Solicitors Regulation Authority v Dar

An appellate court reviewing a specialist disciplinary tribunal must exercise restraint. It may intervene only for an error of principle, including an error of law or reasoning, or where the decision falls outside the range reasonably open to the tribunal. This restraint applies both to findings of fact and evaluative decisions on sanction.

For recklessness and lack of integrity, it is unnecessary to establish awareness of the precise form of fraud. It is sufficient that the solicitor appreciated a risk of illegality or illegitimacy requiring investigation and deliberately proceeded without making proper enquiries. A disciplinary tribunal may combine a fine, restrictions on practice and a suspended suspension. The restriction and suspended suspension should ordinarily be coterminous where the latter supports the former.

The Solicitors Regulation Authority and Mohammed Zahid Dar appealed and cross-appealed against a Solicitors Disciplinary Tribunal decision. The Tribunal had found that Mr Dar acted recklessly and without integrity when facilitating the transfer of a valuable community property to an estate agency for no consideration, after a proposed sale had collapsed in unusual circumstances.

Mr Dar challenged the findings of recklessness and lack of integrity. The SRA challenged the sanction, consisting of a fine, restrictions on practice and a two-year suspended suspension. The central issues were whether the Tribunal had applied the correct test, adequately explained its findings, and imposed a sanction that was legally permissible and not clearly inappropriate.

1. Appeal against findings. The Tribunal had not wrongly conflated unusual features of the transaction with an appreciation of risk. It was entitled first to determine whether the features were objectively unusual and whether Mr Dar appreciated that fact, and then to consider whether he appreciated that the transaction carried a risk of fraud or other illegality or illegitimacy.
2. The relevant recklessness inquiry required awareness of a risk by the individual and an unreasonable decision to take that risk. The Tribunal applied that test, rejected Mr Dar’s denial that he appreciated the risk, and was entitled to find that he deliberately closed his eyes to significant risks requiring further investigation. The findings were adequately reasoned.
3. The Tribunal was not required to refer expressly to the short character reference. It had recorded that it had considered the evidence, and any failure to address the reference specifically would have been immaterial.
4. Sanction. The Tribunal had not erred by treating the absence of actual harm, prior admissions and steps taken to reverse the transfer as mitigation. The applicable guidance permitted a holistic assessment and combinations of sanctions.
5. A fine could properly be combined with an indefinite restriction order and a suspended suspension supporting that restriction. However, the Tribunal had failed to align the two-year period of suspended suspension with the indefinite restriction. The court therefore dismissed Mr Dar’s appeal, formally allowed the SRA’s appeal, and varied the suspension from one year suspended for two years to one year suspended indefinitely. The remaining orders remained in force.

• High Court (Administrative Court): varied the Solicitors Disciplinary Tribunal’s sanction. Mr Dar’s appeal against the findings was dismissed. The SRA’s appeal was formally allowed only to correct the duration of the suspended suspension.
• Solicitors Disciplinary Tribunal: found recklessness and lack of integrity proved; imposed a £20,000 fine, a one-year suspension suspended for two years, indefinite practice restrictions and costs.