Dhillon v Law Society [2003] EWHC 2757 (Admin)

Case No CO/1304/2003[2003] EWHC 2757 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 6th November 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE KENNEDY
MR JUSTICE ROYCE
Between
IQBAL KAUR DHILLONClaimant-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 J BADENOCH QC (instructed by Dhillon & Co Solicitors) appeared for CLAIMANTMR J GOODWIN (instructed by Lonsdales Solicitors) appeared for DEFENDANT
J U D G M E N TThursday, 6th November 2003

LORD JUSTICE KENNEDY:

[1]This is a solicitor's appeal from a decision of the Solicitors Disciplinary Tribunal which, on 7th January 2003, heard an allegation that the solicitor had been guilty of conduct unbefitting a solicitor in failing to comply with a first instance decision of the Client Relations Officer, of the Office for the Supervision of Solicitors, dated 6th November 2001, which contained a direction that her firm pay £350 compensation to a client. The Solicitors Disciplinary Tribunal found the allegation to have been substantiated and ordered that the solicitor pay a fine of £3,500 and the costs of the application and of the inquiry.[2]In her grounds of appeal to this court the solicitor challenges both the findings and the penalty. The appellant, Iqbal Kaur Dhillon, is now 42 years of age and was admitted as a solicitor in 1988. At material times, that is to say from 2001 onwards, she was practising as a sole principal in the firm of Dhillon and Co Solicitors at 37 Clarence Street, Southend-on-Sea, and three other offices in the south east of England.[3]One of the firm's clients, a Mrs D, complained about the service she had received. The solicitor had delayed in submitting a marriage visa application to the Home Office and had failed to respond to telephone calls. The complaint was considered by the Client Relations Office and on 6th November 2001 the adjudicator directed that Dhillon and Co pay to Mrs D the £350 compensation to which I have already referred.[4]That formal decision was sent to the parties under cover of a letter from the customer services officer, dated 16th November 2001. Each side, that is to say Mrs D and the firm, had seven days in which to seek a review, after which the decision became final. Neither side did ask for a review, so on 29th November 2001 the customer relations officer wrote to the solicitor, Miss Dhillon, again, asking her to confirm, within seven days, that she had complied with the decision. She did not reply to that letter, nor did she reply in writing to a further letter of 7th December 2001 which again asked her to confirm that she had complied with the decision.[5]On 14th December 2001 the team leader in the Client Relations Office wrote a longer letter in which it was said that as she had not complied with the adjudicator's decision consideration was being given to referring her conduct to the Solicitors Disciplinary Tribunal, and to obtaining an order under paragraph 5 of schedule 1A of the Solicitors Act 1974, directing that for the purposes of enforcement the adjudicator's decision be as if it were contained in an order made by the High Court.[6]Miss Dhillon was given until 11th January 2002 to comply with the adjudicator's order, so as to avoid any other step being taken. She again did not respond. So on 28th May 2002 Mr Stuart Turner was instructed by the Office for the Supervision of Solicitors to issue disciplinary proceedings against Miss Dhillon, requiring her to answer the allegations contained in a statement served pursuant to Rule 4(2). That statement set out the history as I have recited it thus far.[7]The hearing before the Solicitors Disciplinary Tribunal was fixed for 7th January 2003. On 2nd January 2003 Mr Wallace, the husband of Miss Dhillon, visited Mrs D, the original complainant, at her home in Colchester and paid her £400 in cash, being the £350 ordered to be paid and £50 to represent interest because the payment had been long delayed. Mrs D signed a receipt and also wrote to the Law Society reminding the Society that she had given notice of her change of address in September 2001.[8]At the hearing Mr Turner presented the case on the basis of the documents to which I have referred, other than those dated January 2003. Mr Friend, for Miss Dhillon, then submitted that there was no case to answer. His instructions were that his client had paid as ordered on 16th November 2001 and there was no evidence before the Tribunal of non payment.[9]The Tribunal considered there was a sufficient implication of non payment from the papers to constitute a case to answer and so ruled. Miss Dhillon then gave evidence about the pressures of practice, but said in particular that on 16th November 2001 she had gone with her husband and a friend of his, Mr Goody, to 7 Rose Court, Colchester, which was the address of Mrs D as recorded in Miss Dhillon's files, and had put through the door a cheque for £350. That assertion on her part was supported by the evidence of the two men.[10]Miss Dhillon accepted that she had not responded in writing to the letters from the Law Society, but she said that she had telephoned on 12th December 2001 and left a message with Miss Breukelman to pass to Mrs Parfitt, the writer of all of the letters up to that date, telling Mrs Parfitt what she had done on 16th November 2001. Miss Dhillon produced a telephone attendance note in respect of that telephone call. It was a little strange, on the face of it, because it referred to a visit on 16th November 2002 but the note is dated 12th December 2001.[11]She accepted that £350 had not been taken from her account so that no effective payment had been made, and she was unable to produce a cheque stub or any further written evidence of having written a cheque as she asserted. It was pointed out that on the face of the correspondence a payment on 16th November 2001 would have been premature because that was the date on which the decision was communicated to the parties. In the normal course of post they would not even have received the decision until the following day, although it was in fact made some days earlier.[12]The Tribunal found that no effective payment was made until 2nd January 2003, but it accepted that Miss Dhillon did make and I quote, "Some sort of irrational, informal and unrecorded attempt to pay."[13]It did not make any specific finding as to the alleged telephone call on 12th December 2001, but was critical of Miss Dhillon for not keeping the Law Society informed, and of the Law Society for not advising her of her former client's change of address of which only the Society knew. The decision ends:
