Darby v Law Society [2003] EWHC 2270 (Admin)

Case No CO3120/2002

[2003] EWHC 2270 (Admin)

IN THE SUPREME COURT OF JUDICATURE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

ON APPEAL FROM THE SOLICITOR’S DISCIPLINARY TRIBUNAL

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13 th October 2003

Before

LORD JUSTICE AULD

MR. JUSTICE GOLDRING

Between

MICHAEL JOHN DARBYAppellant

THE LAW SOCIETYRespondent

Mr. Stephen Murray (instructed by M.J. Darby & Company) for Appellant

Mr. David Barton (instructed by The Law Society) for Respondent

Hearing Hearing date: 19 th June 2003

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

[1]This is an appeal, pursuant to section 49 of the Solicitors Act 1994, by Michael John Darby, a solicitor, against the decision of the Solicitors Disciplinary Tribunal (“the Tribunal”) on 27th February 2002 finding him guilty of five allegations of conduct unbefitting a solicitor, fining him a total of £15,000, made up of £3,000 in respect of each offence, and ordering him to pay the Law Society’s costs. Mr. Darby challenges two of the five findings of conduct unbefitting, the amount of each of the five fines and the order for costs, which were subsequently assessed at £19,586.30. The Court, on 19th June 2003, dismissed the appeal in its entirety. These are its reasons for doing so.

The allegations and the appeal

[2]Mr. Darby was admitted as a solicitor in 1977 and has practised on his own in Halesowen since 1983, under the style of M. J. Darby & Co. All the allegations that the Tribunal found proved resulted from complaints made by a former client, Mr. L, for whom Mr. Darby had acted in a building contract dispute. Taking them in chronological order, they were as follows: 1) between November 1994 and late 1988, he failed, contrary to Solicitors Practice Rule 15 and the guidance notes thereto, to provide information on costs to Mr. L in accordance with the Written Professional Standards contained in the Guide to the Professional Conduct of Solicitors 1996, such breaches being material and serious; 2) between 20th and 29th May 1998, he compromised or impaired his duty to act in the best interests of his client by refusing at unreasonably short notice to attend, on Mr. L’s behalf, a taxation of costs hearing, and gave him inaccurate information about the hearing; 3) in late 1998 and early 1999, he compromised or impaired his independence or integrity by writing offensive or inappropriate letters to Mr. L and his wife, Mrs, L, and Mr. H, the manager of the branch of the Midland Bank at which Mr. L maintained an account; 4) in late 1998 and early 1999, he compromised or impaired his good repute and that of the solicitors profession, by writing such letters; and 5) in late 1998 and early 1999, he failed to keep the affairs of his client, Mr. L, confidential by writing such letters to Mrs. L and Mr. H.

The facts

[3]Mr. L was a builder and fairly sophisticated in business matters. He had done some building work in Wales for a Mrs. C, leading to disputes between them as to the quality of his work and payment of his bill. He had instructed a firm of solicitors called Rs to act for him in proceedings in the Caernarfon County Court to recover £460, which he claimed, was due in respect of that work. In July 1991 he obtained a default judgment against her. There were apparently procedural irregularities in obtaining the judgment, and in June 1993, the County Court, on Mrs. C’s application, set it aside. Mrs. C, who had obtained legal aid, then filed a defence and counterclaim for about £7,500, on both of which, in 1994, she succeeded in securing a default judgment in her favour, dismissal of Mr. L’s claim and an order for costs against him. Mr. L was very unhappy about this turn of events, which he attributed to Rs’ negligence. In late November 1994 he instructed Mr. Darby to advise him.

[4]On 5th December 1994 Mr. Darby, having been provided by Mr. L with papers from the litigation, wrote him a long letter giving a resume of what they showed and stating his belief that Rs had been negligent in their conduct of the litigation. He concluded the letter by asking Mr. L “What would you like me to do?” Mr. L’s answer was, not to pursue Rs in negligence for the moment, but to re-open the litigation with Mrs C by obtaining leave to appeal out of time the default judgment on her counterclaim. In the early days of this professional relationship, the two men also developed a social relationship. For a while both relationships flourished. In June 1995 Mr. L orally instructed Mr. Darby to institute proceedings in the C litigation and, before and/or after that, to act for him in other matters as well. Mr. Darby acknowledged his instructions in the C litigation in a letter of 9th June 1995, but without giving Mr. L any information about the terms of his retainer. He did not do that until some 14 months later, when he wrote on 9th February 1996 to Mr. L, enclosing his terms of business. We shall refer again to those terms when we deal with the first of the allegations of professional misconduct that Mr. Darby faced before the Tribunal. But we should mention here that they specifically excluded any provision for an initial payment on account.

[5]In August 1995 Mr. Darby succeeded in setting aside the judgment on Mrs. C’s counterclaim and in securing directions for trial of it. Whilst preparing for trial, Mr. Darby also sought, unsuccessfully, to secure some offer from Rs that could avoid the attendant risks and costs of the litigation with Mrs. C. The matter proceeded to trial, which took place in October 1996, and the court found in favour of Mrs. C, awarding her damages and costs.

