Kilshaw v Office of the Supervision of Solicitors

An appellate court reviewing a disciplinary tribunal must assess the decision in light of the material before the tribunal, while giving appropriate weight to its expertise. An adjournment for medical reasons is discretionary, but fairness may require one where the litigant’s presence is necessary and genuine inability to attend is established. The applicant bears the burden of proving that need.

A solicitor’s deliberate and prolonged intermingling of money belonging to a third party with office funds is a serious breach of the Accounts Rules. Striking off may be proportionate even where dishonesty is neither alleged nor proved, particularly where the breach benefits the solicitor by supporting an overdraft.

The claimant, a solicitor, appealed against the Solicitors Disciplinary Tribunal’s decision of 23 July 2002, with written reasons dated 30 September 2002. The tribunal had refused a late application for an adjournment based on limited medical evidence, found breaches of the applicable Solicitors’ Accounts Rules, and ordered that the claimant be struck off the Roll.

The appeal concerned whether the tribunal should have adjourned the hearing and whether striking off was disproportionate in the absence of any allegation of dishonesty. The claimant also relied on the effect of his personal and financial circumstances.

1. Adjournment. The court dismissed the challenge to the tribunal’s refusal to adjourn. The decision had to be assessed on the evidence available to the tribunal at the time. The application was made only five days before the hearing and was supported by medical evidence which expressly recorded the doctor’s limited knowledge and inability to say when the claimant could undertake a full tribunal. The tribunal was entitled to consider that evidence alongside the claimant’s earlier dealings with it and to conclude that the application was a delaying manoeuvre.
2. Appellate approach to sanction. The court applied the approach stated in Ghosh v General Medical Council [2001] 1 WLR 1915 and referred to MacMahon v Council of the Law Society of Scotland SLR 36. Its jurisdiction was appellate, not merely supervisory. It could substitute its own decision where a sanction was excessive or disproportionate, but had to give appropriate weight to the specialist tribunal’s expertise.
3. Penalty. The Accounts Rules were designed to prevent the intermingling of clients’ or third-party money with office funds. The claimant had received about 75 payments, totalling more than £17,000, and retained them in an office account which was substantially overdrawn. He could have opened a client account or arranged for the payments to be withheld, but did neither. The breaches were deliberate, avoidable and personally beneficial because the money supported the overdraft.
4. The absence of dishonesty did not make striking off disproportionate. The breach was sufficiently serious to justify the ultimate sanction. The appeal was dismissed. The respondent was awarded costs, to be assessed, but enforcement was prohibited without leave of the court.

• Solicitors Disciplinary Tribunal: On 23 July 2002, with written reasons dated 30 September 2002, found the allegations proved and ordered that the claimant be struck off.
• High Court (Administrative Court): The appeal was dismissed.