Connolly v Law Society [2007] EWHC 1175 (Admin)

[2007] EWHC 1175 (Admin)

Case No CO/5412/2005

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

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

Date 17 th May 2007

Before

LORD JUSTICE LAWS

MR JUSTICE STANLEY BURNTON

Between

BRIAN CONNOLLYAppellant

THE LAW SOCIETYRespondent

(Transcript of the Handed Down Judgment of

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Robert Rhodes QC and Marc Brittain (instructed by Ellis Taylor) for Appellant

Geoffrey Williams QC and Katrina Wingfield (solicitor advocates instructed by Penningtons) for Respondent

Hearing Hearing date: 28 March 2007

Judgment

Stanley Burnton J:

Introduction

[1]This is an appeal pursuant to section 49(1)(b) of the Solicitors Act 1974 by Brian Connolly, a solicitor, against a number of the findings made by a Solicitors’ Disciplinary Tribunal in their decision dated 30 June 2005 that he had been guilty of conduct unbefitting a solicitor, and against the sanction imposed by the Tribunal. There were a total of 48 charges, of which 2 were divided into 2, making a total of 50, of which 36 were found to have been proved.

[2]The appeal against the Tribunal’s substantive findings was ultimately restricted to 17 of the 36 charges. The Appellant had included in his Grounds for Appeal matters of general application to the proceedings against him before the Tribunal, but these were abandoned.

[3]At the beginning of the hearing before us, it was sensibly agreed that the hearing of the appeal should be split: in the first place the parties would address the issues as to the substantive charges under appeal; the appeal against the sanction imposed by the Tribunal would be heard after the parties knew of our decision on those charges.

[4]In this judgment, therefore, I address only the issues raised by the Appellant as to the charges of which he was found guilty. References to my judgment to paragraph numbers are unless otherwise indicated to the paragraphs so numbered in the Tribunal’s findings.

The background

[5]The Appellant is aged 50. He was admitted on 2 December 2001. Between October 1996 and December 1998 he carried on in practice under the style of Connolly’s Corporate Solicitors in Chelmsford in partnership with another solicitor, Ms Davis, who was also the subject of complaints that were heard by the Tribunal separately. Thereafter, he practised as a solicitor under the same style. At the date of the tribunal hearings, he was employed at Stuart & Co Solicitors in Chelmsford with the approval of the Law Society. The charges under appeal Charge (v): that the Appellant failed to act on client’s instructions within a reasonable time.

The charges under appeal

[6]The Appellant’s client was Lancer Laminating Ltd. On 7 December 2001 it made a payment to the Appellant which included £3000 plus V.A.T for the purpose of paying Counsel’s fees. However, there was a delay in payment of the fee and Counsel did not receive the sum due until some five weeks later, on 18 January 2002.

[7]According to the Tribunal’s decision, the Applicant’s case was as follows:

“The Respondent confirmed that he admitted allegations (iv), (vi) and (vii). With regard to allegation (v) he acknowledged the receipt of the monies from his former client to settle Counsel’s fees. His recollection was that he had not received a fee note from Counsel. He might well have ascertained the figure from Counsel’s clerk in order to conclude his billing. Counsel’s fee note came in later and that was when the fees should properly have been paid. The Respondent accepted that Counsel’s fee note, i.e. invoice, had been dated 6th December 2002. He also accepted that the money had been retained in office account. That had been an error. The Respondent had not been able to remember when Counsel’s invoice had in fact been received. He agreed that, on the face of it, he had taken some five weeks to pass the fees to Counsel. Of course, the Christmas holiday period intervened. It was hoped that the Tribunal would consider that such delay as there had been was of a small order.”

[8]The Tribunal’s reasons for its finding were as follows:

“The Tribunal did find allegation (v) to have been substantiated, namely that Mr Connolly failed to act on his client’s instructions within a reasonable time. It had to be said, however, that the delay in payment of Counsel from the date of the receipt of the money on or about 7th December 2001 until payment on 18th January 2002, with the intervention of the Christmas holiday period, was not a significant delay and should properly be regarded as de minimis.”

[9]On behalf of the Appellant, Mr Rhodes QC pointed out that there was no finding by the Tribunal that he had received counsel’s fee note when alleged by the Respondent, i.e., shortly after its date, 6 December 2001; his evidence was that he had not received it until 16 January; that evidence had not been rejected; and it was not unreasonable for a solicitor to await receipt of a fee note before paying counsel’s fees. Accordingly the Tribunal should not have found the charge proved.

[10]For the Respondent, Mr Williams accepted that there was no express finding that the fee note had been received in December 2001, but submitted that it was unreasonable in the circumstances of this case for a solicitor to await receipt of a fee note before paying a known fee of counsel in accordance with his client’s instructions.

[11]The documentary evidence was as follows. Counsel’s computer record relating to this matter showed a brief on a hearing on 28 November 2001 at the fee of £3,000 plus VAT; on the same date, a fee note was sent in the sum of £10,910 plus VAT; on 30 November 2001 payment was received in the sum of £7,810 plus VAT (the amount of a fee note that had been sent, according to the computer print-out, on 12 November 2001); and on 16 January 2002 a fee note was sent in the sum of £3,000 plus VAT. There was a file copy of a “Receipt and VAT Invoice” dated 30 November 2001 which included fees on matters going back to May 2001 and the brief on the hearing and gave credit for the payment of £7,810 plus VAT, leaving £3,000 plus VAT outstanding. Connollys’ invoice to the client is also dated 30 November 2001, and recites:

“Disbursements Counsel’s fees 28.11.01 (not yet paid) £3000 (plus VAT)”

Counsel’s fees 28.11.01 (not yet paid) £3000 (plus VAT)”

[12]Clearly, therefore, on that date C knew the amount of counsel’s fee. That he did so is confirmed by his letter to the client of 7 December 2001, enclosing his invoice, and referring to the client’s agreement to that fee. The invoice was paid by the client on 7 December 2001 by CHAPS payment. In a letter dated 11 January 2002, the client stated that the clerk to counsel was chasing for the fee, and asked that the fee be paid “by cheque in the DX today”. In a letter to the Appellant dated 16 January the client said that he had spoken to counsel’s clerk “and was astounded to find that Connollys have ‘still not paid’ the fees of £3,000 plus VAT”; the managing director stated he would call at their offices the following morning to collect a cheque for £3,000 plus VAT. The Appellant replied by letter of the same date stating that counsel’s fee would be paid when a fee note was received. He implied, of course, that none had been received. The fee was paid on 18 January 2002.

[13]In evidence the Appellant said, at day 4 page 7, that the fee note had been received at some point between 7 December 2001 and 18 January 2002. At page 61 of day 5 he said:

“The first time the discrete figure of £3,000 appears by reference to a fee note is dated 16 January, and that is paid two days later. I do not believe that to be a reminder. I believe that to be the first time that fee note was raised. It is not part of a running balance. That is a specific appearance.”

He was correct if reference is confined to a fee note so-called; however, the figure of £3,000 had appeared on the receipt and VAT Invoice dated 30 November 2001, in which it was part of the running balance. The effect of his evidence appears from the following exchange between the solicitor advocate for the Law Society, Miss Wingfield, and counsel for the Appellant:

“Miss Wingfield: (referring to the document dated 30 November 2001): The actual fee note, the receipt and VAT invoice. Mr Tucker: That is not the fee note. Miss Wingfield: No, I accept that. … I have indicated it is not a fee note.”

[14]Thus, the denial of receipt of a fee note for £3,000 plus VAT, and the assertion that the Law Society accepted none had been received before 16 January 2002, do not mean that the receipt and VAT invoice which included that item had not been duly received. The Appellant did not dispute that he had duly received that document. That it had been sent on or about the date it bears accounts for counsel’s clerk pressing for payment, as stated in the letter of 11 January 2002.

