Ighalo v The Solicitors Regulation Authority

A disciplinary tribunal is not apparently biased merely because one member previously held a part-time adjudicatory appointment with the regulator. The relevant question is whether the fair-minded and informed observer would conclude that there was a real possibility of bias. Disclosure is required only where a previous activity or association might reasonably support that apprehension. A tribunal or regulator has no automatic duty to investigate unsupported allegations of bias. In dishonesty proceedings, the tribunal must apply the objective and subjective elements of the Twinsectra test and may rely on the misuse of client money, the surrounding circumstances and subsequent misleading conduct. Absence of personal financial benefit and eventual repayment are relevant but not determinative.

The appellant appealed under section 49(1) of the Solicitors Act 1974 against the Solicitors Disciplinary Tribunal’s decision to strike him from the Roll and order him to pay costs. The Tribunal had found proved allegations including misuse of mortgage funds, misleading an investigation officer, conflicts of interest, breach of an undertaking and failures in conveyancing transactions.

The appeal pursued two grounds: whether the Tribunal was independent and impartial because one solicitor member had formerly acted as an adjudicator for the Solicitors Regulation Authority, and whether the Tribunal had erred in finding dishonesty in the use of Abbey’s mortgage advance and in the appellant’s account of a subsequent meeting.

1. Ground one dismissed. The mere fact that a Tribunal member had previously acted as a part-time adjudicator for the regulator did not establish actual or apparent bias. The relevant test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias: Porter v Magill [2002] 2 AC 357.
2. There was no general duty to disclose every previous activity or association. Disclosure was required only where the matter would or might provide a basis for a reasonable apprehension of lack of impartiality. A former appointment with the regulator, ending more than two years before the Tribunal hearing, did not do so without additional facts. A close personal association with a material witness, or another matter capable of affecting impartiality, could have required disclosure, but there was no evidence of any such circumstance.
3. The later Dean and Dean proceedings did not assist the appellant. They began after the Tribunal hearing, were unrelated to the appeal and were relied upon at the last moment. The allegation that the Tribunal member had anticipated or discussed those proceedings was speculative. There was also no automatic duty on the Tribunal or regulator to investigate unsupported allegations of bias, since that could encourage fishing expeditions.
4. Ground two dismissed. The Tribunal identified and applied the combined objective and subjective test for dishonesty stated in Twinsectra Limited v Yardley and Others [2002] 2 AC 164. It was entitled to find that using Abbey’s money to discharge a personally guaranteed debt, contrary to the purpose for which the money was advanced, was dishonest by ordinary standards and that the appellant knew it to be dishonest.
5. The appellant’s lack of personal financial benefit and the eventual repayment of the mortgage were only factors among many. The Tribunal was also entitled to accept the investigating officer’s evidence that the appellant had given a false explanation at the September meeting. Its credibility findings disclosed no error of law.

The appeal was dismissed.

• High Court (Administrative Court): appeal under section 49(1) of the Solicitors Act 1974 dismissed. The decision and orders of the Solicitors Disciplinary Tribunal were upheld.