Casson & Anor v The Law Society [2009] EWHC 1943 (Admin)

[2009] EWHC 1943 (Admin)Case No CO/815/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE SOLICITORS’
DISCIPLINARY TRIBUNAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/10/2009
Before
LORD JUSTICE RICHARDSMR JUSTICE MADDISON
Between
Michael CassonAppellantsMelvin WalesAppellantThe Law SocietyRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
The Appellants in Person for in personMr Michael McLaren QC (instructed by Townshends LLP)&Ms Jayne Willetts (Solicitor Advocate, Townshends LLP) for RespondentHearing Hearing date: 7 July 2009
Judgment
[1]This is the appeal of Michael Casson and Melvin Wales pursuant to section 49 of the Solicitors’ Act 1974 (“the 1974 Act”) against the decision of the Solicitors’ Disciplinary Tribunal (“SDT”) dated 21 October 2008, by which each of them was reprimanded and ordered to pay the costs of and incidental to the proceedings. The SDT also made an enforcement order to which I will refer in more detail later.[2]The appellants were formerly partners in the solicitors’ firm of Lee Davies & Co at premises in Harlow Essex. The clients of that firm included two to whom I will refer as Mr D and Ms S. Mr D instructed the firm in 2001 in relation to ancillary relief proceedings. Ms S instructed the firm in 2003 in relation to the sale of property.[3]On 25 May 2004 Lee Davies & Co ceased to practice, and the appellants became partners in the firm of Lee Davies LLP which practised from the same premises in Harlow.[4]On 16 February 2005 both appellants were adjudged bankrupt and Lee Davies LLP ceased to practise.[5]On 22 March 2005 Mr D made a complaint to the Legal Complaints Service (“LCS”), alleging inadequate professional services on the part of the appellant Mr Casson. The complaint was disputed by Mr Casson and investigated by the LCS. Whilst that investigation was proceeding, both appellants were discharged from their bankruptcies on 16 February 2006.[6]On the completion of its investigation into Mr D’s complaint, the LCS prepared a report which was submitted for his consideration to an adjudicator, Mr Ray Lawley. On 20 October 2006 Mr Lawley ruled that Mr Casson had indeed provided inadequate professional services for Mr D, and directed Mr Casson to pay compensation of £1945.56 within 7 days. Mr Casson did not comply with that direction.[7]On 6 December 2006 Ms S complained to the LCS, alleging inadequate professional services on the part of both appellants. This complaint too was contested and was investigated by the LCS. A report was submitted to an adjudicator, in this case Mr Stuart Waterworth.[8]On 22 May 2007 Mr Waterworth ruled that the appellants had indeed provided inadequate professional services for Ms S, and directed them to pay her compensation of £3587.20 within 7 days. Neither appellant complied with that direction.[9]Disciplinary proceedings were then brought by the Law Society in the SDT arising out of the failure of the appellants to observe the adjudicators’ directions to pay the sum of compensation to which I have referred. First, on 26 October 2007, the Law Society applied for Mr Casson to answer an allegation that he had been guilty of conduct unbefitting a solicitor in relation to Mr D. Then, on 14 January 2008, the Law Society applied for both appellants to answer an allegation that they had been guilty of professional misconduct in relation to Ms S. The Law Society also sought an order pursuant to paragraph 5(2) of Schedule 1A to the 1974 Act that the direction of the adjudicator Mr Waterworth in relation to Ms S’s complaint be treated for the purposes of enforcement as if it were contained in an order made by the High Court.[10]On 1 May 2008 the SDT determined a preliminary issue raised by both appellants. The appellants’ principal argument was that because the complaints of Mr D and Ms S both related to services provided by the appellants before they were adjudged bankrupt, any debts or liabilities arising in that connection were “bankruptcy debts” from which, by virtue of sections 281(1) and 382(1) of the Insolvency Act, 1986 (“the 1986 Act”) they had been released when their bankruptcies were discharged. Thus their failure to pay the sums awarded by the adjudicators should not have resulted in disciplinary procedures. The Law Society countered that the making of an award by an adjudicator involved the exercise of a discretion; that a debt or liability arose only if and when the discretion was exercised to make an award; that such a discretion in the instant case was exercised by each of the adjudicators concerned after the commencement of the appellants’ bankruptcies; and that the debts or liabilities arising from the adjudicators’ awards were therefore not “bankruptcy debts”.[11]The SDT was referred to a number of statutory provisions and to a number of authorities to which it will be convenient to refer at this stage.