[15]During the course of the Appellant’s evidence, the following exchange took place:

“Q. What prevented you, if you had not had a fee note, sending the cheque in any event, bearing in mind you were handing over the files? A. It was an error. As I think I indicated in my evidence in chief, in the context of an accounts department the piece of paper was not there to attach the cheque to with the letter to send to counsel. Q. But could you have done that without having a fee note? A. It could, and I accept that. It should have been done without the fee note. What I am saying is that it was an administrative error because if that had been done it would probably be the only time ever in my career that that had happened, because we all worked to fee notes. Q. As far as this particular matter was concerned the bill was being raised on the 7th under cover of your letter of 7th December was a final bill, was it not, to enable the files to be handed over, and as you said it was a very active live matter and that was why it had to be done quickly and the payment was received by CHAPS. A. Yes.”

[16]In my judgment, having invoiced his client on 6 December 2001 for a sum which included counsel’s fee, and having received the client’s payment of the amount of that invoice, it was the duty of the Appellant to pay counsel. There was no need to wait for a separate fee note, which did not prevent the obligation to pay counsel from arising. It follows that there is nothing in the complaint that the Tribunal failed to make a finding as to the receipt of the separate fee note.

[17]The Appellant further submits that in the event that the Tribunal did not accept his evidence, on the Tribunal’s own findings the delay of payment should not have been held to amount to a failure to act within a reasonable time: the Tribunal stated “from the date of the receipt of the money on 7 December 2001 until payment on 18 January 2002, with the intervention of the Christmas holiday period, was not a significant delay in and should properly be regarded as de minimis.” (paragraph 338).

[18]The Tribunal itself regarded the offence as de minimis. Whether it was an offence at all was very much a matter of judgment for the Tribunal. It had to be viewed in the light of charge (iv), which was admitted, i.e. that he had wrongly paid the amount of counsel’s fee and VAT received from the client into his office account, and against the client’s insistence on immediate payment of the fee. In my judgment, the Tribunal was entitled to find charge (v) proved. I would uphold their finding on this charge.

Charge (ix)

[19]This charge was that the Appellant failed to reply promptly to correspondence from the Office for the Supervision of Solicitors (OSS) in breach of principle 30.04 of the Guide to Professional Conduct of Solicitors 1999.

[20]The OSS initially wrote to the Appellant on 14 June 2002 in relation to a complaint received from the General Council of the Bar regarding a Withdrawal of Credit Direction which had been issued against the Appellant in respect to his failure to pay Counsel’s fees. The OSS requested a reply to the letter within fourteen days. The OSS did not receive a reply from The Appellant and a chasing letter was sent on 1 July 2002. The letter stated that failure to respond to the OSS could amount to unprofessional conduct and “unless we hear from you in the next eight days in reply to the original complaint I should warn you that you will run the risk of disciplinary proceedings.” The Appellant faxed a response to the OSS just within the eight day deadline on 9 July at 5.00pm and the OSS acknowledged receipt of the fax by a letter dated 16 July 2002.

[21]The Appellant’s defence to this charge was that his delay was petty: paragraph 67 of the decision. The Tribunal found that the charge was substantiated on the grounds that the Appellant had failed to respond promptly to the OSS. (paragraph 339).

[22]Before us, Mr Rhodes raised an issue that seems not to have been raised before the Tribunal. He submitted that it was implicit in the OSS letter of 1 July 2002 that if a reply was received by it within 8 days there would be no risk of disciplinary proceedings. To have brought this charge in the circumstances was an abuse of the disciplinary jurisdiction and it should have been dismissed.

[23]Mr Williams did not object to this point being taken. In my judgment, it is well-founded. On this ground alone, therefore, I would allow the appeal against the finding that this charge was proved.

Charges (x) and (xi)

(x) and (xi)

[24]These charges were as follows: “(x) that he abused the solicitor/client fiduciary relationship by attempting to take unfair advantage of his client by threatening to raise further bills if the client did not accept his offer to conciliate the complaint (Principle 12.07 of the 1996 Guide to the Professional Conduct of Solicitors (“the 1996 Guide); (xi) he sought to preclude the client from reporting his conduct to the “OSS” (Principle 30.03, note 1 of the 1999 Guide)”.

[25]Both charges arise from a letter sent by the Appellant to a client on 8 March 2000. In a fax dated 28 February 2000, the client complained about the Appellant's failure to reply to correspondence. He demanded the repayment of moneys held by the Appellant on account of costs, and threatened to make a formal complaint to the OSS if he did not receive a cheque by return. The Appellant responded in a faxed letter dated 8 March 2000, in which he stated:

“I must start this letter by dealing with your reference to the Office for the Supervision of Solicitors. You have no complaint about the work done or any of the accounts arrangements and you should not either seek to make any reference to the OSS or raise it in your correspondence with us. …. … it is important that I make it clear that we have achieved all your legal objectives and, having done so, you should not attempt to make any form of complaint, neither should you convey the vehemence and antagonism which your correspondence has demonstrated for some time. What is more important in our view is that, in addition to taking into account the fact that we have satisfied all your legal objectives, is that you take particular note of the fact that to make our work as cost effective as possible, we have not charged for all the work done. …. if you do not agree to the invoices as billed to date then we propose to invoice work in progress which had not been billed to date and I invite you to confirm your agreement to the invoices by return. I regret putting matters in this way but having achieved all your legal objectives and having subsidised you in the process I will not tolerate a situation where you raised the vexatious arguments which appear to show some wish on your part to argue about our costs.”

[26]The Appellant’s case as set out in the Tribunal’s findings was as follows:

“The Respondent accepted that the letter addressed to Mr S might have been better phrased. He had intended, by saying that there was a quantity of unbilled work, to demonstrate that his costs had been more than reasonable in that he had not made any charge for that unbilled work. His letter was not intended as a threat to raise further bills. His letter was not intended to be an attempt to preclude the client from reporting his conduct to the OSS. Again the Respondent accepted that his letter might have been drafted in rather better terms, but he was making the point that it was his view that Mr S had no valid cause for complaint.”

[27]The Tribunal’s finding is at paragraph 342:

“In relation to allegations (x) and (xi) the Tribunal does find that in threatening to raise further bills Mr Connolly had abused the solicitor/client fiduciary relationship. Although the Tribunal accepted that that had not been the intention of Mr Connolly, that was the effect of his letter and the effect that it would have had upon the recipient reading it. Similarly his remarks would have been seen as an attempt to preclude his client from reporting the matter to the OSS.”

[28]Mr Rhodes submitted that an attempt to take an unfair advantage of a client (charge (x)) and seeking to preclude a client from reporting conduct to the OSS (charge (xi)) require an intention to do that which is attempted or sought to do; the finding by the Tribunal that the Appellant did not have the requisite intention is inconsistent with finding these charges proved.

[29]The letter of 8 March 2000 was in the clearest terms, and I have the greatest difficulty in understanding how any reasonably competent, or indeed rational, solicitor who wrote it could not have intended to threaten to raise further bills and to preclude the client from reporting him to the OSS. Nonetheless, Mr Rhodes’s submission is well-founded. Intention is a requirement of both of these charges. Given the finding that the Appellant did not have the requisite intention, he should have been acquitted of these charges. I would allow his appeal in relation to them.

