MacPherson v Law Society [2005] EWHC 2837 (Admin)

Case No CO/187/2003[2005] EWHC 2837 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 9th November 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE PENRY-DAVEY
Between
ALLAN MACPHERSONClaimant-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)
for The CLAIMANT did not attend and was not representedMR JONATHAN GOODWIN (instructed by The Law Society) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE MAURICE KAY:

This

[1]an appeal from the Solicitors Disciplinary Tribunal pursuant to section 49 of the Solicitors Act. The appellant, Mr Allan Macpherson, appeals against a decision of the Tribunal that he was guilty of the offence of conduct unbefitting a solicitor in various ways, and that he should be struck off the roll of solicitors and ordered to pay the costs of an incidental to the hearing in the Tribunal, fixed in the sum of £9,323.60.[2]The charge of conduct unbefitting a solicitor was particularised in the Tribunal by reference to eight paragraphs that read as follows:
"1) He retained client's monies in office account, other than as permitted by the Solicitors Accounts Rules 1991 and 1998; 2) Contrary to Regulation 64 of the Civil Legal Aid General Regulations 1989, he properly obtained monies for costs from legally aided clients; 3) Contrary to 16(5) of the Legal Aid Act 1988, he did fail to pay to the Legal Aid Board, now the Legal Services Commission, sums recovered by virtue of an order or agreement for costs made in favour of a legally aided person with respect to the proceedings; 4) Contrary to Regulation 90(1)(a) of the Civil Legal Aid General Regulations, he did fail to inform the area director of property recovered or preserved for an assisted person and send him a copy of the order or agreement by virtue of which the property was recovered or preserved; 5) Contrary to Regulation 90(1)(b)... he did fail to pay all monies received by him under the terms of an order or agreement made in the assisted person's favour to the Legal Aid Board; 6) He provided misleading information to the Legal Aid Board; 7) He retained monies for costs without delivering to the client a bill or other written intimation thereof and; 8) He made use of a letterhead which was misleading, contrary to principle 1(c) of the Solicitors Publicity Code 1990."
[3]The Tribunal found all these particulars to be proved. The first seven of them had arisen from a report that was before the Tribunal. In its findings, the Tribunal concluded that in relation to allegation number 8, whilst the Tribunal considered that the letterhead was blatantly misleading, they were not satisfied to the required standard of proof that the use of the letterhead was dishonest. As to the remaining allegations, the Tribunal said this:
"In relation to the allegations arising from Mr Sage's report, however, the Tribunal were satisfied having considered the submissions of the applicant in relation to the case of Twinsectra v Yardley that the respondent's conduct was dishonest. It was clear from the report that this was a dishonest course of conduct, not an isolated incident. This was conduct of a most serious nature. "
In addition to his dishonest conduct in relation to the Legal Aid Board, the respondent had taken money for costs from the damages of legal aided clients, this was in itself prohibited. The respondent had further not delivered bills or written intimations of costs to the clients. The respondent's dishonest conduct undermine the confidence which the public should be able to have in every member of the profession. The public had to be protected from such conduct both in respect of their own client funds and in respect of the funds of public bodies, such as the Legal Aid Board. It was right that the ultimate sanction be imposed upon the respondent."[4]Mr Macpherson's appeal to this Court has been processed by his acting in his person. Recent correspondence by Mr Macpherson, both with the Law Society's representative and with the Court, made it clear that he was not going to attend the hearing today. He invited the Court to deal with his appeal in his absence and upon a consideration of the papers.[5]We have had a skeleton argument from Mr Macpherson and more recently a substantial bundle containing another version of that skeleton argument, together with a further statement by Mr Macpherson in which he sets out the nature of his complaints. In addition, the bundle contains other documents as well and we have had the benefit of looking at that bundle, but it is not necessary for me to refer to it further.