Hayes v Solicitors Regulation Authority (Rev 1)

On 12 May 2015, Ashley Mote was convicted on twelve counts, each concerning fraudulent claims he had made for expenses totalling about £400,000 whilst serving as a Member of the European Parliament (“MEP”) in the period 2004 to 2009. He was later sentenced to a total of six years’ imprisonment.

Two of those counts related to sums paid by the European Parliament to Edward Hayes LLP formerly Edward Hayes Solicitors (“the Firm”), in which the Appellant was a partner. He had acted for Mr Mote in a variety of litigation. Following an investigation by the Respondent (“the SRA”), four formal professional allegations were made against the Appellant. On 14 July 2017, the Solicitors Disciplinary Tribunal (“the SDT”) dismissed three of the allegations, but found one proved, namely that the Appellant had permitted his firm to use money which had been provided by the European Parliament to fund the provision of legal services under a contract approved by the Parliament for purposes not authorised by the contract, in circumstances in which the Appellant knew or suspected that the purposes were not so authorised (“Allegation 3”). Having found that allegation proved, the SDT ordered the Appellant be struck off the Roll of Solicitors and ordered him to pay costs.

The Appellant now appeals against the SDT’s finding that Allegation 3 had been proved. He does so on several grounds, but his primary contention is that the tribunal misconstrued the scope of the contract for provision of legal services. It is submitted that all the legal services provided by the Appellant’s firm fell within the scope of the contract properly interpreted; and, in any event, the SDT’s finding that the Appellant knew or suspected that they did not fall within the scope of the contract is untenable on the facts of the case.

Before us, Abbas Lakha QC and Edward Brown of Counsel appeared for the Appellant, and, as below, Richard Coleman QC for the SRA. We thank them for their thorough submissions.

The Appellant was born in May 1966, and admitted to the Roll of Solicitors on 2 December 1991. He became a partner in the Firm – which his father had founded – in 1994.

Prior to meeting the Appellant, Mr Mote was regularly involved in litigation, which he appears to have contested with some tenacity.

First, between 1997 and 2001, Mr Mote had been paid welfare benefits in the form of income support, housing benefit and council tax benefit, which the Department for Work and Pensions (“the DWP”) considered had been claimed dishonestly, in that, in claiming the benefits, he had failed to declare his involvement and interest in several commercial companies. One of these companies was JC Commercial Management Limited – a cleaning business that he effectively ran with someone called Jacqueline Rance – of which he was a director. Following an investigation, on 15 January 2003, the DWP issued a decision requiring Mr Mote to repay £73,000 of benefits, in respect of which he appealed to the Social Security Appeals Tribunal.

Furthermore, arising out of the same matters, on 30 January 2004, Mr Mote was summonsed on nine charges of fraud involving benefit claims between 1996 and 2001. On 9 February 2004, at Mr Mote’s first meeting with the Appellant, he instructed the Firm to represent him in these criminal proceedings. On 27 April 2004, Chichester Magistrates’ Court committed Mr Mote for trial at the Crown Court.

During this time, Mr Mote was standing as a United Kingdom Independence Party (“UKIP”) candidate in the European Parliament elections, being second on the party’s list for the South East of England Region. Indeed, at his first meeting with the Appellant, Mr Mote told him that he was standing and expected to be elected. He also told the Appellant that he considered the criminal proceedings against him were designed to damage him because of his political views.

Following the European Parliament election on 10 June, Mr Mote was declared elected on 13 June 2004.

However, on the day of the election, an indictment and case summary were served on Mr Mote by the Crown Prosecution Service (“the CPS”) in relation to the alleged benefit frauds; and the following day (11 June 2004) he pleaded not guilty at the plea and directions hearing. That was the subject of national press coverage, which appears to have alerted UKIP for the first time to the fact that Mr Mote faced these charges. On 15 July 2004, UKIP removed the party whip from Mr Mote for failing to disclose to them the existence of these criminal proceedings; although he took his seat in the European Parliament when it began its sitting on 20 July 2004.

The criminal and tribunal proceedings then moved forward in parallel. The Appellant acted for Mr Mote in both, his firm being the solicitors on the record in respect of all the various connected proceedings.

In respect of the former, Mr Mote applied to stay the indictment he faced on the ground that a trial would interfere with the privileges and immunities granted to him as an MEP; and, on 25 November 2004, Aikens J ruled that Mr Mote’s bail – which, in the usual way, required him to surrender to custody at any hearing before the trial, as well as at the trial itself – breached articles 8 and 10 of the Protocol on Privileges and Immunities of the European Communities signed on 8 April 1965, to which the United Kingdom adhered on its accession to the Treaty of Rome in 1972 and which had become part of English law as a result of section 2 of and Schedule 1 to the European Communities Act 1972. Those articles guarantee freedom of movement for MEPs between their residence and wherever the European Parliament is sitting. The criminal proceedings were stayed, pending an application on behalf of the CPS to the European Parliament for a waiver of that privilege or immunity. In addition, Aikens J imposed an order restricting publication of details of the case.

An application to the European Parliament to waive immunity was made by HM Attorney General on 3 February 2005. Mr Mote made submissions in response on 24 May 2005. On 22 June 2005, the European Parliament’s Committee on Legal Affairs published a report, recommending waiver; and, on 5 July 2005, the European Parliament resolved to waive Mr Mote’s immunity.

I pause there to note that the contract for the provision of legal services between Mr Mote and the Firm – to which I return below (see paragraph 34 and following) – was signed by them on 26 August 2005, to enter into force on 1 September 2005. It seems that the immediate trigger for this contract was that, although Mr Mote was entitled to legal aid for the purposes of the criminal proceedings, that did not cover the proceedings in Europe in relation to the waiver of his immunity upon which he was about to embark.

