SOLICITORS DISCIPLINARY TRIBUNAL. IN THE MATTER OF THE SOLICITORS ACT 1974 Case No and. Before:

Transcription

1 The Tribunal s decision is subject to appeal to the High Court (Administrative Court) by the Applicant. The Order remains in force pending the High Court s decision on the appeal. SOLICITORS DISCIPLINARY TRIBUNAL IN THE MATTER OF THE SOLICITORS ACT 1974 Case No BETWEEN: SOLICITORS REGULATION AUTHORITY Applicant and VINCENT GRAY Respondent Before: Ms N. Lucking (in the chair) Mr G. Sydenham Mrs L. McMahon-Hathway Date of Hearing: May 2018 Appearances Nimi Bruce, barrister, of Capsticks Solicitors LLP of 1 St George`s Road, London, SW19 4DR, for the Applicant Gregory Treverton-Jones, QC, of 39 Essex Chambers, 81 Chancery Lane, London, WC2A 1DD (Instructed by Jonathan Greensmith of Keystone Law), for the Respondent JUDGMENT

2 2 Allegations The allegations made by the Applicant against the Respondent were set out in a Rule 5 Statement dated 3 November The allegations were that: 1.1. He caused or allowed civil proceedings to be issued, in respect of all or any of five specified cases, without any or adequate instructions to do so, and therefore breached: Insofar as such conduct occurred on or before 5 October 2011, Rules 1.04 and/or 1.06 of the Solicitors Code of Conduct 2007 ( the 2007 Code ); Insofar as such conduct occurred on or after 6 October 2011, Principles 4 and/or 6 of the SRA Principles 2011 ( the Principles ) He caused or allowed personal injury claims to be settled, in respect of all or any of seven specified cases, without any or adequate instructions to do so, and therefore breached: Rules 1.04 and/or 1.06 of the 2007 Code; or Principles 4 and/or 6 of the Principles He caused or allowed false and/or misleading representations to be made, to the effect that clients had accepted settlement offers, in respect of all or any of seven specified cases, and therefore breached: Rules 1.01, 1.02, 1.04, 1.06 and/or of the 2007 Code; or Principles 1, 2, 4 and/or 6 of the Principles. 2. Dishonesty was alleged in respect of the allegation at paragraph 1.3 above but dishonesty was not an essential ingredient to prove that allegation. Documents 3. The Tribunal considered all the documents in the case which included: Applicant Respondent Application and Rule 5(2) Statement dated 3 November 2017 with exhibit RTM1 Report of Jonathan Chambers, Forensic Investigation Officer dated 20 May 2016 The Applicant s Schedule of Costs dated 3 November 2017 and 23 May 2018 The Respondent s Answer dated 11 December 2017 The Respondent s Witness Statement with exhibits VG1 and VG2

3 3 Factual Background 4. The Respondent was admitted to the Roll on 1 November 1995 and at the time of the hearing held a current practising certificate free from conditions. The Respondent was one of two partners in the firm of Dunne and Gray solicitors ( the Firm ). 5. Between approximately March 2014 and January 2015, the SRA s Professional Ethics department received a number of applications from the Firm seeking to withdraw unclaimed credit balances from its client account, totalling approximately 20,000, in order to send those monies to the Solicitors Benevolent Fund ( the Fund ), pursuant to Rule 20.1(k) of the SRA Accounts Rules These funds were damages for personal injuries previously awarded to clients of the Firm. According to the Firm, the relevant clients were not traceable and it was therefore unable to pay them their damages. 6. In late 2014, a forensic investigation of the Firm was commissioned resulting in a report dated 20 May 2016 ( the FIR ). During the inspection, the Forensic Investigation Officer ( FIO ) reviewed ten client matter files. Overall, these suggested that the Firm had settled a number of cases without instructions to do so, thereby recovering its profit costs and disbursements. The FIR raised a number of issues in respect of these ten matters which were all conducted or supervised by the Respondent. Across the ten matters, the Firm was paid a total of around 25, in damages for its clients and recovered and retained its profit costs and disbursements in the total sum of around 48, Eight of the ten matters were relied on in respect of the allegations made in the Rule 5 Statement. 7. On 1 November 2016, a Regulatory Supervisor at the SRA with conduct of the matter wrote to the Firm, seeking an explanation in respect of a number of alleged breaches of the SRA Code of Conduct A response was provided by the Firm on behalf of the Respondent and the Firm on 5 January In summary, the Firm denied the misconduct alleged and maintained that the Respondent always acted within the scope of his authority, albeit this was implied where he faced a professional dilemma. 8. On 17 May 2017 an Authorised Officer of the SRA decided to refer the Respondent s conduct to the Tribunal. Witnesses 9. The written and oral evidence of the witnesses is quoted or summarised in the Findings of Fact and Law below. The evidence referred to will be that which was relevant to the findings of the Tribunal, and to facts or issues in dispute between the parties. For the avoidance of doubt, the Tribunal read all of the documents in the case and made notes of the oral evidence from the Respondent. The absence of any reference to particular evidence should not be taken as an indication that the Tribunal did not read, hear or consider that evidence. 10. The Respondent gave evidence. Mr Treverton-Jones submitted that honesty and decency shone out of him. The Respondent was asked about short conversations with fee earners which took place many years ago in respect of what for the most part were

