Solicitors Regulation Authority Ltd v Daniel Whittingham
| Jurisdiction | England & Wales |
| Judge | Neil Cameron |
| Judgment Date | 24 November 2023 |
| Neutral Citation | [2023] EWHC 2981 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-001028 |
[2023] EWHC 2981 (Admin)
Neil Cameron KC
sitting as a Deputy High Court Judge
Case No: AC-2023-LON-001028
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Appeal under Section 49 of the Solicitors Act 1974
Royal Courts of Justice
Strand, London, WC2A 2LL
Benjamin Tankel (instructed by Capsticks Solicitors LLP) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 9 th November 2023
The Deputy Judge ( Neil Cameron KC):
Introduction
In this case the Appellant appeals to this court against the judgment of the Solicitors Disciplinary Tribunal (“SDT”) dated 20 th February 2023.
This appeal is made under the provisions of section 49 of the Solicitors Act 1949.
The appeal relates to the costs order made by the SDT. The SDT ordered that the Respondent pay the Appellant costs in the sum of £5,000. In this appeal the Appellant contends that the SDT erred when it ordered that costs should be assessed in the sum of £5,000, and submits that costs should have been awarded in the sum of £22,200.
At the hearing which took place on 9 th November 2023 the Respondent did not appear. The court was informed by Mr Tankel (for the Appellant) that:
i) On 14 th March 2023, the Appellant's notice of appeal was sent to the Respondent by email and post.
ii) On 28 th March 2023 the Appellant sent its skeleton argument to the Respondent by post and email.
At the hearing which took place on the 9 th November 2023 the court was provided with copies of a chain of emails passing between the Appellant's solicitors and the Respondent. Those emails include the following correspondence:
i) On 15 th August 2023 the Appellant's solicitors wrote to the Respondent stating:
“Further to my emails of 14 March and 28 March 2023, the SRA have filed an appeal with the Administrative Court which is now ready to be listed for hearing. As you will note from the attached skeleton argument, the SRA's appeal is solely in relation to the costs awarded to the SRA by the Solicitors Disciplinary Tribunal following the hearing in January 2023.
For convenience, I have attached further copies of my emails attaching these documents. Hard copies of the documents were also sent to your Grove View Apartments address by post. Please do let me know if you would like me to arrange for further hard copies to be sent to you.”
ii) On 23 rd October 2023 the Appellant's solicitors wrote to the Respondent stating:
“Ahead of the hearing listed for 9 November 2023, please find attached the following two bundles, attaching using Mimecast:
1. Draft Core Bundle;
2. Substantive Hearing Bundle.”
iii) The Respondent replied on 23 rd October 2023. In that reply he stated that he was confused as to the purpose of the proceedings.
iv) Later on the 23 rd October 2023, by email, the Appellant's solicitors sent the Respondent copies of emails attaching the documents filed in these proceedings. In that email the Appellant's solicitors stated that the case had been listed for hearing on 9 th November 2023.
v) A further reminder of the time, place and date of the hearing was given in an email from the Appellant's solicitors to the Respondent sent on 8 th November 2023.
At the hearing I decided to exercise my discretion to allow the appeal to proceed in the absence of the Respondent. I approached my decision on the basis that the court must proceed with care when considering whether to allow an appeal to proceed in the absence of a party. I gave my reasons for that decision at the hearing and do not repeat them in full. In essence I relied on the following reasons:
i) The Respondent had been given notice of the proceedings and of the hearing date.
ii) The Respondent replied to an email which included a reference to the hearing date. From that reply I infer that the Respondent was aware of the hearing date.
iii) The Respondent did not indicate whether he intended to attend the hearing.
iv) The Respondent had not engaged with the regulator.
v) There was no good reason not to proceed, and it was right that the hearing should proceed (see paragraphs 19 and 20 of General Medical Council v. Adeogba [2016] EWCA Civ 162).
The Background Facts
The Appellant's application to refer the Respondent's conduct to the Tribunal was issued on 28 September 2022 and served by the Tribunal on the Respondent on 3 October 2022.
The allegations made against the Respondent were:
“1.1 On 7 September 2018, in response to a request by Person S for “ proof of employment”, the Respondent wrote to Person S stating:
“I have attached two pictures of my business card for the law firm I work at. You will also see from my LinkedIn I have worked there since earlier this year”
and attaching two pictures of a business card from Blake Morgan LLP (the “Firm”) bearing the Respondent's name, when he knew he was not, at the material time, in employment as a solicitor either at the Firm or at all. In doing so, he breached Principles 2 and 6 of the SRA Principles 2011, and Outcome 11.1 of the SRA Code of Conduct.
