Shaw v Solicitors Regulation Authority

This an appeal by the Appellant, Mr Andrew Shaw, (“Mr Shaw”), pursuant to s. 49 of the Solicitors Act 1974 against the decision of a constitution (“the Tribunal”) of the Solicitors’ Disciplinary Tribunal (“the SDT”) on 2^nd September 2016 to strike him off the Roll of Solicitors (“the Roll”). The Tribunal gave its full reasons in a written judgment (running to 68 pages and 164 paragraphs) dated 6^th October 2016 (“the sanctions judgment”). Mr Shaw contends that the sanction of striking-off should be overturned and substituted by a limited period of suspension running from 13^th February 2013.

Mr Shaw had been admitted as a solicitor in 1981 and had a previously unblemished professional record. He is now 61 years of age. He was struck off in relation to a finding of dishonesty (“the finding of dishonesty”) in relation to the contents of an affidavit (“the Affidavit”) sworn by him and filed on behalf of his client, the Complete Retreats Liquidating Trust (“the Liquidating Trust”), in proceedings in the Chancery Division brought by the Liquidating Trust against a Mr Geoffrey Logue (“Mr Logue”) (Case No. HC10C01447) (“the Chancery proceedings”). At the material time Mr Shaw was a partner in the commercial litigation department of Stewarts Law LLP (“Stewarts”), a position he had held since 2009.

The matter has a chequered and protracted procedural history. The disciplinary proceedings were commenced on 25^th May 2012 against Mr Shaw (as first respondent) and a junior associate at Stewarts, a Mr Turnbull (as second respondent) (together “the Respondents”), by Mr Logue acting as a private prosecutor. The original hearing took place between 4^th and 11^th February 2013. The (first) Tribunal announced its decision to strike Mr Shaw off on 14^th February 2013. It made multiple findings of dishonesty against Mr Shaw, including the finding of dishonesty. Its written reasons followed on 29^th April 2013. In relation to sanction it said this (at paragraph 169):

“The Tribunal had regard to its own Guidance Note on Sanctions when deciding the appropriate penalty in this matter. The First Respondent had engaged in a dishonest course of conduct which had continued over a period of time. There had been a number of serious failings on his part in bringing material and relevant considerations before the Court and he had deliberately misled the court when his duty, as an officer of the Court, was to give full and frank disclosure. There were no exceptional circumstances, such as those identified in Sharma, which would justify a sanction other than a striking off. In order to protect the public and maintain the reputation of the profession, the only appropriate sanction in the case was that the First Respondent should be struck off the Roll and the Tribunal so ordered.”

On 1^st March 2013 Mr Shaw appealed against the substantive findings against him to the High Court, which appeal was heard before Jay J in December 2013 with judgment being handed down on 13^th January 2014 ([2014] EWHC 5 (Admin) (“the Jay judgment”).

Jay J concluded that the (first) Tribunal’s conclusions were not unsustainable or plainly wrong. However, they were inadequately reasoned save in respect of the finding of dishonesty (and a finding of reckless disregard on the part of Mr Shaw in relation to the misuse of confidential information). To this extent, the appeal was allowed. The matter was remitted to the SDT for sanction purposes, on the basis that Jay J concluded (at [279]) that he could not “be satisfied to the requisite standard of confidence that striking off [was] inevitable: a reasonable SDT could appropriately impose a lesser sanction, taking into account relevant guidance and authority”. He stated in terms (at [281]) that he was not to be taken as expressing any view on Mr Shaw’s prospects of success in avoiding striking off. In the meantime, Mr Shaw was restored to the Roll, although by this stage his partnership at Stewarts had terminated and his practising certificate expired.

On 31^st January 2014 Mr Shaw lodged an appeal in relation to the upholding of the finding of dishonesty and Mr Logue lodged an appeal against the decision to restore Mr Shaw to the Roll. Both applications for permission were refused on the papers and were renewed for oral hearing. On 10^th July 2014 Maurice Kay LJ indicated that he was provisionally minded to list the applications for permission, with appeals to follow immediately if permissions were granted.

The next day, on 11^th July 2014, Mr Shaw entered a settlement agreement with Mr Logue as a result of which he agreed not to pursue his complaint against Mr Shaw further. Mr Shaw’s solicitors informed the Solicitors Regulation Authority (“the SRA”) of this development on 18^th July 2014, as did Mr Logue’s solicitors also (on or about 16^th July 2014).

On 10^th December 2014 the SRA indicated that it intended to apply to be substituted as applicant and to pursue the dishonesty finding. It made such an application on 20^th March 2015, to which Mr Shaw did not object. A (second) Tribunal made the substitution on 29^th April 2015. By this stage Mr Shaw had submitted a witness statement in mitigation (“the mitigation statement”). The SRA objected to its admissibility. At a case management hearing on 23^rd February 2016 a (third) Tribunal (that included the chairman and one panel member of the (ultimate) Tribunal) ruled that the mitigation statement was admissible, since “it might put the dishonesty of the Respondents in context”. The sanctions hearing was listed for and took place on 9^th and 10^th August 2016 before the Tribunal. The decision to strike off was announced on 2^nd September 2016, followed by written judgment on 6^th October 2016. Again, and for a second time, it was found that there were no exceptional circumstances such that Mr Shaw (or Mr Turnbull) should not be struck off the Roll for dishonesty.

Mr Turnbull has not appealed against the order striking him off the Roll.

A very helpful exposé of the essential background can be found in the judgment of Roth J referred to below ([2010] EWHC 1864 (Ch)) (“the Roth judgment”). Additionally, a detailed chronology is appended to the Jay judgment.

For present purposes, the following summary will suffice. Mr Logue was employed by an American group of companies known as “the Retreats Group” between 2002 and 2005. In January 2005 he left the Retreats Group, with a payment of US$3.65million. Proceedings in Missouri and New York later that year resulted in a settlement agreement between Mr Logue and the Retreats Group in September 2005 whereby the Retreats Group gave up rights to certain properties and made a further payment to Mr Logue.

In July 2006 the Retreats Group filed for bankruptcy in the United States (under chapter 11 of the US Bankruptcy Code) and the Liquidating Trust was set up to liquidate and ultimately distribute its assets.

In July 2008 the Liquidating Trust commenced Connecticut proceedings against Mr Logue to recover the payments and properties transferred in January and September 2005. Attempts were made to serve Mr Logue in New York, but Mr Logue stated that they did not come to his attention at the time. He had moved out of his New York apartment (“the New York apartment”) in April 2009. In July 2009 the equivalent of a default judgment on liability in English law was entered against him. A quantification hearing was set for 5^th May 2010 by which time the Liquidating Trust was required to file and serve evidence on quantum (by 29^th April 2010).

Mr Shaw and Mr Turnbull at Stewarts were retained to advise the Liquidating Trust first on obtaining a post-judgment freezing order against Mr Logue’s assets in England, and then on obtaining a pre-judgment freezing order (after the Liquidating Trust had been ordered to serve its quantum evidence on Mr Logue by 29^th April 2010).