4 4 unremarkable cases. In Mr Treverton-Jones submission when the Respondent said that he could not remember this was what any solicitor would say when asked to recall events many years after they occurred. 11. The Tribunal assessed the Respondent to be an honest and credible witness who had a heart felt belief that he had acted in the best interests of his client. At times he appeared incredulous at the questions being asked. The Respondent seemed not to know some of the detail of the matters he was being asked about. This resulted in him appearing as if he was trying to evade answering some questions. The Tribunal considered that it would have assisted the Tribunal if the Respondent had refreshed his memory of the eight files in question as this would have enabled him to provide more definitive responses to some questions. However, the Tribunal was conscious that the events in question had taken place a long time ago; the FIO had undertaken her investigation over three years before the hearing and the FIR was dated 20 May Given the passage of time and the number of cases that the Firm dealt with it was understandable that the Respondent s recollection of events did not come across as clearly as it might have. Findings of Fact and Law 12. The Applicant was required to prove the allegations beyond reasonable doubt. The Tribunal had due regard to the Respondent s rights to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 13. Allegation 1.1 The Respondent caused or allowed civil proceedings to be issued, in respect of all or any of five specified cases, without any or adequate instructions to do so, and therefore breached: Insofar as such conduct occurred on or before 5 October 2011, Rules 1.04 and/or 1.06 of the 2007 Code; Insofar as such conduct occurred on or after 6 October 2011, Principles 4 and/or 6 of the Principles. The Applicant s Case 13.1 In respect of allegation 1.1 the Applicant relied on five specified cases namely cases 4, 6, 7, 8 and 9. The facts of each case as they relate to the allegation are set out below. Case In this case, the Respondent terminated the Firm s Conditional Fee Agreement ( CFA ) with the client due to concerns that the referrer may have been involved in fraudulent personal injury claims. The Respondent subsequently caused or allowed civil proceedings to be issued without instructions to do so.

5 The Firm was retained under a CFA dated 1 January 2009, signed by the client. A compensation questionnaire of the same date was also signed by the client (or someone purporting to sign on his behalf) and includes the text: I instruct Dunne and Gray Solicitors to act on my behalf and if appropriate issue legal proceedings The FIO confirmed that: the last communication from the client as evidenced on the file was an authority signed by the client dated 4 January The FIO did not produce this authority but the Respondent asserted that the document expressly authorised the Firm to negotiate settlement of the client s claim: on best terms possible in the region of 3, However, the CFA (and therefore any authority deriving from it) was unilaterally terminated by the Firm by way of letter dated 23 November 2011, bearing the Respondent s reference (VG/JWH/JWH/XL102050/ [client s surname]. The letter detailed concerns about the same telephone number being provided to defendants in various different road traffic accident claims, leading to concerns that the corresponding accidents were fraudulently staged. The letter stated, among other matters: As a result of us recently finding out more information about those persons connected to that telephone number we have reviewed the prospects of success of your accident claim being accepted by a Court as being genuinely pursued and not in fact fraudulently pursued if the Defendant presents evidence to the Court that the same telephone number was given out in your case then without a plausible explanation as to why it was given out then the prospects of your case being accepted by a Court are close to zero there is a real likelihood that the trial judge would dismiss your claim, say that you have attempted to defraud the Defendant and the Defendant s insurance company and order that you pay all the Defendant s legal costs. There is also the real risk that the trial judge would instigate criminal proceedings against you. Any such criminal proceedings would carry the risk of imprisonment In the circumstances we have decided to terminate the no win no fee agreement. For us to carry on handling your case we require you to instruct us on a private client paying basis No such instructions were forthcoming. On 12 January 2012, the Respondent himself sent two letters to the client in which he said he was in the process of closing the case file. One of these letters gave some final advice (mainly in respect of limitation), the other enclosed a bill in respect of the work done on your behalf and referred to the 23 November 2011 letter as my [i.e. the Respondent s] letter Notwithstanding the above, on 6 July 2012, the Respondent then attempted to contact the client but was unsuccessful. A file note prepared by the Respondent that day stated: We appear to have lost contact with the client.

