Williams v Solicitors Regulation Authority [2017] EWHC 1478 (Admin)

[2017] EWHC 1478 (Admin)Case No CO/954/2017
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/06/2017
Before
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION(SIR BRIAN LEVESON)MRS JUSTICE CARR
Between
PETER RHYS WILLIAMSAppellantSOLICITORS REGULATION AUTHORITYRespondent
Patrick Lawrence Q.C.and Scott Allen (instructed by Clyde & Co LLP) for AppellantMichael McLaren Q.C.and Marianne Butler (instructed by Capsticks Solicitors LLP) for RespondentHearing Hearing dates : 7, 8 and 9 June 2017
Judgment ApprovedMrs Justice Carr :Introduction
[1]This is an appeal brought by Mr Peter Williams (“Mr Williams”), a former solicitor, pursuant to s. 49 of the Solicitors Act 1974. He appeals against findings of misconduct against him by a constitution (“the Tribunal”) of the Solicitors Disciplinary Tribunal (“the SDT”) on 9th December 2016, with written judgment on 1st February 2017 (“the judgment”), as follows: i) Representing that his client did not have a valuation of a certain property in the sum of £3.9million (“the £3.9m representation”): misconduct involving dishonesty; ii) Representing that negotiations were proceeding between his client and F Limited (“the negotiation representations”): misconduct amounting to a want of integrity; and iii) Representing that he acted for F Limited (“the F Ltd representations”): misconduct amounting to a want of integrity.[2]Mr Williams was struck off the Roll of Solicitors as a result of these findings, and ordered to pay costs in the sum of £195,000. The appeal has been heard on an expedited basis.[3]The appeal is said to raise a number of issues of general importance, including as to how allegations of dishonesty and want of integrity are to be pleaded and proved, and the scope of the rule in Browne v Dunn (1893) 6 R 67 (“Browne v Dunn”). As will be seen below, a wide-ranging attack has been made on the approach and findings of the Tribunal. Summary of relevant factual background Mr Williams and Wilsons

Summary of relevant factual background

[4]Mr Williams is now 61 years old. He was admitted to the Roll of Solicitors in October 1982. He practised successfully as a solicitor, principally as a litigator, and with a speciality in the law of agricultural holdings. He is the author of the leading textbook in this area: Scammell, Densham and Williams. He was for many years a partner at Burges Salmon LLP (“Burges Salmon”) until November 2010, when he became a member of Ebery Williams LLP. On 1st April 2011, Wilsons Solicitors LLP (“Wilsons”) acquired the practice of Ebery Williams LLP. The plan had been for Mr Williams to develop the agricultural holdings practices at Wilsons, where he was an equity partner. Internal disagreements broke out, and Mr Williams (and a fellow partner) were excluded from Wilsons. Mr Williams obtained an injunction, and was re-admitted to Wilsons’ Bristol office. However, on 30th June 2012 he retired as a result of a resolution, passed by a 75% majority of the membership, authorising the service of an Involuntary Notice of Retirement on him. He joined Michelmores as an equity partner in October 2012.[5]The Involuntary Notice of Retirement was the subject of acrimonious High Court proceedings brought by Mr Williams against Wilsons. That litigation was compromised in November 2013. During the course of those proceedings Wilsons carried out detailed reviews of Mr Williams’ files. That review led Wilsons to make a report to the Solicitors Regulation Authority (“the SRA”) alleging that Mr Williams had committed a “serious criminal offence”. This report led to the disciplinary proceedings subsequently brought against Mr Williams. As was established before the Tribunal, Wilsons’ report to the SRA was clearly made in the context of the High Court proceedings, and designed to put pressure on Mr Williams tactically (although this was something that had been expressly eschewed by Wilsons at the time of making its report). The report was in fact made on the same day that Wilsons made a “without prejudice” offer of settlement to Mr Williams.

Mr Williams’ dealings with the client

[6]The allegations against Mr Williams arise out of his dealings with or on behalf of the client in 2011 and 2012. In the absence of complaint or waiver of privilege by the client, there has been extensive anonymisation not only as to his identity – he is referred to simply as “the client” – but also as to other individuals and the property involved.[7]The judgment, contained in a public document (Case No. 11421-2015), sets out a detailed and lengthy recitation of (essentially non-contentious) factual background (see paragraphs 27 to 82). It suffices to set out at this stage in outline only a broad background of the facts necessary to understand the issues on this appeal.[8]The client was made bankrupt on 17th April 2009, and (automatically) discharged from bankruptcy on 17th April 2011. He owned a property (“the property”), which was mortgaged in favour of Northern Rock (Asset Management plc (“Northern Rock”). The mortgage debt at all material times was some £2.9million, rising towards £3million. A man known to the client, “JD”, appeared to be (or was represented to Mr Williams as being) interested in purchasing the property for £3.9million. The precise nature of the relationship between the client and JD is not known, but it does not appear that JD and the client were dealing at arms’ length.[9]Mr Williams met the client for the first time on 18th February 2010, whilst still a partner at Burges Salmon. Mr Williams decided not to act, informing the client of this in a letter dated 2nd March 2010. He was not comfortable with the role that he was being asked to undertake, namely to negotiate with Northern Rock to achieve the lowest price in the knowledge that a significantly higher price was already available, rather than merely in the belief that a higher price could be achieved.[10]However, the client returned to Mr Williams in April 2011, by which time Mr Williams was at Wilsons. At a meeting on 27th April 2011, the client instructed Mr Williams to act in connection with a proposed transaction involving the purchase of the property from, or with the consent of, Northern Rock, at a price which was consistent with its market value. The purchasing entity was to be a company with which the client would have a connection. The client said that he hoped he would, thereafter, be able to profit from the sale of the property to JD. Mr Williams said that he was only prepared to act if: i) The purchase from Northern Rock was at market value; ii) The client obtained a proper valuation, which would be disclosed to Northern Rock; iii) The connection between the purchaser and the client was disclosed; and iv) JD instructed an independent solicitor.[11]JD then retained a solicitor. Mr Williams also received (somewhat unusual) instructions to the effect that JD had made payments of about £900,000 to £1million, rising to about £1.4million.[12]On 19th May 2011, Mr Williams instructed Carter Jonas to provide an open market valuation of the property. On 16th June 2011, Carter Jonas telephoned Mr Williams to state that the property was valued in the sum of £2.3million. On 26th July 2011 Carter Jonas provided a written report to the same effect.[13]On 22nd June 2011, Mr Williams wrote to Northern Rock, disclosing that the proposed purchaser was a “family friend”, and explaining that “our client will seek to negotiate with the Purchaser in order to try to obtain an increase in the offer, ideally to £2.3 million”. This is the first of the negotiation representations. On 13th July 2011, Northern Rock replied, stating that the connection between the parties meant that it would only ever be prepared to sell at a price which was fully supported by independent valuation evidence. Northern Rock then obtained two independent valuations of the property - one of which was from Landmark Surveyors in the sum of £2.2million, and sent to Mr Williams. The other was by Shepherd Chartered Surveyors, not provided to Mr Williams, and not in evidence before the Tribunal, or on this appeal. But, given that Northern Rock subsequently agreed to the sale of the property at that price, the valuation is likely to have been at or around the sum of £2.2million.[14]On 16th August 2011, in the second of the negotiation representations, during a telephone conversation between Mr Williams and Northern Rock, Mr Williams stated that he was:
“… currently engaged in the process of trying to get a firm increased offer … and will be pressing the prospective purchaser through solicitors to see if the price can be improved.”
[15]In September 2011, Mr Williams attended a hearing in possession proceedings brought by Northern Rock. These proceedings were adjourned.[16]On 1st November 2011, Mr Williams wrote to Northern Rock explaining that:
“The offer of £2.2 million is not an offer ‘by our client’. It is an offer which has been made to our client by a prospective purchaser. … Our Client’s concern … is that the offer of £2.2 million, in a continuing difficult market, will be reduced and not increased.”
[17]On 9th November 2011, Northern Rock wrote to Mr Williams, agreeing to sell the property for £2.2million. However, despite communications between Mr Williams, JD’s solicitor, the client, Northern Rock, and the potential funders of a purchase of the property by JD, the sale by Northern Rock did not proceed.[18]On 8th March 2012, Mr Williams wrote to Barclays and HSBC, in identical terms, regarding the possibility that they might provide funds to F Ltd for the purchase of the property. In both letters, Mr Williams stated that his firm acted for F Ltd. These were the F Ltd representations.[19]On 13th April 2012, Mr Williams sent CKFT Solicitors (“CKFT”) – the solicitors for the client’s trustee in bankruptcy – a letter stating, among other things, that the client did not have a valuation of the property at £3.9million. This was the £3.9m representation.[20]In May 2012, the relationship between Mr Williams and Wilsons finally broke down, leading to the proceedings already referred to above.[21]In November 2013, an order was made pursuant to s. 91 of the Law of Property Act 1925, authorising sale of the property at £2.25million. In July 2014, Northern Rock sold the property to third party purchasers for £2.4million.