In April 2010 steps were taken in both the United States and England to locate and serve Mr Logue. Documents were sent by post to the New York apartment (where, as set out above, in fact Mr Logue no longer lived) and attempts were made to effect personal service there as well. On 12^th April 2010 the process server, Mr Sy Kahn (“Mr Kahn”), sent an email to the Liquidating Trust’s United States attorney, Mr Jeffrey Wiesner (“Mr Wiesner”) as follows:

“Fri eve around 7pm I spoke with the doorman who seemed sincere – no games and said what’s that name again and was not familiar with him. He asked for apt. no, which I gave him but after looking at his tenant list said not known. I’ve checked the tel. Directory and called a number for him (212 744-2053) but it is no longer in service.”

(“the Kahn email”). The Kahn email was forwarded to Mr Shaw and Mr Turnbull that same day.

A private investigator in England then located Mr Logue and made contact with him by telephone, but was unable to effect personal service.

In late April 2010 the Liquidating Trust, acting by Stewarts, made the application for a freezing order. It was heard on a without notice basis by Morgan J on 29^th April 2010 – as indicated above, the day for service on Mr Logue of the Liquidating Trust’s quantum evidence. Affidavits from Mr Shaw, Mr Wiesner and another US attorney were relied upon. In Mr Shaw’s affidavit, reliance was placed on Mr Logue’s alleged evasion of service as showing a risk of dissipation.

There was no reference in any of the evidence served on behalf of the Liquidating Trust to the Kahn email. As Jay J identified (at [17] of the Jay judgment) this information was material:

“….the evidence adduced before Morgan J suggested that Mr Logue was evading service of the bankruptcy proceedings in New York and for that reason, amongst other things, there was a risk of dissipation of assets. If in fact Mr Logue was no longer living in New York but was dividing his time between London and Italy, as the non-disclosed material appeared to show, then an important element of the Liquidating Trust’s case on the risk of dissipation was removed from the picture….”

Morgan J made the freezing order sought (“the freezing order”), which order was served on Mr Logue by several different methods, including on his English solicitors.

On 6^th May 2010 Mr Logue’s solicitors provided Stewarts with details of Mr Logue’s assets in the United Kingdom, as required. On 10^th May 2010 Mr Turnbull sent out an email attaching the information received, but not to Mr Shaw.

On 29^th May 2010 an application was by Mr Logue for fortification of the cross-undertaking as to damages and to set aside the freezing order. The hearing for fortification took place before Norris J on 19^th May 2010. The application to set aside the freezing order was heard by Roth J between 6^th and 8^th July 2010.

Roth J was critical (both during the hearing and in his judgment) of the Liquidating Trust’s conduct, including its failure to disclose details of the attempted service in New York. Mr Shaw swore the Affidavit on 8^th July 2010 after the hearing had concluded but before Roth J had ruled on its outcome.

On 23^rd July 2010 Roth J ordered that the freezing order be discharged. In the course of doing so, he was critical of the Liquidating Trust’s failure to give full and frank disclosure at the without notice hearing. At [31] and [32] of the Roth judgment he stated:

“31.

By his 7 ^th affidavit, Mr Shaw has now apologised to the court for not making it aware of the contents of the US process server’s affidavit at the ‘without notice’ hearing. I was told that the Liquidating Trust’s English solicitors were themselves unaware of those facts. I accept that, but that of course provides no excuse to the Liquidating Trust itself, which made the application, nor indeed to Mr Wiesner. In Mr Shaw’s 8 ^th affidavit, he adds this:

“I am told by Mr Wiesner that the reason why he did not mention this in his First Affidavit is because he thought it was sufficient that the Court had been told that it was believed that Mr Logue was by then in London.”

32.

That confirms, as I would expect, that the Liquidating Trust’s US attorneys were aware of the way the case was being presented to the English court, and in his affidavit Mr Wiesner stated expressly that he was made aware of the strict obligation of full and frank disclosure. I regret to say that his reason for not furnishing the information about what occurred at the attempted service on 9 April 2010, which strongly indicated that Mr Logue has left New York, betrays a serious misunderstanding of what is required by full and fair disclosure in English proceedings when it is being alleged that the defendant is attempting to evade service.”

It is clear, as is expanded on below, that Roth J had been misled in relation to Mr Shaw’s awareness of the contents of the facts relating to the attempts to serve Mr Logue in New York.

The finding of dishonesty arises out of paragraph 15 of the Affidavit which read as follows:

“I understand from Mr Wiesner that despite not receiving the fax on 17 April 2010, he was told by Mr Kahn in mid-April 2010 of the facts set out in Mr Kahn’s Affidavit dated 30 April 2010. I am told by Mr Wiesner that the reason why he did not mention this in his First Affidavit is because he thought it was sufficient that the Court had been told that it was believed that Mr Logue was by then in London.”

The build-up to this paragraph needs to be set out, although it is important to remember at all times that Mr Shaw falls only to be sanctioned for his dishonesty in the Affidavit.

Mr Logue obtained through disclosure in the United States an affidavit of service prepared by Mr Kahn setting out the details of his attempts to effect personal service on Mr Logue at the New York apartment. It appeared (from a fax footer) to have been prepared on or before 17^th April 2010 but was dated in manuscript 30^th April 2010. Mr Logue raised the non-disclosure of this affidavit as a ground for seeking the discharge for the freezing order in the following terms:

“On the other hand, it does appear that the Liquidating Trust deliberately suppressed the failed attempt at personal service on 9 April 2010. In this regard, what is of particular concern to me is that Mr Kahn appears to have faxed the affidavit of service to the Liquidating Trust on 17 April 2010, but post-dated it to 30 April 2010….30 April 2010 was the day after the Liquidating Trust was required to serve all supporting documents on me in the US proceedings and, of course, the day after the ex parte hearing. I cannot think of any innocent explanation for post-dating the affidavit of service in this way. Even if there was, it is inconceivable that Mr Kahn would not have made a verbal report to the Liquidating Trust as to his failed attempt to serve me during the preceding 3 weeks….In any case, it appears that the Judge at the ex parte hearing was given a version of events as to whether I still lived in New York that the Liquidating Trust knew to be untrue.”

In a (sixth) affidavit of 2^nd July 2010 Mr Shaw responded to this allegation as follows:

“Whilst I have asked Mr Wiesner to speak with Mr Kahn and to investigate the circumstances surrounding the alleged backdating, it is unclear what purpose would have been served in doing so.”

On 5^th July 2010 Mr Wiesner emailed Mr Turnbull with a further update on the backdating issues:

“I spoke to Mr Kahn. I think he is a bit elderly (though I am not sure) and had no explanation for the backdating of the affidavit. He thought that it might have something to do with the date of the bill he sent, but that did not make any sense. I told him to think about it and if he figures it out to get back to me.”

