Pybus v Law Society [2003] EWHC 2528 (Admin)

Case No CO/4425/02[2003] EWHC 2528 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 14 October 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE BROOKE
MR JUSTICE SULLIVAN
Between
PYBUSClaimant-v-
Between
THE LAW SOCIETYDefendant
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 PYBUS APPEARED IN PERSON for in personMR PH CADMAN (SOLICITOR ADVOCATE)(instructed by Penningtons, Bucklesbuoy Hse, 83 Cannon Street, EC4) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an appeal against an order of the Solicitors Disciplinary Tribunal that the appellant should be struck off the Roll of Solicitors. The appeal is against both conviction and sentence. The Tribunal's order was dated and filed with the Law Society on 6th June 2002. The Tribunal's findings dated 22nd August 2002 were filed with the Law Society on 28th August. Rules of the Supreme Court Order 106 deals with proceedings in relation to solicitors. Rule 12(3) provides as follows:
"The appellant's notice must be filed at the court within 14 days after the date on which a statement of the tribunal's findings was filed pursuant to section 48(1)."
The reference there is to section 48(1) of the Solicitors Act 1974.[2]Section 47 of the 1974 Act makes provision for the Tribunal to order, inter alia, the striking off the Roll of the name of a solicitor. Section 48(1) is as follows:
"An order of the Tribunal shall be filed with the Society, and a statement of the Tribunal's findings, signed by the chairman or by some other member of the Tribunal authorised by him in that behalf, shall either be prefaced to the order or added to the file containing the order as soon as may be after the order has been made."
Section 49 deals with appeals from the Tribunal. An appeal against striking off may be made to the High Court.[3]The appellant's notice in these proceedings was not filed within 14 days after 28th August 2002. It was filed on 25th September. This is not the first occasion on which the appellant has failed to comply with the time limit imposed by rule 12(3).[4]The appellant has been before the Disciplinary Tribunal on two previous occasions. In 1993 he was fined £750 for failing to deliver up clients' papers and failing to render an account within a reasonable period of the determination of his retainer. In February 2000 he was fined £6,000 for failing to deliver a file of papers to clients; failing to reply to correspondence and telephone calls from the Office for the Supervision of Solicitors (OSS), and failing to comply with their decision relating to inadequate professional services.[5]The appellant attempted to appeal against both of those earlier decisions. In each case his appeal was filed out of time. In each case his application for permission to appeal out of time was refused by the court. On the second of those occasions, on 20th November 2001, Rose LJ, having noted that the appeal had been filed four weeks out of time said in paragraphs 5 to 7 of his judgment, with which Bell and Pitchford JJ agreed:
"It is, to my mind, of significance in this case that, on 10th October 1995, Beldam LJ and Buxton J gave judgment in a case involving Mr Pybus. That was a case in which a disciplinary tribunal had, in November 1993, made findings against Mr Pybus which gave rise to conduct unbefitting the solicitors' profession. The circumstances of the then conduct are immaterial. What is material is that, on that occasion, Mr Pybus sought the leave of the Divisional Court to appeal out of time against the tribunal's decision, he having failed to lodge a notice of appeal until some days after the 14­day period then provided within which to appeal had elapsed. In the course of giving judgment, Beldam LJ, at page 6D of the transcript, in a passage which cannot fail to have been known to Mr Pybus, whether or not he was present at the time that the judgment was delivered, said: "...the time limits for giving notice of appeal were, some years ago, abridged from 28 days to 14 days, with the obvious object of ensuring that the tribunal's jurisdiction to maintain public confidence in the proper and efficient discharge of the solicitors' duty was able to be upheld within a reasonable time."
Buxton J said (at 7G):
"That those rules should be punctiliously observed is not only reasonable in the public interest but also reasonable in the interests of applicants, bearing in mind that they are themselves solicitors and, as this case has shown, are given full assistance and information by the tribunal as to the limits involved. Those, in my judgment, are principles that it is important in the public interest to uphold."
