B e f o r e: MR JUSTICE HOLMAN

Transcription

1 Neutral Citation Number: [2012] EWHC 1037 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/1568/2011 Royal Courts of Justice Strand London WC2A 2LL Wednesday, 4 April 2012 B e f o r e: MR JUSTICE HOLMAN Between: SOLICITORS REGULATION AUTHORITY Appellant v MOTIHUR RAHMAN Respondent Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: Fax No: (Official Shorthand Writers to the Court) Mr Geoffrey Williams QC (instructed by Bevan Brittan LLP) appeared on behalf of the Appellant The Respondent appeared in person J U D G M E N T (As Approved) Crown copyright

2 1. MR JUSTICE HOLMAN: This is a statutory appeal to the High Court under section 49 of the Solicitors Act The respondent to the appeal is Mr Motihur Rahman, who was a qualified and admitted solicitor. By a decision on 7 December 2010, the Solicitors Disciplinary Tribunal suspended him from practice for a period of 12 months, commencing that day. 2. The Solicitors Regulation Authority now appeal and submit that, on the facts and in the circumstances of this case, a sentence of suspension was excessively lenient and that the only appropriate sanction which the Solicitors Disciplinary Tribunal could properly have imposed was to strike the name of the respondent off the roll. 3. It is convenient first to mention the statutory framework within which this appeal takes place and the law relevant to such an appeal. By section 49 of the Solicitors Act 1974, an appeal from the Solicitors Disciplinary Tribunal lies to the High Court. By section 49(4), the court "shall have power to make such order on an appeal under this section as [it] may think fit". 4. There have been a number of authorities of the Court of Appeal in relation to the approach of this court to the discretionary decision of a specialist tribunal such as the Solicitors Disciplinary Tribunal to the assessment of sanctions. In Salsbury v Law Society [2008] EWCA Civ 1285 at paragraph 30, Jackson LJ, with whom the other members of the court agreed, said: "It is now an overstatement to say that 'a very strong case' is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere. It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review..." 5. In the later case of Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin) at paragraph 26, a Divisional Court constituted of Laws LJ and Coulson J said: "The question for this court is whether in the light of the principles outlined above, the Tribunal's decision can be described as excessively lenient. If it can, then this court should substitute for the Tribunal's sentence with the sentence that it considers to be commensurate with these offences. If the sentence cannot be regarded as excessively lenient, even if it is not necessarily the sentence which this court would itself have imposed, the sentence should remain unchanged."

3 6. The passage at paragraph 30 of Salsbury v Law Society, which I have quoted above, has very recently indeed been reiterated with obvious approbation by the Court of Appeal in their judgment handed down yesterday (3 April 2012) in Solicitors Regulation Authority v Dennison [2012] EWCA Civ In the light of those authorities and passages, the approach that I propose to adopt in the present case is to ask whether, in my judgment and opinion, the decision of the Solicitors Disciplinary Tribunal in the present case was clearly and definitely excessively lenient. If I consider that it was, and that the only sanction that the Tribunal could properly have imposed having regard to the facts and circumstances of this case and relevant legal principles to which I will later refer, then I must allow the appeal and substitute that sanction. 8. The Tribunal itself was acting in exercise of powers under section 47 of the Solicitors Act Section 47(2) provides that the Tribunal "shall have power to make such order as it may think fit", and that such orders may include "the striking off the roll of the name of the solicitor", "the suspension of that solicitor from practice indefinitely or for a specified period" or a fine. I mention that when a solicitor has been struck off the roll, then the Tribunal has a power on a later application to it to restore the name of the former solicitor to the roll: see section 47(2)(f). 9. I turn now to an account of the facts and circumstances of this case. I have to say that although the case involves serious dishonesty, and indeed was described by the Tribunal at paragraph 21 of their findings and decision as "extremely serious", the story has frankly tragic features. Mr Rahman was born in December He trained with the very well-known firm Eversheds, and after completing his training and a course, passing all the necessary exams, he was admitted as a solicitor in January As I understand it, the period during which he was working for and being trained by Eversheds was a mutually satisfying one. He appears to have worked for them to their satisfaction, and certainly, as I understand it, he much enjoyed working for that firm. However, they did not have a longer-term vacancy in the field of construction law in which he wished to practise, and so he began to be employed as an assistant solicitor by the equally well-known firm, Charles Russell LLP, in their Cheltenham office in November This appears to have been a less satisfying period for Mr Rahman, although it was acknowledged at the hearing that Charles Russell had been well satisfied with his work during a period during which he was working for them in Dubai. 10. At all events, on 9 October 2009 the firm abruptly terminated his employment. As I understand it, he was not in any sense dismissed for any reprehensible conduct, nor was he made redundant, but Charles Russell evidently considered that he was not performing to the standards that they required and decided therefore to terminate his employment. He was told that he would not be required to work for his notice period. He would, however, be given a payment in lieu of notice, which would be paid to him together with his final salary payment and some outstanding holiday entitlement. 11. It is relevant to stress that as he had been born in December 1982, by October 2009 he was aged almost 27. So Mr Rahman left the offices of Charles Russell in Cheltenham that day for the last time. A week or so later, a member of the staff there was clearing