Procedural history

[22]As already indicated, Wilsons made a report to the SRA in March 2013. The allegations against Mr Williams were, essentially, that during the course of his retainer, and whilst advising the client, Mr Williams devised and sought to implement a scheme to defraud the client’s creditors, and, in an attempt to give effect to the scheme, he misled, or caused his client to mislead, various third parties.[23]Mr Williams’ solicitors wrote to the SRA on 18th June and again on 7th August 2013. On 29th August 2013 the SRA confirmed that the complaint was being considered and that it might need to contact Mr Williams in due course. In response to further enquiry on 25th March 2014, the SRA responded on 26th March 2014 to say that the matter was still being investigated. Only on 2nd October 2014 did the SRA write to Mr Williams to state that it was commencing a formal investigation.[24]There was clearly a significant delay by the SRA in investigating this matter, something about which the Tribunal rightly expressed concern in the judgment. Whilst the delay was not such as would render the proceedings abusively unfair (and no submission was advanced either below or on appeal to this effect), the 18-month delay between the report and the formal investigation was excessive, and may have affected the reliability of memories.[25]The SRA served a statement pursuant to Rule 5(2) of the Solicitors (Disciplinary Proceedings) Rules 2007 on 22nd August 2015. No allegations of dishonesty were then made. However, on 1st December 2015, an amended Rule 5 statement was served, now alleging dishonesty and adding an allegation that Mr Williams had deceived the court at a hearing of possession proceedings on 22nd September 2011 (“the Rule 5 statement”).[26]Mr Williams served Answers to both the original and amended Rule 5 statement on 9th October 2015, and 14th June 2016, respectively. He then served two witness statements for the purpose of the hearing, the first (dated 12th August 2016) running to just under 150 pages (without exhibits).[27]The pleaded case against Mr Williams included that he had lied about the value of the property, which was said to be substantially in excess of £2.2million. That case was advanced and maintained by the SRA until closing submissions. It was (and continues to be) submitted for Mr Williams that it should never have been advanced, not least in the context of the several professional valuations to the contrary which were obtained at the time. At the stage of closing submissions, as Mr Williams had been requesting for some time, the SRA withdrew its case as to deceitful misrepresentation about market value. The Tribunal ordered the SRA to re-amend the Rule 5 statement accordingly. It did so (albeit, so it is submitted for Mr Williams, inadequately). For the avoidance of doubt, references below to the Rule 5 statement are to the amended (and not the re-amended) document.

The Rule 5 statement

[28]In SRA v Chan and others [2015] EWHC 2659 (Admin), Davis LJ criticised the charges levelled against the solicitor respondents as being “for the most part unduly and unnecessarily convoluted and prolix” (at [23]). With such pleading, there was the “real risk that a tribunal will lose sight of the larger picture and will treat the more and the less significant points alike” (at [26]). It was desirable for charges to be limited to a minimum (at [27]).[29]No such criticisms were levied at the Rule 5 statement. Although Mr Williams repeatedly invited the SRA to withdraw certain allegations, ultimately successfully, at no stage was there any attempt to strike out all or part of the Rule 5 statement – either as an abuse of process or otherwise. Indeed, Mr Lawrence QC for Mr Williams commends it as a carefully constructed document.[30]The Rule 5 statement followed a standard pattern as follows: i) The headline allegations were spelt out: Mr Williams, in the course of advising and/or acting on behalf of the client in relation to the proposed sale of the property and the related communications and/or negotiations with the client’s mortgagee, his trustee in bankruptcy and third parties:
“ 1.1 … failed to act with integrity in breach of Rule 1.01 of the Solicitors’ Code of Conduct 2007 and (from October 2011) Principle 2 of the SRA Principles 2011. 1.2 … failed to act in the best interests of his client in breach of rule 1.04 of the Solicitors’ Code of Conduct 2007 and (from October 2011) Principle 4 of the SRA Principles 2011. 1.3. … failed to behave in a way that maintains the trust the public places in him and in the provision of legal services in breach of Rule 1.06 of the Solicitors’ Code of Conduct 2007 and (from October 2011) Principle 6 of the SRA Principles 2011. 1.4 ... took unfair advantage of third parties in his professional capacity in breach of Rule 10.1 of the Solicitors’ Code of Conduct 2007 and (from October 2011) as a consequence he failed to achieve the mandatory Outcome (11.1) in the SRA Handbook 2011. 1.5 …. deceived or knowingly misled the Court in breach of Rule 11.01(1) of the Solicitors’ Code of Conduct 2007.”
It was stated that all the allegations were made on the basis of dishonesty. However, “proof of dishonesty was not an essential ingredient for proof of any of the allegations”; ii) The documents relied upon were exhibited; iii) The facts and matters relied upon were set out. Paragraph 7 stated: “ … The thrust of the allegations is that the Respondent devised and sought to implement a scheme to defraud the client’s creditors and in an attempt to give effect to the scheme he misled or caused his client to mislead various third parties …” iv) The relevant parts of the Solicitors’ Code of Conduct 2007 and the SRA Principles 2011 were then set out; v) The case was then divided into three parts: a) Devising the fraudulent scheme; b) Deceitful misrepresentations; and c) Misleading the court. vi) The test for dishonesty as set out in Twinsectra Ltd v Yardley and others [2002] UKHL 12; [2002] 2 AC 164 was propounded and dishonesty alleged; and vii) The course of the SRA’s investigation was then set out.[31]As for the section dealing with devising the fraudulent scheme, it was alleged that Mr Williams knew (or ought to have known) that he was advising the client to undertake a course of action that could only achieve its objective through: a) partaking in a transaction that would have been vulnerable to an application under s. 423 of the Insolvency Act 1986 to set aside as being at an undervalue; and b) making misrepresentations to third parties. Such deceit would have involved misrepresentations about market value, about the related concept of negative equity, and as to the absence of any connection between the client and the purchasing company.[32]As for the section dealing with deceitful misrepresentation, the case fell into two parts: i) Misrepresentations as to the value of the property; and ii) Misrepresentations as to the structure of the transaction.[33]Because Mr Williams takes issue with the adequacy of the pleaded case against him in relation to deceitful misrepresentations relating to the value of the property, it is necessary to set out in full the directly relevant section:
“(ii) Deceitful misrepresentations A. The value of the Property 82. The Respondent made statements on behalf of the client in correspondence with Northern Rock and the Trustee (and its solicitors) as to the value of the Property which he knew were false and/or misleading, alternatively he was reckless as to their truth or falsity and thereby: 82.1 failed to act with integrity; and 82.2 failed to behave in a way that maintains the trust the public places in him and in the provision of legal services; and 82.3 took unfair advantage of third parties. Particulars 83. The Respondent made the following representations to Northern Rock as to the value of the Property: 83.1 In his letter of 22 June 2011 to Northern Rock the Respondent stated … 83.1.2 ‘The Purchaser has offered to buy the Property for £2.2million.’ … 83.1.4 ‘… our client will seek to negotiate with the Purchaser in order to try and obtain an increase in the offer, ideally to £2.3 million.’ 83.2 As recorded in an Attendance Note of 16 August 2011, during a telephone conversation with JH of Northern Rock that day, the Respondent made the following statements … … 83.2.2 ‘… PRW said that he is currently engaged in the process of trying to get a firm and increased offer. … PRW said that he would expect at least £2.3million and will be pressing the prospective purchaser through solicitors to see if the price can be improved.’ 83.2.3 ‘PRW said that although there is a very significant negative equity, there is no prospect of the bankrupt estate achieving anything out of this, it is plain that the Trustee in Bankruptcy is going to do nothing to assist …’ … 83.5 In his letter of 1 November 2011 to JH and two other Northern Rock employees, the Respondent stated: ‘Our client’s concern … is that the offer of £2.2million, in a continuing difficult market, will be reduced and not increased.’ 84. The Respondent made the following representations to the Trustee as to the value of the Property: … 84.5 In his letter of 13 April 2012 to solicitors for the Trustee, the Respondent stated: ‘It is correct that the client obtained a valuation. That was from Carter Jones. That was in line with the offer of £2.2million which had been received’ and ‘the client does not have a valuation of the property at £3.9million.’ 85. Accordingly, the Respondent expressly represented to Northern Rock and/or the Trustee that: 85.1 As at April 2011, that there was significant negative equity in the property ie the value of the Property was substantially less than the (roughly) £2.8 million Northern Rock mortgage. 85.2 From at least April 2011 until at least April 2012, the market value of The Property was approximately £2.2million and that the client believed as such. 85.3 A purchaser had offered the client £2.2million for the property and the client had been in negotiations with the purchaser to secure and increase that offer. By implication, the Respondent thereby represented that (i) the offer being made was a genuine one, in that it was being made by a third party, independent of the client and (ii) no higher offers were available for consideration. 86. The Respondent knew these representations to be materially false and/or misleading, alternatively he was reckless as to their truth or falsity, in that: 86.1 The Respondent knew or ought to have known that the value of the property was substantially in excess of £2.2 million and that the client believed such: 86.1.1 As at the 18 February 2010 meeting with the client the Respondent became aware that: (1) it was the client’s view that a ‘very substantial undervalue’ had been put on the property; 2) that an offer had been made on the property for £3.9 million; (3) that another offer was ‘floating around’ in the same price range … 86.1.2 As at the latest 7 June 2011, the Respondent was aware that the client reached an agreement with JD to sell the property for £3.9 million and JD had paid nearly £1 million towards the purchase … 86.1.3 In a 9 February 2012 letter to the client, the Respondent asked the financier to lend money to the client based on ‘the full value of the onward sale’ of the property, i.e. £3.9 million … 86.1.4 On 29 February 2012, the client told the Respondent he had spoken to Savills who thought they could sell the property for more than £3.9 million … 86.1.5 As at mid-March 2012, the Respondent was aware that the client had obtained substantially higher valuations for the property. In an email dated 18 March 2012 from the client to the respondent, the client referred to an ‘off the record’ valuation of £3.9 million … On 5 April 2012, during a conversation with the Respondent, the client referred to a valuation of £3.95 million and on 23 April 2012 the client informed the Respondent that Hamptons had valued the property at between £3.75 million and £4.45 million … 86.1.6 During a meeting on 18 April 2012 with the Respondent, the client stated that ‘we know’ the value to be in the region of £3.9 million. He also confirmed that Knight Frank wanted to market the property at £4.5m … 86.2 The Respondent knew or ought to have known that there was not negative equity in the property: 86.2.1 As at 7 June 2011, an agreement was in place for the client to sell the property to JD, through a company, for £3.9 for which nearly £1 million (later in excess of £1.3 million) had been put towards the purchase, monies which had already been spent by the client. This agreement was later reduced to writing … 86.2.2 The price of £3.9 million was in line with at least one other offer made on the property and the client’s stated assessment of its value … 86.3 The Respondent knew or ought to have known that there was no offer of £2.2 million for the property. 86.3.1 No offer of £2.2 million had been made to the client for the property. The only offer that had been made on the property was JD’s offer of £3.9 million, which the Respondent knew as at 7 June 2011 had been accepted by the client. 86.3.2 At no point was the client engaged in negotiations with a ‘Purchaser’ to sell the property for a price of around £2.2 million. The client did not at any time intend to seek ‘an increase in the offer, ideally to £2.3 million’ nor was he ‘engaged in the process of trying to get a firm and increased offer’ … Similarly, the Respondent never expected to press a ‘prospective purchaser through solicitors to see if the price can be improved [above £2.2 million]’ … Each of these statements were fabrications based on a fictional purchaser, intended solely to hide the true value of the property and the fact that the transfer from Northern Rock was at an undervalue. The Respondent recognized as much when, during a conversation on 23 January 2012, the Respondent advised the client that there should be a ‘strict veil of confidentiality’ between the two ends of the transaction because if AP saw the sale from Northern Rock at £2.2 million and then the onward sale to his client JD at £3.9 million, the obvious question would be whether there was a transfer at an undervalue …” 82.1 failed to act with integrity; and 82.2 failed to behave in a way that maintains the trust the public places in him and in the provision of legal services; and 82.3 took unfair advantage of third parties. 83.1 In his letter of 22 June 2011 to Northern Rock the Respondent stated … 83.1.2 ‘The Purchaser has offered to buy the Property for £2.2million.’ … 83.1.4 ‘… our client will seek to negotiate with the Purchaser in order to try and obtain an increase in the offer, ideally to £2.3 million.’ 83.2 As recorded in an Attendance Note of 16 August 2011, during a telephone conversation with JH of Northern Rock that day, the Respondent made the following statements … … 83.2.2 ‘… PRW said that he is currently engaged in the process of trying to get a firm and increased offer. … PRW said that he would expect at least £2.3million and will be pressing the prospective purchaser through solicitors to see if the price can be improved.’ 83.2.3 ‘PRW said that although there is a very significant negative equity, there is no prospect of the bankrupt estate achieving anything out of this, it is plain that the Trustee in Bankruptcy is going to do nothing to assist …’ … 83.5 In his letter of 1 November 2011 to JH and two other Northern Rock employees, the Respondent stated: ‘Our client’s concern … is that the offer of £2.2million, in a continuing difficult market, will be reduced and not increased.’ 84.5 In his letter of 13 April 2012 to solicitors for the Trustee, the Respondent stated: ‘It is correct that the client obtained a valuation. That was from Carter Jones. That was in line with the offer of £2.2million which had been received’ and ‘the client does not have a valuation of the property at £3.9million.’ 85.1 As at April 2011, that there was significant negative equity in the property ie the value of the Property was substantially less than the (roughly) £2.8 million Northern Rock mortgage. 85.2 From at least April 2011 until at least April 2012, the market value of The Property was approximately £2.2million and that the client believed as such. 85.3 A purchaser had offered the client £2.2million for the property and the client had been in negotiations with the purchaser to secure and increase that offer. By implication, the Respondent thereby represented that (i) the offer being made was a genuine one, in that it was being made by a third party, independent of the client and (ii) no higher offers were available for consideration. 86.1 The Respondent knew or ought to have known that the value of the property was substantially in excess of £2.2 million and that the client believed such: 86.1.1 As at the 18 February 2010 meeting with the client the Respondent became aware that: (1) it was the client’s view that a ‘very substantial undervalue’ had been put on the property; 2) that an offer had been made on the property for £3.9 million; (3) that another offer was ‘floating around’ in the same price range … 86.1.2 As at the latest 7 June 2011, the Respondent was aware that the client reached an agreement with JD to sell the property for £3.9 million and JD had paid nearly £1 million towards the purchase … 86.1.3 In a 9 February 2012 letter to the client, the Respondent asked the financier to lend money to the client based on ‘the full value of the onward sale’ of the property, i.e. £3.9 million … 86.1.4 On 29 February 2012, the client told the Respondent he had spoken to Savills who thought they could sell the property for more than £3.9 million … 86.1.5 As at mid-March 2012, the Respondent was aware that the client had obtained substantially higher valuations for the property. In an email dated 18 March 2012 from the client to the respondent, the client referred to an ‘off the record’ valuation of £3.9 million … On 5 April 2012, during a conversation with the Respondent, the client referred to a valuation of £3.95 million and on 23 April 2012 the client informed the Respondent that Hamptons had valued the property at between £3.75 million and £4.45 million … 86.1.6 During a meeting on 18 April 2012 with the Respondent, the client stated that ‘we know’ the value to be in the region of £3.9 million. He also confirmed that Knight Frank wanted to market the property at £4.5m … 86.2 The Respondent knew or ought to have known that there was not negative equity in the property: 86.2.1 As at 7 June 2011, an agreement was in place for the client to sell the property to JD, through a company, for £3.9 for which nearly £1 million (later in excess of £1.3 million) had been put towards the purchase, monies which had already been spent by the client. This agreement was later reduced to writing … 86.2.2 The price of £3.9 million was in line with at least one other offer made on the property and the client’s stated assessment of its value … 86.3 The Respondent knew or ought to have known that there was no offer of £2.2 million for the property. 86.3.1 No offer of £2.2 million had been made to the client for the property. The only offer that had been made on the property was JD’s offer of £3.9 million, which the Respondent knew as at 7 June 2011 had been accepted by the client. 86.3.2 At no point was the client engaged in negotiations with a ‘Purchaser’ to sell the property for a price of around £2.2 million. The client did not at any time intend to seek ‘an increase in the offer, ideally to £2.3 million’ nor was he ‘engaged in the process of trying to get a firm and increased offer’ … Similarly, the Respondent never expected to press a ‘prospective purchaser through solicitors to see if the price can be improved [above £2.2 million]’ … Each of these statements were fabrications based on a fictional purchaser, intended solely to hide the true value of the property and the fact that the transfer from Northern Rock was at an undervalue. The Respondent recognized as much when, during a conversation on 23 January 2012, the Respondent advised the client that there should be a ‘strict veil of confidentiality’ between the two ends of the transaction because if AP saw the sale from Northern Rock at £2.2 million and then the onward sale to his client JD at £3.9 million, the obvious question would be whether there was a transfer at an undervalue …”
[34]As for the allegation of misleading the court, this rested on statements made by Mr Williams to the District Judge at the possession hearing on 22nd September 2011 to the effect that there was negative equity in the property in respect of which Northern Rock had obtained a valuation confirming market value at £2.2million. It was also alleged that a statement that the client had received an offer to purchase at £2.2million implied that the offer was from an independent third party.

