Solicitors Regulation Authority v Kwame Agyekum Siaw
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Mrs Justice May |
| Judgment Date | 18 October 2019 |
| Neutral Citation | [2019] EWHC 2737 (Admin) |
| Date | 18 October 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2246/2019 |
[2019] EWHC 2737 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
and
Mrs Justice May
Case No: CO/2246/2019
Mr Edward Levey (instructed by Solicitors Regulation Authority) for the Appellant
Ms Althea Brown (instructed by Birnberg Pierce Solicitors) for the Respondent
Hearing date: Tuesday 8 October 2019
Approved Judgment
Introduction
In this appeal under section 49 of the Solicitors Act 1974, the Solicitors Regulation Authority (“SRA”) appeals against the finding by the Solicitors Disciplinary Tribunal (“SDT”) in its judgment dated 17 May 2019 that the conduct of the respondent, Mr Siaw, was not dishonest. The SRA also contends that, in any event, the sanction imposed by the SDT of a £10,000 fine was excessively lenient and clearly inappropriate.
The factual background and the judgment of the SDT
The background facts, as essentially set out in the judgment, are as follows. The respondent is now aged 60 and was admitted to the Roll as a solicitor in 2002. At the material times he practised at The Mountain Partnership Solicitors in London SE14. He began working for the firm in June 2004, was promoted to associate in July 2005 and to partner in July 2006. He specialised in immigration law.
He received 60% of the fees he generated however the work came to him at the firm. In May 2014, Mr Okenla, senior partner had become unhappy because, following file reviews, he concluded that the Respondent was not working in the way Mr Okenla wished and particularly that he was not always passing payments through the firm's systems. He said in evidence that he had found at least 10 files conducted by the respondent unofficially. He confiscated the files. In one file there was £1,700 in cash, in another £200. He found £2,000 to £3,000 in total. Mr Okenla met with the respondent on 16 May 2014 to discuss his concerns and decided they should part company. He directed that the Respondent should take on no new matters and should not undertake any pro bono work without the consent of Mr Okenla (a limitation which applied to all staff). He issued a Memorandum to that effect on 19 May 2014. At the meeting he had given the respondent until December 2014 to close down his files which were over 100 in number, but the respondent did not carry out an orderly closure of files and so did not leave the firm until October 2015.
The respondent met Mr K, who was a Ghanaian national, in early 2015 and gave him some free advice about his immigration status. The respondent developed a social relationship with Mr K and his fiancée (to whom I will refer as Mrs K) who was a Romanian national. He was invited to their wedding which was due to take place on 1 September 2015. However, in July 2015 Mr K was detained by the immigration authorities. Whilst he was in detention, the respondent visited him with Mrs K. The matter had become urgent because Mr K was due to be removed from the UK at 23.30 on 28 July 2015. On 16 July 2015, the respondent asked the immigration authorities to forward a Letter of Authority for Mr K to sign appointing Mountain Solicitors to act on his behalf on his immigration matter. Mr K completed that Letter of Authority and it was faxed back to Mountain Solicitors.
The respondent then wrote letters to the Home Office on 17 and 22 July 2015 and to the Chief Immigration Officer on 22 July 2015, all on Mountain Partnership headed paper and referring to Mr K as the firm's client. A Judicial Review Claim Form was issued by the respondent on 27 July 2015 which named Mountain Partnership as Mr K's solicitors on the front page and which contained a Statement of Truth at the end signed by the respondent as a solicitor at Mountain Partnership, Mr K's solicitors. This was sent by the respondent to the Home Office under cover of another letter dated 27 July 2015 on Mountain Partnership headed paper again referring to Mr K as “our client”. In the event Mr K was released from detention on bail on about 5 August 2015.
It appears that up to this point there had been no discussion between the respondent and Mr and Mrs K about the fees which they would be charged for the work done, the respondent's focus being on getting Mr K released from detention. However, on 6 August 2015 a meeting took place between the respondent and Mr and Mrs K at which matters were put on a more business-like footing. The evidence of both Mr and Mrs K, which the SDT accepted in preference to that of the respondent, was that at that meeting they raised the question of fees which he had not been prepared to discuss previously. He said the fees would be £1,500 and asked for £500 on account. He gave them the details of his personal bank account and on 20 August 2015, £500 was paid by them into that account.
