Salsbury v Law Society

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Jackson,Lady Justice Arden,the President of the Family Division
Judgment Date25 November 2008
Neutral Citation[2008] EWCA Civ 1285
Docket NumberCase No: C1/2008/0837
Date25 November 2008

[2008] EWCA Civ 1285

[2008] EWHC 889 (Admin)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEENS BENCH DIVISIONAL COURT

Lord Justice Dyson and Mr Justice Lloyd Jones

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The President Of The Family Division

Lady Justice Arden and

Lord Justice Jackson

Case No: C1/2008/0837

Between
The Law Society
Appellant
and
Brendan John Salsbury
Respondent

Geoffrey Williams QC and George Marriott (instructed by Gorvins) for the Appellant

Donald Broatch (instructed by Holden & Co) for the Respondent

Hearing date: 5 November 2008

Lord Justice Jackson
1

This judgment is in four parts:

Part 1. Introduction

Part 2. The facts

Part 3. The Disciplinary Proceedings

Part 4. The Appeal to the Court of Appeal

Part 1. Introduction

2

This is an appeal by the Law Society against a decision of the Divisional Court, whereby that court set aside an order of the Solicitors Disciplinary Tribunal that the respondent be struck of the Roll of Solicitors and substituted an order for three years suspension.

3

The solicitor concerned is Brendan John Salsbury. He was respondent in the original disciplinary proceedings and appellant in proceedings before the Divisional Court. He is now respondent in the present appeal. I shall refer to him as “Mr Salsbury”. I shall refer on occasions to the Solicitors Disciplinary Tribunal as “the Tribunal”. I shall refer to the European Convention on Human Rights as “the Convention”.

4

The statutory provision governing appeals from the Solicitors Disciplinary Tribunal is section 49 of the Solicitors Act 197That section provides:

“(1) An appeal from the Tribunal shall lie –

(a) in the case of an order on an application under Section 43( 3) or 47(1)(d)(e) or (f) or the refusal of any such application to the Master of the Rolls

(b) in any other case, to the High Court…

(4) The High Court and the Master of the Rolls shall have power to make such order on appeal under this section as they may think fit.”

5

After these introductory remarks I must now turn to the facts

Part 2. The Facts

6

Mr Salsbury was admitted as a solicitor in 1984. He practised in Sussex for many years, becoming senior partner of his firm in 2000. In 1999 Mr Salsbury was appointed Clerk to the Trustees of the William Parker school. Mr Salsbury received payment for his services as clerk to the trustees and further payment for any legal work which he undertook on behalf of the trustees. Mr Salsbury undertook such work outside normal office hours and not in his capacity as a partner in the firm of solicitors.

7

The trustees did not operate an efficient system. They relied mainly on trust and word of mouth.

8

Mr Salsbury from time to time made oral requests for payments on account of his fees and such cheques were always given. In November 2000 Mr Salsbury asked the trustees for a payment of £862.50. A cheque was duly given to him in that sum.

9

On 15 November 2000 Mr Salsbury altered the amount of that cheque so as to read £1,862.50. He presented the cheque to his bank and it was duly cleared.

10

Subsequently allegations were made about the manner in which the affairs of the trust had been administered. There was an investigation by the Charity Commission as a result of which a number of trustees resigned.

11

There were also disputes about the amounts of money which had been paid to Mr Salsbury and the circumstances of those payments. Mr Salsbury repaid the sum of £25,000 to the Trust without accepting that he had any liability to do so. There was a lengthy police investigation, as a result of which Mr Salsbury was indicted on 25 counts of theft, forgery, false accounting and obtaining money transfers by deception. Mr Salsbury stood trial at the Croydon Crown Court before Judge Stow QC and a jury between 16 June and 13 July 2006. The result of that trial was that Mr Salsbury was convicted on one count only, namely obtaining a money transfer by deception contrary to Section 15(A) of the Theft Act 1968. This count related to the cheque which Mr Salsbury had altered on 15 November 2000. The sentence imposed by the court on this count was a conditional discharge for 12 months. Mr Salsbury was also ordered to pay £3,000 towards the prosecution costs.

12

When passing sentence Judge Stow said this:

“I appreciate that it is punishment enough for you, a solicitor of the Supreme Court, to find yourself a defendant in a criminal trial being convicted at the end of a fairly lengthy trial of an offence of dishonesty. That of course I take into account. That must constitute very considerable punishment for you.

