Samuel v Law Society

An appellate court should not substitute its own conclusions for a disciplinary tribunal’s findings of primary fact, particularly where credibility depends on oral evidence. Fresh evidence is admitted only exceptionally, where the applicable criteria are satisfied. The combined test for dishonesty asks whether the conduct was dishonest by the standards of ordinary and honest people and whether the respondent knew that it was dishonest by those standards. Where dishonesty involving client money and other misconduct is proved, striking off may be a proportionate sanction to protect the public and the reputation of the profession.

The appellant, a solicitor practising on her own account, appealed against the Solicitors Disciplinary Tribunal’s decision to strike her off the Roll of Solicitors. The tribunal had found proved failures concerning accounting records and reconciliations, a conflict of interest, misuse of client money to complete the appellant’s own property purchase, breach of practising-certificate conditions, conduct unbefitting a solicitor and dishonesty.

The appeal challenged the dishonesty finding, the finding that the practising-certificate conditions had been breached, the refusal to admit further evidence and the sanction. The central issues were whether the tribunal had made findings that were open to it on the evidence, whether fresh evidence should be admitted and whether striking off was open and proportionate.

1. Appeal dismissed. The tribunal had applied the correct combined test for dishonesty: whether the conduct was dishonest by the standards of reasonable and honest people and whether the appellant knew that it was dishonest by those standards. The court found no legal error in the tribunal’s approach.
2. The appeal court’s function was to review, not rehear, the tribunal’s factual conclusions. It should be slow to interfere with primary findings, especially where they depended on seeing and hearing the witness. The tribunal was entitled to reject the appellant’s explanation concerning the use of client funds and to rely on the adverse credibility finding in concluding that she had acted dishonestly.
3. Admission of fresh evidence on appeal was exceptional. The appellant provided no concrete proposed evidence or witness statements and established none of the conditions identified in Ladd v Marshall. There was therefore no justification for calling her aunt or other proposed witnesses.
4. The tribunal was also entitled to find that the appellant had continued to act as a solicitor during the period when her practising certificate prohibited her from doing so. The documents and her own evidence provided a sufficient evidential basis, and no proper ground for appellate interference was shown.
5. In light of the proved misconduct and express finding of dishonesty involving client money, striking off was a sanction properly open to the tribunal. The tribunal had considered the circumstances and mitigation and was entitled to conclude that striking off was appropriate and proportionate to protect the public and the good reputation of the profession.
6. The appellant was ordered to pay the respondent’s costs, subject to detailed assessment if not agreed, with enforcement prohibited without leave of the court, having regard to her lack of means.

• Solicitors Disciplinary Tribunal: on 13 May 2008, found all allegations proved, including dishonesty, and ordered that the appellant be struck off the Roll of Solicitors.
• High Court (Administrative Court): dismissed the appeal and upheld the tribunal’s findings and sanction.