On 5 September 2005, Mr Mote applied to the Court of First Instance of the European Communities (“the European Court”) for the annulment of the decision of the European Parliament to waive his immunity. Those proceedings were protracted, with the court rejecting three applications by Mr Mote for interim measures (and the European Parliament rejecting a further request for immunity from Mr Mote), before the European Court dismissed the substantive application in a judgment dated 15 October 2008.

However, in the meantime, on 17 October 2006, the CPS applied to the Crown Court to lift the stay on the criminal proceedings, on the basis that, although the European Court could order the suspension of the contested act, article 242 of the Treaty of Rome provided that claims brought in that court should generally not have suspensory effect. On 1 November 2006, Gross J (as he then was) lifted the stay; and preparations for the criminal trial proceeded.

Following a trial before the Recorder of Portsmouth (His Honour Judge Price) and a jury in July and August 2007, of the 25 counts, Mr Mote was convicted on twenty-one and acquitted on four. On 4 September 2007, he was sentenced to nine months’ imprisonment on each count concurrent.

Mr Mote appealed against conviction. One ground was that the trial was an abuse of process, because it had taken place at a time when Mr Mote’s claim to immunity had not been finally resolved by the European Court. The appeal on that ground was dismissed by the Court of Appeal (Criminal Division) (Lord Phillips of Worth Matravers CJ, Ouseley and Blake JJ): indeed, the Court of Appeal dismissed the appeal on all grounds, save for a limited ground that related to the conviction on one specific count which was quashed ([2007] EWCA Crim 3131). In relation to the abuse argument, the court found that the case Mr Mote had advanced before the European Court was not well-founded; but, even if it were, it would not warrant or justify the quashing of the conviction.

An application to certify a point of public importance for the purposes of an appeal to the House of Lords was refused on 22 February 2008. An application to the Criminal Cases Review Commission (“the CCRC”) seeking a referral of the conviction to the Court of Appeal, made on 29 June 2009, was rejected on 26 October 2011.

In parallel with those criminal proceedings, Mr Mote also pursued related civil proceedings. He appealed against the decision of the DWP requiring him to repay the benefits improperly paid.

A Social Security Appeal Tribunal hearing of Mr Mote’s appeal was fixed for 3 September 2004. Mr Mote applied for an adjournment on the basis that he would be out of the country on European Parliamentary business. An adjournment was refused; and, on 3 September 2004 at a hearing which Mr Mote did not attend, the appeal was dismissed by the District Chairman of the tribunal (Richard Poynter). Mr Mote applied for an internal review of that decision, on the basis that the tribunal erred in its approach to his privileges as an MEP and in not agreeing to an adjournment. That application was refused on 25 January 2005, the District Chairman finding that (i) as a matter of fact, Mr Mote had not attended the hearing as a matter of deliberate choice, and not because he was on European parliamentary business, and (ii) as a matter of law, the tribunal proceedings did not conflict with the privilege guaranteeing the right to travel to any place of meeting of the Parliament, because, unlike the criminal proceedings, they did not involve bail or any similar restriction of movement.

On 12 April 2005, Mr Mote lodged a notice of appeal against that decision with the Social Security Commissioners, one ground of appeal being that the District Chairman had erred in law in the manner in which he had dealt with the privileges issue. On 3 August 2005, leave to appeal was granted by Commissioner Howell QC on various grounds; but, following a substantive hearing, the appeal was dismissed by Commissioner Levenson on 30 July 2006. From the Commissioner’s judgment, it seems that the privileges issue did not feature large before him.

On 23 October 2006, Mr Mote sought permission to appeal to the Court of Appeal (Civil Division); but, in doing so, he raised no ground relating to privileges as an MEP or, indeed, any issue relating to his position as an MEP. Permission to appeal was refused by the Commissioner on 12 December 2006, but granted by Sir Henry Brooke sitting as a Judge of the Court of Appeal on 15 January 2007. The appeal was dismissed by the full court (Lloyd and Richards LJJ, and Sir Peter Gibson) on 14 December 2007 ([2007] EWCA Civ 1324). No further appeal was pursued.

In addition, Mr Mote was involved in two sets of private law proceedings relevant to this appeal, defending claims brought by Ms Rance and by a researcher he had employed, Paul Wesson. Mr Mote believed that all of these matters were part of a concerted effort to frustrate his activities as an MEP, generated by his political adversaries in the United Kingdom (including UKIP) and in Europe; and he told the Appellant as much.

I have already referred to Ms Rance (see paragraph 7 above). She ran a cleaning business, and entered into a business arrangement with Mr Mote in 1999. As this was one of the arrangements which, the DWP alleged, had not been disclosed by Mr Mote in relation to his benefits claims, she was a prosecution witness in the criminal proceedings in the Crown Court.

On 13 December 2007, in Aldershot and Farnham County Court, she commenced proceedings against Mr Mote for just over £30,000 which, she said, he had misappropriated from the business. Mr Mote considered that the claim was not genuine, but had been encouraged by employees of the local council who were involved in the criminal proceedings – no doubt because housing benefit and council tax benefit, although centrally funded, are locally administered – and/or supported and funded by his political enemies including those within UKIP. At one directions hearing, the political secretary to the leader of the party was in court, apparently making notes, which Mr Mote considered confirmation of his concerns. However, Mr Mote’s suspicions were never raised as an issue in the proceedings, e.g. no application to dismiss the claim on the basis that it was an abuse was made.