"To the extent that the Respondent did not handle this matter properly and did not keep her professional body fully informed and in particular largely ignored letters addressed to her, the Respondent was in this matter the author of her own misfortune. "
The Tribunal has concluded that the Respondent's failures can be met with the imposition of a financial penalty which the Tribunal has felt able to set at a figure less than the maximum open to it in view of the mitigating circumstances." Then it went on to deal with the question of costs.[14]A number of points are made on behalf of the appellant by Mr Badenoch QC before us. The first of which is that the Tribunal should, he submits, have accepted that there was no case to answer when that submission was made by the solicitor who was appearing for the appellant before the Disciplinary Tribunal.[15]Secondly, Mr Badenoch submits that the Tribunal should not have found conduct unbefitting a solicitor or should have imposed only a nominal penalty for a number of reasons. First, because she had tried to make payment on 16th November 2001 and the Tribunal so found. The attempt was, as it turned out, not made at the correct address, but that was only because the Law Society had not advised her of the correct address. She did not, it is true, tell the Law Society that she had made that attempt until 12th December when she said so on the telephone. She did not answer letters in the way to which I have already referred, and she did not, it has to be accepted, check her own bank statements to see whether any cheque had been cleared. Had she done so she would, of course, have discovered that there had been no clearance.[16]Mr Badenoch goes on to submit that the Tribunal did not reject her evidence that she had made the telephone call on 12th December 2001, and in consequence, having recited her evidence to that effect, we, in this court, must assume that the Tribunal was prepared to accept that part of her case. Mr Goodwin, for the Law Society before us, does not, in the end, dispute that proposition.[17]Mr Badenoch further submits, and makes it very much in the forefront of his case, that before the Tribunal far too much stress was laid upon the failure to answer correspondence when that was not in fact the substance of the charge, although it was clearly set out in the Rule 4 statement. As he would put it, the Tribunal was distracted by that letter when what it was really considering was whether or not payment of a relatively small sum had been made.[18]He therefore submits that, in the end, the Tribunal, having been distracted, attached too much weight to the non answering of letters and failed, for example, to give sufficient credit to the appellant for the fact that £400 had been paid very shortly before the hearing. That was recognised, but insufficient weight was given to it.[19]Mr Goodwin, for the respondent, accepts in this court that the submission made at the end of the case being presented by Mr Turner to the Tribunal was a good submission, and that in fact it is essential for the Office for the Supervision of Solicitors, when presenting a case such as this, to prove one way or another, that payment has not been made as part of its case. It can easily be done, it can probably most easily be done by way of an admission from the solicitor against whom the proceedings are being brought. But if that course be not available then the necessary information can easily be obtained in almost every case from the person who is supposed to be the beneficiary of the payment. No doubt a statement or in this case a letter from the person concerned could have been placed before the Tribunal to show that there had been no payment. It is, in my judgment, surprising that that course was not taken.[20]At this juncture Mr Goodwin submits that is really water under the bridge. The reality is that if the Tribunal had dealt with the matter, as it should have done, at the time when the submission was made, a number of courses might have been followed. There could have been an adjournment in order to enable the Office for the Supervision of Solicitors to produce the necessary material, or, more likely in the circumstances, Mr Friend, advising Miss Dhillon, would have advised her to make the necessary admission in order to avoid the expenditure of further costs.[21]At this stage we know that when she gave evidence she did in fact make it clear that there had been no effective payment prior to 2nd January 2003. In those circumstances it would not be appropriate in this court now to base a finding on the inadequate ruling made by the Tribunal at the close of case presented to it on behalf of the Office for the Supervision of Solicitors.[22]That said, Mr Goodwin goes on to submit that the Tribunal was right, at the end of the case, to find the offence proved. There had been no effective payment of the £350, not only within the 7 days permitted by the original decision, but for more than a year thereafter. It is important that when penalties such as this are imposed that solicitors should comply with them. This solicitor was given ample opportunity to comply, and was reminded, and even accepting that a telephone call was made in December by her to say that she had delivered a cheque, she did nothing thereafter to see that the cheque had made effective payment. Furthermore, as far as one can see, when proceedings were started in May 2002 there was no activity of any significant sort until December or January thereafter.[23]As to penalty, Mr Goodwin submits that the penalty was not excessive; that the Tribunal clearly did not make it as high as it could have done, and that it was, as such penalties always are, fact sensitive.