Fuglers LLP & Ors v Solicitors Regulatory Authority

Factual and Procedural Background

This appeal arises under Section 49 of the Solicitors Act 1974 against a decision of the Solicitors Disciplinary Tribunal ("the Tribunal") dated 7 January 2013. The Appellants consist of a West End law firm ("the Firm") and its two equity partners ("the Partners"). The Tribunal found misconduct proved against the Appellants and imposed fines: £50,000 on the Firm, £20,000 on one Partner, and £5,000 on the other Partner. The Appellants do not contest the finding of misconduct but appeal the fines as disproportionate and challenge the costs awarded against them.

The misconduct concerned the use of the Firm's client account as a banking facility for a client, Portsmouth City Football Club Limited ("the Club"), over a four-month period during which approximately £10 million passed through the account. The Club's own banking facilities had been withdrawn following winding up petitions, and the Firm's client account was used to receive and make payments on behalf of the Club's trading activities. The Tribunal found breaches of the Solicitors' Accounts Rules 1998 and the Solicitors' Code of Conduct 2007, including improper use of the client account, operating contrary to Rule 15, providing unauthorised services, and conduct likely to diminish public trust in the profession. Recklessness was alleged but not proved.

Following the misconduct findings, the Tribunal imposed fines and apportioned costs totaling £56,250 between the Appellants in the same proportions as the fines. The Firm comprised five partners at the time, with two equity partners managing it. The Firm handled significant commercial and football-related legal work, including insolvency matters.

Legal Issues Presented

1. Whether the fines imposed by the Solicitors Disciplinary Tribunal were disproportionate and did not reasonably reflect culpability.
2. Whether one of the Partners ought not to have been fined at all.
3. Whether it was improper to impose substantial fines on individual partners in addition to the Firm, effectively constituting double jeopardy.
4. Whether the costs awarded against the Appellants were excessive or improperly calculated.

Arguments of the Parties

Appellants' Arguments

• The individual fines were disproportionate to the partners' culpability.
• One Partner's involvement was minimal and did not warrant any fine.
• Imposing fines on both the Firm and the individual partners amounted to unfair double punishment.
• The Tribunal made an error of fact by finding that the Football Creditor Rule was not in the minds of the Partners during the relevant transactions.
• The misconduct was not reckless and was undertaken in good faith with professional judgment, including consultation with the regulatory authority.
• No actual loss resulted from the misconduct, and the risk of harm was negligible, especially given the context of football insolvency practices.
• The costs awarded should have been reduced by at least one third rather than the smaller reduction granted by the Tribunal.

Respondent's Arguments

• The fines reflected the very serious nature of the breaches, including improper use of client accounts and facilitating preferential payments to some unsecured creditors over others.
• Allowing a client account to be used as a banking facility is objectionable per se and undermines the profession's reputation.
• The Tribunal's factual findings, including on the Football Creditor Rule, were open to it and supported by evidence and witness credibility assessments.
• The risk of insolvency-related consequences, including section 127 of the Insolvency Act 1986, was significant and improperly managed by the Partners.
• The costs award was within the Tribunal's discretion and no error in principle was identified.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bolton v The Law Society [1994] 1 WLR 512	Principles guiding appeals against sanctions imposed by Solicitors Disciplinary Tribunal; importance of integrity, probity and trustworthiness in solicitors.	Emphasised the importance of maintaining public confidence in the profession and the need for severe sanctions where standards fall below required levels.
Salsbury v The Law Society [2009] 1 WLR 1286	Standard for appellate interference with Tribunal's sentencing decisions.	Confirmed that appellate courts should not interfere unless the decision was clearly inappropriate or involved legal error.
Solicitors Regulation Authority v Anderson [2013] EWHC 4021 (Admin)	Standards for interference on appeal and principles of sanctioning misconduct.	Reinforced the high threshold for appellate intervention and the primary purpose of sanctions to maintain professional standards.
HMRC v The Football League and Others [2012] EWHC 1372 (Ch)	Validity of the Football Creditor Rule in insolvency law context.	Described the Football Creditor Rule and rejected challenges to its legality, providing context for the insolvency risks in this case.
R v G and another [2004] 1 AC	Definition of recklessness in criminal law.	Applied to assess whether the Partners acted recklessly; Tribunal found they did not meet the standard of recklessness.
D'Souza v Law Society [2009] EWHC 2193 (Admin)	Consideration of means in setting fines.	Supported the principle that financial means of solicitors or firms must be considered in sanctioning.
Matthews v Solicitors Regulation Authority [2013] EWHC 1525 (Admin)	Consideration of financial detriment and means in disciplinary sanctions.	Confirmed that means and overall financial impact are relevant in assessing fine levels.
Premji Naram Patel v Solicitors' Regulation Authority [2012] EWHC 3373 (Admin)	Interpretation of Rule 15 note (ix) and client account usage.	Referenced in arguments concerning the scope of permissible client account use and banking facilities.
HMRC v Portsmouth City Football Club Ltd (in administration)	Contextual background on the use of client accounts and insolvency risks.	Used to illustrate the improper use of client accounts as banking facilities in football club insolvency contexts.

Court's Reasoning and Analysis

The court approached the appeal by first considering the standard of review applicable to appeals under Section 49 of the Solicitors Act 1974, emphasizing respect for the Tribunal’s expertise and the high threshold for interference absent legal error or clear inappropriateness.

The Tribunal’s factual findings, including the rejection of the Appellants’ claim that the Football Creditor Rule was in their minds, were held to be open to it and supported by the evidence, including witness credibility assessments.

The court examined the nature of the misconduct, identifying three strands of mischief targeted by Rule 15 note (ix): (1) solicitors providing banking facilities beyond their regulated legal services undermines the profession’s trust; (2) risk of money laundering; and (3) risks arising in insolvency contexts, including contravention of section 127 of the Insolvency Act 1986 and preferential treatment of creditors.

The court agreed with the Tribunal’s conclusion that the Appellants consciously and deliberately allowed the client account to be used as a banking facility for over four months, involving substantial sums and payments not connected to legal transactions. One Partner actively directed payments, deciding which creditors to pay, which is not within a solicitor’s regulated role.

The insolvency context heightened the seriousness due to the risk of invalid dispositions under section 127 and the potential for damage to the profession’s reputation. The court rejected the Appellants’ contention that the risk was negligible or that no harm occurred, noting the Tribunal’s findings on the potential for serious financial and reputational consequences.

The court considered the mitigating factors advanced by the Appellants, including their experience, good character, cooperation, and absence of recklessness. While these reduced culpability to some extent, they did not outweigh the seriousness of the breaches.

Regarding sanction, the court reiterated the three-stage approach: assessing seriousness, identifying the purpose of sanctions (primarily deterrence and maintaining professional reputation), and selecting an appropriate sanction. The court found the Tribunal had properly applied this framework.

The level of fines was held not to be disproportionate, given the seriousness of the misconduct and the financial means of the Firm. The imposition of fines on both the Firm and individual partners was lawful and justified by their respective responsibilities and roles.

The court upheld the Tribunal’s costs award, finding no error in principle or exercise of discretion warranting interference.

Holding and Implications

The appeal is dismissed.

The court affirmed the Tribunal’s findings of misconduct and upheld the fines and costs imposed on the Firm and individual partners. The decision confirms the strict approach to improper use of solicitors’ client accounts as banking facilities, especially in insolvency contexts, emphasizing the profession’s need to maintain public trust and adhere to regulatory rules. No new precedent was established beyond reinforcing existing principles on sanctioning and the scope of appellate review.