Most, if not all, of Ms Rance’s claim had limitation difficulties. In any event, on 24 February 2009, she filed a notice of discontinuance of the claim, subject to the issue of costs being left open. On 13 July 2009, the court ordered Ms Rance to pay Mr Mote’s costs of the claim. Her application for permission to appeal against that costs order was refused.

Turning to Mr Wesson, Mr Mote entered into a contract with him as a research assistant, for £2,000 per month, on 1 August 2004. However, Mr Mote believed that Mr Wesson leaked details of the criminal proceedings to his political adversaries, in breach of the confidentiality order imposed by Aikens J. Mr Mote terminated the arrangement on 10 December 2014.

On 13 September 2007, Mr Wesson issued a claim against Mr Mote in Oxford County Court for just under £5,000 of unpaid fees and expenses due under the contract. The claim was dismissed on 10 November 2008. Again, Mr Mote’s suspicions about the motivation behind the claim were never raised as an issue in the proceedings.

In 2004, the Firm was a substantial enterprise, with over 60 members of staff operating out of a network of offices nationwide but concentrated in London and the South East of England. It obtained a legal aid franchise in 1995, and was appointed to the Legal Aid Board Serious Fraud Panel in 1999. Its turnover in 2004 was about £2.5m, rising to over £4.5m in 2009.

As I have described, Mr Mote first retained the Firm on 9 February 2004 in relation to the criminal proceedings, and the Firm represented him in all phases of each piece of litigation to which I have referred.

Mr Mote paid for some of the Firm’s fees out of his own pocket, e.g. part of the work done in relation to the tribunal proceedings, including the appeal to the Social Security Commissioner. However, the proportion of fees paid in that way was small. There were two main external sources of funding. The fees and disbursements (including Counsel’s fees) incurred in respect of the Crown Court proceedings (including the costs of the application before Aikens J to stay the proceedings) were the subject of a representation order dated 11 February 2004, and were paid for by the Legal Aid Board, as were Counsel’s fees only for the appeal to the Court of Appeal (Criminal Division) and the application for leave to appeal to the House of Lords. The rest of the fees and disbursements for each piece of the litigation I have described were paid for by the European Parliament.

An MEP was entitled to a “parliamentary assistance allowance” to cover expenses arising from the employment or engagement of service providers in connection with the performance of his duties as an MEP, subject to the relevant rules as then set out in the “Rules governing payment of expenses and allowances to Members of the European Parliament” (“the PEAM Rules”). On 26 August 2005, Mr Mote and the Appellant on behalf of the Firm signed a Contract for Provision of Services in European Parliament standard form for services to be provided to an MEP by an external supplier, which would be claimed from the Parliament as expenses (“the Contract”). The form was on its face clearly designed to cover matters, and only matters, which the European Parliament considered fell within the scope of services provided to an MEP in connection with the performance of his duties as an MEP: for example, it recited article 14(5) of the PEAM Rules, which required any contract for services to include particular provisions, including “a description of services to be provided”. Although article 11 emphasised that the European Parliament was not a contractual party, the Appellant was aware that the Contract was written on a standard form prepared by the European Parliament, and as completed it was submitted to the European authorities for approval. The Appellant was well aware of the purpose of the Contract: by pre-authorising identified services, it was part of the machinery by which the European Parliament funded the provision of assistance to MEPs to enable them to perform their parliamentary duties.

Article 1 of the contract indicated that it was a “framework” contract; and continued:

“In carrying out his duties and assignments, the service provider [i.e. the Firm] shall have the freedom and autonomy of a freelance worker or trader. Subject only to the proper and correct performance of the contractual relations necessary to promote and defend the member’s interests, the service provider shall be completely free and independent in carrying out his duties and organising his work, including time and hours he shall devote to it.”

In line with the Contract being of a framework type, each piece of work was the subject of a separate letter from the Appellant on behalf of the Firm to Mr Mote, setting out various matters such as who within the Firm had conduct of the case – in each matter, the Appellant – charging structure and rates, an overall costs estimate and required information under the money laundering provisions of the Proceeds of Crime Act 2002. Those letters indicated that the Firm would have to be sure about the “proposed source and flow of funds”. Interim and final bills in relation to each matter were rendered from time-to-time; and sums received from the European Parliament pursuant to the Contract were set off against those bills.

Article 2 of the standard form, under the heading “Service provider’s area of responsibility and activities”, stated:

“The service provider’s duties shall consist in particular of [______________]¹, they shall be carried out in [______________]²”.

The marked footnotes were as follows:

“¹ Insert the details.

² Insert the place”.

In the version completed by Mr Mote and the Appellant on 26 August 2005, article 2 was completed in handwriting (shown in italics), as follows:

“The service provider’s duties shall consist in particular of legal and constitutional advise [sic], they shall be carried out in the member states.”

However, when sent for approval, the administration in the European Parliament wanted additional words included, and the Contract as finally lodged had article 2 in the following terms:

“The service provider’s duties shall consist in particular of legal and constitutional advise [sic] on matters relating to my activities as an MEP, they shall be carried out in the member states.”

Article 5 of the Contract provided that it “shall enter into force on 1 September 05”, for a maximum duration of 46 months ending no later than June 2009. Article 3 appears initially to have provided for fees at a rate of £7,000 per month from 1 September to 31 October 2005; but the final version was in terms of £7,000 per month from 1 September to 31 October 2005, and £1,900 per month thereafter. Article 4 gave details for payment direct into the Firm’s bank account: and, in fact, amounts paid by the European Parliament under the terms of this contract were paid direct by it to the Firm.

