Case Comment: John Michael Malins v Solicitors Regulation Authority 2017 EWHC 835 (Admin) 2017 WL 01339062 Summary: 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.
- Thesis Statement
- Structure and Outline
- Voice and Grammar
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 retried, 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 because if the words are synonyms, then how can you only act with dishonesty on one and not on the others.