Litigation partner’s errors “did not amount to misconduct”

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Email: Messages were misleading

The Solicitors Disciplinary Tribunal (SDT) has dismissed all allegations against a commercial litigation partner whose “shortcomings did not amount to misconduct”.

Stressing that “not every error or misjudgement constitutes professional misconduct”, it found that “four carelessly drafted sentences across three emails” demonstrated neither a lack of integrity nor dishonesty.

“Whilst high standards are expected and required, solicitors are not paragons of virtue held to a counsel of perfection.”

Mr Turner, who qualified in 1992, was a litigation partner at the Exeter office of Kitson Boyce at the time.

An adjudicator in a contractual dispute had awarded a couple over £81,300 against his client, a small building firm, a sum which was not paid. They applied for summary judgment at the High Court.

Counsel, but not Mr Turner, attended the hearing in January 2019 at the Technology and Construction Court.

The judge gave an oral judgment and counsel told Mr Turner in an email the same day: “Unfortunately, as expected, the hearing went against the clients today. I expect a judgment to be forthcoming in the coming days or weeks.”

Counsel’s notes suggested the client would have to pay almost £83,000, plus costs assessed on the indemnity basis of £20,000 but in three emails to the client in the space of six weeks, he said the judge had not given an indication of how he would rule and they would have to wait until the written judgment.

The SDT rejected Mr Turner’s argument that these emails were not misleading.

But the client’s understanding of the proceedings “was wider than solely the content of the emails”, it went on.

Mr Turner had provided detailed advice indicating that the prospects of success in the litigation were low.

His actions in January 2019 and thereafter “represented a rearguard effort to overturn or at least prevent a significant judgment debt (arising from the earlier adjudication) from crystallising and being enforced against Client A”.

Mr Turner and the client had worked “collaboratively” over a period of around six months – including after the written judgment was received – and the client had, “unusually”, submitted a very positive character reference in his support.

As a result, the SDT concluded Mr Turner did not demonstrate a lack of integrity. “While aspects of [his] wording were clumsy and caused the client to be misled between January-March 2019, the tribunal concluded that these shortcomings taken in their wider context did not amount to professional misconduct.”

As to alleged dishonesty, the SDT noted the solicitor had “consistently stated” that he preferred to wait for the full judgment before advising his client “in order, inter alia, to ensure accuracy and to resolve the uncertainties that he had identified in counsel’s email”.

It agreed that elements of counsel’s email were “ambiguous and unclear” and, especially in light of the character references provided, accepted that this was Mr Turner’s genuine belief at the time.

The Solicitors Regulation Authority can still claim costs in unsuccessful prosecutions if the case was properly brought.

The SDT found that it was here, Mr Turner having resiled from admissions originally made in a self-report that he said had been drafted by someone else and that he had been unable to review “in its entirety” before it was sent.

Further, the tribunal had criticised his conduct and Mr Turner had “accepted some of the shortcomings identified”.

He was ordered to pay costs of £10,800, just over a third of what the SRA had sought.