Ebhogiaye v Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 23 July 2013 |
| Neutral Citation | [2013] EWHC 2445 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/790/2013 |
| Date | 23 July 2013 |
[2013] EWHC 2445 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Haddon-Cave
CO/790/2013
Mr Greg Treverton-Jones QC (instructed by Radcliffes Le Brasseur) appeared on behalf of the Claimant
Mr Geoffrey Williams QC (instructed by Jonathan Goodwin, Solicitor Advocate) appeared on behalf of the Defendant
( )
This is a statutory appeal, pursuant to section 49(1)(b) of the Solicitors Act 1974, against a decision of the Solicitors Disciplinary Tribunal ("SDT"), dated 3 May 2011, concerning the appellant, Susan Ebhogiaye. Appeals to the court under the Solicitors Act 1974 normally proceed by way of review ( CPR 52.11(1)). This court has power to make such order on appeal as it thinks fit (section 49(4)) of the Solicitors Act 1974).
Approach
The approach of the court in such appeals is set out in Salsbury v the Law Society [2008] EWHC 889 (Admin) [2009] 2 All ER 487. The approach is straightforward and can be encapsulated in two short propositions:
(1) Absent error of law, the court will pay considerable respect to the sentencing decision of the Tribunal;
(2) The court will only interfere if, despite paying such respect, it is satisfied that the Tribunal's sentencing decision was "clearly inappropriate".
(See Robinson v Solicitors Regulation Authority [2012] EWCA 2690 (Admin)
Issues
There are two main substantive issues in this appeal: (1) Was the restriction on practice imposed by the SDT on the appellant clearly inappropriate?
(2) Did the SDT follow the proper procedure?
Preliminary matter: appeal out of time
There is a short preliminary matter. The appeal was lodged a few days out of time. I have granted an extension of time, but it is appropriate that I should explain why in a little more detail the reason. The reason for the delay was a little known and unpublicised change in the relevant practice directions, which was overlooked. No point on delay is (rightly) taken by Mr Geoffrey Williams QC for the Solicitors Regulation Authority, the Respondent (the SRA).
The matter came about as follows: the decision of the SDT was made on 15 November 2012; the SDT's written judgment was dated 21 December 2012; it was received by the appellant's solicitors, Messrs Radcliffes Le Brasseur of Westminster, London on 27 December 2012; the notice of appeal was filed on 23 January 2013; and unbeknownst, it appears, to most practitioners, the rules changed on 30 December 2012. Hitherto appeals from the SDT had been governed by CPR 52.4 (as modified by paragraphs 17.3 and 17.4 of Practice Direction 52); and under CPR 52.4 the appellants' notices needed to be filed within 28 days after the statement of reasons (the written judgment) of the SDT were received by the appellant.
As from 1 October 2012, however, the Practice Direction in relation to Part 52 was changed. There is now no equivalent to paragraph 17.3 and 17.4 of Practice Direction 52 and no specific time provision in relation to appeals from the SDT. The result of this is that the normal default rule applies as specified in 52.4, namely that appellants' notices must be filed within 21 days after the date of a Tribunal's decision. The problem with this is that the date of the Tribunal and SDT's decision may be some weeks before the actual reasons and judgment are available, unless the SDT otherwise directs. The appellant's solicitors, I suspect, in common with others, were unaware of this slight but significant change in the rules. The change was not, it appears, adequately publicised.
The attention of the Supreme Court Rules Committee has been drawn to this problem. I am satisfied that if the change in the rules had been adequately publicised, then this appeal would have been lodged by the Appellant in time. I fully accept the explanation of Mr Nigel West, a partner of Radcliffes Le Brasseur, as to why and how this change was overlooked. It was for those reasons that at the opening of this hearing I granted an extension of time. This is a case in which no blame attaches. The delay was very minor and there has been no prejudice. I now turn to the substance of the appeal.
The Substantive Appeal
On 15 November 2012, the appellant appeared before the SDT with her daughter, Sandra Williams, and they admitted jointly ten breaches of the Solicitors Accounts Rules 1998 and the Solicitors' Code of Conduct 2004. In addition, the appellant admitted four further breaches on her own account.
The admitted breaches
The allegations against both the appellant and her daughter, Sandra Williams, jointly, as recorded in the Panel's Reasons, were as follows:
"193. The allegations against both of the Respondents, Susan Ebhogiaye and Sandra Williams were that:-
Allegation 1.1: Contrary to Rule 6 of the Solicitors.