6 6 Limitation is I have called the mobile number on file but it is not recognised. I have called the landline number on file and it rang and rang and then a female answered but when I asked to speak to [the client] she said he is not here. I tried to ask if he had a mobile number but before I got the words out she must have hung up as I could hear myself say the words on the phone like an echo. I called the number again and it rang and rang and then went to voic It was not recorded why the Respondent was seeking to contact the client in circumstances where he had previously terminated the retainer and closed his file, (having had and expressed serious concerns about fraud). In any event, on the same day, the Respondent sent the client copies of medical reports for approval and advised that his claim based on the reports has a value in the region of That letter stated: Please telephone me to authorise me to disclose the reports to the insurance company and to negotiate a settlement of your claim. It went on to warn in clear terms about the impending end of the limitation period and stated: If you do not respond in time then you will have lost your right to the money This correspondence was returned to the Firm marked addressee unknown. As such, it appeared that the medical reports were not approved by the client (although this was not accepted by the Firm). If so, it followed that the Respondent did not know whether they could be relied upon for the purpose of assessing damages. Attempts to contact the client via a known associate were unsuccessful On 28 August 2012 (the last date for doing so within the limitation period) the Firm issued proceedings on the client s behalf. The Particulars of Claim were not approved by the client but an employee of the Firm signed a statement of truth to the effect that they were. It was most unlikely that the Respondent was unaware of this significant step being taken on his file. In allowing it to be taken the Respondent acted without instructions The Respondent asserted that the Respondent s decision to terminate the CFA was reversed with retrospective effect. Not only was there no record or documentary evidence of this decision, the Respondent has failed to explain how, as a matter of contract, having unilaterally terminated the Firm s retainer (a step apparently uncontested by the client), he was able to un-terminate the same unilaterally. There was no evidence that the client agreed to the retainer being revived in this way. Nor had the Respondent or the Firm explained the basis upon which we changed our mind and concluded that we could properly continue to act. This was in circumstances where the Respondent s reasons for terminating the CFA had to do with the possibility of fraud and absent evidence that those concerns had subsequently been resolved.

7 During the course of this investigation, the Firm (including the Respondent) was served by the SRA with production notices under s44b of the Solicitors Act 1974 requiring it to provide evidence of the client confirming the accuracy of the particulars. The response failed to do so, simply asserting that the client was sent a copy of the particulars of claim and said nothing to raise any concerns and did not advise the need for any change. This was in circumstances where an employee of the Firm working on the Respondent s file, had signed a statement of truth to confirm assertively to the court that the client believed the contents of the Particulars of Claim to be true The Firm further stated (and the Respondent contended) that its authority to issue proceedings was contained in the compensation questionnaire. The form contained the following: I instruct Dunne and Gray Solicitors to act on my behalf and if appropriate issue legal proceedings However the Respondent had not explained how the above, general, authority given on 1 January 2009 could survive his termination of the Firm s retainer on 23 November In any event, it plainly was not appropriate to issue proceedings in circumstances where the Firm had not heard from the client in over two and a half years, despite numerous attempts to contact him, (including clear warnings that he risked the loss of his claim) The issue of civil proceedings was a very significant step with important legal consequences. Under the Civil Procedure Rules ( CPR ), a claimant was required to sign a statement of truth to confirm, assertively, that he believed that his particulars of claim were true. A solicitor may sign on his client s behalf but only if s/he has clear instructions that the client (as opposed to the solicitor) believed the particulars of claim to be true. Indeed, the Practice Direction to CPR Part 22, paragraph 3.8, stated as follows: 3.8 Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement: (1) that the client on whose behalf he has signed had authorised him to do so, (2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client s belief that the facts stated in the document were true, and (3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts As to the settlement, the Respondent again relied upon implied instructions derived from the client s alleged approval of the medical report and standing authority to disclose this with a view to assessing compensation. There was no evidence that the offer itself was successfully communicated to the client, still less that he accepted it. Although the Respondent relied upon the fact that the offer comfortably exceeded the figure apparently mentioned in the authority of 4 January 2010, he failed to address how that authority could survive his unilateral termination of the retainer on 23 November Again, this was a case where the Respondent had expressly

