SDT: No good reason to order costs
A solicitor has been cleared by a tribunal of misleading the court but failed in his bid for the Solicitors Regulation Authority (SRA) to pay him almost £100,000 in costs as a result.
The Solicitors Disciplinary Tribunal (SDT) found that Charles Edward Swatman Knapper “plainly” had a case to answer, which he did so successfully at a five-day hearing.
Mr Knapper, 65 this year, is managing partner of Plymouth firm Fursdon Knapper and faced allegations that he misled the court in January 2010 in two submissions over disclosure made at a hearing and in two documents filed with the court afterwards.
The dispute was between the owners of a holiday park and the chalet leaseholders – of which Mr Knapper was one and also their solicitor – over service charges.
At the hearing in January 2010 in Truro County Court, Mr Knapper found himself having to step in for counsel, who had been delayed, and deal with questions over disclosure.
Litigation continued for several years, during which time the solicitor’s conduct came under scrutiny.
In 2013, His Honour Judge Cotter QC concluded, “with some sadness”, that in relation to disclosure Mr Knapper “had developed a settled intention to prevent what he must have considered potentially helpful documentation” coming into the hands of the defendants.
He described the solicitor’s comments at the 2010 hearing as “misleading, and deliberately so”.
The defendants then unsuccessfully sued Mr Knapper and his firm for misrepresentation, deceit and negligent misstatement.
In 2016, Mr Justice Baker held that Mr Knapper’s behaviour “left a lot to be desired in certain respects” but that he did not commit fraud or actionable negligence. The following year, HHJ Cotter revisited his decision but did not change it, finding that the High Court had dealt with different issues.
The SDT ruled the SRA had not proved that Mr Knapper misled the court in 2010 over the documents available for disclosure, or that he failed to comply with disclosure requirements, or that he had wrongly signed a statement of truth about not holding certain documents.
It said: “With the benefit of the oral evidence received, Baker J summarised his appraisal of the respondent as ‘an irritating witness of truth’.
“The tribunal was therefore faced with civil judgments from two eminent members of the judiciary which were at odds with each other in their conclusions about the veracity of the respondent. The tribunal was not required to reconcile the two and it did not do so.
“The tribunal reached its conclusions in respect of [the statement of truth] on the basis of the evidence filed and received during the course of the substantive hearing.”
Mr Knapper’s counsel, Geoffrey Williams QC, sought costs of £98,000.
The starting point where prosecutions fail is that SRA is not ordered to pay costs, because it is exercising its regulatory functions in the public interest. This is unless there is some other good reason to make a different order, as there was in the case we reported on Monday [1].
Mr Williams argued that the proceedings were improperly brought because the SRA had decided against taking disciplinary action when the defendants first informed the regulator in 2013, and only prosecuted after a second complaint four years later.
The SDT noted that the SRA had made clear to Mr Knapper after the first complaint that it would revisit its decision if another was received.
“What transpired thereafter was Baker J’s judgment and HHJ Cotter QC’s 2017 judgment (that reiterated and reinforced the previous criticisms of the respondent) which led to a second complaint being made…
“The tribunal concluded that the [SRA] did not act improperly in revisiting its earlier decision and prosecuting the respondent in that regard.
“The tribunal accepted that the [SRA] held concerns regarding the respondent on the face of the papers. Those concerns were only capable of resolution after a five-day hearing in which oral evidence was received from the [complainants] and the respondent.
“It was only as a consequence of that process and the detailed review of the contemporary evidence during the hearing that the tribunal was able to judge whether the respondent had misled the court in January 2010.
“The proceedings were not an unmeritorious attempt to prosecute the respondent, there was plainly a case to answer which the respondent did successfully.”
The SDT decided that the proceedings were properly brought and there was no unreasonable conduct on the part of the SRA to justify departing from the starting point of no order for costs.