Solicitor’s warnings of overcharging “could be protected disclosures”

Tribunal: Applied wrong tests

A solicitor who warned his law firm that it was overcharging a client is to have a second chance to argue that his role was terminated as a result of protected disclosures.

The Employment Appeal Tribunal overturned a ruling that Alastair Dobbie, who worked under a consultancy agreement with London firm Feltons Solicitors, did not believe that his emails were in the public interest.

His Honour Judge James Tayler said the first-instance tribunal had applied the wrong test and ordered that the case be reheard.

Mr Dobbie was heavily involved in work for ‘Client A’, one of the firm’s most important clients. He contended that he made two protected disclosures by email to his supervisor to the effect that Client A had been overcharged.

He claimed he was then subject to a number of detriments, the most significant of which was the termination of his consultancy agreement.

HHJ Tayler stressed that there was no finding Feltons did, in fact, overcharge Client A – the question was what Mr Dobbie reasonably believed.

The employment tribunal found that the solicitor believed the information he passed on indicated a breach of a legal obligation to Client A and also a possible breach of the Solicitors Accounts Rules.

Though it was reasonable for him to hold this belief, the tribunal decided that he did not reasonably believe that the disclosures “would enhance the protection of the public or a section of the public from solicitors who in their interim bills overstated the hours spent on working on cases”.

The emails instead concerned a private matter, warning about the risk to the firm when a costs assessment came around, the tribunal said.

In overturning the decision, HHJ Tayler said the tribunal “failed to focus on the nature of the information” disclosed.

“The tribunal had found that the claimant held a reasonable belief that a solicitor was overcharging a client in breach of its contractual obligations to the client and, more importantly, in breach of regulatory requirements.

“Solicitors, as officers of the court, are held to high standards of conduct. That is why overcharging is not only a matter that can give rise to a contractual dispute between the solicitor and client, but could raise regulatory issues that might result in disciplinary proceedings.”

The tribunal was also wrong to say there had to be a group that needed to be protected in the public interest.

“The more people that are likely to be affected, the more likely there will be a matter of public interest. But… a disclosure of information relevant only to one person could nonetheless be a matter of public interest, such as in the case of a one-off error in treatment of a patient.”

Even if only Client A might have received some protection as a result of the disclosures, that did not mean that they could not reasonably be made in the public interest.

The judge also rejected the tribunal’s finding that the disclosures had “little influence” on the decision to terminate the consultancy agreement and that rather there were other issues behind this.

He found that the tribunal again applied the wrong legal test and also only looked at the termination rather than the other alleged detriments.

He ordered that the case be remitted to a different employment tribunal to reconsider whether the protected disclosures were made in the public interest and, if so, whether they led to the detriments.

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