Linden: SDT approached its task correctly
A solicitor found by a High Court judge to have deliberately misled the court has failed in his appeal against being struck off.
Mr Justice Linden rejected Peter Gray’s argument that the Solicitors Disciplinary Tribunal (SDT) had relied on the 2015 ruling of Mr Justice Flaux (as he then was) despite having new evidence.
Mr Gray, who at the time was a partner in the Dubai office of leading US firm Gibson Dunn & Crutcher, was also found by the SDT to have allowed leading counsel to make misleading submissions to the court and misled solicitors for the other side.
Breaching the “fundamental duty” of a solicitor to conduct litigation fairly and not to mislead was “of the utmost seriousness”, the tribunal said. He had been dishonest and “the only appropriate sanction” was to strike him off.
At the relevant time, Mr Gray was a salaried partner at Gibson Dunn, practising mainly from its Dubai office.
He led the team acting for the Republic of Djibouti and two bodies under its control in litigation against Abdourahman Mohamed Boreh, who had held a senior position at those bodies and was accused of misappropriating at least $77m.
In 2010, Mr Boreh was convicted in his absence in Djibouti of terrorism and sentenced to 15 years’ imprisonment on the grounds that he had instigated a grenade attack on a supermarket in 2009.
Two intercepted telephone calls said to have taken place a day later were vital pieces of evidence.
However, in 2013 – as part of work being done to request Mr Boreh’s extradition from the UAE – a Gibson Dunn associate realised that the call transcripts were wrongly dated and logs showed they calls had actually taken place a day earlier, significantly undermining the conviction.
Despite being aware of this and having discussed it in meetings, Mr Gray did not mention the discrepancy in his affidavit for a freezing injunction and an associated propriety injunction against Mr Boreh, which Flaux J granted three weeks later.
The freezing injunction was then relied on as the basis for other actions, including the extradition proceedings and submissions to INTERPOL.
In March 2015, Flaux J found that Mr Gray had dishonestly allowed the court to be misled. He discharged the freezing injunction as a result. Mr Gray was struck off last year.
The crux of the appeal was that the SDT had simply followed Flaux J’s judgment even though there was important evidence before it which was not before the judge
This new evidence in particular related to Mr Gray’s argument that leading counsel Khawar Qureshi QC had been consulted on the decisions which led to Flaux J’s ruling. This showed that he acted honestly, Mr Gray contended.
However, Linden J held that the SDT reached its decision independently “on the basis of the evidence and arguments which it received”.
At the same time, “quite apart from the clarity, cogency and thoroughness of his judgment, and the identity of its author, Flaux J’s analysis was clearly of significance for a number of reasons” – the SDT was not wrong to take it into account.
A number of the judge’s findings, Linden J noted, were based on “an analysis of essentially the same materials as were before the SDT”.
There were “many indications” that the SDT genuinely considered the evidence and reached its own decision, including allowing Mr Gray to take “the unusual course of being taken through his evidence orally as opposed to his 88-page witness statement being taken as read and standing as his evidence in chief”.
Linden J continued: “There is, in my view, no reason at all to doubt that the SDT approached its task correctly.”
It was “simply not the case” that the SDT disregarded Mr Gray’s reliance on Mr Qureshi – indeed, at no point did it reject his evidence on the issue.
The SDT’s position was that “ultimately” the issue was Mr Gray’s honesty, the judge said.
“Whatever leading counsel may or may not have known, understood, said or approved this did not absolve the appellant of his personal responsibility not to mislead the court or to allow it to be misled.
“He was to be judged according to what he knew and what he said and did, and, by that measure, it was clear that he acted dishonestly and in breach of the relevant principles and outcomes.”
Linden J stressed that no allegation of misconduct or impropriety was made against Mr Qureshi at the 2015 hearing, and Flaux J found none, or before him.
In 2017, the Bar Standards Board issued an unprecedented public apology to the QC for the errors and delays it made in clearing him of misconduct over the case.
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