Charges (xx) and (xxii)

[30]These charges were as follows:

“(xx) That he attempted to take unfair advantage of W Club Ltd for the benefit of his client (Principle 17.01 of the 1999 Guide). (xxii) That he acted in breach of Rule 1(d) and (f) of the Solicitors Practice Rules 1990. The Rules referred to are as follows: “A solicitor shall not do anything in the course of practising as a solicitor, or permit another person to do anything on his or her behalf, which compromises or impairs or is likely to compromise or impair any of the following: (d) the good repute of the solicitor or of the solicitors’ profession; (f) the solicitor’s duty to the Court.”

[31]The Appellant was acting for Wellbuild Construction Services Limited on the matter of a debt owing to them by Wentworth Golf Club for work carried out by the client in 1999. Invoices were submitted on 6 October 1999. In a letter dated 17 October 1999, Mr Mitchell, Wentworth’s technical services manager, explained in detail why he did not accept the accuracy of the invoices. The letter ended:

“I have recalculated the cost of the work and I have come to the figure of £7,469.54, plus 10 per cent overheads and profit, giving a total of £8,216.49, which still seems a large sum for the end product. I would like to arrange a meeting with you on site at your earliest convenience to discuss this matter and to come to a conclusion that we are both happy with”

[32]Nonetheless, according to the judgment of Laddie J to which I shall refer below, it was apparent that Mr Mitchell did not accept that the whole of the £8,216.49, which was substantially less than the sum claimed by Wellbuild, was due. Wellbuild replied in a long letter refuting Mr Mitchell’s complaints, refusing a meeting and threatening proceedings if payment in full was not made within 10 days.

[33]Mr Mitchell replied on 26 October, refuting Wellbuild’s contentions. The letter ended as follows:

“Finally, as honourable men, I am sure that we can reach an amicable conclusion both you and I are happy with so that we can put this matter behind us. I can assure you that at no time were your approaches unwelcome. If you speak to many of my suppliers or contractors they have [no] difficulty in contacting me. With regards to the finishing of the terrace furniture, the only communication to you was the likely start date. I did not ask you to drop everything and start the next week. The only reason why your company was not used was because of comments made by colleagues regarding your operatives’ inability to carry out a full day’s work. I would be happy to use your services in the future providing I can be sure of adequate supervision of your operatives. As I have commented to you on previous occasions, I do not feel they are doing you or your company any service.”

[34]Laddie J summarised that letter, in terms with which I agree, as follows:

“That letter made it clear that Wentworth was willing to pay such sums as it considered properly due, but not sums which it thought it had no obligation to pay.”

[35]As Laddie J stated, that was the end of the communications between the parties. Wellbuild’s deadline for payment came and went. 15 months passed. Then, so far as Wentworth was concerned, out of the blue came two letters, both dated 31 January 2001, from Connollys on behalf of Wellbuild. The first stated that Wellbuild had appropriated the sum of £2,500 paid to it to part of its invoices, and set out sums totalling £2,500. The second was as follows:

“Wellbuild Construction Services Limited You are indebted to our client and have admitted that you are indebted. There is no dispute on the sum of £13,736.94 which is the undisputed balance of our client’s invoices 9909/42 and 9909/40 of 6 October 1999. If the sum of £13,736.94 is not received by us by cleared funds by 12.00 noon on Thursday 1 February 2001 the failure to pay for 15 months and as demanded, will be construed as your inability to pay debts when due and proceedings will be commenced.”

[36]Laddie J said this about the second letter:

“There are a number of points in this letter which deserve comment. The suggestion, twice made, that there was no dispute as to the £13,736.94 balance is simply not an accurate reflection of the correspondence to which I have referred already. There was a strong dispute as to a large part of the bills. On the assumption that Connollys had read the correspondence, they must have known that this statement was not accurate. The dispute did not disappear merely because Connollys said it did not exist. Secondly, this letter effectively gave 24 hours’ notice to Wentworth to pay nearly £14,000. Not only is that 24 hours’ notice, but it is 24 hours’ notice to provide “cleared funds”

. Effectively this means cash. This was, in my view, equivalent to no notice at all. It was, in all the circumstances, wholly unreasonable. Finally it should be noted that the letter states that “proceedings” will be commenced. At this stage there was no statement that they would be winding-up proceedings. They could well have been the recovery proceedings threatened by Mr Currell 15 months earlier.” I agree with all those comments.

[37]Mr Mitchell responded by email on 2 February 2001:

“Thank you for your letter of the 31st January which I received yesterday. As I am sure you are aware, we are and have been in dispute with Wellbuild over the agreement of a final settlement. Although letters in October of 1999 where the offer of a meeting to discuss and agree a final settlement was made to Mr. Currell were made, no response has been made by Mr. Currell, and we are still waiting to have the meeting. In order for us to further this could you please forward copies of the two invoices.”

[38]However, a petition to wind up had been presented the previous day. Wentworth were ignorant of it until it was served. The petition was based on an alleged debt of £15,300.87, which included interest of £1,563.93 alleged to be due under section 35(a) of the Supreme Court Act 1981 from the date of each invoice. There was no basis for the allegation that any interest was due: there had been no judgment for the sum claimed.

[39]The petition was advertised in breach of the undertaking referred to in charge (xxi), which the Appellant admitted.

[40]On 15 February 2001 Laddie J set aside the petition. On 28 February 2001, Laddie J ordered Wellbuild and Connollys to pay Wentworth’s costs on an indemnity basis. In his judgment, he made trenchant criticisms of Connollys. One was that in correspondence with the solicitors for Wentworth (who were concerned that the petition should not be advertised) before the petition was advertised, they failed to disclose the fact that they had instructed the London Gazette to advertise the petition and had paid for the advertisement, notwithstanding Wentworth’s solicitors’ request for confirmation when it was intended to advertise the petition. Furthermore, Wentworth wanted to pay their undisputed debt to Wellbuild. However, Connollys refused to accept any payment on the fallacious ground that it might be invalidated by section 127 of the Insolvency Act 1986. They raised this point with the senior partner of Wentworth’s solicitors, Goodman Derrick. Laddie J said this about Connollys’ practice:

“31. I should make one other comment in relation to the s.127 issue. I can see no basis whatsoever for what Connollys describe as their general practice of raising s.127 points with a senior partner of firms of solicitors acting for companies who are the subject of winding-up petitions. Mr. Smith, who has appeared on this application on behalf of Wentworth, says that it has all the hallmarks of being part and parcel of an exercise in harassment. Whatever the purpose of Connollys in sending such letters as a matter of course (and the purpose has not been explained to me), in my view, Mr. Smith’s submissions are a proper objective assessment of how this type of correspondence would be viewed by recipients. 32. Sending warning letters to the senior partners if the solicitors acting on behalf of target companies in winding-up petitions, effectively saying that because of s. 127 they cannot make any payments, besides being wrong in law is wholly disproportionate and inconsistent with a proper use of the winding-up procedure. It is particularly so in a case such as this were there could be no real doubt as to the solvency of the company which is the subject of the petition.”

[41]This matter came before Mr Justice Laddie on 15 February 2001. As mentioned above he set aside the petition. Laddie J found that a large portion of the £13,736.94 debt was disputed by Wentworth Golf Club and that the demand that it be paid within 24 hours was “wholly unreasonable” (judgment paragraph 10). He described the failure to honour the undertaking not to advertise the petition as “reckless and negligent”. He said:

“Connollys decided on behalf of the their client to engage in an extreme form of pressure designed to get the maximum amount of money out of Wentworth in the shortest possible time by holding over its head the potentiality of a most damaging public statement of insolvency.”

[42]The Judge described the proceedings as abusive and ordered that there should be joint and severable liability of Wellbuild Construction Services Limited and Connollys Solicitors for the costs of the hearings before him, on an indemnity basis. He gave permission to appeal, but no appeal was made by Connollys insurers, who met the liability.

