Tinkler v Solicitors Regulation Authority

In disciplinary appeals, a tribunal may infer that clients were misled where solicitors held themselves out as partners but concealed that the partnerships were effectively dormant. Direct evidence from an affected client is not essential.

When fixing a fine, the Solicitors Disciplinary Tribunal must treat the solicitor’s means and ability to pay as material factors. A fine which would realistically take many years to pay may be excessive and disproportionate. On appeal, the High Court must respect the tribunal’s expertise but may intervene for an error of law or where the sanction is clearly inappropriate.

Three appeals were brought from decisions of the Solicitors Disciplinary Tribunal dated 15 September and 13 December 2010. The first appellant challenged a finding that he had misled clients about the nature of partnerships and challenged a £40,000 fine. The second and third appellants challenged findings or orders made against them under the Solicitors Act 1974, together with costs orders.

The central issues were whether the finding of misleading clients could properly be inferred, whether the first appellant’s means had been taken into account, whether procedural non-disclosure affected the second appellant’s case, and whether the costs orders were proportionate.

1. The first appellant’s appeal against the finding on allegation 7 was dismissed. The SDT was entitled to infer that clients had been misled. The appellants held themselves out as partners in two firms, while neither played an active role in the other’s practice. Without disclosure of that true position, clients would naturally infer that each partner participated in the control and operation of both partnerships. Evidence from an actual or potential client was unnecessary. The SDT’s reasoning could have been fuller, but its basis was plain and disclosed no error ([27]–[29]).

2. The appeal against the £40,000 fine was allowed. Ability to pay was a material factor in fixing a fine, even though the SDT had no statutory upper limit and fines could be paid by instalments. The SDT had failed to consider the first appellant’s means. A fine which would realistically require many years to pay was excessive and disproportionate on the facts ([35]–[39]).

3. Applying the approach in Salisbury v Law Society [2009] 2 AER 487, the High Court should pay considerable respect to the expert SDT. It may nevertheless intervene where there is an error of law or the sanction is clearly inappropriate. The £40,000 fine was quashed and replaced with a fine of £20,000 ([40]–[43]).

4. The second appellant’s appeals against the finding that he exerted influence or control over a solicitor’s practice and against the order under section 43(2) of the Solicitors Act 1974 were dismissed. Late disclosure of documents created no realistic prospect of changing the result ([44]–[50]).

5. The costs orders against the second and third appellants were quashed and replaced with orders of £5,000 each, enforceable only with further leave of the SDT. The SDT had erred by imposing joint and several liability for £28,000 and by failing to apportion costs fairly and reasonably according to the costs attributable to each appellant ([51]–[62]).

• Solicitors Disciplinary Tribunal: findings and sanctions made on 15 September 2010, with costs orders made on 13 December 2010.
• High Court (Administrative Court): the first appellant’s appeal against the finding was dismissed but his sanction appeal was allowed; the second appellant’s substantive appeals were dismissed and his costs appeal allowed in part; the third appellant’s costs appeal was allowed in part.