Yussouf v SRA [2018] EWHC 211 (Admin)

This case concerns an appeal against the Respondent Solicitors Regulation Authority’s Adjudication Panel, on the grounds that the panel’s finding of dishonesty were based upon a two-stage test of dishonesty, namely the objective and subjective test and that the panel’s refusal to hold an oral hearing was unfair given the finding of dishonesty. It was held that whilst the panel had correctly applied the objective element of the test of dishonesty, it should have afforded the Appellant the opportunity to explain her conduct before considering a finding of dishonesty. The case was remitted to the Solicitors Regulation Authority’s Adjudication Panel to be considered afresh.

Facts

On 29 April 2014 Ms Rizwana Yussouf (“the Appellant”) first applied to the Solicitors Regulation Authority (SRA) for a certificate of satisfaction of suitability to be a solicitor and admission to the Roll. In her application, she had answered “no” to the question whether she had had a County Court Judgement (CCJ) issued against her. A search by the SRA revealed a CCJ was issued against her on 30 October 2009. The Appellant subsequently withdrew her application. On 8 March 2016 the Appellant submitted a second application for admission to the Roll and a practising certificate; this was dismissed by an Adjudicator on the grounds that the Appellant had acted dishonestly by failing to disclose the CCJ issued in 2009 (when making her first application).

The Appellant applied for a review of that decision by the SRA’s Adjudication Panel (“the Panel”) on the grounds that, at the time, she had a genuine, albeit mistaken, belief that she did not have to disclose a CCJ where payment had been satisfied (the 2009 CCJ had been by that date). She further contended that whilst she had read the questions without care and attention to detail, she had not been dishonest. Furthermore, the Appellant’s legal representatives submitted that if the Panel was minded to refuse the application having considered the written representations, the Appellant should be afforded an oral hearing. The Panel refused the Appellant’s request for an oral hearing because it considered it had sufficient documentary evidence to determine that the Appellant had acted dishonestly, and that there were no exceptional circumstances to determine otherwise.

Appeal

The Appellant subsequently appealed to the High Court, primarily on the grounds that a) the Panel acted unfairly in refusing to allow an oral hearing before making its finding of dishonesty against her; and b) the Panel erred in law by applying a two-stage test of dishonesty, namely the objective and subjective test.

Judgment

With regard to the issue of dishonesty, the Appellant’s counsel argued that the Panel misdirected itself on what constituted dishonesty, in that it applied the two stage test as set out in Twinsectra Ltd v Yardley [2002] 2 AC 164, that individuals will be considered to have acted dishonestly (a) if they did so by the ordinary standards of reasonable and honest people and (b) if they were aware that they were acting dishonestly by those standards.

The Judgment was handed down by John Howell QC. In his judgment, he referred to the Supreme Court’s ruling in Ivey v Genting Casinos UK Ltd (t/a Crockfords Club) [2017] UKSC 67, which had confirmed, albeit obiter, that the test for dishonesty was an objective one, where “what is objectively judged is the standard of behaviour, given any known actual state of mind of the actor as to the fact”. In General Medical Council v Krishnan [2017] EWHC 2892 (Admin) the judge had stated that the law in regulatory or disciplinary proceedings was, as stated in Ivey, the same as in civil and criminal proceedings; therefore Ivey and Krishnan applied. It was held in this instance that the difference between the “objective” and “subjective” elements in the test for dishonesty was not that the former had no regard to the individual’s state but that the latter did. In this instance it was held that the Panel did have regard to the Appellant’s state of mind when she had completed the relevant parts of the application form and therefore it correctly applied the objective test.

With regards to the Panel’s refusal for holding an oral hearing, it was held that in considering whether the Appellant had acted dishonestly, if such factual issues arose or such an explanation was advanced, fairness required that an opportunity should be provided to give oral evidence on such matters. It was held that the Panel could not fairly draw the adverse inferences that they had about the Appellant’s honesty from the inconsistent statements about her knowledge of the judgment without giving her the opportunity to respond to them. It was possible that her explanation of events could result in a finding of incompetence and carelessness rather than dishonesty.

Decision

The appeal was allowed, and the matter was remitted to the Adjudication Panel of the SRA for consideration.

Commentary

This case confirms that when considering whether an applicant has acted dishonestly, fairness requires that the opportunity be granted to give evidence on such matters orally, except when oral evidence could truly make no difference.