Alastair Brett v The Solicitors Regulation Authority

JurisdictionEngland & Wales
JudgeMr Justice Wilkie,Lord Thomas of Cwmgiedd, CJ
Judgment Date11 September 2014
Neutral Citation[2014] EWHC 2974 (Admin)
Docket NumberCase No: CO/603/2014
CourtQueen's Bench Division (Administrative Court)
Date11 September 2014

[2014] EWHC 2974 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

On appeal from the Solicitors Disciplinary Tribunal

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

and

Mr Justice Wilkie

Case No: CO/603/2014

Between:
Alastair Brett
Appellant
and
The Solicitors Regulation Authority
Respondent

Mr Alastair Brett (Acting in person)

Mr Timothy Dutton QC (instructed by the Solicitors Regulation Authority) for the Respondent

Hearing date: 23 July 2014

Mr Justice Wilkie

Introduction

1

Alastair Brett, a solicitor of the Supreme Court admitted on 15 th October 1975, appeals, pursuant to Section 49 of the Solicitors Act 1974, against a decision of the Solicitors' Disciplinary Tribunal (SDT), dated 6 th December 2013. It followed a hearing held on 5 th December 2013. The SDT decided that Mr Brett should be suspended from practice as a solicitor for 6 months, commencing 16 th December 2013, and that he pay the costs of those proceedings summarily assessed at £30,000.

2

The findings of the SDT, giving rise to that order, were that he was guilty of two breaches of the Solicitors Code of Conduct 2007. Those breaches were: of Rule 1.02, that he failed to act with integrity; and, of Rule 11.01, that he knowingly allowed the Court to be misled in the conduct of litigation. The SDT's reasons are contained in a judgment dated 17 th January 2014, filed with the Law Society on 22 nd January 2014.

3

Mr Brett appears before us as a Litigant-in-Person. He was represented before the SDT by counsel and solicitors. Timothy Dutton QC appeared before the SDT for the Solicitors' Regulation Authority (SRA), which prosecuted the allegations of breach, and he has appeared before us in that capacity.

4

Mr Brett was, until recently, Legal Manager at Times Newspapers Ltd (TNL) a position which he held for over 30 years. He was, in effect, their in-house solicitor.

5

The matters giving rise to the allegations of breach of the code of conduct concerned litigation in the High Court of Justice, Queen's Bench Division, Case No HQ09X02293. The claimant sought an injunction against TNL preventing it from publishing a story revealing him as the author of a blog under the name of "Nightjack". There were two hearings. The first, on the 28 th May 2009, was before Mr Justice Teare and resulted in temporary relief being obtained in the form of undertakings pending a substantive hearing. The substantive hearing was before Mr Justice Eady on the 4 th June 2009. That gave rise to a judgment dismissing the claim for an injunction. On the 12 th June 2009 the judgment was sent in draft form to the parties for the correction of any errors or omissions; it was handed down on 16 th June 2009.

The legal framework

6

Section 46 of the Solicitors' Act 1974 establishes the SDT. One of the tasks of the SRA, the body charged with supervising the professional practice, conduct and discipline of solicitors and clerks, is to present, in an appropriate case, an application before the SDT requiring a solicitor to answer allegations of breaches of the Solicitors' Code of Conduct (Section 47 (1) (b)).

7

The SDT, on the hearing of any such application or complaint, has the power to make such orders as it may think fit including, by Section 47 (2) (b), the suspension of that solicitor from practice, indefinitely or for a specified period, and, by Section 47(2) (i), the payment of the costs in such amount as the Tribunal may consider reasonable.

8

Section 49 provides for an appeal to the High Court. The powers of the High Court are:

"4) The High Court … shall have the power to make any such order on an appeal under this section as (it) may think fit."

9

It is common ground that the approach this court takes on hearing an appeal pursuant to Section 49 is that it will only allow an appeal if the SDT misdirected itself as to the law or the court concludes that the SDT, despite having seen and heard the evidence, and after according the SDT an appropriate measure of respect, reached a decision which was wrong ( Langford v The Law Society [2002] EWHC 2802 at paras 14 and 15, and Salsbury v The Law Society [2009] 1WLR 1286 at paragraph 30).