8 8 warned the client, on 6 July 2012, that he risked losing his right to the money if he did not respond in time On 25 October 2012 the Firm received and retained 7,500 in respect of its costs and disbursements. On 26 August 2014 the Firm passed the balance of the client s damages to the Fund. Case In this case, the Respondent issued proceedings on or about 5 December 2011 without any or adequate instructions to do so. The Respondent bore responsibility for this step as the partner with conduct or supervision of the file The Firm was retained under a CFA dated 12 January 2009, signed by the client. On 11 February 2010, the Firm wrote to the client chasing his approval of the medical report. The letter stated: We can not [sic] trace having received your signed form of authority to use the medical report in the case. We should therefore be grateful to receive from you, in the next 7 days, the signed form of authority giving permission to use the report. We are unable to progress your case until we have your permission to use the report A file note dated 24 March 2010 stated: Client is failing to cooperate and is apparently out of the country and no one knows when he will be back The client has been to his medical and we have a report in however we are still outstanding his GP records. The case is stuck as the client seems no longer interested in the claim and hasn t been in the country for some time The case remained stuck over a year later because on 30 June 2011 the Respondent wrote to a car company and stated: I simply need you to confirm that the client has approved the medical evidence so that I can proceed to disclose it and seek settlement proposals. Although the car company introduced this client to the Firm, and was authorised to appoint the Firm as his solicitors, it was unclear why the Respondent was using a third party to obtain instructions from his client as to whether his medical report was approved. In any event, on 4 July 2011, the car company purported to confirm that the client has approved the medical evidence. There was no record that it produced anything from the client himself to evidence this assertion On or about 5 December 2011 the Respondent issued proceedings. A file note prepared by the Respondent dated 5 December 2011 describes the Particulars of Claim as client approved but there was nothing from the client on file confirming this; a letter to the client bearing the same date simply stated: In order to make further progress with your case we have asked Altrincham County Court to issue and

9 9 serve on the defendant the enclosed Particulars of Claim. It could therefore be inferred that the Respondent issued proceedings without instructions Damages were received on 8 May The Firm s costs and disbursements were recovered on 23 August These totalled 4,700. An internal memorandum dated 14 February 2013 stated: This is one where we are holding money on client account. The truth is that we didn t have instructions to settle it from the client and couldn t get instructions on a Part 36 offer that was received. CH went to VG and he told me to accept it anyway The FIR detailed that on 11 March 2013 it was brought to the Firm s attention by the Insolvency Service that the client was bankrupt following an insurance scam on his part. The bankruptcy post-dated the settlement date but the Insolvency Service declined to accept the damages due to concerns that they might be the proceeds of fraud. The Insolvency Service asked that If the bankrupt comes forward, please can you provide me with the details of his whereabouts because he is subject to an existing arrest warrant following his non-cooperation with us. On 7 June 2013, the Firm donated the damages to the Fund but these were subsequently retrieved and passed to the client (who had resurfaced), apparently without informing the Insolvency Service In respect of issuing proceedings, the Respondent s position was that the Particulars of Claim were drafted on the basis of the Client s completed questionnaire; the client warranted that the contents of the completed questionnaire were true. The Respondent asserted that the Firm s authority to issue proceedings was signed by the client on 10 December 2008 and/or that it acted within an implied authority. Given that this was a claim for personal injury in which the Respondent or those supervised him had sought but not received the client s approval of his medical report, it was not accepted that the Firm had adequate instructions to plead the claim or to issue proceedings In respect of settlement, the Respondent maintained that he acted within the scope of standing instruction from the client, who was eventually well content with the result. This position was inconsistent with the memorandum of 14 February 2013 referred to above: The truth is that we didn t have instructions to settle it from the client and couldn t get instructions CH went to VG [the Respondent] and he told me to accept it anyway The fact that the (bankrupt) client may have been pleased with the result was unsurprising and irrelevant to the question of whether the Respondent had any or adequate instructions to settle the claim. Case In this case, the Respondent issued proceedings on or about 20 June 2011, in circumstances where he and/or those supervised by him had requested but not received approval of the Particulars of Claim. The Firm was instructed under an undated CFA signed by the client. The FIO confirmed that both the medical report and a supplementary medical report were approved for disclosure but that the latter was the last communication from the client evidenced on the file.

10 On 28 January 2010 the Firm wrote to the client to request his authority to enter into settlement negotiations. On 31 March 2010 the Firm wrote to the client including as follows: The other driver s insurance representatives appear to have concerns regarding the genuineness of your claim, and or, perhaps, the other people said to be involved your accident. These concerns sometimes lead to an allegation that your claim is made on a fraudulent basis. At this stage we do not have any specific allegations to put to you. In order for us to properly advise you on your case please ensure you answer all the attached questions as fully and as clearly as possible and do not delay in replying or sending the requested information and documentation. Please remember to send colour copies of any requested copy documentation. The attached questions have been designed to enable us to understand your involvement in the accident and for us to decide how best to advise you about your chances of success. It is therefore in your best interest to answer all the questions truthfully No response to the above was recorded, despite a number of chasers. A file noted dated 10 November 2010 stated: file with VG fraud category. This indicated that the file was with the Respondent. A further letter was sent to the client on 6 December 2010 on very similar lines to the 31 March letter. Again, no reply was received. On 26 May 2011, the Respondent wrote to the client including as follows: Please check the Particulars of Claim carefully and where inaccurate make alterations or amendments. It is important that the Particulars of Claim are accurate and true. If deliberately inaccurate you could be held in Contempt of Court It is important therefore that you fully understand the contents of the document before you sign A file note bearing the same date stated: Once the client has sent back to us the signed off POC and Schedule we should be in a position to disclose full details of the claim to the other side. Again, no response was received yet, on 20 June 2011 (according to a letter bearing that date describing him as the case handler), the Respondent issued proceedings. A file note bearing the same date described the Particulars of Claim as client approved but this was not the case. The Particulars of Claim were not client approved and in causing or allowing them to be issued the Respondent acted without authority The Respondent relied upon implied authority derived from the client s authority signed 31 January 2010 and his signed compensation questionnaire. Given the concerns of fraud and the client s failure to approve the Particulars of Claim, it was not accepted that the Respondent had adequate authority to issue or settle these