The hearing and the judgment

[35]The hearing commenced on 28th November 2016 and lasted some two weeks. By agreement and unusually, opening and closing oral and written submissions were made on both sides. Mr Williams was cross-examined for almost three and a half days. Closing submissions were completed in the afternoon of 7th December 2016. The Tribunal indicated that it might call on counsel for further argument the next day, but it did not in the event do so. The Tribunal delivered its decision orally in the afternoon of 9th December 2016, giving a summary of its findings. It held that Mr Williams had made five false representations to third parties: i) The £3.9m representation: Mr Williams had acted dishonestly, failed to act with integrity, failed to behave in a way that maintained the trust the public placed in him and the provision of legal services and took unfair advantage of third parties in his professional capacity; ii) The F Ltd representations: Mr Williams had failed to act with integrity and failed to behave in a way that maintained the trust the public placed in him and the provision of legal services; and iii) The negotiation representations: Mr Williams had failed to act with integrity and failed to behave in a way that maintained the trust the public placed in him and the provision of legal services. The Tribunal went on to consider both the question of sanction and costs.[36]The full written judgment followed in February 2017. It set out the allegations, the documents before it, preliminary matters including those relating to Wilsons and disclosure. It recorded the SRA’s withdrawal of the allegation that Mr Williams had lied about the market value of the property setting out in terms Mr Williams’ position on this: i) The market value of the property in 2011/2012 was in fact £2.2million; ii) There was no cogent evidence to support the proposition that the market value was substantially in excess of £2.2million; iii) No valuation evidence to support a case for a market value in excess of £2.2million had been served; and iv) The sale price achieved in 2014 of £2.4million was determinative of the point.[37]It then referred to an issue relating to alleged communications between Mr Williams and one of the SRA’s witnesses. It went on to set out a lengthy factual background section, taken in large part from the (essentially non-contentious) section of the Rule 5 statement. It then recorded the witnesses who gave evidence, including the character witness for Mr Williams, now a Queen’s Counsel. It then proceeded to make its findings of fact and law.[38]Having set out and considered the parties’ respective submissions, the Tribunal dismissed the SRA’s case as to devising the fraudulent scheme in its entirety. The scheme was not inherently improper. The Tribunal also found in terms that it was to Mr Williams’ credit that he had made voluntary disclosure of the fact that the proposed purchase was a “family friend”.[39]As for the SRA’s case as to deceitful misrepresentations, the Tribunal again rehearsed carefully and accurately the parties’ respective submissions and went on to find as follows: i) Mr Williams’ representation to Northern Rock in the letter of 22nd June 2011 that the purchaser had offered to buy the property for £2.2million was accurate; ii) The negotiation representations were false and misleading; iii) Mr Williams’ representations as to negative equity were accurate; iv) Mr Williams did not believe the £3.9m representation to be true at the time he made it. He had consciously and deliberately misrepresented the position; and v) The F Ltd representations were false and misleading.[40]The Tribunal found all of the misrepresentations to demonstrate a “manifest” lack of integrity. It rejected the submissions that they were the produce of mere “inaccuracies” or “loose language”. Thus, for example, the £3.9m representation was made “in order to prevent the deal from falling apart”. Mr Williams’ evidence was “self-serving and unconvincing”, the Tribunal said “throughout”. (Given the dismissal of large parts of the case against Mr Williams, this cannot be taken literally to mean in every aspect of his evidence, but rather those parts dealing with the misrepresentations.) The Respondent had also failed to behave in a way that maintained the trust the public placed in him and in the provision of legal services. Mr Williams had conceded as much at times.[41]None of the negotiation representations had led to an unfair advantage being taken of Northern Rock. Its acceptance of the offer on the property was based on its own valuations. But the £3.9m representation had taken unfair advantage of the client’s trustee in bankruptcy. Had the trustee been aware of a £3.9m valuation, he would have considered whether to take steps to realise his interest for the estate. The £3.9m representation caused him instead to take no further action.[42]The Tribunal then turned to the question of dishonesty. It rehearsed the test in Twinsectra v Yardley (supra). It found that the £3.9m representation was not a mere oversight. It was a carefully worded letter; a redraft had added the £3.9m representation. (This was a factual error on the Tribunal’s part; the £3.9m representation had always been in the draft.) It was clear from CKFT’s letter of 22nd March 2012 that a response in writing was required before the trustee in bankruptcy would be prepared to proceed with the sale. Mr Williams viewed the trustee in bankruptcy’s discovery of the onward sale at £3.9m as disastrous. He was always aware that the trustee in bankruptcy’s consent was conditional and capable of being withdrawn. He made the £3.9m representation so as to prevent the trustee in bankruptcy from taking any steps to realise his interest or to withdraw his consent. Mr Williams was dishonest by ordinary standards, and he knew his conduct to be so.[43]As for the negotiation representations, whilst objectively dishonest, there was sufficient doubt that Mr Williams may have regarded them as “simply part of the cut and thrust of a commercial transaction”. The Tribunal did not find Mr Williams to have been subjectively dishonest in this regard.[44]In the light of the Tribunal’s findings as to negative equity and there being an offer from F Ltd to purchase the property, the allegations of misleading the court were dismissed outright.