[6]Mrs. C’s solicitors submitted a bill for taxation of costs in the sum of £20,625.00. As there was no agreement on the bill, the court eventually fixed 28th May 1998, some 18 months after judgment, for taxation. By this time relations between Mr. L and Mr. Darby had soured, largely it seems because Mr. L owed Mr. Darby a considerable sum in respect of this litigation and other matters and showed no signs of paying it. This gave rise to the second of the allegations that Mr. Darby faced before the Tribunal. In correspondence passing between them in the week or so preceding the taxation appointment in Wales, Mr. Darby maintained that Mr. L owed him over £25,000 and indicated that he would only attend the hearing if Mr. L paid him £2,000 on account. However, as Mr. L rightly pointed out in that correspondence, Mr. Darby had yet to render him any bill, interim or otherwise, in respect of the C litigation or other matters. In the event, although Mr. L did not produce any such sum, there appears to have been some uncertainty between them right up until the last moment whether either or both of them would attend it. Neither did, and the bill was taxed as drawn. Mr. Darby, who had remained on record, had not sought to come off it and had not notified the court that Mr. L might not be represented at the hearing - a hearing which, of course, had been fixed at Mr. L’s request so that Mr. Darby could challenge or otherwise test Mrs. C’s bill of costs. It was only on the morning of the hearing, at 9.05 a.m., that Mr. Darby faxed a letter to the District Judge at the Caernarfon County Court saying that he could not attend because Mr. L had not instructed him or put him in funds to do so. As a result, the taxation proceeded without any representation of Mr. L’s interests, and, as we have said, Mrs. C’s bill of costs was taxed as drawn.

[7]On the same day, Mr. Darby also wrote to Mr. L informing him that he was about to prepare his bill of costs in respect of all matters upon which he had acted on his behalf and that he intended to apply for his removal from the Court record in the C litigation. He did not, however, take any steps to remove himself from the record, and his retainer appears to have continued until 28th October 1998 when he wrote to Mr. and Mrs. L submitting his first and final itemised bill in the case.

[8]However, before submitting that bill, Mr Darby had been actively pursuing Mr. L for his costs in the C litigation, which, by letter of 27th August 1998 and an accompanying short statement of account, he put at a total of £25,540, but with no breakdown. In addition to writing to Mr. L he also wrote a number of letters to Mrs. L, Mr. L’s mother, a Mrs. Patricia G and Mr. H, Mr. L’s bank manager, letters that are the subject of the last three of the five allegations of professional misconduct.

[9]Mr. Darby’s 28th October 1998 bill put his costs and fees in the litigation at over £26,000. When added to the costs that Mr. L had been ordered to pay to Mrs. C, he now faced, in addition to her damages, a total costs bill of over £50,000 arising out of his original claim for £460. He refused to pay Mr. Darby’s bill because he considered that he had given him poor advice and service. He maintained that he had not known until told by counsel at the end of the trial in October 1996 that, even if he had won the action, he would not have recovered his costs because Mr. C was legally aided. He said that had he known that at the start he would not have attempted to re-open the litigation with her.

[10]Mr. Darby sued Mr. and Mrs L on his bill of costs and other matters, leading eventually, in April 2001, to settlement by the terms of a Tomlin Order.

The allegations

[11]Mr. Darby challenges the first two of the five findings of professional misconduct, namely of failure to comply with Rule 15, in the provision of adequate information as to costs, and of his failure to attend the taxation hearing. He challenges the penalty imposed by the Tribunal individually and/or looked at overall in relation to all five findings of misconduct.

[12]Before considering the individual allegations, we should mention two basic matters. The first is that disciplinary misconduct alleged and challenged before the Solicitors Disciplinary Tribunal must be proved to the criminal standard. The second is that an appeal against a finding of misconduct and/or against penalty to this Court under section 49 of the 1974 Act is by way of rehearing and the Court may make such order as it thinks fit, giving the degree of deference to the Tribunal appropriate to the circumstances; cf. Preiss v. General Dental Council

[2001] UKPC 36

, per Lord Cooke of Thorndon, giving the opinion of the Board at para. 27.

Failure to provide information on costs

[13]As we have said, Mr. L first approached Mr. Darby in late November 1994 for advice on his unhappy experience thus far in the C litigation. Then, or as soon as practicable afterwards, Mr Darby was required, by Rule 15 of the Solicitors Practice Rules 1990, to inform him about inter alia, costs, in accordance with the written professional standards on costs information for clients (subsequently reproduced in the Solicitors Costs Information and Client Care Code) of the Council of the Law Society and subject to its notes. These provisions at the material time required him to do the following: 1) to inform Mr. L whom to approach in the event of any problem with the service he provided; 2) to give him the best information possible about the likely cost of the action against Mrs. C and how the fee would be calculated; 3) every six months or otherwise periodically, to inform him of the approximate amount of the costs he had incurred and that the work he had undertaken was suitable for interim billing; 4) to inform him at the outset of the case and at appropriate stages thereafter that he would be personally responsible for the payment of his own costs regardless of any order for costs that might be made against Mrs. C, and that, as she was legally aided, he might not recover any costs against her if he was successful; and 5) to consider with Mr. L whether the likely outcome would justify the expense and risk involved.

[14]Shortly after Mr. L sought Mr. Darby’s advice in late November 1994, Mr. Darby, on 5th December, wrote a long letter to him advising him on the then state of the action and commenting on the apparent negligent conduct of it by Rs. He concluded the letter by asking Mr L what he wanted him to do. Thereafter, and over the next four years until about August 1998, Mr. Darby acted for Mr. L in the resumption of his litigation with Mrs. C resulting, as we have said, in its failure and with a total costs bill to Mr. L of over £50,000. The case against Mr. Darby before the Tribunal was that he gave Mr. L no, or no sufficient, information about the terms of his retainer, in particular about his exposure to costs. Mr. Darby claimed to have given him such information when it was needed in the letter of 9th February 1996 enclosing his firm’s terms of business, to which we have referred. Mr. L, in his evidence to the Tribunal, denied having received the letter or the terms of business at the time, and also challenged the accuracy of the letter. However, the Tribunal, in its Findings, declared itself “not satisfied that the letter was not sent”.