This is, therefore, the third occasion on which the appellant has filed a notice of appeal late. When asked for an explanation, he produced a lengthy chronology of what were said to be "relevant" events beginning on 11th June and ending on 25th September. Most of the events were not relevant since they predated 28th August. The appellant explained that he was attempting, he said upon counsel's advice, to challenge the order dated 6th June. As a letter from the Administrative Court Office dated 27th August explains in some detail, the appellant consistently failed to provide the court with a proper notice of appeal or with proper documentation in relation to his claim for fee exemption.[6]The chronology does, however, reveal that the appellant was doing his wholly ineffectual best to appeal against the order striking him off the Roll. Since this was his third appeal under section 49, it might be said that there was no possible excuse for any muddle on his part. But upon the basis that there may have been a misunderstanding, and we are here concerned with the extreme penalty of striking the appellant off the Roll, I consider it sensible to examine whether a strict application of the time limit in rule 12(3) would shut out an otherwise meritorious appeal.[7]I say at the outset that having considered the voluminous skeleton argument produced by the appellant, and having listened carefully to his oral submissions, I am satisfied that his appeal is devoid of merit. This court's role in considering appeals from the Disciplinary Tribunal was recently explained by Rose LJ in Langford v Law Society (9th December 2002) [2002] EWHC Admin 2802. Having referred to the relevant authorities, Bolton v Law Society, Ghosh v General Medical Council and MacMahon v Council of the Law Society of Scotland, Rose LJ cited from the speech of Lord Millett in Ghosh as follows:
"The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not called makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes. It is true that the Board's power of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals again sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past."
Lord Millett had referred to Evans v General Medical Council, and had said:
"For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances. The council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration."
Rose LJ mentioned that there were passages to similar effect in the Privy Council's judgment in Preiss v the General Dental Council, and in a Scottish decision MacMahon v Council of the Law Society of Scotland upon which Mr Pybus relied in his submissions. Rose LJ said that he proposed to approach the determination of the appeal before him in accordance with the tests indicated in those authorities. I, for my part, would do likewise.[8]In seeking to persuade this court that error has occurred in this case, the appellant referred to paragraph 38 of the Divisional Court's decision in the case of Jiwaji (2nd February 2000). The Lord Chief Justice, with whom Scott Baker J (as he then was) and Klevan J agreed, said:
"The first of those grounds relates to the reasons of the Tribunal. Section 48 of the Solicitors Act as amended requires the Tribunal to state its findings and it is common ground that the decision of the Tribunal should contain adequate reasons. The Tribunal's duty is to make clear, at least in broad outline, what facts are found to be proved or unproved, and why the Tribunal found the allegations to be established or not established. The minimum requirement is that the solicitor who is the subject of adverse findings and any professional penalty should know why the findings have been made and why the penalty has been imposed."
[9]The principal contention advanced by the appellant as to why this duty to give reasons had not been complied with by the Tribunal in the present instance, appeared to be that there was a difference between the observations made by the Chairman at the conclusion of the proceedings and the Tribunal's detailed written findings. At the conclusion of the proceedings the Chairman made a short statement, part of which is as follows:
"We find allegations (i), (ii) and (iii) all proved. We have no doubt at all that the Solicitors' Account Rules have been breached by the respondent and we do not accept what is put forward on his behalf by Mr Stirling on this allegation. The protection of the public is important and these breaches of accounts rules cannot be regarded as 'mistakes'. They are serious matters. The accounts rules have a serious purpose and they have not been kept to. Neither have they been put right within anything like a proper time. We have to say that having seen Mr Pybus in the witness box that he was not particularly impressive as a witness. Allegation number (ii) was admitted. We have heard what has been said in mitigation on that point. Allegation number (iii), as I have said, we find proved in this case. Having reached that decision and found these matters proved, I have to ask the Clerk if there are any previous appearances."