10

The Solicitors' Code of Conduct 2007, at Rule 1, contains "core duties". Rule 1.01 provides:

"You must uphold the rule of law and the proper administration of justice.

1.02

"Integrity

You must act with integrity"

11

The Code of Conduct contains guidance. Its guidance to Rule 1 provides as follows:

"…

2 The core duties perform a number of functions:

a. They define the values which should shape your professional character and should be displayed in your professional behaviour.

b. They form an overarching framework within which the more detailed and more context specific rules in the rest of the code can be understood, thus illuminating the nature of those obligations and helping you to comply.

c. The core duties can help you to navigate your way through those situations not covered in the detailed rules, as no code can foresee or address every ethical dilemma which may arise in legal practice.

d. The core duties are fundamental rules. A breach may result in the imposition of sanctions.

3. Where two or more core duties come in to conflict, the factor determining precedence must be the public interest, and especially the public interest in the administration of justice, compliance with the core duties, as with all the rules, is subject to any over riding legal obligations. …"

12

In respect of Rule 1.02, the guidance says as follows:

"6. Personal integrity is central to your role as the client's trusted advisor and must characterise all your professional dealings – with clients, the court, other lawyers and the public."

13

Rule 11 of the Code of Conduct concerns litigation and advocacy. Rule 11.01 is entitled "deceiving or misleading the Court". It provides as follows:

"(1) You must never deceive or knowingly or recklessly mislead the court"

14

The guidance in the Code of Conduct concerning Rule 11 provides as follows:

"….. 12 Rule 11.01 makes a distinction between deceiving the court when knowledge is assumed and misleading the court which could happen inadvertently. You would not normally be guilty of misconduct if you inadvertently mislead the court. However if, during the course of proceedings, you become aware that you have inadvertently misled the court, you must, with your client's consent, immediately inform the court. If the client does not consent you must stop acting. Rule 11.01 includes attempting to deceive or mislead the court

13 You might deceive or mislead the court by for example:

a. submitting inaccurate information or allowing another person to do so;

c. calling a witness whose evidence you know is untrue…."

It is to be observed that there is no further guidance on the distinctions, within Rule 11.01, between deceiving the court and knowingly or recklessly misleading the court.

The underlying facts.

15

There was no dispute between Mr Brett and the SRA as to the underlying facts upon which the SDT was invited to rule. They are, in so far as is relevant and in summary form, as follows.

16

Until early 2009 DC Horton (RH) a constable with the Lancashire Constabulary published an internet blog under the pseudonym "Nightjack". It was an anonymous chronicle of his life as a police officer. It acquired a high public profile. It attracted the Orwell Prize for Journalism in April 2009 when the author was still anonymous.

17

On 20 th May 2009 Patrick Foster (PF), a 24 year old junior reporter at The Times, told Mr Brett, in his role as legal manager, that he had identified "Nightjack" as RH by gaining unauthorised access to RH's private email account.

18

This information was given to Mr Brett in a one to one conversation in which PF asked if they could talk "off the record" as he needed legal advice. PF claimed that RH was using confidential police information on his blog and his activities were prima facie a breach of police regulations. As such, PF felt there was a strong public interest in exposing RH and in publishing his identity. When Mr Brett asked how PF had identified RH he was told that it was as a result of unauthorised access to Nightjack's email account.

19

Mr Brett told PF that what he had done was totally unacceptable. The story was unpublishable, from a legal perspective, if it was based on unlawfully obtained information. It was "dead in the water" unless the same information could be obtained through information in the public domain.

20

PF told Mr Brett that he thought that he could identify Nightjack using publicly available sources of information. PF was told that, even if he could do so through totally legitimate means, he would have to put the allegation to RH before publication.

21

PF sought to verify that RH was Nightjack by a process of deduction known as "jigsaw identification" using publicly available information. On 30 May 2009, PF sent an e-mail to Mr Brett stating that he "had cracked it and could do the whole lot from publicly accessible information".

22

In the meantime Mr Brett telephoned a junior barrister, AE, seeking advice as to whether a crime had been committed. He was advised that, potentially, a crime, contrary to the Data Protection Act, had been committed but that there might be a Public Interest defence.

23

On 27 th May 2009, PF contacted RH informing him that The Times was planning to publish an article exposing him as Nightjack. RH immediately instructed solicitors to commence High Court proceedings for an...

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