Solicitors Regulation Authority v Sovani Ramona James
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jeremy Baker,Lord Justice Flaux |
| Judgment Date | 13 November 2018 |
| Neutral Citation | [2018] EWHC 3058 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/334/2018 CO/786/2018 |
| Date | 13 November 2018 |
and
and
and
and
[2018] EWHC 3058 (Admin)
Lord Justice Flaux
and
Mr Justice Jeremy Baker
Case No: CO/334/2018
CO/586/2018
CO/786/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chloe Carpenter and Heather Emmerson (instructed by the Legal Department, Solicitors Regulation Authority) for the Appellant in the first and second cases
Chloe Carpenter and Andrew Bullock (instructed by the Legal Department, Solicitors Regulation Authority) for the Appellant in the third case
Geoffrey Williams QC and Paul Bennett (instructed by Aaron & Partners LLP) for the Respondent in the first case
Gregory Treverton-Jones QC (instructed by Murdochs Solicitors) for the Respondent in the second case
Fenella Morris QC (instructed by Murdochs Solicitors) for the Respondent in the third case
Hearing dates: 31 October and 1 November 2018
Judgment Approved
Introduction
These three appeals under section 49 of the Solicitors Act 1974 by the Solicitors Regulation Authority (“SRA”) against decisions of the Solicitors Disciplinary Tribunal (“SDT”) have been ordered to be heard together by Supperstone J. In each case, the SDT made findings of dishonesty against the solicitor in question, but went on to find that there were “exceptional circumstances”, in part because of issues as to the mental health of the solicitor in question, justifying the imposition of a lesser sanction than striking the solicitor off the Roll. In each case the sanction imposed was one of suspension which was itself suspended. The SRA now appeals each of those decisions essentially on the grounds that there were no “exceptional circumstances” and the sanction imposed was unduly lenient.
The factual background and the judgment of the SDT in James
The respondent, Ms James, was born in February 1983 and admitted to the Roll as a solicitor in July 2010. From 1 July 2010 until 12 February 2015 she was employed as a solicitor at McMillan Williams (“the firm”), specialising in clinical negligence litigation. She resigned on 5 November 2014 and left after serving her period of notice, joining the Roland Partnership as a solicitor.
In 2011, the firm was instructed by G in connection with a claim for treatment she had received from an NHS trust. Proceedings were commenced against the Trust in April 2012 and Ms James had the conduct of the case from May 2012 until she left the firm. Proceedings were served in August 2012 and, by a Consent Order dated 10 July 2013, the Particulars of Claim, Schedule of Loss and medical report were to be served by 29 July 2013. Ms James did not serve those documents by that date.
Between August 2013 and January 2015, she made a series of misleading statements on nine separate occasions to the client and to the firm about the current position on the file giving the impression that the proceedings had been stayed, judgment on liability had been obtained in G's favour and extensions of time for service of the Schedule of Loss and medical report had been granted by the NHS Trust. None of this was true.
On 11 or 12 November 2014, after her resignation, Ms James created four letters in Word format (one to the Trust, one to the hospital, one to the medical expert and one to the client G) which she back-dated to 25 September 2014 in order to create the impression that they had been sent on that date and thus to further the misleading impression that she had been progressing work on the file when she had not.
After Ms James left the firm, the true position emerged and the firm successfully applied to the Court for relief against sanctions under CPR 3.9 enabling the proceedings to continue, on condition that the firm paid the costs of the application.
The SDT heard the disciplinary proceedings against Ms James on 27 and 28 November 2017. It held in its judgment dated 4 January 2018 that dishonesty was established against Ms James beyond all reasonable doubt in respect of both the misleading statements and the back-dated letters, applying the objective test of dishonesty as clarified by the Supreme Court in Ivey v Genting Casinos Ltd [2017] UKSC 67; [2018] AC 391. It is not suggested that there was any error of law in the application of that test.
The SDT found that the firm was a challenging place to work. It was seeking external investment which would bring time recording and billing under scrutiny. The senior management sought to pass pressure on to junior staff such as Ms James, with monthly publication of league tables to create competition between fee-earners. The SDT was particularly critical of an email from a senior manager in July 2012 complaining about a shortfall of Ms James' billed hours as against her target and a letter from the senior partner to Ms James in April 2013 requiring her to work evenings, weekends and bank holidays to make up chargeable hours. The SDT found this was a “notable example of bad, ineffective and inappropriate management.”
Ms James had no recollection of receiving the email or letter but the SDT found that she was under pressure at work and in her personal life, due to problems with her partner that it is not necessary to rehearse here. The SDT accepted her evidence of feeling terrified and crying at work and that she had suffered hair loss. It summarised the position at [61]:
“It was unusual for solicitors appearing before the Tribunal to use words such as “terrified” and “fear” in the context of the workplace. The use of those words gave an indication of the Respondent's vulnerability; small issues such as getting behind on a file had magnified to the extent that the consequences anticipated by the Respondent were dire and, in her own words, she felt as if she had a massive dark cloud hanging over her. The Respondent was vulnerable, isolated, dealing with difficult home circumstances, relatively young in terms of life experience, and in what she viewed as an environment that had become toxic to her. She had lost her confidence and felt that she was no good at a job that she had previously enjoyed. This was, in effect, a ‘perfect storm’ of circumstances.”
