Geoffrey Williams KC: Another Costs Order against SRA

Geoff represented David Buckle (DB) in proceedings at the Solicitors Disciplinary Tribunal (SDT) upon the instructions of Nick Trevette of Murdochs Professional Discipline Solicitors.

DB has had a long and distinguished career initially in the Services and then as a Solicitor.  He is of impeccable character.

From time to time DB had acted for a Mrs A who lived in a large house on a prestigious estate which she proposed to develop with a view to sale.  By the time of the matters in question Mrs A was elderly. DB agreed to finance the development.  He did so by utilising his own funds and those of several acquaintances who wished to partake in the investment.  There was no Solicitor and client retainer between DB and Mrs A with respect to this project. To cut a very long story short the development of the property took much longer than anticipated.  This involved DB providing substantial voluntary financial assistance for Mrs A as the project went on.

Ultimately SRA alleged that DB had acted in a conflict of interest situation with his client Mrs A, that he took advantage of a vulnerable client and failed to ensure that the proper documentation was in place with respect to the agreement.  By far the most serious allegation was that DB took advantage of Mrs A.

During the investigation process DB was interviewed by a Forensic Investigation Officer.  It was put to him that he had taken advantage of Mrs A.  His reply was that she had taken advantage of him. SRA did not follow this up but rather prosecuted DB purely upon the evidence of Mrs A who sadly died before the proceedings became to be heard.

Geoff and Nick identified a defence for DB and Nick set about the detective work with his usual skill and enthusiasm which required a comprehensive investigation which should have been undertaken by the SRA before any decision was taken to issue disciplinary proceedings. Witness Statements were obtained from the builder/project manager, DB’s secretary and a potential purchaser of the property. The investigation revealed that a third party (D) being a known criminal and former associate of the late Mrs A’s late husband became involved in the project.  He ejected DB and took over the development.  D unlawfully retained equipment on site belonging to the builder.

We obtained persuasive indeed compelling evidence that specific offers had been made to purchase the property at its proper value as it stood but these were declined.  In the event the property was sold at an undervalue to an associate of D.  This was with a view to ensuring that DB received nothing in return for his investment of £1 million.  Had the previous offers been accepted DB would have received a substantial return.  He had indeed been taken advantage of.  The witnesses also confirmed that far from being vulnerable Mrs A was a formidable character.  SRA was alleging that Mrs A was vulnerable by her reason of her age.  Geoff criticised this as being ageist which indeed it was.

We then took the very unusual step of submitting a lengthy document to the SRA legal team setting out all the evidence in support of the defence and making clear the way in which the defence would be advanced.  This fell upon deaf ears and SRA simply ploughed on. At the trial the SRA called the Forensic Investigation Officer who was cross examined at length by Geoff.  SDT found this lady to be an evasive witness who was robotic at times.  She had omitted to verify all the relevant facts placed before her during her investigation placing undue reliance upon the Statement of the late Mrs A.  It is rare for SDT to criticise a professional witness in such a way. SDT found that Mrs A was not DB’s client for the purposes of the project and that she had indeed taken unfair advantage of DB.  He had provided substantial funds over and above his commitment with a view to helping Mrs A as time went by.

All allegations against DB were roundly dismissed. Geoff made an application for costs.  Despite the authority of Baxendale-Walker v Law Society (2007) EWCA Civ 233 SDT came back with more resounding findings.  The matter had been poorly investigated, the witness had been evasive in oral evidence, the allegations had been poorly drafted, SRA should have reviewed the case when Mrs A died and her evidence was reduced to hearsay and the SRA should have again reviewed the case when our submissions were provided.  Accordingly despite the established starting point that there should be no order for costs against the SRA it was ordered that it should pay £50,000.00 towards the costs of DB who had been entirely exonerated.

There are lessons here for both defence teams and in particular SRA.  SRA as a prosecutor has a duty to keep its cases under review at all times.  It must take care to draft its allegations properly.  In this case we could not have done more to draw attention to the shortcomings of the case but our efforts fell on stoney ground.  SRA of late has tended to pursue cases on the basis of “I’ve started so I’ll finish.”  Such an approach is most unwise.  Defence teams should never simply rely upon evidence adduced by SRA.  There is inevitably more to each case than meets the eye.  The work done by Nick in this case was invaluable as ever and compelling evidence was produced to support the defence.  Without it DB would have been in grave peril.

 

The Judgment of SDT can be found here.

 

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