Honesty Continues To Be A Poisoned Ivey

It has been two years since the Supreme Court judgment in Ivey v Genting Casinos [2018] AC 391. This set out the correct test when considering allegations of dishonesty and yet, in Solicitors Regulation Authority v Kwame Agyekum Siaw [2019] EWHC 2737 (Admin), the High Court determined that the Solicitors Disciplinary Tribunal had erred in law when applying it. As we see a continued increase in charges of dishonesty, this judgment gives a reminder of what is needed to prove dishonesty.

Mr Siaw was a partner at The Mountain Partnership Solicitors. He received payments from clients which he did not put through the firm's accounts. One payment came from a Mr K. Before the SDT Mr Siaw gave evidence that he had used the money from Mr K for outlays. This included £350 for an application for permission to apply for judicial review in Mr K's case. However the tribunal checked this with the court who confirmed that no such application had been made. There were other allegations of misuse of funds and dishonest conduct.

The tribunal found the facts proved and then considered whether they amounted to dishonesty. Mr Siaw had admitted his conduct lacked integrity. The tribunal did not find that he was dishonest. They had regard to his motivations. They did not consider that there was a concerted effort to mislead and could not be sure by the standard of ordinary, decent people that Mr Siaw had been dishonest. Though Mr Siaw had misled the regulator, the tribunal did not find this to be calculated. They fined Mr Siaw £10,000.

The SRA appealed to the High Court. The appeal considered the SDT's application of the test for dishonesty. They noted that there had been an unqualified finding by the SDT that Mr Siaw had lied to and misled the regulator. They also found that the money, either in whole or in part, was money he should have paid to the firm. They noted that:

"The SDT has determined the issue of dishonesty at least in part by having regard to the respondent's motive for doing what he did. That sets the bar too high or...