All about the straggler? The High Court and the SRA’s appeals in James and Pamma

Last year, my colleague in Leigh Day’s Regulatory & Disciplinary team, Emma Walker, wrote an insightful piece looking at the significance of the High Court’s decision on three conjoined appeals in SRA v Sovani James & Ors. In each of these cases, the SDT had opted not to strike-off for dishonesty a solicitor who argued that his/her mental ill-health and extremely stressful working environment constituted exceptional circumstances meaning a sanction less serious that strike-off was appropriate. The SRA was appealing those findings.

Since the hearings in that case, the SDT has given its written reasons in SRA v Pamma, another case involving dishonest conduct in the context of mental ill-health. Here, the SDT suspended the solicitor indefinitely but did not strike her off.

In this article, I look at the two cases, highlight some key distinctions between them and consider whether Pamma is just a straggler falling within the same category of cases or whether, in fact, James might be distinguished with the result that Pamma escapes strike-off.

The High Court judgment in James

In James & Ors, the High Court (per Flaux J) ruled decisively that, in cases of dishonesty, strike-off will almost always be the appropriate sanction: mental health issues (specifically stress and depression) cannot, “without more”, amount to exceptional circumstances; and pressure of work or extreme working conditions cannot amount to exceptional circumstances, whether coupled with stress or depression or not. Rather, whilst these matters will be relevant to the consideration of exceptional circumstances, “the most significant factor carrying most weight and which must therefore be the primary focus in the evaluation is the nature and extent of the dishonesty”. The judgment set out (at paragraphs 45, 101 and 103) the principal elements to be analysed under this test.

The High Court concluded, in each case, that the SDT had failed to carry out the balancing of the competing elements (including the nature and extent of dishonesty) required to reach a proper conclusion on the question of exceptional circumstances. On carrying out that exercise, the High Court in each case substituted strike-off orders for the lesser sanctions imposed by the SDT.

The straggler? SRA v Pamma in the SDT

The High Court heard the appeal in James & Ors on 31 October and 1 November 2018 and gave judgment on 13 November 2018. In the interim, on 7 November 2018, the SDT heard SRA v Pamma, where the SRA alleged dishonesty and the solicitor sought leniency from the SDT due, primarily, to mental health issues. Written judgment in this case was handed down on 14 December 2018.

The allegations

In very brief summary, the allegations against Ms Pamma were that she had deliberately falsified a doctor’s note for a client with the intention of presenting it to a tribunal in support of an application to adjourn a hearing which she had wanted to adjourn because she had not prepared for it. It was further alleged that she repeated the false premise to the director of her firm and asked a solicitor colleague to renew the application orally at the hearing itself after the written application she had made was rejected because the falsified note was not, in fact, received by the tribunal with the written application. The false premise was only discovered when her supposedly unwell client attended the hearing together with his foster mother, who explained to the tribunal that the note was falsified, causing Ms Pamma’s solicitor colleague to withdraw from the case as he was professionally embarrassed.

The outcome

According to the judgment, Ms Pamma accepted the factual allegations almost entirely and admitted that she had acted dishonestly. Her case therefore depended almost entirely on mitigation.

The judgment shows that Ms Pamma, who the SDT found to be “a credible witness who demonstrated both remorse and insight”, gave evidence about a series of tragic and traumatic events relating to her family life and the impact those had on her.

A consultant psychiatrist prepared a report in the proceedings that diagnosed moderate depressive episode at the time of the events giving rise to the allegations and concluded that Ms Pamma had been unfit for work at that time.

The tribunal found that the overall seriousness of the misconduct had been high, given the dishonesty included falsifying a document to mislead a Court.

The tribunal then moved on to consider exceptional circumstances by reference to the “nature, scope and extent” of the misconduct. The tribunal analysed, in particular, “whether it was momentary, extended over a lengthy period of time, was of benefit to the Respondent and had an adverse effect on others” and concluded, in summary:

-         the nature and scope of the dishonesty was the creation of a false sick note, the communication of that falsified document to colleagues, and thereby the Court, and the pursuing of an application to Court based on a false premise;

-         whilst the medical evidence and the cumulative effect of the events described by the Respondent may undermine the degree of personal agency involved at the time, the Respondent accepted that she knew the conduct was wrong and the nature and scope of the dishonesty remains broad and serious;

-         the misconduct extended over three days and so cannot be described as momentary, although neither did it extend over a lengthy period of time;

-         avoiding a hearing for which the Respondent was not prepared was the immediate anticipated benefit to the Respondent;

-         that aim was not systematically or competently pursued which was consistent with the medical evidence presented;

-         there were adverse effects on the colleagues affected, the client and the Firm as well as the wasted Court time.

Balancing these considerations, the tribunal found that the case didn’t meet the exceptional circumstances threshold. However, the tribunal then looked at Ms Pamma’s personal mitigation. It’s worth reading paragraphs 45-48 in full.