Mr Mote sent a copy of the final version of the Contract to the Appellant on 15 October 2005, indicating that “Brussels” had wanted the additional wording, to which Mr Mote had agreed; and that is the version to which they worked. In addition to the Contract itself, Mr Mote completed a form entitled “Application for the Secretarial Assistance Allowance” pursuant to article 14 of PEAM Rules, which confirmed the conclusion of the Contract and its terms, which was countersigned by the Appellant and lodged with the European Parliament with the Contract.

In October 2008, Mr Mote and the Appellant on behalf of the Firm signed an annex to the Contract (“the Annex”), changing the terms of the Contract to add a one-off payment of £14,500 plus VAT (£17,037.50) in respect of “… professional charges in connection with advice on matters relating to legal and constitutional issues in members states with regard to the implications of the [European Court] decisions on members states and national interests”, in the period 1 June to 31 October 2008. The money was received by the Firm in December 2008, and was allocated to the ledger for the work done on the claims brought by Ms Rance, where it was described as “Monies paid on account”. It was eventually allocated to satisfy invoices of the Firm relating to the claims of Ms Rance and Mr Wesson, which, as the Appellant said, “were the two main outstanding… matters that [the Firm] worked on in December 2008 and the months that followed” (paragraph 6.22 of his 12 January 2017 Statement).

In his 12 January 2017 statement (prepared for the SDT proceedings), the Appellant helpfully sets out the matters funded by the monies the Firm received from the European Parliament pursuant to the Contract including the Annex, as follows:

For the sake of completeness, I should say that, in July 2009, the Firm also settled Mr Mote’s outstanding council tax liability of nearly £2,500 out of monies it had received from the European Parliament pursuant to the Contract, which the tribunal found was simply a mistake on the Appellant’s part. When discovered in 2013, the monies were reallocated by the Firm to the charges outstanding on the claim brought by Mr Wesson.

The session of the European Parliament that began with the elections in June 2004 ended in June 2009. Mr Mote then ceased being an MEP. The Firm received its last payment from the European Parliament that month.

From 2013, Mr Mote was the subject of a police investigation into allegations that expense claims he had made as an MEP were fraudulent. He was duly charged with twelve counts of fraud, obtaining a money transfer by deception, acquiring criminal property, theft and false accounting, involving about £400,000 of expenses. Count 5 (obtaining a money transfer by deception) alleged that, between 1 August 2005 and 30 June 2009, he had dishonestly obtained for the Firm money transfers to the total value of £97,531.42, by making false representations. Count 6 (fraud) concerned the money claimed in the Annex. Following a trial in the Crown Court at Southwark in May 2015, he was convicted on each count; and, on 13 July 2015, he was sentenced to a total of six years’ imprisonment.

The Appellant was also the subject of the police investigation for his part in the matters I have described, but, on 13 October 2014, he was told that it was not intended to bring any charges against him.

However, in the light of concerns in respect of the Appellant’s conduct in relation to the matters in which he acted for Mr Mote, an investigation was commissioned by the SRA. The investigation commenced on 13 January 2014, and resulted in an investigation report dated 24 December 2014 to which the Appellant responded. On 26 January 2016, the SRA referred the conduct of the Appellant to the SDT.

It did so in the form of four allegations. Allegations 1, 2 and 4 each alleged that the Appellant was involved in the production of essentially false documents to support Mr Mote’s expenses claims. Allegation 1 was that, in order to induce the European Parliament to pay Mr Mote for legal services supplied to him, the Appellant had entered into the Contract knowing that it did not state the true agreement between the Firm and Mr Mote, i.e. it was sham. Allegation 2 was that, again in order to induce the European Parliament to pay Mr Mote for legal services supplied to him, the Appellant had entered into the Annex which, as he knew, did not correctly describe the legal services to which the Annex and associated invoice related. Allegation 4 was that the Appellant had intentionally made false statements regarding the amounts invoiced to Mr Mote under the Contract, intending that the statements be provided to the European Parliament to support Mr Mote’s expenses claim.

The gist of Allegation 3 was somewhat different, namely that the Appellant permitted the Firm to use money he knew had been provided by the European Parliament under the machinery of the Contract for purposes that he knew or suspected were not “authorised by the contract”. The allegation was in the following terms:

“The [Appellant] permitted his firm to use money which had been provided by the European Parliament to fund the provision of legal services under the [Contract] for purposes that were not authorised by that contract. The [Appellant] knew or suspected that the purposes were not so authorised and thereby:

(1)

(as regards conduct prior to 1 July 2007) acted in a way that compromised or impaired, or was likely to compromise or impair, his integrity and his good repute, and the good repute of his profession, in breach of paragraphs 1(a) and (d) of the Solicitors’ Practice Rules 1990; and

(2)

(as regards conduct from 1 July 2007) failed to act with integrity, and behaved in a way that was likely to diminish the trust the public placed in him and in the profession, in breach of Rules 1.02 and 1.06 of the Solicitors’ Code of Conduct 2007; and

(3)

breached Rule 22 of the Solicitors’ Accounts Rules 1998.”

Rule 1 of the Solicitors’ Practice Rules 1990, made under Part II of the Solicitors Act 1974 and section 9 of the Administration of Justice Act 1985, so far as relevant, provided that:

“A solicitor shall not do anything in the course of practising as a solicitor, or permit another person to do anything on his or her behalf, which compromises or impairs or is likely to compromise or impair any of the following:

(a)

the solicitor’s independence or integrity;

…

(d)

the good repute of the solicitor or of the solicitor’s profession…”

As from 1 July 2007, they were replaced by rule 1 of the Solicitors’ Code of Conduct 2007, which, so far as relevant, under the heading “Core duties”, provided:

“1.02

Integrity

You must act with integrity.

