Barnett v Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 18 May 2016 |
| Neutral Citation | [2016] EWHC 1160 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/437/2016 |
| Date | 18 May 2016 |
[2016] EWHC 1160 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Garnham
Case No: CO/437/2016
Richard Barnett in person
Timothy Dutton CBE, QC and Tetyana Nesterchuk (instructed by Russell Cooke LLP) for the Solicitors Regulation Authority
Hearing dates: 28 th April 2016
Introduction
On 20 July 2015, the Solicitors Disciplinary Tribunal ("the Tribunal") gave its decision on the disciplinary proceedings brought against Mr Richard Anthony Barnett and Mr Anthony Swift by the Solicitors Regulation Authority ("the SRA"). The judgment of the Tribunal was published on 22 December 2015. Mr Barnett now appeals the Tribunal's decision pursuant to Section 49 of the Solicitors Act 1974.
Prior to the hearing of this appeal, Mr Barnett made two applications. The first was for an order of this court that £30,000 of the monies paid by him on order of the Tribunal by way of interim payment of costs should be returned by the SRA to him to enable him to pay for the services of counsel to represent him at this appeal. His second application was for an adjournment of this hearing. I refused both those applications and indicated that I would give my reasons as part of this judgment. I do so now.
The Preliminary Issues
After giving their decision on 20 July 2015, the Tribunal directed that Mr Barnett should make a payment of £115,000 on account of costs. He did not appeal that order. On 22 January 2016, having sought advice from solicitors, he agreed to pay a sum of which included the £115,000. A consent order recording that payment was prepared. That consent order was agreed and signed a month after Mr Barnett had received the reasoned judgment of the Tribunal.
Mr Barnet was not able to identify any jurisprudential basis on which I might make the first order he sought, other than under s49 of the Solicitors Act (the relevant parts of which are set out below). If he was indeed pursuing this application as an appeal there are two procedural hurdles in his way. First, he was seeking to appeal the decision of the Tribunal substantially out of time; second, he was seeking to vary the terms of the consent order. I see no possible grounds on which I could properly justify holding that Mr Barnett can overcome either hurdle. There is no satisfactory explanation for the delay in advancing this ground of appeal and no adequate explanation of why he should be entitled to avoid the consequences of an order to which he agreed.
In any event, as Mr Timothy Dutton QC, counsel for the SRA, points out in his written submissions in response to this application, it will be a rare case where an appeal is allowed against a costs decision of the Tribunal (see Law Society v Adcock [2007] 1 WLR 1096 at [41] and SRA v Spector [2016] 4 WLR 16 at [32]). It was not argued that the Tribunal misdirected itself or reached a decision which was not open to it and I see nothing that makes this case a suitable candidate for such an order.
In any event there seems to me an even more fundamental difficulty with this application, namely the powers of this court. The only potential power which Mr Barnett was able to identify was that provided by Section 49. It is undoubtedly right that on an appeal to this court from the Tribunal this court has power " to make such order… as it may think fit…". But it seems to me implicit in Section 49 that the order of the court is made having heard the appeal, not in advance of it. What Mr Barnett was seeking was an order prior to the hearing of the appeal so as to give him the funds necessary to instruct counsel to conduct the appeal. I see no power in the court to make such an order. Accordingly, that application was refused.
That order effectively rendered the second application academic because the primary, if not the only, reason for Mr Barnett seeking an adjournment was to enable him to instruct counsel. The only reason he says he has not been able to instruct counsel in the past is the lack of funds. It was for that reason that he was seeking to reverse, in part, the order for an interim payment of costs.
In any event, however, I would refuse the application for the adjournment on its merits. Mr Barnet submitted that the case was likely to take more than the one day allocated and that the hearing should be adjourned to accommodate a longer time estimate. However, in my judgment, given the nature of an appeal to this court from a decision of the Tribunal, and the grounds being advanced by Mr Barnett, the proper time estimate was, and always has been, one day.
The parties have been on notice for over two months as to the date listed for this appeal and the time estimate. That gave ample time for both parties to prepare for the appeal. The fact that Mr Barnett says he cannot afford to instruct counsel to represent him on the appeal could not justify an adjournment. In all those circumstances there was no merit in the application for an adjournment and it was refused.