[15]The letter, so far as material, read as follows:

“… You know from my previous correspondence … and also from our several telephone conversations concerning this matter that my view is that you should not proceed with the claim against Mrs. C if there is any reasonable prospect of settling it on an economical basis. “As I have had no response to my correspondence to R…s … I have to assume they are not interested in the proposal put forward and it is therefore up to you to decide what to do. As you are aware from previous correspondence I have not yet fully considered the merits of the claim against Mrs. C but if you wish me to proceed then I will do so. In that case I obviously need to see you again so that we can discuss the case and decide on way forward. To date I have acted on your behalf in what I regard as a ‘fire fighting capacity …. to stop the Judgment being enforced against you in the Mrs. C case. If you want me to proceed to trial in respect of Mrs. C then under the provisions of the Law Society guidelines I am required to notify you of my terms of business. Enclosed separately is what I colloquially term as a ‘client care’ letter which give [sic] details of who will be looking after the case on your behalf and who you should contact if you need information or have information to give. Details of the charge out rate are for the current year. My charging terms for the work done so far are slightly less and doubtless the rate will increase in line with inflation and any other excuses as time goes on. With regard to costs thus far, I still feel that these should be met by R…s but I obviously need to know what you propose to do with regard to a claim against them for negligence. I look forward to hearing further from you. ”

We should add that Mr. Darby had annexed to the terms of business a schedule, which, inter alia, identified the “Date of commencement” of the solicitor/client relationship to which they related, as November 1994. I look forward to hearing further from you. ”

[16]The terms of business include much of what was required by Rule 15 at the time and we need not set them out in detail, save to draw attention to their provision as to payments on account and interim bills, namely:

“It is normal practice to obtain a payment on account of anticipated costs and disbursements, the amount of which will vary and be dependent upon the type of work for which you have engaged the company [sic]. In this case the amount of the payment on account is indicated in section 9 [of the schedule, where the entry was “nil”] and this amount should be paid as soon as possible to enable your case to be considered further. … Interim bills will be prepared and submitted to you at regular intervals for work carried out during the conduct of this matter. This assists our cash flow and enables you to budget for costs. You will doubtless understand that in the event of a payment being requested and not made then the fee earner must reserve the right to decline to act any further and will account to you fully in respect of work done up to that time. Accounts should be settled within 14 days of receipt …”

Accounts should be settled within 14 days of receipt …”

[17]Throughout, Mr. Darby rendered no interim accounts to Mr. L, despite his terms of business and his references to them in letters to Mr. L. Though he did, from time to time, ask for sums in respect of costs incurred. For example, in a letter of 18th September 1995, he wrote that “costs [were] escalating at quite a considerable rate” and asking for £500 on account. It is clear from the evidence, in particular various letters from Mr. Darby to Mr. L, that Mr. L mostly did not respond to such requests. He appears to have held out, as an alternative and an incentive to Mr. Darby to continue to act for him, a transfer in lieu of payment of a property in Wales. However, that property, along with other properties of Mr. L was heavily charged to his bank.

[18]Mr. Darby’s letters to Mr. L show that he became increasingly irritated by Mr. L’s attitude and apparent inability to pay monies he claimed to be due. However, it was only after the adverse judgment in October 1996 in the C litigation that Mr. Darby gave Mr. L any indication of his approximate costs of the venture. Over a year after the judgment, in a letter of 25th November 1997, he told him that “the C file [was] in the order of £25,000”. The letter, so far as material, read as follows: “…. I am … extremely disappointed in the way that you have not honoured promises that you made to me. As you know, I have put a considerable amount of time and personal financial effort into your problems with Mrs. C. The result I know is not a good one for you, but you were kept fully appraised throughout the course of that matter and willingly accepted the risks of a final judgment against you, particularly having regard to the repercussion this would have upon your potential claim against the R… s. We discussed on many occasions a transfer of assets to cover my fees. As I have indicated to you before, my fees are in the order of approximately £25,000 for work done on the C file, and despite having made numerous, what I consider to be, friendly requests for you to sort the matter out, you have not done so. … It must appear that our professional relationship cannot proceed in those circumstances. I therefore propose that I will submit a bill to you for all the work that I have done on your behalf and I suggest that you let me know how you propose to discharge it. ….

[19]Nearly another year was to pass before Mr. Darby submitted his first and last bill to Mr. L in respect of the C litigation. He enclosed it in a letter of 28th October 1998 to Mr. L and his wife, which read::

“My Taxing Clerk has now completed the tortuous task of preparing the full details of the Schedule of Costs and Disbursements in connection with the claim against Miss C. … I can, if you wish, now prepare a bill for taxation in respect of the C case and I will then lodge this at Court and apply for the bill to be taxed. I am bound to say that this will cost further money which I will seek to recover from you, and there will also be a substantial taxing fee payable in view of the amount of the bill. I have been provided with evidence confirming that the action taken against Miss C is on behalf of the partnership between the two of you, so that enforcement of the sums due is a joint and several liability of you both, which means I can pursue either both or either of you in respect of it. I feel extremely badly treated by you in your not having made any attempt to discharge the monies due to me, and I must say therefore that I would have little hesitation in applying for your joint bankruptcy if I felt that this step was necessary to liquidate your assets for the benefit of all creditors. Please do not force me into this action, and let me have within the next 10 days please, your clear proposals as to how you propose to discharge this liability. Please do not prevaricate or come up with any other stupid excuses. You are well aware of all the work that was done on your behalf and basis upon which it was done, you are also well aware of the promises that were made with regard to settlement of the bill. Do not now try to insult me further by attempting to hoodwink me with any further false promises. I genuinely hope all is well for you both but insist upon settlement of the outstanding monies due to me.”

[20]Before the Tribunal, Mr. Darby’s case was that when Mr. L first instructed him in late 1994 he judged, as permitted by the Law Society’s introduction to its written professional standards, that it was not necessary for him to comply fully with Rule 15 in this case. That was both because of the limited nature of his professional involvement at that stage in the C litigation and because of Mr. L’s obvious experience in instructing solicitors. But the Tribunal, having heard both Mr. L and Mr. Darby in evidence, rejected that suggestion. It did not regard Mr. L as a client of sufficient experience in such matters to exempt Mr. Darby from his obligations under Rule 15 to explain to him the basis, and inform him of the detail, of his costs.

