An experienced commercial litigation solicitor, representing himself as an appellant against a decision of the Solicitors Disciplinary Tribunal, was unsuccessful in the Administrative Court in his attempt to overturn findings which resulted in his being struck off the Roll of Solicitors in respect of unauthorised transfers of money.

The SDT’s findings were (1.1) that he made one or more unauthorised transfers of monies from CLAN Commercial Services (CCS) and breached all or any of Principles 2 and 6 of the SRA Principles 2011; (1.2) he made one or more unauthorised transfers of monies from the client account of Guise Solicitors Ltd (the firm) thereby breaching all or any of 20.1 of the SRA Accounts Rules 2011, and Principles 2, 4, 6 and 10 of the SRA Principles.

In addition, the SDT found dishonesty proved beyond reasonable doubt (which was the relevant criminal standard of proof at the time).

In summary, the solicitor’s case was (i) the Tribunal materially erred in law in relation to both allegations in neglecting to consider the case of Gestmin ; (ii) in relation to allegation 1.1 the Tribunal materially erred in law in failing to conclude that CLAN was a shadow director of CCS and in failing to give reasons for this rejection; (iii) in relation to allegation 1.1 the Tribunal erred in making critical judgments of fact which had no basis in the evidence and/or demonstrably misunderstanding relevant evidence and/or a demonstrable failure to consider relevant evidence in relation to a number of pleaded matters.

In relation to allegation 1.2 his case was that the Tribunal erred in making critical judgments of fact which had no basis in the evidence, and/or demonstrably misunderstanding relevant evidence and/or a demonstrable failure to consider relevant evidence in relation to a number of pleaded matters.

The solicitor used the judgment in SRA v Good and the citation there of Lord Reed in Henderson v Foxworth Investments as the basis for a distinction between appeals where certain identifiable errors could be demonstrated, but the court considered that this was an incorrect distinction.

The passage there dealt with the different kinds of appeal. In all appeals on the facts the hurdle faced on appeal was that the appellant must show that the decision was one that no reasonable judge could have reached against the relevant background.

The law was accurately reflected by Morris J in Ali v SRA , and the solicitor did not take issue with this.

Article 6 provided: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The solicitor relied on the statements of The European Court of Human Rights which held that judgments must provide a specific and express reply on all questions that were decisive of the question in this matter. In particular, he pointed to Ruiz Torja v Spain .

But that case made clear that full reasons were not required for every aspect of a decision. That conclusion was reflected in English jurisprudence, for example, in the leading case of South Bucks District Council v Porter (No 2).

In addition to his work as a solicitor, the appellant was (i) the sole director of two companies which were involved in developing cloud platforms for the conduct of civil litigation and arbitration; (ii) sole director, founder member, and member of the executive committee of a legal networking organisation known as the Commercial Litigation Association (CLAN). CLAN was a company limited by guarantee and registered in England. CLAN was designed to facilitate professional networking amongst those interested in dispute resolution and organised events for the legal profession. (iii) co-director (with a Ms Dunn) of a company known as CLAN Commercial Services (CCS). CCS arranged events on behalf of CLAN and CLAN was its only customer.

Profits generated by CCS were to be distributed between Annecto Legal Limited as to 90% and CLAN 10%.

The only issue before the Tribunal was the question of authorisation to deal with the funds in a bank account.

Before the Tribunal there was evidence from a forensic investigator that (i) a significant amount of these funds ended up in an account in the name of the solicitor; (ii) the solicitor spent at least some of the funds in question on apparently personal items such as Netflix, garden centres and the National Trust.

There was also uncontradicted evidence that to the solicitor’s knowledge the funds had been set aside to meet the tax liabilities of CCS, although the solicitor pointed out that the account had not been specifically designated for the purpose.

Very serious allegations were made by the solicitor against two witnesses which formed part of the reason for his submission that his case should have been preferred despite the fact that he did not himself give evidence.

The first aspect was supposed lies by Mr MB and Ms Dunn to the police. There was, however, no lie to affect the credibility of the witnesses. Furthermore, this particular allegation as to the Tribunal’s approach was plainly ill-founded.

The court also had no hesitation in saying that there was no proper basis for an allegation of blackmail. It followed that the suggestion that this gave grounds for disbelieving the witnesses was unjustified. So too was the serious suggestion that the Tribunal selectively recorded evidence to bolster the credibility of the witnesses.

The appellant characterised his two main points as being material errors of law. It was submitted that the significance of the decision in Gestmin was not considered by the Tribunal despite extensive reference by him in closing submissions.

Gestmin did not bind the Tribunal to any particular course. The relevant passage in Gestmin was not binding. Gestmin simply set out factors which would enter into the mind of a Tribunal.This was a case where there was no paper trail contemporaneously which would permit of a Gestmin type approach in practice.

There was therefore no error of law, and this challenge amounted to a challenge to the Tribunal’s approach to the evidence and, as such, it faced a high hurdle. The authorities were replete with dicta which said that it would be rare that an appellate court would diverge from a finding of fact on witness evidence by the trial judge who had the opportunity to hear and assess that evidence.

This was not such a case. The appellant elected not to give evidence so there was no countervailing evidence from him. The SDT was entitled to, and did, draw significant adverse inferences from the fact that he declined to give evidence, and it was not in issue that the Tribunal was entitled to draw that adverse inference.

Without hesitation, the court concluded that the appeal on the facts in relation to the first point failed.

The second supposed error of law related to the shadow director argument which formed one part of the appellant’s argument as to authority. In reality, this was an appeal on fact. The evidence upon which he relied did not begin to meet the hurdle.

In particular, he did not give evidence or call any other witness. Ultimately, this ground of appeal was merely a disagreement with the merits of the SDT’s findings and disclosed no error of law.

Neither did the Article 6 argument assist the appellant because it did not require full reasons on every point. There was no issue as to the law.

It was alleged that the solicitor had no authority to transfer money which was not in CLAN’s own bank account. The issue arose whether the money in CCS’s bank account (which came entirely from its contracts with CLAN) was treated as belonging to CLAN and capable of being transferred by the solicitor on behalf of CLAN.

There was, on the solicitor’s case, no explanation given of how or why the funds were CLAN’s in the first place; there could not be because they were not. The court again unhesitatingly dismissed the argument that the Tribunal erred in relation to that point.

The solicitor also sought to argue essentially that the judgment was unsafe because the Tribunal wrongly stated at one point that he was removed from the Bank mandate of CCS. Whether or not this was an error did not assist the solicitor. It was a slip and the Tribunal was aware of the true position.

The appellant also took issue with the fact that the Tribunal found that allegation 1.1 was about dishonest use of the money rather than about unauthorised transfers. The distinction between the Tribunal’s finding and the fuller explanation of the position was not material, let alone critical to the decision-making process. None of this went to the key point of authorisation and it could afford no basis for appeal.

The appellants case in respect of allegation 1.2 again reprised his Gestmin argument but there was some argument against which to test the evidence and that is exactly what the Tribunal did. It was not right that they erred in law because they did not cite Gestmin.

Ultimately, the solicitor’s argument was again an appeal against the Tribunal’s determination on the credibility of a witness. That was not a question of law. It was exactly the kind of issue of fact in which an appeal court would be extremely cautious about interfering.

Other matters raised by the appellant were essentially peripheral ones which had no real impact on the judgment of the SDT.