matter of fairness, you feel I ought to have a chance to come back, that I would be given that opportunity. In my submission it is difficult to see how that could arise because of the agreed basis of the plea but I simply wanted to, if you like, lay down that request. The Chairman: You put a heavy onus on us perhaps because it is rather difficult for us to assess in what respect you might want to come back. Mr Owen: It would be on the basis that something arises during the rest of this hearing which, by definition, we will not know about because we are not intending clearly to stay here all the time for the rest of the hearing. I will address you today on the basis of the agreed basis of the plea. The Chairman: All right. We will bear it in mind and we will see if we can help".[51]I do not accept Mr Owen's second submission that the severity of the sentence is consistent only with the Tribunal having taken the witness statement into account. When my Lord suggested during argument that if the Tribunal had found Mr Loader guilty of making false statements in order to implicate Mr Cray, he would surely have been struck off the roll of solicitors, Mr Owen was inclined to agree.[52]In my judgment, he was right to do so. Mr Owen's riposte was that Mr Loader had not been not charged with that offence. That is true, but I am in no doubt that the Tribunal could have made such a finding as against Mr Loader in the context of the proceedings as they stood, and, had it done so, could, and almost certainly would, have struck Mr Loader off the roll of solicitors. The only reason why such a course was not open to the Tribunal was because Mr Loader was not given the opportunity to deal with the allegation.[53]In my view, the fact that a suspension of six months was imposed, far from supporting Mr Owen's submission, suggests that the Tribunal was astute not to take its conclusions about the witness statement into account when deciding what penalty to impose on Mr Loader. I would therefore reject Mr Owen's first ground of appeal.[54]I should add that, in his skeleton argument, Mr Owen also submitted that the Tribunal departed from the agreed basis of plea in that it stated (see paragraph 9) that Mr Loader had accepted that his conduct amounted to "conscious impropriety". That, he submitted, was incorrect. But it is clear that Mr Loader pleaded guilty on the basis that his actions necessarily involved a degree of deception in his dealings with the Legal Aid Board.[55]The Tribunal understood that this was not dishonesty of the gravest kind. I have already mentioned the fact that the Tribunal referred more than once to the fact that care letters were sent and case reviews carried out. Mr Owen makes the point that Mr Loader believed that the legal aid authorities would not have been interested in the breaches of the rules that were committed, and apparently evidence as to the attitude of the legal aid authorities was called before the Tribunal.[56]But that was not necessarily how the picture appeared at the time. In this regard, the following exchange is of some relevance: "Mr Holmes [who was one of the members of the Tribunal]: -- the fact that it had been picked up on file review, perhaps, or by the fee earner and sent out, was not a deadly sin. Mr Owen: Precisely. That was Mr Loader's belief, that it would not be regarded as a deadly sin. But the expectation that he was pressurised, he felt, to comply with was to create perfection because at that stage it was not known precisely what the Board would say".[57]In reaching the conclusion that the breaches were themselves sufficiently serious to justify a suspension of six months, I bear in mind what Sir Thomas Bingham, Master of the Rolls, said in Bolton v The Law Society [1994]1 WLR 512, 518 D: "If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension. It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is in some of these orders a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way".[58]Mr Owen submits that the present case falls into that narrow class of "very unusual and venial cases".[59]I do not agree. It seems to me that, for the reasons given by the Tribunal, this was a serious case and not one that fell into that very narrow band of special cases of misconduct involving deception where a penalty less serious than one of suspension ought to be imposed. In my judgment, therefore, subject to the second and third grounds of appeal, the decision of the Tribunal cannot be faulted.[60]Ground 2: disparity[61]During the course of his mitigating remarks, Mr Owen said this: "While I accept that there is a difference in terms of seniority between Ms Spring, Ms Keane and Mr Loader and that literally they can be regarded or, strictly speaking, Ms Spring can be regarded as the first whistle-blower, there is no difference in terms of the gravity of the actual conduct as between their admitted conduct and Tony Loader's admitted conduct. There simply is no difference if one is looking at what they actually did".[62]But, as the Chairman pointed out, although there was no difference between the nature of the acts committed by Mr Loader and those committed by Ms Keane and Ms Spring, Mr Loader admitted carrying out less creating and backdating of documents over a shorter period than the two women solicitors.[63]It is unfortunate that the Tribunal considered the relatively blameworthiness of Mr Loader, as compared with that of Messrs Harris and Marsh, but made no reference to the fact that the two women solicitors had merely been reprimanded by the Law Society. I do not, however, consider that there has been objectionable disparity in the treatment of Mr Loader as compared with that of the two women solicitors.[64]First, Ms Spring, and to a lesser extent Ms Keane, had the courage to bring the matter to the attention of the Law Society, thereby exposing the wrongdoing that had occurred. It is true that Mr Loader followed their lead within a few weeks, but no doubt he was already aware of the fact that the Law Society had been involved before he decided to do so.[65]Secondly, Ms Keane and Ms Spring were young and very inexperienced solicitors. On the other hand, Mr Loader was a very experienced solicitor, having been admitted as long ago as 1977. He was a salaried partner and there plainly was a highly material difference in terms of seniority and experience between him and the two women solicitors.[66]These two features, both of which were recognised by Mr Owen himself in his submissions, in my judgment justified a substantial difference in treatment between Mr Loader and the two women. I would reject the second ground of appeal.[67]Ground 3: delay[68]It is rightly accepted on behalf of the Law Society that the lapse of time between the misconduct alleged and the hearing before the Tribunal can properly be taken into account in fixing the appropriate penalty. The Tribunal said that it had taken into account the delay in this case. Thus, on 17th October, when the penalty was announced, the Chairman said this: "Normally we would take a very harsh view in relation to admitted impropriety in terms of penalty. But we have taken into account all the circumstances, particularly the impact of delay -- without mentioning any culpability for delay -- but the fact of delay we have taken into account in reaching our decision on penalty".[69]I have already quoted paragraph 284 of the findings, where the point is repeated. Delay was taken into account. I see no reason to interfere with the Tribunal's overall assessment of the appropriate penalty in this case.

