Newfield v The Law Society

LADY JUSTICE ARDEN: This is an application by Mr Newfield for permission to appeal against the order of the Divisional Court dated 14th July 2005 dismissing his appeal from the decision of the Solicitors' Disciplinary Tribunal dated 18th February 2003. There have been a number of adjournments of this application, and that seems to be why it has taken rather a long time to come on.

This is a second appeal. Accordingly, Mr Newfield must show not only that there is a real prospect of success on appeal, but also that there is an important point of principle or practice, or that for some other compelling reason there should be an appeal.

The Tribunal concluded that it was right to order that the appellant be struck off the roll of solicitors. Mr Newfield's grounds are set out in his notice of appeal. He contends that the Divisional Court failed properly to apply the decision of the court in Gilchrist v Law Society [2001] EWHC Admin 122; that the court failed to consider that material evidence had not been disclosed and/or had been concealed from the Tribunal by the Law Society; the Divisional Court failed to consider the evidence disclosed after the hearing in December 2002 and some of which was disclosed before it; that the Divisional Court had failed to consider the effect of the evidence clearly identified in 1998 and 1999 by the appellant, and which was not produced or disclosed by the Law Society; and the Divisional Court failed to apply the correct test to allegation (4), which relates to Mr Baxter, with which I must deal below. Mr Newfield also submits as a ground of appeal that the court failed to consider that in consequence of the failure by the Law Society to disclose or produce evidence to the Tribunal, that there had been a breach of the appellant's right to a fair trial.

In his grounds, Mr Newfield refers to the non -disclosure of information by the Law Society, but he has fairly accepted that that is a subsidiary point. The two real points which he submits justifies a second appeal in this case are, first, the Gilchrist point and, secondly, the test applied by the Tribunal in finding against him on the facts in relation to the Baxter matter.

I can explain the background very briefly. There were four allegations before the Tribunal. The first two concerned breaches of the Solicitors' Accounts Rules, the third concerned a failure to supervise an unadmitted clerk, and the fourth concerned a failure to ensure that the court was not misled. This was the affair concerning Mr Baxter. The Law Society alleged that in ancillary relief proceedings Mr Newfield had failed to correct an affidavit which he had prepared which omitted the fact that Mr Baxter, the client, had received a lump sum under the terms of pension arrangements with the fire brigade.

Mr Newfield admitted the first two allegations, and the Tribunal found that the third and fourth allegations were made out. As I have said, they directed that he be struck off the roll of solicitors.

There were earlier proceedings against Mr Newfield before the Tribunal. In those proceedings in 1999 the Tribunal had ordered an indefinite suspension. It had been impressed by evidence that Mr Newfield had been suffering from depression.

The matters which I have summarised, following the decision of the Tribunal, came before the Divisional Court (Laws LJ and David Steel J). They held that the Tribunal had been entitled to conclude that the third and fourth allegations were made, and that it was difficult in the circumstances to see how the Tribunal could not have come to any conclusion other than that it was appropriate to strike Mr Newfield off the roll of solicitors. They applied the well -known decision in Bolton v Law Society [1994] 1 WLR 512, that where a professional supervisory body such as the Solicitors' Disciplinary Tribunal reaches a conclusion on disciplinary matters, the court would not except in a clear case interfere with its findings.

Mr Newfield has filed a helpful skeleton argument. The first ground of appeal relates to the fact that Mr Newfield had already been the subject of disciplinary proceedings in June 1999. He submits that there was a considerable overlap in terms of time and conduct between the matters the Tribunal then considered and the matters before the Tribunal in 2002. He submits that in Gilchrist this court held that the proceedings were unfair where there was a considerable overlap in terms of time and conduct.

In this case the Divisional Court found that there was no significant overlap. For instance, the allegations relating to accounts which Mr Newfield kept could not have been before the earlier disciplinary hearing because some of them were based on a later inspection. Some of them, however, were based on an inspection carried out in 1997, but those did not culminate in a report until October 1999.

Mr Newfield also submits that there was overlap in relation to the matter of Mr Baxter. But that was a self -contained matter, which was not raised by the allegations considered by the Tribunal in 1999.

I can understand Mr Newfield's submission that if the Law Society had acted more quickly, the allegations concerning Mr Baxter could have been placed before the Tribunal in 1999. However in view of the conclusions reached in 2003, I am not necessarily convinced that that would have produced a response to Mr Newfield's advantage. In due course, the Tribunal took a very severe view of those matters. That is a matter which I shall have to consider separately. But I do not think there is any prospect of success concerning an overlap between the Baxter matter and the 1999 matters. Those were quite separate matters. Accordingly, I do not think that discloses a good ground for an appeal.

Second, Mr Newfield submits that there was a delay in the conduct of the proceedings so there could not be a fair trial. The Divisional Court also considered this and held there was no error of principle in the Tribunal's approach. Mr Newfield submits that the delay was self -evident and, as I have said, he submits that the Baxter allegation could have been dealt with in November 1999.

Mr Newfield also criticises the approach of the Divisional Court to the allegations of breaches of the Solicitors' Accounts Rules. In these paragraphs the Divisional Court set out the findings of the Tribunal about Mr Newfield's failure to supervise a Mr C, his accounts clerk, who deceived him. In his skeleton argument Mr Newfield submits that he was not dishonest, and that Mr C had an overbearing personality and was set on a determined course of dishonesty. Mr Newfield submits that the Law Society provided no assistance for small sole practitioners who were busy like himself. Mr Newfield says that if had not supervised Mr C, his clients would have suffered as opposed to the office account, which in fact was the subject of depredations.

