Holloway v Solicitors Regulation Authority

A disciplinary tribunal may treat the absence of contemporaneous attendance notes as evidence relevant to whether a solicitor exercised appropriate professional scepticism, particularly where the solicitor must assess the totality of an unusual transaction. An appeal court will not interfere where the tribunal directed itself to the correct criminal standard of proof and reached a conclusion supported by the evidence. The tribunal need not prove that fraud actually occurred where the disciplinary allegation concerns failure to recognise fraud indicators and take appropriate investigative steps.

The appellant, a solicitor, appealed under section 49 of the Solicitors Act 1974 against a finding of professional misconduct by the Solicitors Disciplinary Tribunal. The tribunal found that he had failed to recognise hallmarks of possible property fraud in a residential conveyancing transaction and had not taken appropriate steps in accordance with the profession’s fraud-warning guidance. It imposed a reprimand and ordered costs of £6,750.

The appellant challenged the tribunal’s reliance on the absence of attendance notes and argued that it had applied the wrong standard of proof. The court also had to determine whether the tribunal was entitled to find the misconduct proved on the evidence.

1. Appeal dismissed. The reprimand imposed by the Solicitors Disciplinary Tribunal stood.
2. The relevant issue was whether the transaction bore hallmarks of property fraud and, if so, whether the solicitor had taken appropriate steps to satisfy himself about the circumstances. It was unnecessary for the tribunal to decide that an actual fraud had occurred.
3. The tribunal was entitled to attach weight to the absence of contemporaneous attendance notes. Such notes were relevant both to demonstrating proper conduct to a later investigator and to recording the features of the transaction which had to be considered in combination.
4. The tribunal had properly directed itself that the allegation had to be proved beyond reasonable doubt. Its statement that it was satisfied so that it was sure demonstrated that the direction had been applied. Strong evidence would have been required to establish that the tribunal had failed to follow its own direction, and there was no such evidence.
5. The tribunal had carefully explained why the appellant’s conduct breached rule 1.06 of the Solicitors Code of Conduct. Its conclusion was supported by substantial evidence and was one it was entitled to reach.
6. The court assessed the respondent’s appeal costs at £6,500 including VAT, considering that detailed taxation would be disproportionate and taking account of the appellant’s absence.

• High Court (Administrative Court): The appeal under section 49 of the Solicitors Act 1974 was dismissed. The tribunal’s reprimand remained in force.
• Solicitors Disciplinary Tribunal: The appellant was found guilty of professional misconduct under rule 1.06 of the Solicitors Code of Conduct and ordered to pay £6,750 in costs. The judgment does not give a citation for that decision.