Accounts Rules 1998 ("The 1998 Rules") they failed to ensure compliance with the 1998 Rules;
Allegation 1.2: They withdrew and/or transferred money from client bank account other than as permitted by Rule 22 of the 1998 Rules;
Allegation1.3: Contrary to Rule 23 of the 1998 Rules they allowed "DE", a trainee solicitor, to authorise withdrawals from client bank account;
Allegation 1.4: Contrary to Rule 32(1), (4), (5) and (6) of the 1998 Rules they failed to keep accounting records properly written up;
Allegation 1.5: Contrary to Rule 1.04 and 1.05 of the Solicitors Code of Conduct 2007 ("SCC 2007") they failed to disclose material information to lender clients;
Allegation1.6: Contrary to Rule 1.04, 1.05 and 1.06 of the SC 2007 they involved themselves in transactions that were suspicious and had the hallmarks of mortgage fraud, and in so doing failed to have regard to the warnings issued by The Law Society in the Green Card Warning;
Allegation1.7: Contrary to Rule 1.04, 1.05 and 1.06 of the SCC' 2007 they failed to act in the best interests of their lender clients, failed to provide a good standard of service to lender clients and behaved in a way likely to diminish the trust the public placed in them or in the legal profession in that they failed to complete registrations in a timely manner and/or failed to ensure that priority searches were in place, thereby allowing other interests to be registered with priority over their lender clients;
Allegation 1.8: Contrary to Rule 5.01(1)(a) and 5.03(1) and (3) of the SCC 2007 they failed to exercise appropriate supervision over all staff and failed to ensure the proper supervision and direction of clients' matters;
Allegation 1.9: [Withdrawn]
Allegation 1.10: Contrary to Rule 1.02, 1.06 and 5.01(1)(c) of the SCC 2007 they failed to disclose material information to their professional indemnity insurers;
Allegation1.11: Contrary to Rule 10.05 of the SCC 2007 they failed to comply with professional undertakings."
The allegations against the appellant alone were as follows:
"194. The allegations against the First Respondent Susan Ebhogiaye alone were that:
Allegation 2.1: Contrary to Rule 3.01 of the SCC 2007 she acted when there was, or there was a significant risk of, a conflict of interest;
Allegation 2.2: She withdrew and/or transferred monies from client bank account other than as permitted by Rule 22 of the 1998 Rules;
Allegation 2.3: Contrary to Rule 7 of the 1998 Rules she failed and/or delayed in rectification of breaches.
Allegation 2.4: Contrary to Rule 1.02 and 1.06 of the SCC 2007 she made representations on a professional indemnity insurance proposal form which were inaccurate and misleading."
All ten extant allegations against the appellant and her daughter were admitted, and all four allegations against the appellant alone were admitted.
The appellant and her daughter were represented at the Tribunal hearing by Mr David Morgan, a consultant, and Mr Nigel West a partner of Radcliffes Le Brasseur. The Solicitors Regulation Authority were represented by Mr Jonathan Goodwin. At the hearing on 15 November 2012 detailed submissions were made and evidence before the Tribunal considered. In accordance with the Tribunal's usual practice, at the conclusion of the submissions the Chair of the Tribunal, Mr R Hegarty, who was sitting with Mr AN Spooner and Lady Bonham Carter, indicated that the Panel would retire. Following retirement Mr Hegarty and the Chair said this:
"MR HEGARTY: Well, we've listened to the mitigation for both Respondents; we've read all the testimonials that have been provided for both Respondents; we've taken into account the medical condition of the First Respondent; and we've also taken into account the inexperience of the Second Respondent and the fact that she was on the periphery of most of the allegations against her, but the fact is these are a large number of very serious allegations and we had to take that into account.
The tribunal orders that the Respondent Susan Ebhogiaye of 24a Nelson Road, Greenwich, London, SE10 9JB, Solicitor, be suspended from practice as a solicitor for a period of six months to commence on the 15th day of November 2012 and it further orders that she do pay the agreed cost of and incidental to this application and inquiry fixed in the sum of £22,500. Such costs not to be enforced without leave of the tribunal.
Upon the expiry of the fixed term of suspension referred to above, the Respondent shall be subject to conditions imposed by the tribunal as follows. The Respondent may not practice as a sole practitioner, partner or member of a Limited Liability Partnership, Legal Disciplinary Practice or Alternative Business...
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