Integrity Restored

The Court of Appeal has given some much needed clarity on the meaning of "integrity" in the context of the SRA Code of Conduct 2011 in its judgment handed down on 7 March 2018 in Wingate and Evans v SRA and SRA v Malins (2018). This has removed the confusion as to whether the concepts of integrity and honesty were synonymous which had been introduced by earlier conflicting High Court decisions.

Background

The Judgment relates to two appeals heard together in the Court of Appeal arising out of disciplinary proceedings against solicitors.

Wingate and Evans v SRA involved two solicitors who had entered into a sham arrangement with litigation funders, pursuant to which their firm had received a loan of £900,000 which was stated to be used for funding specific cases only and to be repaid within 12 months but which, in reality, was used to pay the firm's debts and a substantial facility fee.

The Solicitors Disciplinary Tribunal ("SDT") had found that Mr Wingate and Mr Evans had been guilty of breaches of the SRA Accounts Rules but acquitted them of all other charges, including that of failing to act with integrity and of acting dishonestly. The dishonesty allegation was not pursued further but, on appeal from the SDT, Holman J found that one of the partners, Mr Wingate, had shown a lack of integrity by signing the sham agreement and drawing down moneys pursuant to it. The test was an objective one, unlike the test for dishonesty which (on the law as it was then) required a subjective element. Holman J concluded that it was clear on the case law that there was a distinction between dishonesty and a lack of integrity, with the latter having a broader meaning, but that it was neither necessary nor desirable to try to define integrity. The solicitors appealed.

In SRA v Malins, however, Mostyn J took a different view. Mr Malins had arranged ATE cover for his client in a construction litigation dispute but failed to serve the required notice to enable the client to recover the ATE premium from the defendant. On discovering his error, he created a backdated notice of funding and covering letter which were deployed in negotiations with the defendant's solicitors with a view to persuading them that the ATE premium was recoverable.

The SDT found that Mr Malins had acted without integrity in relation to the creation of the documents but that he had also acted dishonestly in deploying them in negotiations with the defendant's solicitors (no charge of...