[43]The Appellant’s defence to these charges was that the Judge had misunderstood the law of insolvency. Wentworth was indebted to his client, albeit that part of the debt was disputed, and his client was therefore entitled to present the petition. Before us, Mr Rhodes relied on the judgment of Harman J in Cornhill Insurance plc v Improvement Services Ltd

[1986] BCLC 26

. In fact, Harman J’s judgment was approved by the Court of Appeal in Taylors Industrial Flooring Ltd v M & H Plant Hire (Manchester) Ltd

[1990] BCLC 216

. The Appellant’s case was put as follows:

“Mr Connolly maintained that the issue of the winding-up petition had been an entirely proper course to adopt and in advising his client and undertaking the work in accordance with his client’s instructions there could be no questions that he sought to take an unfair advantage of a third party. The W Club Limited was his client’s opponent in litigation and the Respondent’s first duty was to look after the best interests of his client.”

In addition, “It was Mr Connolly’s submission that it could not be an abuse of the solicitor’s position to advise upon and use the due process of law in securing the best interests of his client. Mr Connolly had followed a recognised legal procedure and could not be said to have pursued an outlandish frolic of his own.”

[44]The Tribunal set out its findings on these charges, together with charge (xxi), the serious failure to honour the oral undertaking in relation to advertisement of the petition, at length. They relied in large part on the judgment of Laddie J.

[45]Before us, Mr Rhodes supported the submission that the Appellant, as solicitor for a client who was owed an undisputed sum by Wentworth, was entitled to present a winding up petition, and therefore he could not be guilty of a disciplinary offence in doing so.

[46]I accept that Wellbuild, as a creditor, was entitled to present a winding up petition in appropriate circumstances, albeit that part of the debt relied upon was disputed. But that does not meet the substance of the case against the Appellant. The Tribunal was entitled to, and did, consider his conduct as a whole from the writing of the two letters dated 31 January 2001 to the presentation and publication of the petition and the hearings before Laddie J. Mr Williams described the Appellant’s conduct as bullying and arrogant. The expression “Rambo-like” comes to my mind. The conduct in question of the Appellant included the terms of his second letter of 31 January 2001, written after the matter had been dormant for 15 months and against the background of an offer to meet to settle amicably; the illusory time given for payment of the entirety of a debt known to be disputed on substantial grounds; the description of the debt as undisputed when it was known not to be so; the reference in the letter to “proceedings”, which gave no clear or proper warning of the nature of the proceedings intended; the high-handed resort to a winding up petition in these circumstances, with no opportunity for the company to respond or to pay the debt; the entirely unfounded inclusion in the petition of the claim for interest; the failure to disclose to Wentworth’s solicitors the fact that advertising of the petition was imminent; and the curious and unfounded reference to Wentworth’s solicitors’ senior partner in reliance on an at best incompetent reliance on section 127. All of this, together with the failure to honour the undertaking in relation to advertising, was damaging to Wentworth, and exposed the Appellant’s client to wholly unnecessary costs and to liability for the costs of Wentworth. The egregious failure to honour the undertaking, the giving of which the Appellant disputed until a late stage, itself gave rise to breaches of Rule 1(d) and (f), and possibly of Principle 17.01 of the 1999 Guide. But the other matters to which I have referred, in my judgment, amply justified the decision of the Tribunal on these charges, which I would uphold.

Charge (xxv)

[47]This charged that the Appellant attempted to take unfair advantage of his former client Mr T (Principle 12.09 of the 1999 Guide and/or Practice Rule 1). It arose from two letters written by the Appellant to a former client, who had disputed the amount of the Appellant’s fee. The correspondence in which the client disputed the fee came to a temporary end with the client’s letter of 18 July 2000, which the Appellant did not answer. 8 months later, the Appellant sent to the former client a letter dated 23 April 2001:

“Dear Sir Trade Marks We have been checking our accounts and note that our invoice 2467 dated 13 June 2000 for £1,793.05 of which £1,293.05 remains unpaid. If the sum of £1,293.05 is received by cleared funds by 11.00 on Thursday, 26 April 2001, we will waive our claim for interest. If the sum of £1,293.05 is not received, interest will be claimed at the rate of 8% per annum. Yours faithfully Connollys”

Trade Marks Yours faithfully Connollys”

Yours faithfully

[48]The letter would have been received, assuming it was sent by first class post, on Tuesday 24 April 2001. On that day, the Appellant wrote again, in a letter sent by fax:

“We write further to our letter of 23 April 2001 and enclose a copy of the draft; 1. claim form 2. particulars of the claim which will be issued as soon as practicable after 27 April 2001 unless you pay our outstanding fees of £1,382.09 (£1.293.05 for our invoice number 2467 and £89.04 for interest) by cleared funds in this office by 26 April 2001. So far you have not paid or responded to our request for payment. If proceedings are issued we will claim legal costs and further interest.”

[49]The former client accepted the offer, and paid the sum of £1,293.05 by cheque on 25 April 2001, while expressing concern as to the amount of the bill. He complained to the OSS.

[50]The Appellant’s case was that he had reasonably and properly robustly claimed the fees to which he considered he was entitled. It was summarised by the Tribunal as follows:

“It had not been unreasonable to send a bill and offer to waive an interest claim if the bill was paid. With regard to the letters sent enclosing draft particulars of claim the Respondent had adopted a standard legal procedure and wished to reinforce the fact that he meant business. Doing so might have been considered harsh and tactless but could not be contrary to the Solicitors Code of Conduct. It could not be right to punish Mr Connolly for using a harsh technique which was perfectly reasonable in law.”

[51]The Tribunal’s finding is at paragraph 373:

“With regard to Mr T and allegations (xxiv) and (xxv), the Tribunal did consider that the Respondent sought to take an unfair advantage by informing the client of the firm if he did not pay the firm’s bill immediately he would be required to pay interest and it was both a heavy-handed and unacceptable way to treat a client of the firm by sending at almost the same time particulars of claim indicating that the firm was immediately ready to launch litigation.”

[52]Mr Rhodes submitted that since it was not suggested that the Appellant was not entitled to charge interest on his bill, it was not open to the Tribunal to find that the Appellant sought to take an unfair advantage of his former client, since he was only exercising his legal entitlement.

[53]Again, in my judgment that submission does not meet the substance of the charge. After a long period when he took no steps to obtain payment of the fee, the Appellant threatened to charge interest unless payment was made almost immediately. The ultimatum, backed by the threat of legal proceedings, gave the former client no real and certainly no sufficient opportunity to obtain legal advice as to the Appellant’s right to interest. It is the ultimatum, in the circumstances in which it was given, and the time given to comply with it, which constituted the offence charged. In my judgment it was proved. I would uphold the finding of the Tribunal.

Charge (xxx)

[54]This charged that the Appellant continued to act for two clients when there had arisen a significant risk of conflict of interest between them, in violation of principle 15.01 of the Guide to Professional Conduct of Solicitors 1996. The charge was dealt with by the Law Society and the Tribunal as a complaint by Mr O arising from the fact that the Appellant acted on behalf of two claimants, an NHS Trust and a Health Authority, in proceedings against a company, RO Ltd, in which he had a substantial interest.

[55]Mr O was a chartered surveyor and had been an established client of the Appellant since 1995. RO Ltd, a family company, had been involved in the construction of a building for the NHS Trust. Subsequently, as a result of Mr O’s recommendation, the Trust instructed the Appellant to act on its behalf. However, in early 1997 problems between Mr O and the NHS trust emerged. In a letter dated 28 May 1997, Mr O wrote to the Appellant informing him that the Trust owed him a sum of money, but that he was not requesting him to write to the Trust as he considered that he might have a conflict of interest. In July 1997, the Trust informed Mr O that it would be making alternative arrangements to complete the contract works.