Conclusion

[71]For all these reasons, I would dismiss this appeal. This is indeed a very sad case. Mr Loader is 56 years of age. He has had a hitherto unblemished career as a solicitor, as the character evidence, which I have read, eloquently demonstrates. The creation and backdating of documents was carried out over a relatively short period, and in relation to a fairly small number of files.[72]Although there clearly are grades of seriousness of deception and dishonesty, the Tribunal was right to take the view that any deception by a solicitor was a grave matter. This may well have been towards the bottom end of the scale of seriousness, but it nevertheless was serious and the Tribunal was right to decide the matter as it did.[73]MR JUSTICE GIBBS: I respectfully agree with the conclusions reached by my Lord, Dyson LJ, and with his reasons for reaching those conclusions.[74]I add a few observations of my own, particularly in recognition of the serious effect of the events about which we have heard on this appellant, a hitherto well respected solicitor.[75]We have had the advantage of reading, and being addressed upon in detail, the record of the disciplinary proceedings challenged. The starting point for the consideration of the appellant's case, whatever the circumstances and outcome in relation to his former colleagues' cases, was his basis of plea. It is so described by analogy with the procedure adopted in criminal cases.[76]The basis of plea was set out in a letter from his then solicitors of 3rd October 2002. It contained an express admission that the appellant's conduct involved "a degree of deception in his dealings with the Legal Aid Board". That deception consisted of creating false documents.[77]Those documents were not false in the sense that their contents were dishonest. They were false in this sense: they consisted of letters of a type which were in fact from time to time sent to clients, known as "client care letters", but, on the occasions admitted by the appellant, they were backdated, that is, they were prepared so as to contain a false date in the past. Each such letter was then inserted into the client's file in order to pretend that it had been sent on that date, rather than any later date. Thus, it would tend to mislead anyone examining the file about the true facts and would tend to conceal any suggestion of deficiency in the appellant's handling of the case.[78]In my view, it cannot reasonably be argued that such conduct fell short of conscious impropriety.[79]Mr Tim Owen, QC, represented the appellant before the Tribunal, as he does before this court. It is clear from the record of the disciplinary proceedings that Mr Owen, with considerable thoroughness and skill, said everything on the appellant's behalf which could possibly have been said and there was a good deal of genuine mitigation.[80]However, that mitigation was, regrettably from the appellant's point of view, inevitably set against misconduct, which, however successfully it was minimised, was bound to be regarded, on the part of an experienced solicitor and salaried partner, as of some gravity.[81]Perhaps the appellant's most important submission is that the Tribunal was led, or led itself, into error in taking into account its adverse findings in relation to the formal statement made by him on 22nd April 1997 to the Legal Aid Board's investigator.[82]As to that statement, I agree with my Lord that it was necessary for the Tribunal to make its assessment of it, because it formed part of the case against Mr Cray, who was contesting the charges brought against him before the same Tribunal.[83]The real complaint, it seems to me, is that it was, or would have been, improper and/or unfair for the Tribunal to have allowed that adverse finding to influence its view of the seriousness of the appellant's misconduct; that the appellant did not himself give evidence; that he did not have a chance to respond to the suggestions being made against him; and that he should not have been dealt with on the basis that the statement contained self-serving fabrications by him designed to shift the blame to Mr Cray.[84]This submission depends, of course, on there being any, or any arguable, ground for finding that the Tribunal did proceed on such a basis.[85]In my judgment, on all the material to which we have been referred, there is no such ground. It is true that the Tribunal did not expressly state, in giving its reasons in relation to the appellant, that it was disregarding its findings about the statement. However, for my part, I can find no indication in the sections of the Tribunal's reasons, which related to the appellant and which have been cited extensively by my Lord, that it did take the statement into account.[86]It referred to the appellant's seniority as a solicitor as an aggravating factor, a proposition which cannot be criticised. But that was the only aggravating feature mentioned by the Tribunal.[87]It did, however, go on to refer in some detail to the mitigating factors, powerfully advanced by Mr Owen. There is no indication in its remarks that it approached the matter in any manner inconsistent with the basis of plea. It made no express reference to the 1997 statement in the context of the appellant's penalty at all.[88]After listening carefully to the submissions made on the appellant's behalf, I find myself unable to infer that the Tribunal relied upon, or was influenced by, the 1997 statement in determining the appropriate penalty.[89]I agree with my Lord that such an inference cannot reasonably be drawn in context from the use of the words "in all the circumstances" in paragraph 285 of its findings.[90]Finally, however, on this point, and perhaps most cogently, there is the penalty itself. It is difficult to conceive that a Tribunal, which was including in its considerations the falsity of a solemn statement such as that of April 1997, would have imposed any penalty short of removal from the roll. It was realistically conceded in argument that, in that situation, a significantly heavier penalty than six months' suspension would have been inevitable.[91]For those reasons, in addition to those set out by my Lord, I am not persuaded that the Tribunal either departed from the basis of plea or took any immaterial matter into consideration. Nor am I persuaded, viewing the proceedings as a whole, that the appellant's case was dealt with in anything other than a fair and careful way.[92]I would add that, on the face of it, the penalty imposed, whilst undoubtedly involving hardship, as well as sadness for the appellant, cannot be regarded as unduly severe for conduct involving admitted deception by an experienced solicitor. Indeed, the fact that the penalty was confined to six months' suspension was no doubt a reflection of the otherwise impeccable record and qualities of the appellant, supported by the force of Mr Owen's mitigation.[93]As to the matters of disparity of penalty and of delay, I agree entirely with my Lord's reasoning and do not wish to say anything further on those grounds of appeal.[94]Accordingly, I, too, would dismiss this appeal.[95]MR TREVERTON JONES: My Lords, I would therefore ask for an order that the appeal is dismissed and that Mr Loader pay the Law Society's costs of the appeal. My Lords, I have costs schedules for your Lordships.

