In Taylor v Bar Standards Board [2025] EWHC 1029 (Admin) (“Taylor”), a barrister’s six month suspension for dishonest conduct was reduced on appeal to a significant fine and in Solicitors Regulation Authority v Heather Roberts Case No. 12617-2024 (“Roberts”) a solicitor was found to have been dishonest and was handed a 12 month suspension from practice. Both are instructive in exploring what constitutes (more or less) serious dishonesty, and also what courts and tribunals are prepared to accept, or not, as mitigating factors where admissions or findings of dishonesty have been made.
In this article Clare Dixon KC, Samuel Cuthbert and William Birch consider the Solicitors Disciplinary Tribunal and High Court’s approach to the sanction which should be levied on legal professionals following a ‘moment of madness’ submission advanced by way of mitigation following admissions of dishonest conduct.
A little background
In Bolton v The Law Society [1994] 1 WLR 512, Sir Thomas Bingham said “Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from that required high standard may of course take various forms and be of varying degrees. The most serious involves proven dishonesty… In such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced by the solicitor, ordered that he be struck off the role of solicitors”.
It follows that where a finding of dishonesty is made the starting point in terms of sanction is strike off for a solicitor or disbarment for a barrister. However, Sir Thomas’ use of the words “almost invariably” shows that, whilst strike off or disbarment are the most likely outcomes, there can be others.[1]
One example of such an alternative outcome is Burrowes v The Law Society [2002] EWHC 2900. Mr Burrowes’ clients attended an office to sign their will and, in the absence of any witnesses being available, and at the insistence of the clients, wrote on the wills the details of two witnesses. He later described his conduct as a “moment of madness”. On appeal, the Divisional Court quashed the Tribunal’s decision to strike Mr Burrowes off and declined to impose a financial penalty given that he had been deprived of income for 2 months because of the strike off. In making this finding, Rose LJ noted that the conduct was isolated, out of character, carried out at a time when he was suffering from depression and was of no personal gain to Mr Burrowes.
This case law is reflected in the SDT Guidance Note on Sanctions (“the SDT Guidance”)[2] and the BTAS Sanctions Guidance (“the BTAS Guidance”)[3] both of which state that the consequences of a finding of dishonesty will almost inevitably be strike off or disbarment save in exceptional circumstances.
The Facts of Taylor & Roberts
Taylor
Mr Taylor accepted direct access instructions to advise on a rating dispute. Being direct access qualified, he was able to receive instructions without the involvement of instructing solicitors and so assumed responsibilities which would otherwise rest with solicitors including, for example, the management of documents.
Upon his instruction, Mr Taylor was provided with a number of original documents and papers by his client. Mr Taylor concluded that the client’s position was unarguable and a conference was held at which this was communicated. The client then asked for the return of his papers. Mr Taylor went to the clerks’ room pigeonholes, but the papers were not there. In an attempt to avoid the delay of a search, and the embarrassment of explaining that they were not where he thought they would be, Mr Taylor told his client that they were likely at home and would be returned in due course. Subsequently he admitted that this was a lie: he knew that he had not taken the papers home.
A search of chambers was then carried out and the papers could not be found. About 3 months later Mr Taylor told the client that the papers had not been taken home, could not be found and must have been disposed of in the chambers confidential waste disposal system (although not by him).
The client felt that the loss of his papers had denied him the opportunity of seeking advice elsewhere. Mr Taylor returned his fee and issued an apology.
Roberts
Ms Heather Roberts was a solicitor in the Probate team of Irwin Mitchell LLP (“the Firm”). On 29 December 2021, she deleted five email chains (from October-December 2020) from the Firm’s management system. On 22 December 2021, a client had made a complaint that Ms Roberts had substantially amended draft particulars of claim without counsel approval. The deletions were discovered by the Firm during a separate investigation.
Ms Roberts accepted that she caused or allowed the deletion of the email chains. She explained that she could not recall deleting the emails nor why she deleted them, and denied acting dishonestly or without integrity, including because she was in poor health at the time, under pressure, and was well aware that deleted emails were recoverable and left a record.
Ms Roberts also pointed to her unblemished career and track record of exemplary behaviour, supported by numerous character references.
The Decisions in Taylor and Roberts
Taylor
The decision in Taylor was an appeal from a decision of the Disciplinary Panel of the Bar Tribunals and Adjudication Service (“the Panel”). The Panel considered that the case did fall within the “exceptional circumstances” foreshadowed in Bolton and so did not disbar him but imposed a six month suspension from practice (which would have resulted in about a £100,000 loss of income). The Panel found both the seriousness of Mr Taylor’s breach and the harm it had caused to be at the lower end of the scale. However, the Panel were troubled that it had taken Mr Taylor three months to tell the client about the loss of the papers. Further, whilst they acknowledged his acceptance of lying about the loss of the papers, they considered that he had underestimated the significance of what he had done and did not recognise the potential impact on public confidence and trust in the profession.
Mr Taylor appealed on the basis that the sanction was ‘clearly inappropriate’, applying the test set out by Jackson LJ in Salsbury v Law Society [2009] 1 WLR 1286.
