D'Souza v The Law Society

An appellate court should respect the specialist expertise of a professional disciplinary tribunal, but must intervene where its sanction is clearly inappropriate. In assessing a fine or costs order, the tribunal may need to consider the solicitor’s means. This is especially so where practice is suspended or termination of practice is threatened, and exceptional circumstances may make means relevant even where practice continues. A tribunal’s failure to consider plainly exceptional financial circumstances can fundamentally undermine the sanction. On an appeal concerned with sanction, the remitted hearing should address sanction rather than reopen admitted findings of guilt, although evidence relevant to seriousness and sanction may be received.

The appellant, a solicitor, appealed against a Solicitors Disciplinary Tribunal order imposing a £1,500 fine and liability for costs incurred up to an earlier hearing. The order followed an earlier appeal in which the Administrative Court had set aside a prohibition on his practising as a sole practitioner and remitted the matter for a fresh determination of sanction. The appellant challenged the scope of the rehearing, the Tribunal’s findings, its independence, and the financial penalty and costs order. The central issues were whether his means were relevant, whether they had been considered, and what sanction should follow.

1. Appeal partly allowed. The Tribunal’s sanction was quashed because it failed to take account of the appellant’s exceptional financial circumstances. The court substituted a total financial liability of £2,000, divided into a £500 fine and £1,500 capped costs. There was no order as to the costs of the appeal.
2. The governing approach to appellate intervention was that the Tribunal was expert and particularly well placed to assess professional misconduct and the public interest. Respect remained due to its sentencing decision, but the High Court could intervene where, despite that respect, the decision was clearly inappropriate. This reflected the qualification to the traditional Bolton v Law Society approach required by Convention rights.
3. The means of a respondent may be relevant to both a fine and a costs order. The issue commonly arises where suspension or striking off affects livelihood, but exceptional circumstances may make means relevant even where the solicitor remains entitled to practise. Here the evidence showed exceptionally limited resources, and the Tribunal’s findings contained no indication that means had been considered.
4. The earlier remittal required reconsideration of sanction, not a complete rehearing of guilt. The appellant’s admissions remained effective. The Tribunal could nevertheless receive fresh evidence, including evidence bearing on the seriousness of the defaults and the appropriate sanction.
5. The remaining grounds failed. The investigation was not shown to be unfair; the Tribunal had assessed the evidence carefully; the historic 1989 misconduct was given no great weight because of the lapse of time; and the Tribunal was entitled to treat compliance with the Solicitors’ Accounts Rules as important despite small errors or limited financial consequences. The Tribunal’s status as an independent and impartial tribunal was established by binding authority.

• Administrative Court, 11 May 2006: allowed an earlier appeal, set aside the Tribunal’s order prohibiting the appellant from practising as a sole practitioner, and remitted the matter for a fresh determination of sanction.
• Solicitors Disciplinary Tribunal, 10 July 2007: on rehearing, imposed a £1,500 fine and ordered payment of costs incurred up to 20 December 2005.
• High Court (Administrative Court), [2009] EWHC 2193 (Admin): allowed the appeal in part, quashed the financial sanctions, and substituted a total of £2,000.