[21]The Tribunal, as we have said, found proved this allegation of failure to comply with Rule 15. It also stated, when imposing the fine of £3,000 in respect of it, that it regarded it, along with the others, as serious. It gave the following reasons for its findings :

“… It is very clear from the documents before the Tribunal that the Respondent did not achieve a punctilious compliance with Rule 15. His approach to the requirements of Rule 15 and in particular the requirement to give a client information about the calculation of costs were not closely and properly followed. The Tribunal accepts that the Respondent’s letter dated 9th February 1996 and the terms of business enclosed therewith (and on the evidence the Tribunal is not satisfied that the letter was not sent) go some way to ameliorate the mischief addressed by Rule 15. The Tribunal notes that the Respondent did not apply the ‘nil’ payment on account set out in the schedule to the terms of business. The Tribunal does not accept the Respondent’s submission that he was not required to comply with Rule 15 at the time when he was ‘looking into’ the way in which Mr. L’s former solicitors had conducted the action against Mrs. C, nor that the position then was different from the position when he was instructed by Mr. L to have conduct of the substantive matter. There could be no doubt that when the Respondent was instructed in the matter from the outset he was required to comply with Rule 15. The Tribunal does, however, accept that the Respondent was not, as appears to have been alleged by Mr. and Mrs. L, responsible for seeking unreasonably to maintain an action at great cost to his client. Mr. L’s contention that he had been required to pay enormous costs relating to a £460.00 claim was disingenuous. Mrs. C had, of course, counter-claimed and Mr. L was defending the counter-claim made by Mrs. C. … There was no doubt that the costs owed to the Respondent by Mr. L represented a significant proportion of the income to his firm over the period to which those costs related. The Tribunal considered that Mr. L was a businessman of some sophistication who had instructed solicitors on a number of occasions before he instructed the Respondent. There could however be no certainty that Mr. L’s sophistication, expertise and knowledge would equip him to be entirely au fait with solicitors’ costs and the effect on costs in litigation where his opponent was legally aided. It was dangerous for a solicitor to rely upon such an argument as an explanation for his failure to comply with Rule 15. There was no evidence before the Tribunal which satisfied it that Mr. L was so knowledgeable that he need not be given proper explanations and details of potential costs.”

[22]Mr. Stephen Murray, on behalf of Mr. Darby, made three main and overlapping submissions: 1) that it was not until a late stage that a true solicitor/client relationship developed; 2) that Mr. L was an experienced litigator who did not need the protection of Rule 15; and 3) even if, which was challenged, there had been a breach of Rule 15, it did not constitute professional misconduct because it was not a serious or persistent breach of a material nature.

[23]In a little more detail, Mr. Murray contended that Mr. Darby was not required to comply with Rule 15 in late 1994 and in the early stages of his professional association with Mr. L when he was merely “looking into” the way in which Rs had conducted the C litigation thus far. He pointed out that it was not until April 1995 that Mr. Darby put himself on the court record, and he suggested that only then did a true solicitor/client relationship begin to develop. He accepted that a further 11 months went by before Mr. Darby, in February 1996, sent Mr. L the Rule 15 letter. But, he said, Mr. L was a sophisticated litigant who didn’t need a Rule 15 statement. He added that the professional and social relationship of the two men was also coloured by the fact that they both knew that Mr. L was not able to pay interim bills if and as they were rendered (bills which, whether paid or not on which Mr. Darby would have to account for output value added tax). He maintained that, on the evidence, their mutual understanding was that Mr. Darby was enabling Mr. L to litigate on interest free credit. He relied also on the fact that Mr. L did not complain about the letter of 9th February 1996 and enclosed terms of business when he received it. And he pointed out that there was evidence before the Tribunal that Mr. Darby had told him shortly after the setting aside of Miss C’s judgment on the counterclaim in August 1995 that those costs could not be enforced without leave of the court. In short, he argued that a full solicitor/client relationship did not “crystallise” much before the sending of the 9th February 1996 letter and that, in the circumstances, the sending of it met the Rule 15 requirement. And, he submitted, any earlier breach was neither a sufficiently serious nor persistent material breach to amount to professional misconduct.

[24]Mr. David Barton, on behalf of the Law Society, responded to those arguments by relying on correspondence and other evidence before the Tribunal to show that the solicitor/client relationship between the two men in relation to the C litigation started in November 1994. He was able to point to the entry to that effect in the schedule annexed to Mr. Darby’s terms of business sent to Mr. L with the letter of 9th February 1996. He was also able to rely on the case, as presented by Mr. Darby in the civil proceedings against Mr. L for his fees, that the retainer began in November 1994 and that the fees claimed ran from that retainer. As to the contention that Mr. Darby was entitled to dispense with a Rule 15 statement until some 14 months into that relationship, he pointed out that, in accordance with the Law Society’s guidance notes to Rule 15, where a solicitor decides in a particular case that a given standard is inapplicable it is for him to justify that decision in the event of a complaint by the client. He maintained that, on the evidence before it, the Tribunal was entitled to find that he had not provided such justification.

