Harry Francis Cottam v Solicitors Regulation Authority

Mr Justice MacDonald: INTRODUCTION

1. This is an appeal by Harry Francis Cottam brought pursuant to s.49 of the Solicitors Act 1974 (‘ the 1974 Act ’). Mr Cottam appeals a decision of the Solicitors Disciplinary Tribunal (‘the Tribunal’) made on 26 October 2023, with the full written decision of the Tribunal having been received by the parties on 14 November 2023. The Tribunal, following a finding that two allegations referred to the Tribunal by the Solicitors Regulation Authority (‘SRA’) had been proved, ordered Mr Cottam be struck off the Roll of Solicitors and that he pay the costs of and incidental to the application and enquiry fixed in the sum of £4,000. At the Tribunal hearing Mr Cottam was represented by counsel. At this hearing he has represented himself. The SRA is represented by Mr Matthew Edwards of counsel.

2. The decision of the Tribunal of 26 October 2023 records the allegations made against Mr Cottam and the findings of the Tribunal as follows: “1. The allegations against the Respondent, Harry Francis Cottam, made by the SRA were that, while in practice as a Solicitor and Sole Director at Cottams Solicitors Limited (“the Firm”): 1.1. Between May 2016 and May 2018, he caused or allowed improper transfers of monies from the client account to the office accounts, as set out in Schedule 1 to the Rule 12 statement, and in doing so he breached Rule 20.1 of the SRA Accounts Rules 2011, and Principles 2, 4, 6, and 10 of the SRA Principles 2011. PROVED 1.2. Between May 2016 and May 2018, he prepared or caused to be prepared, false invoices in respect of improper client account to office account transfers, as set out in Schedule 1 and in doing so he thereby breached Principles 2 and 6 of the SRA Principles 2011. NOT PROVED. 1.3. In addition, both allegations 1.1 and 1.2 were advanced on the basis that Mr Cottam’s conduct was dishonest. Dishonesty was alleged as an aggravating feature of his misconduct but was not an essential ingredient in proving the allegations. PROVED IN RELATION TO ALLEGATION 1.1 ONLY.”

3. By an Appellant’s Notice issued on 4 January 2024, Mr Cottam now appeals on the grounds that the Tribunal’s decision was contradictory and failed to correctly summarise and refer to relevant parts of the evidence provided by Mr Cottam, meaning that the Tribunal’s conclusions and ultimately, the findings made, were wrong.

4. Ahead the substantive appeal, the court was required to determine an application by Mr Cottam for anonymity. That application was opposed by the SRA. I refused that application.

5. In Section 10 of his Appellant’s Notice, Mr. Cottam outlined that he was applying for “…an injunction (draft attached) preventing publication of the order of 26.10.23 and preserving my anonymity in these proceedings.” At Section 11 of the Appellant’s Notice, Mr. Cottam set out a narrative, referring to various medical documents. The medical documents were included in the Appeal Bundle. Whilst, upon the application of Mr Cottam, the Tribunal on 24 October 2023 directed that the Cause List remain anonymised for the duration of the hearing and that the hearing itself would take place in private, the Tribunal was not satisfied that it should withhold publication of its decision, noting that that there was a strong public interest in its decision and reasons being published in full, with the anonymisation of Mr Cottam being an exceptional step. The decision of the tribunal remains unpublished pending the outcome of Mr Cottam’s appeal.

6. Ahead of the appeal hearing, Mr Cottam had not formally applied for the appeal hearing to be heard in private pursuant to r39.2(2) and (3) of the Civil Procedure Rules 2010 (‘CPR’) and so his name was displayed on the court list for the hearing. Within this context, Mr Cottam accepted that the hearing should proceed in public, however he sought to persuade the court that his name be anonymised in the subsequent judgment based on the adverse impact the publication of an un-anonymised judgment would have on his mental health. In the latter regard, Mr Cottam relied on a series of medical reports dating between 2020 and 2023, the last being a report of Dr Gupta, consultant psychiatrist, dated 29 December 2023. The medical evidence indicates, at the time it was compiled, a certain vulnerability on the part of Mr Cottam, in particular in relation to his involvement in the proceedings within the context of his identity as a solicitor being central to his psychological health. Dr Gupta opined in 2023 that it was highly likely that there would be a significant deterioration of Mr Cottam’s mental health and the risk of suicide would be likely to increase if the Tribunal’s findings were published.

7. At the appeal hearing, Mr Cottam described the deterioration of his mental health in similar terms to Dr Gupta’s December 2023 report and stated that his mental health continues to be adversely impacted by his being struck off, telling the court that being a solicitor struck from the Roll is to be “a social leper”. Mr Cottam confirmed, however, that there has been no updated medical evidence since the report of Dr Gupta 18 months ago. He also confirmed that he is not currently on medication or receiving therapeutic input. Mr Cottam further confirmed that he remains in employment, although not in the capacity of a solicitor.

8. CPR r39.2(4) provides that the court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person. Balancing the competing rights engaged by Mr Cottam’s preliminary application under Arts 8 and 10 of the ECHR, and having regard to the importance of open justice and the public interest in the identity of those professionals providing services to the public and who are the subject of disciplinary proceedings being known, I was satisfied that it could not be said in this case that non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of Mr Cottam. In the circumstances, I was not satisfied that it was necessary to derogate from the principle of open justice and I declined to make a direction pursuant to CPR r 39.2(4).

