Prescott v Solicitors Regulation Authority

On an appeal from a specialist disciplinary tribunal, the court will interfere with findings only where they are plainly wrong or affected by serious procedural irregularity. The required specificity of a dishonesty allegation is fact-sensitive. Allegations are sufficient where the respondent can understand and answer the case, viewed in its factual context.

Dishonesty is assessed under the two-stage approach in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67: the fact-finder establishes the individual’s actual knowledge or belief and then applies ordinary standards of honesty. Motive is not essential, although it may be relevant. A solicitor remains subject to the duty not knowingly or recklessly to mislead the court when litigating personally.

The appellant appealed under section 49 of the Solicitors Act 1974 against a decision of the Solicitors Disciplinary Tribunal dated 14 November 2018. The tribunal had struck him off the roll and ordered him to pay costs.

The findings challenged were that he had dishonestly retained professional disbursement monies in the firm’s office account and had filed misleading defences in claims for unpaid professional fees. The appellant accepted the underlying regulatory breaches but argued that the dishonesty allegations had not been pleaded with sufficient particularity and that the tribunal’s findings were wrong.

The central issues were whether the allegations were procedurally fair and whether the tribunal was entitled to find dishonesty proved beyond reasonable doubt.

1. Appeal dismissed. The appellant had not shown that the tribunal’s findings were plainly wrong or affected by serious procedural irregularity.
2. The court adopted the approach in Williams v The Solicitors Regulation Authority [2017] EWHC 1478 (Admin). The specificity required in a dishonesty allegation depends on the facts and context. Allegations 1.6 and 1.7, read with the rule 5 statement, the evidence and the submissions, enabled the appellant to understand and answer the case. It was unnecessary to plead every individual transaction as a separate allegation.
3. The undisputed background was that the appellant routinely withheld monies received for professional disbursements and placed them in the office account, where they were used to support a financially struggling firm. That background materially informed the assessment of the specific examples.
4. Applying Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, the tribunal was entitled to find that the appellant knew the monies had been received for payment to counsel, transferred them to the office account and used them for his own purposes. Ordinary decent people would regard that conduct as dishonest. The alleged chaos in the accounts did not explain the conduct. Motive was not a necessary ingredient, but the firm’s financial difficulties were relevant.
5. The tribunal was also entitled to find dishonesty in the MSA and CPL matters. The appellant denied liability despite knowing that fees were owed and, in the CPL matter, having promised payment. A solicitor’s obligation not knowingly or recklessly to mislead the court applies when the solicitor is litigating personally, not only when acting as advocate or conducting litigation for a client.
6. The tribunal was entitled to rely on District Judge Jones’s order concerning the MSA defence. The appellant had offered no evidence that the order inaccurately described his pleading. The tribunal also properly treated the asserted distinction between denying liability and disputing the time for payment as unsustainable on the evidence.

The findings of dishonesty on allegations 1.6 and 1.7 were upheld. The appeal was dismissed.

• High Court (Administrative Court): appeal under section 49 of the Solicitors Act 1974 dismissed.
• Solicitors Disciplinary Tribunal: on 14 November 2018, found allegations 1.6 and 1.7 proved beyond reasonable doubt, including dishonesty except in relation to the H matter; struck the appellant off the roll and ordered payment of £32,000 costs.