Abimbola Olatunji Samuel Adetoye v The Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 26 March 2019 |
| Neutral Citation | [2019] EWHC 707 (Admin) |
| Docket Number | Case No: CO/112/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2019 |
[2019] EWHC 707 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: CO/112/2019
Herbert Anyiam (instructed under Direct Access) for the Appellant
James Ramsden QC (instructed by Capsticks LLP) for the Respondent
Hearing date: 20 March 2019
Approved Judgment
On 9 October 2018 the Solicitors Disciplinary Tribunal (SDT) announced certain findings against the appellant; suspended him from practice for two years; and ordered him to pay 12.5% of the SRA's costs with an interim payment on account of £7,184.75. The SDT's written judgment was produced and served on 11 December 2018. The 21 day period in which to file a notice of appeal expired on 2 January 2019, but the notice itself was not filed until 10 January 2019, nine days late. Mr Ramsden QC, for the respondent, argues that permission to file the notice out of time should not be granted.
The reason for the delay was that the SDT judgment was diverted into the appellant's spam folder. It did not come to his attention until 24 December 2019. The intervention of the holiday period meant that he could not instruct counsel until after the New Year. Once he did so the notice of appeal was prepared as soon as possible but ended up being filed nine days late.
In Altomart Limited v Salford Estates (No 2) Ltd [2014] EWCA Civ 1408, [2015] 1 WLR 1825 Moore-Bick LJ at [15] held that an application for permission to appeal out of time is analogous to an application under CPR rule 3.9 and is therefore to be decided in accordance with the same principles. Therefore, I must conduct the three-stage exercise set out in Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906, [2014] 1 WLR 3926 at [24] where Vos LJ stated:
“A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application.
I do not regard the nine-day delay which accrued over the holiday period as being particularly serious. The reason for the delay was the banal failure of the appellant to check his spam folder. I do not particularly criticise him for that. No injustice is caused to the respondent if I proceed to hear the merits of the appeal. Indeed, Mr Ramsden QC has fully addressed both in writing and orally. Accordingly, I grant the necessary extension of time.
Some of the background to this case is found in the decision of the Court of Appeal in Alpha Rocks Solicitors v Alade [2015] EWCA Civ 685 [2015] 1 WLR 4534. In that case the Court of Appeal set aside the decision by Mr Kevin Prosser QC to strike out certain claims made by the appellant's firm in proceedings against a former client Mr Benjamin Alade. In his judgment Lord Justice Vos stated:
“1. This case raises the question of when it is appropriate to strike out a claim on the grounds that the claimant has abused the process of the court. It arises in the context of a claim by a firm of solicitors to recover their costs and expenses from their client in circumstances in which the client alleges that the bills were fraudulently exaggerated or misstated.
2. Mr Kevin Prosser QC, sitting as a deputy judge of the Chancery Division, found that two of the bills presented by Alpha Rocks Solicitors, the claimants and appellants (the “solicitors”), to Mr Benjamin Oluwadare Alade, the defendant and respondent (the “client”), were, in the first case, partly false and deliberately exaggerated, and in the second case, brought on the basis of fabricated documents and of a bill of costs that was known to be inaccurate. The judge made these findings on a strike out application brought under CPR Part 3.4(2)(b) and under the inherent jurisdiction of the court, at which no oral evidence was called, on the basis only of written evidence and the documents.
3. The two bills were in respect of separate pieces of litigation in respect of which the solicitors had acted for the client. The first was a claim in the Central London County Court brought against the client by his brother, Mr Rufus Alade, concerning property in London (the “Rufus claim”), and the second was a claim before the Adjudicator to HM Land Registry brought against the client by his wife, Mrs Catherine Alade, concerning registration of the wife's home rights notice against the title to a London property (the “Catherine claim”). The fees in issue in the bills were £131,514.56 in respect of the Rufus claim (the “Rufus fees” and the “Rufus bill”), and £43,732.50 in respect of the Catherine claim (the “Catherine fees” and the “Catherine bill”).
4. Mr Prosser struck out the solicitors' claims for the entirety of the Rufus fees and the Catherine fees, though he left in place two other claims for smaller amounts of fees. He acknowledged that the step he was taking was draconian, but held that the abuses which he had identified both involved a serious misuse of the court's procedure, rendered further proceedings thoroughly unsatisfactory, and created a serious risk that a fair trial of the claims would be impossible.”
The Court of Appeal reversed that decision, reinstated the claims and sent it for a full trial in the Chancery Division. That took place before Mr Murray Rosen QC who after hearing the evidence seemingly reached much the same conclusions as Mr Prosser QC. I do not know when the trial took place and I have not been given a copy of Mr Rosen QC's judgment. Parts of it are quoted in the judgment of the SDT.
The appellant joined the firm on 11 October 2011. He was not merely a partner but was the Compliance Officer for Legal Practice (“COLP”). He left the firm on 14 November 2014. In the aftermath of the judgment of Mr Rosen QC the SRA commenced disciplinary proceedings against four partners of the firm. It is plain that the culpability of the appellant was much less than those of his co-defendants. This is reflected in the sanctions meted out by the tribunal. The other co-defendants were all either struck off, or in the case of the fourth defendant prohibited from applying for restoration to the Roll of solicitors (he having voluntarily applied to remove his name from the Roll of solicitors).
Essentially, the tribunal made a sequence of factual findings against the appellant where his mental state was found to have been reckless. However, critically, in four instances the appellant was found to have acted without integrity.
It is not surprising that a fundamental principle of professional conduct for solicitors is that they must act with integrity. This is expressed as Principle No. 2 of the SRA's code of conduct. There has been a certain amount of legal debate about what integrity actually means, and a dispute arose between two schools of thought, one of which, including myself, regarded integrity and honesty as synonyms. The other school regarded the concepts as describing different standards of moral conduct. In Williams v SRA [2017] EWHC 1478 (Admin) Sir Brian Leveson P said at [130]:
“Honesty, i.e. a lack of dishonesty, is a base standard which society requires everyone to meet. Professional standards, however, rightly impose on those who aspire to them a higher obligation to demonstrate integrity in all of their work. There is a real difference between them”
That view was approved by Lord Justice Jackson in Wingate & Anor v The Solicitors Regulation Authority [2018] EWCA Civ 366, [2018] 1 WLR 3969 at [100] where he said:
“Integrity connotes adherence to the ethical standards of one's own profession. That involves more than...
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