45. Accordingly, in the absence of exceptional circumstances, and following Sharma, the finding of dishonesty inevitably meant that the appropriate sanction was striking off the Roll. The Tribunal considered then the personal mitigation raised by the Respondent. As noted above, the medical evidence and the Respondent’s evidence about its impact on her was accepted. The Tribunal accepted that the medical condition, the effect of the events she recounted in her evidence and the other pressures of circumstances caused the Respondent to act in a way which was out of character. The Tribunal accepted that as a result of these factors the pressure on the Respondent was exceptional, even though given the nature, extent and scope of the dishonesty they could not be said to satisfy the test set out in Sharma. The Tribunal found that she displayed genuine insight and remorse and noted that she had continued to work without incident since the misconduct. The Tribunal was satisfied that there was no realistic chance of such conduct being repeated and that the combination of circumstances which gave rise to it was a one-off.

 46. The Tribunal had regard to [54] of the Guidance Note on Sanctions which states that personal mitigation may serve to reduce the nature of the sanction and/or its severity. Medical evidence that at the time of the misconduct the Respondent was affected by physical and or mental ill-health that affected her ability to conduct herself to the standards of the reasonable solicitor may be relevant personal mitigation. Prompt admission and cooperation with the regulator is also listed as a potential personal mitigation.

 47. Accordingly, the Tribunal also had regard to the Guidance Note on Sanctions at [43] on Indefinite Suspension:

“…the Tribunal will have formed the view that:

· the seriousness of the misconduct is so high that striking off is the most appropriate sanction; but

· the presence of truly compelling and exceptional personal mitigation makes that course of action unjust; and/or

· there is a realistic prospect that the respondent will recover from, for example, illness, addiction, a relevant medical condition etc. or respond to retraining so that they no longer represent a material risk of harm to the public or to the reputation of the profession.”

 48. The Tribunal was satisfied that the Respondent had presented truly compelling and exceptional personal mitigation as summarised above. The Tribunal was satisfied, based on the medical evidence presented, that the Respondent would not find herself in the circumstances which had given rise to the misconduct again and that she did not present a material risk of harm to the public or the reputation of the profession. The Tribunal considered that Indefinite Suspension from the Roll, effective immediately, was the appropriate and just sanction and struck the appropriate balance between an appropriate punishment, a recognition that the Respondent’s actions had harmed the profession and the need to take into account her particular compelling and exceptional personal mitigation. Whilst conscious that it could not bind any future Tribunal which considered any application for the suspension to be terminated, the Tribunal did not consider that any such application would be appropriate within five years and any application should be accompanied by evidence that the Respondent was fully fit to work and that there had been no relevant conduct issues in the intervening period.

 Comment

The timing of the SDT hearing in Pamma, coming between the hearing in James & Ors and judgment being handed down, is uncanny – less so, however, the news that the SRA has exercised its statutory right of appeal against the SDT decision, surely influenced to a significant degree by the High Court’s decisive line on “exceptional circumstances” and dishonesty in James & Ors.

It would be easy to think the High Court’s line makes this a “slam-dunk” appeal for the SRA and that Ms Pamma will, like the solicitors in James & Ors before her, find her hopes of a future return to the profession snatched away by the High Court in similar fashion. But there are at least two factual distinctions between the cases that mean that this may not, in fact, be a foregone conclusion.

The first distinction lies in the context in which Ms Pamma’s mental health issues arose. James & Ors was essentially a case testing the extent to which solicitors could cite their work and working environment at their respective firms as the primary cause of their mental health problems at the time - and in mitigation - of their alleged dishonest conduct. In Pamma, however, the mental health problems and other main stressors arose almost entirely from traumatic personal and family experiences, with professional pressure playing a relatively minor role.

The second is in the extent of the mental health issues complained of. In Ms Pamma’s case, the accepted medical evidence was that, at the relevant time, she was suffering from moderate depressive episode and wasn’t fit to work. The evidence available and the tribunal’s findings, both in terms of impact on her and the severity of her illness, appear considerably clearer cut than in the individual cases of James and others.

It remains to be seen whether the High Court continues to take an uncompromising approach to cases of sanction on dishonesty. The possibility of avoiding strike-off in such cases is recognised by both the case law and the SDT’s Guidance Note on Sanctions, albeit subject to stringent conditions. We must now wait and see whether this latest set of factual circumstances is sufficient, in the eyes of the High Court, to meet those conditions.

About the author

Gideon Habel is an Associate in Leigh Day’s Regulatory & Disciplinary team, acting for professionals who need advice and support with compliance and regulatory matters. Connect with Gideon and the team on LinkedIn and Twitter or subscribe to receive their quarterly bulletin of commentary and news by emailing: [email protected].