9. In determining Mr Cottam’s appeal against the findings and decision of the Tribunal, I have had the benefit of an appeal bundle and of Skeleton Arguments prepared by both parties. I also had the benefit of detailed oral submissions made by both Mr Cottam and Mr Edwards of counsel. I must commend Mr Cottam for the manner with which he conducted himself during a hearing that was undoubtedly difficult for him, his submissions having been clear and closely argued. BACKGROUND

10. Mr Cottam was admitted to the Roll of Solicitors on 15 August 1991. In 1996, he set up a sole practice named Cottams Solicitors. In 2008, the practice was incorporated as Cottams Solicitors Limited (‘the Firm’) and functioned out of a freehold premises, purchased with a mortgage. The Firm remained a small concern and consisted of Mr Cottam, a cashier and a conveyancer. At the relevant time, Mr Cottam was the sole director, manager and company secretary of the Firm. Mr Cottam also held compliance roles at the Firm as the compliance officer for legal practice (‘COLP’) and compliance officer for finance and administration (‘COFA’).

11. In his evidence to the SRA, Mr Cottam describes the Firm as generally successful in its first few years, in the sense that it remained financially profitable until July 2015. In July 2015, a fire occurred at the freehold premises in which the firm was based. It was believed that the fire was an act of arson, Mr Cottam having also received death threats proximate to the fire, although no one was identified as the suspected arsonist. Although the premises was insured, the cover was not sufficient to meet the losses resulting from the fire. As a result, the firm had to relocate to temporary premises, which incurred further expense. Mr Cottam states that these series of unfortunate events marked the start of the decline in the success of the Firm and in his mental health.

12. Within the foregoing context, and up until the SRA investigation that commenced on 1 October 2018 and which led to the findings made by the Tribunal in October 2023, Mr Cottam had an unblemished career with no previous formal disciplinary matters.

13. On 1 October 2018, the SRA commenced a without notice forensic inspection of the Firm following receipt of complaints relating to the handling of client money. The inspection was conducted by Mr Cassini, a Forensic Investigation Officer. Mr Cottam was interviewed on 2 October 2018. Mr Cassini reviewed the Firm’s client account reconciliation as at 31 August 2018, which revealed a client account shortage. The client leger on one matter showed debit balances as a result of transfers from the client account to the office account for purported costs. An Interim Forensic Investigation Report, dated 10 October 2018, identified a cash shortage on the client account of £137,388.12, in relation to improper transfers in the matter of ‘RCG’, of which £804.20 had been repaid at the date of the interim report.

14. Following the Interim Investigation Report, the Firm was intervened in by the SRA on 16 October 2018. At the relevant time, Mr Cottam held a practicing certificate free from conditions. His practicing certificate was suspended on 18 October 2018. A Final Forensic Investigation Report was produced, dated 13 March 2019. This report identified that on a further matter, ‘JB’, transfers had been made from the client account to the office account. The ‘JB’ file did not contain copies of bills or written notification of costs sent to the client relating to the transfers and there appeared to be no evidence on the client file of the work undertaken in relation to the transfers. There were, however, invoices on the ‘JB’ file, which did not appear to have been sent to the client, and did not reflect any work undertaken. The total value of those client account transfers was £37,727.32. The total value of the improper transfers across the two client mattes of ‘RCG’ and ‘JB’ was therefore £175,115.44.

15. As I have noted, the matter came before the Tribunal between 24 and 26 October 2023. The Tribunal considered the documentary evidence before it and heard oral evidence from Mr Cassini and from Mr Cottam. In circumstances where each party was represented by counsel, the Tribunal heard both Mr Cassini and Mr Cottam challenged by way of cross-examination. The Tribunal provided their written decision for the order of 26 October 2023 to the parties on 14 November 2023.

16. Prior to undertaking an analysis of the evidence read and heard by the Tribunal, the Tribunal noted as follows with respect to the manner in which it had approached that evidence: “[31] The written and oral evidence of witnesses is quoted or summarised in the Findings of Fact and Law below. The evidence referred to will be that which was relevant to the findings of the Tribunal, and to the facts or issues in dispute between the parties. For the avoidance of doubt, the Tribunal read all of the documents in the case and made notes of the oral evidence of all witnesses. The absence of any reference to particular evidence should not be taken as an indication that the Tribunal did not read, hear or consider that evidence.” Allegation 1.1

17. By allegation 1.1, Mr Cottam was alleged, between May 2016 and May 2018, to have caused or allowed improper transfers of monies from the client account to the office accounts, as set out in Schedule 1 to the Rule 12 statement, and in doing so he breached Rule 20.1 of the SRA Accounts Rules 2011 and Principles 2, 4, 6, and 10 of the SRA Principles 2011. With respect to the transfers themselves, Mr Cottam accepted that they were improper. The Tribunal was satisfied that Mr Cottam allowed the transfers to take place in that he was responsible for them given his role in the firm. The Tribunal was further satisfied that Mr Cottam caused the transfers to take place.