11 11 proceedings, particularly (as to the latter) in circumstances where the client had also failed to sign a witness statement or statement of fact. The Respondent further relied upon the fact that the client immediately responded to the news of settlement with a request that the monies be sent to his cousin (which the Firm properly declined to do without written authority). These communications occurred after the event; they cannot be relied upon as retrospective evidence of authority/instructions which were otherwise lacking prospectively On 11 December 2011, the Firm received the client s damages. These were subsequently passed to the Fund. On or about 12 March 2012, the Firm received and retained its profit costs and disbursements in the sum of Case In this case, the Respondent issued proceedings without any or adequate instructions to do so but the file does not make clear why this step was taken. In any event, (following concerns from the other side suggestive of fraud) the client subsequently provided authority to settle the proceedings. The Firm was retained under an undated CFA signed by the client. There was no record that the client approved the Particulars of Claim for issue. In issuing proceedings without client approval, the Respondent acted without instructions The Respondent relied upon the Firm s compensation questionnaire which was signed by the client and stated: I instruct Brown Dunne and Gray Solicitors to act on my behalf and if appropriate issue legal proceedings. He also relied upon the fact that the medical report was approved for disclosure. It was not accepted that the above constituted adequate instructions rendering it appropriate to issue civil proceedings. The issue of a claim form with Particulars of Claim was a very significant step with important legal consequences. As noted above, under the Civil Procedure Rules, a claimant was required to sign a statement of truth to confirm, assertively, that he believed that his particulars of claim were true. A solicitor may sign on his client s behalf but only if he has clear instructions that the client (as opposed to the solicitor himself) believed the particulars of claim to be true. The compensation questionnaire did not contain anything sufficient to enable the Respondent or a colleague to sign the claim form or the Particulars of Claim On 26 July 2013 the Firm passed the balance of the client s damages, received on 30 June 2011, to the Fund. The Firm recovered and retained its profit costs and disbursements in the sum of 6,800. Case In this case, the Respondent caused or allowed proceedings to be issued without any or adequate instructions to do so; however, the file did not record when this occurred, it was only obvious from file notes prepared after the event. All the documents bore the Respondent s reference and it followed that he knew of and approved the major steps taken.

12 The Firm was retained under a CFA dated 2 January 2010 signed by the client. A file note dated 21 December 2010 with the reference VG/BAT/BAT/XL104656/[client s surname] stated: I have today reviewed this case file. Witness statement has been drafted in the absence of client contact as we have lost contact with the client. Sent an urgent letter out to the client A further file note dated 6 January 2011, which bore the same reference, stated: I have today reviewed this case file with VG in light of the recent on file from CMA. VG advised that we need to act quickly on this file as we are at a risk of losing the claim. Looking on file there is an offer received 1st October 2010 (post issue) of 3, which has not been put to the client. The claim was issued without us having the client s signed authority on file therefore we are acting without instructions if we are to consider accepting the offer. However the claim looks like we should strongly consider accepting the offer asap. The longer we leave the offer the more we will be penalised in terms of costs of late acceptance, but we are in difficulty in terms of acting without instructions It was clear from the above that (i) proceedings had by this point been issued and (ii) this step was taken without the client s authority. In causing or allowing these proceedings to be issued, the Respondent acted without instructions. In respect of issuing proceedings, the Respondent relied upon the Firm s compensation questionnaire, which was signed, and upon the client s approval of the medical report. It was not accepted that these documents constituted adequate instructions for the Firm to have issued civil proceedings. The Respondent accepted that the client did not respond to the Firm s letter requesting the signed Particulars of Claim and Schedule but suggested that that is equally consistent with tacit approval. This was an unsustainable suggestion in circumstances where the CPR required and requires the Particulars of Claim to be assertively confirmed by a statement of truth The Respondent accepted that the relevant offer was not put to the client but maintained that the Firm acted in the client s best interests. On or before 5 August 2011 the Firm received the client s damages, which were subsequently passed to the Fund. The Firm also recovered and retained its costs in the sum of 6,