1.2 In September 2018, he misled Person M in a WhatsApp message when he stated that “ the return would be funded from a number of sources. Partly from my monthly salary as a lawyer” when he knew he did not have a salary as a lawyer. He thereby breached Principles 2 and 6 of the SRA Principles 2011.
1.3 On 14 November 2018, he told the SRA that:
“…anyone would have my full name and would, in theory, be able to look me up on LinkedIn, which is what I assume happened. At this point, in theory, and in practice, it seems, it was viewed and interpreted that I worked at Blake Morgan. However…that is only because I do not use LinkedIn often and never have”
when he knew he had expressly drawn Person S's attention to his LinkedIn profile as per Allegation 1.1. In doing so, he breached Principles 2, 6 and 7 of the SRA Principles 2011.”
On 3 October 2022, the Tribunal made directions. Those directions included the following:
“2. The Respondent shall file at the Tribunal and serve on every other party an Answer to the Applicant's Rule 12 Statement by 4.30 p.m. on Monday 31 October 2022. The Answer must state which of the allegations (if any) are admitted and which (if any) are denied. In respect of any which are denied, the Answer must set out the reasons for the denial.
…
6. If at the substantive hearing the Respondent wishes their means to be taken into consideration by the Tribunal in relation to possible sanctions and/or costs, they shall, in accordance with Rule 43(5) SDPR by no later than 4:30 P.M. on Wednesday 28 December 2022 file at the Tribunal and serve on every other party a Statement of Means including full details of assets (including, but not limited to, property) (sic) /income/outgoings supported by documentary evidence. Any failure to comply with this requirement may result in the Tribunal drawing such inference as it considers appropriate, and the Tribunal will be entitled to determine the sanction and/or costs without regard to the Respondent's means. A failure to comply may also cause the consideration of the Respondent's means to be adjourned by the Tribunal to a later date which may result in an increase in costs.”
The Respondent failed to serve an Answer within the time specified, and as a result the matter was listed for a ‘non-compliance hearing’ before a clerk of the Tribunal.
On 8 th November 2022 the Appellant's solicitors sent the Respondent an email to which they attached a template Answer.
The Memorandum of the Non-Compliance Hearing which took place on 10 th November 2022:
i) Records that the Respondent attended the hearing and represented himself.
ii) Records that the Respondent stated that he had not seen the statement and exhibit which had been served pursuant to Rule 12 of the Solicitors (Disciplinary Proceedings) Rules 2019 (“the 2019 Rules” and “the Rule 12 Statement”).
iii) States at paragraphs 4 and 5
“ Applicant's Submissions
4. Mr Collis acknowledged the stated position of Mr Whittingham and the fact that he did not appear to have accessed the Rule 12 Statement. Given the circumstances Mr Collis suggested that Capsticks re-serve the proceedings papers by way of attachment to an email by the close of business. Mr Collis further suggested varied Standard Directions in order to provide Mr Whittingham with an opportunity to file an Answer.
Deputy Clerk Decision
5. Miss Baljit noted the proposed approach advanced by Mr Collis which Mr Whittingham had expressed agreement to. The varied directions advanced did not prejudice the Substantive Hearing date and represented a sensible way forward.”
iv) Varied the standard directions, providing that the Appellant was to re-serve the proceedings papers on the Respondent, and that the time for taking the other steps set out in the directions be adjusted accordingly.
v) The revised directions provided that the Respondent was to file at the Tribunal and serve on every other party an Answer to the Appellant's Rule 12 Statement by 4.30pm on 24 th November 2022.
On 10 th November 2022 the Appellant's solicitors sent the Respondent the hearing bundle for the SDT hearing using the Mimecast system. An electronic message sent from Mimecast to the Appellant's solicitors on 17 th November 2022 showed that a person using the Respondent's email address had accessed the files that had been sent to him using Mimecast.
On 22 nd November 2022 the Respondent sent an email to the Appellant's solicitors in which he set out a response to some of the allegations. This email makes express reference to allegation paragraph 1.1.
In an email dated 6 th December 2022 the Respondent stated:
“I also wasn't able to access the previous link. I tried again a few times thinking access was forthcoming,...
To continue reading
Request your trial