A former Stewarts Law partner, who was struck off after a private prosecution, has had his case sent back to the Solicitors Disciplinary Tribunal (SDT) by the High Court.
Partner Andrew Shaw and associate Craig Turnbull were both struck off last February after a private application by former investment banker Geoffrey Logue (19 February 2013).
The pair instructed Mayer Brown partner William Glassey to appeal the ruling to the High Court, with Fountain Court’s Tim Dutton QC instructed as counsel (12 December 2013).
The dispute centres on a 2010 case in which Shaw had secured a ex parte worldwide freezing order against Logue for holiday company, Complete Retreats Liquidating Trust. The US-based company had raised allegations of fraud against Logue.
The freezing order was subsequently discharged by Mr Justice Roth on the grounds that Shaw had failed to provide “full and frank disclosure” on aspects of the application (23 July 2010).
In discharging the order, Roth J said accepted an apology from Shaw for disclosure failures, which, the judge said, showed “a remarkable lack of proper precaution and supervision in the preparation of the documents”.
In his private prosecution against Shaw and Turnbull, Logue contended that the pair should have disclosed that the application was funded by property tycoon Christian Candy, who was also in dispute with Logue.
Logue’s advocate, Wilberforce Chambers’ John Wardell QC, contended that the lawyers should have disclosed the commercial interest of Candy and his company CPC in the outcome of the UK proceedings, and the fact that they were funding those proceedings.
The SDT viewed the failure to provide full and frank disclosure at the ex parte hearing as being dishonest, and ruled that the pair should be struck off as a result.
Dutton put forward six points of appeal against the Tribunal ruling, including that the SDT failed to “properly apply the test of dishonesty”, failed to “properly set out its reasons” and conducted the proceedings in an “unfair manner”.
In his ruling yesterday (14 January 2013) Mr Justice Jay again criticised the pair for their failure to disclose the third party funding arrangement in the ex parte application.
Jay J rejected arguments from Dutton that the SDT had been “plainly wrong” in its conclusions, and refused to accept arguments that the Tribunal decision was unsustainable.
However, the judge set aside five of six allegations of dishonesty against Shaw, namely that an affidavit – referred to as the ‘eighth affidavit’ – submitted to the court in support of the ex parte application was untrue.
“It should be clear from my conclusion […] that I agree with Mr Wardell that there is, or was, sufficient evidence available to justify a conclusion of dishonesty,” Jay J held.
He continued: “The problem I have with the SDT’s reasons is that insufficient reference is made to that evidence, insufficient findings of fact are made, insufficient reference is made to Mr Shaw’s case […], and the overall impression given is that the SDT has glided too rapidly and too easily between finding the first limb of Twinsectra satisfied to proof of the second limb.”
Setting aside the order that the lawyers should be struck off, the judge ordered for the eighth affidavit issue to be sent back to a newly constituted SDT to be considered.
In a statement Stewarts Law said: “We are carefully reviewing the judgment of the High Court following the appeal brought by former partner, Andrew Shaw and former assistant solicitor, Craig Turnbull, in this extremely complex case.
“The court has overturned the SDT’s decision to strike off both Andrew and Craig and has remitted the matter to a differently constituted SDT to consider afresh the findings set aside and to consider the appropriate sanction for those findings upheld.
“We take the matters raised in the judgment seriously. We have an outstanding and unblemished record in high value and complex litigation and will ensure that the errors made in this case are not repeated.”
For the appellants Andrew Shaw and Craig Turnbull
Fountain Court’s Timothy Dutton QC and Craig Ulyatt of the same set instructed by Mayer Brown partner William Glassey and associate Claire Lewis
For the respondent Geoffrey Collins Logue
Wilberforce Chambers’ John Wardell QC and Andrew Mold of the same set instructed by RadcliffeLeBasseur partner Nigel West