…

1.06

Public confidence

You must not behave in a way that is likely to diminish the trust the public places in you or the profession.”

There appears to be no difference in substance between these particular rules (or, indeed, between them and the current Principles 1.2 and 1.6 of the Solicitors Regulation Authority Principles 2011, which replaced the corresponding rules in the Solicitors’ Code of Conduct).

“Integrity”, for these purposes, was recently considered in Wingate and Evans v Solicitors Regulation Authority [2018] EWCA Civ 366, especially at [93]-[103]. Jackson LJ (with whom Sharp and Singh LJJ agreed), approving the approach taken by the Financial Services and Markets Tribunal in Hoodless v Financial Services Authority [2003] UKFSM FSM007 and this court (Sir Brian Leveson P and Carr J) in Williams v Solicitors Regulation Authority [2017] EWHC 1478 (Admin), distinguished the concept of “integrity” from that of “dishonesty”. Whereas honesty is a basic moral quality expected of all members of society, integrity expresses the higher objective standards which society expects from professional persons and which a profession expects from its own members.

Rule 22 of the Solicitors Accounts Rules 1998 concerned circumstances in which money could be withdrawn from a client account.

The allegations were considered by a panel of the SDT (Mr J A Astle (Chair), Mr G Sydenham and Mr S Marquez) (“the panel”) at a hearing on 10-14 July 2017, at which Mr Coleman QC represented the SRA and Gregory Treverton-Jones QC appeared for the Appellant. At the end of the hearing, the panel announced that it found Allegations 1, 2 and 4 not proved, but Allegation 3 largely proved as described below; and it ordered the Appellant to be struck from the Roll of Solicitors and that he pay the SRA’s costs in the sum of £90,224.44, a sum varied to £86,782.44 by an order dated 27 July 2017. The panel handed down its reasons in a determination dated 13 September 2017.

The panel found Allegation 3 proved in respect of three matters, as follows. The references to paragraphs below are to the panel’s determination.

Therefore, in relation to each of these three matters, the panel considered three questions:

Consequently, in respect of these three matters, the panel found that the Allegation 3 had been proved, although not the allegation of dishonesty in relation to the first and second matters. The panel were unpersuaded that there had been any breach of Rule 22 of the Solicitors’ Accounts Rules 1998, but that there had been, as regards conduct prior to 1 July 2007, breaches of paragraphs 1(a) and (d) of the Solicitors Practice Rules 1990; and, as regards conduct post-1 July 2007, breaches of Rules 1.02 and 1.06 of the Solicitors’ Code of Conduct 2007.

Having considered the Guidance Note on Sanctions (December 2006), the panel concluded that the only appropriate sanction was that the Appellant be struck off the Roll of Solicitors. He was also ordered to pay the SRA’s costs in full.

Under section 49 of the Solicitors Act 1974, an appeal against the SDT panel’s ruling lay as of right. The Appellant lodged a notice of appeal in this court on 5 October 2017.

Before us, he relied upon four, related grounds of appeal, some of which have several strands, which I will consider in turn. The focus of the debate before us was on Grounds 1 and 2, with which I will deal in some detail, before turning more briefly to Grounds 3 and 4.

These two grounds can conveniently be dealt with together.

Allegation 3 was that the Appellant had permitted the Firm to use money which had been provided by the European Parliament for purposes “not authorised by [the Contract]”. Mr Lakha submitted that this allegation was unclear and legally incoherent; but, whatever its precise meaning, the SDT panel erred in concluding that it had been made good.

First, Mr Lakha submitted that the panel had misconstrued the Contract. The Contract was an agreement between the Firm and Mr Mote in the form of a general solicitor’s retainer which, on its true construction, authorised the Appellant to act on Mr Mote’s behalf in respect of any bona fide legal services. Article 1 indicated that the Contract covered all matters “necessary to promote and defend the Member’s interests…”; and article 2, which defined the Firm’s services under the Contract to consist “in particular of legal and constitutional advise on matters relating to [Mr Mote’s] activities as an MEP” (emphasis added), underscored the fact that the services covered by the Contract were unrestricted and notably were not restricted to services relating to Mr Mote’s activities as an MEP. The services provided by the Firm were all within the scope of “legal advice”; they were all bona fides; thus, they were all fell within the scope of the Contract, as properly construed.

But, in any event, Mr Lakha contended that the panel erred by proceeding on the basis that, if certain legal costs failed to fall within the scope of the Contract, they necessarily fell outside the scope of legitimate reimbursable expenses under the relevant European Parliament expenses policy. The panel wrongly elided the simple question of construction of the Contact to which I have referred, with the entirely different question of the scope of the European Parliament’s expenses policy.

Mr Lakha further submitted that, given that, in finding Allegations 1, 2 and 4 were not proved, the panel could not have been satisfied that the Appellant had induced the European Parliament to pay for legal services supplied, it was clearly not satisfied to the requisite standard of proof that the Appellant was aware of the Mr Mote’s fraud and criminal wrongdoing in making dishonest expense claims. There was tension between these panel findings. In fact, Mr Mote never provided the Appellant with the European Parliament rules or policy with regard to the scope of recoverable expenses, merely telling the Appellant that he had the benefit of an indemnity for expenses. The Contract was between the Firm and Mr Mote – it made expressly clear that the European Parliament was not a party to it – and, under it, Mr Mote was liable to the Firm for the costs of any legal services provided. The Appellant had no knowledge or interest in the terms of any indemnity in respect of those costs. The proper scope of reimbursable expenses is notorious as a field for ambiguity; but the Appellant was under no obligation to make further enquiries about the scope of any indemnity to ensure that the costs of the legal services provided and billed fell within it.