18. In reaching this decision, the Tribunal considered the medical evidence relied on by Mr Cottam to suggest that he was not able to function to the extent he could have, causing the transfers to take place. However, noting that the medical evidence concerning Mr Cottam’s mental health postdated the periods during which the relevant transfers had taken place and the fact that Mr Cottam continued to work throughout the relevant period, the Tribunal was satisfied that, whilst the 2015 fire had had a devastating effect on him and acted to impair his judgment, there was no evidence to suggest he was unable to function.

19. In determining whether Mr Cottam had caused the transfers to take place, the Tribunal also gave careful consideration to Mr Cottam’s assertion that his cashier, referred to in the decision as TN, had caused the transfers to take place without his knowledge. To this end the Tribunal observed that Mr Cottam had not reported TN’s alleged conduct to the SRA once he had become aware of the transfers, nor taken the “obvious step” of suspending or dismissing TN in circumstances where, as he alleged, she was responsible for the improper transfers. The Tribunal further relied on the fact that in his interview with Mr Cassini on 2 October 2018, Mr Cottam had admitted to making the transfers and had not mentioned the alleged role of TN until a year later, noting that Mr Cottam had given clear and detailed answers to many of the questions and being satisfied that he had given a truthful and accurate account in that interview. Within the foregoing circumstances, the Tribunal concluded that Mr Cottam had given no plausible reason for TN to have decided to move significant sums of money out of the client account and not inform Mr Cottam.

20. Within the foregoing context, the Tribunal concluded as follows with respect to Allegation 1.1 against Mr Cottam: “35.20…Taking all the evidence into account, the Tribunal found that Mr Cottam was at the very least aware of the improper transfer taking place and that, by allowing them to continue, he had caused those transfers to occur. The Tribunal therefore found the factual basis of Allegations 1.1 proved on the balance of probabilities. 35.21 It followed as a matter of logic from that finding that the breaches of Principles 4, 6 and 10 and the breach of Rule 20.1 of the SAR were also proved on the balance of probabilities, having regard to the vital importance of protecting client monies and the consequent impact on trust in the profession when this did not happen.”

21. The Tribunal went on to consider the issue of whether Mr Cottam lacked integrity. In doing so, the Tribunal applied the test set out in Wingate and Evans v SRA; SRA v Mailns [2018] EWCA Civ 366 , [2018] 1 WLR 3969 . Having regard to the medical evidence relied on by Mr Cottam, the Tribunal concluded that that evidence, taken at its highest, did not suggest that Mr Cottam was not responsible for his actions. Within the context of the standards of the profession being clear about how client’s money should be handled, the Tribunal was satisfied, on the balance of probabilities, that Mr Cottam lacked integrity.

22. Finally with respect to Allegation 1.1, the Tribunal considered the issue of dishonesty. In doing so, the Tribunal applied the test set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 , [2018] AC 391 . Applying that test, the Tribunal was satisfied that, with respect to his state of knowledge, Mr Cottam was aware of the severe financial difficulties brought about by the arson attack, aware there was a cashflow issue and that paying bills and overheads was challenging, aware of the SRA rules and his responsibilities to ensure they are complied with and that he understood the financial and accounting procedures of the firm. Within the context of that state of knowledge, the Tribunal concluded as follows with respect to the question of dishonesty: “32.28 The Tribunal was satisfied on the balance of probabilities that causing those transfers to take place would be considered dishonest by the standards of ordinary decent people on the basis that he had used client monies to bolster the financial position of the Firm. The Tribunal therefore found the allegation of dishonesty proved in relation to Allegation 1.1.” Allegation 1.2

23. By allegation 1.2, Mr Cottam was alleged, between May 2016 and May 2018, to have prepared or caused to be prepared, false invoices in respect of improper client account to office account transfers, as set out in Schedule 1 and in doing so he thereby breached Principles 2 and 6 of the SRA Principles 2011.

24. It was common ground before the Tribunal that the invoices in question, on which Mr Cottam’s initials appeared, were false. In the circumstances, the Tribunal identified the question before it as being whether Mr Cottam prepared the invoices, or caused them to be prepared. Examining the evidence relevant to that issue, the Tribunal noted that the relevant transfers could not happen without Mr Cottam’s knowledge but that the creation of invoices was not something that required Mr Cottam’s input and that Mr Cottam had not admitted to creating the invoices in question during his interview with Mr Cassini. The Tribunal was not satisfied that the fact that Mr Cottam’s initials appeared on the false invoices was sufficient to prove that he had created those invoices.

25. Within this context, the Tribunal concluded that it was not satisfied on the balance of probabilities that the SRA had discharged the burden of proof to show that Mr Cottam had either prepared or caused to be prepared the false invoices and found this allegation not proved. Allegation 1.3

26. By Allegation 1.3, the conduct of Mr Cottam charged in Allegation 1.1 and allegation 1.2 was alleged to have been dishonest, dishonesty being alleged as an aggravating feature of his misconduct but was not an essential ingredient in proving the allegations. As I have noted, the Tribunal found this allegation proved in relation to Allegation 1.1 only. Sanction

27. With respect to sanction, having regard to the Guidance Note on Sanctions (June 2022), the Tribunal assessed the seriousness of the misconduct by considering Mr Cottam’s culpability, the level of harm caused together with any aggravating or mitigating factors.