Grounds of appeal

[45]The grounds of appeal seek to overturn each finding against Mr Williams on the basis that they were: a) wrong; and b) unjust as a result of serious procedural irregularity: i) None of the matters the subject of the adverse findings was sufficiently pleaded in the Rule 5 statement; ii) The allegations underlying the findings on the £3.9m and the F Ltd representations were not put to Mr Williams in cross-examination or questioning by the Tribunal. Nor were they mentioned in closing argument; and iii) Each finding was in any event irrational, perverse, unsupported by the evidence given before the Tribunal and inadequately analysed and considered by the Tribunal.[46]The appeal against the Tribunal’s findings in relation to the F Ltd representations has fairly and correctly not been opposed by the SRA at the appeal hearing. Those representations were not pleaded or any part of the SRA’s case against Mr Williams. This part of the Tribunal’s decision cannot stand.[47]By way of amendment, an additional matter has been raised on behalf of Mr Williams, namely that the section in the judgment relating to sanction was “lifted” from an earlier Tribunal judgment in a different case, namely that of Mark Pearson Ford (“the Ford case”). It is said that certain paragraphs in the judgment are not consistent with the facts of the present case, and cannot be regarded as representing faithfully the properly considered judgment of the Tribunal. This is said further to demonstrate the inadequacy of the Tribunal’s consideration and analysis.[48]In response to the allegation of covert judicial plagiarism, the SDT has (with permission) adduced evidence in the form of witness statements (each dated 14th March 2017) from: i) The Chair of the Tribunal, Mr James Astle He sets out his professional experience, alongside that of the other solicitor member of the Tribunal, Mr Kenneth Duncan, and that of the lay member, Mr Stuart Hill. Mr Astle has been a practising solicitor who has worked in private practice since 1980. He practises in criminal, regulatory and town and country planning law. He has been a solicitor member of the SDT since 2009. Mr Duncan has been in private practice since 1971. His principal field of expertise has been in property litigation. He has been a solicitor member of the SDT since 2006. Mr Hill has been a lay member of the SDT since 2009. He has held senior managerial positions in several international companies and in the 1990s was Chief Executive of HM Land Registry and Chief Land Registrar of England and Wales. Mr Astle’s statement is said to reflect the views of all members of the Tribunal. He rehearses the Tribunal’s findings on dishonesty and describes its approach to the question of sentencing, including by reference to the SDT “Guidance Note on Sanctions” (4th Ed December 2015) (“the Guidance Note”). The Tribunal did not refer and was not referred to the judgment in the Ford case. Its judgment was drafted, as is normal, by the clerk attending on the Tribunal. She provided assistance in accordance with the procedure approved by the Court of Appeal in Virdi v Law Society (Solicitors Disciplinary Tribunal intervening) [2010] EWCA Civ 100; [2010] 1 WLR 2840. This process did not involve the clerk referring the Tribunal members to the judgment template or to standard paragraphs or precedents used by her, because she was responsible for the “mechanics” of drafting. She played no part in the actual decision-making process. Each Tribunal member in turn reviewed the draft prepared by her. No member was aware of the judgment in the Ford case. The paragraphs dealing with sanction properly reflected the judgment of the Tribunal, in particular with regard to: the extent of the harm to the reputation of the profession arising from Mr Williams’ misconduct; the Tribunal’s finding that Mr Williams’ evidence had been disingenuous and self-serving; and that his explanation of his conduct had been both incredible and disingenuous. The judgment truly represents the considered opinion of the Tribunal. ii) The Clerk to the Tribunal, Ms Audrey Osborne Ms Osborne confirms the nature of her role, as set out above. She uses the SDT’s standard judgment template, amended to suit her style. She uses precedents, including judgments from past cases where she has been the clerk. She refers to the facts as per the Rule 5 statement to the extent that they are non-contentious. She writes the sanction section in the same order as the factors which appear in the Guidance Note. Ms Osborne confirms that she was also the clerk and prepared the draft judgment in the Ford case. The Tribunal members dealing with Mr Williams did not refer to the judgment in the Ford case, nor did she refer them to it, either during the hearing or the writing of the judgment. She would have used a precedent for paragraphs 73 to 75 of the judgment. She cannot say definitively if she used the judgment in the Ford case. Whatever precedent she used, she would have adapted it to reflect the specific findings and reasons of the Tribunal’s deliberation. The decision drafted by her would subsequently have been considered and approved by the Tribunal as faithfully recording its findings and reasons. The other paragraphs in the sanction section are essentially standard paragraphs.[49]Finally, Mr Williams challenges the Tribunal’s order on costs, on the basis that it is perverse and unsustainable, even on the Tribunal’s own findings, since the Tribunal dismissed all or almost all of the SRA’s pleaded case. Additionally, the Tribunal ought to have found that a large part of the SRA’s case should never have been pleaded, since there were no reasonable grounds for it, and no reasonably credible evidence to support it. By agreement, this part of the appeal has been adjourned pending the outcome of the appeal on the substantive findings.

Dishonesty v want of integrity

[50]Dishonesty and want of integrity have long been treated as different (if overlapping) regulatory concepts. One can lack integrity without being dishonest, for example, see: Bolton v The Law Society [1994] 1 WLR 512; [1994] 2 All ER 486; Hoodless and Blackwell v Financial Services Authority [2003] UKFTT FSM007; SRA v Chan and Ali (supra); Scott v SRA [2016] EWHC 1256 (Admin); SRA v Wingate and Evans [2016] EWHC 3455 (Admin); [2017] ACD 31; and Newell-Austin v SRA [2017] EWHC 411 (Admin); [2017] Med LR 194. There was no suggestion to the contrary before the Tribunal.[51]In Malins v SRA [2017] EWHC 835 (Admin); [2017] 4 WLR 85, Mostyn J concluded that the two were in substance synonymous:
“36. It is elementary, and supported by abundant authority, that if you are accused of dishonesty, then that must be spelt out against you with pitiless clarity. In my judgment, you cannot circumvent this obligation by pleading the same facts and matters as want of integrity. We do not have in our system dishonesty in the first degree and dishonesty in the second degree.”
[52]The SRA is seeking permission to appeal this judgment alongside an appeal for which permission has already been granted in SRA v Wingate and Evans (supra), on the basis that the boundary between lack of integrity and dishonesty raises an important point of principle.[53]Mr Lawrence Q.C. for Mr Williams expressly disavowed any intention to invite the court to adopt the decision in Malins v SRA as correct on this point. It is not therefore necessary to consider the issue further, and full submissions were not advanced.[54]I proceed on the basis, both on the authorities and as a matter of principle, that, in the field of solicitors’ regulation, the concepts of dishonesty and want of integrity are indeed separate and distinct. Want of integrity arises when, objectively judged, a solicitor fails to meet the high professional standards to be expected of a solicitor. It does not require the subjective element of conscious wrongdoing.

The role of the appellate court

[55]This appeal proceeds by way of review, and not rehearing. The Tribunal was a specialist tribunal, which had the particular advantage of hearing and seeing all of the evidence over many days. Interference with its findings will not be made lightly, and will be justified only if those findings are “plainly wrong”, or there has been some serious procedural irregularity – see Barnett v SRA [2016] EWHC 1160 (Admin) at [17]; and Law Society v Salsbury [2008] EWCA Civ 1285; [2009] WLR 1286 at [30].[56]The suggestion is made for Mr Williams that, because of various omissions in the judgment, this court should pay less deference to the Tribunal’s findings than would otherwise be the case. I address what are alleged to be the most serious of those omissions discretely below, in particular, the failure to refer expressly to any findings on the question of lack of motive. Other complaints include that the factual background set out in the judgment effectively did little more than follow the Rule 5 statement. It made no mention of Mr Williams’ personal circumstances at the time, nor of his detailed working practices and huge caseload. There was no mention of his meticulous record-keeping. There was no mention of the insatiable and demanding nature of the client, or of the political problems that Mr Williams was experiencing at Wilsons. There was insufficient mention of the fact that Mr Williams declined to act for the client in 2010 or, most significantly, of the fact that when he did agree to act in 2011, it was on specific conditions, including that the client obtained a proper valuation which could be disclosed to Northern Rock, and that the connection between the purchaser and the client be disclosed.[57]I do not accept that these suggested shortcomings undermine the reliability of the judgment as alleged. The facts set out in the Rule 5 statement were essentially non-contentious and accurate. The judgment clearly recorded that Mr Williams declined to act for the client in 2010. How much detail needed to recorded by way of “Factual Background” was a matter of judgment and style for the Tribunal. What mattered was that the Tribunal had all of the evidence before it in mind when it retired to make its deliberations immediately following the conclusion of the evidence and submissions, even if it was not all set out in the factual background section. The judgment stated in terms at the outset that the Tribunal reviewed all the documents submitted, including Mr Williams’ Responses and witness statements. It repeated later:
“For the avoidance of doubt, the Tribunal read all of the documents in the case, made notes of oral evidence, and referred to the transcript of the hearing. The absence of any reference to particular evidence should not be taken as an indication that the Tribunal did not read, hear or consider that evidence.”
[58]In short, I see no good reason not to accord the findings of the Tribunal the same respect as would be given to the judgment of any other experienced and specialist tribunal.