[25]The Court must, of course, form its own view both as to the fact of the breach, if any, of Rule 15 and as to whether, if there was a breach, it was sufficiently serious to amount to professional misconduct. In approaching those questions, it should, notwithstanding Preiss v. General Dental Council, still be careful before disagreeing with the Tribunal save in a clear case. Here, it is, important to note that the Tribunal, in its rehearsal of the evidence and arguments and in its findings, was clearly alive to the two quite distinct issues

[26]In our view, on the issue of breach of Rule 15, the Tribunal, on the evidence before it, was plainly entitled and right to find that Mr. Darby’s retainer in the C litigation commenced in November 1994, and that, subject to a possible entitlement on his part to disapply Rule 15, then or shortly after he should have provided Mr. L with a Rule 15 letter. We are also of the view that the Tribunal rightly found on the evidence before it that Mr. Darby had not justified his claim that Mr. L knew enough about litigation not to require such advice from the outset or thereafter periodically as the matter progressed. Whatever the nature of the relationship - including the fact that Mr. L came to Mr. Darby already saddled with a judgment and an order for costs against him on Mrs. C’s counterclaim - this was a case which, having regard to the relative small sum in issue, needed, not only a careful risk/benefit assessment and advice from the start, but also frequent monitoring from at least mid 1995 when Mr. Darby, having put himself on record, began to consider taking steps towards having Mrs. C’s judgment set aside and to prepare for a hearing of the matter on the merits. Certainly, given the rapidly escalating exposure of Mr. L that such preparation entailed, not only in respect of Mr. Darby’s own costs, but also of those of the legally aided Mrs. C, it was professionally irresponsible to wait until February 1996 while moving towards trial in that way before attending to his Rule 15 obligations.

[27]Careful attention to the need for such advice, both at the beginning of the solicitor/client relationship and thereafter periodically as the matter progresses, is highly important in the interest of the client and the solicitor and in the integrity and efficacy, regardless of outcome, of the litigation process on which they are both embarked. There is, it seems to us, a heavy onus on a solicitor to establish that his client is so sophisticated in matters of litigation, and so attentive to the cost implications of the litigation in question, that Rule 15 may be disregarded. We agree with the Tribunal that, on the evidence, Mr. Darby has not provided that justification here. We also agree with the Tribunal that Mr. Darby’s failure in this regard is plainly of such seriousness as to be a material breach of the Rule amounting to professional misconduct.

Failure to attend court

[28]We have referred briefly to the circumstances giving rise to and surrounding Mr. Darby’s failure to attend the taxation hearing in Caernarfon County Court on 28th May 1998 and to his last minute notification to the District Judge that he would not be attending. The picture given by the correspondence in May 1998 leading up to the taxation hearing on that date is one of frustration on the part of Mr. Darby at Mr. L’s failure to pay him outstanding disbursements and fees, in particular counsel’s fees in another matter, and of mystification on the part of Mr. L as to what the taxation hearing entailed and how his interests were to be represented at it. A useful starting point in the run-up to the hearing is the following letter from Mr. Darby to Mr. L on 21st May 1998, a week before it:

“Thanks for your fax. Unfortunately as you have ignored my request for £2,000 to cover Counsels fees I will be unable to attend the Taxation hearing on your behalf and you have no right of audience before the Judge. I asked for this in March but you have simply ignored the matter and that is completely unfair. If you can let me have £2,000 then I will attend on your behalf. … Finally and perhaps predictably you have not put forward any proposals with regard to settlement of the monies due to me. Please now do so. I am sorry if this letter seems harsh but the ball has been in your court for several months and you have completely ignored any attempt to deal with the matter.”

If you can let me have £2,000 then I will attend on your behalf. …

[29]Mr. L replied by a faxed note the same day asserting that he had not ignored Mr. Darby’s request for counsel’s fees. He stated that he had paid £1,000 on account of them, that they had both been disappointed by counsel’s performance, that he had understood that Mr. Darby would make representations to counsel’s clerk about the balance outstanding and that, since February 1996 he, Mr. L, had heard nothing from Mr. Darby about it. He asked what would happen at the taxation hearing and whether he could attend. He also stated that did not know what he owed Mr. Darby since he had never had a bill from him, only mentions of various sums ranging from £5,000 to £30,000.

[30]That fax prompted a letter in reply from Mr. Darby on the following day, 22nd May, referring to earlier correspondence in which he had complained about outstanding monies, and stating as to the imminent taxation hearing:

“The Hearing is between Solicitors and the County Court Judge only and it is up to the Solicitors to justify the costs that they claim. There is no need for you to attend and indeed unless you conduct the Taxation on your own behalf I doubt that the Judge will allow you to attend. If you do wish to conduct the Taxation on your own behalf you will have to have a fairly in depth knowledge for [sic] provisions of Order 62 of the County Court Rules. This deals with the question of Solicitors costs on Taxation for litigious matters. If you wish to attend to try to negotiate a settlement before the Taxation is conducted then obviously you can do so.” … “For the avoidance of doubt the minimum figure in respect of my costs at the present time for all matters upon which I have acted on your behalf and which are not yet billed is over £25,000. … What is the problem with the payment now of £2,000.00 in respect of unpaid Bills not related to the C matter and in respect of disbursements? If I am to attend the taxation for you i.e., following the receipt of the £2,000.00, am I to find my own accommodation?”

[31]There were further faxed exchanges in the next few days. Mr. L complained that Mr. Darby was holding him to ransom over the taxation hearing in respect of counsel’s fees in the other matter, for which he had not been billed and which Mr. Darby knew he could not settle quickly. Mr. Darby maintained in a faxed letter on the 27th May, the eve of the hearing, that he had requested the £2,000 for those fees some weeks before and that he would only attend the taxation hearing if Mr. L put him in funds for it by 5 p.m. that day.