In a (seventh) affidavit of 6^th July 2010 Mr Shaw stated:

“I understand from Mr Wiesner that he has now spoken to Mr Kahn and Mr Kahn is currently unable to provide an explanation for the apparent post-dating of his affidavit other than it might have had something to do with his invoice, which according to Mr Wiesner does not make much sense. My firm was not aware of Mr Kahn’s affidavit or its contents but it is accepted that the Liquidating Trust should have had access to Mr Kahn’s affidavit prior to the ex-parte hearing. I apologise on behalf of the Liquidating Trust for the fact that the Court was not made aware of the contents of Mr Kahn’s affidavit.” (emphasis added)

This was of course inaccurate, since Mr Shaw’s firm had also been aware of the contents of Mr Kahn’s affidavit. I repeat that Mr Shaw did not fall to be sanctioned for the contents of this affidavit, in respect of which no findings were upheld, but this was the error that then needed to be, but was not, corrected in the Affidavit.

On the same day, but after this affidavit had been served, Mr Wiesner emailed Mr Shaw and Mr Turnbull as follows:

“Mystery solved on the fax dating issues. I asked Sy Kahn to send me a “Test Fax”, and it confirmed that his machine produces a 13 days behind-the-fax he sent today is dated June 23 (see attached). The fax date on the affidavit of service is April 17, which is 13 days before April 30.”

Mr Turnbull (but not Mr Shaw) and Mr Wiesner then exchanged emails later that evening (on 6^th July 2010):

Mr Shaw’s unchallenged evidence was that he did not discuss these emails with Mr Turnbull on the evening of 6^th July 2010.

In the early hours of 7^th July 2010 Mr Wiesner emailed Mr Turnbull attaching an affidavit prepared and signed by him which included the following :

“Notwithstanding, on or about April 12, 2010, Mr Kahn informed me of the facts that are set out in his affidavit of service. I did not inform the court regarding this information in my first affidavit because by the time of my first affidavit it had become apparent from investigations carried out by Mr Knuckey that Mr Logue was in London rather than New York and this had communicated to the Court.”

Mr Wiesner’s affidavit was not in fact served, since leading counsel for the Liquidating Trust considered it preferable for all outstanding matters to be addressed in a single affidavit. So Mr Shaw came to swear his eighth affidavit, the Affidavit, including paragraph 15, as set out above.

At the hearing before the Tribunal Mr Shaw stated that he had written paragraph 15 based on what he had been told by Mr Turnbull “second hand”. In his witness statement in mitigation, however, he stated that prior to signing the affidavit he was either shown Mr Wiesner’s affidavit of 7^th July 2010 or told of its existence by Mr Turnbull.

The Tribunal found that Mr Shaw provided a misleading explanation regarding his knowledge of the Kahn email as follows (at para. 156.79):

“The Tribunal agreed that the Respondents had provided misleading information to the Court regarding the Applicant’s New York apartment after the Without Notice hearing… [Mr Shaw] had provided a misleading explanation to the Court regarding his knowledge of the Kahn e-mail in his seventh and eighth affidavits. [Mr Turnbull] had assisted in the drafting of the affidavits and the Respondents had discussed the fact that the Kahn e-mail had been “overlooked”. [Mr Turnbull] would therefore have known that the explanation given by [Mr Shaw] in his eighth affidavit was not true yet he had allowed it to be put before the Court. Accordingly, the Tribunal found that the Respondents’ conduct as set out in allegation 6.3 had been dishonest….”

In short, Mr Shaw had dishonestly failed to state that he too had received and was aware of the Kahn email in April 2010.

In the Jay J judgment (at [167]) Jay J said this of paragraph 15 of the Affidavit:

“This was untrue. The first sentence contains a mealy-mouthed explanation, and on the face of things it is an almost irresistible inference that this was deliberate. Mr Wiesner was not given this information orally by Mr Kahn on an uncertain date in mid-April 2010; he received an email on 12 ^th April which was forwarded to Stewarts Law twice and the formed the subject-matter of a conference call. Mr Shaw was not suggesting that Mr Wiesner had overlooked what he had been informed by Mr Kahn; rather he was suggesting that Mr Wiesner took a deliberate decision not to appraise the Court of this information because he thought it would be sufficient that the Court had been told that Mr Logue was in London. But the email timed at 21:50 on 6 ^th July, is inconsistent with Mr Wiesner possessing that belief, and we know from bullet point 3 in Mr Turnbull’s email timed at 22:22 that the source of this retrospective explanation was Stewarts Law and not Mr Wiesner at all. It was Mr Shaw who, at best, had overlooked the Kahn email and it was incumbent on him to correct what he had had said in his first affidavit about Mr Logue evading service in New York (with the corollary inference that Mr Logue might dissipate his assets) and in his seventh affidavit about his firm being unaware of the Kahn affidavit and its contents. At this stage Mr Shaw could not honestly take the point that there was or could be a distinction between the Kahn affidavit and its contents on the one hand, and the Kahn email, which exactly replicated the contents of the affidavit, on the other. Indeed, he was not taking that point in relation to Mr Wiesner’s state of mind. Even assuming that Mr Shaw did not attend the Roth hearing, he must have understood that the effect of his seventh affidavit was that all the blame would be heaped on Mr Wiesner rather than his firm, which is exactly what happened when Judgment was handed down…To this day, no letter of apology has been sent by Stewarts Law to Mr Justice Roth.”

I note for the sake of completeness that the Tribunal was invited to and did ignore Jay J’s findings (repeated in [256] of the Jay judgment) as to Mr Shaw being motivated in his dishonesty by seeking to shift blame on to Mr Wiesner in its deliberations on sanction (see paragraph 148 of the sanctions judgment). This was an inference that the parties accepted was not justified when all relevant evidence was available. Rather, Mr Shaw’s motive was to spare embarrassment for him and his firm.

Jay J described the allegation of dishonesty relating to paragraph 15 of the Affidavit as “overwhelming” (at [218] and [260]). In his words, “the issue was a straightforward one”.

In the mitigation statement, Mr Shaw set out the effects of the prosecution on him, both professionally and personally, and on his family. He has been in cognitive therapy to stem the onset of depression. He has lost his partnership and effectively been out of work, with no steady or substantial income. He has trained as a mediator and worked as such. He has worked as a consultant in an in-house corporate governance capacity. He offered an apology and expressed regret.

The sanctions judgment is a huge document. It identified the findings upheld by Jay J and the allegations to which they related. It confirmed the documents that it had considered. It addressed preliminary and other issues and proceeded then to set out the factual background. It set out the oral character evidence of Andrew Sutcliffe QC and Giles Richardson for Mr Shaw.

Having then set out in detail the submissions for the parties and the evidence in mitigation, the Tribunal addressed its findings on sanction at paragraphs 129 to 152 of the sanctions judgment, running to some 9 pages of single-spaced analysis.

