“ALL MATTERS WERE INFECTED FROM THE OUTSET WITH A REGRETTABLE INJUDICIOUS AND PEREMPTORY LACK OF PROFESSIONAL ASSIDUOUSNESS” : FROM AN ORGANISATION THAT SHOULD KNOW MUCH, MUCH, BETTER: JUST TAKE A WITNESS STATEMENT

This blog has looked, many times, at cases that have floundered at trial because of basic failures to investigate the primary facts.  Sometimes applications fail because of a fundamental lack of knowledge as to what “facts” are.    The judgment of the Solicitors Disciplinary Tribunal in SRA -v- Ahmud is somewhat remarkable because proceedings were issued, and serious allegations were made, without any attempt to obtain a witness statement in support. A lot of time, angst and the profession’s money, could have been saved if a simple basic (and one would think essential) step had been carried out.

“The Tribunal concluded that all matters were infected from the outset with a regrettable injudicious and peremptory lack of professional assiduousness. Each of the failings identified was a serious matter”

 

THE CASE

The SRA brought proceedings against the respondent solicitor, alleging (amongst other things) dishonesty in the way a client had been billed.  The bill had been rendered in 2012.  Proceedings were commenced in May 2019.    In July 2020 the SRA sought permission to discontinue the proceedings.

 

THE TRIBUNAL’S JUDGMENT

The Tribunal allowed the SRA’s application.  However it held that this was an appropriate case in which to order the SRA to pay the costs.  One of the key matters being that the SRA had failed to take a witness statement from the client in question (Client A) up to, and including, the date of the hearing.  The information that the SRA had (very belatedly) obtained from that client tended to be supportive of the respondent.

 

THE FAILURE TO OBTAIN A WITNESS STATEMENT PRIOR TO ISSUE

The first surprising point what that the SRA, which was making allegations of dishonesty, did not obtain a witness statement from the relevant client before issuing the proceedings.

THE JUDGMENT IN RELATION TO WITNESS EVIDENCE
 Ms Hansen accepted that the Applicant did not obtain a witness statement from Client A prior to the issue of proceedings before the Tribunal.

9. The Respondent, in his Answer to the Rule 5 Statement, included an office copy of Client A’s client care letter. That copy was neither on headed paper nor was it signed but it did set out an hourly rate of £270 which was the amount claimed in the Bill of Costs. Consequently the Applicant filed a Reply to the Answer and proceeded to contact/interview Client A in March and May 2020. Ms Hansen contended that Client A gave inconsistent accounts and broadly provided some support to the Respondent’s consistent defence to Allegation 1.

.Ordinarily the Tribunal would be very reluctant to permit such serious allegations, including dishonesty, to be withdrawn as there was a public interest in such matters being determined in a transparent and public process. However, the Tribunal considered that the procedural background of the proceedings was most unusual in that a witness statement for these proceedings had not been sought from Client A, in respect of whom the allegations were predicated, pre-issue of the proceedings.
17. The Tribunal noted that the Applicant to date had not secured a witness statement from Client A but through further communications with him had concluded that the allegations (a) provided some corroboration to the Respondent’s defence and (b) reduced the seriousness of the conduct alleged such that it did not consider the same to amount to professional misconduct.
63.  The Tribunal noted that an allegation of dishonesty was the most serious allegation a solicitor could face. It was therefore incumbent on the Applicant, particularly where it was accusing someone of dishonesty, to take reasonable investigatory actions before bringing those proceedings. The Applicant was under a duty to verify information that it was using as the basis for bringing serious allegations to ensure that it had a solid basis for doing so. This was in line with the observations in Yuanda. The burden onproving any allegation, including dishonesty, lay with the Applicant. In the circumstances of this case, taking a witness statement from client A was an obvious step and indeed one that was canvassed internally within the SRA as far back as December 2016.
66. If the SRA had wanted to take matters further, or test the explanation given by the Respondent, they should have gone to Client A then, and they did not do so. The first error was therefore not verifying the solicitor/client arrangements with client A at that stage. In these proceedings the Respondent was alleged to have been dishonest. Given that such a finding would usually result in the complete loss of a professional career such cases were clearly not to be taken lightly. Two of these allegations were advanced on the basis that the Respondent was dishonest and yet no-one had thought to interview the principal witness until January 2020.
68. It was one thing to investigate and bring proceedings but it was quite another to fail to investigate thoroughly and notwithstanding that omission, prosecute nonetheless. In this case there was a fundamental failure to obtain crucial witness evidence, instead erroneously relying upon a witness statement taken for very different proceedings in a completely dissimilar context.
70. The Tribunal agreed with those observations. Such a lack of diligence and transparency did the Applicant nothing but harm when, as the regulator of the solicitor’s profession it demanded understandably high standards of its members, and yet on this occasion it fell demonstrably below those standards itself. The Tribunal rejected the submission that all the criticisms were merely about “process
73. The fifth error was that having received the client care letter in June 2019, no approach was made to Client A until January 2020. As Ms Bruce pointed out, in that time the Tribunal and Divisional Court were required to consider an application to dismiss for abuse of process and an application for judicial review respectively. This could all have been avoided had Client A been spoken to in June 2019, or indeed at any time after 2016. The proof of this point was that when Client A was spoken to it became apparent to the Applicant that, contrary to its submissions at the dismissal hearing in September 2019, it in fact had no credible evidence against the Respondent. This precipitated the correct, but woefully late, decision to apply to withdraw.
76.  The Tribunal concluded that all matters were infected from the outset with a regrettable injudicious and peremptory lack of professional assiduousness. Each of the failings identified was a serious matter and taken together the Tribunal was entirely satisfied that Applicant had not acted reasonably in the way in which it had brought and pursued the proceedings. The Tribunal therefore found that there was “good reason” to depart from the starting point and make an order for costs in the Respondent’s favour