[12]I begin with the provisions of the 1974 Act governing the procedure by which dissatisfied clients of solicitors may complain to the LCS about inadequate professional services. This system, a creature of statute, is entirely distinct from the right of solicitors’ clients to commence actions in the courts alleging tort and/or breach of contract. There is a degree of overlap, to the extent that a particular failing on the part of a solicitor might prompt either a complaint to the LCS or a court action. But there are many differences between the two procedures. For example, a complaint might be made to the LCS about a solicitor’s failure to answer correspondence which could not found a court action for tort or breach of contract. On the other hand, the LCS will not usually investigate cases where a solicitor’s judgment is in question. A successful court action based on breach of contract or tort will result in an award of damages, whereas a successful complaint to the LCS will not necessarily result in any award of compensation at all.[13]In relation to complaints to the LCS, section 37A of the 1974 Act provides:
“Schedule 1A shall have effect with respect to the provision by solicitors of services which are not of the quality which it is reasonable to expect of them.” 14. Schedule 1A is entitled “Inadequate Professional Services”
. Its provisions which are relevant to these appeals are as follows: “1(1) The Council may take any of the steps mentioned in paragraph 2 (“the steps”) with respect to a solicitor where it appears to them that the professional services provided by him in connection with any matter in which he or his firm have been instructed by a client have, in any respect, not been of the quality which it is reasonable to expect of him as a solicitor.” “1(2) The Council shall not take any of the steps unless they are satisfied that in all the circumstances of the case it is appropriate to do so.” “1(3) In determining in any case whether it is appropriate to take any of the steps, the Council may – ” (a) have regard to the existence of any remedy which it is reasonable to expect to be available to the client in civil proceedings; and (b) where proceedings seeking any such remedy have not been begun by him, have regard to whether it is reasonable to expect him to begin them. “2(1) The steps are – ” a) determining that the costs to which the solicitor is entitled in respect of his services (“the costs”) are to be limited to such amount as may be specified in the determination and directing him to comply, or to secure compliance, with such one or more of the permitted requirements as appear to the Council to be necessary in order for effect to be given to their determination; (b) directing him to secure the rectification, at his expense or that of his firm, of any such error, omission or other deficiency arising in connection with the matter in question as they may specify; (c) directing him to pay such compensation to the client as the Council sees fit to specify in the direction; (d) directing him to take, at his expense or at that of his firm, such other action in the interests of the client as they may specify. “2(3) The power of the Council to take any such steps is not confined to cases where the client may have a cause of action against the solicitor for negligence.” “3(1) The amounts specified in a direction by virtue of paragraph 2(1)(c) shall not exceed £15,000.” “5(1) If a solicitor fails to comply with a direction given under this Schedule, any person may make a complaint in respect of that failure to the Tribunal; but no other proceedings whatever shall be brought in respect of it.” “5(2) On the hearing of such a complaint the Tribunal may, if it thinks fit …. direct that the direction be treated, for the purpose of enforcement, as if it were contained in an order by the High Court.” (a) have regard to the existence of any remedy which it is reasonable to expect to be available to the client in civil proceedings; and (b) where proceedings seeking any such remedy have not been begun by him, have regard to whether it is reasonable to expect him to begin them. a) determining that the costs to which the solicitor is entitled in respect of his services (“the costs”) are to be limited to such amount as may be specified in the determination and directing him to comply, or to secure compliance, with such one or more of the permitted requirements as appear to the Council to be necessary in order for effect to be given to their determination; (b) directing him to secure the rectification, at his expense or that of his firm, of any such error, omission or other deficiency arising in connection with the matter in question as they may specify; (c) directing him to pay such compensation to the client as the Council sees fit to specify in the direction; (d) directing him to take, at his expense or at that of his firm, such other action in the interests of the client as they may specify. The Council referred to in these provisions is the Council of the Law Society. In practice its functions under Schedule 1A are delegated to adjudicators such as Mr Lawley and Mr Waterworth. The Tribunal referred to in paragraphs 5(1) and 5(2) is the SDT.[14]I turn to the Insolvency Act 1986 (“the 1986 Act”). By section 281(1):
“…. where a bankrupt is discharged, the discharge releases him from all bankruptcy debts….”
