Before : MRS JUSTICE THIRLWALL DBE Between :

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1 Neutral Citation Number: [2016] EWHC 1914 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Case No: CO/4126/2015 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/07/2016 Before : MRS JUSTICE THIRLWALL DBE Between : SOLICITORS REGULATION AUTHORITY Appellant - and - (1) KULWANT SINGH MANAK Respondents (2) RAJBINDER KAUR DHILLON Mark Cunningham QC (instructed by Blake Morgan LLP) for the Appellant Gregory Treverton-Jones QC and James Potts (instructed by Keystone Law) for the First Respondent. The second Respondent did not appear and was not represented. Hearing dates: 9 th 10 th 11 th 12 th February JUDGMENT Crown Copyright

2 Mrs Justice Thirlwall DBE: 1. This is an appeal pursuant to s49 of the Solicitors Act 1974 by the Solicitors Regulation Authority (SRA) against part of a decision of the Solicitors Disciplinary Tribunal, announced on 12th November The tribunal dismissed as an abuse of its process cases brought by the SRA against five solicitors:- i) Kulwant Singh Manak (R2), the senior partner in a firm (R1) which ceased trading on 27 December 2013, was dissolved on 31 October 2014 and against which proceedings were withdrawn on the first day of the hearing. ii) Rajbinder Kaur Dhillon (R6) a solicitor at the firm. iii)three other solicitors at the firm to whom I shall refer as R3, R4, R5, in accordance with the references before the tribunal. 2. The tribunal was not satisfied that any of the respondents were able to understand the cases they had to meet. The pleadings were difficult to follow, attempts at clarification were unsuccessful and as a result the case was incoherent. A fair trial was not possible and to continue would be an abuse of the process. There were two additional reasons for finding abuse in the case of R5. I shall deal with them briefly later in the judgment. 3. The tribunal awarded 40% of their costs to Mr Manak, to R3 and to R4. R5 was awarded 80% of his costs. Appeal 4. The SRA appeals only in respect of the cases against Mr Manak and Ms Dhillon. Mr Cunningham QC, who appeared for the SRA on the appeal but not below save as to costs, said that the SRA had reviewed the case in light of the strike out. As against Mr Manak it appeals the decision in respect of twelve of the original fifteen allegations against him. As against Ms Dhillon it appeals the decision in respect of two allegations. The SRA has decided it is not in the public interest to continue the proceedings against R3, R4 or R5 and so there is no appeal in their cases. In the absence of any appeal the cases against R3, R4, and R5 remain struck out on the ground that they were an abuse of the process of the tribunal. 5. It is the SRA s case that the tribunal was wrong in law to strike out the cases. The pleadings were not incoherent. In approaching the application to strike out, the tribunal took a broad brush approach instead of considering the case against each respondent. Proper consideration of the pleadings would have led them to conclude

3 that the cases against Mr Manak and Ms Dhillon were clear and to proceed with them would not have been an abuse of the tribunal s process. Mr Cunningham observed, correctly, that all parties agreed that the facts were not complex. 6. Mr Manak resists the appeal and brings a cross appeal seeking:- i) to uphold the strike out in respect of a transaction (referred to as Beauchamp House) that the tribunal did not specifically deal with in its memorandum of decision. Mr Treverton-Jones QC who appeared on the appeal and below submitted that either the transaction had been swept up with the other transactions and so it was already struck out or it should have been struck out on the basis that there was no case to answer. ii) An order that Mr Manak should recover the whole of his costs below and not just the 40% awarded to him by the tribunal. Mr Treverton-Jones also submitted that allegations previously deferred should be treated as struck out as a result of the tribunal s decision. 7. Mr Treverton-Jones further urges me to make some observations in respect of the decision of the tribunal to embargo the result of the strike out application until it had made its decision on costs which was not until seven months later. Mr Cunningham did not seek to dissuade me from that course and was neutral on the substance. 8. Ms Dhillon did not attend the appeal nor was she represented. She left the firm suddenly in July 2011 and was removed from the Roll of Solicitors in She has not contacted the firm nor has the SRA been able to contact her for years. She played no part in the proceedings before the tribunal. The purpose of the proceedings is to ensure that, if the allegations are proved, she is made subject to an order under section 47(2)(g) of the Solicitors Act 1974, prohibiting her name being restored to the Roll except by Order of the Solicitors Disciplinary Tribunal. Background 9. The SRA had investigated the firm s activities in Both Mr Manak and Ms Dhillon were interviewed as part of that investigation. The Forensic Investigation Team produced a report, FIR The SRA did not bring proceedings. There was a further investigation in 2012 leading to a further report, FIR Mr Manak and Ms Dhillon were interviewed again during that investigation. 10. The SRA brought proceedings against all the respondents in Allegations ranged in seriousness from breaches of the Solicitors Accounting Rules (SARs) to

