Briggs & Anor v Law Society

A breach of a solicitor’s undertaking is prima facie evidence of misconduct, rather than misconduct imposing absolute disciplinary liability. Exceptional circumstances may establish absence of fault. Where fault is proved, breach of an undertaking is a serious matter because conveyancing depends on confidence that undertakings will be performed. An appellate court reviewing professional discipline may exercise its own discretion on penalty, while giving due respect to the tribunal’s assessment. A solicitor held out as a partner cannot avoid disciplinary responsibility by relying on a possible right to rescind the partnership agreement.

The claimants appealed against decisions of the Solicitors Disciplinary Tribunal. Mr Kio had been suspended for five years and ordered to pay 80 per cent of the Law Society’s costs. Dr Briggs had been suspended for one year and ordered to pay 20 per cent of the costs.

Mr Kio challenged findings concerning breaches of solicitors’ undertakings, the seriousness of his misconduct, and the penalty and costs orders. Dr Briggs argued that he should not be treated as a partner because the partnership agreement was allegedly voidable for misrepresentation. The court also considered whether Dr Briggs’s appeal should be adjourned in his absence.

1. Mr Kio’s appeal. The civil consequence of breach of a solicitor’s undertaking is liability, but disciplinary proceedings concern misconduct. Under the Solicitors’ Code of Professional Conduct, breach of an undertaking is prima facie evidence of misconduct. The solicitor may explain why the breach occurred and may establish absence of fault in exceptional circumstances.
2. The Tribunal was therefore wrong to treat breach of an undertaking as invariably misconduct. Mr Kio nevertheless had been at fault. By the time of the final undertaking, he knew that mortgage lenders had complained, title documents and charges remained outstanding, and transaction files were missing. He had relied on Mr Toppin’s assurances despite the warning signs and Mr Toppin’s background.
3. Breaches of undertakings must be treated seriously where fault is proved. Undertakings are fundamental to conveyancing, and their breach damages public confidence in the profession and the conveyancing system. The Tribunal was entitled to regard the extensive accounts and administrative failures, together with the unauthorised employment of Mr Toppin under section 41 of the Solicitors Act 1974, as serious misconduct.
4. The appellate approach to disciplinary penalties is flexible. Although Bolton v The Law Society [1994] 1 WLR 512 emphasised respect for the professional tribunal’s assessment, Langford v The Law Society [2002] EWHC 2802 (Admin) recognised that an appellate court may exercise its own discretion and interfere where it considers that right. The five-year suspension and costs order struck the proper balance between seriousness and mitigation. Mr Kio’s appeal was dismissed.
5. Dr Briggs’s appeal. Even assuming that misrepresentation might have entitled Dr Briggs to rescind the partnership agreement, he was acting as a partner, knew that he was a partner, and was held out to the public in that capacity when the misconduct occurred. The possible right to avoid the agreement was irrelevant. The one-year suspension and costs order were appropriate.
6. Both appeals were dismissed. Costs were ordered against both appellants, subject to detailed assessment unless agreed.

The judgment states that both claimants appealed to the Divisional Court against decisions of the Solicitors Disciplinary Tribunal dated 28 September 2004. The Tribunal imposed a five-year suspension on Mr Kio and a one-year suspension on Dr Briggs.

• High Court (Administrative Court): both appeals dismissed; the penalties and costs allocations were upheld.