. Section 382(1) provides:
“'Bankruptcy debt' in relation to a bankrupt, means ….any of the following: a) any debt or liability to which he is subject at the commencement of the bankruptcy; b) any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commencement of the bankruptcy”
. Section 382(3) provides:
“ For the purposes of references ….to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion; and references ….. to owing a debt are to be read accordingly.”
[15]The three authorities to which the SDT attached most importance were Glenister v Rowe [2000] Ch 76; R. (Steele) v Birmingham City Council and The Secretary of State for Work and Pensions [2007] 1 All E R 73; and Day v Haine and The Secretary of State for Business Enterprise and Regulatory Reform [2008] ICR 452. I will refer to these three cases as “Glenister”, “Steele” and “Haine” respectively. Glenister and Steele were decisions of the Court of Appeal. Haine was a decision of Sir Donald Rattee sitting in the Chancery Division of the High Court. (As appears from paragraph 28 and subsequent paragraphs of this judgment, Sir Donald’s decision was later reversed by the Court of Appeal).[16]In Glenister, Mrs Rowe began proceedings against her solicitor (Mr Glenister) in 1985 alleging negligence and breach of trust. In 1991, the proceedings were struck out, and Mrs Rowe appealed against the striking out. In 1992, before the appeal had been heard, Mr Glenister was made bankrupt. On 24 June 1995 he was discharged from his bankruptcy. On 25 July 1995 the Court of Appeal allowed Mrs Rowe’s appeal against the striking out of her action, and ordered Mr Glenister to pay costs up to a specified date. In subsequent proceedings the Court of Appeal held that the award of costs was not a liability, contingent or otherwise, at the date of the bankruptcy and was therefore not a debt from which Mr Glenister’s discharge from bankruptcy released him. By virtue of Order 62 Rule 3(2) of the Rules of the Supreme Court, Mrs Rowe had no right to recover the costs except under an order of the court. Whether or not to award costs was entirely in the discretion of the court. Unless and until the court exercised its discretion to make an award of costs, no debt of any kind existed. The making of an order for costs by a court could be seen as a contingency, in the sense of being something that might happen in the future, but it was not a contingent liability. Thorpe LJ at page 85 said that a distinction had to be drawn between a liability and the risk of a liability.[17]I turn to the case of Steele. In December 1999 Mr Steele made a successful claim for job seeker’s allowance. In September 2001 he was adjudged bankrupt. In March 2002 the Secretary of State, pursuant to section 71(1) of the Social Security Administration Act 1992 determined that Mr Steele had been overpaid £1684.29 of job seeker’s allowance between December 1999 and March 2001, because when first claiming the allowance he had represented that he was not in receipt of an occupational pension when in fact he was. In September 2003 Mr Steele’s bankruptcy was discharged, and in November 2003 the Secretary of State informed him of his intention to reclaim the outstanding balance of the overpayment.[18]Section 71(1) provided: “Where it is determined that … any person has misrepresented …. any material fact and in consequence of the misrepresentation….a payment has been made of a benefit….the Secretary of State shall be entitled to recover the amount of any payment which he would not have made…but for the misrepresentation…”.[19]Adopting the reasoning in Glenister, the Court of Appeal held that the Secretary of State’s determination was not a liability, contingent or otherwise, at the date of Mr Steele’s bankruptcy, and was therefore not a debt from which his discharge from bankruptcy released him. It was a matter for the discretion of the Secretary of State whether or not to make such a determination, and unless and until he did so, no debt of any kind existed. The determination in Mr Steele’s case had been made after he had been adjudged bankrupt. Thus he was not absolved by the discharge of his bankruptcy from liability to repay the sum referred to in the determination.[20]Sir Martin Nourse, who gave the first judgment, said that he was much attracted by the further argument that, even if he made a determination under section 71(1), the Secretary of State was not obliged to recover the amount of the overpayment, though he was entitled to do so; but since that point had not been taken by Counsel for the Secretary of State, he expressed no view on it.