Acting to stop harm: the FCA and Appointed Representatives
A couple of weeks ago I posted a blog that started with the now fateful words: “Newell-Austin v SRA  EWHC 411 (Admin) is the latest case to deal with the question of what is lack of integrity and may finally put to rest the issues around the meaning of the phrase.”
Barely a month after Newell-Austin, Mr Justice Mostyn has returned to the concept of lack of integrity in Malins v SRA  EWHC 835 (Admin), and created huge practical difficulties for regulators.
The facts of Malins are of themselves reasonably straightforward. The Respondent was acting in litigation in 2013 where his client had taken out an After the Event Insurance policy to cover the risk of an adverse costs order. On 1st April 2013 the law changed so that it was only possible to recover the cost of the policy from the other side if they had been notified prior to that date. Whilst the Respondent thought he had served the notice, no evidence could be found of it a year later so he created a backdated letter and form of notice, sent it to the other side, and relied on it in settlement negotiations. Crucially, no allegation of dishonesty was made in respect of the creation of the documents. The SRA only pleaded lack of integrity. Dishonesty was alleged in relation to the subsequent reliance upon them. The way the case was put was described by Mostyn J as “intellectually virtually impossible to understand” as it was difficult to see how it was possible to be dishonest in relying on documents whose creation was honest.
The nature of the case meant that the judge needed to grapple with the question of the relationship between dishonesty and lack of integrity. His conclusion could not be clearer. He considered that they were synonymous:
“want of integrity and dishonesty are not only the same thing but must be proved to the same standard in my judgment.”
This conclusion is surprising as it necessitates a departure from the distinction drawn between the two concepts by Lord Bingham in Bolton v The Law Society  1 WLR 512, and also the more recent decision of Holman J in SRA v Wingate  EWHC 3455 (Admin) who stated: “While all dishonesty involves a lack of integrity, not all lack of integrity involves dishonesty.” However, this conclusion is perhaps more understandable given the judgment of Mostyn J in Kirschner v The General Dental Council  EWHC 1377 (Admin) where he indicated that the standard for dishonesty in professional discipline cases should be the lower and less subjective civil standard. If the dishonesty test is lower then perhaps the overlap with lack of integrity is greater. In practice the effect of the Malins decision is we have moved away from a clear understanding of how these two terms interact.
Of even greater significance to regulators, is the real conundrum that the Malins judgment creates. This is made clear in paragraph 36 of the judgment:
“It is elementary, and supported by abundant authority, that if you are accused of dishonesty then that must be spelt out against you with pitiless clarity. In my judgment, you cannot circumvent this obligation by pleading the same facts and matters as want of integrity. We do not have in our system dishonesty in the first degree and dishonesty in the second degree”
Regulators have been obliged for a number of years to expressly plead dishonesty. If lack of integrity is the same as dishonesty then it is not possible to simply allege lack of integrity you must allege dishonesty. Every existing allegation of lack of integrity is now vulnerable to a submission that it cannot succeed because dishonesty is not pleaded. If so, lack of integrity has lost the very reason regulators rely upon it which as an allegation that is more serious than misconduct but where they are unlikely to get home on dishonesty. As such it may simply wither away.
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