Shaw v Solicitors Regulation Authority

A finding of solicitor dishonesty will normally lead to striking off, but there is no blanket rule that dishonestly misleading the court makes striking off inevitable. The disciplinary tribunal retains a fact-specific discretion to consider whether exceptional circumstances justify a lesser sanction.

The assessment must focus on the nature, scope and extent of the dishonesty while taking account of its context, culpability, effect on the administration of justice, harm to professional reputation, motivation, mitigation and personal circumstances. On appeal, the High Court reviews the tribunal’s decision and intervenes only for legal error or where the sanction falls outside the permissible range.

Mr Shaw appealed under section 49 of the Solicitors Act 1974 against the decision of the Solicitors Disciplinary Tribunal to strike him off the Roll for dishonestly misleading the court in a sworn affidavit. The dishonesty concerned his failure to disclose that he had known of information undermining the presentation previously made to the court in support of a without-notice freezing order.

Earlier proceedings had upheld the relevant finding of dishonesty but remitted the matter for reconsideration of sanction. The Tribunal again ordered striking off. The central issues were whether the Tribunal had erred in principle, whether Brett v SRA required striking off whenever a solicitor dishonestly misled the court, and whether striking off was clearly inappropriate in the circumstances.

1. Appeal dismissed. The Tribunal’s decision to strike Mr Shaw off the Roll was neither legally unsafe nor clearly inappropriate.
2. There is no rule that the observations in Brett v SRA make striking off inevitable whenever a solicitor is found dishonestly to have misled the court. The reference in that case to an inevitable inference did not remove the established exceptional-circumstances qualification recognised in Bolton v Law Society. The observations in Brett v SRA instead underline the exceptional gravity of dishonestly misleading the court and the near-inevitability of striking off.
3. The assessment of exceptional circumstances is fact-specific. The Tribunal correctly concentrated on the dishonesty found against Mr Shaw, but it had also considered the surrounding litigation, the events leading to the affidavit, the duration and deliberateness of the conduct, its effect, motivation, professional reputation, mitigation and personal circumstances.
4. The misconduct was particularly serious. Mr Shaw was a senior solicitor and officer of the court who deliberately failed to correct a false impression previously created on oath. The fact that the affidavit improved the opposing party’s position did not assist him, because he remained under a duty to provide a full and frank explanation.
5. The Tribunal was entitled to treat the dishonesty as more than momentary and to conclude that the procedural history, personal mitigation, unblemished career and low risk of repetition did not amount to exceptional circumstances. Those matters had to be considered, but the protection of public confidence in the profession remained paramount.
6. The appeal was by way of review under CPR 52.11(1) and CPR 52.21(3)(a). Respect was owed to the specialist Tribunal, and intervention was justified only for legal error, failure to consider relevant evidence, inadequate reasons or a sanction clearly outside the generous ambit of reasonable disagreement.
7. The court made no formal order about the calculation of any future restoration period under section 47 of the Solicitors Act 1974. It observed that the earlier period during which Mr Shaw had been struck off should count, while the intervening period of restoration and non-practice was a matter for the Tribunal.

• High Court (Administrative Court): The appeal against the Solicitors Disciplinary Tribunal’s sanction decision was dismissed. The court upheld the order striking Mr Shaw off the Roll.
• Earlier High Court decision: The substantive appeal had previously been partly allowed and the matter remitted to the Tribunal for sanction reconsideration, while the finding of dishonesty relevant to this appeal was upheld.