28. With respect to mitigating factors, the Tribunal took account of Mr Cottam’s “unblemished career” and “good character in all respects.” The Tribunal further acknowledged that Mr Cottam had been a victim of arson and death threats, which led the circumstances in respect of which he was before the Tribunal. The Tribunal also recognised that Mr Cottam had engaged with the proceedings throughout and had attempted to make good the shortfall in the client account to a limited extent by making a repayment of £804 and by putting the business premises up for sale and offering to sell the family home.

29. Against these matters, Mr Cottam accepted before the Tribunal that if the allegation of dishonesty in Allegation 1.3 were to be upheld, it would follow that the sanction should be that he is struck from the Roll. Further, the Tribunal considered the following aggravating factors to be relevant: i) There was a high level of culpability. Mr Cottam’s motivation was to prop up the firm and address the cashflow issues. Mr Cottam was in a position of trust as a solicitor and custodian of client monies. He had direct control and responsibility as a sole director, COLP and COFA. He was an experienced solicitor throughout. ii) The harm caused by the misconduct was evident in the shortfall on the client account of £175,115.44. The harm to the reputation of the profession was significant. iii) Mr Cottam’s conduct was aggravated by his dishonesty. The improper transfers were deliberate, calculated and repeated and continued over a significant period of time. A year into the investigation, Mr Cottam sought to blame his cashier, TN, for the improper transfers. iv) The Tribunal was unable to find genuine insight into the extent of his misconduct as he had tried to avoid responsibility by blaming TN. Whilst Mr Cottam had made admissions to the improper nature of the transfers at an early stage and had admitted his responsibility for them, he had subsequently resiled from that position.

30. Within the foregoing context, the Tribunal reached the conclusion that the only appropriate sanction in the circumstances was for Mr Cottam to be struck from the Roll. Mr Cottam was ordered to pay costs in the sum of £4,000. GROUNDS OF APPEAL AND SUBMISSIONS

31. Mr Cottam relies on the following grounds of appeal in seeking to demonstrate that the decision of the Tribunal was wrong: i) The Tribunal failed to correctly summarise Mr Cottam’s witness evidence at paragraph 33.11 of the judgment when stating Mr Cottam had “accepted that he had signed the lists of transfers, including improper transfers, written out by TN”. ii) The Tribunal failed to correctly summarise Mr Cottam’s witness evidence at paragraph 35.15 of the judgment when stating Mr Cottam “was, on his own evidence more involved in the finances after 2015” and in finding that “It was implausible that he had not properly looked at the ledgers or reconciliations for such an extended period of time”. iii) The Tribunal failed to mention, in reference to the absence of reporting to the SRA and retention of TN, that Mr Cottam had put the freehold property (from which Cottam Solicitors Limited operated which were in his name with substantial equity) on the market for sale from May 2018 when he discovered the shortfalls, as detailed in his Answer and statements (paragraph 35.17). iv) The Tribunal erred in finding that had Mr Cottam been talking of the firm as a whole in his interview with the SRA investigator, rather than him personally, he would have mentioned TN as on his case she had a central role in what had taken place (paragraph 35.19). v) The Tribunal erred in finding that Mr Cottam had sought to rely on some parts of his interview with the SRA investigator but not others without identifying which parts these were (paragraph 35.19). vi) The Tribunal erred in finding that Mr Cottam had given a truthful and accurate account in that interview which was inconsistent with the finding in respect of Allegation 1.2 (paragraph 35.19). vii) The Tribunal erred in finding that there was no plausible reason for TN to have decided to move significant sums of money out of the client account whilst keeping Mr Cottam in the dark about it (paragraph 35.20). viii) The Tribunal erred in finding that Mr Cottam was aware that the transfers were taking place and that they were improper which ignores completely Mr Cottam’s very detailed evidence in his Answer and statements to the contrary (paragraph 32.27). ix) The Tribunal erred in finding that the transfers could not happen without Mr Cottam’s knowledge despite evidence that the internet banking system was vulnerable to a trusted employee abusing it (paragraph 32.30). x) The Tribunal erred in finding that Mr Cottam had not made an admission to creating the invoices in his interview with the SRA investigator (paragraph 32.31). xi) The Tribunal failed to evaluate Mr Cottam’s re-examination on parts of his interview with the SRA investigator when he stated, “I was made aware by my cashier of the shortfall”.

32. By his Skeleton Argument, and in oral submissions, Mr Cottam asserted that the Tribunal had reached erroneous findings of fact which had, in turn, led the Tribunal to incorrect decisions. I deal with those submissions in so far as is necessary when examining each of the grounds of appeal below. RELEVANT LAW

33. Section 1 of the 1974 Act provides that a person is not qualified to act as a solicitor unless they have (a) been admitted as a solicitor (b) their name is on the Roll and (c) they have a current practicing certificate issued by the Law Society.