[56]In September 1997, Connollys became aware that the Trust, their client, was considering making a claim against RO Ltd. Indeed, according to the Appellant’s letter to the Health Authority dated 19 June 2001, the Trust had decided to consider claims against RO Ltd in late 1996. Connollys did not disclose this to Mr O, for whom they continued to act. Mr O terminated the retainer in late 1998. While he was still a client, Connollys accepted instructions from the Trust in relation to a claim against RO Ltd.

[57]At some time before December 1998, the Appellant discussed the question of a conflict of interest with Miss B, a fee earner of the practice; they decided there was no conflict. On another occasion he discussed it with his partner, and they reached the same conclusion.

[58]In about May or June 2000, Connollys, on behalf of the Trust and the NE Health Authority, issued proceedings against RO Ltd. Mr O considered that Connollys had financial information relating to himself and to RO Ltd which gave the Trust an advantage. In June 2001, the Health Authority dis-instructed Connollys. Eventually, the papers were transferred to new solicitors. When the OSS reviewed the files, they found confidential and privileged letters written by Mr O to Connollys.

[59]The Appellant’s case before the Tribunal was that since Mr O and RO Ltd were separate legal entities, and Connollys had never acted for RO Ltd, there could be no relevant conflict of interest. In addition, the firm had no significant relevant information as a result of his having been instructed by Mr O. Letters had wrongly been placed on the Health Authority files; that was an error that was regretted.

[60]The Tribunal’s reasons for finding this charge proved were as follows:

“376. The Tribunal considers that a solicitor has a duty to examine his own position with the utmost care when he agrees to act for a claimant litigant against a defendant litigant who has been a client of his firm. It would in every case be a question for the judgment of the solicitor. Clearly a prudent solicitor, if there were any vestige of doubt, would conclude that he should not act in such circumstances. It was noteworthy in this case that Mr Connolly’s salaried partner had earlier recognised the possibility of a conflict and that question had been the subject of discussion. 377. The Tribunal considers that Mr Connolly’s argument that Mr O and RO Ltd were separate legal entities to be correct in law but disingenuous. The practical reality was that the interest of Mr O and his interest in RO Ltd were so closely interlinked that the distinction which Mr Connolly sought to make could not be supported. 378. Letters written by Mr O to Connollys were found on the Health Authority file when it had been handed to RadcliffesLeBrasseur. The Respondent’s position was that that was unfortunate and had not been intended. The letters had been filed in those files by accident. The fact that Mr O’s letters had appeared on the file of his opponent in litigation was perhaps the best possible illustration of why a solicitor may not act for two clients where there is a conflict of interest.”

[61]Before us, Mr Rhodes submitted that the existence of a conflict of interest is, as the Tribunal accepted, a question of professional judgment. The Appellant had considered the question of a conflict, and indeed had discussed it with colleagues on two occasions, and if he erred in his professional judgment in concluding that there was no conflict, that could not justify a finding of a disciplinary offence. His judgment was not one that could not be made by a reasonable professional man.

[62]I accept that generally the honest and genuine decision of a solicitor on a question of professional judgment does not give rise to a disciplinary offence. But that does not mean that for a solicitor to act where there is a significant risk of a conflict of interest cannot be a disciplinary offence. If a solicitor does not honestly and genuinely address the issue, he may be guilty of an offence. And if his decision is one that no reasonably competent solicitor could have made, it may be inferred that he did not (or could not) properly address the issue. That inference may well be appropriate where, as in the present case, the reason given for the solicitor’s professional decision is manifestly unsustainable.

[63]I agree with paragraph 377 of the Tribunal’s Findings. The Tribunal were entitled to find that there was such an obvious risk of a conflict of interest that to act for parties with an actual or potential adverse interest constituted a breach of principle 15.01. It is not irrelevant that the Appellant’s assistant solicitor’s attendance note dated 2 September 1997 shows that even her initial view was that the Appellant would be conflicted out from acting in litigation against RO Ltd “as (O) is an existing client”; and that the Health Authority too thought there was an obvious conflict. I would therefore reject the appeal against the finding that charge (xxx) was proved.

Charge (xxxvii)

[64]Charges (xxxvii) to (xliv) resulted from complaints made by the North Essex Health Authority in connection with the same litigation that had resulted in charges (xxx) to (xxxv), i.e. the proceedings brought by the Appellant on behalf of the NHS Trust and the Health Authority against RO Ltd and a firm of architects.

[65]Charge (xxxvii) alleged that the Appellant placed himself in a position where he was unable to comply with principle 16.06 in relation to his clients Mr O and/or the NHS trust. Principle 16.06 requires a solicitor to disclose, subject to exceptions, all relevant information to his client. The Tribunal found that it could not be satisfied that confidential information of Mr O was relevant to the Trust. In consequence, the Law Society did not seek to support the finding that this charge had been proved. I agree that the decision of the Tribunal on this charge cannot be supported. I would therefore allow the appeal against the adverse finding against the Appellant.

Charge (xxxviii)

[66]Charge (xxxviii) alleged that the Appellant failed to obtain written instructions to act for the North Essex Health Authority on its behalf, and/or failed to take any other appropriate steps to confirm instructions in breach of Principle 12.05 of the Guide to Professional Conduct of Solicitors 1999. Principle 12.05 of the 1999 Guide states:

“Where written instructions are received from a third party, a solicitor should obtain written instructions from the client that he or she wishes the solicitor to act. In any case of doubt the solicitor should see the client or take other appropriate steps to obtain obstructions. 1. The principle applies to a joint retainer…”

[67]This charge relates to two bodies, the NHS Trust and the Health Authority. After the Appellant had received instructions to act for the NHS Trust, it was dissolved. The Health Authority inherited the relevant rights and liabilities of the Trust on the dissolution of the Trust. In 2000 the Appellant issued proceedings on behalf of both bodies, presumably at some date after 1 June (see the attendance note referred to below). His basis for acting and issuing proceedings on behalf of the Health Authority appears from an attendance note dated 5 June 2001, made when the Health Authority questioned his authority to act on its behalf:

“Checking the file, locating telephone attendance note of a conversation between ADC and Alison Manton of 1 June 2000 in which Alison Manton confirms she has authority to authorise us to issue proceedings on behalf of both the trust and the health authority.”

The file note of 1 June 2000 itself was not in evidence. It was not listed as one of the documents submitted by the Appellant to the OSS with the Appellant’s letter of 25 October 2002.

[68]Miss Manton was not an employee of the Health Authority. Indeed, she was not even an employee of the NHS Trust: she was employed in the Estates Division of the NHS, known as Capitec: see Mr Greenwood’s letter of 30 November 2001. The Appellant should have known this: her status should have been ascertained by the Appellant and evidenced in a letter from her or in an attendance note. In fact the Health Authority did not know of the proceedings begun in its name until April 2001. It then instructed other solicitors in place of Connollys.

[69]The Appellant’s case was summarised by the Tribunal as follows:

“Ms AM appeared to be giving instructions and to be authorised to do so on behalf of the NHS parties including the Health Authority. There had been a number of meeting[s] at which only Ms AM had attended. She indicated that she had complete authority to give Connollys instructions and on behalf of Mr Connolly it was questioned as to whether Mr PG was being entirely genuine when he suggested that Ms AM did not have the authority she claimed. Connollys had not been given notification about the dissolution of the Trust and who or what would be its successor or successors. It would be said that the Respondent had been treated unfairly in view of the lack of information given to him. There could be no doubt that the Respondent had carried out the work for which he had billed. The complaint arising form the Health Authority had been yet another example of the OSS scratching the barrel to find things of which to accuse Mr Connolly. Yet again Mr Connolly did not fully respond to the OSS because of his failure of confidence in that body.”