4 improper use of client monies, including a loan to the firm by a client, Mr Dhillon, Ms Dhillon s father. Some of the conduct was said to be dishonest, reckless or lacking in integrity. Much of the conduct was connected with property transactions, some of which were said to bear the hallmarks of fraud. Mr Manak denied all allegations that he had acted dishonestly, recklessly or without integrity. He denied allegations that he failed adequately to supervise junior solicitors. He accepted in interview that the firm had received a loan from a client who had not received independent advice and who had not been repaid. He repeated that account in the response and in his detailed witness statement in the proceedings. The tribunal s decision 11. The tribunal was dealing at the end of the prosecution case with an application to strike out the cases as an abuse of the process combined with a submission that there was no case to answer. After hearing lengthy submissions it announced its decision with brief reasons and gave detailed reasons in a memorandum of decision handed down on 28 January The memorandum runs to 102 closely typed pages containing 351 paragraphs to deal with a strike out application in respect of a case which the parties had agreed was not complex and in which the prosecution oral evidence occupied less than two days. That length reflects the over complicated approach to the case that was taken by the parties in protracted wrangling that began after the service of the SRA pleadings, continued through case management hearings and then into the substantive hearing. 12. The essence of the decision is contained at paragraph 348 of the memorandum. The tribunal had decided that the allegations before it against the [five respondents] should be struck out for abuse of process...the tribunal had not made its decision to strike the case out for abuse of process based on compromise of the disciplinary process but based upon the impossibility of holding a fair trial... The tribunal had not dissected and analysed every single one of the 12 allegations before it in order to determine whether one here or there could be salvaged. It had determined based on the presentation of the Applicant s case that a point had been reached where to proceed was unfair because the Respondents could not determine with any certainty the case against each of them. There was no coherent or manageable case to answer. Also, while individual points of supposed clarification were addressed with the Tribunal as presentation of the case unfolded they did not go to make a

5 coherent whole because the pleadings were confused and defective. This had been aggravated by attempts to clarify and expand or modify the allegations as the hearing proceeded. The tribunal had concluded that based on the pleadings as they stood that it would be impossible in this case to have a fair trial. In the case of the fifth respondent there had been additional considerations relating to abuse of process particularly as a significant part of the case against him should not, in the opinion of the Tribunal ever have been brought; that is the subject matter of the FI Report At paragraph 349 the tribunal emphasised that the abuse issues went beyond the question of the pleadings and the presentation of the case and extended back into the approach to collecting evidence and apparently missing crucial evidence which was in the hands of the CPS and which cast doubt upon the safety of relying on evidence in the case generally. That sentence taken in isolation suggests that the tribunal considered that the approach to collecting evidence and the late production of documents held by the CPS affected the cases of all respondents. Mr Treverton-Jones tentatively so submitted to me. I am satisfied that those two failings affected the case against R5 only (save for one knock on effect with which I deal at paragraphs below). The rest of the paragraph deals solely with R5. Had the tribunal considered that these two matters were directly relevant and important to the cases against the other respondents it could not have been cured by the complete recasting which it felt would have been necessary in order for the case to proceed (see paragraph 350). 14. The case was struck out because the tribunal had not been presented with a coherent case by the Applicant and certainly not one which the respondents could reasonably be expected to navigate their way through so as to have a fair trial. 15. Separate consideration of the sixth respondent appears at paragraph 351. The tribunal found that, because the allegations against the second and sixth respondents were inextricably linked it would not be in the public interest or in the interests of justice to try and proceed against her alone. The inability of the Respondents to discern the case against them in order to answer it applied just as much to her as it did to them. 16. Because it had decided to strike out the cases as an abuse of process, the tribunal did not think it either necessary or appropriate to consider the applications to strike out based on submissions of no case to answer.

6 Summary of my decision 17. I am satisfied that:- i) The tribunal was wrong to strike out as an abuse of the process the allegations against Ms Dhillon. The case was adequately pleaded. ii) The tribunal was wrong to strike out as an abuse of the process the allegations against Mr Manak arising out of the Dhillon transactions, including his failure to supervise Miss Dhillon. The case was adequately pleaded. The contrary was not submitted. It is not apparent that the tribunal realised this. iii) The tribunal was wrong to strike out as an abuse of the process the allegations against Mr Manak arising out of the Beauchamp House transactions. The case was adequately pleaded. The contrary was not submitted. It is not apparent that the tribunal realised this. iv) Save for the transaction in respect of 115 Swan Lane, Coventry, the tribunal was wrong to strike out as an abuse of the process the allegations against Mr Manak of failing to supervise R5 in respect of the transactions at part VI of the Rule 5 statement. v) The tribunal was entitled to strike out the allegations against Mr Manak of failing to supervise R5 in respect of the transactions at part VII of the Rule 5 statement and for failing to supervise him in respect of 115 Swan Lane. 18. Having read all the pleadings, transcripts, the submissions, evidence and exhibits I understand the tribunal s exasperation with much of the poor presentation of the case by the SRA but poor presentation does not equal abuse of process, still less does it justify striking out adequately pleaded allegations of serious misconduct. A number of the problems were resolved through the working of the tribunal process so that it was not unfair to proceed. 19. I acknowledge that my decision overturns most of a very lengthy decision produced by an experienced specialist tribunal. Before considering further the detail of the memorandum it is necessary to examine with some care the procedural background to the applications, beginning with the pleadings. The Rule 5 statement 20. The proceedings were governed by the Solicitors (Disciplinary Proceedings) Rules Rule 5 (2) reads:

7 The application shall be supported by a Statement setting out the allegations and the facts and matters supporting the application and each allegation contained in it. 21. Rule 5 (3) sets out the requirements for delivery of the application, the statement and any documents exhibited with them to the Clerk. 22. The Rule 5(2) statement dated 5 th July 2013 runs to 40 pages. Exhibited to it are the two Forensic Investigation Reports which run to just under 100 pages. Further and Better Particulars dated 13 th December 2013 are 26 pages long. 23. Swingeing criticisms of the Rule 5(2) statement were at the heart of the decision to strike out the cases. Mr Cunningham acknowledged that the pleadings were far from perfect. This overstates their quality by some margin. The purpose of a Rule 5(2) statement is to set out the case a respondent has to meet. It should be readily understood. To produce a succinct and clear pleading about a number of transactions takes much longer than to produce a lengthy cross referenced document with further cross referencing to exhibits. When that happens, as it did here, the effort is transferred to the reader. In order to follow this case it is often necessary to read from three different parts of the same document to piece together the facts to which the allegation pertains. It is then necessary to read various parts of the FIR reports which are annexed to it. This is not difficult to do but it is tedious and very time consuming. It is regrettable that the SRA ignored the observations of the Divisional Court in Thaker v. Solicitors Regulation Authority [2011] EWHC 660 (Admin). At paragraph 17 Jackson LJ roundly criticised the pleading in that case and at paragraph 64 he gave the following direction: [64] In order to have an effective re-trial, the SRA must serve a properly drafted Rule 4 statement in respect of any of the twelve allegations which it wishes to pursue. For the avoidance of doubt a properly drafted Rule 4 statement will set out a summary of the facts relied upon. It would be helpful if those facts are set out concisely and in chronological order. The reader should not have to burrow through hundreds of pages of annexes in an attempt to piece together what acts are being alleged. It is the duty of the draftsman (not the reader) of a pleading or a Rule 4 statement to analyse the supporting evidence and to distil the relevant facts, discarding all irrelevancies. I agree. This paragraph should be part of the training manual for those who draft pleadings on behalf of the SRA. There will be cases where a transaction based

8 approach is more helpful than a chronological approach. Whichever approach is taken the pleader must set out clearly the case the respondent has to meet. 24. The tribunal placed some reliance on the decision in Thaker. It is important to note that the Divisional Court was not there concerned with an application to strike out the case as an abuse of the process. Although the court concluded that it was not possible for the respondent to know the case he had to meet on the pleadings as they stood, it was not argued that the hearing from which they were hearing the appeal had been an abuse of the process. The Divisional Court dealt with the inadequacies of the pleading by directing that a proper pleading be produced. 25. The tribunal here was concerned with fifteen live allegations set out in paragraph 1 of the Rule 5 statement at subparagraphs: 2-5, 7-12, and 19. There is no appeal in respect of the tribunal s decision on subparagraphs The appeal is in respect of subparagraphs 2-5, 7, 11, 12, 14, and 19. All twelve allegations are pursued against Mr Manak. 15 and 17 are also pursued against Ms Dhillon. 26. Subparagraphs 16, 17 and 19 are freestanding allegations of, respectively, recklessness, dishonesty and lack of integrity. This may explain why the tribunal refers only to 12 allegations (instead of 15). It is unlikely that it was confused as to the number of allegations, as Mr Cunningham suggested. If acts or omissions are said to be (eg) reckless or dishonest that should be pleaded. A freestanding assertion that a person is dishonest tells the reader nothing without particulars of the conduct. That said, with a little effort by the reader it could be determined which conduct was said to be dishonest/reckless/lacking in integrity. 27. Each allegation cross refers to either a single or a number of respondents and to a single or multiple transactions. The transactions may be summarised thus: i) Conveyancing by R5 and supervised by Mr Manak (parts VI and VII of the Rule 5 statement) ii) Conveyancing by Mr Manak (part VIII Beauchamp House) iii) Conveyancing and other matters relating to 2 Spring Street Tipton and 27 High Street, West Bromwich involving Mr Manak and Ms Dhillon (Part IX - the Dhillon transactions). The Dhillon transactions