The Facts
The outline history of this case is not substantially in dispute and I can take much of what follows from the SRA's skeleton argument for this appeal.
Mr Barnett was senior partner of Barnett Solicitors, a firm in which he held 98% equity. The SRA's investigation and the subsequent Tribunal proceedings arose out of the involvement of Mr Barnett and his firm with an investment fund known as "The Axiom Fund" ("Axiom"). Barnett Solicitors received in excess of £4.8 million from Axiom which was used for general practice funding and to invest in litigation in New Zealand. Mr Barnett acted both for Axiom and the Fund's investment manager (a firm called "Tangerine") in redrafting the funding documentation. He also acted as a panel manager for other firms who were in receipt of Axiom funds. It was alleged that the receipt of the funds for these purposes was improper and dishonest.
The Tribunal heard nine days of evidence. Witnesses were called by both parties and cross-examined by counsel for the opposing party. Mr Barnett had been represented throughout by counsel of his own choosing, Mr Timothy Nesbitt. Counsel for both parties made detailed written and oral closing submissions. The Tribunal then adjourned over the weekend and until lunchtime of the first day of the following week before giving its decision. It gave reasons for its conclusions some months later in a judgment that ran to 112 pages.
Mr Barnett accepted that in acting for the Fund and for Tangerine and as a panel manager, he placed himself in a position of conflict, or at significant risk of conflict, between his own interests and the interests of his client, and between the interests of his client and his client's investment manager. He also accepted that he failed to act in the best interests of his client, Axiom. However he denied any dishonesty either in this regard or at all.
The Tribunal found that Mr Barnett's use of Axiom's monies for general practice funding was improper and dishonest. They found that he assisted the conduct of Tangerine despite being on notice of the serious risk that the company was acting fraudulently, that he encouraged another solicitor to change information as to that firm's ability to continue without further funding, that he provided false or misleading information to his insurers and that he gave false or misleading information to the SRA in respect of the use of funds advanced specifically for the purposes of the New Zealand litigation. In respect of each relevant allegation the Tribunal found Mr Barnett to have acted without integrity and dishonestly.
The Proper Approach to Appeals Under s49
Mr Dutton developed at some length in his skeleton argument submissions as to the approach the court should adopt on a Section 49 appeal. Although not expressly accepted by Mr Barnett, no arguments to contrary effect were advanced. I have no doubt that Mr Dutton's summary accurately reflects the law.
Section 49 of the Solicitors Act 1974 provides as follows:
" 49(1) An appeal from the Tribunal shall lie to the High Court.
(2) … an appeal shall lie at the instance of the applicant or complainant or of the person with respect to whom the application or complaint was made…
(4) The High Court… shall have power to make such order on an appeal under this section as it may think fit…"
Mr Dutton summarises the effect of case law as to the appropriate approach on such an appeal as follows:
i) The appeal proceeds by way of a review rather than a rehearing.
ii) The court will give appropriate weight to the fact that the Tribunal is a specialist tribunal which had the advantage of hearing the evidence first hand. It will therefore be slow to intervene with the Tribunal's findings unless they were "plainly wrong".
iii) The court may also interfere with the Tribunal's decision if it finds a serious procedural or other irregularity in the Tribunal proceedings.
The authorities referred to by Mr Dutton, namely Shaw v Logue [2015] EWHC 5 at [33] and [62], Benyu v Solicitors Regulation Authority [2015] EWHC 4085 at [49] – [51], and the authorities cited in those cases, provide ample support for the summary Mr Dutton provides. I adopt that approach in considering the merits of this appeal.
The Appellant's Approach to this Appeal
In the light of my decision on the return of interim costs and the application for an adjournment, Mr Barnett represented himself before me. I say immediately that he did so with great charm and no little skill. He spoke largely without notes, and with only the assistance of a friend sitting beside him, for nearly three hours demonstrating, as might be expected, a very considerable...
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Peter Rhys Williams v Solicitors Regulation Authority
...be justified only if those findings are " plainly wrong", or there has been some serious procedural irregularity – see Barnett v SRA [2016] EWHC 1160 (Admin) at [17]; and Law Society v Salsbury [2008] EWCA Civ 1285; [2009] WLR 1286 at [30]. 56 The suggestion is made for Mr Williams that, be......