[6]The immediately obvious feature of the appeal is that what Mr Macpherson seeks to do is to take issue with the system for disciplinary proceedings and appeals that exists pursuant to statute, and is operated through the medium of the Solicitors Disciplinary Tribunal. It will become apparent when I refer to his grounds of appeal that he seeks to make what he sees as fundamental points and the fundamental shortcomings in the structure and arrangements of the system that exists.[7]In his skeleton argument, he states the following:
"Proceedings before the Solicitors Disciplinary Tribunal are criminal in nature. "
The manner of operation of the SDT is such that article 6 of the European Convention on Human Rights is breached with the non-availability of effective legal representation to those appealing before the SDT. "The manner of operation of the SDT, by way of the selection and appointment of Tribunal members, their terms of appointment, means of funding, the overall appearance of the proceedings and the lack of safeguards against influence or interference by the prosecution are such that the SDT cannot be regarded as an independent or impartial Tribunal, within the terms of article 6. "The manner in which the prosecution investigated the matters referred to the SDT in this matter involved the appellant being compelled to contribute potentially incriminating evidence to be used in prosecuting the case against him. The use of this evidence was oppressive and substantially injured the appellant's ability to defend himself against the charges brought by the respondent, thereby depriving the appellant of a fair trial. "The manner of investigation that matters leading to an appearance before the SDT breached the rules of legal professional privilege. "Prior to proceeding with these matters, the respondent had intervened in the appellant's law practise, thereby depriving him of the means to pay for his defence, this is a serious aggravating aspect of the respondent's conduct. "The penalties and costs imposed by the SDT are disproportionate to those imposed even on those subjects who have committed criminal offences and are overtly biased in favour of the respondent. "The overall standard of justice offered to those appearing before the SDT was substantially less than that offered to those investigated, charged and tried on the criminal justice system and below that required for it to be ECHR compliant." Those are broadbrush allegations. Unfortunately for Mr Macpherson, they are the subject of existing authority in these courts, all of it, as far as I can see, adverse to the points that he seeks to make. It is simply not the case that the proceedings before the SDT are criminal in nature. That was accepted by the Court of Appeal in Pine v The Law Society 25 October 2001, case number C/2000/35/61 and 35/61A.[8]The point about "the non-availability of effective legal representation" was also considered and dealt with by the Court of Appeal in the case of Pine, where the Court of Appeal stated that it is:
"... fanciful to suggest that it was obviously unfair to Mr Pine not to provide him with legal advice or representation."
It was added:
"The procedure was not complex, the relevant facts were within the knowledge of Mr Pine, Mr Pine was a solicitor experienced in commercial litigation. Mr Pine had ample opportunity to indicate any defences he wished to advance. In my judgment, neither the seriousness of the likely consequences, nor the emotional involvement of Mr Pine, which is not apparent from his letters to have been a debilitating factor anyway when considered in the light of the absence of legal advice or representation, gave rise to any unfairness."
All that, in my judgment, is equally referable to the case of Mr Macpherson, albeit it seems that his experience may be of litigation other than commercial litigation.[9]Turning to the question of the independence and impartiality of the SDT, this again was dealt with in the case of Pine. It was dealt with particularly at the first instant by Crane J, who said this:
"Standing back and bearing in mind the statutory scheme of the Disciplinary Tribunal, I see no reason to doubt its independence or impartiality. It is independent of the Law Society, there is no indication that the Law Society can influence its decisions, except in the sense of making submissions to the Tribunal as a party before the Tribunal. No evidence or suggestion has been made that the particular Tribunal demonstrated any impartiality in any way. In my judgment, the submission that the SDT does not meet the test of being an independent and impartial Tribunal is not made out."
That again, in my judgment, meets the point which Mr Macpherson seeks to make about independence and impartiality. It is equally referable to the present case, Mr Macpherson's attack is one which takes issue with the system, rather than with the processing of his particular case and, in all the circumstances, he is wholly unable to sustain the criticism of the independence and impartiality of the Tribunal. I agree with the observations of Crane J, to which I have just referred.[10]I turn next to the question of self-incrimination. The Court of Appeal has considered that in the context of disciplinary proceedings, albeit in the context of a chartered accountant. In R v Institute of Chartered Accountants for England & Wales ex parte Nawaz, Leggatt LJ said:
"When a person enters a profession he accepts its duties and liabilities as well as its rights and powers. Similarly, he may acquire or surrender privilege and immunities. Nevertheless, the principle that privilege is not to be regarded as having been abrogated, except by express words or necessary implication, applies also to waiver. In my judgment, acceptance of a duty to provide information demanded of an accountant constitutes a waiver by the member concerned of any privilege from disclosure. It is plainly in the public interest, as well as the interests of the profession, that the Institute should be enabled to obtain all such information in the profession of its members as is relevant to complaints of their professional misconduct."
That was applied in the context of a solicitor by this Court, in the case of Holder v The Law Society 26th July 2005, [2005] EWHC, 2002/3 Admin, see the judgment of McCombe J.[11]The next point sought to be made relates to an alleged breach of the rules of legal professional privilege. This raises the obvious question: whose legal professional privileged? Such privilege resides in the client rather than the lawyer. It appears to me for that reason and for essentially the same reasons as were articulated by Leggatt LJ in the Nawaz case, this too is a ground for appeal which is without merit.[12]As to the complaint that it was the intervention by the Law Society and Mr Macpherson's practise that deprived him of the means to pay for his defence, that simply cannot be an effective ground of appeal. There is no material before the Court to suggest that the intervention was inappropriate or improper or unlawful in any way and as a ground of appeal, it simply is unarguable.[13]Finally Mr Macpherson seeks to take issue with the severity of the penalty of striking off. He says that it is disproportionate and seeks to compare it in terms favourable to himself with criminal sanctions in the criminal courts. This ground of appeal is also utterly without merit. The Court has made it clear on numerous occasions how seriously it views departures and especially dishonest departures from professional requirements in the handling of client's money.[14]The approval is extensively set out in the judgment of Sir Thomas Bingham MR in Bolton v The Law Society [1994] 1 W.L.R. at page 512; particularly at page 518. It was repeated by the same judge, by then Lord Bingham of Cornhill CJ in Weston v The Law Society reported in The Times for 15th July 1998, in which his Lordship observed:
"The striking off of any solicitor found to have acted dishonestly in relation to clients' monies had now to be seen as all but automatic."
There is absolutely no doubt that the striking off in this case was entirely consistent with the normal sanction imposed in cases of this sort. It is utterly unarguable that that normal sanction is inappropriate or was disproportionate or unfair. It is equally unarguable that it breaches any rights a solicitor has either under the statutory scheme, or by reference to the ECHR.[15]In my judgment, the present appeal is without merit, the grounds of appeal are wholly unsustainable and I would dismiss the appeal.