34. The maintenance of accounts (including, in particular, accounts holding clients’ money) is addressed at ss.32 to 34 of the 1974 Act . Professional regulation of solicitors is undertaken by the SRA which acts as the regulatory arm of the Law Society. The SRA sets out standards, regulations and codes that those who are regulated by the SRA are expected to adhere to. At the relevant time, the SRA Handbook set out the following ten mandatory principles: The amended SRA Standards and Regulations came into effect on 25 November 2019, replacing the SRA Code of Conduct 2011, the SRA Principles 2011. At that time, the 10 principles were reduced to 7 fundamental tenets of ethical behaviour in the SRA Standards and Regulations. “ SRA Principles These are mandatory Principles which apply to all. You must:

1. uphold the rule of law and the proper administration of justice;

2. act with integrity;

3. not allow your independence to be compromised;

4. act in the best interests of each client;

5. provide a proper standard of service to your clients;

6. behave in a way that maintains the trust the public places in you and in the provision of legal services;

7. comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;

8. run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;

9. run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and

10. protect client money and assets.”

35. As set out above, this is an appeal brought pursuant to s.49 of the 1974 Act . Sections 46 to 49A of the 1974 Act make provision about the Solicitors Disciplinary Tribunal. The Tribunal adjudicates on alleged breaches of the rules and regulations applicable to solicitors and their firms, including the SRA Code of Conduct 2011, the SRA Principles 2011 and, now, the SRA Standards and Regulations. The jurisdiction of the Tribunal to strike a solicitor from the Roll and make a costs order at the conclusion of a Tribunal hearing, derives from s.47 of the 1974 Act , which provides that: “ Jurisdiction and powers of Tribunal (1) Any application— (a) to strike the name of a solicitor off the roll; (b) to require a solicitor to answer allegations contained in an affidavit; (c) to require a former solicitor whose name has been removed from or struck off the roll to answer allegations contained in an affidavit relating to a time when he was a solicitor; (d) by a solicitor who has been suspended from practice for an unspecified period, by order of the Tribunal, for the termination of that suspension; (e) by a former solicitor whose name has been struck off the roll to have his name restored to the roll; (f) by a former solicitor in respect of whom a direction has been given under subsection (2)(g) to have his name restored to the roll, shall be made to the Tribunal; but nothing in this subsection shall affect any jurisdiction over solicitors exercisable by the Master of the Rolls, or by any judge of the High Court, by virtue of section 50. (2) Subject to subsections (2E) and (3) and to section 54, on the hearing of any application or complaint made to the Tribunal under this Act , other than an application under section 43, the Tribunal shall have power to make such order as it may think fit, and any such order may in particular include provision for any of the following matters— (a) the striking off the roll of the name of the solicitor to whom the application or complaint relates; (b) the suspension of that solicitor from practice indefinitely or for a specified period; (c) the payment by that solicitor or former solicitor of a penalty . . . , which shall be forfeit to Her Majesty; (d) in the circumstances referred to in subsection (2A), the exclusion of that solicitor from criminal legal aid work (either permanently or for a specified period); (e) the termination of that solicitor’s unspecified period of suspension from practice; (f) the restoration to the roll of the name of a former solicitor whose name has been struck off the roll and to whom the application relates; (g) in the case of a former solicitor whose name has been removed from the roll, a direction prohibiting the restoration of his name to the roll except by order of the Tribunal; (h) in the case of an application under sub section (1 )(f), the restoration of the applicant’s name to the roll; (i) the payment by any party of costs or a contribution towards costs of such amount as the Tribunal may consider reasonable. .../”

36. Pursuant to s.49(4) of the 1974 Act , the High Court has the power to make such an order on an appeal under that section as it may think fit. An appeal pursuant to s.49(4) of the 1974 Act proceeds by way of a review, unless the court considers that it would be in the interests of justice to hold a rehearing (CPR 52.21(1); Salsbury v Law Society [2008] EWCA Civ 1285 , [2009] 1 WLR 1286 at [3]). Part 52 of the CPR governs this species of statutory appeal and CPR r.52.21(3)(a) provides that the court will allow the appeal where the decision of the lower court was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings.

37. In SRA v Day [2018] EWHC 2726 (Admin) , the Divisional Court reiterated that in an appeal of this nature the general caution on the part of the appellate court applies with particular force with respect to the decision of a specialist Tribunal particularly equipped to appraise what is to be required by way of conduct from the professional who is subject of regulation, in this case a solicitor. It is a fundamental principle that the appeal court will defer to the expertise of a regulatory tribunal and recognise its relative disadvantage.

38. In Bawa-Garva v GMC [2018] EWCA Civ 1879 , [2019] 1 WLR 1929 at [61], the Court of Appeal described the decision of a regulatory tribunal as an evaluative decision based on many factors, sometimes referred to as a “multi-factorial decision”. McGowan J in Abbas v Solicitors Regulation Authority [2024] EWHC 2775 (Admin) at [72] stated the following: “This court should only interfere if the decision about what is necessary to protect the public and maintain proper standards in the profession is "wrong". It is not for this court to substitute its own judgment for that of the tribunal. It should interfere only if there is an error of principle in the tribunal's evaluation or because the tribunal has acted outside the bounds of what it could properly and reasonably decide. A tribunal reaches a view based on an assessment of a number of factors. In particular the conjunction of the accepted facts and the oral evidence of any witness. Such a "multifactorial" view cannot usually be dislodged unless it is demonstrated to be wrong or procedurally flawed. As established In re: a solicitor [1956] 1 WLR 131 per Lord Goddard CJ, "It would require a very strong case to interfere with sentence because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct."”

