Salsbury v Law Society
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LLOYD JONES,LORD JUSTICE DYSON |
| Judgment Date | 18 March 2008 |
| Neutral Citation | [2008] EWHC 889 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2008 |
| Docket Number | CO/11565/2007 |
[2008] EWHC 889 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Dyson
Mr Justice Lloyd Jones
CO/11565/2007
Mr D Broatch (instructed by Holden & Co) appeared on behalf of the Claimant
Mr G Marriott (instructed by Gorvins) appeared on behalf of the Defendant
(Approved by the court)
This is an appeal by Brendan John Salsbury pursuant to section 49 of the Solicitors Act 1974 against the decision of the Solicitors Disciplinary Tribunal given on 18th December 2007 ordering that he be struck off the Roll of Solicitors.
Mr Salsbury was admitted as a solicitor in 1984. He trained at a firm in Hastings (Funnell & Perring), where he later worked for 20 years, becoming senior partner in 2000. Between 1999 and 2002 he acted as clerk to the trustees of his old school (William Parker School). The professional work in which he was engaged for the trustees was carried out in a personal capacity and not in his capacity as a partner in his firm. He received a modest annual stipend for his work as clerk to the trustees. However, during this period the school was undertaking extensive renovation works which entailed extra work for the clerk. It appears that the appellant agreed with the trustees that he would be paid separately for this additional work. It was the practice of the appellant to ask the trustees for cheques from time to time on account of his fees. They would write cheques on request. At the end of the year the appellant would submit an account showing what he had been paid. It appears that the trust was not well run. It was later investigated by the Charity Commission and criticised, and a number of the trustees resigned.
On 15th November 2000 the appellant altered a cheque payable to him in the sum of £862.50 so that the amount payable was increased by £1,000 to £1,862.50. The explanation provided by the appellant was that he honestly believed that he was entitled to the extra money for additional work he had done since requesting the cheque, but he did not want to ask the trustees to amend the cheque or write a new one because he wished to avoid explaining why the amount due to him had increased. Indeed, I note that in due course the Solicitors Disciplinary Tribunal accepted the appellant's explanation that the amended figure was properly the sum due to him.
At some point before the end of 2002 a general allegation was made against the appellant that he had received too much money from the trust during his time as clerk. When the allegation was made against the appellant, he resigned all his charitable posts, resigned as deputy coroner for East Sussex, and resigned as a partner in Funnell & Perring in December 2002. He remained for a brief time as an employee of the firm before leaving in July 2003 to join Holden & Co as an assistant solicitor. He remained employed as an assistant solicitor by Holden & Co until he was struck off.
Around this time, on the advice of his solicitors, he made a without prejudice payment of £25,000 to the trust, according to the appellant, in an attempt to avoid any criminal allegations being made. In any event, the matter was referred to the police in August 2003 and the appellant was arrested in November 2003. Following a lengthy investigation, he was charged in 2005. He was indicted on 29 counts of theft, forgery, false accounting and obtaining money transfers by deception. His trial took place at Croydon Crown Court between 16th June 2006 and 13th July 2006 before His Honour Judge Stow QC and a jury. He was found guilty by the jury of one of the counts against him on 13th July 2006, that of obtaining a money transfer by deception contrary to section 15(a) of the Theft Act 1968. That charge related to the cheque which he had altered on 15th November 2000. He was acquitted on the other charges. He was sentenced on 13th July 2006 to a conditional discharge for 12 months and ordered to pay £300 towards the prosecution costs.
In sentencing the appellant, Judge Stow observed that he proceeded on the basis that, so far as this count (count 5) was concerned, he had not been involved in a deception against the bank in circumstances where he did not believe that he was entitled to the extra £1,000. The judge said that he proceeded on the basis that he added the £1,000 to that cheque in circumstances where, although the appellant considered that he was entitled to it, he 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 he would have the chore of explaining to them exactly how the amount suddenly jumped and increased by £1,000. The judge added, nevertheless, that it was plainly an offence which no solicitor should ever contemplate, let alone commit.
An application for leave to appeal against conviction was abandoned following a refusal of leave by the single judge. The appellant reported himself to the Law Society. His case was referred to an adjudicator from the Law Society who decided on 14th February 2006 to impose a number of immediate conditions upon the appellant's practising certificate, and to refer his case to Solicitors Disciplinary Tribunal. That tribunal heard the case on 18th December 2007. The one allegation against the appellant was that he had been convicted of a criminal offence. That was of course admitted.
On behalf of the appellant (the respondent at that hearing) it was submitted that he had considered that he was entitled to be paid the value of the cheque, that the judge had exceptionally imposed a very low sentence of 12 months' conditional discharge, that he had not been employed as a clerk in his capacity as a solicitor or through his firm, that Mr Salsbury had done no more than gain a payment due to him a few days earlier than would otherwise have been the case. It was said that he paid the money back to the trustees not because he had been overpaid but because he had been advised to do so.
It was accepted that Mr Salsbury's actions had been irregular and sloppy, but he had not dishonestly sought money to which he was not entitled. It was also said that the tribunal should take the view that the scope of the dishonesty was at such a low level that it could, in the particular circumstances of the case, take an exceptional course. Reference was also made to the personal mitigation. It was accepted that in such cases personal mitigation is of secondary importance. Nevertheless, reference was made to the very significant consequences which Mr Salsbury had suffered in his private life as a result of these events.
At the conclusion of the hearing, the tribunal ordered that the appellant be struck off the Roll of Solicitors. Its findings were published on 13th February 2008, and they include the following passages:
“24. The tribunal found the allegation to have been substantiated, indeed it was not contested.
“25. The tribunal considered the matters placed 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. 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 solicitors' profession. The profession's 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.”
It is against that decision which the appellant now appeals.
The appellant seeks an order setting aside the tribunal's order and substituting a lesser penalty. It is said that the order for striking off...
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