However, I am unpersuaded by those submissions.

Mr Coleman (who appeared for the SRA before the SDT panel), said that, before the panel, it was common ground that (a) the Contract, which had been approved by the European Parliament under its expenses system, provided the only basis on which money provided by the European Parliament could properly be used to pay the Firm’s bills; (b) the legal services funded by the European Parliament through the mechanism of the Contract were restricted to those relating to Mr Mote’s activities as an MEP; and (c) it would have been improper for the Appellant to allow the Firm to use the money provided by the European Parliament under the Contract to fund matters that he knew or suspected fell outside its scope. Thus, the panel proceeded on the basis that the issues in relation to Allegation 3 were whether certain matters funded by the European Parliament under the Contract were outside the scope of the Contract and, if they were, whether the Applicant knew or suspected that to have been the case. Those were the principal issues that the panel considered and determined in their decision. That that was so is apparent from the panel’s reasons (see, e.g., paragraph 34.5).

Indeed, paragraph 8 of the Appellant’s Amended Response to the Amended Rule 5 Statement dated February 2017 appears to confirm that; and, in paragraph 7.2 of the Appellant’s statement dated 12 January 2017, the Appellant expressly accepted that:

“…[T]he Contract contemplated the provision of legal and constitutional advice to [Mr Mote], in respect of matters relating to his activities as an MEP”.

The key issue was therefore not the scope of the Contract, but whether the Appellant’s response to the allegation – namely that he considered that each of the matters did relate to Mr Mote’s activities as an MEP, because each raised particular European or constitutional arguments and/or all the work fell within that scope because Mr Mote believed that all the proceedings taken against him were politically motivated – was sufficiently accepted.

However, even if it were necessary to revisit the construction issue – as the grounds urge us to do – it was in any event inevitable that the panel would make findings in line with the concession made by the Appellant and the agreement between the parties that Mr Coleman described. As I understand it, during the course of the debate before us, Mr Lakha accepted that was so. But, if and insofar as he did not fully concede the issue before us, with respect to the grounds of appeal and Mr Lakha’s skeleton argument that suggested otherwise, it is simply not arguable either that the scope of the Contract went beyond legal and constitutional advice on matters relating to Mr Mote’s activities as an MEP, or that the Appellant considered that it did, for the following reasons.

It is clear from the face of the Contract that the document is not simply a general solicitor’s retainer. On the contrary, the standard form is clearly a document generated by the European Parliament as a “framework” contract (terminology used in the Contract itself), for the purposes of pre-authorising the provision of services to an MEP in performing his duties as an MEP which the Parliament would reimburse as such pursuant to their expenses policy. Paragraph 13 of Mr Lakha’s skeleton argument accepts as much. On that basis, even without consideration of the precise terms of the Contract, it would be difficult to see how legal services that did not relate to Mr Mote’s activities as an MEP could ever properly be funded with money provided by the European Parliament.

However, that they cannot be so funded is unambiguously confirmed by the terms of the Contract.

Contrary to Mr Lakha’s submissions, the wording of article 1 does not assist the Appellant on this issue. The contract provided that, in carrying out its obligations, the service provider (i.e. the Firm) was “completely free and independent”. That article merely made clear that that was subject to a requirement that the provider perform its services as necessary to promote and defend the Member’s interests. But it was clearly article 2 which defined the scope of the services to be provided.

As I have indicated, article 14(5) of the PEAM Rules required a contract for the provision of services to an MEP which he intended to reclaim by way of business expenses to include, amongst other things, “a description of the services to be provided”. In the standard form contract that was provided in article 2, headed “Service provider’s area of responsibility and activities”. In the final version of the Contract, that read: “The service provider’s duties shall consist in particular of legal and constitutional advise on matters relating to [Mr Mote’s] activities as an MEP…”, the words after “advise”, to the Appellant’s knowledge, being inserted by the European authorities by way of clarification before they would approve it. Although the phrase “in particular” often means that that which immediately follows is not an exclusive description but merely by way of especial example, here it can have no such connotation. The description that follows was originally of “legal and constitutional advise…”; and, as Mr Lakha accepted, the Firm, as solicitors, only provides such advice. Given the drafting history, it is clear that “in particular” is not intended to govern “… matters relating to my activities as an MEP”. In any event, it is noteworthy that “in particular” is part of the standard printed form, whilst “legal and constitutional advise [sic]…” was written in by Mr Mote.

Whilst I consider it is clear from both the nature and wording of the initial draft of the Contract that only advice provided to Mr Mote in performing his duties as an MEP was included within its scope, the matter is put beyond all possible doubt by the words “… on matters relating to my activities as an MEP”, added in the final version of the Contract at the insistence of the European authorities by way of clarification or confirmation. In my view, those words make explicit what was already implicit in the Contract, i.e. that the scope of the Contract was restricted to such matters. In all the circumstances, the (printed) phrase “in particular” can properly – and, on the true interpretation of article 2, clearly must – be read out. Article 2 does not provide examples but describes the services covered by the Contract.

The Appellant was at all relevant times well aware of the function of the Contract, namely that it was a document generated and approved by the European authorities as a pre-authorisation, under which the Firm’s legal costs incurred by Mr Mote on matters relating to his activities as an MEP would be reimbursed by direct payment to the Firm by the European Parliament. He was, in particular, aware that legal services funded by the European Parliament under this arrangement were restricted to those relating to Mr Mote’s activities as an MEP (see paragraph 7.2 of his statement dated 12 January 2017, quoted at paragraph 68 above). He was similarly aware that they could not be used to fund other, personal matters upon which the Firm advised and represented him. As I have indicated, during the course of the hearing before us, as I understand it, Mr Lakha conceded that to have been the case. He was right to do so. In my judgment, the scope of the services covered by the Contract, as set out in article 2, is unarguably and unambiguously clear; as is the fact that, at all relevant times, the Appellant understood that to be the case.