[24]For my part I accept, as I have already indicated, that the submission made by Mr Friend should have been accepted, but that it would not have led to the proceedings being brought to an end. All that it would have led to would have been a short adjournment. In those circumstances it seems to me that in this court it is right and necessary, when dealing with a decision of a Tribunal, to go on to consider what happened. What happened thereafter closed the evidential gap.[25]I do, however, take the view that it is of the utmost importance that the Solicitors Disciplinary Tribunal should make findings in relation to relevant issues. For example, in this case, the telephone call alleged to have been made on 12th December 2001. Notice was given not long, I accept, before the hearing on 7th January, but some time before that, which might have enabled the Office for the Supervision of Solicitors to assist the Tribunal further by calling before it the person to whom that telephone conversation was alleged to have been addressed.[26]That course was not taken and the Tribunal was simply faced with evidence which, on the face of it, was all one way. It did not have to accept the evidence of the solicitor in relation to that telephone call, but it did, in my judgment, have to make a positive finding as to whether or not it should accept it and it did not do so. Equally, it seems to me to be important that the Tribunal, when it does make findings of fact, should be prepared to give effect to those findings.[27]The Tribunal made a finding of fact that there was an attempt to pay on 16th November 2001, by the delivery of the cheque to what Miss Dhillon then believed to be the home of Mrs D. Once that finding was made it did have a considerable impact upon the case being presented by the Office for the Supervision of Solicitors. I, for my part, am not satisfied that the impact was properly reflected by the Tribunal when it came to decide what penalty should be imposed.[28]There could be no doubt that Miss Dhillon did not make payment. Mr Badenoch did not really, in the end, seek to say otherwise. Thus, in the circumstances, including the failure to respond more than she did to the correspondence which she received from the Law Society, there seems to me to be no reason to doubt the appropriateness of the Tribunal's finding that Miss Dhillon was guilty of conduct unbefitting a solicitor.[29]It is for the Tribunal, with the assistance of the evidence placed before it, to set the professional standards. I, for my part, cannot quarrel with the Tribunal's decision that the history of this case discloses inactivity on the part of a practising solicitor to an extent which ought not to be countenanced. But that does leave the question of whether the penalty was appropriate.[30]It was not, as Mr Badenoch has pointed out, a high penalty because the original misdemeanour was not considered to be of the gravest. She did try to make a payment in November 2001, but the effort then made was not as one would have expected of a responsible solicitor. There was, if I may put it this way, "no follow-up". There was no checking to see that the cheque had been cleared, and in response to what was happening, so far as the Law Society was concerned, there was one telephone call which was not pursued. Very late in January 2003 there was a payment. It was very late, and at that stage these proceedings before the Tribunal were imminent. It is clear from the documentation that the appellant did then have, and indeed still has, health problems. The Tribunal would be entitled to take those, to some extent, into account.[31]The penalty which they imposed appears to have been about two thirds of the maximum which was available to them. She did contest the matter, so she was not entitled to any discount for having admitted that she was guilty of conduct unbefitting. But because of her effort to pay, and because of her telephone call made in December 2001, and because of her actual payment in January 2003, it does seem to me that the penalty was well out of line with that normally to be expected in relation to matters such as this.[32]In the letter of 14th December 2001 the team leader wrote thus:
"If it is necessary to commence disciplinary proceedings against you, these will be dealt with by way of a public hearing at the Solicitors Disciplinary Tribunal. In previous cases the Tribunal has imposed fines of between £1,000 and £2,500 plus costs; in one matter a fine of £2,500 was imposed for failure to pay an award of £250. In addition the Tribunal will make an order under Paragraph 5. Any order made against you by the Tribunal would make the issue of your next practising certificate subject to Section 12 of the Solicitors Act 1974 and would entitle the Office to impose an immediate condition on your current certificate."
[33]As Mr Badenoch pointed out, those references to other decisions do suggest that this particular fine was well in excess of what had been imposed in other cases before this one. Of course, as Mr Goodwin said, penalties have to be fact sensitive, but, for my part, having regard to the particular circumstances of this case, and with due deference as I would pay to the Tribunal's own expertise in its field, a deference which this court always has regard to (see Boltonv the Law Society [1994] 1 W.L.R. and Langford v LawSociety), I would, nevertheless, conclude that the penalty here was inappropriate.[34]It seems to me that it was almost certainly inappropriate because the whole approach of the Tribunal was flawed. In my judgment an appropriate fine would have been one of £500. There should be some discount from the costs of the Tribunal which the solicitor was ordered to pay to take account of the way in which the matter proceeded. In my judgment it would have been appropriate to order her to pay the whole of the costs for the investigation, but only half the costs of the hearing. To that extent I would allow the appeal.

MR JUSTICE ROYCE: I agree.

[36]MR BADENOCH: My Lord, in respect of the hearing today may I ask for the appellant's costs?[37]MR GOODWIN: My Lord has clearly come to the thought -- I fear I may not have liberty in arguing against my Lord on that point, given that the penalty has been reduced.

LORD JUSTICE KENNEDY: I think that must be right, thank you very much. Thank you both very much for your assistance.