[21]In her judgment, Arden LJ added that the result would have been the same if at the date of the bankruptcy there had existed a separate liability at common law to repay the benefit overpaid, from which Mr Steele would have been released by his discharge from bankruptcy. She said: “I do not consider that those liabilities should be treated as a single, continuing liability for the purposes of section 281(1) of the 1986 Act”.[22]In Haine, a company terminated the employment of 40 of its employees without complying with its obligations to consult union representatives under section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992. Subsequently, the company went into liquidation. The union then made a complaint to an industrial tribunal pursuant to section 189 of the Act arising out of the company’s failure to consult. Section 189(2) provided:
“If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award”
. Section 190 made provision for the employees’ entitlement to remuneration pursuant to a protective award.[23]The tribunal upheld the complaint and made a protective award, by which the company was ordered to remunerate the dismissed employees for a period of 30 days. The liquidator of the company then applied to the Chancery Division of the High Court of Justice for directions as to whether the employees’ entitlements to remuneration under the protective award were provable in the liquidation.[24]The matter was governed by Rules 12.3 and 13.12 of the Insolvency Rules, 1986. Rule 12.3(1) provided:
“…all claims by creditors are provable by debts against the company…whether they are present or future, certain or contingent, ascertained or sounding only in damages.”
Rule 13.12(1) provided:
“’Debt’ in relation to the winding up of a company means… (a) any debt or liability to which the company is subject at the date on which it goes into liquidation; (b) any debt or liability to which the company may become subject after that date by reason of any obligation incurred before that date; …”
. Rule 13.12(3) provided: “…it is immaterial whether the debt or liability is present or future…certain or contingent…”. (a) any debt or liability to which the company is subject at the date on which it goes into liquidation; (b) any debt or liability to which the company may become subject after that date by reason of any obligation incurred before that date; …”.[25]Sir Donald Rattee held that at the date of the liquidation, the company owed no debt, future, contingent or otherwise, to the dismissed employees. All that the employees had was a right to apply to the tribunal for a protective award, the making of which was discretionary as indicated by the use of the word “may” in section 189(2). Unless and until the tribunal exercised its discretion to make such an award no debt existed. Accordingly, the employees’ entitlements to remuneration under the protective award were not debts provable in liquidation. Sir Donald adopted the reasoning in Glenister and Steele in coming to his conclusion. He thought the outcome harsh, but unavoidable.[26]Having considered these provisions and authorities, the SDT preferred the submissions made on behalf of the Law Society on the preliminary issue, and ruled that the awards made by the adjudicators were not bankruptcy debts, and that the appellants remained liable to pay the sums awarded.[27]The appellant Mr Casson then sought permission to apply for judicial review of the decision of the SDT on the preliminary issue, but his application was refused on 16 October 2008.[28]At a further hearing in the disciplinary proceedings on 21 October 2008 the appellants argued that the SDT should reconsider its ruling at the preliminary hearing, because the decision of Sir Donald Rattee in Haine had since been the subject of a successful appeal to the Court of Appeal ([2008] ICR 1102). This is an appropriate time to which to examine the Court of Appeal’s decision in Haine.[29]It is clear that the Court of Appeal considered arguments not advanced before Sir Donald and approached the case in a different way from him. The Court regarded the problem that arose in Haine as essentially one of employment law, albeit set in the context of insolvency. Paragraph 8 of the Court’s judgment reads as follows:
“For us, the principal question is whether or not the provisions of the 1992 Act can be properly construed so as to fulfil and enact into English law the provisions of the consolidated Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (the Directive). The Directive does not feature in Sir Donald’s judgment, and was not in our papers. We had to call for it. Yet it is central to the case, for, if Sir Donald is right, the UK will have failed to implement the Directive properly.”
