Practice and Procedure


PUBLISHED December 11, 2003

The Solicitors Disciplinary Tribunal had erred in holding that the appellant's conduct was unbecoming that of a solicitor as its approach at the hearing was seriously flawed in a variety of ways that fatally undermined its conclusion.Appeal from the decision of the Solicitors Disciplinary Tribunal ('the tribunal') on 22 April 2003 that the appellant's ('S') conduct was unbecoming that of a solicitor. S had joined the partnership of a firm of solicitors ('WC'). A firm ('N') had instructed a company ('IRS'), to recover money owed to it by its former agent, which money was re-imbursement for money paid out following a maritime collision. A director of IRS ('B') appointed S to act for IRS and on 13 December 1990, N sent a letter to WC that authorised it to take proceedings to recover the money from its former agent and S, in the name of WC, started proceedings. During the course of those and other proceedings S did not inform N or its representative ('G') about trial dates, issues or the risks of litigation. However, he did inform B and IRS of the same. Prior to trial on the legal proceedings, N and its former agent reached a settlement but the agent brought an action for wasted costs against S and B which was successful in respect of the latter. The tribunal considered that there had been a finding adverse to S and that he had acted without authority and failed to properly communicate with N and G. On the instant appeal, S argued that: (i) the tribunal had proceeded on the erroneous basis that the issue before it was whether N was S's client whereas the true issue was whether S had had authority from N and if S had been required to report directly to it and G or only to B and IRS; (ii) the tribunal had wrongly considered that there was something in the findings made against B that included findings against S; (iii) the chain of instruction from N via B and IRS was such that he had every reason to believe that he was properly acting for N; (iv) he had kept B and IRS fully informed; (v) evidence that had not been before the tribunal showed that IRS were, at the relevant time, communicating with G with regard to the conduct of the proceedings; and (vi) neither N or G had indicated that they had not been kept informed and there had been no complaint from them in any other respect.HELD: The tribunal's approach at the hearing was seriously flawed in a variety of ways that fatally undermined its conclusion. The findings against B could not properly be regarded as findings against S. Moreover, S was correct in that the tribunal had failed to identify the correct issues. Further, the evidence that had not been before the tribunal might have influenced its decision. There was also evidence in the form of a letter written by S to G at the relevant time that questioned whether, by keeping B and IRS informed, he could properly be regarded as keeping N informed. That letter had originally been alleged by T to be a forgery but the allegation had been dropped prior to the hearing. In those circumstances it had a significance to which no adequate regard had been had at the hearing. It was also significant that no complaint had been made by N or G and no enquiry had been made of them. All those factors rendered the decision fatally flawed and it would be quashed.Appeal allowed.