[70]On behalf of the Appellant, Mr Rhodes submitted that this charge was misconceived: Principle 12.05 of the 1999 Guide relates to a third party, not to an agent, and Miss Manton’s authority should properly be considered as that of an agent.

[71]I am unable to accept this submission. In relation to the Health Authority Miss Manton was a third party. Principle 12.05 applied. I add that if Mr Rhodes’s submission were correct, principle 12.05 would have no application to a client that is a body corporate, since such a body necessarily acts by an agent.

[72]Mr Rhodes submitted that even if this principle did apply, it had not been breached. The obtaining authority from by Miss Manton on the telephone, recorded in the attendance note, constituted “appropriate steps”. In support of this submission, he relied on the fact that on 15 January 2001 Miss Manton had attended a conference with counsel who had not questioned her authority.

[73]I reject this submission too. Counsel is entitled to rely on his instructing solicitor’s authority to represent the person or entity for whom he purports to act. Absent some reason to doubt his solicitor’s authority, counsel is not required to question it. There is nothing in counsel’s advice on evidence to suggest that the question of Miss Manton’s or the Appellant’s authority was raised or addressed by or with him. The Appellant had no more than oral instructions to act on behalf of the Health Authority. That can rarely suffice. His instructions were not confirmed in writing by the Health Authority or by the Appellant to the Health Authority. The taking of proceedings on behalf of an actual or purported client is an important matter which involves the incurring of what may be substantial cost liabilities to the other parties to the proceedings. There was no reason of urgency relied upon to justify the omission of the basic precaution of asking for written instructions from someone at an appropriate level of seniority within the Health Authority. The Appellant’s own case before the Tribunal, summarised in paragraphs 256 to 259, demonstrate that he had wholly failed to take adequate steps to confirm and to document his instructions. In my judgment, therefore, the finding that this charge was proved was correct.

Charge (xxxix)

[74]This charge was that the Appellant had unduly delayed in releasing a client’s file of papers to its new solicitors in breach of Principle 12.13 of the 1999 Guide. Principle 12.13 is as follows: On termination of a retainer a solicitor should, subject to any lien, account to the client for any money still held on behalf of the client and, if so requested, deliver to the client all papers and property to which the client is entitled, or otherwise hold them to the client’s order.

[75]Mr Rhodes submitted that the Tribunal had wrongly found this charge proved, since at all relevant times the Appellant had been entitled to retain the papers in question in the exercise of his solicitor’s lien for unpaid fees.

[76]The documents before the Tribunal show that on 13 June 2001, Mr Greenwood, the Legal and General Services Manager of the Health Authority, spoke on the telephone to Mr Loome, the member of the Appellant’s firm dealing with the litigation, suggesting that another firm would be instructed in place of Connollys. The Appellant responded in an intemperate and inappropriate letter dated 19 June 2001 to Mr Beverley, the Chief Executive of the Health Authority, in which he sought to retain the instructions. In it, he criticised the proposal to remove his instructions: the suggestion was, he said “scandalous” in view of the cost implications for the Authority and the suggestion that Miss Manton did not have authority to instruct him on its behalf.

[77]It appears that in fact Connollys’ instructions had already been withdrawn by Mr Greenwood’s fax of 13 June 2001, referred to by Mr Beverley in his reply to the Appellant dated 20 June 2001 and the Health Authority’s letter of complaint of 30 November 2001. The Authority undertook to be responsible for Connollys’ fees. (The papers before the Tribunal did not include that fax.) Mr Beverley’s letter referred to Mr Loome’s having said during the telephone conversation of 13 June that he (Mr Loome) expected to have the files transferred to the Authority’s new solicitors, Le Brasseur J Tickle (“Le Brasseur”), by the early part of the following week, and expressed disappointment that they had not been transferred. In his reply dated 20 June 2001,Mr Beverley asked for the files to be transferred as a matter of urgency and without further delay. Le Brasseur themselves wrote asking for the files on 29 June, when a substantive response to Mr Beverley’s letter remained outstanding.

[78]Not having received a substantive response from the Appellant, Mr Mayes of Le Brasseur applied to the Court on behalf of the Health Authority for an order for delivery up of the papers held by Connollys. In response, by letter dated 4 July 2001 the Appellant made a complaint to the senior partner of Le Brasseur, alleging that Mr Mayes had made a “vexatious allegation” by applying for papers in circumstances in which Connollys had an absolute lien. The Appellant castigated the demand for the papers as unlawful, and alleged that Mr Mayes had acted in breach of Principle 12.07, which precludes a solicitor from acting when another solicitor is acting. This letter was the first assertion of a lien by the Appellant.

[79]In a further effort to retain instructions for the claimants, the Appellant wrote to Epping Forest PCT on 5 July 2001, repeating the allegations in his letter of 19 June 2001, and stating, remarkably, that “it is clear that this case does not need to involve NEHA any further …” This letter was the subject of Charge (xl), which I consider below.

[80]On 5 July 2001, the Appellant wrote to Mr Mayes himself, asking him to deal with his complaint and stating:

“For the avoidance of doubt we have an absolute lien on the papers and there is no process by which the Court can order them to be delivered up.”

The assertion that the Court could not order the papers to be delivered up was unfounded, as events were to prove.

[81]On 18 July 2001, the Chief Executive of Epping Forest PCT replied to the Appellant’s letter “reiterating that Epping Forest PCT is not the successor body in relation to” the litigation, and that the Health Authority would be taking on the responsibility, and confirming that the Appellant should take instructions from it.

[82]On 20 July 2001, on the application of the Health Authority, HH Judge Havery ordered the Appellant to transfer the papers on the written authority of Mr Vincent of the North Essex Mental Health Partnership, another body to which rights and liabilities of the NHS Trust had passed on its dissolution. The Appellant was ordered to pay the Health Authority’s costs. It is clear that at that stage the Appellant had not submitted his invoice, since the Law Society alleged that the Court ordered that the Health Authority should pay his invoice when he had done so, but that the sum paid should be held by him until a detailed assessment of his costs had been completed. The Law Society alleged that he delivered his bill on 1 August 2001, and the papers before the Tribunal include his invoice dated 31 July 2001 and his breakdown of 1 August 2001. The amount of the invoice, £9,479.32, was paid to the Appellant and the files released. Subsequently, the Appellant repaid £2,854.53, pursuant to the order of the costs judge, Master Simons, dated 30 September 2002. Master Symons ordered the Appellant to pay the costs of the assessment of costs.

[83]Before the Tribunal, the Appellant’s case as summarised by it was as follows: “257. When Mr PG telephoned Connollys and required the Health Authority’s file to be transferred, Connollys had no written details about the succession of the Health Authority’s cause of action.258. Under the circumstances Connollys had a duty not to proceed without reference to the successor of E & H Community NHS Trust, which at that time was thought to be EF Primary Care Trust.

259. It would not have been correct to transfer the file without obtaining clearance on instructions from what was thought to be the successor NHS Trust.