At the outset it confirmed that it had regard to its Guidance Note on Sanctions (which would at the time have been the (4^th edition) December 2015 Guidance Note (“the Guidance Note”)), together with the submissions for the SRA and the Respondents, the oral evidence of the Respondents, and the testimonials for the Respondents, including the oral evidence given for Mr Shaw. It found that the (less serious) misconduct relating to the misuse of confidential information was not a merely technical breach. However, had it been the only allegation against Mr Shaw, the Tribunal would have imposed a fine on him because “of the recklessness, his seniority and his greater knowledge base”, but it would have been a modest one.

At paragraphs 135 and 136 the Tribunal stated that it had at the forefront of its mind the fact that its role was “strictly limited to the imposition of sanction” and that it was looking at “only two Upheld Findings”.

It then referred to paragraph 43 of the Guidance Note and dismissed the SRA’s submission, by reference to Brett v SRA [2014] EWHC 2974 (Admin) (“Brett”), that it was bound to strike Mr Shaw off the Roll. It held that it therefore had to “consider whether there were any exceptional circumstances that would make it inappropriate to strike off either or both Respondents”.

At paragraph 138 the Tribunal stated:

“The Tribunal had carefully considered the representations made about the relevance of the case of Brett to the seriousness of the misconduct and particularly the submissions that the misconduct in Brett was more serious so suspension in their case could also be justified. The Tribunal agreed that the dishonesty related to a fairly narrow point in a very large and complex case but the Tribunal also considered that Brett made it clear that however nuanced the dishonesty was, if it involved misleading the court, it was of particular gravity for the reasons set out by the Lord Chief Justice because the solicitor was an officer of the court. The Tribunal also found however that there was a most significant difference between the two cases; there had been no allegation of dishonesty in the case of Brett but in this matter dishonesty had been alleged and found proved and as Mr Justice Jay had made clear it was not open to the Tribunal to go behind that finding. The Upheld Finding precluded the misleading of the court having been interpreted as inadvertent.”

At paragraph 139 the Tribunal referred to the particular circumstances of the matter including that the High Court litigation had been “hard fought and conducted in a very aggressive manner”. Reference was made to the private and aggressive nature of the disciplinary prosecution, and the pressure under which Mr Shaw had been whilst giving evidence. The Tribunal stated that it considered:

“…that while the circumstances of both the litigation and the disciplinary proceedings to which it gave rise might have aggravated the circumstances, they could not justify dishonesty. Its consideration of exceptional circumstances must be applied to the act of dishonesty rather than its context. The Tribunal accepted that dishonesty could vary in its seriousness.”

The Tribunal went on (at paragraphs 140 to 142) to consider the facts surrounding the dishonesty. It stated that Mr Shaw’s dishonesty lay in his failure to notify the court of the deficit in the information that led to the Liquidating Trust obtaining the order that it did. It stated that Mr Shaw would have been the subject of the same criticism of Roth J as was Mr Wiesner. The Tribunal noted that not only did the Affidavit fail to correct the mistaken impression in Mr Shaw’s seventh affidavit, but paragraph 15 did not replicate exactly paragraph 6 of Mr Wiesner’s affidavit, in that it omitted the words “rather than New York”. That assisted Mr Shaw in one sense, since it dispelled the suggestion that he had been motivated by a desire to blame Mr Wiesner. On the other hand, it harmed him, since the missing words would have made it expressly clear to Roth J that not only was Mr Logue thought to be in London but also that quite specifically he was not in New York at the time of the without notice hearing on 29^th April 2010.

At paragraph 143 the Tribunal referred to the submissions on timing. It stated that it considered that the dishonesty lasted longer than 32 minutes and spanned a period of two to three days beginning on the evening of 6th July 2010. The Affidavit was not filed until after court on 8^th July 2010. Accordingly, the Tribunal determined that the Respondents’ dishonesty should be considered as limited in timescale to those two or three days.

The Tribunal next rejected the submission for Mr Shaw that the dishonesty related to the procedural conduct and not to any underlying matters of substance. It considered that the dishonesty was crucial in respect of not correcting with Roth J, the information which had been used in the without notice proceedings. Even if the matter had been procedural it was of no less significance. Obtaining the without notice freezing order turned on procedural matters – the facts around service. The whole focus of the hearing was that Mr Logue was alleged to be evading service and might dissipate his assets. The Tribunal stated that it considered it to be a neutral point that in the event the contents of the Affidavit improved Mr Logue’s position.

The Tribunal rejected the submission for Mr Shaw that acts of omission were generally considered to be less serious than acts of commission. The Tribunal then (at paragraph 146) recorded the submission that at most it could be said that Mr Shaw was seeking to diminish in a relatively small and inconsequential way professional embarrassment for himself personally and/or Stewarts. The Tribunal stated that it considered that if Roth J had known the truth it could have had costs consequences for Mr Shaw and Mr Turnbull and for Stewarts and the Liquidating Trust. It could also have affected the judicial criticism of Roth J.

At paragraph 147 the Tribunal rejected the submission that the primary purpose of paragraph 15 of the Affidavit was to make disclosure to the court of what the Liquidating Trust knew and Mr Shaw and Mr Turnbull should have gone further and explained that he had also received the Kahn email. It stated:

“…The Tribunal considered that the misconduct was more serious than that; by their dishonest conduct the Respondents did not put the record straight and thereby failed to discharge the proper duties of an advocate to the court.”

At paragraph 148 the Tribunal noted that, whilst placing blame on Mr Wiesner was not the intention, “as a matter of fact the court was plainly misled as a result of their dishonesty because they did not say that they too had seen the K email and had overlooked it.”

At paragraph 149 the Tribunal considered the effect on the reputation of the profession which had been damaged in the eyes of the judiciary and the public.

The Tribunal accepted that Mr Shaw did not have a predisposition to dishonesty but noted that regrettably there were plenty of examples before the SDT of otherwise decent people committing dishonest acts. It referred to Mr Shaw’s background of being a well respected solicitor operating at a senior level. Whilst Mr Shaw had already suffered considerably and was not likely to repeat his misconduct, the Tribunal bore in mind the observations in Bolton v Law Society [1994] 1 WLR 512 (“Bolton”) (at 519B-E) set out below. It referred to the guidance in Bolton as to the possible relevance of the history of the case, and Mr Shaw’s restoration to the Roll by Jay J. However, the issue here was strike off, not suspension, and the temporary restoration was only an interruption to what would otherwise have been a continuous period of strike off.

At paragraph 151 the Tribunal concluded:

“After very careful consideration of what might constitute exceptional circumstances and having fully allowed for the highly pressurised circumstances of the complex litigation during which the dishonest conduct occurred and the mitigation brought to its attention, the Tribunal could not find that the conduct of either Respondent fell into the small residual category of cases where strike off was not a reasonable and proportionate sanction for dishonesty. The appropriate sanction for the Tribunal to be applied in relation to both Respondents was accordingly striking of the Roll of Solicitors.”

The Guidance Note identifies (at paragraph 6) the following three stages in the sanction process (as stated by Popplewell J in Fuglers and others v SRA [2014] EWHC 179):

At paragraph 43 the Guidance Note states:

“The most serious misconduct involves dishonesty, whether or not leading to criminal proceedings and criminal penalties. A finding that an allegation of dishonesty has been proved will almost invariably lead to striking off, save in exceptional circumstances.”