4 out some personal belongings of his, which he had asked the firm to forward to him. Whilst doing so, the staff member found a series of sheets of paper of which an example is now in the present bundle at tab 3, page 12. They were later described as "templates". They were sheets of paper upon which the heading with the name "Charles Russell" and the firm's logo consisting of the juxtaposition of the letters C and R had been printed. In the top right-hand corner of the letters were telephone numbers of what was described as "direct line" and "direct fax". The telephone codes were 0121, which is not the code for Cheltenham, but rather for Birmingham, and it is now accepted that the numbers in question were personal telephone and fax numbers of Mr Rahman. In the top left-hand corner there was what purported to be the firm's reference number, but the letters and figures used bore no relationship to anyone in that firm, and were later described by Charles Russell as "a bogus reference". 12. The templates were addressed to Halifax Plc, the well-known building society, at an address in Leeds. They were headed: "Dear Sirs Employee: Motihur Rahman." There was then a blank section, and the templates concluded: "Kind Regards Yours Faithfully Charles Russell LLP." There was a gap in which a signature might later be inserted. As I understand it, none of the templates contained any actual text as such. 13. As a result of finding those documents, a partner in Charles Russell LLP, Mr Peter Scandrett, at once sent by and hard copy a letter to Mr Rahman dated 16 October 2009, now at bundle tab 3, page 13. Mr Scandrett's letter referred to the finding of the templates, and continued: "It would appear that you have sent, or intended to send, letters purporting to be written by this firm which were not in fact so written. This would be a very serious matter. Whilst I very much hope that there is a straightforward explanation, I should be grateful if you would: 1. explain the letters that we have found; 2. confirm whether you have written in the firm's name to Halifax or to anyone else otherwise than in connection with clients' business; 3. if you have, provide us immediately with a copy..."

5 14. Rapidly after receipt of that letter, Mr Rahman did send an on 17 October 2009 to Mr Scandrett, which is now at bundle tab 3, page 14. He wrote: "Thanks for your letter. The template is not anything untoward. I was in the process of renewing by mortgage deal and the Halifax wanted confirmation that I was employed and getting the salary that I was claiming I was getting. I wanted to do the letter and then get it signed by Sue [that is a reference to Susan Conroy, the office manager in the Cheltenham office of Charles Russell]. However, I decided in the end to go for the variable rate and the letter was not required. The letter was not sent. If there was anything untoward then I would not have got Charlotte to send my items from the desk, I would've picked all of it up myself. I have no other templates. You are more than welcome to call the Halifax to see if a letter has been sent to them under the name of Charles Russell..." 15. Pausing there, it will be recalled that one of the matters that Mr Scandrett had raised with Mr Rahman in the letter of 16 October 2009 was "whether you have written in the firm's name to Halifax or to anyone else otherwise than in connection with clients' business". Mr Rahman did not say in his of 17 October 2009 whether he had written in the firm's name to Halifax or anyone else, but the clear inference of his , read as a whole, is that he had not done so. He said that "the template is not anything untoward", and then gives an explanation as to why he had prepared it, and firmly said that the template was not sent. He continued: "I have no other templates", and the invitation to call the Halifax "to see if a letter has been sent to them under the name of Charles Russell" clearly implies that none had been. 16. However, following receipt of that letter, Mr Scandrett then took the matter up with Halifax. He wrote to Halifax on 21 October 2009 asking whether there had been any letter to Halifax purporting to have been written by the firm. By a letter dated 23 October 2009, now at bundle tab 3, page 16, Halifax wrote to Charles Russell that they had indeed received correspondence purporting to be written by Charles Russell and enclosed copies of it. Those documents are now to be found at bundle tab 3, pages 17 and 18. The first is a letter which bears the date 13 October It is on genuine writing paper of Charles Russell, which includes at the top the firm's logo and the name Charles Russell, and at the foot, much standard information on solicitors' writing paper with regard to address, telephone and other contact information and where lists of partners may be obtained. So it was a genuine sheet of Charles Russell writing paper. 17. However, everything that was typed and written upon the sheet of paper was, as he frankly admits, entirely created and done by Mr Rahman. The letter purports to be sent by Mr Thomas Morrison of the Cheltenham office of Charles Russell to Mr Rahman himself. In the top right-hand corner it bears a direct dial telephone number, which, as I understand it, is or was the direct line into Mr Morrison's desk, or at any rate, the section or department of the office in which Mr Morrison worked. It gives an address which is the genuine address of Thomas Morrison at Charles Russell.