260. Ms AM appeared to be giving instructions and to be authorised to do so on behalf of the NHS parties including the Health Authority. There had been a number of meeting[s] at which only Ms AM had attended. She indicated that she had complete authority to give Connollys instructions and on behalf of Mr Connolly it was questioned as to whether Mr PG was being entirely genuine when he suggested that Ms AM did not have the authority she claimed. Connollys had not been given notification about the dissolution of the Trust and who or what would be its successor or successors. It could be said that the Respondent had been treated unfairly in view of the lack of information given to him. There could be no doubt that the Respondent had carried out the work for which he had billed. The complaint arising from the Health Authority had been another example of the OSS scratching the barrel to find things of which to accuse Mr Connolly. Yet again Mr Connolly did not fully respond to the OSS because of his failure of confidence in that body.

[84]Mr Rhodes did not suggest that this summary was incomplete or misleading. The lien was not referred to. On this basis, it is not surprising that the Tribunal did not address the issue of the Appellant’s reliance on his lien in its decision. Its reasons for finding this charge and charge (xl) proved were brief. “381. The Respondent was not able to demonstrate that he had obtained written instructions from the Health Authority to act on its behalf as a party to the proceedings and despite the complexities which arose when the Trust was dissolved and a new authority created, the Respondent took no vigorous steps to establish the position of his client or from whom he should take instructions. No client care letter or relationship had been established with the Health Authority on whose behalf Connollys had initiated proceedings. When he was told that his firm was no longer instructed by the Health Authority his behaviour was extraordinary and there was no doubt that he unduly delayed in releasing the files of papers to the new solicitors instructed.382. The Tribunal found allegation (xl) to have been substantiated and regarded the letter written by the Respondent to Mr T at EF Primary Care Trust to have been an attempt to retain the case. Such behaviour was wholly inappropriate. The letter that Mr Connolly wrote amounted to a serious breach of duty to his client. No client care letter had been written in this matter to the Health Authority and the Tribunal strongly deprecated the letter written by Mr Connolly dated 5th July 2001 indicating that a client body in whose name his firm without written instructions had initiated proceedings was now wrongly, when dis-instructing his firm, trying to take over litigation.

383. In fact the Respondent’s behaviour when his instructions in this matter, such as they were, came to an end was unprofessional and unacceptable. In addition the Respondent did not reply promptly and properly to correspondence addressed to him by the OSS.”

[85]It is also significant that the lien was not referred to or relied upon in the Appellant’s Notice of Appeal: see paragraph 60. The ground of appeal referred to there has not been pursued before us.

[86]In my judgment, if the real reason for the Appellant to have retained the Health Authority’s papers was his exercise of his lien, he would(a) have so informed the Authority immediately after 13 June 2001, and

(b) immediately have submitted his invoice for his unbilled work. He did not do so. The invoice submitted on 1 August was short, as was the breakdown of costs supporting it, and would have taken little time to produce. Instead, the Appellant sent his letter of 19 June 2001, seeking to retain the instructions that had been removed; and he failed to respond substantively to the Chief Executive’s letter of 20 June requesting the urgent transfer of the papers. The question of a lien was raised only on 4 July 2001, when there had already been a failure to comply with the Authority’s demand for its papers, in the intemperate letter to Le Brasseur, in circumstances in which it was impossible for the Health Authority to discharge his lien because no invoice had been submitted (or promised). The Authority was compelled to make application to the Court for delivery of the papers, and there is nothing to indicate that that application would have been necessary if the Appellant’s invoice had already been delivered.

[87]I would dismiss the appeal against the finding that this charge was proved.

Charge (xl)

[88]Charge (xl) is as follows:

“that he compromised or impaired his good repute or that of the solicitors profession and/or attempted to take unfair advantage of the NE Health Authority either for his own benefit or for the benefit of the EF Primary Care Trust in breach of Practice Rule 1 and/or Principle 17.01 of the 1999 Guide in a letter dated 5th July 2001 addressed to a Mr AT”

Practice Rule 1 and Principle 17.01 of the 1999 Guide were as follows:

“Rule 1: A solicitor shall not do anything in the course of practising as a solicitor, or permit another person to do anything on his or her behalf, which compromises or impairs or is likely to compromise or impair any of the following: (a) … (b) a person’s freedom to instruct a solicitor of his or her choice; (c) the good repute of the solicitor or of the solicitors’ profession; (d) the solicitor’s proper standard of work; (e) the solicitor’s duty to the Court. “Principle 17.01:Solicitors must not act, whether in their professional capacity or otherwise, towards anyone in a way which is fraudulent, deceitful or otherwise contrary to their position as solicitors. Nor must solicitors use their position as solicitors to take unfair advantage either for themselves or another person.” (a) … (b) a person’s freedom to instruct a solicitor of his or her choice; (c) the good repute of the solicitor or of the solicitors’ profession; (d) the solicitor’s proper standard of work; (e) the solicitor’s duty to the Court. “Principle 17.01:Solicitors must not act, whether in their professional capacity or otherwise, towards anyone in a way which is fraudulent, deceitful or otherwise contrary to their position as solicitors. Nor must solicitors use their position as solicitors to take unfair advantage either for themselves or another person.”

[89]The text of the letter is set out at paragraph 242 of the Tribunal’s decision. It was as follows:

“As you know, this claim is and always has been on behalf of [the Trust]. At the time proceedings were issued, it was thought that it was necessary to include [the Health Authority] as a Claimant because of the statutory position of [the Health Authority] at the time the contracts for the construction of L clinic were entered into. Neither of the Defendants have raised a point on this and I suspect that in reality it is not necessary for any [the Health Authority] to be a claimant. We have not been involved in the practicalities of the transfer of function from E and H Community and the Trust to EF Primary Care Trust but on the assumption that this case and the responsibility for the cost of it will transfer to EF primary Care Trust, it is a bizarre situation for [the Health Authority] to try to take the matter over at this stage. [The Health Authority] have never paid us for our efforts on E and H’s behalf, nor has it been asked to. The loss suffered was paid from E and H’s budget, it is only right that any money recovered from the Defendants should be on EF Primary Care Trust’s behalf, and not [the Health Authority’s]. Similarly, if instructions are transferred, EF Primary Care Trust is likely to bear the weight of costs that will be incurred in another firm of solicitors reading into and taking on this matter. Continuity of representation is very important in cases of this size and complexity and the attempt by Mr PG to terminate our involvement is already causing what might be a damaging and expensive delay and is exposing EF Primary Care Trust to potential costs orders. Whilst [the Health Authority] is entitled to give instructions as it wishes, it is clear that this case does not need to involve [the Health Authority] further as mentioned above and quite possibly the proper step following the transfers of function to EF Primary Care Trust would be to remove [the Health Authority] from the proceedings altogether, which would negate the point made by Mr PG and allow the claim to proceed to trial with no further need for [the Health Trust] involvement and save costs.”

[90]The Appellant’s case, as summarised by the Tribunal at paragraphs 254 to 260, did not address the terms of that letter.

[91]Paragraph 312 of the Tribunal’s decision is as follows:

“The Tribunal found allegations (xxxvii), (xxxviii), (xxxix), (xli), (xlii), (xliii) and (xliv) substantiated. Allegation (xl) was not substantiated. (Allegation (xxxvi) had been withdrawn.)”

[92]However, paragraphs 382 and 383 of the Tribunal’s decision are as follows:

“382. The Tribunal found allegation (xl) to have been substantiated and regarded the letter written by the Respondent to Mr T at EF Primary Care Trust to have been an attempt to retain the case. Such behaviour was wholly inappropriate. The letter that Mr Connolly wrote amounted to a serious breach of duty to his client. No client care letter had been written in this matter to the Health Authority and the Tribunal strongly deprecated the letter written by Mr Connolly dated 5th July 2001 indicating that a client body in whose name his firm without written instructions had initiated proceedings was now wrongly, when dis-instructing his firm, trying to take over litigation. 383. In fact the Respondent’s behaviour when his instructions in this matter, such as they were, came to an end was unprofessional and unacceptable. In addition the Respondent did not reply promptly and properly to correspondence addressed to him by the OSS.”