The clerk then dealt with the appellant's previous appearances before the Tribunal, and Mr Stirling (counsel on behalf of the appellant) was asked whether he wanted to say anything further in mitigation before the Tribunal considered sentence.[10]The appellant contrasts those short observations of the Chairman with the Tribunal's written findings. As I have mentioned, the findings are dated 22nd August and they are some 16 pages long. By way of introduction the Tribunal set out the allegations that had been made against the appellant. He had been guilty of conduct unbefitting a solicitor in each of the following particulars, namely:
"(i) that his books of account were not in compliance with the Solicitors' Accounts Rules; (ii) that he failed to promptly comply with a decision of inadequate professional services dated 16th September 1994 (confirmed on appeal on 21st December 1999); (iii) that he failed to comply with the resolution of the Adjudicator dated 15th June 2000, affirmed by the Appeals Committee on 31st January 2001."
[11]After dealing with various preliminary procedural matters, the Tribunal then set out what it described as the facts in paragraphs 1 to 34. It is plain from the way in which the findings are set out that those were the facts as they were alleged to be by the investigation and compliance officer appointed by the OSS, Mr Rowson.[12]Having recited those matters, the Tribunal's findings then recorded the submissions of the applicant. Under that subheading the oral evidence of Mr Rowson was summarised. The submissions of the applicant, together with Mr Rowson's submissions, occupy paragraphs 35 to 60 of the findings. The submissions of the respondent, the appellant in the present appeal, begin on paragraph 61. They contain the appellant's oral evidence, which commences on paragraph 62 and continues until paragraph 93.[13]Between paragraphs 94 and 109 further submissions on behalf of the respondent (the appellant) are summarised. The findings then set out submissions of the applicant in relation to matters of law, and in paragraphs 115 to 120 submissions of the respondent in mitigation are set out. Against that background, of all the evidence and submissions, the Tribunal set out its own findings between paragraphs 121 and 129. So far as material, those findings were as follows:
"The Tribunal found the allegations to have been substantiated. Allegation (ii) was admitted. In relation to allegation (i) the Respondent's own accountant's report agreed that there had been a cash shortage. The Tribunal could not see any meaningful defence to the charge that the books had not been in compliance with the Solicitors' Accounts Rules. The breaches were detailed in the Rule 4 Statement and in the report of Mr Rowson. There had been no proper defence to allegation (iii) the 'defence' being rather mitigation but mitigation which did not go to the heart of the allegation. The Tribunal had not found the Respondent to be an impressive witness. His evidence had been evasive and unsatisfactory. The Tribunal having carefully considered the oral evidence, the documentation and the submissions found all the allegations proved. A failure to comply with decisions of the regulatory body was clearly conduct unbefitting a solicitor. In relation to the breaches of the Solicitors' Accounts Rules, the Rules were there for the protection of the public. The breaches could not be regarded as just 'mistakes.' The breaches of the Rules in respect of which the Tribunal had found the Respondent's explanations unsatisfactory, did amount to conduct unbefitting a solicitor."
