Maxine Barnes v Solicitors Regulatory Authority Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cotter |
| Judgment Date | 03 February 2022 |
| Neutral Citation | [2022] EWHC 677 (Admin) |
| Docket Number | No. CO/3497/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 677 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Cotter
No. CO/3497/2021
THE APPELLANT appeared in person.
Ms L. Culleton appeared on behalf of the Respondent.
(Via Cloud Video Platform)
The Appellant challenges by way of Appellant's notice dated 13 October 2021, but lodged at an earlier date, the Solicitors Disciplinary Tribunal's decision in its order of 9 July 2020. That order struck the Appellant off the Roll of Solicitors and ordered her to pay the costs of and incidental to the application and enquiry fixed in the sum of £20,000, that figure representing 67% of the Respondent's costs as claimed. The order was made in accordance with rules 41–43 of the Solicitors (Disciplinary Proceedings) Rules 2019 and section 47 of the Solicitors Act 1974 at the conclusion of a five day hearing which took place between 5 and 9 July 2020.
There is a statutory right of appeal to the High Court against the decision of the Solicitors Disciplinary Tribunal pursuant to section 49 of the 1974 Act, against the substantive decision and/or the order as to costs. There is no requirement for permission. Here the appeal is solely in relation to the order as to costs. At section 9 of the Appellant's notice the Appellant requests that the Solicitors Disciplinary Tribunal's decision be varied and substituted with an order that states that the tribunal considered in all the circumstances it just and proportionate for there to be no order as to costs.
The first point I have to deal with is an informal oral application for an extension of time. The decision was made on 9 July 2021. The statement of reasons was dated 26 August 2021. At sections 10 and 11 of the Appellant's notice she sets out that it is not correct to say that the application was out of time. Time is calculated from the provision of reasons as this is a statutory appeal as set out in CPR PD 52D, para.3.3A. This states that:
“Where a statement of reasons for a decision is given later than the notice of that decision, the period for filing the Appellant's notice is calculated from the date on which the statement is sent to the Appellant.”
Within her notice of appeal the Appellant continues:
“The statement of reasons was dated 26 August 2021 and the applicant's notice was dated 20 September 2021 and received by the court on 22 September 2021, and therefore within the notice period of 21 days.”
The problem with this submission is that 21 days from 26 August 2021 is in fact 16 September 2021, and not, as the Appellant set out in her notice, 20 September 2021. This was pointed out to the Appellant by the Respondent quite properly within correspondence.
The Appellant's explanation, which is consistent with her averment that she was in time, is that she did not count weekends. This is, of course, not correct. So she incorrectly thought that she was in time. She made a mistake.
It is conceded on behalf of the Solicitors Regulation Authority that there is a power to extend, but it is submitted in these circumstances that there should not be an extension.
In a case such a this an application for permission to appeal out of time is analogous to an application under CPR rule 3.9, and is therefore to be decided in accordance with those same principles and the overriding objective. I therefore look to those principles and the three-stage test set out in Denton & Ors v White [2014] EWCA Civ 986 where Vos LJ stated:
“The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case so as to enable [the court] to deal justly with the application…””
In the present case there was a breach which consisted of four days as against a time limit of 21. In my view, that is significant. As for the reason why the default has occurred, it is because the Appellant made the mistake of not including weekends in her calculations and when the time was due. The third stage is to evaluate all the circumstances of the case. The reality of the matter is that there has been no prejudice here and this matter has come on very speedily. In all the circumstances, looking at it in the round and applying the requirement to act justly, I extend time.
There is also an application to adduce new evidence. That application relates to a letter sent by the Appellant's employers, after the tribunal's decision to strike her off from the Roll, informing her of her summary dismissal. Within the grounds of appeal she states that this evidence meets the conditions of Ladd v Marshall. However, in my view, this letter cannot be fresh evidence because it could not have impacted upon the decision of the tribunal as it occurred after the tribunal's decision. It is in reality a change of circumstances post decision. I will address the extent to which it should have been addressed as a possibility by the tribunal in due course.
I now turn to the allegations made against the Appellant by the Respondent, and the tribunal's findings. Given the limited issues in this appeal, I can deal with them shortly. They concern a period when the Appellant was in practice as a solicitor and a director of Furse Sanders Limited (“the Firm”). The relevant chronology is as follows. The Appellant was admitted to the Roll in October 2001. The Firm commenced trading on 5 January 2016. An investigation was commenced on 6 June 2017. The Firm ceased trading on 30 April 2018. It entered a creditors' voluntary liquidation on 14 June 2018. On 27 July 2018 the Appellant was made bankrupt and on 20 September 2018 there was an intervention. In or about September 2018 the Appellant joined another firm, the Will Associates Limited as a solicitor. As I have indicated after the decision of the tribunal, she was subsequently dismissed from this employment.
There were four allegations before the tribunal. The first was that between 30 September 2016 and 15 September 2017 the Appellant caused or allowed the Firm to undertake and charge for work done under a lasting power of attorney for a client A, in the knowledge that the lasting power of attorney had been revoked. The sum involved was £7.302. Dishonesty, alternatively recklessness was alleged in respect of this ground. The tribunal found this allegation proved, including that the Appellant's conduct was dishonest.
The second allegation is that between 13 October 2014 and 30 September 2016, in respect of the same client, client A, the Appellant caused or allowed the Firm to withdraw monies from the client's account in respect of the Firm's costs without providing written notification to client A of the costs incurred, and also in excess of what was agreed, and/or fair and reasonable. The allegation was that client A had been over-charged by over 2000 per cent. The Firm had invoiced for a sum approaching £27,000 when a reasonable costs figure was under £1,000. The tribunal found this allegation proved and that the Appellant had charged for numerous matters where no charge should have been incurred, or the charges which levied were in excess of what was reasonable.
The third allegation was that during and after January 2017, while acting in the estate of JD (Deceased) the Appellant caused or allowed the Firm to raise bills totalling £40,315.80 which exceeded the fixed fee agreed with the estate's executors of a limited sum of £2,000 plus VAT. She also withdrew monies totally nearly £38,000 from the client account, which was in excess of that agreed fixed fee. The tribunal found the Firm had no authority to retain the amount and that a solicitor acting with integrity would not have withdrawn the monies in excess of the agreed fee.
The fourth ground is that between 18 April 2018 and 1 May 2018 the Appellant caused or allowed one or more improper transfers of client money to be made from the Firm's client account to an unregulated entity, First Legal Services Limited, which had the Appellant's husband as sole director. This company did not operate a client account with a consequential lack of protection. The total removed was very substantial and it was moved by 18 separate transfers for which no prior consent had been obtained. The tribunal found that in four of the matters the Appellant was neither the client or a sole client.
The tribunal found these actions breached numerous rules and principles contained in the Solicitors Regulation Authority's Principles 2011 and the accounts rules. Whilst the Appellant had admitted some aspects of the allegations...
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Solicitors Regulation Authority Ltd v Daniel Whittingham
...exceeded the general ambit within which a reasonable disagreement is possible.” 33 In Barnes v. Solicitors Regulation Authority Ltd [2022] EWHC 677 (Admin) Cotter J considered an appeal under section 49 of the 1974 Act in which, as in this case, the SDT's decision on costs was the subject ......