Complaints of serious procedural irregularities

[59]Putting the allegation of covert judicial plagiarism to one side for present purposes, Mr Williams makes a series of allegations of serious procedural irregularities which are said to vitiate the Tribunal’s findings of dishonesty and want of integrity.[60]First, it is said that there was a failure by the Tribunal to recognise the wholesale failure of the SRA’s case, with the consequent risk of injustice, and the fact that allegations were made that should not have been made. This is, in essence, a complaint that isolated findings of dishonesty and want of integrity should not have been made as they were, on the basis of the pleadings and evidence as they stood. This is a matter to be considered in the context of the individual findings impugned. Beyond that, the complaint is a presentational one: it was said to the Tribunal in closing that the very serious defects in the SRA’s case should be addressed “head on”, so that Mr Williams’ position was “properly vindicated”. It is right to say that the Tribunal’s judgment did not say in clear and separate terms at the outset that the central thrust of the SRA’s case was being dismissed. But its findings are clear within the context of the format adopted by the Tribunal, and certainly clear enough not to give rise to any proper complaint of procedural irregularity.[61]Secondly, it is said that there was a failure to make findings about Wilsons’ conduct in the context of a complaint about incomplete disclosure. As for Wilsons’ conduct in making the report in March 2013, there was no obligation on the Tribunal to make any findings as to impropriety on the part of Wilsons. Wilsons was not a party to the proceedings. As the Tribunal rightly stated (at paragraph 7 of the judgment), whilst Wilsons had made the initial report, it was for the SRA to decide, having read the report and investigated the matter, whether there was evidence of misconduct such that Mr Williams should be referred to the Tribunal. The fact that there might be missing documents because of a lack of electronic searches does not alter that conclusion. At no stage did Mr Williams issue a specific disclosure request. Mr Williams was not able to identify any specific additional documents that were absent. At no stage was there any application to strike the proceedings out for unfairness because of any lack of disclosure. The Tribunal set the position out adequately at paragraphs 8 to 15 of the judgment.[62]Thirdly, it is said that the Tribunal erred in failing to address the question of motive. Motive is not a necessary ingredient of dishonesty (or want of integrity) – see for example: Mortgage Agency Services Number One Ltd (“MASNOL”) v Cripps Harries LLP [2016] EWHC 2483 (Ch) at [88]; and Webb v Solicitors Regulation Authority [2013] EWHC 2078 (Admin); [2013] 157(3) SJLB 31. It may of course be relevant, the importance of its role being fact-specific to each case. Thus, the absence of motive was clearly an important matter in the reasoning of Mann J in MASNOL v Cripps Harries LLP (supra), upon which Mr Williams relied heavily, as follows:
“87. The allegations against Ms Francis fall into the category of the most serious. Not only are they fraud allegations; they are fraud allegations against a solicitor … 88. Of particular relevance to a case of fraud such as the present is the question of motive. By and large dishonest people are dishonest for a reason. They tend not to be dishonest wilfully or just for fun. Establishing a motive for deceit, or conspiracy, is not a legal requirement, but if a motive cannot be detected or plausibly suggested then wrongful intention (to tell a deliberate lie in order to deceive) is less likely. The less likely the motive, the less likely the intention to deceive, or to conspire unlawfully. In many, if not most, fraud cases this would not be a particularly live point. The defendant is often a person who would be a direct beneficiary of the fraud, and a plausible motive is, to that extent, relatively easily propounded. The present case is, however, different. 89. Miss Francis could not conceivably be said to have any direct benefit in the loan which Mr McGuinness was trying to get. She had no interest in his business. The motive suggested by Mr Hubble was of a different kind. He suggested that Miss Francis was trying to help her client to succeed in his transaction and to ensure his business continued to come to the firm. 90. That, as a motive, would be plausible in some cases. One can imagine cases of small firms with a very important client, to whom a particular partner or solicitor is close in commercial or personal terms, which makes it all the more plausible that the solicitor will assist his client’s transactions by being less than straight from time to time. However, in this case I do not find it particularly plausible.”
[63]Mr Williams also relies on the judgment in Clydesdale Bank Plc v Workman [2016] EWCA Civ 73; [2016] PNLR 18, where the Court of Appeal overturned findings of dishonesty against two solicitors involved in a conveyancing transaction. The Judge was criticised for failing to address the question of motive (see [51]).[64]Here, the Tribunal was addressed directly on the question of motivation for dishonesty – in opening, and again in closing submissions. The SRA’s position in opening on the first day of hearing, responding to the submissions for Mr Williams that there was a lack of motive, was that the SRA did not advance any positive motive for Mr Williams’ conduct. It was made explicit that personal financial gain was not alleged, beyond the question of professional fees for his firm, nor was there any speculation as to ulterior purpose. In closing, the SRA pointed to Mr Williams’ evidence in cross-examination, where he stated that the client pestered him every day, drew him into things in which he had no intention of being involved, and that there came a point when he started indulging him.[65]For Mr Williams, what has been described as “an extended submission” on lack of motive was made, in oral and written opening submissions. It was submitted that there was “no conceivable motive” for Mr Williams to have assisted the client in any dishonest scheme. He was an extremely busy and successful solicitor, devoted to his job. The work for the client was not remunerative, nor was the client someone who was likely to generate a lot of work in the future. The SRA’s neutral position on motive was noted. In closing, it was again asked (rhetorically) for Mr Williams: why on earth would Mr Williams have acted with conscious dishonesty for the client?[66]It is inconceivable that the Tribunal did not have in mind those submissions when carrying out its deliberations, and in reaching the conclusions that it did. Indeed, it is clear from the judgment that it had them well in mind: at paragraph 90.3, it recorded on the question of dishonesty the following:
“Mr Lawrence submitted that it was ‘almost vanishingly unlikely’ that the Respondent was consciously dishonest in this case. He may well have made some mistakes and he may well have written some letters about which concessions had been made. He regretted that, but was ‘very, very, very unlikely’ that there was the sort of conscious dishonesty which was a precondition of a finding of dishonesty before the Tribunal.”
[67]It is to be noted that, on Mr Williams’ own case, he was someone prepared to act improperly for the client (when making the negotiation representations). Similarly, in relation to letters written to HSBC plc and Barclays Bank plc in March 2012, Mr Williams accepted that he should not have written in the terms that he did, but that he had done so because, at least partly, the client was desperate not to lose a deposit on another property, and was looking to Mr Williams for help. It was not incumbent on the Tribunal to make any specific findings, or give its reasons on the question of motive in its judgment (although it could have done so). What mattered was whether, by reference to the criminal standard of proof, and looking at the evidence as a whole, it found Mr Williams to have been dishonest (or lacking in integrity). The Tribunal expressly considered and dismissed Mr Williams’ explanations for his conduct and his state of mind in relation to what it found to be the dishonest representation in the letter of 13th April 2012. Whether that finding of dishonesty was one open to it as a matter of procedural fairness is a separate question, addressed below.[68]I therefore do not consider that any of these broad and wide-ranging allegations advance Mr Williams’ case materially. Even if there had been failures as alleged, they would not have been determinative of the issues on appeal as ‘stand-alone points’, either individually or collectively. Rather the matters identified on behalf of Mr Williams would at most have provided context for a consideration of the specific findings of the Tribunal under attack. But, in any event, for the reasons set out above, the criticisms are ill-founded.

Pleading and putting allegations of dishonesty

[69]Before turning to each finding that is the subject of this appeal, it is convenient to set out the relevant, well-established principles relating to the advancing of allegations of dishonesty.[70]In HMRC v Dempster [2008] EWHC 63 (Ch); [2008] STC 2079, Briggs LJ stated (at [26]):
“It is a cardinal principle of litigation that if serious allegations, in particular allegations of dishonesty are to be made against a party who is called as a witness they must be both fairly and squarely pleaded, and fairly and squarely put to that witness in cross-examination.”
[71]It is right to record that the facts in that case were extreme, in the sense that dishonesty had not been pleaded at all, yet findings of dishonesty were being pressed upon the court, but the broad principle is of general application. Other well-known authorities, such as Three Rivers DC v Bank of England (no 3) [2001] UKHL 16;[2003] 2 AC 1 (at 291), emphasise the need for proper particularity of the facts underlying allegations of dishonesty. In the solicitors’ regulatory context, the courts have also underscored the need for clear, coherent and intelligible pleadings: SRA v Chan (supra); Singleton v The Law Society [2005] EWHC 2915 (QB); Constaninides v The Law Society [2006] EWHC 725 (Admin); Thaker v SRA [2011] EWHC 660 (Admin); and Kiani v SRA [2015] EWHC 1981 (Admin).[72]As for the need for cross-examination, the need to put allegations fairly and squarely in cross-examination is based on what is said to be the rule in Browne v Dunne (supra) (and Allied Pastoral Holdings v Federal Commissioner of Taxation [1983] 44 ALR 607), considered and applied in Markem Corp v Zipher Ltd [2005] EWCA Civ 267; [2005] RPC 31. Allegations need to be put to ensure “fair play and fair dealing with witnesses” (at [59]). A witness must be cross-examined on those parts of his evidence said to be untrue.[73]The rule is not an absolute or inflexible one: it is always a question of fact and degree in the circumstances of the case so as to achieve fairness between the parties. Civil litigation procedures have of course moved on considerably since the 19th Century. Witnesses now have the full opportunity to give their evidence by way of written statement served in advance, and then verified on oath in the witness box.[74]What matters is the giving of notice to a witness of the allegation in question, and the proper opportunity for the witness to respond. Thus in Markem (supra), the Court of Appeal adopted (at [60]) the following statement from Browne v Dunn (supra): “… unless notice had already been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence …”(per Hunt J, in Allied Pastoral Holdings (supra)).[75]Equally, Lord Herschell LC stated (in Browne v Dunn (supra)) that there was:
“… no obligation to raise a matter in cross-examination in circumstances where it is perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.”
What he was saying was that:
“… it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatsoever in the course of the case that his story is not accepted.”
[76]As was stated in Seven Individuals v HMRC [2017] UKUT 132 (TCC); [2017] STC 874 (at [114]), the rule should not be applied in an over-technical way. Provided that a witness is on notice that his account is being challenged as untruthful in the relevant respect, there is no requirement mechanistically to challenge each and very statement of fact (see Hussain v Mukhtar [2016] EWHC 424 (QB) at [45]). In Seven Individuals (supra), Nugee J went on to say this:
“So long as it is clear from the thrust of the cross-examination (or from notice given beforehand) that a witness’ evidence will be challenged, I do not see that it is necessary to continue exploring a point in detail when the witness has already had an opportunity to state his case.”
On the facts of that case, Nugee J held that further cross-examination would have been an “empty technicality” (again at [114]).