13 13 Breaches of Rules and Principles By causing or allowing civil proceedings to be issued without any or adequate instructions to do so, the Respondent failed to act in the best interests of each client, contrary to Rule 1.04 of the 2007 Code and/or Principle 4 of the Principles. Acting in his clients best interests would have required the Respondent to be satisfied that he had adequate instructions to issue legal proceedings on their behalf because of the significant potential consequences of such a step, including potential costs implications The Respondent s conduct in this regard was also likely to undermine public trust and confidence in himself and in the provision of legal services, contrary to Rule 1.06 of the 2007 Code and/or Principle 6 of the Principles. Members of the public expect solicitors to act within the scope of their instructions and not to issue legal proceedings without clear authority to do so. The Respondent s Case The Respondent denied the allegation as on each case the client had given instructions to the Firm to pursue a claim for personal injuries and that was precisely what was done The Respondent denied that proceedings were issued without any or adequate instructions, as alleged. The Respondent did not issue proceedings in Cases 4, 8 or 9. In those cases in which he did act, he had at all times acted in clients best interests and in accordance with their instructions to use skill and experience to secure suitable compensation for personal injury claims. Clients best interests had been at the forefront of the Respondent s mind at all times, including where difficult strategic decisions had to be taken in order to maintain and preserve those interests to achieve the best level of compensation that could be obtained by the Firm on their behalves. In the circumstances of each of the cases set out above, the Respondent made what he considered to have been the correct decision in the clients best interests taking into account the enduring instructions that the Firm held The Respondent denied that he had acted without adequate instructions and denied the allegation. In each of the cases exemplified and relied upon by the Applicant the Respondent stated that he had acted in good faith and exercised judgment, experience and discretion under the terms of his general authority as a solicitor to pursue low-value personal injury matters on behalf of and in the best interests of the Firm s clients In November 1998 the Respondent opened his own practice with two partners and remained in partnership with Mr Dunne. From humble beginnings with three partners and support staff, the Firm grew to include solicitor non-equity partners, solicitor associate partners and other, more junior, solicitors and trainees, until in April 2004 the Firm moved into a new, 10,000 square foot, office building in Scott Drive, Altrincham, where the Firm was located to this day.

14 By and large the Respondent drafted all standard letters and documents used within the Firm and by around 2010 his role was to look after the day to day running of cases and his fellow equity partner would look after the administrative side of the practice. The Respondent developed a series of letters, forms and procedures which were predominantly used by the case workers within the Firm and which were an effort to steer fee earners towards a standard pattern of work. These internal processes were a management tool and assisted supervision within the Firm At the time of the cases exemplified in these proceedings the Firm had devised a system of work which split the various stages of a case into different teams. All of the partners would supervise the various teams and the Respondent was, in effect, the Head of the Litigation Department, and his reference appeared on correspondence and documents accordingly. Fee earners were able to raise queries with any partner. Any partner was authorised to sign off on court proceedings. The Respondent and his fellow equity partner ran and were at the heart of the practice. They were keen to do a good job on all cases in which the Firm was instructed and saw their role as being to win the case and get their client their due damages All cases in this area of work were under the Respondent s reference as he was in charge of litigation. The next set of initials were those of the person who had conduct of the matter and the next set were those of the person who had typed the letter. If the reference was VG/CES/CES then CES was the case handler and the person who had typed the letter In the Respondent s experience the client in such cases will by and large rubber stamp everything that the Firm advise upon, including as to valuations of injury awards. The assessment of an appropriate award will fluctuate depending upon a number of factors including the quality of the medical evidence, the procedural position and the risk of a case being struck out for non-compliance with case management directions. The value of damages in the majority of personal injury claims in the Firm were around 3,000-4,000, although they could be much lower The majority of clients in these matters expected solicitors to carry out all of the work quickly and to present them promptly with a cheque. In the Respondent s experience of this work few clients showed a keen interest in their claim; the vast majority did not and it was often down to the solicitor to have to chase clients for instructions. It was not uncommon for solicitors to have to write several reminders to a client or for clients to simply ignore correspondence and to then, perhaps twelve months later, ring up and ask how a claim was progressing and when they would be likely receive their cheque. The Respondent illustrated this point by way of an example that on 23 May 2018, the Firm was contacted by a client who was injured in a traffic accident in September 2015 and who had from the very beginning of his claim been difficult to communicate with. The Firm had not heard from this client for eighteen months, despite multiple letters chasing for him to make contact. It transpired that he had changed address but had not told the Firm. He rang, completely out of the blue, asking for an update on the progression of his case. This was a timely example of the difficulties that are faced when working with and for clients of this nature.

