Milner-Lunt v Solicitors Regulation Authority

An appeal from a disciplinary tribunal is a review of whether the tribunal’s decision was wrong, not a rehearing. Appropriate regard must be given to the tribunal’s assessment of evidence which it heard.

A solicitor-executor entitled by a will to charge professional fees may charge only reasonable remuneration. The entitlement does not permit the executor to fix fees unilaterally by reference to a percentage of the estate.

A tribunal may give reduced weight to written evidence which has not been tested by cross-examination. It is not generally obliged to adjourn of its own motion where the respondent has chosen not to give evidence and has produced no adequate medical evidence explaining why.

An incorrectly designated account does not become a client account merely because the solicitor treats it as one.

The appellant, a sole-practitioner solicitor and executor of an estate, appealed against findings by the Solicitors Disciplinary Tribunal following a hearing in August 2019. Seven allegations were proved, including excessive charging, improper transfers of client money, failures to comply with a court order and failures to co-operate with regulatory bodies. Dishonesty was found in relation to two allegations.

The tribunal struck the appellant off the roll and ordered him to pay £30,950.50 in costs. The appeal concerned the tribunal’s approach to the reasonableness of the executor’s fees, dishonesty, the weight given to untested written evidence, the designation of a bank account, compliance with the court and Legal Ombudsman processes, sanction and costs.

1. Appeal and standard of review. The appeal was by way of review rather than rehearing. The issue was whether the tribunal’s decision was wrong. The court therefore gave due regard to the tribunal’s opportunity to hear the evidence.
2. Fees. The will entitled the appellant to charge for professional work, but only reasonable remuneration. It did not permit him to charge whatever sum he chose, or to agree a fee with himself as executor and solicitor. A fixed percentage of the estate, unrelated to the work actually done, was plainly unreasonable. The tribunal was entitled to accept the costs draftsman’s evidence that reasonable fees were no more than £15,630.44, while the appellant had charged £132,666.
3. Dishonesty and evidence. The tribunal was entitled to find dishonesty in the circumstances of gross overcharging. It correctly addressed the burden and standard of proof and the meaning of dishonesty. The appellant’s failure to give oral evidence meant that his written evidence had not been tested by cross-examination. The weight to be given to that evidence was for the tribunal. The tribunal was not obliged to adjourn of its own motion, having accommodated the appellant’s fatigue and having received no medical evidence showing that he could not give evidence.
4. Client account and integrity. The account names did not comply with rule 13.3 of the SRA Accounts Rules 2011. “Mil-Lun” was not the name under which the appellant was recognised by the SRA, and “Milner-Lunt and Company Business Bonus Account” did not include the word “client”. The tribunal was entitled to find that the transfer of £125,000 to the account failed to protect client money and breached the relevant principles. Its approach to integrity was consistent with Solicitors Regulation Authority v Wingate [2018] 1 WLR 3969.
5. Other allegations, sanction and costs. Bankruptcy, ill health and personal difficulties were matters of mitigation and did not excuse non-compliance with the High Court order. The tribunal was also entitled to find failures concerning the Legal Ombudsman’s preliminary decisions. Striking the appellant off was appropriate in light of the dishonesty findings. The appeal against the costs order failed because the appellant had not shown that the assessment was wrong.
6. The appeal was dismissed.

• High Court (Administrative Court): The appeal against the Solicitors Disciplinary Tribunal’s judgment dated 3 September 2019, including the findings, striking-off sanction and costs order, was dismissed.