6 18. The text of the letter is headed "Termination of employment contract", and continues: "Dear Mr Rahman Further to our meeting on 9 October 2009, I am very sorry to confirm that your employment with Charles Russell LLP has come to an end by virtue of redundancy..." 19. The letter continues by explaining that there was insufficient work for him in the relevant team at the firm, thanking him for his hard work during the course of his employment, offering him an exit interview over the course of the next few weeks, and wishing him all the best for the future. The letter concludes: "Kind Regards Yours Sincerely Charles Russell LLP." Above the typed name "Charles Russell LLP", there is written in handwriting a signature "Charles Russell LLP". Where a solicitors' letter is signed in the name of the firm itself rather than in the name of the individual person signing it, the clear implication upon which any recipient, or the world at large, relies is that the person who has composed and signed the letter in the name of the firm is properly authorised by the firm to do so and to use the firm's name. 20. The second document sent by Halifax, now at bundle tab 3, page 18 is a pro-forma printed document headed "Employers Statement". Many boxes on the form have been completed in handwriting. Mr Rahman fully accepts that all that handwriting and indeed the other annotations upon the form were in fact done by him. In the top right-hand section of the form there is a printed heading "What was the reason for unemployment", and beneath that a series of possible reasons are listed. These include compulsory redundancy, voluntary redundancy, temporary contract and other methods or reasons for which employment might be terminated. The category "compulsory redundancy" has been clearly circled on the form. 21. In the bottom left-hand corner the form has been completed to show the maker as Thomas Morrison, who is described as "head of litigation" in the firm of Charles Russell, and an address is given as the head office of the firm in London. The address of Thomas Morrison is again inserted. 22. In the bottom right-hand corner of the form has been written the words "Please see attached letter", which was patently intended to be a reference to the letter that Mr Rahman had constructed from the firm to himself dated 13 October 2009, which I have already described. In the absolute bottom right-hand corner there is space for a signature, which is clearly intended to be the signature of the person completing the form on behalf of the employer. The squiggly signature is not decipherable, but in the context of the form, it clearly purports to be that of Thomas Morrison. However, Mr Rahman has frankly accepted that it was he who inserted that signature.

7 23. Having received that material from Halifax, Charles Russell conducted some internal enquiry, and indeed, as I understand it, as Thomas Morrison appeared to be the writer of the letter of 13 October 2009 and the person who had filled in the employer's statement, he himself was the subject of some interrogation within the firm. In fact, Thomas Morrison was not "head of litigation", but a relatively junior employee within the firm. He adamantly denied that he had written or had anything to do with or any knowledge of either of the documents. 24. As a result, Mr Scandrett sent a further letter dated 29 October 2009 to Mr Rahman. In that letter, he said, "The documents are forgeries. It would appear that you are their author", and then asked Mr Rahman to answer a series of questions about them. In reply, Mr Rahman sent an dated very early on 30 October 2009, now at bundle tab 3, page 21. Since this appears to be a frank account of what happened and to express contrition, I will, in fairness to Mr Rahman, quote extensively from it. He said: "I have read the letter. As I said when I spoke to you, I am sorry for my part in the whole Halifax saga. I did apologise to you when I spoke to you. Tom [Morrison] had nothing to do with it. As I also said when I spoke to you, I am in quite a desperate situation in respect of my mortgage cover and it was out of sheer desperation that I wrote to Halifax with the letters. I am very sorry about that. Unfortunately, I had already sent the documents to Halifax by the time I got Peter's [viz Mr Scandrett's] first letter [viz that dated 16 October 2009]. I immediately made the intention to call Halifax and cancel the initial application and to start over again. Halifax will also confirm that once I got Peter's letter, I called them to retract my initial application and they have subsequently sent a new form to Elaine. They have logged this conversation on their system. I can do nothing more than apologise. It was my financial situation that drove me to do what I did. I can assure you (truthfully) that there is nothing more in respect of any forgeries. In my final meeting with, Sarah, Jane and David I immediately raised the issue of my mortgage cover and was terrified that I won't get the cover because of the nature of my exit from CR. It was neither a sacking nor a mutual termination and I was totally confused as to what I would say to Halifax. For that reason, I did the letters. I can assure you there is nothing further in respect of this matter, no more skeletons. It was out of desperation and I lost focus of what I was doing because I was terrified of basically losing my house! That could still be the case if I don't get the cover or another job (the latter is looking extremely unlikely in this market). I sincerely hope you can understand my position. I didn't mean to do anything maliciously nor did I do anything that caused CR a loss, at least that's what I thought. I only did it out of fear of losing my house... There was no other intention... I wouldn't do anything deviously to tarnish the