The respondent's evidence was that the £500 was paid for disbursements. The SDT accepted that the respondent had disbursed £65 on the completed EEA Form and £140 issuing the Judicial Review Claim Form but found that the respondent was unable to explain to what disbursements the balance of £295 related. At the outset of the SDT hearing the chairman had drawn attention to the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) Fees Table under which the fee for an oral hearing to reconsider a refusal on paper of permission to apply for Judicial Review was £350. Later that day the respondent gave evidence, not foreshadowed in either of his witness statements, that at some point in August 2015, but prior to 4 August 2015, when Mr K was still in detention, the respondent had attended Field House (where UTIAC sits) in person with an application for such an oral permission hearing, following a refusal on paper of the application for permission to apply for Judicial Review and that he had paid £350 in cash as the fee for that application.
However, the SRA conducted enquiries overnight and obtained an email from UTIAC in the morning of 3 April 2019 which stated that the solicitors for Mr K had not lodged an application for an oral permission hearing, instead the case was withdrawn and subsequently closed on 2 September 2015. The respondent was recalled for further cross-examination. He withdrew his evidence of the previous day that he had paid £350 cash for an application for an oral permission hearing and gave what the SDT found were conflicting accounts. As it found at [30.33] of its judgment, the respondent could not refute the evidence from UTIAC. The SDT did not accept his evidence that he had made an application for an oral permission hearing for which he had paid £350 cash.
In his evidence before the SDT (as in prior correspondence with the SRA to which we refer below) the respondent maintained that he had acted on a pro bono basis throughout and had never asked for fees, asserting that the £500 had all related to disbursements. After he was forced to withdraw his evidence about making an application for an oral permission hearing for which he had paid £350 cash he sought to say that the balance of £295 had related to taxi fares. The SDT did not accept his evidence or his account of the 6 August 2015 meeting. It found at [30.34] that he was unable to tell the SDT what the £500 was for over and above the £205 initial disbursements and that he had said he would not charge clients for taxi fares.
The respondent retained the £500 in his personal bank account and did not account for the sum to the firm. Mr K subsequently made a complaint to the Legal Ombudsman about the conduct of his immigration case by the Mountain Partnership. During the course of the investigation by the Legal Ombudsman, it emerged that the firm had no record of having acted for Mr K. In those circumstances, the Legal Ombudsman referred the matter to the SRA.
On 8 May 2017, the SRA wrote to the respondent asking a series of questions, including:
“4. Did you receive costs from Mr [K] into your personal bank account? If so, why?
5. Have you received any money from any other clients into your personal bank account?”
The respondent replied on 22 May 2017, stating he was acting on Mr K's matter “…out of my heart on a pro bono basis”. In answer to the specific questions, he stated:
“4. I acted for [Client K] on a pro bono basis and used my own money to pay his fees. I did not receive cost in my personal bank account.
5. I have never received my money from client into my personal bank account.”
In the Rule 5 Statement in the SRA proceedings commenced in September 2018, the SRA made these allegations (amended at the hearing before the SDT) against the respondent:
“1.1 — On 20 August 2018 the Respondent having provided his personal bank account details to Client K (or Client K's wife), received £500 into his personal bank account in relation to Client K's immigration matter and subsequently failed to account for that money (or part of that money) to the firm thereby breaching all or alternatively any of Principles 2 and 6 of the SRA Principles 2011 and Rule 14.1 of the SRA Accounts Rules 2011.
1.2 In an email dated 22 May 2017 the Respondent informed the SRA that he had not received payment (of costs) into his personal bank account in relation to Client K's matter when this was untrue and/or misleading contrary to all or alternatively any of Principles 2, 6 and 7 of the SRA Principles 2011.”
The SRA Principles 2011 provide:
“Principle 2: You must act with integrity.
Principle 6: You must behave in a way that maintains the trust the public places in you and in the provision of legal services.
Principle 7: You must comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner.”
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