Second time unlucky for solicitors as SDT repeats strike off verdict

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12 October 2016

High Court: remitted case for fresh SDT hearing

High Court: remitted case for new SDT hearing

Two City solicitors struck off following a rare private prosecution before the Solicitors Disciplinary Tribunal (SDT) have been struck off for a second time, over two years after the High Court remitted the verdict but upheld a finding of dishonesty.

A fresh tribunal heard the case of Andrew Shaw and Craig Turnbull, formerly a partner and a solicitor at Stewarts Law respectively. In 2013, they were taken to the tribunal by a businessman who had been litigated against by a client of the firm and complained about the way they had conducted it.

When they appealed on the grounds that the SDT had failed to set out properly its reasons and reasoning process, in a judgment handed down in January 2014 Mr Justice Jay overturned the strike-offs but upheld a finding of dishonesty in relation to the contents of an affidavit, and upheld another in relation to the misuse of confidential information.

The judge remitted the case to a freshly constituted tribunal to re-determine the issue of sanction relating to the findings that were upheld, and conduct a rehearing of the other allegations where the appeal succeeded. The latest decision just considered the sanction – no decision has yet been taken on a rehearing.

Andrew Sutcliffe QC, a deputy High Court judge, gave character evidence for Mr Shaw. He told the tribunal that it seemed the upheld findings “were concentrated in a very narrow period of time and he knew from his own experience that in dealing with litigation of this nature which was very fast moving mistakes could be made”. He found it “very hard to believe” that Mr Shaw would do anything deliberately dishonest.

Mr Shaw’s counsel, Tim Dutton QC, submitted that “the dishonest conduct in question was isolated and of very short duration… centred upon a 32-minute period at approximately 10pm at night after the first day of a stressful three-day hearing in exceptionally combative litigation. On this view it can quite properly be described as a moment of madness”.

He continued that the solicitors “were not seeking to, and did not obtain a pecuniary benefit as a result of the dishonest conduct, either for themselves or for their client”. He pointed out that Mr Shaw had “had the constant stress of proceedings for four and half years and waited the two and half years for the matter to come back to the tribunal”.

For Mr Turnbull, solicitor William Glassey of Mayer Brown invited the tribunal to make a “bold decision” to impose a retrospective suspension for a period of months only, which he submitted would be a just and permissible decision.

However, the tribunal rejected arguments that exceptional circumstances applied to justify a decision short of strike off. That no harm resulted from the misconduct was due more to “good fortune”, and dishonestly misleading the court damaged the profession in the eyes of the judiciary, it said.

It concluded: “After very careful consideration of what might constitute exceptional circumstances and having fully allowed for the highly pressurised circumstances of the complex litigation during which the dishonest conduct occurred and the mitigation brought to its attention, the tribunal could not find that the conduct of either respondent fell into the small residual category of cases where strike off was not a reasonable and proportionate sanction for dishonesty.”

It ordered Mr Shaw to pay costs of £24,000 and Mr Turnbull to pay £12,000.

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