9 28. It is instructive to consider first the Dhillon transactions which give rise to allegations against Mr Manak in subparagraphs 2, 3, 4, 5, 7, 11, 14, 19 and against both Mr Manak and Ms Dhillon in sub paragraphs 15 and The background is set out by the tribunal at paragraphs 25 to 72 of the memorandum and relies principally on the two FIR reports. Those reports are cross referred to in the Rule 5 statement and particular facts relied on are set out in detail and at length in paragraphs Mr and Mrs Dhillon were Ms Dhillon s parents. She was a trainee solicitor, Mr Manak was her supervisor. Her parents wanted to remortgage their property at 2 Spring Street to buy a property at 27 High Street. The Mortgage Business agreed to advance 150k on 2 Spring Street and required a first charge on the property. There was already a charge in favour of the C and G. The mortgage instructions confirmed that they were subject to the Council of Mortgage Lenders Handbook (CMLH) and Rule 6 of the SPR The firm s ledger account showed that the advance was received on 23 rd February The charge in favour of the C and G was not redeemed notwithstanding the undertaking. Over a period of eighteen months a number of payments were made to different beneficiaries. 37,900 was distributed to Mr Dhillon in thirteen separate sums. Six other payments were made to different recipients and 65,000 was paid into the account of R1 on 10 th August Paragraph 182 refers to a letter on file which purported to be from Mr Dhillon. It read I hereby give authority for the transfer of the sum of 60,000 held on my behalf in your firm s Client Bank Account to the practice by way of a short term loan. Mr Dhillon denied writing that letter. When interviewed Ms Dhillon said that Mr Manak had dealt with this because he knew her father and this was a large sum of money. She had dealt with other transfers however. When Mr Manak was asked about this by the investigators he said that Ms Dhillon had approached him suggesting that as the interest being earned on the funds in the client bank account was insufficient to pay Mr Dhillon s mortgage payments the firm could utilise the funds if it discharged the mortgage payment. Mr Manak explained that there had been no undue influence. He did not think it was necessary to recommend that Mr Dhillon took independent legal advice as he would not have done so. He explained to the investigator that the risk to Mr Dhillon was minimal. 31. The SRA alleged that in his responses to the investigators in 2010 Mr Manak had said he had discussed the arrangements for the loan with Mr Dhillon. In 2012 he said that

10 all discussions were with Ms Dhillon and he had no contact with Mr Dhillon until after the funds had been transferred into the office account. It was part of the SRA s pleaded case that in giving inconsistent accounts Mr Manak had acted dishonestly. 32. Later, in his response to the Rule 5 statement Mr Manak accepted there had been a loan to the firm. He said that external accountants were calculating the sum due to Mr Dhillon. What had been described as a short term loan had been outstanding by then for 5 years. It is, I believe, still outstanding. 33. The 2012 investigation revealed further improper conduct involving serious apparent dishonesty; the forging of documents including a Land Registry document in order to deceive Mr Dhillon into believing that he had purchased the property. A tenancy agreement was also forged, with Mr Dhillon as the tenant. Money was paid to the owners of the property on behalf of Mr Dhillon who, in due course, learned that he did not own the property at all. This is all clearly set out in the pleading. 34. The allegation at subparagraph 15 reads The second and sixth respondent have constructed false documents and provided misleading information to third parties, to include clients and/or the SRA contrary to Rules 1(a) (c) and (d) of the SPR 1990 and/or where such conduct relates to a period after 1 July 2007, Rules 1.02, 1.04 and 1.06 of SCC The allegation at subparagraph 17 reads The second and sixth respondents have acted dishonestly 36. At paragraph 189 the following sub paragraphs are of particular importance: In summary it is alleged that:- (i) Client monies were misused (Allegations 1.2, 1.7 and 1.19) (iii) R2 failed to exercise any, or any sufficient, supervision of the work and activities of R6 (Allegation 1.14 nb the original allegation does not refer to the paragraphs setting out the Dhillon transactions. This is an obvious error). (v) R2 allowed the client account to be used as a bank...(allegations and 1.19) (vi) R2 failed to return client money promptly to the clients (Allegation 1.7) (vii) In allowing the client account to be operated in this way, R2 acted dishonestly or in the alternative acted recklessly (Allegations 1.16 and 1.17) (viii) R2 misappropriated clients money, without the knowledge of the client, describing it as a loan in order to avoid breaching the firm s overdraft limit without providing any security in respect of that loan or insisting on the clients obtaining

11 independent legal advice, and thereafter paying mortgage instalments on a client s mortgage to a lender client of the firm was, in all the circumstances, dishonest (Allegations 1.2, 1.4, 1.5,, 1.15, 1.[1]7 and 1.19); (ix) R2, in providing conflicting accounts to the SRA regarding the transfer of funds to office account, has behaved dishonestly (Allegations 1.15 and 1.17); (xi) R2 and/or R6 acted dishonestly in forging documents (pages and ) and signatures (page 942) with the aim of deceiving Ranjit and Kuldish Dhillon into believing that Mr Dhillon had purchased 27 High Street, West Bromwich and concealing loans, transfers and payments which had not been authorised (Allegations 1.15 and 1.17); (xii) R2 and/or R6 acted dishonestly when, without the knowledge of Ranjit Singh Dhillon, they fabricated the AST [Assured Shorthold Tenancy] and paid rent at a time when Mr Dhillon believed that he had acquired, and was the owner of, the property (Allegations 1.15 and 1.17). 37. Subparagraph (xiii) summarises the failed attempt by Mr Manak to rectify the position, by trying to achieve the purchase of 27 High Street in I have set out this section of the case in some detail. It is plain that the allegations in respect of the Dhillon transactions are adequately, if not elegantly, pleaded. Both Ms Dhillon (who did not respond to them at all) and Mr Manak, who did, understood what was alleged. Mr Treverton-Jones s concession before me that the case on the Dhillon transactions was adequately pleaded was inevitable. Procedural history 39. Once the application, Rule 5 statement and supporting documents were lodged in July 2013 a solicitor member of the SDT considered the allegations and (after some probing of the position of the first respondent firm) certified that there was, on the papers, a case to answer, pursuant to rule 6(1) of the Rules. It was open to the reviewing solicitor to say that the case was one of doubt or difficulty as envisaged by Rule 6(2)(b). In such a case there is a separate procedure Rule 6(3). Mr Cunningham reasonably observes that the case must have been clear enough to the solicitor for him to certify that there was a case to answer. 40. The task of the tribunal at the substantive hearing is to grant or dismiss the application see Rule 16. There is no provision for a reconsideration of the question as to whether there is a prima facie case. However it is not disputed that the tribunal has