The other strands of these grounds fail on essentially the same basis. Allegation 3 was not in any way unclear or lacking in coherence: the reference in it to “purposes not authorised by the contract” is clearly a reference to matters that did not fall within the scope of article 2, and thus (as the purpose of the Contract was to identify legal services which the European Parliament pre-authorised and would reimburse the costs) to matters not “authorised by the Contract” for such reimbursement. The intricacies of the European Parliament’s policy on reimbursement of expenses, such as they might be, are not to the point: the (pre-)authorisation, the costs of which would be reimbursed by the Parliament, was for those services described in article 2. That was both adequate and sufficient: it did not call for any investigation by the Appellant into any underlying policy or guidance (although it is not suggested that matters falling within that description do not fall within the scope of reimbursable expenses under European rules). Therefore, the panel did not – as Mr Lakha submits it did – err in eliding the question of construction of the Contact with the different question of the scope of the European Parliament’s expenses policy.

Nor, insofar as it is suggested, am I persuaded that there is any “tension” between the panel’s findings in relation to Allegations 1, 2 and 4 (not proved) on the one hand, and its finding in relation to Allegation 3 (proved) on the other. Mr Lakha did not suggest that the conclusions were legally inconsistent. They clearly are not. Allegations 1, 2 and 4 asserted that the Appellant was involved in the production of false documents to support Mr Mote’s expenses claims. Allegation 3 did not require the panel to find that the Appellant knew or suspected that Mr Mote was making dishonest claims for expenses. Simply because the panel was not persuaded to the criminal standard that the Appellant was aware of or complicit in Mr Mote’s wrongdoing in any of the ways identified in Allegation 1,2 and 4, that did not exhaust the question of the Appellant’s complicity in Mr Mote’s wrongdoing, or his responsibility in terms of professional conduct. Allegation 3 was to the effect that he had permitted the Firm to use money provided by the European Parliament under the Contract to fund legal services for purposes not authorised by that agreement (in the sense that I have described above), in circumstances in which he knew or suspected that they were not so authorised. The focus of this allegation was different from that in Allegations 1, 2 and 4. There is no incongruity or tension between the findings and conclusions made in respect of these various allegations.

For those reasons, I do not find Grounds 1 or 2 made good.

Insofar as the panel found that the Appellant “suspected” that the Contract did not authorise the provision of certain legal services, Mr Lakha submitted that (i) it did not grapple with the meaning of “suspicion” (i.e. a more than fanciful possibility that the relevant facts exist: see, e.g., R v Da Silva [2006] EWCA Crim 1654 at [16] per Longmore LJ, and Practice Note: K Limited v National Westminster Bank plc [2006] EWCA Civ 1036), and, in particular, it did not identify the facts upon which the suspicion it found was based; and (ii) it did not go on to consider whether the Appellant knew or suspected, not that the relevant legal services fell outside the scope of the Contract, but that the legal services were not authorised by the European Parliament.

Mr Coleman indicated that, before the panel, there was no issue in relation to the meaning of “suspicion”, which both parties treated as an ordinary word which, in the context of professional conduct with which it was concerned, the panel was capable of understanding without any further assistance. But, in any event, this issue had no relevance to the panel’s conclusions concerning the work done on the claim by Ms Rance, as the panel’s findings were not based on suspicion but the knowledge of the Appellant that the work was not covered by the Contract. In any event, Mr Coleman submitted with force that the panel did make intermediary findings in relation to the Court of Appeal (Civil Division) proceedings (i.e. findings (i) as to the nature of the proceedings and the issues raised, (ii) as to the absence of any mention in the Firm’s bill narratives to the Contract or to Mr Mote’s role as an elected representative, (iii) as to the fact that Mr Mote had not applied to have the proceedings struck out on the ground that they were politically motivated and thus an abuse of process, and (iv) that it seemed to the panel that the Appellant had dissembled in relation to his belief as to whether or not the proceedings were covered by the Contract (see paragraph 34.18 of the panel’s determination)) and in relation to the European Court before 1 September 2005 (as to (i) the Appellant being an experienced solicitor who had handled fraud cases and knew the importance of the wording of contracts, and (ii) that it was not arguable that the Contract covered work already done by the time of its commencement date (see paragraphs 34.26-34.27 of the panel’s determination)) that at least adequately underpinned its conclusion that the Appellant had a suspicion that those matters were not within the scope of the Contract.

Again, for the reasons compellingly set out by Mr Coleman, I am unconvinced by Ground 3. The ground has no relevance to the costs of the defence of Ms Rance’s claim, where the panel found knowledge not suspicion. In respect of the other two matters, in my view, it was perfectly open to the panel to proceed on the (apparently agreed) basis that “suspicion” and its derivatives are ordinary words that, in this context, do not require any particular legal consideration. In any event, for the reasons given by Mr Coleman, the panel did identify facts – upon which the suspicion that they found in respect of the Court of Appeal (Civil Division) and the European Court proceedings prior to 1 September 2005 was founded – that were more than adequate.

Having found that the various legal services they had identified were not within the scope of the Contract, the panel merely had to consider whether the Appellant suspected (if he did not know) that they were not within that scope. It was unnecessary for them to consider whether he suspected that Mr Mote was acting dishonestly or, as a distinct issue, whether he suspected that the legal services were not authorised by the European Parliament, as Mr Lakha suggested.

For those reasons, this ground fails.