[32]Mr. L was seemingly unable or unwilling to comply with that ultimatum, and Mr. Darby, true to it, did not attend the hearing. His letter to the Caernarfon County Court, which, as we have said, was sent by fax just after 9 a.m. on the day of the hearing, read as follows: . ... “Forgive me for writing to you personally but I do so as a courtesy to you in particular and to the Court in general. I ask that you excuse my and my firm’s attendance at the Taxation Hearing today. I have been pressing Mr. L for instructions with regard to the taxation since the Bill of Costs was lodged by the Defendant’s Solicitors. I also have to say that I have been pressing the Plaintiff for payment of an interim account but due to a complete failure to respond to these requests with the effect that I have received nothing for any work done on this case, I have had to impose a condition upon Mr. L that I would not attend the Taxation unless I could receive funds. I remained hopeful that Mr. L would provide me with both instructions to attend and the relevant funds to enable me to do so but notwithstanding exchanges of faxes during the course of the Bank Holiday weekend, and as recently as yesterday, I have received nothing further from Mr. L. Most reluctantly therefore I do not consider it appropriate to attend the taxation particularly in view of the time and distance involved and in the absence of any co-operation or courtesy from the Plaintiff himself. In such circumstances I would ordinarily have attended the Court to offer my apologies to the District Judge personally but I am sure you will appreciate that the distances involved make this an impractical proposal. I therefore do extend my personal courtesy to you and my apologies for failing to attend but I hope you understand the difficulties in which I am placed in this matter. I anticipate that Mr. L may attend himself and I further anticipate that I shall in due course lodge a Summons seeking to be removed from the record.”

[33]The Tribunal found that Mr. Darby had not acted in the best interest of Mr. L in failing to attend the taxation hearing and/or in not giving careful advice to Mr. L with regard to that hearing. It also expressed concern that, having provided Mr. L with terms of business stating that he would not be asked to pay monies on account, Mr. Darby then refused to attend this hearing for want of such payment. More generally, the Tribunal deprecated Mr. Darby’s references in letters to specific figures having been billed - such as the mention in this letter to the Court of an “interim account” - when he had drawn no bill and submitted no such account. As we have said, he rendered no account to Mr. L until 28th October 1998.

[34]Mr. Murray pointed out that, read properly, Mr. Darby’s terms of business enclosed with letter of 9th February 1996 (see paragraph 16 above) simply indicated that no payment on account was required at that stage. He drew attention to the passage towards the end of the terms of business, stating that “in the event of a payment being requested and not made then the fee earner must reserve the right to decline to act any further”. He also referred to Mr. Darby’s letter of 25th November 1997 complaining of Mr. L’s failure to respond to his requests for payments on account and, in the context of whether he would attend the taxation hearing on 28th May 1998, his letters of 21st, 22nd and 27th May 1998 making similar complaints. He submitted that, in the light of that history showing Mr. L’s failure to pay amounts due after having been given a reasonable opportunity to do so, Mr. Darby acted in the best interests of Mr. L in indicating in the letter of 22nd May that he could attend and conduct his own case at the taxation hearing.

[35]The Law Society’s case was and is that Mr. Darby had not acted in the best interests of Mr. L in demanding on short notice payment from him of monies claimed, but not billed, and in refusing to attend the taxation hearing without such payment and/or to be put in funds for it before doing so.

[36]In our view, Mr. Darby may have been justified in feeling frustrated and irritated by Mr. L’s apparent inability or reluctance to pay some monies on account in respect of the C litigation and other matters on which he, Mr. Darby, had done a considerable amount of work. On the other hand, by May 1998 he had known for a long time of Mr. L’s somewhat casual approach to such matters and of his financial difficulties. It was because of their discussion over some time of Mr. L settling the account by a transfer of property rather than payment of money that Mr. Darby had allowed their financial relationship to develop in that way. An important feature and consequence of the relationship and the expectation of a property transfer was that Mr. Darby, though increasingly requesting monies on account of his final bill, had at no stage before May 1998 considered it appropriate to present Mr. L with an interim account. For those reasons, and regardless of Mr. Darby’s justified frustration at Mr. L’s lack of response to his entreaties for some payment on account of his final bill, we agree with the Tribunal that he did not act in the best interests of Mr. L in the way in which he behaved in relation to the taxation hearing. It was wrong of him so shortly before that hearing to demand monies on account of the final bill in the C litigation and other quite separate matters, and on the eve of the hearing to be put in funds to cover his costs of attending it as a condition for doing so. It follows that his failure to attend the hearing was equally wrong and a dereliction of his duty to Mr. L and the court. This was no way to treat his client, given the state of play between them, or the court. He was still on the court record. If he felt that strongly about it, he should have applied, giving reasonable notice and reasons, to come off record. We have no hesitation in reaching the same conclusion as the Tribunal that in this respect too his conduct amounted to professional misconduct.

Improper letters

[37]We can deal together with the three allegations of writing offensive or otherwise inappropriate letters, including those involving a breach of client’s confidence, in respect of each of which Mr. Darby appeals only against the penalty. The evidential basis for them consist of four letters written by Mr. Darby in late 1998 and early 1999 as part of his campaign to recover his costs from Mr. L.

[38]The first alleged offending letter was written on 16th December 1998 to Mr. L’s bank manager, Mr. H. It had been preceded by a letter from Mr. Darby to Mr. H of 9th December 1998 in which he had informed him that Mr. and Mrs L owed him over £30,000 and asked him to release the Bank’s charge over the property in Wales to allow its transfer by Mr. L to him and thereby prevent his issue of bankruptcy proceedings against the Ls. Mr. H had replied on 11th December 1998 informing Mr. Darby that the bank was unable to discuss its customer’s affairs with a third party and that he, Mr. H, had sent a copy of Mr. Darby’s letter to Mr. and Mrs. L. Mr. Darby’s letter of 16th December 1998 in response was in the following terms:

“… I of course appreciate the principle of privilege. However, if you check with Mr. L you will find that he asked me to write to you to see if I could persuade you to allow this transaction to proceed. This suggestion was made when the terms between Mr. L and I were somewhat better than they are at the present time, so I will not be particularly surprised if he now reneges on this proposal as he has on other proposals. Nevertheless, Mr. L should know that I am absolutely adamant that due to his, in my view, disgusting behaviour on [sic] failing to comply with obligations, I will have no hesitation in causing Mr. & Mrs. L as much difficulty as possible unless they come up with some satisfactory proposals. I trust therefore that you will be able to secure some instructions from Mr. & Mrs. L, rather than merely pass on correspondence for their information.”