8 image of CR or try to benefit myself. I am very proud to have worked for CR." 25. It is, I think, important to stress and be very clear about what it was that Mr Rahman was doing. He had in place before any of these events a current mortgage protection insurance policy with Halifax. As he understood it, payments of his mortgage under that policy would be triggered in the event that his employment was terminated for "redundancy", but not if it was terminated simply because his employers were not satisfied with his performance. Mr Rahman, who has represented himself today as he did before the Solicitors Disciplinary tribunal, has said, and this is surely the tragedy of this case, that he has since re-read with care the terms of his mortgage protection insurance policy and he now considers, or believes, that even in the event of termination of his employment because his employers were not satisfied with his performance, he would have been lawfully entitled to claim under the policy. But that was not his state of knowledge or understanding in October He did not believe or understand at that time that he could lawfully claim under his policy in the circumstances in which his employment had actually been terminated on the facts as he understood them to be. Therefore, this was a totally fraudulent claim. 26. He deliberately created forged documents in the name of Charles Russell, or the employee Thomas Morrison, so as to support a claim by him that he had been made redundant, which, as he well knew, was not the truth. It is to the credit of Mr Rahman that, as I understand it, he made full and frank admissions to the Tribunal of what he had done and the reasons why he had done it. In their findings and decisions, the Tribunal set out their "findings as to fact and law", which I have substantially echoed in the above account, albeit that I have quoted rather more extensively from the material documents. 27. At paragraph 9 of their findings and decision the Tribunal recorded that Mr Rahman himself had "described what he had done as 'shameful' in that letter". At paragraph 11, the Tribunal said that they - "noted that with regard to the allegation the respondent had behaved dishonestly, this had been admitted. The Tribunal found that in creating two false documents in order to make an application under a mortgage protection insurance scheme, the respondent's conduct was dishonest by the standards of reasonable and honest people. The Tribunal was further satisfied that the respondent knew that what he was doing was dishonest by the standards of reasonable and honest people." 28. They then set out the "mitigation". They recorded that the respondent had submitted that he had admitted the allegations promptly and knew that what he had done was wrong. They continued: "The respondent wanted to explain to the Tribunal the background to what he described as 'the craziness' of his action."

9 29. He had then told them his career and employment history as I have already summarised. They said at paragraph 16, in language that Mr Rahman has largely repeated to me today, that: "The respondent had considered the decision to dismiss him in October 2009 to be unfair... The respondent described his horror and hurt at being dismissed. He had felt completely dejected when he was informed that his contract was terminated. From having made an excellent start in his career, with a training contract with a well regarded firm [viz Eversheds], he felt that his life and career had come 'crashing down'. The respondent sought leniency from the Tribunal. He was thoroughly sorry about what had happened. He could not believe that his judgment had been so clouded that he carried out the dishonest acts. He had behaved irrationally and in a way that was completely out of character." 30. In a passage headed "Sanction and Reasons", the Tribunal continued: "The allegations which the respondent had admitted, and the Tribunal had found proved, were extremely serious. The respondent had admitted the creation of false documents, and admitted dishonesty. Normally, any proven and/or admitted dishonesty on the part of a solicitor would lead to a decision to strike off that solicitor. The Tribunal had regard to the principles set out, for example, in Bolton v the Law Society [to which I will refer below], and in particular in the judgment of Sir Thomas Bingham MR. The Tribunal was also aware of the decision of SRA v Sharma. 22. However, the Tribunal accepted that the respondent's dishonest behaviour was an aberration for him. The Tribunal took into account his personal circumstances and in particular his youthfulness and inexperience. The respondent had insight into the fact that what he had done was wrong. He had shown immediate contrition. 23. The Tribunal noted the respondent's perception that he had not been supervised to the extent that he required. The Tribunal noted that the respondent had felt that his dismissal was unfair. The Tribunal considered that what the respondent had done was very serious but was an act of panic. It had been out of character and had occurred in a particular set of circumstances in which the respondent's judgment had been irrational. 24. Whilst striking off would be the normal outcome before the Tribunal where a solicitor had been dishonest, the Tribunal consider this to be an exceptional case. However dishonesty could not go unpunished. It was therefore appropriate and proportionate for the Tribunal to Order that the respondent be suspended for one year." That was indeed the formal decision which is later recorded in a separate part of the

