Solicitors Regulation Authority v Wingate & Anor

MR JUSTICE HOLMAN: On 21 December 2016 I gave a lengthy judgment in this case under neutral citation number [2016] EWHC 3455 (Admin). I will not in this judgment repeat anything that I said in that judgment. This judgment should be read, and treated as if in continuation of it.

The last sentence of that judgment, now at paragraph 146, concluded:

As clearly follows from those words, it was my own expectation and intention, after I had read out that judgment on the morning of Wednesday 21 December 2016, that I would indeed hear submissions and decide upon sanction and finally conclude this entire case that day. My understanding was, as we broke off for lunch, that that was the expectation of both leading counsel and indeed all parties also.

We did indeed resume after the lunch break, and considerable discussion ensued in relation to various aspects of both sanction and possible costs orders. There was also certainly some discussion about a theoretically possible sanction, in relation to either or both respondents, of a suspended order for suspension from practice, coupled with conditions of practice. That dissolved somewhat inconclusively that day into uncertainty as to what sort of conditions of practice might be suggested by the SRA or imposed by the court.

I have been reminded today that during that afternoon I myself had raised for consideration whether it was appropriate that I should that day decide upon sanction or whether I should remit the question of sanction to the tribunal.

Mr Gregory Treverton-Jones QC has said today that on the last occasion he, on the instructions of his clients, did invite me to deal with sanction myself. He says that that was motivated in part by a very understandable desire that day, when his clients had learnt for the first time the outcome of the substantive appeal, to know their final fate once and for all.

In the event it became clear that I simply could not finally resolve this case that day, in part because I did not have any statements or other information as to the personal financial circumstances of either respondent. Those circumstances would be relevant if the court was considering the possibility of a fine in relation to either respondent, and relevant also in relation to the application by the SRA for very substantial costs orders in this case.

So it was that, on Wednesday 21 December 2016, the whole issue of sanction and the making of costs orders was adjourned to today, being effectively the next available date upon which I would be sitting in the Administrative Court and all relevant parties and their counsel could reassemble.

The formal order of 21 December 2016, after dealing with the outcome on the substantive appeal, continued at paragraph 3:

Between then and now there has been some correspondence between the respondents and their firm, on the one hand, and officials in the SRA and the solicitors instructed by them in this matter, on the other hand, with regard to possible conditions of practice. That correspondence really only intensified in the last few days of last week and is, to my mind, still somewhat inconclusive.

So it was against that background that all concerned reassembled before me today. Just as I fully expected when I broke off at lunchtime on 21 December 2016 that I would be finally dealing with sanction and costs that afternoon, so also I fully expected, as I came into court at 10.30 this morning, that I would be finally dealing with all aspects of sanction and costs today.

Mr Richard Coleman QC began to develop submissions along the lines of his skeleton argument, and his very first point was to remind me of the extremely wide discretion upon the court on an appeal such as this, pursuant to section 49(4) of the Solicitors Act 1974. This simply provides that:

On behalf of the SRA Mr Coleman submitted that they themselves are "relatively neutral" on the question whether this court should now decide upon sanction or it should be remitted to the tribunal. He did, however, rightly stress that there would be yet further delay if I were to remit the question of sanction to the tribunal, and also of course yet further costs would be incurred.

Mr Treverton-Jones then took some instructions from his clients. In reversal of the position taken during the afternoon of Wednesday 21 December 2016, his express instructions were, and appear to remain, to apply that I should in fact now not decide upon sanction, but should remit the whole question of sanction to the tribunal. After I rose for a short while so that he could take yet further and firm instructions, he then repeated the application and made submissions in support of it. His broad overall submission is that this is a very unusual case, in a very unusual situation, in which, very rarely, the High Court has "overturned an acquittal". He submits that at the heart of consideration of sanction in this case there may be a very difficult interrelation with deciding upon appropriate conditions of practice, and that that is more appropriately decided by the expert professional tribunal. As to that, Mr Coleman replied that issues with regard to conditions of practice are no more than a red herring, for whatever the court or the tribunal might decide, the SRA in any event have statutory powers and duties to impose conditions upon practising solicitors.