It appeared that she had not sought any practical or medical assistance at the time. She was seen by a consultant psychiatrist, Dr Frazer, who produced a report dated December 2016 for the purposes of the disciplinary proceedings. His opinion was that, at the time, she was not suffering from an active mental disorder, but a mild depressive disorder with mixed anxiety. The hair loss was a recognised complication of that stress-related condition.
So far as relevant to the issues before the Court, the following findings made by the SDT are of significance. At [50] it concluded that Ms James' misconduct arose from actions which were spontaneous to begin with and then planned on an ad hoc basis. The misconduct had continued over a period of some 17 months and the harm it had caused was considerable. At [51] it found that the misconduct was not calculated in the sense that: “one lie led to another with inevitability rather than calculation” but this could not be described as a true “moment of madness” case. At [52] the SDT noted that she did not make good any loss or voluntarily notify the SRA, although it accepted that she had shown genuine insight and remorse.
At [57] the SDT said that these were serious matters and that the dishonesty alone justified striking off. The issue was whether “exceptional circumstances” could lead to a lesser sanction. The SDT summarised the legal principles (which I set out in more detail later in this judgment) in a manner which is accepted by the SRA to be a correct self-direction, but it is said that the finding of “exceptional circumstances” was clearly inappropriate because it failed to apply that legal test.
The SDT rejected the submission on behalf of the SRA that minimal weight should be given to Dr Frazer's report. It considered that: “[Ms James'] mental health and in particular the conditions of depression and anxiety were a feature of the dishonest conduct and in particular the length of time for which it was perpetuated”. At [59], the SDT said:
“During the last 10 to 15 years, and in particular in the last 5 years or so, awareness and openness concerning mental health issues have developed. Management at law firms and elsewhere should be more alert to the warning signs, which included, amongst other things, decline in performance, physical symptoms of distress, and uncharacteristic behaviour such as a drop in reliability. Management should be able to respond appropriately, for example by providing access to external counselling services. We have all become much more aware of bullying and harassment in the workplace which can have a significant impact on employees, particularly those who might be described as being vulnerable.”
At [61], immediately before the passage which I quoted at [9] above, the SDT said:
“The root cause of the Respondent's misconduct, including the allegations of dishonesty, was the combination of the culture of the Firm in terms of pressures placed on junior solicitors and her mental ill-health arising from the pressures of work allied with difficult personal circumstances. It was necessary to look at these overriding features cumulatively. This Respondent had an egg-shell skull personality at the time of these events. The impact of letters such as that written by Mr Smith and the culture of the Firm was greater than it would have been on a fee earner without an ‘egg-shell skull’.”
The SDT referred to the fact that three...
To continue reading
Request your trial
-
Mr Syed Muzaher Naqvi v Solicitors Regulation Authority
...EWHC 2076 (Admin); [2017] 4 WLR 143; and see also my judgment in the Divisional Court in Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin); [2018] 4 WLR 163 at [53]–[55]. 35. Applying those principles to the present appeal, this Court should only interfere with the decisio......
-
Robert John Metcalfe v Solicitors Regulation Authority Ltd
...the SDT had regard to relevant case law, including the decision of the Divisional Court in Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin), [2018] 4 WLR 163 where Flaux LJ said at [113]: “113. … [I]n my judgment, pressure of work or extreme working conditions whilst obvio......
-
Solicitors Regulation Authority v Mohammed Zahid Dar
...interfere if the sanction passed was “in error of law or clearly inappropriate” (see, e.g., Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin); [2018] 4 WLR 163 at 42 On this appeal, therefore, we may only interfere with the decision of the Tribunal that Mr Dar was reckless ......
-
Solicitors Regulation Authority v Kwame Agyekum Siaw
...EWHC 2076 (Admin); [2017] 4 WLR 143; and see also my judgment in the Divisional Court in Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin); [2018] 4 WLR 163 at 35 Applying those principles to the present appeal, this Court should only interfere with the decision of the SDT......
-
Mental Health Issues Are Not 'Exceptional Circumstances' In Solicitor Dishonesty Cases
...High Court's recent decision in the linked appeals SRA v James & Others [2018] EWHC 3058 (Admin) reminded us once again that dishonest conduct by a solicitor will almost invariably result in striking off, even in the cruellest of The decision The High Court has ruled on the appeals by t......
-
What The Divisional Court's Decision In SRA v Sovani James Tells Us About Wellbeing For Lawyers: Some Reasons For Optimism
...judgment in three appeals by the Solicitors Regulation Authority: SRA v Sovani James, SRA v Esteddar MacGregor, SRA v Peter Naylor [2018] EWHC 3058 (Admin). Reactions to the judgment by lawyers have been critical, regarding it as a harsh decision which missed an opportunity to reflect devel......