10 transcript, now at bundle tab 4, page The thrust of the argument of Mr Geoffrey Williams QC on behalf of the Solicitors Regulation Authority is that, although a specialist and expert Tribunal, they quite significantly understated the gravity of this case in paragraphs 22 and 23 in particular that I have just quoted above; that they significantly erred in some of the matters that they regarded as mitigation; and that although they appropriately referred to the authorities of Bolton v the Law Society and SRA v Sharma, they were completely wrong to regard the facts and circumstances of the present case as falling within the very limited types of "exceptional case" identified in Bolton v the Law Society and SRA v Sharma in which, notwithstanding dishonesty, a solicitor might exceptionally not be struck off. It is therefore necessary next for me to make some more detailed reference to those and other authorities. 32. In Bolton v Law Society [1994] 1 WLR 512 itself, Sir Thomas Bingham MR in a now famous passage at page 518, letter G, said this: "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. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission." 33. In Salsbury v Law Society, from which I have already quoted paragraph 30, the Court of Appeal went on at paragraph 37 to say on the facts of that case that: "In my view, the Divisional Court fell into error in holding that there were exceptional facts which brought this case to the very bottom of the scale of dishonesty. The Court also erred in concluding that this case fell into the very small residual category where striking off was not appropriate. On the contrary, this was a case of serious dishonesty by the solicitor, where the normal consequences should follow..." 34. One draws from that short passage, therefore, that the "normal consequences" in a case of serious dishonesty by a solicitor is striking off, although there is a "very small" residual category where striking off is not appropriate. 35. In Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin), to which the Tribunal referred at paragraph 21 of their findings and decision in the present case, the Divisional Court, presided over by Laws LJ, said: "It seems to me, therefore, that looking at the authorities in the round, that the following impartial points of principle can be identified: (a) Save in exceptional circumstances, a finding of dishonesty will lead to the solicitor being struck off the roll, see Bolton and Salisbury. That is the normal and necessary penalty in cases of dishonesty, see Bultitude. (b) There will be a small residual category where striking off will the a

11 disproportionate sentence in all the circumstances, see Salisbury. (c) In deciding whether or not a particular case falls into that category, relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, such as Burrowes, or other a lengthy period of time, such as Bultitude; whether it was a benefit to the solicitor (Burrowes), and whether it had an adverse effect on others." 36. The approach of the Court of Appeal in Solicitors Regulation Authority v Dennison, in which judgment was handed down yesterday, quotes at length from the judgment of Sir Thomas Bingham MR in Bolton v the Law Society, and clearly does not in any way soften the now established approach of the courts to this class of case. 37. It is of some interest to read paragraph 15 of the judgment of Moore-Bick LJ in Dennison in which he said that the only example of the "residual category" of cases of dishonesty for which striking off is not an appropriate penalty that leading counsel on behalf of the appellant in Dennison had been able to draw to the attention of the court was an authority of Solicitors Regulation Authority v Block. In that case, the solicitor had been found to have misinformed the Legal Complaints Service about a date. Although the Tribunal found that the solicitor had acted dishonestly, it had accepted that he had done so "for altruistic motives, without any prospect of gain and without any intention of influencing any investigation by the regulator". Accordingly, in the case of Block, the Tribunal had "considered his dishonesty to be 'very much at the bottom end of the scale'..." 38. Aided and informed by those authorities, I now turn to consideration of the reasoning of the Tribunal and its appropriateness. It should first be observed that, in this case, quite unlike Block, there was no suggestion by the Tribunal that the dishonesty was "very much at the bottom end of the scale", rather it was the assessment of this Tribunal that the allegations "were extremely serious": see paragraph 21. In my view, that was a correct and indeed the only possible assessment upon these facts. 39. However, the Tribunal then considered at paragraph 22 that the behaviour "was an abberation" for the respondent; that he had acted out of character; and that although what he had done "was very serious", it "was an act of panic". It is therefore necessary to focus again on the facts, and in particular the chronology to see just what it was that Mr Rahman did do and over what timescale. 40. The templates that he had created, albeit that he never used them, were found amongst his personal belongings when they were cleared out at Charles Russell in the week after his employment was terminated. He had left the office for the very last time on 9 October He had left these templates behind. It accordingly necessarily follows that he had created the templates, now at bundle tab 3, page 12, and fully described by me already, on or before 9 October It is perfectly true that he never in the end used those particular templates, but these were at least preparatory acts and the templates clearly lacked integrity. They gave, as Mr Scandrett was later to say, a bogus reference number and gave as the telephone and fax numbers not those of the firm, but his own private ones. He was later to say in his fax of 17 October 2009 to Mr Scandrett that, "I wanted to do the letter and then get it signed by Sue". Patently,

