Andrew William Shaw v Solicitors Regulation Authority (2017)
There was no blanket rule in disciplinary proceedings that the Solicitors Disciplinary Tribunal was bound to exercise its discretion to strike a solicitor off the roll of solicitors because it had found that he had dishonestly misled a court in civil litigation. However, misconduct that involved such behaviour was to be treated with gravity and striking off was generally inevitable.
The appellant solicitor (S) appealed against the Solicitors Disciplinary Tribunal's decision to strike him off the roll of solicitors.
He had been admitted as a solicitor in 1981 and had an unblemished professional record. He was struck off following a finding of dishonesty in relation to the contents of an affidavit sworn by him and filed on behalf of a client in High Court proceedings. At the material time S was a partner in the commercial litigation department of a solicitors' firm. The tribunal found that he had deliberately misled the court in the civil litigation when his duty as an officer of the court was to give full and frank disclosure. It had regard to its own Guidance Note on Sanctions when deciding the appropriate penalty. It held that there were no exceptional circumstances which would justify a sanction other than striking off and that that was the only appropriate sanction to protect the public and maintain the reputation of the profession. It concluded that after considering what might constitute exceptional circumstances it could not find that S's conduct fell into the small residual category of cases where strike off was not a reasonable and proportionate sanction for dishonesty.
The SRA submitted that in the light of Brett v Solicitors Regulation Authority  EWHC 2974 (Admin), having made a finding that S had dishonestly misled the court, the tribunal was bound to strike S off the roll.
S submitted that the tribunal had been wrong in finding that there were no exceptional circumstances justifying a lesser sanction either because it had erred in principle and/or because the striking off order was clearly inappropriate.
(1) Brett had stated that misleading the court was to be regarded as one of the most serious offences that an advocate or litigator could commit and that such conduct would normally attract an exemplary and deterrent sentence. It also stated that where an advocate or litigator put matters before the court which he knew not to be true or by omission led the court to believe something he knew not to be true, the inference would be inevitable that he had deceived the court, acted dishonestly and was not fit to be a member of the legal profession. Those observations could not be read properly as wholly removing the tribunal's discretion on sanction in any case where a solicitor was found dishonestly to have misled the court, with the result that striking off became inevitable. No blanket rule was imposed. The thrust of the observations in Brett was not that the offence of dishonestly misleading the court became a separate category of dishonesty from others for sanction purposes, but rather that it was a serious matter. Having made a finding that S had dishonestly misled the court, the tribunal was not bound to strike him off the roll. The comments in Brett served to underline the gravity with which misconduct involving a lawyer deliberately misleading the court was to be treated and the near-inevitability of striking off, Brett explained (see paras 80, 84-85 of judgment).
(2) There was no error of principle within the tribunal's reasoning that was sufficient to call into question the overall safety of its decision to strike S off. The criticisms of the judgment on sanctions, whether taken individually or cumulatively, did not render the decision to strike him off unsafe as a matter of principle (paras 87, 104).
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07 Aug 2017
 4 WLR 143; LTL 15/8/2017
Mark Cunningham QC