Moseley v Solicitors Regulation Authority

Striking off may be appropriate for conduct outside a solicitor’s professional practice where it involves a lack of integrity or diminishes public trust in the profession. Dishonesty or a serious criminal offence, and exceptional circumstances, are not necessary preconditions. Disciplinary sanctions are primarily protective and seek to maintain public confidence, so personal mitigation may carry less weight. An expert disciplinary tribunal is entitled to considerable respect on sanction. Procedural fairness generally requires a full opportunity to make mitigation submissions, but does not ordinarily require the tribunal to identify its proposed sanction or indicate the perceived gravity of the conduct in advance.

The claimant appealed against the Solicitors Disciplinary Tribunal’s order striking him off the roll and requiring him to pay costs. He challenged the sanction only, not the findings that he had failed to disclose a property interest to the Official Receiver, held himself out as able to transfer the interest, failed to return money received from purchasers, and acted in a way likely to diminish public trust in the profession.

The appeal raised the severity of the sanction, alleged procedural unfairness, the weight given to non-repayment, and the treatment of personal and professional mitigation.

1. Appeal dismissed. Striking off was within the range of reasonable responses and was the appropriate sanction on the facts. The conduct involved a serious lack of integrity and undermined public confidence, although it was unconnected with the claimant’s legal practice and did not involve an allegation of dishonesty.
2. There is no rule or presumption that conduct outside professional duties can justify striking off only where it involves dishonesty, a serious criminal offence, or exceptional circumstances. Such conduct may justify striking off where, viewed in context, it involves a lack of integrity or diminishes public trust in the profession.
3. The principles in Bolton v Law Society [1994] 1 WLR 512 applied. Disciplinary sanctions are generally protective rather than punitive. Their fundamental purpose is to maintain the reputation of the profession and public confidence in its integrity. Personal mitigation therefore has less effect than in ordinary sentencing, and considerable respect is owed to the expert tribunal’s decision on sanction. The approach was confirmed in Salsbury v Law Society [2008] EWCA Civ 1285.
4. The tribunal was entitled to consider the claimant’s failure to return money to those entitled to it as part of the overall conduct. The relevant assessment concerned the cumulative conduct: non-disclosure, representing that the property could be transferred, receiving money to which he was not entitled, using it to discharge debts, and failing to repay it.
5. Under rule 16 of the Solicitors (Disciplinary Proceedings) Rules 2007, the claimant was entitled to make mitigation submissions in respect of any sanction. The tribunal followed the prescribed procedure and gave him repeated opportunities to address mitigation. Fairness did not require it to announce that striking off was under consideration or to identify where the conduct lay on a scale of culpability, even though he was unrepresented.
6. The claimant was ordered to pay the respondent’s costs, summarily assessed at £8,904.60.

• Solicitors Disciplinary Tribunal: found all four allegations proved and struck the claimant off the roll, ordering him to pay costs.
• High Court (Administrative Court): dismissed the appeal against sanction and ordered payment of the respondent’s costs.