The finding of dishonesty in relation to the £3.9m representation

[77]The relevant background to the £3.9m representation on 13th April 2012 was as follows: i) Before mid-March 2012, Mr Williams made repeated statements to third parties that an onward sale had been agreed: a) On 9th February 2012, he wrote to a financier concerning “… the onward sale for £3.9m which has been agreed”; b) On 17th February 2012, he wrote to another financier concerning “… the onward sale by the company to [JD] which has been agreed in principle at £3.9m”; c) On 8th March 2012, he wrote to Barclays Bank plc stating “our client has agreed, subject to contract, to sell [the property] for £3.9million”; and d) On the same day he wrote to HSBC in identical terms; ii) On 18th March 2012, the client emailed Mr Williams stating that:
“[T]he valuation took place on Monday and valuer told me off record that he was happy with its value at £3.9m so just need him to confirm this in writing.”; iii) The next day, Mr Williams responded by email with the word “Good”; iv) An attendance note of Mr Williams recorded a conversation with the client on 20th March 2012, where the client told him that: “the valuation had gone well” and that “UTB have already spoken to [Mr Williams]. [The client] has given them a copy of the valuation just obtained. [The client] thinks they will proceed” ; v) On 22nd March 2012, solicitors for the client’s trustee in bankruptcy, CKFT, wrote to Wilsons stating that they knew of a valuation at £3.9m: “[UTB] state that a broker acting on behalf of your client … has stated that the Property has been valued at £3.9million and that your client has been paid £1.3million by a third party who is ultimately going to purchase the property from [the special purchase vehicle]. This is clearly a matter of some concern”. vi) On 26th March 2012, Mr Williams wrote to the client describing the letter as “plainly … disastrous”; vii) On 26th March 2012, Mr Williams produced the first draft of the letter that went out on 13th April 2012. It contained the £3.9m representation; viii) On 27th March 2012, Mr Williams wrote to the client stating that he had decided to “slow things down”
. He attached a slight re-working of the draft letter, but the £3.9m representation remained; ix) On 30th March 2012, Mr Williams recorded the client’s approval of the draft, save in a minor, immaterial respect. He also recorded the client informing him that HSBC might contact him seeking confirmation that the property was on the market for £3.9m; x) On 5th April 2012, Mr Williams recorded the client telling him that “the valuer has just completed the valuation of £3.95 million”; xi) On the same day, Mr Williams wrote to the client with detailed advice as to the fact (and consequences of the fact) that, under the Insolvency Act 1986 (as amended by the Enterprise Act 2002), the trustee in bankruptcy’s interest in the property would re-vest in the client on the third anniversary of the client’s bankruptcy, ie 17th April 2012. His advice was that it would be sensible to send the draft letter “not long before 17 April”. The letter gave nothing away, but “appears to be a straightforward response to the questions” which had been raised; xii) On 10th April 2012, Mr Williams recorded the client’s agreement that the letter should be sent to CKFT that Friday; xiii) On 11th April 2012, Mr Williams was sent an email by a financier, attaching a completed draft loan proposal, recording the “Total Valuation” to be £3.9m. (Mr Williams’ evidence to the Tribunal was that he probably did not open this attachment); xiv) On 12th April 2012, Mr Williams sent a final draft with further amendments to the client, stating that it would be sent the next day; xv) On the same day, Mr Williams wrote to CKFT apologising for not having been in touch earlier, stating that was an oversight, and that the delay in the response to CKFT’s letter of 22nd March 2012 was that it had “managed to slip through the net”; and xvi) On 13th April 2012, Mr Williams sent out the letter to CKFT, in which it was stated, amongst other things, that the client did not have a valuation of the property at £3.9million.[78]Mr Williams denied that he made the £3.9m representation dishonestly. He believed it to be true at the time. The gist of his defence was that his previous communications with the client as to the existence of a valuation at £3.9million were not his mind at the time. At this time he was “utterly sceptical” of most of the things that the client said. He would not have believed or taken any notice of any information about a valuation unless he was provided with one. He had a valuation range of £2.1 to £2.4million firmly in his mind from the other valuations available. He regretted that he did not recall the previous communications, or sought clarification from the client. But the client had approved the letter before it was sent out.[79]From the documents alone, it can be seen that there was ample material with which properly to advance an allegation of dishonesty, by reference to the £3.9m representation, and on the basis of which a finding of dishonesty in relation to the £3.9m representation could have been made.[80]However, the question is whether the Tribunal’s finding was one fairly open to it on the basis of the pleadings and the course that the hearing took. For Mr Williams, it is said that no separate and independent claim of dishonest representation based on the £3.9m representation was ever pleaded or put. It was not open to the Tribunal to make the findings that it did.[81]The starting point is a consideration of the Rule 5 statement, and paragraphs 82 to 86 in particular, as set out above. The parties have engaged in a detailed examination of the structure, words and interrelation of these paragraphs.[82]At paragraph 82 is set out the main charge, and what follows are the “Particulars”. Paragraph 82 is thus the cornerstone, pleading: i) The statements by Mr Williams; ii) Mr Williams’ state of mind (knowledge or recklessness); and iii) That thereby the relevant principles in the Solicitors’ Code of Conduct were breached.[83]On one view, the natural and proper reading is that each of paragraphs 83, 84 and 85 form part of the particulars of the first element of that cornerstone. Paragraph 85 provides particulars of three additional, over-arching express representations. Nothing in the Rule 5 statement indicates that the over-arching representations in paragraph 85 displaced the earlier discrete allegations given as self-standing particulars in paragraphs 83 and 84. Nor is there any basis for limiting paragraph 86 as an adjunct only to the representations in paragraph 85.[84]There is also force in the SRA’s submission that any other construction would place the SDT in an impossible position. It would mean that it would not be able to act on a finding based on a specific, pleaded representation.[85]It was suggested that, properly read, the offending £3.9m representation was not “as to value”. Ignoring the very narrow approach of construction that reaching such a conclusion would involve, for the purposes of the Rule 5 statement, however, it is clear that that representation was being treated as a ‘representation as to value’. But I accept the submission for Mr Williams that a possible alternative reading of paragraphs 82 to 86 is that the allegations of deceitful misrepresentation were those set out in paragraph 85, and that there was no self-standing allegation of deceitful misrepresentation based on the letter of 13th April 2012 alone.[86]The contents of that letter were relied on only in support of paragraph 85, which thus contained not additional allegations of misrepresentations, but rather the material representations relied upon. So much could be taken from the use of the word “Accordingly”, which indicates that it is the representations in paragraph 85 that are the material ones, and, perhaps more forcefully, the fact that the allegations of dishonesty in paragraphs 86 refer back to the representations set out in paragraph 85, and not in paragraph 84. Thus: paragraph86.1 refers back to paragraph 85.2; paragraph86.2 refers back to 85.1; and paragraph86.3 refers back to paragraph 85.3.[87]That was the case that Mr Williams and his lawyers say that they believed that they were meeting – at least insofar as dishonesty was concerned. (It appears to have been accepted before the Tribunal that, even if the wider case against Mr Williams was dismissed, it would have been open to the Tribunal to nevertheless have made lesser findings of misconduct based on discrete letters or communications.)[88]This did not of course mean that Mr Williams did not have to address the £3.9m representation, since it was undoubtedly part of the factual case against him. He did so in detail. His Answer to the Rule 5 statement addressed it (at paragraphs 106.6, 106.7 and 132.1.5). His first witness statement addressed it (and the relevant documents preceding it) (in particular, at paragraph 450.5).[89]The SRA’s written opening addressed the £3.9m representation in detail (see paragraphs 93, 120, 122, 123(3) and 125), as did Mr Williams’ opening note (at paragraph 196(3)).[90]However, Mr Williams was not cross-examined at all on the £3.9m representation, by reference to the documents leading up to it, or at all. The SRA has fairly indicated that this was an oversight on its part, in the context of a very large and wide-ranging set of facts and issues.[91]No mention was then made of the £3.9m representation by the SRA in closing, either orally, or in writing (although the letter of 13th April 2012 was referred to as “finely crafted”). Nor was there any such mention in Mr Williams’ written and oral closings, save for a fleeting reference at the end of oral submissions, in the context of identifying matters that were put, and not put. Significantly, the Tribunal did not press or follow up any issue with respect to that representation at this stage (or at all) – even when the £3.9m representation was described as “a very minor error”.[92]I have already referred to the importance of pleadings in a case of dishonesty as a matter of law. It was also made clear during the course of oral opening submissions that Mr Williams would be holding the SRA strictly to its pleaded case. There was, as I have identified, scope for some ambiguity in relation to the existence of a discrete case of dishonesty based directly and solely on the £3.9m representation.[93]Whether or not material unfairness arises because of a failure to challenge evidence in cross-examination is a highly fact-specific question. Here, Mr Williams had put in a detailed explanation of what he said was his state of mind at the time that the letter of 13th April 2012 was sent. He was expecting to be cross-examined on it. Mr Lawrence tells us that he would have wished to seek to defend his integrity in relation to the £3.9m representation in the witness box.[94]I fully accept that Mr Williams was on notice that he had a case to answer on the £3.9m representation (even if only as part of the build-up to an overarching case of deceitful misrepresentation as to value), and that he had, and took, the opportunity to deal with it in his witness statement. But he was not cross-examined at all on it. The question is whether that goes far enough in terms of fairness in all the circumstances. This is not in my view a question of the strict application of the rule in Browne v Dunn (supra). The situation is more nuanced, in the context of fairness overall.[95]On careful consideration, I have concluded that it did not. This was the most serious of allegations against a practising solicitor. The case involved multiple allegations, in what was a complex case. This was not a ‘single issue’ case, where it was obvious that the issue would, or might, end up as a central finding (and the only finding of dishonesty) in the case. There was ambiguity in the pleaded case. In all the circumstances, it was necessary for Mr Williams to be challenged directly on the point so that his evidence could be tested properly before a finding of dishonesty could be made. The Tribunal could not fairly find him to be dishonest without the most careful consideration of what he said in his defence (as it was put by Lewison LJ, in Clydesdale Bank (supra) at [52]). He should have had the opportunity to respond to the SRA’s allegations against him orally in the witness box, and to be judged on that evidence. I do not accept that the court should speculate in this case that such evidence would have been an “empty technicality”. Moreover, Mr Williams could have been re-examined on the point.[96]The oversight would have served to reinforce any impression that there was no discrete claim based on the £3.9m representation. This was particularly so when Mr Williams had given a detailed explanation as to the £3.9m representation in his witness statement.[97]These factors contributed to a lack of focus on the £3.9m representation during the hearing. No substantive closing submissions were made by reference to it at all. Had the issue been pursued expressly in cross-examination: i) It is likely that it would have been addressed substantively and in some detail on behalf of Mr Williams in closing submissions; and ii) It is unlikely that the Tribunal would have made the error that it did (at paragraph 90.4), to the effect that the £3.9m representation was introduced only after a first draft of the letter had been produced. This was a potentially material point in terms of Mr Williams’ alleged design and thought processes.[98]The position is compounded by the fact that, in its findings, the Tribunal placed emphasis on certain words which appeared in a letter dated 5th April 2012 to the client. As already set out, there Mr Williams wrote, referring to a draft of the letter of 13th April 2012, that it “… gives nothing away, but appears to be a straightforward response to the questions which have been raised.” The Tribunal put the words “but appears” in bold, insinuating that Mr Williams knew that the letter was anything but a straightforward response. Such an inference was never put to Mr Williams. Equally, the Tribunal made an implicit finding that, on 11th April 2012, he had opened the potentially damaging email attachment (containing a draft loan proposal, which stated that the valuation of the property was £3.9m), when his unchallenged evidence was that he (probably) had never opened it.[99]Drawing the strands together: there was here a pleaded case with some ambiguity; a failure to challenge detailed evidence in cross-examination; and no meaningful reference to the substance of the £3.9million representation in the course of closing submissions in the context of a discrete finding of dishonesty, or at all (either by the lawyers, or the Tribunal).[100]It is a combination of these features that renders the Tribunal’s finding of dishonesty unfair. The position might have been otherwise if the Tribunal had raised its concerns over the £3.9m representation during the course of closings – or, if it had called the parties back in after its deliberations were underway to identify such concerns. It had indicated, in terms, that it would recall the parties if necessary at any stage. The parties’ positions could then have been fully and properly explored, including the possible recalling of Mr Williams, and certainly full submissions on the £3.9m representation by reference to Mr Williams’ evidence. But that is not what happened.[101]Although, as indicated in paragraph 79 above, there was sufficient material for this allegation of dishonesty to be mounted, this conclusion renders it unnecessary to consider further whether, in any event, that finding should not stand because of an alleged absence of proper evidential analysis.