12 however, there was never any possibility that Susan Conroy would sign any such letter bearing a bogus reference number and telephone numbers which were his private and personal numbers. It seems to me, therefore, that Mr Williams correctly submits that the period of dishonesty began at the latest on 9 October There was then clearly manifest and grave dishonesty on the date or dates on or about 13 October 2009 upon which Mr Rahman created the forged and bogus letter purporting to be from Mr Morrison to himself dated 13 October 2009, and the forged employer's statement purporting to be signed by Mr Morrison on 10 October Sadly the dishonesty did not end there, for the which Mr Rahman sent to Peter Scandrett on 17 October 2009, which I have already quoted, was itself dishonest and dissembling. He said, "The template is not anything untoward", but patently it was. He said that he wanted to get the letter signed by Sue, but patently he knew that she would never have signed such a letter. He said in terms, "I have no other templates", and the clear implication of the , especially as it was sent in answer to Mr Scandrett's letter of 16 October 2009, which had asked for confirmation whether he had written in the firm's name to Halifax or to anyone else, was that he had not done so. That, of course, was completely dishonest, for by then he had actually composed, created and sent to Halifax the bogus documents, being the letter of 13 October 2009 and the employer's statement. 42. The Tribunal described the behaviour as "an abberation", done as "an act of panic". One of the matters to which the court or the Tribunal was required to have regard in considering whether this case fell within one of the small residual category of exceptions is, as the Divisional Court said in Sharma at paragraph 13, "the nature, scope and extent of the dishonesty itself; whether it was momentary..." 43. I accept that this behaviour by Mr Rahman may have been aberrant for him and out of character, as the Tribunal found, but it cannot be properly characterised as a mere "abberation" or "act of panic". That sort of language may appropriately describe a single act of dishonesty on a single occasion. In the present case, however, there were, as Mr Williams has said, multiple acts of serious dishonesty over a period of a minimum of one week, including 9 October 2010, as the latest starting point and some time after the of 17 October 2010 as the earliest end point. 44. Mr Rahman has addressed me today with contrition and restraint. He explained to me, as I have already mentioned, that he was motivated out of what turns out to be a mistaken belief and understanding that his mortgage protection policy did not extend to termination of employment for unsatisfactory performance. He has repeated to me that at the material time, he was "shrouded by this fear". He has said that he had "an act of panic that the mortgage protection policy was not triggered" and that he had "7 to 8 days of craziness". 45. Whilst I am profoundly sympathetic to him in the overall circumstances of his loss of employment, it is quite impossible to characterise what he did in this case as simply "momentary" or a mere "abberation" or "act of panic". It was rather systematic dishonesty by a series of dishonest acts and statements, sustained over a period of at least a week.

13 46. In paragraph 22 of their decision and reasons, the Tribunal referred also to Mr Rahman's "youthfulness and inexperience". It is not for me to make a judgment as to when "youthfulness" ends, but it needs to be stressed that he was at the material time aged almost 27. He did not have long experience as a lawyer, but he had nevertheless completely fulfilled his training contract. He had passed all the exams. He had indeed worked a further almost full year for Charles Russell. In any event, as Mr Williams points out, youthfulness and inexperience cannot in the end protect against striking off for dishonesty, since Sir Thomas Bingham MR in Bolton v Law Society in a passage which I have already quoted refers to the importance of "every member, of whatever standing" of the profession being able to be trusted to the ends of the earth. The fact of the matter is that, at the material time, Mr Rahman was a fully qualified, fully admitted, practising solicitor, and he was under the same obligation of honesty as every single other member of that profession. 47. At paragraph 22 of their decision and reasons, the Tribunal said that "he had shown immediate contrition". It is true that by the date of his dated 30 October 2009, from which I have already very fully quoted, he did express great contrition. By then of course it was patent to him that he had been totally caught out, since the letters which he sent to Halifax had been sent by Halifax to Charles Russell, and then by Charles Russell to Mr Rahman. The occasion when he might more appropriately have shown "immediate contrition", frankness and candour was his of 17 October I regret to say that, as I have already described, that showed no contrition and no candour whatsoever. 48. At paragraph 13 of their judgment in Sharma, the Divisional Court identified that it is necessary to consider also whether the dishonesty "was of benefit to the solicitor and whether it had an adverse effect on others". The dishonesty in the present case was clearly designed to obtain a benefit for the solicitor, namely payment out to him by Halifax under the mortgage insurance protection policy of payments to which he believed at the material time he was not entitled. The dishonesty did have, or at any rate was intended to have, an adverse effect on others. If Halifax had paid out when they were not (as he believed) required to do so, then plainly it would have had an adverse effect on him. The dishonesty heavily implicated Mr Thomas Morrison, who, as I have said, was placed for a period under some suspicion and investigation by Charles Russell. 49. In my view, the Tribunal were right to characterise this case as "extremely serious". There were, in truth, a series of serious acts of calculated and premeditated dishonesty. The context and purpose of them was to support and promote a fraudulent claim against an insurance policy. As is well-known, insurers are highly vulnerable to fraudulent claims, and such protection as they can erect for themselves depends upon honesty and the use of honest and truthful documents and evidence. Ultimately society as a whole is a victim of fraudulent insurance claims because the effect is to increase the premiums that most of us one way or another pay. 50. But there is another aspect of this case which, in my view, is of the utmost gravity. In all sorts of ways and contexts society depends on the authenticity and integrity of letters written or purporting to be written by solicitors. That is true in the context of litigation;

