CaseComment: John Michael Malins v SolicitorsRegulation Authority 2017 EWHC 835 (Admin) 2017 WL 01339062 Summary: The facts of Malins v SRA 2017 are as follows: in 2013, the appellantprovided his legal service to his client, had filed for After the EventInsurance policy to help cover against adverse costs.
In 2012, the law changedunder the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and cameinto force on 1st April 2013 which stated under section 46 that claimsafter this date would no longer be entitled to recover the costs. However, you wouldonly be able to recover such costs if a notice in form N251 had been given tothe opposite party and filed at the court. Although the appellant thought thathe had given the required notice on the 19th of Match 2013, theother side affirmed during mediation, in January 2014, that they had notreceived any notice. Also, he was informed by his assistant that he failed tofile with the court too. This led the appellant to create a letter and a formN251 with a later date which he sent it to the other party and thensubsequently relied on it during the settlement. In June of 2014, the appellant disclosed to the firm what he had done andthen the firm reported it to the SRA in October 2014.
After this occurred theappellant proceeded to make a self-report to the SRA as well. The SRA arguedlack of integrity according to the creation of the letter and form. They alsoalleged that by relying on them the appellant had acted dishonestly. TheSolicitors Disciplinary Tribunal found the appellant guilty of dishonesty buthe had also been charged with acting without integrity, and was struck of theroll. The appellant appealed against both conviction and sentence. Legal issue: The decision of the tribunal was that the appellant was found guilty of havingacted with dishonesty when he relied on the documents, but not when he createdthem, 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 founddishonesty to be “the reverse of honesty; lack of probity or integrity;”1 and integrity to mean “soundnessof moral principle; the character of uncorrupted virtue, esp. in relation totruth and fair dealing; uprightness, honesty, sincerity”1. It seemed to MostynJ 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 abarrister to act with “honesty and integrity”2but under principle 2 of SRA principles 2011, it states that a solicitor must “actwith integrity”3 only.Since he had already concluded that honesty and integrity were synonymous, hestated that this would provide an explanation as to why the SRA principles donot require a solicitor to also act with honesty since it carries the samemeaning as ‘integrity’. “this would explain why the SRA principles do notadditionally require a solicitor to act with honesty. This is because it is thesame thing as integrity.” However, in the case of Solicitors Regulation Authority v Wingate, JusticeHolman came to a different conclusion on the definition, that in fact “dishonestyand lack of integrity are not the same.
While all dishonesty involves a lack ofintegrity, not all lack of integrity involves dishonesty”4.Mostyn J disagreed because if the definition set out in the above case wascorrect, then the SRA did not need to prove dishonesty and could have simplycharged the appellant with lack of integrity, and the judge believed thatdishonesty needed to be proved on a subjective element. In conclusion, Mostyn J stated that it was “intellectuallyvirtually impossible to understand”5,how could the appellant only lack integrity but then when he relied on suchdocuments it was dishonest? He stated that the analysis had not been sufficientand therefore the Tribunal had been incorrect to find the appellant guilty, andallowed the appeal. He argued that the case should be re-tried, but only on thedishonesty charge.
This case highlights the importance of how crucial the meaningsof words are because where they are ambiguous, it can confuse the law andcourts. In my opinion, I agree with Mostyn J that the appeal should be allowed becauseif the words are synonyms, then how can you only act with dishonesty on one andnot on the others. 1John Michael Malins v Solicitors RegulationAuthority 2017 EWHC 835 (Admin) 2017WL 01339062 252 Ibid, perJustice Mostyn 273 Ibid, perJustice Mostyn 214 Solicitors RegulationAuthority v David Fenton Wingate, Steven Edward Evans 2016 EWHC 3455 (Admin) 2016WL 07377387 375John Michael Malins v Solicitors RegulationAuthority 2017 EWHC 835 (Admin) 2017WL 01339062 24