In Bolton Sir Thomas Bingham MR identified the twin functions of punishment and deterrence, and also and most fundamentally, the need to maintain the reputation of the solicitors’ profession (see 518B-H):

“Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may of course take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings or penalties. In such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced by the solicitor, ordered that he be struck off the Roll of Solicitors….

... a penalty may be visited on a solicitor ... in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way ….

… to be sure that the offender does not have the opportunity to repeat the offence; and

… the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth … a member of the public … is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.”

The courts have studiously and rightly avoided seeking to define what does and does not amount to “exceptional circumstances”. It will be a fact-specific exercise in each case (as confirmed by Dove J in SRAy v Imran [2015] EWHC 2572 (Admin) (“Imran”) (at [20]). In Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin) (“Sharma”) Coulson J stated (at [13]):

“It seems to me, therefore, that looking at the authorities in the round, that the following impartial points of principle can be identified: (a) Save in exceptional circumstances, a finding of dishonesty will lead to the solicitor being struck off the roll, see Bolton and [ Salsbury ]. That is the normal and necessary penalty in cases of dishonesty, see Bultitude . (b) There will be a small residual category where striking off will be [a] disproportionate sentence in all the circumstances, see [ Salsbury ]. (c) in deciding whether or not a particular case falls into that category, relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, such as Burrowes , or [over] a lengthy period of time, such as Bultitude ; whether it was a benefit to the solicitor ( Burrowes ), and whether it had an adverse effect on others.”

In Imran Dove J also stated (at [24] and [29]):

“Clearly, at the heart of any assessment of exceptional circumstances, and the factor which is bound to carry the most significant weight in that assessment is an understanding of the degree of culpability and the extent of the dishonesty which occurred. That is not only because it is of interest in and of itself in relation to sanction but also because it will have a very important bearing upon the assessment of the impact on the reputation of the profession which Sir Thomas Bingham MR (as he then was) identified as being the bedrock of the tribunal’s jurisdiction…..

It is necessary, as the tribunal did, to record and stand back from all of those many factors, putting first and foremost in the assessment of whether or not there are exceptional circumstances the particular conclusions that had been reached about the act of dishonesty itself.”

There is therefore normally little benefit to be had by examination of the specific findings and results on the facts of other cases. Both parties accepted this essential principle, but for the sake of completeness I record that I was referred to and have considered the following further cases: OSS v Fernandes (SDT Case No. 8261/2000 23^rd April 2001); Burrowes v Law Society [2002] EWHC 2900 (Admin); SRA v Goodwin (SDT Case No. 11411-2015, 12^th January 2016); SRA v Taylor (SDT Case No. 10501-2010, 22^nd September 2010); SRA v Robinson (SDT Case No. 10454-2010, 3^rd May 2011; SRA v Brett (SDT Case No 11157-2013, 5^th December 2013).

Whilst matters of purely personal mitigation may be relevant, caution in this regard needs to be exercised (see paragraph 49 of the Guidance Note). As was stated in Bolton (at 519B-E):

“Because orders made by the Tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking-off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again…..All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness….The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price….”

Finally on the authorities on sanction, the SRA relies heavily on Brett, a case in which there was in fact no finding of subjective dishonesty, albeit a finding of recklessness. There Lord Thomas CJ (“the Lord Chief Justice”) stated (at [111] and [112]) under the heading “The duty to the court”:

“111.

The reason why that is so important is that misleading the court is regarded by the court and must be regarded by any disciplinary tribunal as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession’s duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice in England and Wales and the standing of the profession depends particularly upon the discharge of the duties owed to the court.

112.

Where an advocate or other representative or a litigator puts before the court matters which he knows not to be true or by omission leads the court to believe something he knows not to be true, then as an advocate knows of these duties, the inference will be inevitable that he has deceived the court, acted dishonestly and is not fit to be a member of any part of the legal profession.”

It is common ground that the appeal before me proceeds by way of review and not rehearing (see CPR 52.11(1)). Mr Shaw must demonstrate that the Tribunal was “wrong” (see CPR 52.21(3)a)).

The SDT is a specialist tribunal. It is well-established that it is the body best qualified to assess what sanction is required in the interests of the profession: see Marinovich v GMC [2002] UKPC 36 (at [28]) and Salsbury v Law Society [2009] 1 WLR 1286 (at [29] to [30]).

As was stated in the Jay judgment (at [267]):

“…The SDT is an expert and informed tribunal particularly well placed to assess what measures are required to deal with defaulting solicitors, and the High Court pays considerable respect to its sentencing decisions. It only intervenes when the SDT’s decision was clearly inappropriate: see Salsbury v Law Society [2009] 1 WLR 1286.”

(See also to the same effect Bultitude v The Law Society [2004] EWCA Civ 1853 (at [45]); Newfield v The Law Society [2005] EWHC 765 (Admin) (at [47]); Ebhogiaye v SRA [2013] EWHC 2445 (Admin) (at [2] and [68] and Obi v SRA [2013] EWHC 3578 (Admin) (at [5] to [9])).

In SRA v Anderson [2013] EWHC 4021 Treacy LJ stated (at [60]):

“On an appeal this court should only interfere if there is an error of law, or a failure to take account of relevant evidence, or a failure to provide proper reasons.”

When considering a decision made in the exercise of a discretion at first instance, the appellate court will only interfere if the first instance tribunal has exceeded the generous ambit within which a reasonable disagreement is possible (see for example Tanfern Ltd v Cameron MacDonald [2000] 1 WLR 1311).

Mr Shaw appeals on two grounds:

As to the first ground, it is said that the Tribunal:

As to the second ground, it is said that striking off was clearly inappropriate in that the circumstances were exceptional:

In the light of the finding that Mr Shaw had dishonestly misled the court, the SRA submits that the Tribunal was bound to exercise its discretion to strike Mr Shaw off the Roll – see Brett at [111] and [112]. Alternatively, the decision was a correct exercise of discretion and not close to being outside the generous ambit within which a reasonable disagreement is possible such as to justify intervention by this appellate court. In particular, the Tribunal’s findings at paragraphs 147 and 148 demonstrate why Mr Shaw’s misconduct was so culpable and serious: he did not put the record straight and failed to discharge the proper duties of an advocate to the court. The court was plainly misled as a result of such dishonesty.

As set out above, the SRA’s primary position is that where the solicitor’s dishonesty involves misleading the court, then the observations of the Lord Chief Justice in [111] and [112] in Brett make striking off inevitable.

The Tribunal rejected this submission (at paragraph 137). It was “not satisfied” that the Lord Chief Justice was overturning the basis upon which sanction was arrived at in the Tribunal in this particular type of case nor would his remarks have been intended to fetter the Tribunal’s discretion. It went on to say:

“The Tribunal agreed with the defence contention that both paragraphs of the Brett judgment referred to advertent misleading of the court. The Tribunal also agreed that the reference to an inevitable inference that such a respondent should be struck off referred to an inference that the Respondent acted dishonestly rather than that there was an inevitable inference that such a respondent should be struck off.”