In paragraph 9 the Court referred to the duty of the UK under EU law to take all measures necessary to ensure that infringements of EU law were penalised under conditions which made the penalty “effective, proportionate and dissuasive”. In paragraph 56 it observed that a protective award under section 189 of the 1992 Act was to be a measure that enforced the obligation [to consult] placed on the employer, which obligation was to be backed by a penalty which was “effective, proportionate and dissuasive”.[30]The Court also referred to paragraph 45 of the judgment of Peter Gibson LJ in GMB v Susie Radin Ltd [2004] 2 All E R 279, to which case I will refer as “Susie Radin”, in which it was said that “…a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the ET consider appropriate”.[31]Against this background the Court came to the following inter-related conclusions: a) The liability to pay a protective award was at the very least a contingent liability within the meaning of Rule 13.12(3) of the Insolvency Rules, 1986 (see para 57 of the judgment). b) The word “may” in section 189(2) of the 1992 Act was to be read as a word of empowerment rather than as the statutory bestowal of a judicial discretion (see para 63). c) In the Haine case, a protective award for the maximum amount permitted was not only right, but inevitable (see para 65). d) “In these circumstances, and against this background, it seems to us unreal to describe the protective award as depending upon the exercise of a judicial discretion. The tribunal had no option but to make an award. If it had failed to do so its ruling would have been open to challenge as perverse. In our judgment, therefore, it is in no sense stretching the language of Rule 13.12(1)(b) to describe the protective award as being “a liability to which the company may become subject after it went into liquidation by reason of an obligation incurred before that date.” Indeed, we think that is precisely what it is.” (See para 67). e) It followed that the protective awards were contingent liabilities which had arisen before the liquidation of the company and were therefore provable in the liquidation (see paras 88 & 89).[32]The Court went on to consider the cases of Glenister and Steele. In essence, the Court distinguished both and detracted from the authority of neither. In paragraph 13 of its judgment it observed that “…neither was concerned with EU law, still less a possible failure to implement a Directive.” In paragraph 69 the Court stated:
“…there is no doubt in our minds that an employment law analysis of the case, based as it is on the Directive and the decision of this court in Susie Radin, provides a powerful basis upon which to distinguish both Glenister and Steele.”
Paragraph 75 of the judgment reads:
“In our judgment, Glenister is readily distinguishable…We do not doubt either the correctness of the decision, or the fact that it is binding on us. However, we are of the view there is a plain distinction between a prospective and discretionary award of costs (which is not only dependent upon outcome but upon a host of case specific factors and is wholly uncertain) and a liability for a protective award which has arisen directly from the breach of the duty to consult and which, based on the legislative scheme we have described, will be for the maximum period and will only be reduced if there are mitigating circumstances justifying a reduction.”
In paragraph 85, the Court said:
“In our judgement, Steele is distinguishable for similar reasons to those which make Glenister distinguishable. In Steele the Secretary of State plainly had a discretion whether or not to make the determination referred to, and until he did so, no liability arose. However, and for the reasons we have already given, this is, in our judgment in no sense analogous to the “discretion” which arises in the Employment Tribunal following a breach by employers of their duty to consult under section 188. Under the latter it is the employer’s breach which triggers the procedure under sections 189 and 190, and rendered them liable both to the declaration and the protective award under section 189(2).”