The Tribunal then noted the previous appearances of the respondent before the Tribunal. "At a hearing on 11th November 1993 the following allegations were substantiated against the Respondent namely that he had been guilty of conduct unbefitting a solicitor in each of the following respects: (a) failed to deliver up papers to a firm of solicitors within a reasonable time of a proper request being made; (b) failed to render an account to clients within a reasonable time of the determination of his retainer. The Tribunal was satisfied with the basic good character of the Respondent and appreciated that he was deeply affected at having to appear before them today. There was no doubt that the Respondent had allowed the entrenched position he had adopted to get out of hand and he seemed incapable of appreciating the other point of view. Nevertheless, they accepted that this was in part due to a misinterpretation of The Law Society's earlier advice and in part due to his anxiety about his own health." The findings then record the earlier Tribunal's consideration of the appropriate penalty. In paragraph 124 there is reference to the hearing on 3rd February 2000:
"At a hearing on 3rd February 2000 the following allegations were substantiated against the Respondent namely that he had been guilty of conduct unbefitting a solicitor in each of the following particulars: (i) failed to deliver to a client (or his solicitor) all the papers and property to which that client was entitled ... (ii)failed to respond promptly to correspondence and telephone calls from the Office for the Supervision of Solicitors; (iii)failed to comply with the decision of Inadequate Professional Services dated 19th August 1998 (confirmed on appeal on 20th January 1999). The Tribunal in February 2000 considered that the allegations before it were perhaps not at the most serious end of the scale: Having said that the Tribunal considered that the Respondent's behaviour has been a disgrace to his profession. He had made disingenuous attempts to have the substantive hearing adjourned and had lodged with the Tribunal a statement which is unhelpful, confusing and obfuscatory. The Tribunal hope that the respondent will in future moderate his wholly inappropriate attitude to his professional body and to this Tribunal. A solicitor has a duty to ensure that papers to which a client was entitled are promptly delivered to that client when he requests them. A solicitor had a professional duty to respond promptly to correspondence and telephone calls addressed to him by his own professional body and it was a serious matter if a solicitor did not comply with a decision and direction made by his own professional body. The Tribunal imposed a fine of £6,000 upon the Respondent together with costs and made an order that the Inadequate Professional Service Direction be treated for the purposes of enforcement as if it was an Order of the High Court. At the hearing on 6th June 2002 the Tribunal noted that this was the Respondent's third appearance before the Tribunal. The Tribunal noted what had been said about the Respondent at the hearing in February 2000 by the Tribunal. At the present hearing it had been proved against the Respondent that he had taken costs without proper authority and had a shortage on client account. He had not complied with directions of his regulatory body. The Tribunal had been asked to consider the 'special considerations' which applied to the Respondent but the Tribunal had been unable to see that there had been any special mitigating factors which reduced the Respondent's responsibility for his conduct. The Solicitor Accounts Rules were there for the protection of the public. The Respondent had not complied with those Rules and even now did not appear to accept the seriousness of that failure. Even without the Respondent's two previous appearances before the Tribunal the Tribunal would have considered a striking off order in relation to the present allegations. The Tribunal had not been persuaded by the Respondent's evidence and nothing in the submissions in mitigation were such as to make the Tribunal draw back from that penalty. The protection of the public was paramount and the Respondent had fallen lamentably short of the standards required of a solicitor in relation to the stewardship of his client's funds and in relation to his duties towards his professional body."
[14]The appellant produced a detailed analysis of the differences between these findings and what was said by the Chairman during the course of the proceedings. He further complained, as I understand it, that the findings were drafted by the secretariat and then placed before the Chairman for his approval.[15]In my judgment, these criticisms are wholly misconceived. I have already referred to section 48 of the 1974 Act. It is plain from the terms of section 48(1) that the statutory scheme envisages that an order will be made and, that so soon as may be after the order has been made, the Tribunal's more detailed findings will be filed. That is amplified in subordinate legislation, the Solicitors (Disciplinary Proceedings) Rules 1994, rule 23 of which provides as follows:
"Upon the conclusion of the hearing or determination of any Application the Tribunal may announce its Order while still sitting in which case the Order may be filed immediately with the Society, and the Findings shall be filed later as if judgment had been reserved, or it may reserve judgment in which case it shall announce its Findings and Order in public at a later date notice whereof shall be given to the parties by the Clerk. The Clerk shall on the day of pronouncement file the Order, or the Findings, or both, with the Society. The Clerk shall supply a copy of the Findings and Order to each party to the proceedings and to any other person present at the pronouncement who requests one."