These were all matters for the Tribunal and have not formed the basis of the submissions that they raise a point of principle. Likewise the question of whether there had been any excessive delay was a question for the Tribunal. It was also considered by the Divisional Court. As far as I can see, it does not raise an issue of principle which would justify a second appeal. Of their nature, allegations of professional impropriety do require time. Once the 1999 proceedings were determined, it seems to me that there would have been cause to allow a passage of time so that the Tribunal could be apprised as to Mr Newfield's recovery.

Mr Newfield says that the Tribunal failed to take account of the fact that he had been a very busy and very successful practitioner. I understand that point, but of course it is the responsibility of the Tribunal to consider allegations of impropriety, whether or not the practitioner is lucky enough to have a large practice.

So the emphasis in Mr Newfield's remaining submissions was on the Baxter case. The Divisional Court set out the facts appearing in the Tribunal's decision and their findings. It appears that Mr Newfield was put on notice by Mrs Baxter that Mr Baxter would have received the lump sum on his discharge from the fire brigade on health grounds. The Divisional Court noted that Mr Newfield's case was that Mr Baxter had been less than frank. However, the court found that Mr Baxter had responded with conspicuous frankness in a handwritten fax to Mr Newfield, which they refer to in paragraph 3 of the judgment of David Steel J. Mr Newfield replied to Mr Baxter that he had deliberately not included any reference to buying the house which had been bought with the lump sum in the affidavit of means, as he was dealing with current income and expenditure and that he proposed to leave Mrs Baxter's solicitors to find out about the lump sum. Mr Newfield then allowed his client to file an affidavit stating his capital resources without referring to the house. He also permitted his client to inform Mrs Baxter's solicitors that he had no interest in the house. In due course Mr Baxter was cross -examined before the District Judge in the Medway County Court, and he disclosed that he had not revealed his interest in the house to his wife on legal advice. The Divisional Court noted that the Tribunal had not accepted Mr Newfield's evidence, and it had found that Mr Newfield must have known of the property. Moreover, it was found that Mr Newfield had ample opportunity to set the record straight. It found that Mr Newfield deliberately sought to keep the fact that his client had received the lump sum payment and invested part of it property from his client's former wife and her solicitors. The Divisional Court stated that it would be slow to reverse such a finding save in a clear case, and that this was not such a case.

Mr Newfield has submitted in his skeleton argument and today in this court that he did not deceive the court in the Baxter case. Mr Newfield's explanation from the letter concerning the advice to Mr Baxter was that he thought that the lump sum was yet to be received and that it only fell to be disclosed once it had been received, and that he was not intending to mislead the court. However, this was a matter which the Tribunal considered.

Mr Newfield also points out that Mr Baxter deceived him, and that the court was not misled as details of Mr Baxter's financial position were placed before it in the summer of 1997. He says therefore the position was rectified. The Law Society, he also submits, failed to disclose evidence which showed that he had not misled the court, but I have explained that this is not central to the argument at this stage. What Mr Newfield says is that the evidence does not show that the finding that he deceived the court was one that could be reached beyond all possible doubt. Mr Newfield submits that if Mr Baxter had told him about the lump sum he had received, there would have been a reference to it in his notes of attendance on Mr Baxter. He, Mr Newfield, failed to spot that he had bought a house. It had not occurred to him that his client was telling him lies. Mr Newfield says that he advised Mr Baxter that once the sum was used to buy the house, it would be treated as property for the purposes of dealing with the assets. He had not tried to deceive the other side.

Mr Newfield refers to paragraph 40 of the Divisional Court judgment. He repeats that he has not deliberately sought to conceal facts. He did not have knowledge of the details of the fire brigade's pension schemes. He submits that the conclusion of the Divisional Court at paragraph 41 is erroneous in law. In that paragraph the Divisional Court states that it would have readily reached the same conclusion as the Tribunal in relation to the Baxter matter, as set out in paragraphs 145 to 157 of the Tribunal decision and quoted in paragraph 40 of the judgment of David Steel J. Mr Newfield submits that without the finding about Mr Baxter, the Tribunal would have been unlikely to add to the already draconian penalty imposed in 1999.

In my judgment, these issues are issues of fact for the Tribunal. Mr Newfield submits that the Tribunal could not have been satisfied beyond a reasonable doubt. This was a very experienced tribunal. The Tribunal had before it a letter which Mr Newfield himself wrote, which refers to deliberate non -disclosure. For these reasons and other reasons, it seems to me that Mr Newfield has failed to show that the Divisional Court erred in law in coming to the conclusion that they did.

The Tribunal concluded that Mr Newfield could not remain a member of the profession if he had fallen below the high standards of probity, integrity and trustworthiness required of a solicitor. The Divisional Court held that the Tribunal was entitled to take the view that Accounts Rules matters were a serious abstention from his duty as a solicitor. There had also been a serious failure to supervise his clerk. Moreover, the failure to disclose the lump sum in the ancillary relief proceedings was also very serious. The Divisional Court referred to Bolton v Law Society, to which I have already referred.

In my judgment, the Divisional Court proceeded on the well -established principle illustrated by that case and there is no prospect of success on appeal. In addition, there is no important point of principle or practice or other compelling reason disclosed by this case which would meet the requirements for a second appeal. Accordingly, I must dismiss the application.