[33]I return to the history of the proceedings in the present case. The SDT acceded to the appellants’ application to reconsider its earlier decision on the preliminary issue in the light of the Court of Appeal’s decision in Haine; but having done so, it affirmed its earlier decision. It then went on to consider submissions made by the appellants as to the merits of the rulings made by the adjudicators, but rejected those submissions also. Accordingly, it found the allegations of conduct unbefitting a solicitor and professional misconduct proved. It reprimanded the appellants, and ordered them to pay the costs of and incidental to the applications. In addition, pursuant to paragraph 5(2) of Schedule 1A to the 1974 Act it ordered that the adjudicator’s direction in relation to Ms S’s complaint be treated for the purposes of enforcement as if it were contained in an order made by the High Court. The SDT announced its decision at the end of the hearing of 21 October 2008 and provided detailed written reasons on 7 January 2009.[34]The appellants now appeal against the decision of 21 October 2008. They take no further point in relation to the findings that they had provided inadequate professional services to Mr D and Ms S. For that reason, it has been unnecessary in this judgment to consider the allegations made by those former clients and the appellants’ responses. However, the appellants maintain their submission that the sums awarded by the adjudicators were bankruptcy debts; that their discharges from bankruptcy therefore absolved them from liability to pay those sums; and that they were therefore not guilty of the allegations of conduct unbefitting a solicitor and professional misconduct in failing to pay those sums. They submit that the SDT was wrong, when ruling on the preliminary issue, to rely on Glenister, Steele and Haine (as then decided), each of which they submit turned on its own facts and did not establish any general principle. Alternatively, the SDT was wrong to maintain its early ruling when asked to reconsider in the light of the Court of Appeal’s decision in Haine. The appellants have also raised certain discrete points to which I will return at the end of this judgment.[35]The Law Society in essence maintains the arguments it advanced before the SDT. It submits that the adjudicators’ awards were discretionary. No debt or liability arose until the awards were made. The sums awarded were not bankruptcy debts. The appellants were liable to pay those sums, and were properly disciplined for failing to do so.[36]In my judgment the decisions reached by the SDT both on 1 May 2008 and on 21 October 2008 were clearly correct. The cases of Glenister and Steele, though inevitably based on their own facts, established a consistent principle of general application that where a court or tribunal has a discretion whether or not to make an award, any sum awarded in the exercise of that discretion does not exist as a debt or liability until the award is made. That principle was not affected by the decision of the Court of Appeal in Haine. The Court of Appeal in that case was concerned to ensure that principles of EU law in relation to collective redundancies should be implemented by the law of the UK. It considered it unreal to describe the making of a protective award in the circumstances of that case as depending on the exercise of a judicial discretion. The Court of Appeal carefully distinguished the cases of Glenister and Steele, and left untouched the general principle emerging from those cases to which I have referred.[37]Applying that principle, the SDT was also in my judgment clearly right to decide that the appellants’ liability to pay the sums awarded by the adjudicators had not arisen before their bankruptcies, and had thus not been discharged upon their discharge from bankruptcy. This can be seen by considering what must happen before a complaint to the LCS (if made at all) results in an enforceable award of compensation. i) First, the LCS has to decide to investigate whether inadequate professional services have been provided. Nothing in Schedule 1A to the 1974 Act imposes a duty on the LCS to do so, and we were informed by Mr McLaren QC for the respondent that in practice the LCS sometimes declines to entertain complaints at all. This is borne out by a LCS publication entitled “Common Questions” with which this Court has been provided, on page 1 of which it is said that “There [are] some types of complaints that are not appropriate for us to deal with.” Six examples then follow. One is “complaints made where it would be more appropriate for you to take court proceedings.” ii) If the LCS does decide to investigate the complaint, an adjudicator then has to decide whether inadequate professional services have been rendered. iii) If the adjudicator decides that such services have been rendered, and thus upholds the complaint, it is in my view clear that the adjudicator then has discretion whether or not to direct the payment of compensation. Such a direction is only one of four steps available to the adjudicator