Malins v Solicitors Regulation Authority

Dishonesty and lack of integrity are synonymous for the purposes of solicitor disciplinary proceedings. Both must be proved to the same standard, including the objective and subjective elements of dishonesty. A regulator cannot avoid proving subjective dishonesty by charging the same conduct as lack of integrity.

An allegation of dishonesty must be pleaded with complete clarity. A tribunal cannot make findings of dishonesty on allegations framed only as lack of integrity. Where the pleading and the tribunal’s reasoning are materially confused in that way, the conviction cannot stand.

The applicant, a solicitor, appealed against the Solicitors Disciplinary Tribunal’s decision finding him guilty of dishonesty and acting without integrity and striking him off the roll.

The allegations arose from his creation and later deployment of backdated Form N251 and covering-letter documents concerning an after-the-event insurance premium. The charges alleged lack of integrity in creating the documents, but dishonesty only in relying on them. The central issues were whether honesty and integrity were legally distinct, whether the allegations gave adequate notice of dishonesty, and whether the tribunal had properly considered the evidence.

1. Appeal allowed. The tribunal’s findings could not stand because the case had been framed as dishonesty in relation to deployment of the documents, but as lack of integrity, rather than dishonesty, in relation to their creation.
2. Honesty and integrity are synonyms, and dishonesty and integrity are antonyms. Dishonesty and lack of integrity are therefore the same concept and must be proved to the same standard. The objective and subjective requirements associated with dishonesty in R v Ghosh [1982] QB 1053 applied to these disciplinary proceedings. The regulator could not avoid the subjective requirement by charging the same facts as lack of integrity.
3. An allegation of dishonesty must be stated with complete clarity. The tribunal’s findings concerning the creation of the documents involved findings of dishonesty, although dishonesty had been expressly excluded from those charges. Those findings were therefore made in breach of the applicant’s basic right to know the case he had to meet.
4. The tribunal had also relied on its findings concerning the creation of the documents when deciding that the applicant had acted dishonestly in deploying them. That reasoning was irreparably contaminated by the defective framing of the charges. The tribunal’s treatment of the applicant’s character and medical evidence was also seriously inadequate.
5. A retrial on the first two charges was inappropriate because it was too late to amend them to include dishonesty. The applicant was to be retried on the third charge alone, reframed to allege dishonest reliance on, or acquiescence in reliance on, the backdated documents, contrary to Principles 1, 2 and/or 6 of the SRA Principles 2011.

• Solicitors Disciplinary Tribunal: On 21 April 2016, found the applicant guilty of dishonesty and acting without integrity and struck him off the roll.
• High Court (Administrative Court): Allowed the appeal against conviction. The first two charges were not to be retried; the third charge was remitted for retrial in reframed form.