14 it is true in the context of commercial transactions through solicitors; and it is no less true when letters are written on solicitors' writing paper in the context of the employment of their own staff. Mr Rahman was a solicitor. He gravely abused the stock of solicitors' writing paper that was available to him in the course of his employment. To my mind the most grave of all the grave aspects of this sad tale is the letter dated 13 October 2009, now at bundle tab 3, page 17. This solicitor completely forged from first to last a letter on the writing paper of the firm by which he had so recently been employed. He forged the signature of the firm. That is, in my view, offending of the utmost gravity for any solicitor, the dishonesty of which must have surely hit him in the face at the very time that he did it, no matter how great the "act of panic at that time". 51. As I have described, the authorities make clear that the normal consequence of any dishonesty by a solicitor is striking off. I do, as I am required by the authorities which I have already quoted to do, pay the utmost regard to the decision and reasoning of the Tribunal, but for the reasons which I have given, I am in no doubt whatsoever that their own reasoning in paragraphs 22 and 23 of their findings and decision was seriously flawed and mistaken. I am in no doubt whatsoever that if they had properly considered and applied what has been established by the courts in the cases of Bolton v the Law Society and SRA v Sharma and other authorities (I appreciate that Dennison had not at this stage been decided), then there was only one sanction that the Solicitors Disciplinary Tribunal could possibly have properly imposed in this case. That was the sanction under section 47(2)(a) of striking the name of Motihur Rahman off the roll of solicitors. 52. I now allow this appeal, and in substitution for the sanction imposed by the Solicitors Disciplinary Tribunal on 7 December 2010, I now do order that the name of Motihur Rahman be struck off the roll. I wish to stress that my decision does not turn on any fact whatsoever subsequent to the date of the decision of the Tribunal. The thrust of my reasoning and decision is, of course, that he could only properly have been struck off on 7 December 2010 and should have been struck off on that date. Further, as a result of the suspension that was imposed, he has not been able to practise at all as a solicitor in the period 7 December 2010 until 7 December In the event that Mr Rahman were ever to apply to the Tribunal for his name to be restored to the roll under the provisions of section 47 of the Solicitors Act 1974, it would only be fair to treat him as having been struck off on 7 December 2010, notwithstanding that because of the long delay in the hearing of this appeal, he has only actually been struck off today, 4 April Mr Williams, are there any other matters that now arise? 54. MR WILLIAMS: My Lord, I have an application to make for costs, and I do so make it. In so doing I am conscious of the fact MR JUSTICE HOLMAN: Just before, are there any other matters that you wish to raise? I am not suggesting there should be, but are there any other matters apart from costs?

