Acting to stop harm: the FCA and Appointed Representatives
White v Bar Standards Board
 EWHC 3583 (Admin)
Queen's Bench Division, Administrative Court (London)
Judgement date: 21 December 2015
In this case, a barrister, Oliver White (‘W’) appealed to the Queen’s Bench Division against a three-month suspension imposed by the Disciplinary Tribunal (the Tribunal) of the Council of the Inns of Court on the basis that the sanction was manifestly excessive.
W was a barrister practising at 4-5 Gray’s Inn Square. He was instructed to act for a claimant in enforcement proceedings under the direct access scheme. Settlement of the proceedings was agreed in the amount of £400,000. This included the amount of the judgment debt, interest and costs, including £53,842.23 in fees owed to High Court Enforcement Group Limited ('HCEG'). W arranged for the £400,000 settlement sum to be paid into the account of his Chambers. The money was subsequently paid out of the Chambers account to W’s lay client, who then failed to pay out fees from those monies to HCEG. When the solicitor for HCEG approached W about the unpaid fees and noted that he should not have been handling client money, W inaccurately informed the solicitor in an email dated 13 August 2014 that he was entitled to conduct litigation with all of the same freedoms as that of a solicitor. W was subsequently reported to the Bar Standards Board (BSB).
On 17 June 2015, W appeared before the Tribunal in respect of three disciplinary charges of professional misconduct.
The first charge alleged that on or shortly after 11 June 2014, whilst acting by direct public access for his client, Roveiva Trading Limited in a High Court claim, W handled £400,000 of the client's money contrary to Rule C73 of the Conduct Rules of the BSB Handbook.
The second charge, as amended, alleged that W was guilty of professional misconduct contrary to Core Duty 3 and Rule C9.1 of the BSB Handbook. The particulars of the offence were that W:
‘failed to act with integrity in that on 13th August 2014 he wrote by email to solicitors for High Court Enforcement Group Limited stating that (in respect of his handling of client money on or shortly after 11th June 2014) he was entitled to 'conduct litigation with all the same freedoms that a solicitor is able to operate within', whereas in fact:
(1) he was not entitled to conduct litigation and
(2) he was not entitled to receive, control or handle client's money.’
The third charge was that W had failed to reply to a letter and email sent to him on 26 September 2014 requiring him to provide his written comments on the complaints made about his professional conduct by 20 October 2014, notwithstanding a reminder letter and email sent to him on 13 October 2014.
W admitted all three charges. In respect of the first charge, W was fined £1,500 and in respect of the third charge he was fined £500. In relation to the second charge, W was suspended for a period of three months. It was the second charge that was the subject of W’s appeal.
Grounds of Appeal
W appealed on the basis that the three-month suspension in respect of charge 2 was manifestly excessive.
The first issue raised by W related to the amendments to charge 2. During the tribunal proceedings, charge 2 was amended to delete the word "honesty and" before the word "integrity" and the word "dishonestly" before the word "wrote" in the second clause of the charge. The phrase "knowingly or" before the expression "misled or attempted to mislead" was also deleted from the charge. The amendments were made because the BSB accepted that it could not show that W had been dishonest in his conduct; although they maintained, and by his admission W admitted, that he had not acted with integrity.
W submitted that the Tribunal had failed to take account of the effect of the amendment which removed any suggestion of dishonesty on his part and that by finding that he acted "knowingly" the Tribunal was disregarding the amendment to the charge, which excluded every element of dishonesty.
W argued that the Tribunal erred in their consideration as to the aggravating features of his conduct and failed to take proper account of the mitigating factors in his favour. W also suggested that despite the fact that he agreed to the amendment to the charge sheet and pled guilty to it in its amended form, his plea was equivocal. He argued that the allegation that he had admitted, namely, that he recklessly misled or attempted to mislead High Court Enforcement Group Limited (or their solicitors) in his email of 13 August 2014 implied dishonesty on his part, which he submitted was unfair as dishonesty had been deleted from the charge.
In his judgement, Mr Justice Garnham rejected W’s submission that his admission in respect of charge 2 during the Tribunal proceedings was equivocal. He noted that W ‘is a barrister of some years standing and was acutely familiar with the facts of the case with which he was dealing because it concerned his own behaviour. It is evident he had a long discussion with counsel for the BSB about the proposed amendments to the charge sheet and what was eventually put before the Tribunal was what had been agreed between them’.
In relation to the email sent by W on 13 August 2014, Mr Justice Garnham found that W’s purpose in writing this email was clearly to dissuade the solicitors from complaining to the BSB that he had breached Rule C73. Further, whilst there was no dishonesty, there was intent to persuade the complainant to discontinue his complaint.
In considering the use of the word ‘knowingly’ by the Tribunal, Mr Justice Garnham accepted the submissions made on behalf of the BSB that the adjective ‘knowingly’ qualified the verb ‘told’ and was not a finding that W had knowingly misled the solicitors. In relation to the decision, Mr Justice Garnham stated ‘the Tribunal was holding that W made a deliberate decision to inform Mr McConkey that he was entitled to conduct litigation as a solicitor would; this was no slip of the tongue or slip of the keyboard. "Knowingly" here does not imply that W knew the terms of Rule C73. That being so, there was no failure on the part of the Tribunal to respect the fact that the word "knowingly" had been deleted from the description in the second half of the particulars of the offence. "Knowingly" in this context does not betoken dishonesty’.
Mr Justice Garnham concluded that it was apparent from the transcript of the proceedings that the Tribunal had taken account of the fact that the dishonesty element of the charge had been deleted and that ‘the Tribunal had at the forefront of their mind the fact that the version of the charge sheet to which the appellant pleaded guilty had been amended expressly to reflect the fact that dishonesty was no longer contended for’. W’s submission that the Tribunal had failed to take into account the amendment to charge 2 was therefore rejected.
It was confirmed that, had the Tribunal been sentencing W for an offence of dishonesty, the sentence would almost inevitably have been more severe. Mr Justice Garnham noted that ‘the offence which W had admitted, namely failing to act with integrity, is a serious one. It is right to say that it is yet more serious if it is established that a barrister not only failed to act with integrity but also acted dishonestly but that is not to ignore the seriousness of the former offence’.
Mr Justice Garnham applied the principles as set out in the case of Bolton v Law Society  1 WLR 512, namely that ‘if a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends on trust’. He confirmed that the same principles apply to barristers.
W’s appeal was dismissed on the basis that a three-month suspension was an entirely appropriate and proportionate response to the admitted breach of professional standards, in that W’s conduct fell seriously below the standard to be expected of a barrister.
This case confirms that allegations relating to the failure by a professional to act with integrity are serious, even in the absence of any dishonesty or premeditated wrongdoing. Where such allegations are admitted and/or found proven, the sanction imposed is likely to reflect the serious nature of this conduct. The case also highlights the importance of Tribunals providing carefully worded and reasoned decisions, which allow the informed reader to understand the basis upon which the decision was made, particularly where charges are amended or deleted during the course of proceedings.
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