The findings of want of integrity: 22nd June, 16th August and 1st November 2011

[102]The suggestion is made that if the finding of dishonesty cannot stand, alongside the removal of the finding of want of integrity based on the F Ltd representations, then the entire judgment must fall away. The Tribunal’s reasoning will have been infected as a whole.[103]I am unable to accept this submission. The Tribunal carefully evaluated the allegations individually. It resolved many issues in Mr Williams’ favour. It made one discrete finding of dishonesty, and two discrete findings of want of integrity. It is unarguable that a finding of dishonesty and a finding of want of integrity arising out of separate conduct (in 2012) in some way renders the findings of want of integrity arising out of separate conduct (in 2011) unsafe in any event, but particularly where the findings that have fallen away have done so for procedural (and not substantive) reasons.[104]By way of recap, the negotiation representations were made by Mr Williams to Northern Rock on 22nd June, 16th August and 1st November 2011: i) That “... our client will seek to negotiate with the Purchaser in order to try and obtain an increase in the offer …”; ii) That Mr Williams was “currently engaged in the process of trying to get a firm and increased offer”; iii) That Mr Williams “would … be pressing the prospective purchaser through solicitors to see if the price can be improved”; and iv) That “[o]ur client’s concern … is that the offer of £2.2million, in a continuing difficult market, will be reduced and not increased.”[105]The negotiation representations were pleaded and part of the case that Mr Williams had to meet (see, for example, paragraphs 28, 82, 83.2, 83.5, 85.3 and 86.3.2 of the Rule 5 statement). It is to be noted, in the context of Mr Williams’ submission that paragraph 85 contains the overarching representations that Mr Williams had to meet, that paragraph 85.3 refers expressly to Mr Williams representing that the client had been in negotiations with the purchaser to secure and increase the offer of £2.2million. There is no material unfairness arising out of the manner in which the allegations based on the negotiations representations were pleaded.[106]Mr Williams unsurprisingly went on to address the negotiation representations, both in his Answer to the Rule 5 statement, and in his first witness statement. Moreover, Mr Williams was cross-examined fully (and at some length) on the negotiations representations (on 5th December 2016). Substantive submissions were also made by reference to the negotiation representations both in opening and closing, by the SRA and Mr Williams.[107]As for the substantive challenge to the findings of want of integrity, there is no basis for criticism of the Tribunal’s detailed findings at paragraphs 89.84 to 89.88 of the judgment. It is clear that the Tribunal had considered Mr Williams’ evidence carefully, and as a whole. The Tribunal said this:
“89.87 The Respondent explained in his oral evidence that he regretted the words ‘to negotiate’ and that he would not use those words if writing the letter [of 22nd June 2011] again. Further, he stated that he had in mind a negotiation with Northern Rock. The Tribunal did not accept this. It was clear when the Respondent referred to ‘negotiation’ in his communications with Northern Rock that he was referring to negotiations between his client and the purchaser. It was also clear from the evidence that at no time did the Respondent seek to have the Client negotiate with the purchaser. There was no real negotiation between the Client and the purchaser in terms of trying to achieve a higher figure. The Tribunal found that the Respondent had made the representations as to negotiation with the sole purpose of seeking to make the deal more attractive to Northern Rock. Accordingly, the Tribunal found that the representations made to Northern Rock in relation to negotiations about the price were false and misleading. 89.88 The Tribunal found that the Respondent’s statement to Northern Rock relating to concern that the offer in the declining market would be reduced and not increased, was also false and misleading. It was the Client’s desire that the offer be reduced, not his ‘concern’ that it might be. The Tribunal noted that in an attendance note of 25 October 2011, the Respondent recorded the Client as stating that ‘he “wants to shave” more money off the price to be paid to Northern Rock’ and that ‘although he does not rule out completely the possibility that we might engage in some “shaving” last minute with Northern Rock,…realistically this is unlikely…’. Further, the Respondent referred to the deal with Northern Rock being ‘on a knife edge’ and advised that there should be no consideration or reducing the price from £2.2million. The Tribunal determined that [the] Respondent had represented that the Client was genuinely worried about a reduction in the offer price when in actuality, the Respondent knew that the Client himself wanted to reduce the price. Accordingly the Tribunal also found the statement made to Northern Rock on 1 November 2011 to be false and misleading.”
[108]These findings are evidently sustainable. On no view can they be said to be plainly wrong. There had been no, nor would there be any, negotiations with a purchaser, let alone negotiations to seek to increase the offer. The purchaser was the client’s special purpose vehicle (“SPV”); it was in the client’s interest to sell for as low a price as possible. The client’s concern was not that the offer would be reduced, rather that it would be increased.[109]It is unrealistic to submit that the statements made by Mr Williams represented merely “loose language”. They involved deliberate words used as part of a theme pursued by Mr Williams, on more than one occasion, over a period of months, and designed to create (and actually creating) a false impression. It was a strategy wholly consistent with Mr Williams’ advice to the client that any interest which the client was to have in the purchasing company should not be visible to Northern Rock, as it would have the potential to create unwarranted delays and/or complications in the transaction. Thus, for example, he advised that it would not be wise for solicitors who had acted for the client in the purchase of the property to act for the purchasing company. The submission that Northern Rock would not have cared about the closeness of any connection is difficult to square with Mr Williams’ advice at the time. This was not a grey area.[110]Nor are the findings undermined by Mr Williams’ disclosure at the outset to Northern Rock that the proposed purchaser was a “family friend”. The nature and closeness of the SPV purchaser, and the nature of the dealings between them, were misrepresented. Putting to one side the fact that Northern Rock might have been disadvantaged, whether or not Northern Rock was actually disadvantaged is not to the point. (As recorded above, the Tribunal did not find it proved that Mr Williams had taken unfair advantage of Northern Rock as a result of these representations.) The Tribunal was entitled to find a want of integrity in Mr Williams’ conduct.[111]In summary, there is no basis for interference with this part of the decision of this specialist tribunal which had heard, and seen the evidence – either procedurally, or substantively.