39. With respect to the findings of fact made by a Tribunal, as noted above the Tribunal made clear in its decision that the absence of any reference in its decision to particular evidence should not be taken as an indication that the Tribunal did not read, hear or consider that evidence. The authorities further make clear that it is not reasonable to expect a tribunal to elaborate on its reasoning in the way courts and professional judges may frequently be expected to do. As indicated in Beresford v Solicitors Regulation Authority [2009] EWHC 3155 (Admin) at [43], it can also be taken that the findings of fact in relation to each allegation necessarily relate back to the evidence and submissions which the Tribunal has set out.

40. It is well-established that the court will be unlikely to overturn the decision of the Tribunal on the grounds that seek to criticise the findings of fact made by the Tribunal. In SRA v Day , the Divisional Court reiterated that the appellate courts should be slow to intervene in findings of fact by the Tribunal. Noting that the authorities for this proposition “are legion”, the Divisional Court demonstrated the proposition with, inter alia , a quote from the decision of Lord Reed in Henderson v Foxworth Investments Ltd [2014] UKSC 41 , [2014] 1 WLR 2600 at [67]: “It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

41. This approach applies with particular force where the Tribunal has heard from the party and the witnesses. It is the tribunal that hears the evidence and is best placed to judge the credibility and reliability of a witness. In this case, as I have noted, Mr Cottam gave evidence before the tribunal and was cross-examined. Within this context, in Assicurazione Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642 , [2003] 1 WLR 577 at [32], Clarke LJ court stressed that the appellate court should take “particular care” before it departs from a trial judge's findings of fact, especially where the conclusions depend to a significant extent upon the fact finder’s view of the witnesses.

42. Within the foregoing context, in Martin v Solicitors Regulation Authority [2020] EWHC 3525 (Admin) , the Divisional Court (Simler LJ and Picken J.) summarised the position as follows: “[32]. For these reasons the well-established approach is that an appellate court should not interfere with a finding of fact unless satisfied that the conclusion is "plainly wrong": see McGraddie v McGraddie (above) and Henderson v Foxworth Investments Ltd (above). That means it must either be possible to identify "a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence" ( Henderson v Foxworth Investments Ltd at [67] (Lord Reed)); or if there is no such identifiable error and the question is one of judgment about the weight to be given to the relevant evidence, the appellate court must be satisfied that the judge's conclusion "cannot reasonably be explained or justified" ([67]). Lord Reed made clear that, in determining whether a decision cannot reasonably be explained or justified, "It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge would have reached." Again, we emphasise, that is a high threshold: see to this effect, Perry v Raleys (above) at [63] (Lord Briggs). [33]. The effect of these authorities in the context of an appeal against a decision of the Solicitors Disciplinary Tribunal ("the SDT") was summarised in SRA v Day [2018] EWHC 2726 , where, in addition to what we have said above, a number of additional considerations specific to appeals from decisions of the SDT were identified. First, the SDT is a specialist tribunal particularly equipped to appraise what is required of a solicitor in terms of professional judgment, and an appellate court will be cautious in interfering with such an appraisal. Secondly, decisions of specialist tribunals are not expected to be the product of elaborate legal drafting. Their judgments should be read as a whole; and, in assessing the reasons given, unless there is a compelling reason to the contrary, it is appropriate to take it that the tribunal has fully taken into account all the evidence and submissions. That does not mean that a decision which has failed in its basic task to cover the correct ground and answer the right questions will be upheld. A patently deficient decision cannot be converted by argument into an acceptable one.”

43. Turning to the question of sanction, as made clear by McGowan J in Abbas v Solicitors Regulation Authority at [72], the expertise of a specialist Tribunal must also be accorded respect in relation to the question of sanction. In Law Society v Salsbury , Jackson LJ held that: “…the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.”

44. In the circumstances, this court will interfere with a sanction only if the Tribunal committed an error of law or its evaluation was wrong in the sense that it fell outside the bounds of what the Tribunal could properly and reasonably decide (see Gurpinar v SRA [2012] EWHC 192 (Admin) and SRA v James [2018] EWHC 3058 (Admin) , [2018] 4 WLR 163 ).

45. With respect to the question of dishonesty, the legal test for dishonesty was set out by Lord Hughes JSC in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 , [2018] AC 391 at [74]: “When dishonesty is in question the fact-finding Tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledgeable belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the factfinder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

46. A dishonest state of mind may consist of a person’s knowledge that a given transaction is one in which he cannot honestly participate or it may consist in suspicion combined with a conscious decision not to make inquiries which might result in knowledge (see Barlow Clowes International Ltd (in liquidation) and others v Eurotrust International Ltd [2006] 1 WLR 1476 , at [10] to [12]). In Metcalfe v Solicitors Regulation Authority [2021] EWHC 2271 (Admin) , Murray J held at [103] that the Solicitors Disciplinary Tribunal was entitled to find dishonesty on the basis that the solicitor had deliberately "turned a blind eye" and avoided making relevant inquiries, lest he learn something he would rather not know.

