Dishonesty and exceptional circumstances

Over the last decade or so there has been an increasing recognition by healthcare professional regulatory bodies that not all dishonesty necessarily requires that a professional is erased.This shift does not appear to apply to legal professionals. Whilst Bolton v the Law Society [1994] 1 WLR 512 states that strike off for solicitors who have been found to be dishonest is not automatic, it is plain that to avoid this sanction there must be exceptional circumstances.This principle was again recently considered by Mrs Justice McGowan DBE in the case of Farrukh Abbas v Solicitor’s Regulatory Authority [2024] EWHC 2775 (Admin).

Mr Abbas was a solicitor working as a self-employed consultant for a firm of solicitors who, together with another employee in the firm, agreed to submit a false claim for damages following a car accident with a third party. When the accident took place, the other employee was driving Mr Abbas’ car and the day following the accident he reported the incident to Mr Abbas. Over a 9-month period, Mr Abbas submitted a false claim to the insurers of the third party involved in the accident. In the claim he purported that he had been the driver and that he had suffered whiplash and soft tissue injuries. In support of his claim, he signed a witness statement which was untrue and claimed for physiotherapy which he received unnecessarily. When the third party’s insurance company asked a number of questions about the claim, Mr Abbas withdrew it. The insurance firm reported Mr Abbas to the SRA. When contacted by the SRA, Mr Abbas accepted that he had acted dishonestly.

At the hearing before the SDT, mitigation was advanced on behalf of Mr Abbas predicated on his early admissions, the fact that another was complicit, his difficult personal circumstances, his timely admissions, and the fact that whilst the conduct was not fleeting, it should be viewed as a continuing single instance of dishonest conduct. Finally, the SDT’s attention was also drawn to the fact that Mr Abbas had ceased the claim of his own accord and before he was found out. The SDT ordered him to be struck off the roll.

An appeal was brought on his behalf. The appeal was out of time and notwithstanding the paucity of evidence in support of the reasons relied on for the delay, the court decided that it was fair for the appeal to be heard because of the importance to Mr Abbas and his family.

The ground of appeal was in essence that the SDT had erred in not finding exceptional circumstances such that a lesser sanction than strike off could have been imposed.

Mrs Justice McGowan DBE unequivocally dismissed the appeal. She identified the dishonest conduct in this case as being of the most serious kind, in fact all the elements of a criminal offence were made out. Further she observed that acceptance of the dishonesty did not make the dishonesty itself any less serious. She found the fact that Mr Abbas did not accept the seriousness of his conduct demonstrated a lack of insight. Finally, she roundly rejected the submission that Mr Abbas’ family’s ill health did not make him less culpable or had impeded his ability to give evidence.

In dismissing the appeal in robust terms, Mrs Justice McGowan stated:

“The Tribunal carefully and properly reviewed all the circumstances. They made a clear finding that this was not an exceptional case, such that any sanction less than striking off could be justified. This was not in that small residual category of cases where striking off would be disproportionate. The combination of all mitigating factors could not lower the nature, scope and extent of the dishonesty to a level where anything less than striking off would be a proportionate sanction. The Tribunal accepted the fact of his difficult family circumstances but did not find that they had an impact on his ability to make a rational decision between honesty and dishonesty. Indeed, it is difficult to see how such matters could be said to explain a continuing course of dishonest conduct over nine months or so.”

It is clear that court continues to take an uncompromising position on dishonesty in the legal profession.

Vivienne Tanchel