under paragraph 2(1) of the Schedule 1A; and the word “may” in paragraph 1(1) in my judgment confers a discretion whether or not to take any of the steps. Indeed, paragraph 1(2) requires the adjudicator not to take any of the steps unless satisfied that it is appropriate to do so. iv) If the LCS decides to investigate the complaint, the adjudicator upholds it and (notwithstanding paragraph 1(2)) exercises his or her discretion to direct the payment of compensation, the award is not at that stage enforceable, and may never become so. It becomes enforceable only if: a) a complaint is made to the SDT arising out of a failure to comply with the direction (see para 5(1) of Schedule 1A); and b) the SDT, in the exercise of its further discretion, sees fit to direct that the direction be treated for the purpose of enforcement as if it were contained in an order made by the High Court (see para 5(2)). The fact that an adjudicator’s award is not enforceable without more is a factor which in my view points strongly away from the award’s constituting a debt or liability. The observations of Sir Martin Nourse in Steele to which I referred earlier in this judgment are consistent with that view.[38]In the circumstances, it is in my view impossible to describe the prospect of a complaint to the LCS as creating a liability or debt, either contingent or of any other description. To adopt the words used by Thorpe LJ in Glenister it creates no more than a risk of a liability. The fact that there may be a concurrent liability in tort or contract does not affect this conclusion, for the reasons explained by Arden LJ in Steele. A complaint to the LCS is entirely different in nature and consequence from an action in the County Court or High Court.[39]I now turn to further discrete grounds of appeal advanced by the appellants. These are set out in paragraphs 5 to 8 of their Notices of Appeal.[40]In paragraph 5 it is submitted that the SDT wrongly concluded as a matter of fact that the appellants had the means to pay the sums awarded by the adjudicators. As to that, I accept the respondent’s submission that no such express finding appears in the SDT’s ruling of 21 October 2008. The SDT had no evidence of the appellants’ means and assets, save that they were both employed as solicitors, and neither does this Court. I see no merit in this ground of appeal.[41]Paragraph 6 states:
“The SDT breached the appellants’ human rights by imposing the penalty it did without finding any conduct on the part of the appellants which merited such penalty and over which the appellants had control.”
I have not found this ground of appeal easy to follow. Quite simply, the SDT upheld the adjudicators’ findings that both appellants had rendered inadequate professional services. The reference in paragraph 6 to the appellants having no control appears to be related to the matter raised in paragraph 7, to which I now turn.[42]In paragraph 7 it is said that “The SDT failed to apply or even to understand the accident of timing argument on the part of the appellants.” The argument as I understand it is that if, contrary to the appellants’ principal submission, the adjudicators’ awards were not bankruptcy debts, then it was only due to an accident of timing, beyond the control of the appellants, that the appellants find themselves liable to pay the sums awarded. Had the awards been made before rather than after their bankruptcies, the sums awarded would undoubtedly have been bankruptcy debts, and the appellants would have been released from their liability to pay by their discharges from bankruptcy. For these reasons the SDT should not have made any disciplinary orders. I find this an unattractive argument for two reasons. The first is that it ignores the reality of the situation, namely that the adjudicators’ awards post-dated the bankruptcies. The second is that an award, whenever made, would only have been made because the appellants had provided inadequate professional services. I therefore see no merit in this ground of appeal.[43]Finally, in paragraph 8 it is suggested that the Solicitors Regulation Authority should have advised Mr D and Ms S to claim against the appellants’ professional indemnity insurance policy; and that the SDT failed to take the possibility of such a claim into account. In my view, the position of Mr D and Ms S vis-à-vis the appellants’ insurance policy had no bearing on the validity of the SDT’s rulings against which this appeal is brought. Irrespective of the insurance position, Mr D and Ms S were entitled to complain to the LCS, and to set in train the procedure described earlier in this judgment which led ultimately to the adjudicators’ awards and the orders made by the SDT. This is another ground of appeal in which I can find no merit.[44]I would add that none of the matters raised in paragraphs 5 to 8 of the appellants’ Notices of Appeal affect the central issue arising in this case, namely whether or not the adjudicators’ awards constituted bankruptcy debts.[45]For these reasons, I would dismiss these appeals.[46]I agree.

Cited in 5 later judgments