15 56. MR WILLIAMS: No, thank you. 57. MR JUSTICE HOLMAN: There is nothing formal that I need to do or say? 58. MR WILLIAMS: No, my Lord. 59. MR JUSTICE HOLMAN: It is a very hard day for you, Mr Rahman, and I have considerable personal sympathy for you. Apart from this application that is about to be made in relation to costs, are there any other matters that you wish to raise or say? 60. RESPONDENT: No. 61. MR JUSTICE HOLMAN: Right, so your application is that I should order Mr Rahman to pay your costs of this appeal; is that it? 62. MR WILLIAMS: I am instructed to make that application. 63. MR JUSTICE HOLMAN: What is the figure we are talking about? 64. MR WILLIAMS: The figure for this appeal, according to a schedule that has been served and filed, is 10, But can I, my Lord, please make it clear that, in making my application, I am conscious of two things: firstly, that the appeal was brought about by the errors made by the Tribunal, and I cannot see that Mr Rahman himself in his address to the Tribunal contributed to those errors in any way; and secondly, it would appear that he is of very limited means. 65. MR JUSTICE HOLMAN: We will leave the limited means part to one side at this moment. Just thinking on the principle, can we go to some authority where the Tribunal did not strike off and the higher court then decided that it should do so, and look and see if we can find from these authorities what happened with regard to costs. 66. MR WILLIAMS: I can tell my Lord of one case which is not before the court; it is the case of Tilsiter in the Administrative Court before Leveson LJ and Rafferty J, as she then was. In similar circumstances to this, no order was made. 67. MR JUSTICE HOLMAN: I mean, if we look at Dennison, I have no idea what actually did happen with regard to costs, but there the solicitor, having been struck off by the Divisional Court, then appealed to the Court of Appeal unsuccessfully. I do not know, but it may be that a successful application could have been made, I suppose yesterday, by your clients for their costs of that appeal because he brought the appeal unsuccessfully. But, as you say, I mean, the error here is that of the Tribunal. It is perfectly true that Mr Rahman no doubt resisted being struck off, and as he is perfectly entitled to do, addressed them with considerable eloquence as to why he should not be struck off, and persuaded them not to be struck off, but he did not do anything wrong or devious, he just put his case. 68. MR WILLIAMS: I entirely agree, and in making the application I am instructed to make, I express my own reservations as to its strength given the point my Lord has just raised.

16 69. MR JUSTICE HOLMAN: What happens, let me just think, let us take the criminal field, suppose a judge passes an excessively lenient sentence and the Attorney General makes a reference to the Court of Appeal and they allow the reference and they increase the sentence, and let us just suppose that the person had lots of money, does the Court of Appeal, Criminal Division, then order him to pay the costs of the Attorney General's reference? I have never encountered this, I must say, because I do a lot of criminal appeals and I cannot off-hand think of a situation. If a defendant appeals unsuccessfully, that is a separate matter, but if the Attorney refers and the court says the judge went wrong, I do not think the Attorney ever asks for his costs. It would be different if the defendant had done something which induced the judge to go wrong, but this man has not done that. 70. MR WILLIAMS: I accept that. I do not believe he has. 71. MR JUSTICE HOLMAN: Is there some rule under which you are making this application, or are you making it under the rules of the Civil Procedure Rules? 72. MR WILLIAMS: My Lord, yes. There is no particular rule for these proceedings. 73. MR JUSTICE HOLMAN: How are you funded ultimately? By the solicitors' profession or by the tax payer or whom? 74. MR WILLIAMS: Not at all by the tax payer, by the profession through the payment for practising certificates. 75. MR JUSTICE HOLMAN: I do not know whether, theoretically and conceptually, having been faced with this appeal, he might, if invited to do so, have said "I will concede that they were wrong and I will consent to being struck off", but at any rate did you write a letter to him suggesting that? 76. MR WILLIAMS: No, my Lord. I do not think we would. It could be construed as applying pressure to a vulnerable person. 77. MR JUSTICE HOLMAN: He is not that vulnerable; he is a solicitor. He is in a vulnerable situation. So you cannot show me any authority where the consequence of an order for costs has followed in these circumstances. In fact, you say you are aware of one authority when there was no order. 78. MR WILLIAMS: That is all I am aware of. 79. MR JUSTICE HOLMAN: At the moment I think you have discharged your duties to your clients, but I am not going to make any order for costs. Do I need to elaborate my reasons or do they sufficiently appear from these exchanges? 80. MR WILLIAMS: I am sure they are crystal clear, my Lord. 81. MR JUSTICE HOLMAN: I feel it would be very unfair. All of this has not resulted from any deception or any other impropriety by him in relation to the conduct of this case. It is perfectly true that the Tribunal ordered him to pay costs in the sum of

17 1,000, but that is because his dishonesty is what resulted in the proceedings, but by this stage this appeal has resulted not from his dishonesty -- I know we are only here because of his dishonesty -- but it has resulted proximately because of, as you have submitted and as I have found, a clear and significant error by the Tribunal. 82. So the order is that there be no order as to the costs of either side of and incidental to this appeal. Any other matters? 83. MR WILLIAMS: No, thank you. 84. MR JUSTICE HOLMAN: Thank you very much indeed for all your assistance, both in writing and today. Mr Rahman, I do appreciate that it is a very, very sad day for you. I do not know whether you foresaw it coming, but I regret that I have had to deal with you in this way, although I do not have the slightest doubt that I have had no option but to do so in discharging my own duty. But I thank you for your courtesy and restraint, and I am very, very sorry indeed that you have to leave court in this situation. Thank you all very much indeed.