I have not found this at all an easy decision. Further, I feel frankly embarrassed that, after this was adjourned in December in a shared expectation that sanction would finally be decided by myself today, I have even raised again for consideration whether it is appropriate that I should do so. Obviously, further costs have been incurred by everyone assembling again today, and indeed one day of court time has been allocated to this purpose. So, it may appear a very weak decision on the part of the court to adjourn this matter from December to today, if I now decide to remit it back altogether to the professional tribunal. If that is weak on my part, I must bear it with fortitude; for I have decided that in the light of the application made by Mr Treverton-Jones I should remit the whole question of sanction to the tribunal, and also the question of whether there should be any adjustment in the decision which the tribunal previously made as to the costs of the hearing before the tribunal. I have made absolutely clear to both counsel today that I will, in any event, decide myself all questions as to the costs of and incidental to the hearings before me, including the hearing today.

The reasons why I have decided that I should remit the question of sanction to the tribunal are as follows. First, this is undoubtedly a most unusual situation. At paragraphs 2 and 3 of my first judgment I referred to how rare prosecutor’s appeals of this kind by the SRA are. Effectively, this is only the third in the last 4 or 5 years, and probably indeed for an appreciable time before that. The other such appeals had been heard by a Divisional Court of two judges. I do not know exactly what was at issue in those other cases, nor how the Divisional Court decided and resolved the question of sanction.

If, in the present case, it had been the conclusion of the appeal that Mr Wingate had acted with dishonesty, then it would virtually inevitably have followed that he would require to be struck off. That is so clearly the position that there would have been little or no purpose in remitting the question of sanction, at any rate in relation to him. However, as I explained in paragraphs 33 to 38 of my earlier judgment, the allegation of dishonesty was not finally pursued against Mr Wingate, and the case does indeed proceed upon the basis that he was not dishonest in anything that he did or omitted to do in relation to the Axiom loan or any of the allegations made against him.

So this is not a case of dishonesty which carries the virtually automatic sanction of striking off. It is of lesser gravity; but, on the basis of my conclusions, it is nevertheless a serious case, involving, as it does, a lack of integrity on the part of Mr Wingate and manifest incompetence on the part of Mr Evans. That, as it seems to me, has the effect that the decision as to sanction in this case is a very difficult one. It would not be difficult if there had been an ultimate conclusion of dishonesty; but, in the actual circumstances of this case, the SRA consider that Mr Wingate should still be struck off, but do not suggest that Mr Evans should be. At the other end of the sanction spectrum, Mr Treverton-Jones will submit that both his clients are capable of being sanctioned by a fine. But between those two extremes there is the possibility of the sanction of suspension from practice, and that sanction itself is capable of being suspended upon conditions of practice.

It does seem to me that, on the facts and in the circumstances of this particular case, there is a very difficult decision in relation to each of these respondents as to where on that spectrum of possible sanctions they should each be placed. I do not at all shy away from taking difficult decisions, and indeed in other fields of law I routinely take far, far more grave and difficult decisions than these, including decisions as to whether, put bluntly, a person lives or dies. It is not the difficulty of the decision as such which leads me to remit this to the professional tribunal. Rather, it is my view that because the appropriate sanction is not at all self evident in this case (as it would have been if there had been dishonesty) it is more appropriately decided by the expert professional tribunal. Frankly, they have, or should have, a far greater grasp than me of the approach to sanctions in a case of this kind; and they certainly will have a far better grasp than I do of the working of a small firm of solicitors such as this, when it comes to considering the scope of any conditions of practice, if it is appropriate to attach them. There is a further consideration that the tribunal consists always of a panel of three. If this case had been heard by the Divisional Court, which it should have been, that would have been a court of at least two judges. It does seem to me a strong thing, on the facts and in the circumstances of this case, that the whole discretionary decision as to sanction should be decided by a single person, whoever that person may be.

So for those reasons, with considerable regret and some misgiving, I have decided, notwithstanding the terms of paragraph 3 of the order of 21 December 2016, that I will remit the whole question of sanctions and the question of the costs of the proceedings below to the Solicitors Disciplinary Tribunal.

During the course of this morning reference has been made from time to time by each of Mr Coleman and Mr Treverton-Jones to comments or observations that I may apparently have made during the course of the afternoon of Wednesday 21 December 2016. Inevitably in any discussion between a court and counsel with regard to the exercise of a very wide discretion, a court may make comments testing out the argument and the discussion.

