Newsletters Professional Discipline 26th May 2022

Gray v SRA [2022] EWHC 624: Previous findings before the SDT

Rule 32(2) of the Solicitors Disciplinary Tribunal Rules provides that the judgment of any civil court, or any tribunal exercising a professional or disciplinary jurisdiction, may stand as proof but not conclusive proof of the facts upon which the judgment is based.

Rule 32(2) is to some extent unusual. Whilst tribunals and civil courts have long taken into account criminal decisions, where a higher burden of proof has been used, the opinion, even of a judge, on the balance of probabilities, is traditionally of little weight in other proceedings between different parties. That traditional principle was rejected or substantially eroded in the case of professional discipline tribunals though, in R (Squier) v GMC and Towuaghantse v GMC, and so the Rule 32(2) situation may now apply before a range of regulators.

So to what extent is the prior decision “proof”? How can it be rebutted? And what happens where the evidence before the Tribunal is different to that before the previous court?

The High Court proceedings

Mr Gray represented the Republic of Djibouti in the Commercial Court between 2012 and 2015 when he was a partner at Gibson Dunn, in a claim which concerned the misappropriation of state assets by the Defendant. In March 2015, after a five day hearing at which Mr Gray was cross-examined, Flaux J (as he then was) found that Mr Gray had deliberately and dishonestly misled the Court in the context of an inter-partes application for a freezing injunction. Mr Gray was aware by the time of the hearing of the application that the defendant’s terrorism conviction in Djibouti (not directly in issue but ultimately relied upon by the court as one of four reasons for granting the freezing injunction) had been based upon a mis-dated tapped telephone call. Flaux J found that Mr Gray was aware that the conviction was therefore unsafe, and relied upon the conviction without informing the court of the dating error. Mr Gray had suggested that he had not relied upon the conviction but stated that there was simply a good arguable case against the defendant on the evidence as it was now understood. He asserted that he had acted collaboratively and sought leading counsel’s advice at each stage of the matter. Any misleading was inadvertent.

A central finding of Flaux J’s decision was that Mr Gray was the only relevant legal professional who knew that the court was being misled, and that he failed to properly inform his own leading counsel of the dating error, who was therefore in ignorance that he was making misleading submissions. Leading counsel was fully exonerated by the Bar Standards Board, who took the unprecedented step of apologising for the length of their investigation.

The Tribunal Proceedings

Before the Solicitors Disciplinary Tribunal the SRA relied upon the judgment of Flaux J. By the time of the Tribunal proceedings Mr Gray was able to place a significant number of additional documents before the tribunal which he suggested demonstrated he had fully consulted Leading Counsel. The SRA expressly did not adopt Flaux J’s reasoning on leading counsel, saying instead that it simply did not matter whether Mr Gray properly informed him. Mr Gray accepted making mistakes but suggested that any misleading was not deliberate or dishonest, and he had thought, in consultation with Leading Counsel and the rest of the team at his Firm, that the course adopted was a permissible and proper one. None of those with the same knowledge as Mr Gray realised the court had been misled, and neither did he.

In a decision dated 5 May 2021, the Tribunal found four out of five allegations proved, including dishonesty. The Tribunal expressly placed “significant weight” on the findings of Flaux J.

The Appeal

On appeal before the High Court, it was submitted on Mr Gray’s behalf that the Tribunal had given undue weight to Flaux J’s decision, despite the fact that the evidence now demonstrated that at least one of Flaux J’s central findings, that Mr Gray had concealed the true position from leading counsel, could no longer be supported; in fact Mr Gray had taken decisions in consultation with him. The Tribunal also went as far as to set out vast swathes of Flaux J’s judgment which were never relied upon by the SRA, and in fact implicitly disavowed by them in that the SRA did not seek to prove that leading counsel was not consulted in proceedings before the SDT.

Linden J agreed that the Tribunal had to reach its own decision and could not simply adopt the Commercial Court’s, and that the consultation of leading counsel was relevant to Mr Gray’s honesty within the definition in Ivey v Genting Casinos (UK) Ltd. He ultimately found though, that the Tribunal correctly reached its own decision, making findings that leading counsel was consulted, whilst not coming to any decision about leading counsel’s actual knowledge. They were entitled to take into account Flaux J’s decision, whilst not simply adopting it.

Linden J found the judgment of Flaux J was of significance for a number of reasons:

  1. While his decision was to the civil standard of proof, and the Tribunal proceedings were to the criminal standard of proof (no longer the case under the new SDT rules), Flaux J expressed himself in forthright terms, directed himself that cogent evidence was needed to find dishonesty, and did not appear to be relying on the balance of probabilities to reach his findings.
  2. Flaux J used the more generous, Ghosh, test for dishonesty.
  3. Flaux J was uniquely well placed to say whether submissions and evidence before him was misleading.
  4. A substantial part of the evidence before Flaux J was in the form of undisputed facts, and so a number of his findings were based on substantially the same material as that before the SDT.
  5. The foundation of the misleading conduct was not materially affected by the involvement or otherwise of leading counsel.
  6. Linden J found it was highly unlikely Flaux J would have reached a different view in light of the additional material before the SDT.
  7. Whilst Mr Gray’s right of appeal to the Court of Appeal was restricted because he was not a party to proceedings, the Court of Appeal’s refusal of permission suggested he would not have succeeded on the merits in any event.

In the author’s view, Rule 32(2) continues to represent something of a ‘sticky wicket’ for both the regulator and any tribunal. Where the findings of the tribunal are different to any judgment relied upon, the Tribunal would be well advised to expressly set out how their findings differed, and to what extent that affected their reliance on the previous decision. Such an analysis will prevent any appeal court having to read between the lines.

Lewis MacDonald was instructed for Mr Gray by Ian Ryan of Howard Kennedy, both at first instance and on appeal. He appeared alone before the SDT, and on appeal in the High Court he was led by Simon Davenport QC of 3 Hare Court.


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