Deed: Solicitor cleared of misleading leaseholders
The Solicitors Regulation Authority (SRA) has been ordered to pay a solicitor nearly £160,000 in costs after its prosecution of her was ruled “fatally flawed”.
The Solicitors Disciplinary Tribunal (SDT) took the rare step of deciding that Tina Theresa Shiebert had no case to answer after the SRA had put its case.
Costs do not follow the event in SDT proceedings – where an allegation is dismissed, the starting position is no order as to costs unless there is good reason to depart from that.
In deciding there was here, the SDT said: “The tribunal noted that the present allegation was fundamentally misconceived and could not succeed on any reasonable interpretation of the evidence.
“While the tribunal accepted that the SRA was acting in the exercise of its regulatory function, it concluded that the decision to prosecute in these circumstances fell outside the bounds of what was reasonable.”
At the time, Ms Shiebert, who qualified in 1986 and has an unblemished regulatory record, was a partner at Forbes Hall, trading as Dickins Shiebert, in Potters Bar, Hertfordshire. The two firms have since demerged.
In 2021, she was acting for the new freehold owners and landlords of a property with six flats and wrote to the leaseholders to say the lease was defective in relation to a space called ‘the paddock’ as well as communal areas. As a result, it needed to be varied.
The SRA alleged that this letter was misleading and intended to induce the leaseholders to enter into a deed of variation under which rights over land would be forfeited.
However, in response to Ms Shiebert’s application of no case to answer, the SDT found that the lease did not grant any enforceable rights over the paddock or communal areas – this meant “there were no rights which the leaseholders could be misled into giving up”.
The letter also indicated that the leaseholders were already aware of an issue with the lease; the SDT found that Ms Shiebert “was explaining the defect rather than concealing it”.
The substance of the letter “was to invite the leaseholders to engage in discussions regarding a possible variation, rather than to mislead or induce them into forfeiting their rights”.
It upheld the application of no case to answer and dismissed the allegation.
Ms Shiebert claimed costs of £171,654 and the SDT found good reason to order costs as the allegation was “fatally flawed from the outset and misconceived”.
“This was not a case where the failure resulted from the tribunal’s evaluation of marginal evidence; rather, the allegation lacked any proper foundation in law or fact.”
It also took into account “the significant stress and health impact of the proceedings” on Ms Shiebert, “which, while not determinative of principle, reinforced the appropriateness of a cost order”.
The SDT refused the SRA’s request to refer assessment to a costs judge, as well as its submission that the costs claimed were disproportionate, amounting to nearly 10 times the regulator’s own costs of £16,883. After adjustments, it assessed the solicitor’s costs at £159,242.
It went on to refuse the SRA’s request to postpone payment until it had seen the full judgment.
“[Ms Shiebert] had incurred substantial expense in successfully defending the proceedings, and the tribunal considered that it would be unjust to subject her to further uncertainty or defer payment while the applicant determined whether to appeal.”
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