12 the power to consider a submission of no case to answer at the end of the prosecution case. I have no doubt that the tribunal also has the power to prevent an abuse of its process where necessary, by striking out a case. Rule 21(1) provides Subject to the provisions of these Rules, the Tribunal may regulate its own procedures. Case Management 41. There were four case management hearings: on , , , and At each hearing there were two solicitors and a lay member on the panel. The constitution was different on each occasion and different again at the substantive hearing save that Mr Marquez, a lay member, had been on the panel at one of the case management hearings. Each panel had the Rule 5 statement before them. 42. Mr Greensmith, the solicitor for Mr Manak and others, complained to the tribunal by letter of 5 th September 2013 that it was not possible fully to understand the SRA case. By then the Response should have been served. On 18 th October he sent to the SRA a comprehensive request for further and better particulars. At the first case management hearing on 22 nd October the chairman indicated that it would be helpful if the parties could agree on which allegations the proceedings should focus : it was important that the case was manageable for the Tribunal and all the parties. After lengthy discussions between the parties it was eventually agreed that four allegations would not be pursued at the substantive hearing but would be considered later (the deferred allegations). The panel did not involve itself in this discussion. This is markedly different from the approach that would be taken to case management in the courts (civil, criminal or family). This may be because the rules at 11 (4) (a)- (c) are permissive in nature. However, rule 11 (4) (d) provides that the tribunal may make an order to make any directions which shall appear necessary or appropriate to secure the timely hearing of the matter. That gives a broad power to the tribunal to make such orders as are necessary to make sure the case is heard within a reasonable time. This must include the power to require a case to be pruned, to be heard in tranches (as here), to require a list of issues (if not clear) and so on. If case management is to mean more than the setting of a timetable the tribunal must take a grip of the case and shape it so that it is ready for hearing. 43. The SRA served its further and better particulars on 13 December There were a number of complaints made about them, none of them significant: i) seven of the responses should have led to the Rule 5 statement being amended, but this did not

13 happen; ii) an answer at paragraph 24 reads reference will also be made to SRA Warning Cards. In fact these were not disclosed until the day before the substantive hearing; and iii) at paragraph 40 the request had stated that the dishonesty allegation was not fully understood; the response was that both Mr Manak and Ms Dhillon were alleged to have acted dishonestly. There was no request for further clarification in respect of that allegation or others where the response to the initial request was that it was sufficiently pleaded. 44. By the second hearing on 14 th January 2014 R1 had ceased trading. Mr Greensmith told the tribunal that he would be making an application to strike out the case against the first respondent. In the event no application was made and none was ever necessary since the allegations against R1 were withdrawn on the first day of the substantive hearing. Service of the Response was to be by 4pm on 31 st March 2014, three months after the service of the further and better particulars. No complaint was made about the direction. No application was made to strike out the case. 45. On 28 th May 2014 there was another case management hearing. The SRA were concerned at the lack of a Response. Mr Greensmith told the tribunal that it would be ready in about 6 weeks. The tribunal set a deadline for service of 14 th July The respondents did not comply. 46. There was a yet further case management hearing on 2 nd September There was still no Response. Mr Greensmith explained, One of the principal reasons it was taking considerably longer than anticipated and which would be aired at the substantive hearing, was that the way that the case was pleaded made it difficult to respond to. Mr Greensmith submitted that this was not a situation of a positive case being put to the respondents; rather that they had to make out the case against them as well as deal with it. This was two months before the substantive hearing and a year after the Rule 5 statement had been served. With hindsight it is plain that what was being hinted at was an application to strike out as an abuse of the process. The tribunal commented at paragraph 346 of the memorandum it was open to the Respondents to make an application based on abuse of process at an earlier stage and it was arguable that they should have done so. If the respondents really could not understand the case against them they should have raised it in a case management hearing and made their application. I also consider that the SRA should have sought clarification of the respondents position and established whether they intended to make some sort of application based on the complaints about the pleadings. That

