Christopher Charles Edward Hayes v Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Mr Justice Haddon-Cave |
| Judgment Date | 23 May 2018 |
| Neutral Citation | [2018] EWHC 1248 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4574/2017 |
| Date | 23 May 2018 |
[2018] EWHC 1248 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Mr Justice Haddon-Cave
Case No: CO/4574/2017
Abbas Lakha QC and Edward Brown (instructed by Blackfords LLP) for the Appellant
Richard Coleman QC (instructed by Solicitors Regulation Authority) for the Respondent
Hearing date: 19 April 2018
Judgment Approved
Introduction
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 Background Litigation
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...
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