William Arthur Merrick v The Law Society
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gross,Lord Justice Thomas |
| Judgment Date | 19 December 2007 |
| Neutral Citation | [2007] EWHC 2997 (Admin) |
| Docket Number | Case No: CO/2170/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2007 |
[2007] EWHC 2997 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF WILLIAM ARTHUR MERRICK and
IN THE MATTER OF THE SOLICITORS ACT 1974
The RT Hon Lord Justice Thomas and
The Hon MR Justice Gross
Case No: CO/2170/2007
Geraldine Andrews QC & Brian Dye (instructed by William A Merrick & Co. Solicitors) for the Appellant
Geoffrey Williams QC & Robert Marven (instructed by Bankside Law Ltd)
for the Respondent
Hearing dates: 27 November 2007
Mr Justice Gross :
INTRODUCTION
This is an appeal pursuant to s.49(1)(b) of the Solicitors Act 1974 (as amended, "the Solicitors Act") against the Order of the Solicitors' Disciplinary Tribunal dated and filed with the Respondent ("the Law Society") on the 28 th February, 2007 ("the Order" and the "SDT" respectively), that the Appellant ("Mr. Merrick"):
i) Be suspended from practice as a solicitor for the period of 12 months commencing on 2 nd April, 2007; and
ii) Pay the Law Society's costs, summarily assessed by the SDT, in the sum of £45,000.
In summary, Mr. Merrick faced four allegations of conduct unbefitting a solicitor. Allegation (i) was abandoned by the Law Society and no more need be said about it. Allegations (ii) and (iii) were admitted, at least in part; I return briefly to these matters later.
Allegation (iv) was the most serious faced by Mr. Merrick. It involved the charge that he had improperly utilised client money for his own benefit by making an improper transfer of £10,000 from his client to his office account. The client was legally aided and the allegation advanced by the Law Society was that the transfer infringed Regulation 64 of the Civil Legal Aid (General) Regulations 1989, SI 1989 No. 339, as amended ("the Regulations"). Regulation 64 provided as follows:
" Where a certificate has been issued in connection with any proceedings, the assisted person's solicitor or counsel shall not receive or be party to the making of any payment for work done in those proceedings during the currency of that certificate….except such payments as may be made out of the fund."
The essence of the charge was that Mr. Merrick was guilty of "topping up" by obtaining £10,000 from his client in this way. It is right to underline that no allegation of dishonesty was made by the Law Society against Mr. Merrick.
In the event, the SDT concluded that the transfer was improper and constituted a serious regulatory breach amounting to conduct unbefitting a solicitor. Conduct could be improper even if it was not dishonest. Mr. Merrick was guilty of serious professional misconduct and "the reputation of the profession required a serious penalty": Findings of the SDT, dated 17 th May, 2007 ("the Findings"), para. 150. In all the circumstances, the most appropriate sanction was a suspension from practice for 12 months.
In addition to the suspension from practice and notwithstanding the withdrawal of allegation (i), the SDT imposed the order for costs to which reference has already been made.
THE LEGAL FRAMEWORK ON THE APPEAL
S.49(4) of the Solicitors Act provides that this Court shall have power to make such order on an appeal under that section as it may think fit.
As is now established and was not in dispute before us, the Court's jurisdiction is appellate not supervisory: Langford v The Law Society [2002] EWHC 2802 Admin, at [14]. The appeal is by way of a rehearing, albeit on paper. While paying due regard to the expertise of the SDT, the Court will not defer to the tribunal's judgment more than is warranted by the circumstances: Langford, ibid. The Court is fully entitled to substitute its own decision for that of the SDT.
That said, save in a clear case, this Court will be slow to interfere with a sentence passed by the SDT; as David Steel J put it, in Newfield v The Law Society [2005] EWHC 765 (Admin), at [47]:
" …a professional disciplinary tribunal still remains the body best fitted to assess the seriousness of professional misconduct…"
Furthermore, there are particular considerations which inform the approach adopted by the SDT to the imposition of sanctions. These were authoritatively stated in Bolton v Law Society [1994] 1 WLR 512, at pp. 518–519, by Sir Thomas Bingham MR (as he then was), as follows:
" It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element…..But often the order is not punitive in intention….In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards….The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth…. A profession's most valuable asset is its collective reputation and the confidence which that inspires.
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic…..All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order for suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."
THE FACTS
I start with Mr. Merrick. He is a man of 67. On the material before this Court, he has been in practice for some 42 years with an unblemished record. At the material time he was a sole practitioner, carrying on practice under the style of Wm. A. Merrick & Co.
I shall refer to Mr. Merrick's client, in connection with allegation (iv), as "C". C's original claim was for personal injuries. A legal aid certificate was granted as long ago as 6 th March, 1990. Subsequently, C's then solicitors, Buss Murton, advised the Legal Services Commission ("LSC") to withdraw support, on the ground that C had no viable claim. Thereafter, however, Mr. Merrick took over the matter and acted for C in pursuing a claim for professional negligence against Buss Murton – on the basis that his original claim had indeed been viable and could and should have been pursued within the limitation period. On the 6 th July, 1995, the legal aid certificate was amended accordingly. On the 18 th August, 1997, a writ was issued against Buss Murton. Some small payments on account were made to Mr. Merrick by the LSC; these came to a total of £6,503.52, with the last payment, before the events with which this appeal is concerned, made in August 2000.
By October/November 2003, the trial was imminent. By now, Buss Murton had paid £90,000 into court. At about this time, Mr. Merrick and C discussed settlement. The upshot was that C instructed Mr. Merrick that he was prepared to settle; he wished to obtain £110,000, net of all costs and disbursements; this outcome could be achieved if a settlement was reached in the order of £130,000 plus costs.
On or about the 21 st November, 2003 a settlement was duly achieved at a figure of £130,000 plus the payment of some but not all costs incurred in the course of the proceedings. A Tomlin Order, ultimately dated 3 rd December, 2003, gave effect to the terms of the settlement. The £90,000 paid into court was to be paid to Mr. Merrick forthwith. An additional sum of £40,000 was to be paid to Mr. Merrick by 16.00 on the 22 nd December, 2003. Buss Murton was to pay C's costs of the claim, to be assessed on the standard basis, if not agreed, save for certain (broadly described) costs of interlocutory applications which were excluded ("the legal aid only costs"). Para. 5) of the Tomlin Order provided for the detailed assessment of C's costs "in accordance with Regulation 107 of ….[the Regulations]…". I return, later, to the significance of this formulation.
In the meantime, on the 27 th November, 2003, the LSC sent Mr. Merrick a cheque for £29,428.76, representing a payment for disbursements. It follows that Mr. Merrick had now received some £35,932.28 in respect of disbursements.
On the 9 th December, 2003, Mr. Merrick received from Buss Murton's solicitors, Reynolds Porter Chamberlain...
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