@ Malins v Solicitors Regulatory Authority  [2017] EWHC 835 (Admin) @ Background - honesty and integrity In a recent appeal to the High Court of a decision of the Solicitors Disciplinary Tribunal (“the SDT”) in the UK, it has been held that the legal and dictionary definitions of the words ‘honesty’ and ‘integrity’ were aligned and synonymous. The judgment also states that this can be said to explain why the Solicitors Regulation Authority’s principles “do not additionall...  

Malins v Solicitors Regulatory Authority  [2017] EWHC 835 (Admin) 

 

Background - honesty and integrity

In a recent appeal to the High Court of a decision of the Solicitors Disciplinary Tribunal (“the SDT”) in the UK, it has been held that the legal and dictionary definitions of the words ‘honesty’ and ‘integrity’ were aligned and synonymous. The judgment also states that this can be said to explain why the Solicitors Regulation Authority’s principles “do not additionally require a solicitor to act with honesty”. An allegation that a professional’s conduct amounts to a lack of integrity has served as a useful middle ground for UK regulators between alleging professional misconduct and an act of dishonesty, which must be “unambiguously formulated and adequately particularised.” [i] The principle of acting ‘with integrity’ is fundamental to the many professional codes of conduct in the UK. For example, Principle 1.2 of the Solicitors Regulation Authority Principles 2011 states that practitioners “must act with integrity”. The Financial Conduct Authority’s Statements of Principles also provide that “an approved person must act with integrity in carrying out his accountable functions" (Statement of Principle 1). In this jurisdiction the principle of integrity also features as part of the Professional Codes of a number of regulators, to include the Nursing and Midwifery Board of Ireland, the Pharmaceutical Society of Ireland, the Teaching Council, and the Law Society of Ireland. The distinction between ‘dishonesty’ and ‘lack of integrity’ in the UK can be traced from decisions such as Bolton v The Law Society [1994] 1 WLR 512 through to more recent decisions such as Solicitors Regulation Authority v Wingate [2016] EWHC 3455 (Admin) where Holman J stated that “while all dishonesty involves a lack of integrity, not all lack of integrity involves dishonesty” [ii]. Indeed, in a judgment delivered one month before the decision in Malins, Morris J in Newell-Austin v Solicitors Regulation Authority [2017] EWHC 411 (Admin) held that a lack of integrity on the part of a solicitor is “not synonymous” with dishonesty and is subject to a less stringent legal test in the UK jurisdiction.

The Facts

The Malins case involved a solicitor handling a dispute where his client, the claimant in a case concerning a dispute over building works, took out a policy of after-the-event (ATE) insurance against adverse costs liability. This happened in March 2013, just weeks before the recovery of ATE premiums was to end. Transitional provisions required affected claimants to send defendants a copy of a specific form, notifying defendants of such funding arrangements before 1 April 2013, in which case the ATE premium would still be recoverable at the end of case. Mr Malins did not serve and file this form in time. Mr Malins subsequently “modified” an old letter so that it was dated 19 March 2013 and purported to be a letter attaching the form. He separately created a backdated N251, before sending copies of both documents to the other side as ‘evidence’ that the form had been served in time. Mr Malins eventually admitted what had happened to his own firm, which reported him to the Solicitors Regulation Authority (SRA). He also reported himself to the SRA. Mr Malins was referred to the SDT on separate charges that he created and backdated the letter and form, and a third charge that he then relied on and/or acquiesced in others at his firm relying on the backdated documents in the subsequent claim for costs. The SRA submitted that each of the first two allegations amounted to a lack of integrity. He was accused of dishonesty in relation to the third charge only. He was found guilty on all charges. Addressing the distinction between being found guilty of acting with dishonesty, and of acting without “integrity, probity and trustworthiness” identified in Bolton, Mostyn J stated that “no attempt was made to explain the difference between the two concepts” (para. 28). Citing other authorities, he explained: “The legal and dictionary definitions of the words honesty and integrity are aligned and… are synonyms. It means that dishonesty and integrity are antonyms. This would explain why the SRA principles do not additionally require a solicitor to act with honesty. This is because it is the same thing as integrity. Want of integrity and dishonesty are not only the same thing but must be proved to the same standard, in my judgment.” (at para. 30). […] It follows from this that the attempts in this case to accuse the appellant, in relation to the creation of the documents, of acting without integrity, but not dishonesty, and to try to maintain a cordon sanitaire between the two concepts was always going to run into trouble. As will be seen, the cordon sanitaire was repeatedly breached and the appellant found himself defending dishonesty allegations in relation to the first two charges which he never expected to have to meet, and which had not been spelt out against him.” (at para. 32) Mostyn J went on to hold that, notwithstanding repeated assertions to the contrary by the SRA, Mr Malins found himself facing a case of dishonesty in relation to the first two allegations: “It is elementary, and supported by abundant authority, that if you are accused of dishonesty then that must be spelt out against you with pitiless clarity. In my judgement, you cannot circumvent this obligation by pleading the same facts and matters as want of integrity. We do not have in our system dishonesty in the first degree and dishonesty in the second degree.” (at para. 36) As a result, Mostyn J ruled the SDT findings on the first two charges to be “contaminated” and “reached in violation of a basic right of the appellant”. It was not, as the SRA had argued, an editorial error, he said: “It was of a piece with a flawed process which bedevilled this case from the start” (at para. 42). Mostyn J allowed Mr Malins’ appeal, ruling that it was too late for the first two allegations to be “boosted” to incorporate dishonesty. The SRA has indicated that it is considering an appeal of the decision.

Insight

Given the potentially serious consequences of a finding that proven misconduct constitutes an act of dishonesty (or a lapse in standards of integrity, probity and trustworthiness per the wording adopted by Kelly P in a recent judgment [iii]) that tends to undermine the collective reputation of the profession, a decision on the part of a regulator in this jurisdiction to allege conduct that contains an element of dishonesty of any type is particularly serious. Where the question of whether or not "a system of dishonesty in the first degree and dishonesty in the second degree” exists in the UK is now uncertain, in this jurisdiction any allegation against a professional that contains an element of dishonesty (or lack integrity, probity, or trustworthiness), must aim to be as unambiguous and comprehensive as possible, and with the type of ‘pitiless clarity’ adverted to by Mostyn J in Malins. Please click here for full judgment. Author: James Gallagher Works Cited: [i] General Medical Council v Salha [2002] UKPC 80 [ii] See also - Solicitors Regulation Authority v Chan [2015] EWHC 2659 (Admin); Scott v Solicitors Regulation Authority [2016] EWHC 1256 (Admin) [iii] Law Society v. Herlihy [2017] IEHC 122