[39]The second and third letters were written on 9th February 1999 respectively to Mrs. G and Mr. L’s mother. The letter to Mrs. G sought payment in respect of the formation of a company in which he maintained a belief that he had been instructed jointly by Mrs. G and Mr. L. The material part of the letter was as follows:

“I think it appropriate to mention that Mr. L, who is well aware all the liabilities in respect of work carried out by my firm including this matter, has declined to discuss payment of all sums due to me and has instructed other Solicitors in that connection. It is only right that you should know, however, that I am more than prepared to discuss all of these matters with yourself, … [Mrs. L] and [Mr L] at a joint meeting. [Mr. L] will, of course, wish to have his Solicitors available at such a meeting.”

[40]The material part of the letter to Mr. L’s mother read as follows:

“I really am terribly sorry to have to trouble you but in view of … [Mr. L’s] disgusting behaviour with regard to monies owed to my firm I am having to try to recover the outstanding costs in respect of all matters in which I have been involved with him. As you may know despite numerous efforts on his behalf all of which were done against promises that he would make payments in an honest and diligent manner … [Mr. L] has now gone to other Solicitors and complained that we did not work in his best interests and I cannot, therefore, speak to him directly. I am giving you this information merely as background and by way of preamble to apologise for having to enclose the attached bill in respect of the formation of … [a company] on behalf of yourself and … Mrs. G. … Otherwise, I do trust that all is well in North Wales and again my sincere apologies for having to trouble you with this matter but as … [Mr. L] refuses to deal with matters other than through Solicitors who are obviously being as unhelpful as possible in ensuring that … [Mr. L] does not have to pay me monies correctly owed as they no doubt instructed to do.”

[41]The fourth letter, which was to Mr. L’s wife on 11th March 1999, is of a piece with the others in its abusive comment about Mr. L, his former client. It also gives colour to his letters of 9th February 1999 to Mrs. G and Mr. L’s mother, in that it referred to Mrs. G as Mr. L’s mistress:

“My personal experience of your husband leads me to the inevitable conclusion that he is somewhat devious and duplicitous in his manner and I fear therefore, he may not have told you the full extent of the problems that he and I have. … There is an outstanding claim on the C file for a sum payable in respect of legal costs of well over £25,000 and I am arranging to tax that bill. The bill, however, when taxed will have to be paid by either you or your husband and in view of his attitude I will have no hesitation in proceeding with bankruptcy against him and, if necessary, you unless the bill is paid. … There are, however, a number of other matters where I have represented both he and you, his Mother and his mistress and sadly he has seen fit to pay none of these bills so that there is a substantial amount outstanding. … I am sorry if this letter comes as something of a shock but your husband is well aware of the circumstances and his behaviour not only with me but with others in refusing to honour debts which are properly due is in my view utterly disgusting. It is for this reason that I will give no quarter in pursuing him and any other creditors of my firm until the correct monies due to me are paid in full.”

[42]The Tribunal, in its findings, expressed the view “that the content and tone” of all those letters were “inappropriate” and none of them, couched in such terms, “should ever emanate from a solicitor’s office”. It concluded that, in the writing of all of them Mr. Darby “compromised or impaired the good reputation not only of ... [himself] but also of the solicitor’s profession”. And, in relation to the various references in the letters to Mr. L’s private affairs, the subject of the fifth allegation, it observed that, despite the fact that the recipients of the letters may have known about those matters, it was still not proper for a solicitor to ventilate them with third parties. As to the letter to Mr. L’s bank manager of 16th December 1998, the Tribunal clearly found that Mr. L had not authorised him to write it, and certainly not in those terms. This is how it put that finding: “The Tribunal considers that if Mr. L might previously have authorised the writing of the letter to the bank, it was unlikely that any such previous authority remained in being at the time the letter was written and moreover Mr. L would not have been likely in any event to have authorised the terms in which it was written. To that extent the Tribunal found [the] allegation … to have been substantiated …

[43]Mr. Murray submitted that, as the Tribunal relied on the same or overlapping conduct in support of each of three allegations, its decision to fine him £3,000 in respect of each offence penalised him up to three times for the same conduct and led to a financial penalty beyond the prescribed maximum of £5,000 for such conduct when charged as a single offence.

[44]Mr. Barton submitted that the terms in which all the letters were written justified the Tribunal’s separate findings and penalties. He added that the letters, in their various contents, were insulting – and devised by Mr. Darby as a means of improper pressure to secure payment of his bill. He drew attention to the Tribunal’s findings in relation to the fifth allegation, one of breach of confidentiality, which, he said, brought the profession into particular disrepute.

[45]As Goldring J. observed in the course of Mr. Murray’s submissions in relation to the three offences, the offending content of each of the letters may have been similar or overlapping, but the culpable conduct at which each allegation was aimed was different. In our view, the Tribunal was entitled to impose a separate penalty for each and not so to limit it as to keep the overall penalty in respect of the three offences within the £5,000 maximum permissible for a single offence.

Penalty

[46]Mr. Murray had a broader complaint about the overall penalty of £15,000 in respect of all five offences – or £35,000 when account is taken of the £20,000 odd in costs that the Tribunal ordered Mr. Darby to pay. He submitted that, having regard to the nature of, and circumstances giving rise to, the misconduct and to a number of professional mitigating features, the overall financial penalty was disproportionate. Here, there had been no dishonesty, no prejudice to client’s funds, no profit flowing from the professional misconduct and no previous finding of any misconduct. He also pointed out that the figure of £35,000 was not far short of Mr. Darby’s gross annual income at the material time - and at present - of £40,000, which, again, he said, made it disproportionate.