The complaint of judicial plagiarism

[112]As for the “cut and paste” allegation of judicial plagiarism, the discovery of similarities, between the wording of the findings on sanction in the Ford case and parts of the findings on sanction in the instant case, has generated a significant amount of heat on Mr Williams’ side. Serious allegations of impropriety have been raised as a result, alongside a suggestion that the Tribunal’s approach to the composition of the judgment was “wholly unacceptable, and does serious damage to the reputation of the SDT and indirectly to that of the solicitors’ profession”. If the criticisms were well-founded, it was said that serious concerns might be raised as to the manner in which the solicitors’ profession is regulated and disciplined.[113]It is suggested for Mr Williams that paragraphs 96 to 100 of the judgment do not accord with the nature of this case. In particular, the finding that Mr Williams “by his actions, had caused great harm to the reputation of the profession and the public” seems “very odd”. As does the finding that Mr Williams’ explanation had been “both incredible and disingenuous”, and his evidence “disingenuous and self-serving”. Mr Williams submits that it is now apparent that they are based on paragraphs from the judgment in the Ford case, which was a very different case, involving multiple findings of dishonesty on what was an overwhelming case, said to bear no resemblance whatsoever to the matters found to have been proved against Mr Williams. The fair-minded reader would be forced to infer that the section on sanction in the Tribunal’s judgment here did not in truth represent the considered opinion of the Tribunal, and appearances matter – see IG Markets Ltd v Crinion [2013] EWCA Civ 587; [2013] CP Rep 41 at [16], [30] and [42].[114]But it is said that the irregularity raises much more than a question of mere appearance: the alleged plagiarism goes to the “heart of the judicial process”: the evidence relied on by Mr Williams displaces the presumption of judicial integrity and impartiality identified in Cojocaru v British Columbia [2013] 2 SCR 347 (at [15]). The plagiarism here was “much, much worse”, since it has been covert (unlike the obvious plagiarism in Cojocaru (supra) and IG Markets Ltd (supra)). Mr Williams is said to have been condemned in a public judgment, which is not what it appears to be on its face. These matters make it even clearer that the judgment cannot stand.[115]The point is without merit. There is the preliminary hurdle that drafting errors do not in general give rise to a ground of appeal against the decision: see Virdi (supra) at [34]. But putting that objection to one side, with an understanding of the drafting process and in the light of the explanations from the Tribunal (and the clerk to the Tribunal), it is clear that there has in fact been no procedural impropriety. The clerk performed her role in drafting the Tribunal’s reasons based on their deliberations; she played no part in the decision-making process. She did not refer the Tribunal to the Ford case, or indeed to any template or precedent, although she used a precedent (and may have used the judgment in the Ford case to that end). None of the Tribunal members were aware of the judgment in the Ford case. Each Tribunal member reviewed the clerk’s draft for accuracy.[116]The Tribunal has confirmed in terms that its comments in the judgment, as to damage to reputation and as to the quality of Mr Williams’ evidence, reflected accurately its views. Insofar as Mr Williams does not accept the correctness of the Tribunal’s reasoning or its conclusion on sanction, his remedy would have been to appeal against that reasoning and sanction as a separate and self-standing matter. But he has never raised such an independent challenge: indeed, it was, and remains common ground that striking-off must follow a finding of dishonesty here.[117]As for appearances, the fair-minded reader would not be forced to infer that the section on sanction in the judgment did not in truth represent the Tribunal’s considered opinion. The use of precedents, templates or standard formula for parts of tribunal judgments (for example, setting out the test for dishonesty, or identifying the Tribunal’s overriding objective when considering sanction) is unobjectionable, provided always that the judgment genuinely reflects and represents the views of the Tribunal on the facts of the case, and despite the fact that passages may as a result from time to time appear “formulaic” or involve the use of the same or similar wording between judgments.[118]The involvement of the clerk to the SDT in drafting and recording a tribunal’s reasons and conclusions is a matter of public knowledge and unobjectionable: see Virdi (supra), where it was clearly held that the SDT has the power (either under the Solicitors (Disciplinary Proceedings) Rules 1994, or by implication of law) to instruct or invite its clerk to assist it in the drafting of its findings and decisions. (There the clerk’s role was described explicitly as including the initial responsibility for producing the written record of the Tribunal’s decisions and reasons, and preparation of an initial draft of the findings. The normal procedure was for the first draft to be a complete document.)[119]Moreover, whilst there are clear similarities between the section on sanction in the judgment in the Ford case and this case, there are also material alterations: I take by way of example the additions to paragraph 75 of the judgment, where Mr Williams’ lack of insight was recorded, as was his full co-operation with the SRA’s investigation.[120]Although Mr Williams takes issue with the evidence from the Tribunal, to the effect that its judgment was the product of a careful and conscious evaluation of the evidence, which is a separate issue, there is no direct challenge to the evidence relating to Ms Osborne’s evidence as to her modus operandi and the use of precedents. Ms Osborne’s notes were requested, but they were destroyed at around the time that the judgment was published. What was suggested very shortly before the hearing, however, was that in acting as she did by drafting the judgment, Ms Osborne took her role too far. Reference was made to paragraph 3(11) of the Solicitors (Disciplinary Proceedings) Rules 2007, which is said to provide that the clerk’s duties may include “preparing summaries of allegations, evidence and submissions for including in the Tribunal’s detailed findings”. If it is the practice for the clerks to the SDT to write the Tribunal’s judgment, then it was said that that goes beyond what is contemplated by the Rules, and goes too far.[121]This last submission carried obviously important potential ramifications, involving a fundamental attack on SDT procedures. Had Mr Williams sought to maintain it, an adjournment would have been required so as to allow the SDT to intervene (which it would have wished to). In the circumstances, Mr Williams withdrew this allegation at the outset of his appeal.[122]It will, nevertheless, be apparent from what has already been said that any such submission would have faced formidable hurdles. What matters is that the final judgment accurately records the Tribunal’s reasons and conclusions. There is no irregularity if those reasons and conclusions are written up by the clerk on the basis of the Tribunal’s oral deliberations. The clerk is not ‘writing’ the judgment in the sense that he/she is independently creating the reasoning or conclusions. He/she is ‘writing’ the judgment only in the sense that he/she is writing (up) the judgment, so as to reflect the Tribunal’s own deliberations. And, fundamentally, her involvement is not the last step in the process. After her drafting, the document goes to each Tribunal member for consideration and, of course, amendment and approval. As set out above, each Tribunal member, separately, approved the final judgment.[123]Such a practice does not offend the Solicitors (Disciplinary Proceedings) Rules 2007. Whilst these rules are more detailed as to the functions of a clerk than were the Solicitors (Disciplinary Proceedings) Rules 1994, there was no suggestion in Virdi (supra) that the result would be any different under the later Rules. Paragraph 3 deals, amongst other things, with the appointment and duties of clerks to the Tribunal. A clerk must be a solicitor or barrister of not less than ten years’ standing. Paragraph 3(11) provides materially:
“The Tribunal may prescribe the duties to be performed by the clerks or for which they shall be responsible and those duties shall include arrangements for … (f) preparing summaries of allegations, evidence and submissions for inclusion in the Tribunal’s detailed findings; …” (f) preparing summaries of allegations, evidence and submissions for inclusion in the Tribunal’s detailed findings; …”
[124]Thus, it remains entirely a matter for the Tribunal as to what duties are to be performed by the clerks, or for which they shall be responsible, save that there must be arrangements for the clerk to prepare summaries of allegations, evidence and submissions for inclusion in the judgment. There is nothing in paragraph 3(11) to prevent the Tribunal from also arranging for the clerk to draft the Tribunal’s detailed findings, based on its deliberations, and for its subsequent consideration, amendment or approval.[125]Lastly, the section impugned on the basis of plagiarism relates to sanction only. There would be no question of the substantive findings of dishonesty and want of integrity (or the judgment as a whole) being tainted by reference to the judgment in the Ford case. Those (other) findings are made in detail and very obviously by reference to the specific facts of the case.

Conclusion

[126]For these reasons, the appeal succeeds to the extent that there has been a serious procedural irregularity in relation to the finding of dishonesty, and in relation to the finding of a want of integrity based on the F Ltd representations. Those findings were procedurally unfair.[127]The appeal against the finding of want of integrity based on the negotiation representations is dismissed.[128]As indicated during the course of the hearing, the next step will be to hear the parties on how the appeal should now proceed, taking into account, amongst other things, the matters raised in the SRA’s Respondent’s Notice.

Sir Brian Leveson P:

[129]I agree. In the end this case turns on a detailed analysis of the facts and I have nothing to add to Carr J’s comprehensive assessment of the allegations and the challenges which Mr Lawrence has mounted.[130]As to paragraph 54, lest Mr Williams feel that Mr Lawrence has failed to take a point which could have been argued, I ought to make it clear that, in the absence of compelling justification, I would reject Mostyn J’s description of the concept of want of integrity as second degree dishonesty. Honesty, i.e. a lack of dishonesty, is a base standard which society requires everyone to meet. Professional standards, however, rightly impose on those who aspire to them a higher obligation to demonstrate integrity in all of their work. There is a real difference between them.[131]As for the allegation of what has been described as judicial plagiarism, I add to the observations of Carr J only to underline the responsibility of all who sit in a judicial capacity to ensure that what is recorded reflects their considered opinion. Copying from skeleton arguments may suggest a failure properly to analyse the merits of both sides of a case. Using words from earlier decisions which have stood the test of time is different provided, of course, that they accurately reflect the judicial view of the case then being considered. That is not, of course, to encourage a lazy approach to the provision of reasons but to recognise that it is unnecessary to start with a blank sheet of paper when expressing well understood concepts (such as the significance of a finding of dishonesty in relation to a solicitor).[132]As for the role played by the clerk, Virdi makes the position clear. Again so that Mr. Williams should not feel that Mr Lawrence stepped back from an allegation (because of the obvious need for the SDT to be given notice and the opportunity to advance arguments in relation to it thereby leading to an adjournment), I fully endorse Carr J’s observations at paragraph 122 that the submission would have faced formidable hurdles. This is not least because of the impact that it would have on any judge being given any assistance in relation to initial preparatory work on a judgment (which might include the lengthy recitation of unchallenged facts or the citation of the relevant legislation).[133]Within 10 days of the handing down of this judgment and in the light of the present position, the parties must reduce their submissions as to the way forward into writing. It is obviously critical that the remaining issues are resolved as soon as possible.

Cited in 19 later judgments

and 10 more of the most senior