Road traffic accident: Solicitor gave misleading witness statement
A solicitor found to have been fundamentally dishonest in a personal injury claim has been cleared of dishonesty by the Solicitors Disciplinary Tribunal (SDT).
While the SDT ruled that Nasar Hussain had failed to disclose material information regarding his medical history, it decided that members of the public would not consider his conduct – though falling below the standards expected of a solicitor – to be dishonest.
It was a “finely balanced question”, it acknowledged, and handed him a four-month suspended suspension. Dishonesty generally leads to a strike-off absent exceptional circumstances.
Mr Hussain, who qualified in 2002 and owns Manchester firm Regal Solicitors, acted for himself and his daughter in a personal injury claim arising from a road traffic accident.
The firm practises in commercial/corporate work and, in the past, handled “limited” personal injury work.
Mr Hussain suffered a shoulder injury from falling down stairs six months before the accident. He was accused of not disclosing this and asserting that his injuries were wholly attributable to the crash.
At trial in April 2021, His Honour Judge Sephton rejected Mr Hussain’s evidence as “conflicting and incoherent” and found that he “knew jolly well” the account of his injuries was false.
The claim was dismissed for fundamental dishonesty, with both he and his daughter ordered to pay costs. Appeals were refused.
In his evidence to the SDT, Mr Hussain maintained that any omissions in his claim were inadvertent, blaming the medical expert for them – he had provided the doctor with his medical notes.
He insisted the claim was genuine, albeit poorly prepared, and that he would not have risked his career over a claim worth around £2,300.
The SDT accepted that the solicitor had twice called the medical agency instructing the doctor to say that the initial medical report had made no reference to the fall.
However, he breached his “ongoing duty of disclosure” on two occasions. First, an addendum report by the doctor several months later still omitted reference to the stair fall but Mr Hussain did not seek to correct it.
Second, in preparing a witness statement for the civil claim, Mr Hussain asserted that the injuries suffered were “unequivocal and confirmed by the medical expert to be wholly attributable to the index accident”.
The SDT said it was satisfied that Mr Hussain had failed “to disclose material information regarding his medical history”.
He thus failed to uphold both the proper administration of justice and public trust and confidence. His conduct had also lacked integrity.
In deciding on whether he had been dishonest, the SDT “distinguished” the judge’s finding of dishonesty.
It took into account the solicitor’s 23-year unblemished career, his character references, and the fact that he had provided his GP notes to the defence.
“Accordingly, the tribunal concluded that ordinary decent people would not, on balance, view the respondent as having acted dishonestly.
“While the panel recognised that the respondent’s conduct fell below the standards expected of a solicitor and was misleading, it did not meet the high threshold required to establish dishonesty.”
It did not make a finding on recklessness due to “ambiguity as to whether this had in fact been pleaded” by the Solicitors Regulation Authority (SRA).
In deciding sanction, the SDT said the motivation for Mr Hussain’s actions was “uncertain”.
“While the respondent ignored his obligation of disclosure, there was no breach of trust, no misleading of the regulator, and no planning or concealment.”
An immediate suspension was “disproportionate given the absence of dishonesty or recklessness” and in light of the mitigation.
It decided to impose a suspension of four months, suspended for two years.
“This approach marked the seriousness of the misconduct and signalled to the profession the unacceptability of misleading the court, while recognising that the respondent’s lapse was not deliberate or dishonest, that he posed minimal risk to the public, and that there were significant mitigating factors.
“[It] ensured that the respondent remained accountable and under scrutiny; it provided a clear deterrent and maintained the reputation of the profession without imposing an unnecessarily severe restriction on his ability to practise.”
Mr Hussain was also ordered to pay costs of £15,000, half of what the SRA had sought.
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