15 The Respondent said that the work became more difficult when a client could not fully understand or speak English. A lot of low value claims appeared to be made by the poorer section of the public, and many were from ethnic minorities. Most of the claimants who the Firm represented at the time in question in these proceedings were Asian. Many spoke perfect English but the majority could not. The Firm s standard template letters that were used by caseworkers were carefully thought through to try to ensure that those with English as a second language were presented with documents and letters that they could understand. Another characteristic of these clients was that many were transient and would disappear for seemingly long periods of time, some travelling and others returning to see family at home. They also moved frequently from accommodation to accommodation. In this context the cases exemplified by the Applicant, in which contact was lost with clients, were not unusual. If there had been a third party introducer the Firm had asked them to help track the client down. The clients often preferred to speak to the intermediary as they could pop in to see them and there were less language difficulties. The clients rarely contacted the Firm directly The Respondent had co-operated fully with the Applicant s investigation. The Respondent had reviewed and considered the responses that had been provided to the Applicant in relation to the allegations and confirmed that they were true and accurate to the best of his knowledge and belief. The Respondent and Firm had conscientiously exercised professional judgement in a situation of professional dilemma. In all of the cases relied on by the Applicant they had experienced this dilemma, in varying degrees, which required them to act on a case by case basis to exercise their professional judgement as to what the best interests of the client required Mr Treverton-Jones submitted that the Applicant revealed itself to be somewhat out of touch regarding practice in this part of the legal market. If a case, funded by way of CFA, failed the solicitor did not get paid. It was a different position to a privately funded client. The Law Society had produced conditions in respect of CFA and these were incorporated into the Firm s CFAs. These gave the solicitor and not the client control. Solicitors could not be forced to continue such cases when there was an offer which ought to be accepted. In order to make a profit in this area of work there had to be high volumes of cases and paralegals doing the day to day work with solicitors becoming involved as required. The Respondent had drafted general documents for fee earners to use which were all excellent. The file notes showed that this was a Firm that was honest, open and accountable. There had been no attempt to conceal. There had been eighty fee earners in the Firm and the Respondent s main role was to be there when something difficult occurred on a case and to give the case handler advice. If a fee earner had queries then there were a number of people they could go to for assistance The Respondent s evidence was that the Firm had opened 300 to 500 cases per month which equated to 3,600 to 6,000 cases per annum. The work was high volume, low value claims arising from road traffic accidents. The Respondent could not be sure how many files the Firm had open at any one time. The cases could take two to three years. He estimated that there could be 10,000 to 15,000 cases open at any one time. It was a significant number.

16 The income produced by the eight cases referred to in the Rule 5 Statement was 41, (including disbursements). On some of these cases there had been more than one respondent and not all of the costs may have related to the exemplified files. This was not significant when the Firm s turnover was approximately 6,000,000 per annum. The Respondent was not going to put his right to practice at risk for sake of this very small fee income Mr Treverton-Jones argued that what the Applicant was seeking to argue was that the Respondent was personally responsible for ensuring that he had instructions to issue proceedings before proceedings were issued on every case. This was not feasible. Whilst ultimately as a partner the buck stopped with the Respondent this did not mean that he was guilty of professional misconduct. In Akodu v SRA [2009] EWHC 3588 (Admin) Moses J said that there had to be some degree of personal fault before there could be a finding of guilt against a partner in a firm. The Respondent could not be vicariously liable The allegations that the Respondent had failed to act in the best interest of each client were not just. In each of the cases he had attempted to do his best for his clients, to preserve their rights by issuing proceedings when limitation was pressing and by settling on the best terms available. In every case what was accepted was a decent offer. The Respondent s actions meant that the clients were not precluded from claiming, were able to receive compensation and were protected from orders to pay the other sides costs The Respondent had behaved in a way that maintained the trust that the public placed in him and in the provision of legal services. The reasonable person in the street would think that the Respondent had acted in the best traditions of the profession when seeking to do his best for his clients when faced with a general dilemma as to what he should do in these cases. The Respondent did not like the situation he was in but was trying to deal with it Mr Treverton-Jones submitted that in relation to allegation 1.1 and the other allegations against the Respondent the Applicant had failed to prove its case. In respect of the underlying facts of each allegation the Respondent had done his best for his clients and there was nothing about his conduct that remotely deserved punishment by the Tribunal and nothing that could remotely be described as professional misconduct. Case The claim was a straightforward road accident claim in which the client had been a passenger in a motor vehicle and had sustained injury. The client was one of a number of claims that were introduced by a third-party organisation. On the face of it these appeared sound but the Respondent grew increasingly cautious as to which of this group of claims went forward, creating a number of different standard letters for use by the teams within the Firm to deal appropriately with this group of cases. The letter referred to by the Applicant in the Rule 5 statement was one such letter, citing some of the difficulties that had emerged with certain of the claims within the group of cases referred by the third-party organisation.

