Brett v The Solicitors Regulation Authority

On an appeal under section 49 of the Solicitors Act 1974, the High Court may substitute the correct basis of professional misconduct where the charge and particulars fairly encompass it. A finding that a solicitor knowingly misled the court could not stand where the disciplinary tribunal disavowed dishonesty but gave no coherent explanation of how knowing misconduct could exist without it. The evidence nevertheless established recklessness. Confidentiality and legal professional privilege do not require a lawyer to disclose privileged information, but the lawyer must take steps to avoid misleading the court.

The appellant, a solicitor and former in-house legal manager, appealed under section 49 of the Solicitors Act 1974 against findings by the Solicitors Disciplinary Tribunal that he had failed to act with integrity and had knowingly allowed the court to be misled, contrary to the Solicitors’ Code of Conduct 2007. The Tribunal had suspended him for six months and ordered him to pay £30,000 costs.

The allegations arose from litigation concerning publication of the identity of an anonymous blogger. The appellant knew that a journalist had initially identified the blogger through unauthorised access to email, but allowed evidence and submissions to proceed on the basis that the identification had resulted from publicly available information and deduction. The issues were whether the Tribunal’s findings were sustainable, whether privilege or confidentiality justified the appellant’s conduct, and whether the costs assessment should be disturbed.

1. Appeal standard. The court could intervene where the Tribunal had misdirected itself in law or reached a wrong decision, while respecting its advantage in assessing evidence. This approach reflected Langford v The Law Society [2002] EWHC 2802 and Salsbury v The Law Society [2009] 1 WLR 1286 (paras [8]-[9]).
2. Alternative basis of liability. Rule 11.01 prohibited deceiving, or knowingly or recklessly misleading, the court. Since the particulars alleged knowingly and/or recklessly misleading the court, the High Court could quash the finding of knowing misconduct and substitute a finding of reckless misconduct if the facts supported it (paras [69]-[78], [102]).
3. Privilege and the duty to the court. The court proceeded on the basis that the journalist’s disclosure might have been confidential or legally privileged. A solicitor could not be required to disclose privileged information without waiver. That did not permit the solicitor to allow the court to be misled. Available courses included seeking waiver, correcting the misleading impression without revealing the confidential source, informing counsel, or abandoning the defence (paras [79]-[88]).
4. Misleading impression. The journalist’s statement, the appellant’s response to the opposing solicitors, the uncorrected skeleton argument, and counsel’s consequent submissions caused the court to proceed on the false assumption that the identity had been discovered through lawful public sources. The court was therefore misled (paras [89]-[95]).
5. Mental element. The finding of knowing misconduct was unsustainable. Having disavowed dishonesty, the Tribunal did not explain how the appellant knowingly allowed the court to be misled without effectively finding dishonesty. It was entitled to reject his account that the failure was merely negligent. The evidence showed awareness of a risk that the court would be misled and that taking the risk was unreasonable. The proper finding was recklessness, applying the working definition in R v G [2004] 1 AC 1034 (paras [96]-[101]).
6. Integrity and costs. The same conduct justified the finding that the appellant failed to act with integrity under Rule 1.02. The costs appeal failed. A summary costs assessment was a matter for the Tribunal’s discretion and would be disturbed only on clear evidence that it was wrong (paras [101]-[104]).
7. Additional observations. Lord Thomas CJ emphasised, in separate observations, the overriding duty owed by legal representatives to the court and the administration of justice. Where a lawyer is unsure how to discharge that duty, independent advice should be obtained after full disclosure of the relevant circumstances (paras [105]-[113]).

The appeal was allowed only to substitute recklessness for knowing misconduct. The integrity finding and the £30,000 costs order remained unchanged.

• High Court (Administrative Court): Brett v The Solicitors Regulation Authority [2014] EWHC 2974 (Admin). Appeal allowed in part against the Solicitors Disciplinary Tribunal’s decision.
• Solicitors Disciplinary Tribunal: Findings of breach of Rules 1.02 and 11.01; six-month suspension and £30,000 costs order. The decision was dated 6 December 2013, with reasons dated 17 January 2014.