14 would have brought matters into the open so the issue could be listed and resolved well before the substantive hearing. Plainly, had the tribunal been unable to follow the pleadings it was incumbent upon it to take control and require clarification. That does not seem to have been the position since Mr Fisher, the lay member of the panel said, when pressing Mr Greensmith to produce his long awaited response more quickly this is not a difficult case as far as the tribunal is concerned in terms of the allegations and breaches and all the rest of it in the way it is presented. In the event the tribunal made an Unless order giving the respondents a further 14 days within which to serve the response. 47. The Response served just after the deadline was 110 pages long. It enclosed a Scott Schedule of admissions and denials which in his skeleton for the appeal Mr Treverton-Jones described as seeking to break down the allegations in the Rule 5 statement into their constituent parts, and setting out the responses of the 4 respondents to them. I am told this was the most detailed defence case statement ever presented to the SDT. This did not assist the tribunal. It began a process in which there was myopic focus on the detail instead of a consideration of what the case was really about. 48. The witness statement of Mr Manak, dated 16 th September 2014 runs to sixty seven pages including exhibits. Nowhere does he suggest he cannot understand any of the allegations. It is a comprehensive response to the allegations against him. 49. In light of the large volume of documents Mr Havard, representing the SRA, sought to adjourn the trial. His application was refused on the papers. The eight day listing from Monday 3 rd November was maintained. Mr Havard served additional witness evidence in light of the response. The Hearing 50. The hearing began on Monday 3 rd November. Mr Treverton-Jones had served a note on the tribunal in which he tentatively raised the topic of abuse of process; he raised the manner in which the case had been pleaded and questioned whether the tribunal felt that it could try the case fairly. He also suggested a series of amendments which would tidy up the Rule 5 statement before the start of the hearing. He was not suggesting that the amendments would change the way the case was understood. On the contrary he was saying that since the SRA had amended its case via the further and better particulars, good order required that the changes should be reflected in the

15 Rule 5 statement. He was right about that but in the event the Rule 5 statement was not amended. It made no difference to whether or not the case could be understood. 51. The tribunal did not require Mr Treverton-Jones to make his application to strike out the case as an abuse of process. No doubt this was because Mr Treverton-Jones said that he would be perfectly happy to make his submissions at the close of the prosecution case; and by my submissions I mean both as to the way that the matter has been pleaded and also as to the case against R1 if he is not going to drop that. 52. The Chairman said the reality is that the tribunal members have found it very difficult themselves working through this Rule 5 Statement, unusually so, and it took us a great deal of time to identify we had to have every single bundle sent to us. Normally we do not have every bundle sent to us at home we have had to spend a lot of time working with the Rule 5 and going to various other documents to put the case together for our own understanding. 53. Later interventions in the opening made it clear that the tribunal was not finding it easy to follow some of the allegations but by the end of the opening there was no suggestion that the tribunal did not understand the case that the respondents each had to meet. Had it been otherwise it was undoubtedly incumbent upon it to say so at the time and either invite Mr Havard to clarify his case or require Mr Treverton-Jones to make his application to strike out the case as an abuse of the process of the tribunal. If an adjournment were required so that the pleadings could be amended that could and should have been done at the SRA s expense. Instead the case continued. 54. The opening took until the end of the second day. On day 3 Mr Dhillon was due to give evidence. The tribunal was told that Mr Dhillon had been in an accident and was unable to attend. The tribunal carried on with the other evidence from three SRA investigators and a surveyor. During Mr Grehan s evidence it became clear that the SRA did not have all relevant documents in relation to a transaction involving B and C Redevelopments. Mr Dean (for R5) sought to cross examine on the basis of what he knew was the case from his involvement in R5 s criminal trial (which had ended in a verdict of not guilty at the direction of the trial judge). The tribunal prevented him from doing so on the basis that this was an ambush. Mr Dean set about obtaining relevant documents from the CPS. I shall return to this topic later in the narrative. 55. At the end of day 3 Mr Treverton-Jones and Mr Dean said they would be applying to the tribunal to dismiss the case in its entirety. Things took an unexpected turn at the beginning of day 4 when Mr Treverton-Jones applied to adduce evidence that Mr

16 Dhillon, far from being unable to attend the tribunal the previous day, was fit and well and working in his shop. The evidence included DVD footage and a witness statement. The tribunal granted his application. Mr Havard sought time to consider the issue. He was granted two hours to think about it. He then argued against the evidence being admitted. This was an untenable objection and unsurprisingly it was rejected. It was now lunch time on the fourth day. A further attempt by Mr Havard to persuade the tribunal to change its mind was, properly, rejected. 56. Mr Dhillon was sworn and cross examined. He lied about where he had been the previous day. He was shown the DVD and accepted that he had been working in his shop. He then gave evidence about the transactions which had led to mortgage monies that had been advanced to him being advanced to other people, including Mr Manak s firm. His evidence was unhelpful to Mr Manak. 57. Mr Haward closed his case. Mr Treverton-Jones said that he would make an oral submission saying that you, the tribunal cannot try this case fairly because of the manner in which it has been pleaded by the SRA. He referred to the number of questions he said the tribunal would have to answer in order to decide the case. He also said that the effect of the evidence of Mr Dhillon was that that part of the case was unsustainable. That latter submission was bound to fail, as it duly did, since the lies (though undoubtedly undermining of Mr Dhillon s credibility) did not necessarily mean that his evidence on the central issues was untrue. That would have been determined in due course had the case continued. 58. In the course of argument about the way forward the Chairman asked is the application no case to answer, or it is an abuse of process. Mr Treverton-Jones answered, It is a mixture of no case to answer [and] that this case simply cannot be fairly disposed of in the manner in which it has been advanced. Mr Treverton- Jones later observed that the precise nature of the application did not matter. It is clear from the transcript, at pages that the Chairman was expecting an application which was principally that there was no case to answer. The application was adjourned to the next day, day On day 5 after objections from Mr Havard who was now facing several applications and further lengthy argument the panel agreed not to sit on what remained of day 5 or on day 6 and to hear the applications on what would have been day 7 preceded by written submissions from the respondents. Mr Havard instructed counsel, Mr Tabachnik to represent the SRA on the issue of abuse of process.