47. As to the impact of a finding of dishonesty, Coulson J (as he then was) observed in SRA v Sharma [2010] EWHC 2022 (Admin) at [12] that: “…looking at the authorities in the round…the following impartial points of principle can be identified: (a) save in exceptional circumstances, a finding of dishonesty will lead to a solicitor being struck off the roll, see Bolton and Salisbury . That is the normal and necessary penalty in cases of dishonesty, see Bultitude . (b) There will be a small residual category where striking off will [be] a disproportionate sentence in all the circumstances, see Salisbury . (c) in deciding whether or not a particular case falls into that category, relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, such as Burrowes , or [over] a lengthy period of time, such as Bultitude ; whether it was a benefit to the solicitor ( Burrowes ), and whether it had an adverse effect on others.” DISCUSSION

48. Having considered carefully the submissions made by Mr Cottam I am satisfied that his appeal against the decision of the Tribunal must be dismissed. My reasons for so deciding are as follows.

49. As set out above, this court will be slow to intervene in findings of fact made by the Tribunal. The Tribunal in this case heard the evidence of Mr Cottam and was best placed to judge his credibility and reliability when he gave evidence and was cross-examined. In setting out its analysis of the evidence and its decision, the authorities make clear that it is not reasonable to expect a tribunal to elaborate on its reasoning in the way courts and professional judges may frequently be expected to do. However, in this case, the Tribunal delivered a comprehensive and closely reasoned decision. Within this context, and notwithstanding Mr Cottam’s written and oral submissions and his detailed critique of the decision of the Tribunal, it is not possible in this case to identify "a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence” ( Martin v Solicitors Regulation Authority at [32]). I am further satisfied that, this is not a case in which the findings made by the Tribunal "cannot reasonably be explained or justified" ( Henderson v Foxworth Investments Ltd at [67]).

50. With respect to the wider context in which Mr Cottam advanced his grounds of appeal, Mr Cottam did not dispute the transfers in question were improper. There was no dispute that Mr Cottam was the sole director, as well as the COLP and COFA of the Firm. Mr Cottam did not dispute the analysis of the Tribunal that he had therefore allowed the improper transfers in the sense that he was responsible for them by reason of his role within the Firm.

51. Mr Cottam contended before the Tribunal that he was not able to function at the relevant time, such that he could not have caused the transfers to take place. However, this was rejected by the Tribunal. The Tribunal cited and carefully analysed the medical evidence before the Tribunal, noting that there was no contemporaneous medical evidence of mental health prior to December 2019, that the medical evidence therefore postdated period in question, that the descriptions of his mental health in 2016-2018 comprised self-reporting by Mr Cottam and that Mr Cottam worked throughout the relevant period. In these circumstances, it was plainly reasonable for the Tribunal to conclude that there was no evidence that Mr Cottam was unable to function during period of the improper transfers and to conclude therefore that a lack of ability to function was not the reason those transfers took place.

52. Finally with respect to the wider context in which the appeal is advanced, the Tribunal had the benefit of an interview of Mr Cottam, carried out by the FIO, in which Mr Cottam made the following admission in the context of the disruption caused by the first and its impact on cashflow: “I deducted client funds inappropriately on client name. I know of no other matters as far as I’m aware of substance. I accept that it was inappropriate. I accepted I was in breach, it was in basic breach of the client account rules”.

53. In addition, the following exchanges took place between Mr Cottam and the FIO during his interview and which the Tribunal were entitled to, and did, take into account: “A: The invoices were clearly inappropriate to have rendered in the first place, they serve no use whatsoever, they were clearly inappropriate, they shouldn’t have been raised. Q: Do you accept that you are not entitled to deal with all the amounts that you did? A: Yeah. Q: And transfer from client to office bank account? A: I did. Q: Do you consider your conduct regarding the transfers was dishonest? A: I don’t accept it was dishonest, I accept it was inappropriate, I accepted it fell far below the standard one would expect of a solicitor.” And: “Q: Why did you create the bills and transfer the money from client to office bank account? A: Because, effectively, it was simply a way of raising money to, to pay the bills, to keep the practice going. Otherwise, I would have had to put the company into liquidation.” And: “Q: You accept the transfers to be in breach, not only of the rules, but then the principles? A: Yeah, yes and yes.”

54. Turning to the individual grounds advanced by Mr Cottam, having regard to the evidence before the Tribunal, and its decision, I am not able to accept that the Tribunal failed to correctly summarise Mr Cottam’s witness evidence at paragraph 33.11 of the judgment when stating Mr Cottam had “accepted that he had signed the lists of transfers, including improper transfers, written out by TN”.