But I wish to make absolutely clear that the whole point and purpose of my remitting the question of sanction to the tribunal is that I have made a decision that the entire discretion as to sanction is more appropriately exercised by them than by me. I expressed myself at length, with detailed reasons and I hope with clarity, in my judgment of 21 December 2016 on the substantive issue. A transcript must also be made of this judgment. Of course at the remitted hearing before the tribunal either side will be able to make whatever reference they wish to any part of both the judgments. Further, I will in any event expect the tribunal, thoroughly and conscientiously, to read and consider those judgments. But I wish to make absolutely clear that as far I am concerned this remitted question of sanction is now completely at large, to be decided in the exclusive discretion of the tribunal at the remitted hearing. It would not be appropriate for any reference to be made to any comments or observations that I might have ventured during the course of the discussions on 21 December 2016 or today.

My only, considered position now is that the tribunal alone should decide all questions of sanction and nothing that I have said, save within the four corners of the two judgments, should be referred to, or allowed in any way whatsoever to influence their own unfettered discretion in that regard.

The final matter that I have to consider is whether, in remitting the question of sanction, I should direct that it be considered by a panel constituted wholly by, or as far as possible by, the same members who heard this case before, or whether I should direct that it be heard and determined by a wholly differently constituted panel. That also is not an easy decision. It could be said, and indeed I have expressly said in my substantive judgment, that the previous panel, first time round, made significant errors, including errors in their ultimate assessment as to whether or not the facts as found proved amounted to professional misconduct. That consideration might point in favour of a completely fresh panel considering this matter. On the other hand, the actual people who heard this case first time round would retain the considerable advantage of having heard, at considerable length, from these respondents as witnesses, as well as from a number of other witnesses.

Sometimes when appellate courts remit cases for rehearing or reconsideration of some aspect by a lower court, that is coupled with a direction that it should be heard by a different judge. In other cases it may be coupled with a direction that it should be heard by the same judge; and in other cases the appellate court remains silent, leaving it simply for administrative allocation. So it certainly does not follow from the fact that the tribunal who heard this case first time round made errors, that they should be regarded as in some way disqualified from hearing this case again on the remitted issue of sanction.

My view is that on balance, it should be, so far as they remain available, the same individuals who heard this case first time who hear it again, and I will so direct.

That leaves the question of the costs of and incidental to this appeal upon which I will now hear submissions and rule. Once again, we seem immediately to have hit lunchtime and I will do so at 2 o'clock.

MR TREVERTON-JONES: Can I just raise the question the last direction that so far as possible, you directed that so far as the panel remains available, obviously also the question of time frame within which it should be...

MR JUSTICE HOLMAN: The first point, for all I know - I hope not - one or more of them might be dead. Secondly, one or more of them may no longer be doing this sort of work. I am not suggesting they should be brought back out of retirement. But assuming, or to the extent that, one or more of them remain members of this tribunal and doing this sort of work, I think it should be heard by them, provided that can be done within a reasonable time frame. I think one has to assume that if any given person, lay or solicitor, some of them are lay I think.

MR TREVERTON-JONES: One is lay.

MR JUSTICE HOLMAN: Any given person is still doing this sort of work, they can be made available to do it. We are only talking about one day. Is there a reasonable time frame?

MR TREVERTON-JONES: The reasonable time frame which I wish to raise.

MR JUSTICE HOLMAN: Work out some of the formulation, Mr Treverton-Jones. This needs to be brought to a head as soon as possible and I do not mind you putting into the order, be heard with as much expedition as possible or something like that. I do not sense that Mr Wingate and Mr Evans are really trying to put off the terrible day. In fact the reverse, it must be appalling every day this continues. We would all be agreed this should be heard with as much expedition as possible consistent with assembling the same panel if they are available and of course your availability Mr Coleman and Mr Treverton-Jones, so it will have to be teed up.

MR TREVERTON-JONES: I am grateful my Lord.

MR JUSTICE HOLMAN: I am sure between you you can draft a form of words to give effect to all of that.

MR TREVERTON-JONES: We can.

MR JUSTICE HOLMAN: Is there anything else before we break off?

Somebody must make an official transcript. Who actually obtained it last time round, do we know?

MR TREVERTON-JONES: We did.

MR JUSTICE HOLMAN: I notice in fact we have not a shorthand writer here which is unusual in the Administrative Court. But it does not matter, it is all on tape. Will you please bespeak one as soon as possible. It is not very long. But I require that it is available to the tribunal so they themselves can see all aspects of it. Could you please arrange that?

MR TREVERTON-JONES: My instructing solicitors will be on the case.

MR JUSTICE HOLMAN: Without delay.

MR TREVERTON-JONES: Yes.