Baxendale-Walker v The Law Society

A disciplinary tribunal becomes functus officio when it announces its order. The statutory requirement to give reasons later does not preserve jurisdiction to reconsider the decision.

A solicitor who gives a reference about a person never met, without any factual basis for statements about identity, integrity or standing, commits a grave breach of professional duty. Suspension may be justified even without dishonesty where the conduct falls seriously below the standards of integrity, probity and trustworthiness.

A regulator exercising a public disciplinary function should not ordinarily pay the successful party’s costs merely because an allegation failed. A proper additional reason is required.

The solicitor appealed against a three-year suspension imposed by the Solicitors’ Disciplinary Tribunal for providing an improper and unprofessional reference to a bank. He also argued that the Tribunal remained able to revise its decision until reasons were given.

The Law Society cross-appealed against the dismissal of an allegation concerning evidence given in earlier High Court proceedings and against the order requiring it to pay 30 per cent of the solicitor’s disciplinary costs.

The court considered the Tribunal’s jurisdiction after announcing its order, the proportionality of the suspension, and the proper approach to costs against a public regulator.

1. The Tribunal became functus officio when it announced the suspension order. Section 48(1) of the Solicitors Act 1974 contemplated that reasons could be filed later. The duty to give reasons did not create a general power to reconsider the order.
2. The three-year suspension was not excessive or plainly wrong. Giving a bank a reference about a person whom the solicitor had never met, and about whom he knew nothing, was a grave breach of professional duty. Dishonesty was unnecessary for serious sanctions, including suspension.
3. The costs order against the Law Society was wrong. A public regulator should not pay costs merely because an allegation failed. A further good reason was required, such as bad faith, an unfounded allegation, malice or another improper motive. The solicitor was ordered to pay 60 per cent of the Law Society’s disciplinary costs.
4. The drafting of the dismissed allegation confused the alleged untruthful evidence with the passages relied on to prove it. That defect did not amount to an abuse of process. The judgment of Etherton J could properly be evidence supporting an allegation of knowingly untruthful evidence under Rule 30 of the 1994 Rules.

The solicitor’s appeal was dismissed. The Law Society’s costs appeal was allowed.

High Court (Administrative Court): The Solicitors’ Disciplinary Tribunal imposed a three-year suspension and ordered the Law Society to pay 30 per cent of the solicitor’s costs. The High Court dismissed the solicitor’s appeal against suspension and allowed the Law Society’s costs appeal, substituting an order that the solicitor pay 60 per cent of the disciplinary costs.