Practice and Procedure


PUBLISHED November 6, 2003

A fine of ?3,500 imposed on a solicitor for the late payment of a compensation award of £350 was, on the facts, excessive.Appeal from the decision of the Solicitors' Disciplinary Tribunal on 7 January 2003 that the appellant's ('D') conduct had been unbefitting that of a solicitor and that a fine of £3,500 was an appropriate fine for D's failure to properly comply with an order for a compensation payment of £350 to one of her clients. The decision regarding the compensation payment had been sent to the parties on 6 November 2001 and had been ordered in respect of D's failures to make a timeous marriage visa application for a client and to communicate with that client effectively. Despite a number of letters, D made no response by post. On 28 May 2002, the Office for the Supervision of Solicitors was instructed to issue disciplinary proceedings. On 2 January 2003, D made the compensation payment including interest. On appeal D argued that: (i) she had made a payment by cheque on 16 November 2001 by putting the cheque through the door of the address she had been given by the Law Society for the client. She had not known that that address was in fact wrong. Moreover, whilst she had not responded to Law Society letters she had telephoned, informing it of that payment; (ii) in those circumstances the tribunal had been wrong to hold that she had made no effective payment and to refuse to accept a submission of no case to answer; (iii) the finding of unbefitting conduct was therefore wrong; and (iv) in the alternative, the fine was excessive and should have been merely nominal.HELD: (1) The submission of no case to answer should have been accepted, however, that would only have led to an adjournment in order that the tribunal could investigate the issue of D's alleged telephone call. The tribunal did not have to accept D's evidence on that point but should have made findings of fact in that regard. (2) The tribunal had made findings of fact in relation to D's attempt to pay by cheque but the court was not satisfied that that had been taken into account when the penalty had been imposed. However, there was no doubt that D had not made the payment at that point and given the absence of responses by post the finding of conduct unbefitting a solicitor could not be doubted. It was for the tribunal to set professional standards and it could not be faulted in finding that inactivity to that extent ought not be countenanced. (3) However, the penalty imposed was two-thirds of the maximum that could be imposed. Taking into account all the circumstances including D's attempt to pay, the telephone call and the final late payment, a consideration of other cases indicated that an appropriate fine was £500. Given that conclusion it was also appropriate that D should pay all the costs of the investigation and one-half of the costs of the hearing. The respondent to pay the costs of the appeal.Appeal allowed to extent indicated.