Partner fired for ‘topping up’ fees fairly dismissed, Court of Appeal rules

DPP Law: Successful appeal

The Court of Appeal has reinstated the ruling of an employment tribunal (ET) that a law firm was entitled to fire a partner accused of ‘topping up’ legal aid fees with cash from a client’s father.

It allowed DPP Law’s appeal against the decision of the Employment Appeal Tribunal (EAT) to remit the case for rehearing.

The EAT found the original decision was not fundamentally flawed; rather, the ET took a “wrong turn” at the end and should be reheard.

But, giving the unanimous ruling of the Court of Appeal, Lord Justice Popplewell said it was actually the circuit judge who went wrong, saying his decision “was not based on a fair reading of the ET decision as a whole”.

As we first reported in 2019, DPP partner Paul Greenberg and Charlotte Surley, an advocate from the Public Defender Service, were handed envelopes containing thank-you cards and £300 and £480 respectively in cash by the father of a teenager charged with GBH, but released on bail in time to go home for Christmas.

Ms Surley emailed Mr Greenberg to tell him she had been told that the “surprise gift” should be returned to the father.

Mr Greenberg emailed Stuart Nolan, DPP Law’s managing director and COLP, who replied: “I’ll leave it to your conscience!”

The solicitor later called the Law Society’s ethics helpline, which referred to the then code of conduct’s recommendation that a solicitor should refuse to act in the case of gifts of “significant value” unless the client has independent legal advice.

Mr Greenberg was given more cash by the father several months later, after he had been attempting to take witness statements in a Kent pub.

He said he could not do because of a funeral wake in the pub. While sitting in his car in the car park, the father dropped £150 through the open window before walking off. Mr Greenberg said he considered this simply another show of gratitude.

Subsequently, the father told Ms Surley he had paid Mr Greenberg something to cover his expenses of getting the statements, to hurry him up.

The Legal Aid Agency emailed the chief executive of DPP, enclosing a statement from Ms Surley expressing concern that Mr Greenberg was “topping up” his fees.

Mr Nolan launched a formal disciplinary investigation in October 2017, and though the first payment was accepted to be a gift, the second was seen as a top-up, in breach of Legal Aid Agency rules.

Mr Greenberg was dismissed without notice and reported to the Solicitors Regulation Authority.

The regulator eventually decided to take no further action in the case, partly on the grounds that the Law Society guidance on the issue of gifts suggested “significant value” meant £500 or more.

The Legal Aid Agency ultimately found no breach of its contract with DPP and lifted a suspension on Mr Greenberg handling legal aid work, as well as retracting a previous criticism of him.

The agency was also criticised by the Parliamentary and Health Service Ombudsman for its handling of the matter, and has apologised to him for that.

Mr Greenberg contended that the reason for his dismissal was the other partners’ personal animosity towards him and their wish to remove him in order to take his shares and profit share entitlement.

This was rejected by the ET, which accepted that he was dismissed because of his conduct in relation to the second payment. This was not challenged on appeal.

HHJ Auerbach found, however, that the ET failed to make “more specific and detailed findings” about the reasons behind the decision to sack Mr Greenberg, and then to draw on these when coming to its final conclusion about whether it was fair or not.

The Court of Appeal disagreed. There was nothing in the language of the ET ruling to suggest the judge substituted her own views of whether Mr Greenberg was guilty of misconduct.

Popplewell LJ said: “In summary, it was the EAT judge, not the ET judge who fell into error in this case. He was too ready to find an error of law because he failed to adopt the proper approach of an appellate tribunal to findings by an employment tribunal.”

The EAT judge’s decision “was not based on a fair reading of the ET decision as a whole”, he explained. “It failed to recognise the findings the ET judge had made on such a fair reading.”

The EAT also failed to recognise that the decision did not need to contain more specific reasoning or findings of fact in the circumstances that that the absence of such further findings “could not justify a conclusion that there was no evidence of any such reasoning or that it had not been in the ET judge’s mind”.

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