Case it during the settlement. In June of 2014,

Case
Comment: John Michael Malins v Solicitors
Regulation Authority 2017 EWHC 835 (Admin) 2017 WL 01339062

 

 

Summary:

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The facts of Malins v SRA 2017 are as follows: in 2013, the appellant
provided his legal service to his client, had filed for After the Event
Insurance policy to help cover against adverse costs. In 2012, the law changed
under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and came
into force on 1st April 2013 which stated under section 46 that claims
after this date would no longer be entitled to recover the costs. However, you would
only be able to recover such costs if a notice in form N251 had been given to
the opposite party and filed at the court. Although the appellant thought that
he had given the required notice on the 19th of Match 2013, the
other side affirmed during mediation, in January 2014, that they had not
received any notice. Also, he was informed by his assistant that he failed to
file with the court too. This led the appellant to create a letter and a form
N251 with a later date which he sent it to the other party and then
subsequently relied on it during the settlement.

 

In June of 2014, the appellant disclosed to the firm what he had done and
then the firm reported it to the SRA in October 2014. After this occurred the
appellant proceeded to make a self-report to the SRA as well. The SRA argued
lack of integrity according to the creation of the letter and form. They also
alleged that by relying on them the appellant had acted dishonestly. The
Solicitors Disciplinary Tribunal found the appellant guilty of dishonesty but
he had also been charged with acting without integrity, and was struck of the
roll. The appellant appealed against both conviction and sentence.

 

Legal issue:

 

The decision of the tribunal was that the appellant was found guilty of having
acted with dishonesty when he relied on the documents, but not when he created
them, here he was charged with lack of integrity. The court had to, therefore,
consider what the definition of the words ‘dishonesty’ and ‘integrity’ was.

 

Critical analysis:

 

The lead Mostyn J to search for the definition of each word and found
dishonesty to be “the reverse of honesty; lack of probity or integrity;”1 and integrity to mean “soundness
of moral principle; the character of uncorrupted virtue, esp. in relation to
truth and fair dealing; uprightness, honesty, sincerity”1. It seemed to Mostyn
J that from these definitions, the word integrity was a synonym of ‘honesty’
and therefore had to be an antonym of dishonesty.

 

The Judge also noted that in the Bar code of conduct, it “requires a
barrister to act with “honesty and integrity”2
but under principle 2 of SRA principles 2011, it states that a solicitor must “act
with integrity”3 only.

Since he had already concluded that honesty and integrity were synonymous, he
stated that this would provide an explanation as to why the SRA principles do
not require a solicitor to also act with honesty since it carries the same
meaning as ‘integrity’. “this would explain why the SRA principles do not
additionally require a solicitor to act with honesty. This is because it is the
same thing as integrity.”

 

However, in the case of Solicitors Regulation Authority v Wingate, Justice
Holman came to a different conclusion on the definition, that in fact “dishonesty
and lack of integrity are not the same. While all dishonesty involves a lack of
integrity, not all lack of integrity involves dishonesty”4.

Mostyn J disagreed because if the definition set out in the above case was
correct, then the SRA did not need to prove dishonesty and could have simply
charged the appellant with lack of integrity, and the judge believed that
dishonesty needed to be proved on a subjective element.

 

In conclusion, Mostyn J stated that it was “intellectually
virtually impossible to understand”5,
how could the appellant only lack integrity but then when he relied on such
documents it was dishonest? He stated that the analysis had not been sufficient
and therefore the Tribunal had been incorrect to find the appellant guilty, and
allowed the appeal. He argued that the case should be re-tried, but only on the
dishonesty charge. This case highlights the importance of how crucial the meanings
of words are because where they are ambiguous, it can confuse the law and
courts. In my opinion, I agree with Mostyn J that the appeal should be allowed because
if the words are synonyms, then how can you only act with dishonesty on one and
not on the others.

 

 

 

1John Michael Malins v Solicitors Regulation
Authority 2017 EWHC 835 (Admin) 2017
WL 01339062 25

2 Ibid, per
Justice Mostyn 27

3 Ibid, per
Justice Mostyn 21

4 Solicitors Regulation
Authority v David Fenton Wingate, Steven Edward Evans 2016 EWHC 3455 (Admin) 2016
WL 07377387 37

5John Michael Malins v Solicitors Regulation
Authority 2017 EWHC 835 (Admin) 2017
WL 01339062 24