It will be remembered that by virtue of section 48(1) the finings may be signed by the Chairman or by another member of the Tribunal authorised in that behalf by the Chairman.[16]Thus the statutory scheme clearly envisages that an order may be announced at the conclusion of the hearing. If an order is announced at the conclusion of proceedings, then no doubt it will often be convenient for the Chairman to give a very brief indication of the reasons for making the order, but that indication will be given against the background that all parties will know that in due course the Tribunal will be setting out the full detail of its reasoning in written findings, which will be filed with the Law Society.[17]It is precisely because the statutory scheme envisages the subsequent filing of more detailed findings that the 14 day period for appealing runs from the filing of the findings rather than the filing of the order itself, for which no, or very brief, reasons may have been given at the conclusion of the proceedings.[18]One specific complaint suffices to give a flavour of the appellant's complaints under this head, as noted above at the conclusion of the proceedings the Chairman had said "that having seen Mr Pybus in the witness box .... he was not particularly impressive as a witness." Mr Pybus contrasts this with the statement in paragraph 121 of the Tribunal's findings:
"The Tribunal had not found the Respondent to be an impressive witness. His evidence had been evasive and unsatisfactory."
The appellant submitted that there was a clear difference between these findings and that this showed that there was no "nexus" between what had happened at the hearing and the Tribunal's written findings.[19]I do not agree. All the written findings do, in this particular respect, is to explain why the Tribunal had not found the appellant to be an impressive witness. It was because his evidence had been, in the Tribunal's view, evasive and unsatisfactory. Having read the transcript, I am in no doubt that the Tribunal was fully entitled to reach that view.[20]Before this court the appellant was invited to explain why he was appealing against conviction upon charges (i) and (iii); he had a admitted charge (ii). Having heard the appellant's submissions, I am satisfied that he is quite unable to distinguish between matters that went to mitigation and material that might have supported the contention that no offence had been committed. Notwithstanding the submissions that he made to us in respect of allegation (i), that his books of account were not in compliance with the Solicitors' Accounts Rules, it is plain that whether or not that was so turned on whether the Tribunal accepted Mr Rowson's evidence or preferred the evidence of the appellant.[21]For the reasons it gave, the Tribunal was entitled to accept Mr Rowson's evidence. Indeed if one looks at the appellant's evidence and the submissions that were advanced on his behalf, and we have been provided with a transcript of the proceedings, it is plain that there was indeed no meaningful defence to the charge that the appellant's books had not been kept in compliance with the Solicitors' Accounts Rules. The appellant was concerned to explain that in his view the breaches were not particularly serious and that as soon as he discovered them he had tried to put them right. Those submissions go to mitigation.[22]Having heard the appellant's explanation of these matters, one can well understand how the Tribunal came to the view, not merely that the appellant had not complied with the Rules, but that even now he did not appear to accept the seriousness of that failure. The claimant appears to be genuinely unable to understand that failure to comply with the Rules is a serious matter, and that while there might be excuses which go to mitigation, they do not amount to a defence to the allegation that he had broken the Rules.[23]Turning to the third allegation that the appellant had failed to comply with the resolution of the adjudicator dated 15th June 2000. Again, the appellant appears to be unable to distinguish between matters going to conviction and matters going to mitigation. It is plain that the adjudicator's resolution was not complied with. The appellant's explanation for this failure is that there had been an intervention into his practice and shortly before the intervention, in May 2000, he had been made bankrupt. Thus he says he was unable to comply with what the Adjudicator required. As the Tribunal rightly observed, there was "no proper defence to allegation (iii), the defence being rather mitigation". The Tribunal was entitled to conclude that the mitigation advanced did not go to the heart of the matter. It is plain, therefore, that there is no substance whatsoever in the appeal against conviction.[24]That leaves the appeal against the penalty imposed. In appeals against sentence the role of this court is described in the judgment of Rose LJ in Langford. We should pay due respect to the Tribunal's expertise and give its decision such weight as we think appropriate without being unduly differential to the Tribunal.[25]On the facts of this case, I can see no good reason for not giving very considerable weight to the Tribunal's conclusions. It heard the appellant give evidence. It heard his explanation for what had occurred. It was in a particularly good position to balance the need for the protection of the public against the interests of this particular solicitor.