McGowan J found that the legal test adopted by the Panel was the right one. Namely, starting with disbarment being the appropriate sanction before considering “whether exceptional circumstances apply”.[4] However, despite applying the correct test, McGowan J was satisfied that the suspension imposed was “clearly inappropriate and disproportionate” and that, if the Panel had reflected further it would have had cause to “consider whether all the requirements of the imposition of sanction and the duty to protect public trust and confidence in the profession could not have been met by the combined effect of the requirement to complete further professional development training and a financial penalty to mark the seriousness of any act of dishonesty by a barrister”.[5]
Having found the sanction to be clearly inappropriate McGowan J. then had to consider afresh the proper sanction which should be imposed. In coming to her decision the Judge considered the following passage from the BTAS Guidance: “Exceptional circumstances are more likely to be found where the dishonesty was momentary, isolated and occurred on the spur of the moment” and found that there were “exceptional circumstances” in this case. However, she then differed from the Panel in finding that the seriousness of the conduct justified a fine rather than suspension
In reaching her decision, McGowan J. was influenced by the fact that Mr Taylor’s lie was “not a lie told for personal gain, in any real sense. It was not a lie about the case, or the proceedings and it was clearly spontaneous”. She dismissed the suggestion that Mr Taylor’s lie could be characterised as a ‘white lie’, a description which she described as “very unhelpful” given that barristers “must not be fallible in their honesty”.[6] At the same time, she accepted, like the Panel that “this is lower in the scale of deliberate lies told in such a professional relationship. [The Panel] found that it was a spontaneous failing, designed to avoid having to explain the loss of the papers. I do not go behind that finding. I accept that whilst the Appellant simply had not understood how seriously this would be perceived, he fully realises that now”.[7]
The six month suspension was therefore replaced with a £25,000 fine (the Guidance setting a fine band of £15,000-50,000 for serious misconduct).
Roberts
The SRA alleged that by deleting the email chain, when she knew or ought to have known that she was concealing her involvement in issues that were relevant to the firm’s handling of the client’s complaint, Ms Roberts had acted without honesty, integrity and in a way which did not uphold public trust in the profession and misled her client. Following a contested hearing, the Tribunal found on the balance of probabilities that Ms Roberts had knowingly deleted the emails and in doing so had acted dishonestly.[8]
Having so found, the SDT took its starting point to be that dishonesty would lead to a sanction of strike off, save in exceptional circumstances. As to those exceptional circumstances, the tribunal followed the guidance from SRA -v James [2018] EWHC 2058 (Admin)[9] and focussed on the nature and extent of the dishonesty finding that:
“The extent of the dishonesty in the instant case was limited in duration and the Tribunal was prepared to accept it had been a ‘moment of madness’ on the Respondent’s part at a time when she had been moving into a zone of ill health, a factor which may not have been immediately apparent to her. She acted wholly out of character. There had been no sophisticated attempt at cover up and the fact of the deletions had been easily uncovered. The Respondent did not gain from her actions nor did she cause loss to the client or the firm. She accepted from the start that she had deleted the e-mails although she denied doing so knowingly or having any recollection of doing so.”[10]
As such, the dishonesty fell within “the small residual category” where strike off was disproportionate. However, it was still very serious, the degree of culpability was still high, and so a 12 month suspension was imposed.
Comment
In each decision, it has been unequivocally confirmed that the starting point sanction, upon a finding of dishonesty, is strike off. Further, McGowan J’s emphatic dismissal of the concept of a ‘white lie’ in this context is notable: there simply is no room for such a notion in the context of a professional relationship, the core principle of which requires barristers and solicitors to act honestly.
These two decisions stand as examples of a ‘moment of madness’ style mitigation plea being successful. As set out above, the BTAS Guidance does explicitly provide that dishonesty which is “momentary, isolated and occurred on the spur of the moment” may justify a finding of exceptional circumstances. The SDT Guidance states in similar terms that relevant factors when considering whether exceptional circumstances exist include “the nature, scope and extent of the dishonesty itself; whether it was momentary, or over a lengthy period of time, whether it was a benefit to the solicitor, and whether it had an adverse effect on others”.[11]
These decisions serve to demonstrate the delicate balance which is central to the proper determination of a sanction. On the one hand, each tribunal was at pains to emphasise the seriousness of any dishonest conduct. On the other, the fact that the dishonesty was indeed a one-off, and not part of a wider course of conduct, was precisely what allowed exceptional circumstances to be established and a departure from the starting point sanction of strike off/disbarment.
© Clare Dixon KC, Samuel Cuthbert and William Birch, 4 New Square Chambers
July 2025
Disclaimer: This article is not to be relied on as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.
[1] See also SRA v Sharma [2010] EWHC 2022 (Admin)
[2] 11th Edition, see Section C “exceptional circumstances”.
[3] Version 6, see Section 5.
[4] Paragraph 31
[5] Paragraph 35
[6] Paragraph 37
[7] Paragraph 38
[8] Applying Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 test.
[9] Which considered whether a solicitor’s mental health issues could amount to exceptional circumstances justifying a penalty other than strike off for dishonesty.
[10] Paragraph 28
[11] Paragraph 29