[47]The Tribunal clearly took a serious view of all five allegations, both individually and cumulatively, whilst at the same time acknowledging and implicitly contrasting Mr. Darby’s “extraordinary” behaviour to Mr. L with his otherwise apparently high standards of practice. This is what it said, in addition to the passage that we have quoted (in paragraph 21 above) about Mr. L’s insufficient sophistication in matters of litigation to exempt Mr. Darby from complying with Rule 15:

“The Tribunal did not find that the Respondent had been guilty of dishonesty. There had been no misappropriation of clients funds. The Respondent was responsible for ten staff and had successfully obtained a franchise from the Legal Services Commission in two areas of work. That spoke highly of the way in which his office was organised. The Respondent told the Tribunal that he had received a visit from the Law Society’s Investigation Accountant and his books of account had been given a clean bill of health. The Tribunal finds it extraordinary that given these factors this Respondent should have behaved as he did in connection with the affairs of Mr. L. The Tribunal concludes that the friendship formed between Mr. L and the Respondent, and the subsequent souring of that friendship, clouded the Respondent’s judgement. On the face of it, it appeared to the Tribunal that Mr. L was very happy with the Respondent’s legal services, advice and assistance provided he did not have to meet the costs. It was clear that Mr. L did not always answer letters or deal with matters with which the Respondent or his firm required him to deal. … The Tribunal consider the Respondent’s failures to be serious and conclude that it would be right to impose a fine upon the Respondent of £3,000.00 in respect of each of the five allegations found to have been substantiated. ….”

[48]On the question of penalty generally, the Tribunal and this Court should keep in mind that they are considering solicitors’ professional misconduct and also the appropriate penalty for it against the high standards that the profession sets for itself, not whether the conduct in question is passable. Those high standards and their maintenance are vital to the interests of the profession, the members of the public whom it serves and the integrity of the legal system. So much is plain from the following familiar words of Sir Thomas Bingham MR, as he then was, in Bolton v. Law Society

[1994] 1 WLR 512

, CA, at 518A-519B:

“It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness…. Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty … In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. … 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. … 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. …. ”

Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. …”

[49]This Court should also bear in mind the proposition, re-affirmed and characterised as a “statement of principle” by Sir Thomas Bingham in that case, at 516F-H, that it requires a very strong case to justify interference by this Court in a penalty imposed by the Tribunal, since its members are best qualified to weigh the seriousness of the professional misconduct before them. In our view, that principle survives, at least as a canon of good sense in the absence of countervailing circumstances; see per Lord Cooke of Thorndon, giving the judgment of the Board in Preiss v. The General Dental Council, at para.27.

[50]Here, the Tribunal’s findings, looked at overall, were that Mr. Darby had compromised his integrity, his independence and his and his profession’s reputation, all in breach of Rule 1 of the Solicitors’ Practice Rules, which rule, as Mr. Barton observed, is the corner-stone of every solicitor’s practice. His conduct, though not dishonest in a criminal or conventional sense, was touched by deceptive behaviour in his assertions of unpaid bills, when he had not rendered any. And his disregard of the interests of his client, Mr. L, notwithstanding the difficulties he had with him, was of great seriousness. It lay, first, in exposing him without adequate and timely advice and warning to a continuation of expensive litigation in which his costs were likely to and did overtake the amount in issue, with little or no chance of their recovery whatever the outcome. Second, his last minute refusal and failure, without adequate warning to the court, to attend the taxation hearing were highly unprofessional and could not be justified by Mr. L’s non-payment of monies for which he had not rendered any bill. And, third, the improper letters which, in their various contents, gave rise to the last three allegations, were egregious violations of his professional responsibility to his client, not only in their breach of client confidentiality, but in their offensive and menacing nature. As the Tribunal put it, they were letters that should not have emanated from a solicitor’s office.

[51]As we have said, the maximum fine that the Tribunal could have imposed in respect of each of the offences was £5,000. In fixing on a fine of £3,000 for each, it clearly did not attempt any fine-tuning of their relative seriousness one to another, but settled on a total figure of £15,000 as a mark of its view of his overall culpability. In our view, there is nothing disproportionate in that outcome for professional misconduct of such seriousness, even though the misconduct was directed at just one client and he had otherwise a good professional record. Matters of personal mitigation, as Sir Thomas Bingham indicated in Bolton v. Law Society, have less importance in these matters than the need to mark the determination of the profession to maintain the high standards that it has set for itself.

[52]Mr. Murray also sought to challenge the Tribunal’s award of costs against Mr. Darby, subsequently assessed in the sum of £19,586.30. He relied on the fact that the Tribunal acquitted Mr. Darby of a sixth allegation of professional misconduct, one of a conflict of interest between him and Mr. L in relation to the proposal of a property transfer in lieu of his outstanding costs and fees. Mr. Murray suggested that the Tribunal should, therefore, have abated the costs order to reflect the Law Society’s partial, i.e. five-sixths, success.

[53]In our view, there is no basis upon which this Court should interfere with the award of costs. The 1974 Act, in section 47(2)(i), and the Solicitors Disciplinary Proceedings Rules 1994, in paragraph 22, empower the Tribunal to make such order for costs as it thinks fit. Mr. Darby made no answer or concession of any kind in relation to any of the allegations he faced until a day or so before the Tribunal hearing, in the form of his counsel’s written submissions. It does not follow from the fact that the Tribunal acquitted Mr. Darby on one of the six allegations that a proper exercise of its discretion required it to abate the costs order correspondingly. Much of the background and subject matter of that allegation featured in the evidence and arguments going to the other allegations and cannot have added significantly to the costs of the proceedings.

[54]For those reasons, we have dismissed the appeal in its entirety. __________________