Broomhead v Solicitors Regulation Authority

A solicitor remains subject to the inadequate professional services regime where he provides legal services as an in-house solicitor. The regime applies to a solicitor, rather than only to someone qualified to practise under a current practising certificate. Whether a person acted as a solicitor is determined from the whole evidence, including how the person presented his role to clients and other participants.

On costs, a disciplinary tribunal may consider the solicitor’s means, but a solicitor has no automatic entitlement to an adjournment to provide further financial evidence. Where some charges fail, the tribunal should ordinarily reduce the costs payable to reflect the successful defence, even if all charges were properly brought.

Martin Broomhead appealed against findings and orders made by the Solicitors Disciplinary Tribunal on 30 March 2012. The Tribunal found proved that he had failed to pay compensation awarded following inadequate professional services provided to a client and that he had failed to deal openly, promptly and co-operatively with the Legal Complaints Service and the Solicitors Regulation Authority. It dismissed a separate allegation concerning another client.

The appeal challenged the finding that Mr Broomhead had acted as, or held himself out as, the client’s solicitor, the application of the inadequate professional services regime, and the order requiring him to pay the SRA’s costs despite succeeding on one charge and relying on limited means.

1. Appeal partly allowed. The findings that Mr Broomhead acted as Mrs Bird’s solicitor and provided inadequate professional services were upheld. The costs order was varied so that he was liable for 80% of the SRA’s costs before the Tribunal, subject to detailed assessment if not agreed. The costs of the appeal were fixed at £6,000. Leave to appeal was refused.
2. Section 37A and Schedule 1A of the Solicitors Act 1974 apply to a solicitor who provides professional services, including an in-house solicitor. The statutory language concerns “a solicitor”, not a person currently qualified to act under section 1. The absence of a practising certificate did not exempt Mr Broomhead from the regime. Schedule 1A paragraph 9, which extends references to a solicitor to a person removed from or struck off the roll, reinforced that conclusion.
3. Section 1A of the 1974 Act is a deeming provision. It identifies circumstances in which a person is treated as acting as a solicitor where he would not otherwise be so regarded. It is not an exhaustive statement of every circumstance in which a person may act as a solicitor.
4. The Tribunal’s factual conclusion was unimpeachable. Its assessment could be supported by the affidavit describing Mr Broomhead as having conduct of the proceedings, the EAT’s description of him as Mrs Bird’s solicitor, instructions to counsel, and his signing of an after-the-event insurance declaration as solicitor. The appellate court was slow to interfere with findings based on oral evidence.
5. The Tribunal had a broad costs discretion. It could consider means, including in an exceptional case where the substantive sanction was only a reprimand. A solicitor contesting charges could not reasonably be expected to disclose means before the hearing, but, after a finding of guilt, he had no entitlement to an adjournment to provide further financial evidence. Any adjournment remained discretionary.
6. The Tribunal erred in principle by treating the fact that all charges had been properly brought as sufficient, by itself, to require the solicitor to pay the SRA’s costs even in respect of the charge successfully defended. The unsuccessful charge involved a material part of the evidence and was not trivial. A 20% reduction was appropriate.

• Solicitors Disciplinary Tribunal: on 30 March 2012, found two allegations proved, dismissed one allegation, reprimanded Mr Broomhead and ordered him to pay the SRA’s costs.
• High Court (Administrative Court): varied the Tribunal’s costs order and otherwise dismissed the appeal.