17 This claim file had been included within the category of cases that the Firm had decided not to progress and in the course of which letters had been sent, in January 2012, bearing the Respondent s reference and referring to the Firm being in the process of closing the client s file. In fact, the file was never actually closed. The file was reviewed as the limitation period approached and at that point the Respondent recognised that it ought to have gone forward and that the Firm had done the client a disservice by treating it as being amongst the category of inappropriate claims which were not progressed. The Firm changed its mind and decided that it could properly continue to act and reversed its decision with retrospective effect. The Firm continued acting for the client and the client was plainly aware of this, albeit there was no written record of the reversed decision. The Respondent knew that the driver s claim was genuine and not fraudulent and had been settled. He also knew that the insurer of the other party would therefore be looking to make a settlement of this claim also The limitation date was 28 August On or around 6 July 2012 the case started to move towards settlement and disclosure was made to the Third-Party Insurer and settlement proposals invited. The Respondent wrote to the client. In evidence he said that it was unusual for him to write a letter like that but he had had to because time was of the essence. On the linked file (that of the driver, which claim had been successful at court in January 2011), the insurer had instructed solicitors. On 24 August 2012 the Respondent made contact and invited settlement of this, linked, claim, but this was not possible owing to the proximity of the limitation date In view of the client s instructions on 4 January 2010 to try to agree a settlement on best terms possible in the region of 3,250 in full and final settlement of [his] claim and his enduring instruction to act on [his] behalf and if appropriate issue legal proceedings and mindful of his duty to represent the client s best interests in respect of the claim, the Respondent decided that the Firm had to issue protective proceedings. This meant that a Claim Form would be issued but not served, so as to try to settle the case. It was the Respondent s intention that the Firm would bear the cost of issuing the Claim Form owing to the file having been inactive for eighteen months owing to being wrongly categorised with other Go Direct cases, as explained above In the Respondent s absence from the office, he believed on holiday, either the office misunderstood his instruction to issue protective proceedings or it was countermanded by another partner and a Claim Form and Particulars of Claim were sent to the court for issue and were returned to the Firm for service. This was not the Respondent s intention. The Respondent did not prepare the Particulars of Claim. The signature upon the document was not his. He did not issue proceedings in this case In any event the Firm issued proceedings on the basis of its continuing and subsisting retainer and because the limitation period was about to expire. There was no requirement for a client to sign the Particulars of Claim. That was a matter of prudence and a course the Firm normally followed but it was not essential. At the time the proceedings were issued the Firm had authority to do so and was correctly able to sign the statement of truth on the basis of prior confirmation by the client as to the accuracy of the particulars of claim. The proceedings were issued but not served.

18 The Firm had had a specific authority to issue legal proceedings. Whilst a purist may say that the Respondent having ended the retainer should have asked the client to sign a further CFA, the Respondent was operating in the real world and continued to represent the client and treated the CFA as revived. Case The Respondent was not the primary fee earner in this matter which was, on the face of it, a simple road traffic accident case. Matters pertaining to special damages were straightforward and met in full by the defendant s insurers but the claim for personal injuries was substantially delayed by the unavailability of the client and his failure to respond to the efforts of the fee earner to resolve the matter. The fee earner made efforts to contact the client but was unsuccessful in doing so An effort was made to contact the client via the introducer, who was able to obtain confirmation that the client gave authority to release the medical report and to pursue the personal injury claim, which was in accordance with the client s initial instructions and the general authority provided to pursue the claim in accordance with the detail provided in his questionnaire. This confirmed that the client remained intent on pursuing the claim notwithstanding his lack of direct contact with the Firm. Despite efforts, the Firm was unable to obtain instructions over and above the general authority to act and to pursue the client s claim. That instruction remained extant notwithstanding the client s failure to make direct contact with the Firm The Respondent was conscious that it was necessary to act in the client s best interests and to take steps to pursue the claim before the expiry of the limitation period. If the claim became statute barred then the client would lose entitlement to his personal injury claim, in respect of which he had provided instructions including the release of his medical report and he had given authority to pursue the claim. Proceedings were therefore issued to protect the client s claim. The particulars reflected the information provided by the client at the outset of the matter and which had been warranted by him as true When proceedings were issued the clients were sent a standard letter which the Respondent s personal assistant produced. This meant that the Respondent could not be sure that the letter to the client dated 5 December 2011 had been dictated by him. Nor could he recall his conversation with CH on 19 April 2012 in respect of this case. Case This was a case involving a road traffic accident on 19 October 2009 in which the client was a passenger in a motor vehicle and sustained minor soft tissue injuries. A medical report and subsequent medical report were approved for disclosure by the client. In January 2010 the Firm indicated to the client that damages were likely to be in the region of 2,500-2, Owing to the apparent impasse of the other driver s insurance representatives it became necessary to issue proceedings in order to progress the client s matter, in accordance with his standing instructions to achieve the best possible outcome in his personal injury claim. Particulars of claim were prepared and proceedings issued. The