17 60. On day 7 Mr Havard accepted that Mr Dean, for R5 should be permitted to put in evidence documents obtained from the CPS which related to two of the transactions under the heading B and C developments. He dropped allegations against R5 in respect of those two transactions but sought to pursue allegations in respect of the remaining three. This was doomed to failure as the tribunal subsequently found. 61. Mr Treverton-Jones pursued the application to strike out as an abuse of the process in combination with a submission of no case to answer on all allegations. 62. Mr Tabachnik submitted that it was essential that the tribunal distinguish between the submissions of no case and the application to strike out as an abuse of the process. He reminded the tribunal that a stay would not be granted where the trial process is able to deal with matters complained of and observed that nowhere was there a credible suggestion that the respondents did not understand the case they had to meet. 63. After oral submissions on day 8 the tribunal adjourned. On its return the chairman said this.we have been asked to consider two applications: the first, an abuse of process; the second, no case to answer. Firstly, dealing with the abuse of process the tribunal has decided that there has been a clear abuse of process in this case in respect of Respondents 2,3,4,5 and 6. There are more issues here than just the Rule 5 Statement. The tribunal has no confidence that the Respondents would have fully understood the specific allegations against them individually. This is as a direct result of the many cross references and the need to navigate a path through various bundles. It remains unclear which Respondents are required to answer which allegations and to which facts. There have been very many amendments to the redacted Rule 5 statement in the course of the proceedings. In making our decision we have also carefully considered submissions on delay, the late disclosure of the CPS documents and the 2011 adjudication, and our full reasons will be made available within our written findings. We have also had to balance fairness to the respondents, the public interest and the reputation of the profession, and the overriding principle is a right to a fair trial. In the light of this finding, we have not adjudicated on the application of no case to answer. 64. This reasoning was then developed and explained in the written decision. The tribunal rightly rejected submissions based on delay and I need say no more about that aspect of the case. They also found, correctly, that arguments about whether certain

18 conduct was in breach of Rule 22 or Rule 30 of the Solicitors Accounting Rules did not go to the question of abuse, nor did concerns about Mr Dhillon s credibility. Abuse of process 65. It is uncontroversial that a court/tribunal must use its powers and processes to ensure a fair trial. Where (whether as a result of failings by the prosecutor/regulator or otherwise) it is not possible to have a fair trial it may be an abuse of process for the trial to continue. At paragraph 347 the tribunal formulated the test thus If the Tribunal considered that it could not ensure that the Respondents received a fair trial the matter could not be allowed to proceed. I agree, as did the parties, that this was an accurate formulation of the relevant test. 66. There could be no sensible complaint about the tribunal s decision to strike out the case against R5. There was a plain abuse of process which arose in two ways:- i) the decision to prosecute for the matters set out in the FIR 10 report notwithstanding a promise to the contrary to R5 by the SRA and ii) the fact that relevant and helpful documents were not produced in respect of the allegations at part VII. That this latter failing may not have been the fault of the SRA was irrelevant since a fair trial was not possible. Save to say that the decision to prosecute should have been dealt with at a much earlier stage I do not propose to comment further on the position of R As to the rest of the respondents the tribunal made it clear that it considered the case had been properly brought (see the second part of the memorandum at paragraph 400). The tribunal found that generally the case had been properly brought save in respect of matters arising out of the DI Report 2010 against the Fifth Respondent and at paragraph 403 The proceedings had not been improperly brought but improperly pleaded In my judgment before concluding that the pleadings were so unclear that the respondents could not understand the case they had to meet it was incumbent upon the tribunal to consider in respect of each Respondent what the case alleged against him or her was. The tribunal could have approached this question by transaction, by allegation or both. They did not carry out that exercise. No case to answer

19 69. Dismissing a case because there is no case to answer (on all or some counts/allegations) involves the exercise of the court s power to prevent a defendant/respondent from being exposed to conviction/finding in the absence of sufficient evidence to justify it. In order properly to assess a submission of no case at the end of the prosecution case a tribunal must examine the case against each respondent separately. This involves considering in respect of each respondent i) what is alleged against him or her ii) whether what is alleged constitutes misconduct iii) whether the evidence supports the allegation so that the respondent should be called upon to answer it. 70. In this case consideration of the question at (i) above would identify precisely that which is required where the complaint is that the pleadings cannot be understood. It is a great pity that the tribunal did not begin with that question. Doing so would have led it to distinguish difficulties with the pleadings from difficulties with the evidence and to deal with both applications in a structured way. It would have been bound to reveal that on the most serious allegations (the Dhillon transactions) there was no argument about the pleading; it was adequate. The same process would also have revealed whether in respect of any particular allegation the case against a particular respondent was unclear in which case the tribunal would have been bound to consider whether the position could be remedied by amendment, whether the case should be adjourned (with the costs paid by the SRA) or whether it should be struck out as an abuse of the process. Where there was duplication or oppression the tribunal could properly have struck out such allegations. Where there was no sufficient case to answer on a particular allegation the tribunal could properly have struck out that allegation on that basis. The process of the tribunal would have been effective. There would have been no risk of an abuse of the process in continuing with the case. The tribunal s approach 71. After setting out the allegations verbatim, the history of proceedings, the relevant sections of the FIR reports and the arguments of all the parties almost verbatim the tribunal began its determination at page 79, paragraph 296 where it recorded that it had had due regard to the Respondents rights under Articles 6 and 8 of the European Convention on Human Rights. 72. The tribunal s consideration of the pleadings begins at paragraph 302 where paragraph 64 of Thaker (see above) is set out. As I have already observed, Thaker