LORD JUSTICE DYSON: Has Mr Owen seen them?

[97]MR TREVERTON JONES: My Lord, yes.[98]MR OWEN: I saw them this morning. I do not accept the -- I always find this an undignified part of any proceedings -- but I do not accept that this is appropriate for summary assessment. I can go through the individual items and express views now. I can make the general comment that the total sum is more than twice Mr Loader's fees and costs.

LORD JUSTICE DYSON: I think I would like to see the schedule anyway, obviously before reaching a decision.

[100]MR OWEN: Yes.

LORD JUSTICE DYSON: Let us just have a look at it.

[102]MR TREVERTON JONES: My Lord, the schedule comes with an invoice. The invoice is for the cost of the transcript, which we would invite the court to order one third to be paid by Mr Loader, because there were two other appellants originally. They have both abandoned, as your Lordships know.[103](Handed).[104](Pause).[105]So, my Lords, I would ask your Lordships, if it has not been added on the schedule, mentally to add a further £1,300.

LORD JUSTICE DYSON: £1,300 has been written in on mine.

[107]MR TREVERTON JONES: My Lord, I am grateful. So that would bring it up to about £17,370-odd.

LORD JUSTICE DYSON: Yes. Let us hear from Mr Owen.

[109]There is no reason in principle why a summary assessment should not be made. This is a case less than a day in length, which was always estimated at less than a day in length. The courts encourage summary assessments of costs, as you know, because detailed assessments are very expensive and long and drawn out.[110]MR OWEN: Yes.

LORD JUSTICE DYSON: So, if you have specific points to make, I know it is undignified, and so on, and I can sure you that, at 4.30, after a long day, the last thing we want to do is to go through all this sort of thing.

[112]MR OWEN: My Lord, I can make these submissions, looking at the first page. £750 for letters in relation to a matter which, once one has the transcript and the bundles, what on earth requires £750 worth of letters to be written, and to whom? We do not know to whom they are written.[113]Telephone falls of £1,000, virtually: again, it is difficult to see how that is justified.[114]Preparation/perusal: I assume it is Mr Goodwin, who was, after all, in the Tribunal below -- unspecified and undetailed at £3,000. It is difficult to see.[115]I have prepared this appeal without a junior and without an active solicitor, just on the basis of the documents, and I was there, as Mr Goodwin was there. So, frankly, it is impossible to see where that comes from.[116]Photocopying: I accept there has been a lot of photocopying, and no doubt that is fully justified.[117]Advocacy (estimate): I do not know whose advocacy that is.[118]MR TREVERTON JONES: My Lord, that is Mr Goodwin appearing as my junior, but, my Lord, he would have charged the same had he been sitting in front of me, rather than sitting behind me.