MR JUSTICE PENRY-DAVEY: I agree.

[17]MR GOODWIN: My Lord, I am grateful. I did send the costs schedule to Mr Macpherson on Monday to which he had not responded and I indicated to him that I will be making an application for costs, in the event the appeal was not successful. I have a schedule to hand to my Lords.

LORD JUSTICE MAURICE KAY: He has made some points about it, he says:

"I have now received a schedule in respect of the appeal. I should feel compelled to point out that it does not comply with the CPR in a number of obvious respects, it does not say what period the bill covers, it is not certified by anybody, let alone the solicitors on the court record, and it clearly lacks the detail envisaged by models in the CPR. It includes a charge for overheads, including copying, it includes a charge for travel and accommodation and there are clearly local advocates available in abundance. I submit that it would be wholly inappropriate to assess costs based on such a schedule."
[19]MR GOODWIN: My lord, I have not received that letter.

LORD JUSTICE MAURICE KAY: It arrived by fax, I think, 5 o'clock yesterday evening.

[21]MR GOODWIN: In my respectful submission, the requirement is to provide Mr Macpherson with a schedule of costs incurred which I have. The costs, excluding VAT, disbursements in total come to £17,093.49. My Lord, dealing with the point raised by Mr Macpherson concerning any other advocate could appear, it is the case that the Society has a panel of specialist advocates.

LORD JUSTICE MAURICE KAY: I know. If he thinks it would have been cheaper to instruct a City of London solicitor, he would probably be wrong.

[23]MR GOODWIN: I suspect that may well be right, as an advocate paid for by The Law Society.

LORD JUSTICE MAURICE KAY: On the other hand, all these letters for an appeal?

[25]MR GOODWIN: My lord, the procedure is that Jameson and Hill, who Mr Battersby is a partner of, whoever was instructed to deal with the disciplinary proceedings, he not having rights of audience instructed me to deal with the appeal in addition to Mr Macpherson. I do respectfully submit that the costs are reasonable and have been incurred and it would, my Lord, be appropriate to make a summary assessment of them. If not in the amount shown on the schedule, in an amount that the Court considers to be prudent.

LORD JUSTICE MAURICE KAY: I appreciate what you say about the need to communicate but from my experience as an advocate instructed by solicitors in relation to a matter comparable with this I would not have expected, does that really mean 50-odd letters written by you?

[27]MR GOODWIN: It is, my Lord. It covers the period from when Mr Macpherson first lodged his appeal.

LORD JUSTICE MAURICE KAY: I appreciate that.

[29]MR GOODWIN: If it helps, my Lord, I would, given the point taken by Mr Macpherson in relation to a local advocate being instructed, I would together with the Law Society concede the cost relating to travel because of course it is those costs that have brought me to the Court, not only today but also in relation to an appearance on 12th October 2004 when Laws LJ listed the matter to be listed for appeal and dealt with other matters. I would be prepared to concede that, if it is of assistance to the Court.

LORD JUSTICE MAURICE KAY: Yes you can, but why the travel costs on that occasion of £820?

[31]MR GOODWIN: Because the totality of the costs relating to that hearing related to the matter of Mr Macpherson. The reason that the costs are less for today, my Lord, is because I have been in London on business and quite properly have apportioned travel time between the cases.

LORD JUSTICE MAURICE KAY: Even if you come just to do one case, why is it worth £820 of anybody's money? It soon becomes a bargain to have a City of London solicitor.

[33]MR GOODWIN: All I can say, my Lord, is that is the rate paid by The Law Society.

MR JUSTICE PENRY-DAVEY: What is a unit?

[35]MR GOODWIN: A unit is six minutes. To explain the totality of the time claimed, it is travelling to the station, the train journey, travelling the other end upon arrival and travelling back. That is the calculation for time incurred at half the hourly rate, the unit rate of £10.25 equates to half the chargeable rate of 205 pre-February 2005 and 215 post February 2005. It is effectively £102.50 per hour.

LORD JUSTICE MAURICE KAY: Yes.

[37]MR GOODWIN: My Lord, I am in your hands.

LORD JUSTICE MAURICE KAY: I think we should retire and have a look at the schedule together. (A short adjournment)

LORD JUSTICE MAURICE KAY: We are very unhappy about this, and I am going to give you a choice; you can continue with your application for summary assessment, in which case we shall give you a global figure which will be a drastic reduction from the one you are seeking, or you can instead abandon that application and go for an assessment before a costs judge; whichever you prefer.

[40]MR GOODWIN: My lord, having heard the observations of the Court, it may well be that in fairness to Mr Macpherson to proceed by way of detailed assessment.

LORD JUSTICE MAURICE KAY: Very well. You may have an order for costs to be assessed, if not agreed.

[42]MR GOODWIN: Thank you, my Lord.

LORD JUSTICE MAURICE KAY: Mr Macpherson says his absence is explained by health grounds, if that is right and because of what we have said about costs I think we should direct that he has a transcript of the proceedings at the Court's expense.

[44]MR GOODWIN: Yes, my Lord.

Cited in 1 later judgment