The SRA points to the fact that the main judgment on the facts in Brett was that of Wilkie J. The Lord Chief Justice chose to deliver a separate judgment in order to give guidance of general application, setting out the nature of lawyers’ obligations in relation to their conduct as regards the court, and specifying the consequences if those obligations are breached by conduct, whether by commission or omission, which misleads the court. The SRA submits that the Tribunal’s analysis of the reference to “inevitable inference” in [112] of Brett is linguistically and logically impossible. As a matter of ordinary language and construction it is clear that the word “inevitable” governs all three of the subsequent inferences.

I do not consider that the observations at [111] and [112] can be read properly as wholly removing the Tribunal’s discretion on sanction in any case where a solicitor is found dishonestly to have misled the court, with the result that striking off becomes inevitable. That no “blanket rule” was being imposed is reflected, for example, in the statement in [111] that misleading the court will “normally” attract an exemplary and deterrent sentence.

It is necessary to set the scene in Brett. In particular, Mr Brett had not been charged with subjective dishonesty, and so such a finding was not open to the SDT. The Court found it difficult to accept that Mr Brett had not been found dishonest (see [96] to [101]). The Tribunal could not find that he had “knowingly” misled the court for the purpose of Rule 11.01 of the Solicitors’ Code of Conduct 2007, but it could find that he had acted “recklessly” for such purpose. In that context, the comments in [111] and [112] can be understood as providing guidance in future that cases of deliberate misleading must all be treated as dishonesty cases.

I do not find the SRA’s strict linguistic analysis helpful. If the Lord Chief Justice had intended the result contended for by the SRA, he would have said so in terms and in the clearest of language. It would have represented a departure from the well-known principle that in exceptional circumstances striking off following dishonest misconduct will not be justified in all the circumstances (per Bolton). It is to be noted that his comments have not been understood more generally as bringing about such a change in the law in the sense that there has been no revision to the Guidance Note or the SRA Handbook.

Even if a strict linguistic approach were sound, it is to be noted that the Lord Chief Justice referred to an “inevitable” “inference”, not an inevitable conclusion. An inference can be no more than a presumption, rebuttable in appropriate circumstances.

The thrust of [111] and [112] is not that the offence of dishonestly misleading the court becomes a category of dishonesty separate from others for sanction purposes, but rather that dishonestly misleading the court is a most serious matter. The court was not considering the question of exceptional circumstances for the purpose of avoiding a striking-off, nor intending to fetter the SDT’s discretion on sanction as suggested.

For these reasons, I reject the submission that, in the light of [111] and [112] of Brett, having made a finding that Mr Shaw dishonestly misled the court, the Tribunal was bound to strike Mr Shaw off the Roll. I do, however, accept the SRA’s submission that the comments of the Lord Chief Justice in Brett serve to underline the gravity with which misconduct that involves a lawyer dishonestly misleading the court is to be treated and the near-inevitability of striking off. It is therefore nevertheless an authority of real significance for present purposes.

I turn then to the question of whether or not the Tribunal’s decision that there were no exceptional circumstances justifying a lesser sanction was wrong either because the Tribunal erred in principle and/or because the order striking off was clearly inappropriate.

I have come to the conclusion that there was no error of principle within the Tribunal’s reasoning sufficient to call into question the overall safety of the Tribunal’s decision to strike Mr Shaw off the Roll.

The case for Mr Shaw involves criticism of certain discrete statements in the sanctions judgment. It is of course essential to view the sanctions judgment as a whole, and not to consider any particular part in isolation. Moreover, care has to be taken in critiquing individual sentences in what was an extremely lengthy and detailed judgment that, inevitably, is imperfect in places. I nevertheless address each criticism separately and in turn at this stage.

As a general comment, it was suggested for Mr Shaw that the Tribunal may have erred in its approach by treating Mr Shaw as falling to be sanctioned for wider dishonesty than was in fact the case. Reference was made to paragraph 141 of the sanctions judgment, where the Tribunal stated that Mr Shaw’s dishonesty lay in his failure to notify the court of the deficit in the information that led to the Liquidating Trust obtaining the order that it did. This was at worst loose language. It is very clear from the opening section of the sanctions judgment, from paragraph 56, and for example from the Tribunal’s comments in paragraphs 136 and 138, that the Tribunal was very aware that it was only dealing with the two findings upheld in the Jay judgment and that the dishonesty finding related only to the Affidavit.

It was submitted that the Tribunal erred in material error of principle in paragraph 139 of the sanctions judgment where, as set out above, the Tribunal stated:

“Its consideration of exceptional circumstances must be applied to the act of dishonesty rather than its context.”

It is said that this was an unduly narrow and blinkered approach. It is necessary to consider and analyse the nature, scope and extent of the dishonesty which entails consideration of all relevant circumstances, including the background and events leading up to the dishonest act, its motivation and the effect of the dishonest act on third parties and the administration of justice. It is submitted that this error of principle was so fundamental that it “may have infected other parts of the Tribunal’s reasoning”.

The sentence under scrutiny reads oddly and is difficult to follow (as is the preceding sentence). When the dishonesty section of the sanctions judgment is considered as a whole, however, it is clear that the Tribunal (correctly) focussed on the act of dishonesty in question but that it did not ignore its context for the purpose of assessing whether or not exceptional circumstances existed such as to avoid striking off - see for example paragraphs 140-142 (where the Tribunal considered the background and events leading up to the Affidavit), 143, 144 (where the Tribunal considered the effect on Mr Logue), 146 (where the Tribunal considered motive), 149 (where the Tribunal considered the effect on the administration of justice and reputation of the profession), and finally 151 (where the Tribunal in fact “fully allowed for the highly pressurised circumstances of the complex litigation…and the mitigation brought to its attention”).

Next, criticism is made of paragraph 142 of the sanctions judgment: it is suggested that the Tribunal drew an (unexplored) adverse inference against Mr Shaw by reference to his omission of the words “rather than New York”. However, when the paragraph is read as a whole, the point was treated as a neutral one only (since the omission also benefitted Mr Shaw on the question of motive), and certainly not one to which the Tribunal attached any overall significance.

Mr Shaw criticises the Tribunal’s findings (in paragraph 143) that his dishonesty lasted two or three days beginning on 6^th July 2010 when, in particular, the unchallenged evidence of Mr Shaw was that he was not involved in nor was he aware of the email exchanges between Mr Turnbull and Mr Wiesner in the evening of 6^th July 2010. As Mr Shaw himself points out, the Tribunal’s finding on timings is not precise. What mattered was that Mr Shaw’s dishonesty was not momentary or fleeting. On his own case, on 8^th July 2010 he considered Mr Wiesner’s affidavit of 7^th July 2010 and Mr Turnbull was involved. The making of the Affidavit involved a considered and deliberate decision making process on the part of Mr Shaw involving the consideration and then signing on oath of the Affidavit in the presence of a solicitor from another solicitors’ firm. The Affidavit exhibited a paginated bundle of documents, to which Mr Shaw referred. It was an event of real significance, particularly in the context where the object of the exercise was for Mr Shaw fully to inform Roth J and correct any outstanding misapprehensions (and to offer apologies as appropriate) in the context of the discharge application.