LORD JUSTICE DYSON: Yes. I think that you are quite fortunate, in a way, not having a junior member of the Bar.

[120]MR OWEN: I was not quite clear what that related to. I see now what it does relate to and I do not object to that.[121]Travel: the Law Society can instruct whoever they like, but they happen to have instructed someone who is in Liverpool, when the Tribunal is in London and so is the appeal. I do not for a moment see why Mr Loader --

LORD JUSTICE DYSON: Sorry, who is in Liverpool?

[123]MR OWEN: Mr Goodwin.

LORD JUSTICE DYSON: I see.

[125]MR OWEN: I do not see really why Mr Loader should have to pay the travel costs. They can instruct who they like, but, in the circumstances, it seems rather unfair.[126]Those are really the only points that I am slightly mystified about.

LORD JUSTICE DYSON: Yes.

[128]MR OWEN: In particular, with item 4, which is simply not broken down at all, it is quite difficult to see why that has to be --

LORD JUSTICE DYSON: Yes. So you are challenging 1, 2, 3, 4 and 8?

[130]MR OWEN: Yes.

LORD JUSTICE DYSON: Yes.

[132]MR OWEN: I accept that, in Mr Treverton Jones' case, he clearly was not in the Tribunal below, and he clearly had to --

LORD JUSTICE DYSON: There is a lot of preparation to get into a case like this from cold.

[134]MR OWEN: My Lord, I agree. So I do not make any comparison with my fee or his, although mine was less than his, but he was not there below.

LORD JUSTICE DYSON: A third of the transcript fee?

[136]MR OWEN: I cannot object to that.

LORD JUSTICE DYSON: I am going to ask you to comment on those in a moment, but I really do not think, and we will look at the detail of these points, but it really would not be sensible to send this off for a detailed assessment. So I think we have to do our pest.

[138]I will hear from Mr Treverton Jones.[139]MR TREVERTON JONES: My Lord, dealing firstly with travel, it is a perfectly valid point: why should they have to pay for a Liverpool solicitor's travel?[140]The answer may be that they do gain in the fact that probably a Liverpool solicitor will be charging less per hour than a London solicitor, particularly a West End or City of London solicitor. So, yes, they have to pay for the travel, but they gain by the payment of a lower hourly rate. Your Lordship sees at the top of the page the hourly rate, which is sought for litigation of this sort -- it is by no means excessive.

LORD JUSTICE DYSON: No.

[142]MR TREVERTON JONES: My Lord, as for the general points on paragraphs 1, 2, 3 and 4, my Lord, perhaps paragraph 4 is the most significant because it is the biggest sum. My Lord, that is 161 units, which is 16 hours of preparation.[143]My Lord, Mr Goodwin had to read the transcript, as did I. He has recorded that as being his time. No doubt that was his time, and, if your Lordships consider that excessive, it will have to be trimmed. But it represents effectively two days of work, which, in a case of this sort, I submit is not excessive.[144]The other matters, my Lord, I cannot really respond. I do not have the letters here.

LORD JUSTICE DYSON: We just have to take a view of what is proportionate, and so on.

[146]You do not want to say anything more, do you? No. We will retire for a moment. (A short adjournment)

LORD JUSTICE DYSON: We are satisfied that this is a case where we should make a summary assessment. It will save everybody further costs. We are persuaded that there is force in some of the points Mr Owen has made, and I am not going to give a detailed judgment on each of the items. We assess the costs at £14,000 and that includes a sum for the transcript fee. So we have taken the £17,379 and we have reduced that figure to £14,000.

[148]MR TREVERTON JONES: My Lord, yes.[149]MR OWEN: My Lord, on the date when the order comes into force -- it has been stayed pending this appeal -- I have raised that obviously there are difficulties for Mr Loader in effectively ceasing his control of the firm, and it is by agreement we are asking that the court, subject to the court's view, would activate the suspension from 1st August, so that gives two weeks?[150]MR TREVERTON JONES: My Lord, it is not by agreement, but we do not oppose that application. In this case, the Law Society would be content with an order in those terms.

LORD JUSTICE DYSON: Suspension to take effect from 1st August?

[152]MR OWEN: Yes.

LORD JUSTICE DYSON: Thank you both very much for your assistance.

Cited in 1 later judgment