Kaberry v Law Society
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY |
| Judgment Date | 29 January 2001 |
| Neutral Citation | [2001] EWCA Civ 108 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | NO: A2/2000/3253 |
| Date | 29 January 2001 |
[2001] EWCA Civ 108
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(MR JUSTICE STANLEY BURNTON)
Royal Courts of Justice
Strand
London WC2
Lord Justice Tuckey
NO: A2/2000/3253
C/2000/2425
MR SIMON KABERRY, the Applicant in Person
Simon Edmund John Kaberry applies for permission to appeal against two decisions: the first of the Divisional Court on 11th April 2000 refusing him an extension of time to apply for permission to appeal from an order of the Solicitors Disciplinary Tribunal of 27th July 1995 striking him off the roll of solicitors; the second of Burnton J on 4th October 2000 striking out two claims for damages against the Law Society and ordering him to pay costs assessed at about £6,000. 2. There is a long history to this matter which I do not propose to set out in other than the briefest outline in this judgment. It is set out in much greater detail in the judgment of Lord Bingham CJ in the judgment which he gave in the Divisional Court.
The applicant was admitted as a solicitor in 1974. From 1986 he practised in Leeds as Simon Kaberry and Co. In March 1991 he was found guilty of four allegations of conduct unbefitting a solicitor. In March 1994, following a police search of his home and office, the Solicitors Complaints Bureau intervened and took over his practice. He stopped practising as a solicitor and was later made bankrupt.
The Disciplinary Tribunal found nine charges of professional misconduct proved. The applicant did not appear at that hearing his although solicitors had asked for it to be adjourned in a long letter which sets out his reasons for contending that it was not right for the proceedings to go ahead on that day. The Tribunal found that the applicant had behaved dishonestly. He had utilized clients' monies for improper purposes, attempted to disguise what he had done by, for instance, making monthly payments to lenders in respect of mortgages which he had led the clients to believe had been redeemed and which ought to have been redeemed. Huge sums of money had gone missing. The clients would have suffered substantial losses if it had not been for the Law Society's Compensation Fund.
The time for asking for a re-hearing (which the applicant could have done since the matter was decided in his absence) or appealing against the Tribunal's decision, was 14 days. The application to the Divisional Court was served on 3rd June 1999, three years and ten months out of time.
One of the applicant's reasons for not appearing at the hearing or appealing was because he also faced criminal charges arising out of the conduct of his practice. In April 1997 he was acquitted of 14 counts of theft, false accounting and procuring the execution of a valuable security by deception. At the criminal trial medical evidence was put before the jury to the effect that the applicant was not mentally responsible for the conduct alleged against him (which he largely admitted) because of the effect of drugs which had been prescribed as sleeping pills over a number of years by his GP. That evidence showed that these drugs which are in the BDZ group as sleeping pills combined with alcohol were (I quote the applicant's words) “to make him functionally blind, to make him a pawn in the hands of others so as to make him give in to unreasonable demands without demure and to cause him to be amnesic.”
At the hearing in the Divisional Court the applicant was represented by leading counsel and solicitors. Counsel argued that the Tribunal should have adjourned the hearing because of the criminal proceedings which were imminent. The Divisional Court were informed of the medical evidence but the various reports I have seen were not actually put before them. Counsel complained about the conduct of Mr Williams, the solicitor instructed by the Office for Supervision of Solicitors to prosecute the applicant, who it was alleged had agreed with the applicant to support his application for an adjournment and had presented the Tribunal with an unfair, misleading and incomplete picture of the case, omitting among other things the fact that for many months the applicant had been in communication with the relevant body of the Law Society about the state of his practice and had been co-operating with them. Further, at the hearing in the Divisional Court, counsel gave explanations for the delay which had occurred which in summary amounted to the fact that he had been advised by his solicitors not to appeal whilst the criminal charges were pending and there had been other difficulties with his lawyers.
In rejecting the application, the Lord Chief Justice said that the issues in the criminal trial were not the same as those before the Tribunal. He said in the course of his judgment:
“If the Tribunal had heard the medical evidence which the jury heard they might have accepted...
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