[26]The appellant complained that the Tribunal was wrong to take account of what was said by the previous Tribunal on the second occasion on which he had appeared before the Tribunal in February 2000. I did not understand the appellant to be contending that, in principle, previous appearances before the Tribunal were irrelevant. Had such a submission been made, I would have had no hesitation in rejecting it in any event. Thus the Tribunal was entitled to have regard to the appellant's previous appearances in 1993 and 2000. The appellant took issue with what had been said in February 2000, namely that he had made disingenuous attempts to have the substantive hearing adjourned, and had lodged with the Tribunal a statement which was unhelpful, confusing and obfuscatory. He said that he had not been present at the February 2000 hearing, and he had never accepted the Tribunal's conclusion as to the reasons for his absence. He was, as at June 2002, seeking permission to appeal to the Court of Appeal against the Divisional Court's rejection of his appeal against the decision in 2000.[27]He submitted that in those circumstances, given that an application for permission to appeal was outstanding, the Tribunal should not have considered what had occurred in February 2000. I do not agree. If counsel then representing the appellant had thought that there was any force in the proposition that there was a good chance of permission being given to appeal to the Court of Appeal so that the matter might be reconsidered, then he could and should have asked for sentencing to be adjourned until that matter was determined. No such application was made. In my judgment, therefore, no complaint can be made about that matter now. In any event, the point is entirely academic and perhaps gives some flavour of the appellant's approach to this matter because by the time the Tribunal's findings came to be filed on 28th August a single judge of the Court of Appeal had refused permission to appeal.[28]Thus, in my judgment, it is plain that in considering the question of sentence, the Tribunal had regard to the mitigation advanced on the appellant's behalf. It had regard, as it was entitled to do, to his previous appearances before the Tribunal. It considered the seriousness of the instant offences and, in particular, it considered the appellant's response to them. It was of particular consequence that the appellant appeared to be unable to accept the seriousness of his failures: to comply with the Rules and to comply with the resolution of the adjudicator.[29]While I appreciate that the Tribunal imposed the extreme penalty, in my judgment that penalty was well within the ambit of its sentencing discretion upon the facts of this particular case and was not disproportionate. For these reasons, I am satisfied that there is no merit in the appeal against sentence.[30]Having considered the merits, for my part, I consider that the appropriate course would be to give permission to appeal out of time but only for the purpose of dismissing the substantive appeal.

LORD JUSTICE BROOKE: I agree. So before the question of the appeal being out of time is concerned, Mr Pybus did not set out in his appellant's notice any reasons for extending time, but he has provided a chronology of relevant events. As Sullivan J has said, the crucial time is the time when the findings and order were issued in the Disciplinary Tribunal, because under Rules of Supreme Court order 106, rule 12.3, which is scheduled to the Civil Procedure Rules, the appellant's notice must be filed at the court within 14 days after the date on which the statement of the Tribunal's finding was filed pursuant to section 48(1) of the Act.

[32]What appears to have gone wrong was that, for reasons which are wholly unclear to the court from the information that Mr Pybus has supplied, it took quite a long time for him to obtain an exemption certificate during the month of September. He said that between 11th and 14th September he was dealing with further inquiries from the fees office. But further to a letter, which we have not got, he blames the fees office in September for slowness in handling the matter. This may be one of those occasions on which more attention needs to be paid to the detail of the rule because, on the material that he has put before the court, it appears that he filed his appellant's notice at the court but the court refused to issue it without a fees exemption certificate. However that may be, I am satisfied that in all the circumstances time should be extended, if it needs to be extended. I entirely agree with Sullivan J on his reasons for dismissing the appeal both against conviction and sentence.[33]MR CADMAN: There is an application for costs to be subject to assessment if not agreed, whether those that instruct me will ever get any costs is a different matter.

MR JUSTICE SULLIVAN: Detailed assessment, there has not been a summary assessment?

[35]MR CADMAN: There has not been a summary assessment, we will enter negotiations such as we can.

LORD JUSTICE BROOKE: Mr Pybus, the Law Society is asking for an order for their costs against you.

[37]MR PYBUS: I cannot resist that.

LORD JUSTICE BROOKE: Very well, we make the order.