Although the panel considered the question of the true construction of the Contract – and whether the relevant legal services fell outside it – Mr Lakha submitted that it did not consider the relevant questions, namely (i) whether it was arguable that the Contract permitted payment (a question identified by the panel at paragraph 34.26 of its determination, but never answered by the panel); and (ii) whether it was sure to the criminal standard that the Appellant knew or suspected that it was not arguable that those legal services fell outside the Contract.

Mr Coleman submitted with considerable force that in substance the panel found that it was not arguable that the costs of any of the three identified legal services fell within the Contract. Indeed, the panel’s conclusion in relation to the Ms Rance claim – that the proceedings related to a matter that pre-dated Mr Mote’s election as an MEP which was “completely unrelated” to his role as an MEP, such that it was “blindingly obvious” that these matters were outside the Contract – was in the clearest terms.

However, there is an even more compelling answer to this ground, also given by Mr Coleman, namely that the panel was not required to consider either of these nuanced questions. The panel was required to consider and determine the true scope of the Contract, including whether the identified legal services fell within that scope; and then whether, on the criminal standard of proof, the Appellant knew or suspected that they did not. They did not have to determine whether it was arguable that the services fell outside the scope of the contract – let alone whether it was sure to the criminal standard that the Appellant knew or suspected that it was not arguable that those legal services fell outside the Contract. If it was arguable, then that would or may have been relevant to the later issue of whether the Appellant knew or suspected that the payments were not covered; but that was a different issue. In addressing the questions that it did, the panel did not err in law.

This ground too fails.

Finally, I should deal with some matters developed by Mr Lakha before us in his oral submissions, which found no particular place in the grounds or his skeleton argument.

He criticised the panel as erring in law in discounting a matter as “relating to Mr Mote’s activities as an MEP” simply because a European or constitutional argument was not expressly raised or pursued in particular proceedings, although it might have been.

He relied on two examples. First, the privilege/immunity point was raised in the civil proceedings until the appeal before Commissioner Howell, but not in the Court of Appeal. Mr Lakha submitted that the panel erred in concluding that the legal services performed in relation to the Court of Appeal fell outside the Contract simply because the issue was not relied upon in that forum.

However, the Contract was in respect of “legal and constitutional advise on matters relating to [Mr Mote’s] activities as an MEP”. The panel accepted that advice given by the Firm to Mr Mote in relation to proceedings in the privilege and immunity enjoyed by Mr Mote as an MEP was in issue which fell within the Contract. Nevertheless, when that issue was no longer pursued – and there is no evidence that such an issue even coloured the pursuit of the civil appeal to the Court of Appeal – there was no advice that fell within that description. The fact that, had the issue been pursued to the Court of Appeal, some advice would have fallen within the scope of services described in article 2 of the Contract, is not to the point.

Second, Mr Lakha criticised the panel for not concluding that legal work on all the relevant litigation fell within the scope of the Contract, because the uncontested evidence of the Appellant was to the effect that his instructions were that all of it was politically motivated and driven by those who wished to disrupt his work in the European Parliament. Indeed, after the hearing before us, the Appellant issued an application to amend his grounds of appeal to include as a further or alternative ground of appeal that, irrespective of the true construction of the Contract, in the light of those instructions, all the work performed by the Firm was legal advice “relating to” Mr Mote’s activities as an MEP (Ground 1A).

However, the panel clearly had in mind the Appellant’s evidence that Mr Mote told him of his belief that all of the proceedings he faced were related to his role as an elected MEP (see paragraph 27.4 of its determination); and it was clearly entitled to conclude that Mr Mote’s apparent belief to that effect, even if it were expressed to the Appellant (and even if potentially relevant to the Appellant’s state of mind), was insufficient to transfer into scope a matter that would not otherwise have fallen within the Contract.

Finally, in the draft amended grounds of appeal, Mr Lakha sought to rely upon a further ground of appeal in relation to the European Court legal services prior to 1 September 2005, namely that it was “common ground” that the work on these proceedings constituted legal advice “relating to” Mr Mote’s activities as an MEP; and, at paragraph 27.3 of its decision, the panel found that the invoice relating to these services was submitted to the European Parliament. Proposed paragraph 7A.2 of Ground 1A states that that invoice together with the (unchallenged) evidence of the Appellant, “demonstrates that the work done (unarguably connected to [Mr Mote’s] public role) would be paid for by the [European Parliament] and the mechanism for payment was the Contract”.

However, paragraph 27.3 of the panel’s decision does not refer to this point at all. It seems to me that Mr Lakha’s intended reference is to paragraph 27.31; but that does not record a finding of the panel, only a reference to the re-examination of the Appellant during which he was taken to the invoice and “confirmed that the stamp on the documentation looked like that of the public body and it showed it was clearly received by them”. The Appellant’s statement does not assist at all: it merely confirms that the Firm periodically invoiced Mr Mote for the relevant work, and referred particularly to the invoice of 12 July 2005 sent to him.

In my view, it is in any event simply too late for the Appellant now to make this amendment to his grounds – no compelling reasons have been given for why it was not raised earlier – but, in any event, there is nothing to suggest that the panel did not take into account all of this evidence in concluding that the pre-1 September 2005 work on this issue fell outside the scope of the Contract; and that the Appellant suspected that to have been the case.

Consequently, I do not consider there is any force in the additional grounds now sought to be relied upon; and I would refuse the application for permission to amend.

More generally, for the reasons I have given, I am unpersuaded that the panel erred in law in any respect. In my view, it asked itself the right questions; and was entitled to make the findings and the conclusions that it made. Consequently, subject to my Lord Haddon-Cave J, I would dismiss this appeal.

I agree.