20 is not authority for the proposition that where the pleadings are defective they may be struck out as an abuse of the process. It is not apparent that the tribunal realised this, nor that it had given proper consideration to directing clearer pleadings in respect of those parts of the case where it did not consider that the case was adequately pleaded. 73. The tribunal then set out the procedural history. At paragraph 305 it set out the amendments that Mr Treverton - Jones submitted were necessary to the Rule 5 statement in order to reflect the contents of the Further and Better Particulars. I have set this out at paragraph 51 above. At paragraph 306 the tribunal say The tribunal did not propose to go through each of these permissions and adjudicate upon them at this point but on their face they gave an indication of the degree of confusion in the Applicant s case at the commencement of the hearing which the Tribunal found never to have been resolved. This is unfortunate. Mr Treverton Jones was seeking formal correction of the Rule 5 statement so that it corresponded with the case as pleaded in the Further and Better Particulars. This was plainly desirable but it cannot be said that the failure to do so led to anyone being confused. 74. At paragraphs the tribunal deprecates the fact that the further and better particulars became almost as much a point of reference as did the Rule 5 statement. This is said to be a most unusual feature. At paragraph 309 the tribunal seeks to illustrate the difficulties presented by the pleadings and the constant need to refer to the response to the Request for Further and Better particulars. I do not follow why this was a matter of serious complaint. The purpose of further and better particulars is to clarify. 75. The tribunal then considers question 133 of the Request which sought to establish which parts of the allegations summarised at paragraph 189 (viii) (and in subparagraphs 2,4,5,9,15,[1]7 and 19) referred to R1. R3 and R4. The answer was that other than allegations 1.2 and 1.5 which relate to breaches of the Solicitors Accounts Rules, the allegations are directed at R2 alone. The panel then set out subparagraph 189 (viii) and describe it as an important paragraph not least because of its (intended) reference to dishonesty and lack of integrity; the most serious allegations that could be brought against a solicitor. They continue Any Respondent dealing with a Rule 5 Statement had to be crystal clear about such an allegation. The confusion was compounded because in the opening of the applicant s case, reference was made to the third, fourth and fifth respondents as well as to the second respondent. All that reveals is that Mr Havard made a mistake in opening.

21 It was clarified. The further and better particulars were relied on. No one was misled. This example, relied on as an illustration of difficulties with the pleading, demonstrates how the tribunal process worked effectively to make the position clear. 76. At paragraph 310 The tribunal considered it significant that it had frequently had to request clarification during the course of the presentation of the Applicant s case. A stark example of the difficulties encountered was the prolonged debate during the hearing about the scope of allegations 1.8, which extended to encompass allegations 1.9 and It resulted in the withdrawal of allegations 1.8 and 1.10 against the fifth respondent. Again what is described is the effective (if slow and tedious) working of the tribunal process. Paragraphs set out that working at some length and deal with allegations which the SRA do not seek to pursue. Paragraphs 314 and 315 focus on paragraphs 60 to 63 of the Rule 5 statement and on the muddle Mr Havard got into. There is no appeal in respect of the allegations at subparagraphs 8,9 and 10 and I say no more about them. Although the tribunal does not say so in terms it plainly considered that the case against R5 in respect of Swan Lane as pleaded and presented to it was difficult to follow, a view with which I agree. 77. At paragraph 316 the tribunal set out at some length an example of the difficulties with the pleadings only to conclude that what it described was not the most challenging example of difficulties with the pleadings. It could not arguably have contributed to a finding that to pursue the allegations would be an abuse of the process. The complaint about the late service of the CMLH did not go to the question of abuse of process. As a matter of fact Mr Manak admitted the breach of the undertaking. He knew what was alleged. This occurred in the context of the purchase of 179 Telfer Road Coventry which is set out at paragraphs of the Rule 5 statement. 78. Paragraph 317 is said to contain a concerning example of the unreliability of the Rule 5 statement. The allegation at sub paragraph 16 was said to be against the second and sixth respondents. In fact it should have read the second and fifth respondents. This was careless. Mr Havard had made another mistake and said so. Since he had not previously made the allegation against the fifth Respondent he did not seek to do so at the hearing. This was another example of the effective working of the tribunal process. 79. From paragraph 318 the tribunal deals with the Dhillon transactions. It is plain that the tribunal did not realise that Mr Treverton-Jones had not submitted that the case