Criticism is then made of paragraph 144 of the sanctions judgment where the Tribunal found Mr Shaw’s dishonesty to be crucial in respect of not correcting the information used in the without notice proceedings. This is said to betray a misunderstanding as to the nature of the matter as to which Roth J was misled. Mr Shaw’s knowledge was “entirely irrelevant” to the substance of the matters which Roth J had to decide. This error is said to be a serious one, since it led the Tribunal to characterise Mr Shaw’s failure as “crucial”.

It is going too far to say that Mr Shaw’s failure to disclose his knowledge was entirely irrelevant to the matters which Roth J had to decide. The Liquidating Trust’s non-disclosure occupied two paragraphs of Roth J’s judgment and he felt it appropriate specifically to record his (false) understanding that Stewarts were not implicated in any such non-disclosure. Matters of inadequate disclosure on the part of the originally applying party are always relevant, even if only in a forensic sense, to an application to set aside a freezing order obtained without notice. They may also have been relevant to the later question of costs. But in any event, the Tribunal found (and was entitled to find) that even if the matter had been procedural it was of no less significance. As it said, obtaining the without notice freezing order turned on procedural matters. The risk of dissipation was said to be established, amongst other things, by Mr Logue seeking to evade service. Whether or not the court was misled in that regard by the Liquidating Trust’s solicitors cannot be said to have been irrelevant to Mr Logue’s subsequent application to set aside the freezing order. And on any view, in a broad sense, it was obviously always “crucial” for Mr Shaw to correct any false apprehension that had been created by him on oath before the court.

Mr Shaw then submits that in the same paragraph (144) the Tribunal erred in principle in considering it to be a neutral point that the contents of the Affidavit improved Mr Logue’s position.

I fail to see how this point can assist Mr Shaw. Mr Shaw and Stewarts were duty bound (or at the very least felt that it was appropriate for them) to provide the clarifications and explanations that they did in the Affidavit, including an explanation as to the Liquidating Trust’s non-disclosure at the time of the without notice application. As Mr Turnbull stated on 6^th July 2010, they “needed to deal” with the non-disclosure. (For these purposes, it matters not whether or not Mr Shaw saw that email: the point is the position in principle). In such circumstances, it is difficult for Mr Shaw to pray in his aid any positive effect that the Affidavit may have had on Mr Logue’s position. Mr Shaw’s problem is that he dishonestly did not go far enough and provide a full and frank explanation to the court. The Tribunal was fully entitled to find that the effect of the Affidavit on Mr Logue was a neutral point for Mr Shaw.

Mr Shaw submits that the Tribunal erred materially in considering (at paragraph 146) that if Roth J had known the truth it could have had costs consequences for Mr Shaw and Mr Turnbull and for Stewarts and the Liquidating Trust. This, he says, came “completely out of the blue”. The suggestion that there was any risk or exposure for Mr Shaw and/or Stewarts as to a wasted costs order because of paragraph 15 of the Affidavit was entirely misconceived. Such orders are exceptional and require very strong facts, including that additional wasted costs are incurred by the conduct in question (see Byrne v Sefton Health Authority [2001] EWCA Civ 1904 at [35]).

Again, this point does not advance Mr Shaw’s position. In very general terms, it can be understood why the Tribunal did not rule out the possibility of adverse costs consequences for everyone on the Liquidating Trust’s side had the full truth been known. In particular, for example, revelation of the full position and the extent of the non-disclosure might have increased the prospects of costs being ordered against the Liquidating Trust on an indemnity (as opposed to a standard) basis (which the Liquidating Trust might or might not have sought to pass on to Stewarts in whole or in part). Further and in any event, this part of the Tribunal’s reasoning was followed immediately by the (obviously correct) statement that full disclosure by Mr Shaw could also have affected the judicial criticism which Roth J made and against whom.

Mr Shaw criticises paragraph 150 of the sanctions judgment where the Tribunal dealt with the question of procedural delays. The Tribunal had regard to the guidance in Bolton about the possible relevance of delay. It concluded that Mr Shaw’s restoration to the Roll for two years was not material because the issue was strike off rather than suspension and strike off was a permanent sanction. Mr Shaw submits that the sentencing tribunal must always take into account the impact and effect of the disciplinary proceedings. The fact that Mr Shaw was restored to the Roll was not the point. The Tribunal’s reasoning revealed that the Tribunal was starting from the premise that Mr Shaw would be struck off.

Mr Shaw did fall to be struck off unless exceptional circumstances were found to exist. The question for the Tribunal here was whether or not the procedural history - the most striking feature of which was Mr Shaw’s restoration to the Roll following the judgment of Jay J (although Mr Shaw did not in fact work as a solicitor during this period) - gave rise to an exceptional circumstance justifying a sanction lesser than striking off. The Tribunal was in effect finding (both here and in the next paragraph (151) of the sanctions judgment) that it did not, a conclusion open to it, both as a matter of principle and fact.

Finally, Mr Shaw submits that the Tribunal erred (in paragraph 138 of the sanctions judgment) in finding that there was a significant difference between the fact in Brett (where the solicitor received a 6 month suspension) and the facts in this case. In Brett the solicitor recklessly misled the court as to how the identity of the blogger had been ascertained, a critical issue in the case. The act of misleading directly affected the outcome of the dispute.

Whether or not the wrongdoing in Brett was more serious than that of Mr Shaw, the fact remained that – even if only because of the prosecutor’s decision not to pursue a charge of subjective dishonesty - Mr Brett was not found to be have been dishonest and the Tribunal could not proceed on any other basis. Here Mr Shaw had been found guilty of the most serious misconduct, involving subjective dishonesty. In any event, the Tribunal in paragraph 138 was simply addressing the submissions for Mr Shaw that Brett could be relied on as support for the proposition that suspension here would also be justified. As already indicated, there is little to be gained in the present context from comparing the facts and outcome of one case with those of another. The facts in Brett are very different, even if in each case the misconduct involved misleading the court. Any error in this regard cannot overturn the safety of the Tribunal’s finding on sanction. The Tribunal was right to point to the general comments of the Lord Chief Justice in Brett, as already discussed.

For these reasons, I conclude that the various criticisms made of the sanctions judgment, whether taken individually or cumulatively, do not render the decision to strike Mr Shaw off sanction decision unsafe as a matter of principle.

This conclusion is reinforced by my conclusion on the overall appropriateness of the sanction of striking off as set out in the section below.