[93]On the basis of paragraph 312, and the specific statement in the second sentence, Mr Rhodes submitted that the Tribunal had not found charge (xl) proved. He pointed out that the second sentence was specific to charge (xl); if the Tribunal had found the charge proved, that charge would be been included in the first sentence.

[94]I do not accept this submission. In paragraph 382, the Tribunal not only stated that the charge had been proved, but also gave their reasons for so finding. It is evident that the “not” was inserted in the second sentence of paragraph 312 in error.

[95]That this is the case is confirmed by the Erratum signed by the clerk to the Tribunal purportedly on their behalf dated 17 October 2006. Mr Rhodes submitted that the Erratum should have been signed by the chairman of the Tribunal, and that there was no evidence that the clerk had been authorised by the Tribunal to issue it. This objection to the authority of the clerk was made only on the morning of the hearing before us. It should have been made much earlier, in good time for the Law Society to have considered whether to obtain an Erratum signed by the Chairman. In view of my conclusion on the original decision of the Tribunal, however, I do not need to consider the effect of the Erratum signed by the clerk. In the absence of any statutory requirement, I should have been reluctant to have held that it was necessary for the Law Society to prove that the clerk had been specifically authorised to issue the Erratum.

[96]While the Tribunal did not specify which of the alternatives contained in charge (xl) they found proved, the effect of their decision is clear, and in any event this charge depends solely on the terms of the Appellant’s letter of 5 July 2001 and his other letters referred to above. I have no doubt that his letter did both compromise and impair both his repute and the good repute of the profession. His letter was also likely to impair the Authority’s freedom to instruct the solicitor of its choice (see paragraph (b) of Practice Rule 1), and was clearly intended to do so. However, Chapter 17 of the Principles is entitled “Relations with third parties”. Given that the case against the Appellant has been presented on the basis that he was instructed on behalf of the Health Authority, it would seem to be inapplicable, even though the text of Principle 17.01 itself is applicable. For this reason (which was not relied upon by the Appellant), I would not make a finding that he infringed this Principle. Nonetheless, for the reasons I have stated, I would dismiss the appeal against the finding that this charge was proved on the basis that there was a clear breach of Practice Rule 1.

Charges (xlii) and (xliii)

[97]These charges were as follows:

“(xlii) that he attempted to take unfair advantage of a former client in breach of Principle 17.01 of the 1999 Guide and/Practice Rule 1 when delivering a bill to the Health Authority which included fees for work done following the termination of the retainer and for work done defending the former client’s application for an Order for delivery up of papers; (xliii) that he made a misleading statement when applying to the court to obtain an Order for payment of a bill when stating that “the clients were provided with full details about the terms of the retainer and the hourly rates referred to…” in breach of Practice Rule 1.”

[98]The Tribunal’s summary of the Law Society’s case referred to the order made by HH

Judge Havery referred to above and continued:

“247. Connollys delivered a bill to the Health Authority dated 31st July 2001 with his letter dated 1 August 2001. 248. On 5th September 2001 Le Brasseur J Tickle wrote to Mr Connolly indicating that their clients would pay his invoice upon receipt of further information about monies paid by the former client to the firm. That information was not provided. 249. The OSS in its letter to Mr Connolly dated 8th May 2002 requested the same information. As Mr Connolly did not respond to that letter, the information was not made available until some months later. 250. Without providing the information requested, Mr Connolly made application to the court for an order compelling the Health Authority to pay the bill of costs. In support of that application Connollys produced a breakdown of costs which stated: “Retainer The clients were provided with full details about the terms of the retainer and the hourly rates referred to below accord with the retainer” 251. The Health Authority had not been given such information. The breakdown of costs in support of the invoiced sum included work undertaken following the termination of the retainer on 13th June 2001, including the preparation of the letter written by Mr Connolly, to Mr B, the Chief Executive, on 19th June and further time reviewing the file on 18th June and preparation of court documents on 29th June.” “Retainer The clients were provided with full details about the terms of the retainer and the hourly rates referred to below accord with the retainer”

[99]The Appellant’s case as summarised by the Tribunal did not address these charges: see paragraphs 254 to 260 of the Tribunal’s decision. The Tribunal made no specific findings in relation to these charges, other than the first sentence of paragraph 383 cited above. Mr Rhodes submitted that in these circumstances the appeal against the findings that these charges had been proved must be allowed.

[100]However, these charges depend entirely on documentary evidence. The Appellant’s letter of 1 August 2001, his invoice dated 31 July 2001 and his breakdown of costs in support of that invoice all stated that he had included charges for work done after instructions had been withdrawn. The Appellant asserted that he was uncertain as to the authority of the Health Authority to require the return of its papers. I cannot understand this, since the Authority was then the only existing Claimant in the proceedings. If the Appellant was confused, this was because he had failed to clarify the position when purporting to join the Authority as a claimant. No competent solicitor would or should have included in his invoice any charges for work done after 13 June 2001. It is not suggested that the bill did not include work done in defending the Authority’s claim for the papers. To have included such work in the bill was indefensible. To have included these costs in circumstances where the former client was obliged under a court order to pay the invoice was to take unfair advantage of the Authority and the situation. In my judgment, charge (xlii) was proved.

[101]In relation to charge (xliii), the statement in the Appellant’s breakdown of costs, accurately cited in the Tribunal’s decision, and made to the Court when seeking an order for payment of the invoice was misleading. Since the invoice was addressed to the Health Authority, “the clients” would have been read as referring to it. The Appellant has not suggested that the Health Authority was in fact provided with “full details about the terms of the retainer and the hourly rates referred to ...” It could not have been, because it is clear that the Health Authority was unaware of the litigation until June 2001. Consistently with this, no copy of the alleged full details has been produced: the document produced (dated 14 February 1997) was addressed to Essex and Herts Community NHS Trust, not to the Health Authority.

[102]It may be that the Appellant had the NHS Trust in mind when he made the statement complained of. It was at best highly careless of him to have made the statement in the terms that he did. However, given the lack of any specific finding in relation to this charge, I would allow his appeal against the Tribunal’s decision in relation to it.

Conclusion

[103]For the above reasons, I would allow the appeal in so far as it relates to charges (ix), (x), (xi), (xxxvii) and (xliii) and would dismiss the appeal against the remainder of the charges found proved.

[104]I add that in my judgment the Law Society should avoid where possible formulating charges which include “and/or” allegations, such as charge (xl) in the present case, which comprised numerous alternatives. Where such a charge is laid, the Tribunal should make specific findings as to which allegation has been proved. In that example, good practice required findings whether the Appellant’s repute was compromised or impaired or both; whether the profession’s good repute was compromised or impaired or both; whether the Appellant attempted to take unfair advantage of the Health Authority, and if so whether he did so for his own benefit or that of the EF Primary Care Trust; and whether by reason of his conduct as thus found by the Tribunal he infringed Practice Rule 1 or Principle 17.01 of the 1999 Guide or both.

[105]In addition, where there are references to highly material documents, such as the attendance note of 1 June 2000 referred to at paragraph 67 above, the respondent to disciplinary proceedings should be specifically required to produce them. If necessary, if the original or a copy document was sent to a former client or other party (as in the case of the fax of 13 June 2001 referred to in paragraph 78 above), it should be sought from the recipient. Such documents should be available to the Disciplinary Tribunal or on appeal this Court.

Laws LJ:

[106]I agree that the orders proposed by My Lord, Stanley Burnton J, should be made for all the reasons he gives, and I have nothing to add.