I also proceed on the basis, given the acquittals on all the other counts, that so far as Count 5 is concerned you were not involved in a deception against the bank in the circumstances where you did not believe that you were entitled to the extra £1,000; I proceed on the basis that, giving you the benefit of the doubt as I feel I should, you added the £1,000 to that cheque in circumstances where, although you considered that you were entitled to it, you did not want to approach the trustees to ask for a further £1,000 or to ask them to countersign or initial any alterations to the cheque because you would have the chore to explain to them how the amount suddenly jumped from £862.50 to £1,862.50. Nevertheless it is plainly an offence which no solicitor should even contemplate let alone commit.

I take into account your background and indeed the financial pressures upon you as Miss Forshaw has pointed out. After a trial lasting around a fortnight with an indictment containing 25 counts and you having only been convicted on Count 5, I am of the view that I can take an exceptional course here, given in particular the punishment which will inevitably fall upon you by reason of the mere fact of conviction.”

13

Those observations of the trial judge carry particular weight because he had heard all relevant evidence over the course of a 4 week trial.

14

Following that conviction both Mr Salsbury and, subsequently, the Sussex Police reported the matter to the Law Society. As a result disciplinary proceedings were commenced.

Part 3. The Disciplinary Proceedings

15

On 14 February 2007 Mr Venables, the adjudicator, decided to refer Mr Salsbury's conduct to the Solicitors Disciplinary Tribunal. The matter came to a hearing before the Tribunal on 18 December 2007. Both the Law Society and Mr Salsbury were represented. The evidence before the Tribunal included the sentencing remarks of Judge Stow, Mr Salsbury's letters to the Law Society explaining his conduct and all other relevant documents. Mr Salsbury admitted that he had been guilty of conduct unbefitting a solicitor but contended that the appropriate penalty was one of suspension rather than striking off. The Tribunal rejected that contention and ordered that Mr Salsbury be struck off the Roll of Solicitors. The Tribunal also made an order for costs in terms which had been agreed between the parties.

16

The Tribunal stated the reasons for its findings as follows:

“25. The Tribunal considered the matters before it with an element of sadness. The Respondent had been guilty of an act of great stupidity when he sought to increase a cheque payable to him by a figure of £1,000.00. The Tribunal accepted the Respondent's explanation that the amended figure was properly the sum due to him but he nevertheless had been convicted of a criminal offence involving dishonesty.

26. The Tribunal recognised that as a result of this act of stupidity the respondent had already suffered a great deal.

27. The Respondent had very properly admitted the allegation, and the matter with which the tribunal had to grapple was the question of the appropriate sanction to be imposed upon the Respondent. The tribunal gave very careful consideration to all of the submissions made on behalf of the Respondent but it had to recognise that the fortunes of an individual did not carry as much weight as the need to protect the good reputation of the solicitor's profession. The solicitors' profession collective reputation for trustworthiness was its most valuable asset and the tribunal concluded that the public's perception of the profession's absolute trustworthiness would be damaged if a solicitor convicted of a criminal offence involving dishonesty were not to be made subject to the ultimate sanction.

28. The Tribunal concluded that it was both appropriate and proportionate to order that the Respondent be struck off the Roll of Solicitors.”

17

Mr Salsbury appealed against the Tribunal's decision to the High Court pursuant to section 49 of the Solicitors' Act 1974. The appeal was heard on 18 March 2008 by the Divisional Court of the Queen's Bench Division, comprising Lord Justice Dyson and Mr Justice Lloyd Jones. The Divisional Court allowed Mr Salsbury's appeal. The court set aside the order for striking off and substituted an order for 3 years suspension.

18

The Divisional Court rejected the contention that the Tribunal had failed to take into account the individual circumstances of Mr Salsbury's case. The Divisional Court rejected the contention that the Tribunal had approached the question on the wrong basis. Nevertheless the Divisional Court concluded that the order made by the Tribunal was excessive and disproportionately harsh; see paragraphs 17 and 23 of the judgment of Mr Justice Lloyd Jones, with whom Lord Justice Dyson agreed. The core reasoning of the Divisional Court was set out in paragraphs 21–23 of the judgment of Mr Justice Lloyd Jones as follows:

“21. However, to my mind, there is force in the submissions...

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