The nature of Mr Shaw’s dishonesty was clearly of the utmost gravity, involving as it did the deliberate misleading of the court by a (senior) officer of the court. As stated in the Jay judgment (at [34] to [37]), the duty of full and frank disclosure is ingrained in all solicitors in relation to without notice hearings. More relevantly for present purposes,:

“ …there is a separate duty arising at all times not to mislead the Court and, should the Court be inadvertently misled, to correct that as soon as possible. Such duties are prominent in the Solicitors’ Code of Conduct.”

As already indicated and as the Tribunal found, the Lord Chief Justice in Brett gave “a very clear steer” that the dishonest misleading of the court by a solicitor is a matter of the utmost gravity. No parallel with the facts in R v Imran (supra), for example, can be drawn. There a trainee solicitor’s dishonest misconduct was described as “spontaneous” and a “rash and spur of the moment decision”. Here, Mr Shaw was a senior partner charged with correcting a false impression that he had previously given to the court on oath in the context of a discharge application on an ex parte freezing order previously obtained by his firm on behalf of the Liquidating Trust. These were matters correctly emphasised by the Tribunal at paragraphs 144 and 147 of the sanctions judgment in particular.

As for the scope and extent of the dishonesty, even if Mr Shaw’s dishonesty did not span days, it cannot be said to have been momentary. Mr Shaw faced the very important and substantive task of correcting a false impression which he had given to Roth J on oath. He dishonestly failed to do so with the motive of benefitting himself and his firm, at least by sparing them public professional embarrassment, by no means an insignificant matter. As is apparent from [31] and [32] of the Roth judgment, it is without question that Mr Shaw and Stewarts would have been criticised (and heavily) by Roth J, had he known the true position. They, unlike Mr Wiesner, were English lawyers, who were fully aware of their obligations to the court.

As for the effect of the dishonesty, as the Tribunal recorded at paragraph 148 of the sanctions judgment, Roth J was clearly misled. The submission that the Affidavit as it stood (without correction as to the position of Mr Shaw and Stewarts) was helpful to Mr Logue is not to the point. The point is that the Affidavit was not as helpful as it could and should have been. Even if only in the most general and forensic of terms, given the hard-fought nature of the litigation between the Liquidating Trust and Mr Logue, it would have helped Mr Logue to know that his opponent’s English lawyers, who had acted against him to obtain the draconian remedy of an ex parte freezing injunction, had also not acted appropriately.

Moreover, there is, as the Tribunal found, harm to the reputation of the solicitors’ profession when a solicitor and officer of the court dishonestly misleads the court in order to spare professional embarrassment. When that solicitor is someone as senior and experienced as Mr Shaw, the harm is all the greater.

None of the matters relied on by Mr Shaw are sufficient to amount to exceptional circumstances such that the Tribunal’s decision to this effect can be said to be clearly inappropriate. The nature, scope and extent of the dishonesty are matters that have been addressed above, as have the questions of harm and motive.

The Tribunal was fully aware of Mr Shaw’s personal circumstances, his unblemished record over a distinguished 30 year career, and numerous high quality references, the fact that he had no predisposition to dishonesty and was unlikely to repeat his misconduct. These are all matters recorded in paragraph 150 of the sanctions judgment. As Bolton made clear, and as the Tribunal noted, such circumstances must be considered. But they are not unusual in this context. And they do not touch on the essential issue, which is the need to maintain public confidence in the profession.

As for the procedural history, there clearly have been delays which have not been due to any fault on the part of Mr Shaw. Indeed, he has done what he can to press matters forward (including by the making of an unsuccessful application for the expedition of this appeal). The position on timing was exacerbated by Mr Shaw’s (partially successful) appeal to the High Court and complicated by his subsequent restoration to the Roll, albeit that he never in fact practised as a solicitor again. However, disciplinary proceedings can be drawn out and lengthy, particularly if the background is complex, as was the case here. They are nearly always distressing for the professional involved, particularly when, as here, dishonesty is alleged, and are often damaging, both professionally and personally, again particularly when, as here, dishonesty is alleged. Matters for the professional inevitably then take a turn for the worse when dishonesty is proved. It cannot be said that the Tribunal was wrong not to treat the procedural history and its consequences to Mr Shaw as amounting to an exceptional circumstance justifying a sanction for dishonesty other than striking off.

In summary, these matters, whilst relevant, cannot be said to make the Tribunal’s decision - that this case does not fall into that small residual category of cases where striking off for dishonesty could be avoided - wrong, let alone clearly wrong in the eyes of an appellate court whose function is to review the Tribunal’s decision. The sanction of striking off was not clearly inappropriate; rather it was a sanction which it was properly open to the Tribunal to impose.

Finally, I address a short point raised on behalf of Mr Shaw during the course of oral submissions on the question of timing: on any application for restoration to the Roll (under s. 47 of the Solicitors Act 1974) when should the period of strike-off be treated as running? This arises in the context of the SDT’s Guidance Note on Other Powers of the Tribunal (1^st ed. 2016) where it is stated at paragraph B8 that, in considering any application for restoration to the Roll, the SDT will have regard to certain identified guidance and factors including the following:

“the period which has elapsed since the order of strike off/removal was made. Save in the most exceptional circumstances and application for restoration within six years of the original strike off/removal is likely to be regarded by the Tribunal as premature.”

I was informed by the SRA that it is the practice of the SDT, on remitted cases, only to make striking off orders going forwards and not to “backdate” them. That is what happened here, when the relevant order was made on 2^nd September 2016.

It seems to me that, when considering the period which has elapsed since strike off in Mr Shaw’s case on any application for restoration to the Roll, it would be unfair to ignore the period when Mr Shaw has as a matter of fact (previously) been struck off for, amongst other things, the same matter. So the year when Mr Shaw was first struck off (between 14^th February 2013 to 13^th January 2014) should “count”. As for the period between 13^th January 2014 and 2^nd September 2016 when Mr Shaw was restored to the Roll but chose not to apply for a practising certificate, that does not qualify strictly as a period of striking off. It would be for the Tribunal to decide what, if any, weight to attach to the fact that Mr Shaw also did not practise during that period. Clearly he has then been struck off again since 2^nd September 2016.

I do not however propose to make any formal order in this regard, not least since the position is complicated by the period when Mr Shaw was not struck off but chose not to practise because of the outstanding sanction proceedings, and also because it seems to me that formally the position should in the first instance be one for the SDT to consider on the facts of Mr Shaw’s case in the event that he makes any application for restoration.

For the reasons set out above, the appeal will be dismissed. This is not a conclusion that I reach with any pleasure. Mr Shaw has had a distinguished career as a solicitor hitherto and that career is now at an end. It is a professional tragedy for him. But it is the consequence of a senior solicitor and officer of the court dishonestly misleading the court in a sworn affidavit in order to avoid professional embarrassment for himself and/or his firm and in the absence of any exceptional circumstances justifying a different outcome.

I end by expressing my thanks to Mr Dutton CBE QC, who said everything on behalf of Mr Shaw that could possibly be said, and to Mr Cunningham QC for their elegant submissions and able assistance to the court.