Lack of integrity in disciplinary proceedings: two recent conflicting authorities

In recent months two High Court Judges, in cases coincidentally involving appeals from the Solicitors’ Disciplinary Tribunal, have considered the concept of “lack of integrity” and its relationship to dishonesty.

Mostyn J in Malins v SRA [2017] EWHC 835 (Admin) concluded that lack of integrity was synonymous with dishonesty. However, the previous month Morris J in Newell-Austin v SRA [2017] EWHC 411 (Admin) held that, unlike the test for dishonesty, the test for lack of integrity was an objective one alone.

This article will argue that Morris J’s analysis accords with long established authority and is to be preferred.

At paragraphs 46 – 50 of Newell-Austin Morris J set out the test for dishonesty, namely – was the conduct dishonest by the standards of reasonable and honest people (the objective test) and did the party realise that his conduct was dishonest by those standards (the subjective test). By contrast, in order to establish lack of integrity it was not necessary to show that a party realised that his behaviour lacked integrity; it was sufficient to show that objectively his conduct did. Morris J gave the example of the solicitor dipping into the client account but doing so with the intention of replacing the funds. In his view on the facts of a particular case such conduct may not be dishonest but it would certainly lack integrity given the sacrosanct nature of the client account.

From the authorities (Hoodless and Blackwell v FSA [2003] FSMT 007 cited with approval in Scott v SRA [2016] EWHC 1256 (Admin); SRA v Chan [2015] EWHC 2569 (Admin)) Morris J discerned the following principles:

  • Integrity connotes moral soundness, rectitude and steady adherence to an ethical code
  • No purpose is served by seeking to define it further; professional disciplinary tribunals are capable of recognising it when it occurs
  • Lack of integrity and dishonesty are not synonymous
  • There is a distinction between a party’s subjective understanding of the underlying facts giving rise to the allegation of lack of integrity and his appreciation that his conduct lacks integrity by the standards of reasonable people; it is only the former that needs to be established
  • A person may lack integrity because they are unable to appreciate the distinction between what ordinary people regard as honest or not
  • Whilst it is highly likely that proof of knowledge or actual recklessness will give rise to a finding of lack of integrity it is not a prerequisite to such a finding.

Newell-Austin was not cited to Mostyn J in Malins, although by the tenor of the judgment that may have made little difference. Mostyn J at paragraphs 25 – 32 took as his starting point the dictionary definitions of dishonesty and integrity noting that one of the definitions of dishonesty is lack of integrity and that one of the definitions of integrity is honesty. However, this is to ignore that these are not exclusive or exhaustive definitions. Other definitions of dishonesty include “a disposition to deceive, defraud or steal” – and, of course, dishonesty is a separate ingredient of stealing and deceiving with its own separate legal, non-dictionary, definition.

He went on to examine the authorities. Curiously, he cited Hoodless and Scott, where it was held that the definition of integrity connoted moral soundness, rectitude and steady adherence to an ethical code and that a person would lack integrity if unable to appreciate what ordinary people would regard as honest or dishonest, in support of his argument that integrity and honesty were one and the same.

Further, he acknowledged that Lord Bingham MR in the seminal Court of Appeal decision in Bolton v The Law Society [1994] 1 WLR 512 had drawn a distinction for the purposes of potential sanction between dishonesty and lack of integrity, albeit he had offered no further definition.

Mostyn J referred to SRA v Wingate and Anor [2016] EWHC 3455 (Admin) in which Holman J had ruled that lack of integrity and dishonesty were not synonymous because there is no requirement to find a subjective element in cases of lack of integrity. Mostyn J stated that this would allow the SRA to “side-step” the requirement of proving the subjective element of dishonesty. In fact this is not a “side-step”; the authorities show that they are two different concepts.

Bolton is a long established Court of Appeal authority. The distinction between dishonesty has been recognised and explained in subsequent authorities. Until such time as the matter is reviewed by the Court of Appeal or Supreme Court the distinction remains good.

The real problem in Malins was that the SRA, having alleged lack of integrity in relation to the creation of a set of documents then alleged dishonesty in the relation to their use just minutes later, a concept Mostyn J found “intellectually…impossible to understand”. This was then compounded by the SRA failing to honour the distinction in the way it actually conducted the case so that the Appellant found himself responding to allegations of dishonesty where only lack of integrity had been pleaded. Therefore while Mostyn J was undoubtedly right in his criticisms of the conduct of the case, it is respectfully submitted that Morris J’s analysis is to be preferred.

Chris Gillespie