55. The court has before it a transcript of Mr Cottam’s evidence. It is clear from that transcript (as he must have known when pleading his grounds of appeal) that Mr Cottam gave detailed evidence on this point. In addition to conceding earlier in cross examination that he had signed the reconciliations at the end of the year as a record keeping exercise, he admitted in cross examination that as the fee earner and the person dealing with the file he had to authorise payments and would do so by way of colour coded slips for transfers, that he had located two transfers that he had signed for, and stated that there were “very probably others, quite a few others” he would have been asked to sign for and went on to state as follows with respect to his signing of the transfers, including the transfers in issue: “...it had always been the case that transfers, from client to office, were supposed to be signed off by, by me, and that has always been the case. My old cashier used to regularly come in and get me to sign transfers, when she made transfers from client to office, she would get me to sign. These, these aren’t reconciliations, these are transfers, and I would, I would sign them.” And: “...what I do recall, is those that I did sign, which I’ve, I’ve shown you, which I could identify in the paperwork provided from the investigation report, those that I did sign, I have no reason to believe that, I had no reason to believe at the time, were anything other than genuine monies that were due from the client to the office.”

56. I likewise reject Mr Cottam’s contention that the Tribunal failed to correctly summarise Mr Cottam’s witness evidence at paragraph 35.15 of the judgment when stating Mr Cottam “was, on his own evidence, more involved in the finances after 2015” and in finding that “It was implausible that he had not properly looked at the ledgers or reconciliations for such an extended period of time.”

57. As I have noted, Mr Cottam did not dispute the transfers in question were improper. There was no dispute that Mr Cottam was the sole director, as well as the COLP and COFA of the Firm. He was, in this context, at pains to emphasise at several points during his evidence that he considered that he had ultimate responsibility for matters that took place in the Firm. Within this context, and as set out in the foregoing paragraphs, Mr Cottam conceded in cross-examination that he had signed the reconciliations at the end of the year as a record keeping exercise and he had, as the fee earner and the person dealing with the file, to authorise payments and would do so by way of colour coded slips for transfers. It is equally plain from the transcript of Mr Cottam’s evidence that, following the fire in 2015, he had had to engage in extensive negotiations with his bank as a result of the cash flow difficulties created by the fire. Within this context, it was plainly reasonable for the Tribunal to conclude that the fire, and its devastating effect, required him to become more involved with the finances and that, in this context, it was implausible that he had not properly looked at the ledgers or reconciliations for the extended period he claimed.

58. With respect to the ground of appeal alleging that the Tribunal failed to mention, in reference to the absence of reporting to the SRA and retention of TN, that Mr Cottam had put the freehold property from which Cottam Solicitors Limited operated on the market for sale from May 2018, when he discovered the shortfalls, this assertion is again surprising having regard to the transcript and decision and once again is a ground that falls to be rejected.

59. As I have noted, the Tribunal made clear at the outset of its judgment that it had read all of the documents in the case and made notes of the oral evidence of all witnesses and that the absence of any reference to particular evidence should not be taken as an indication that the Tribunal did not read, hear or consider that evidence. As confirmed in Beresford v Solicitors Regulation Authority [2009] EWHC 3155 (Admin) at [43], this court can approach the appeal on the basis that the findings of fact in relation to each allegation necessarily relate back to the evidence and submissions which the Tribunal has set out. Within this context, the Tribunal recounted at paragraph 33.6 of its decision that: “Mr Cottam told the Tribunal that he had believed at the time he could rectify the problem by selling the premises, which he put on the market in May 2018. Events had, however, overtake him and the intervention in October 2018 led to his bankruptcy.”

60. The foregoing observation was made in the context of Mr Cottam having stated in terms, during cross examination, that he had placed the property on the market to deal with the shortfall. It is further clear that, during his closing submissions, Mr Cottam’s counsel “reminded the Tribunal that Mr Cottam had tried to sell the premises to make good the shortfall on the client account”.

61. With respect to the grounds of appeal addressing the manner in which the Tribunal dealt with the contents of Mr Cottam’s interview by the FIO, these grounds likewise cannot succeed and fall to be dealt with together. I am not able to agree that the Tribunal erred in finding that had Mr Cottam been talking of the firm as a whole in his interview with the SRA investigator, rather than him personally, he would have mentioned TN as on his case she had a central role in what had taken place. Nor am I able to agree that the Tribunal erred in finding that Mr Cottam had sought to rely on some parts of his interview with the SRA investigator but not others without identifying which parts these were or that the Tribunal erred in finding that Mr Cottam had given a truthful and accurate account in that interview inconsistent with the finding in relation to Allegation 1.2.

62. Whilst Mr Cottam tried to resile from the account he gave the FIO in interview on the grounds he had not been fit to be interviewed at that time, there was plainly no merit in that argument. Mr Cassini was not cross-examined on Mr Cottam’s assertion that it should have been obvious that he was not fit to be interviewed. Mr Cottam conceded before the Tribunal that he had told Mr Cassini that he was fit and well to be interviewed and that he did not have any medical conditions. He further admitted he was capable of declining to be interviewed, but did not do so. In cross-examination, Mr Cottam accepted that he sounded very calm in the interview, that he had answered some questions in detail and accurately. He further conceded that none of the medical evidence stated he was not fit to be interviewed and that it did not cover the period of the interview. Having regard to these matters, the Tribunal was entitled to reject Mr Cottam’s contention that he had been emotional and had not been thinking about his answers whilst he was being interviewed.

63. In this context, the acceptance by Mr Cottam that he made the transfers in question came not in response to a question or at the end of a long interview, but in an introductory statement given by Mr Cottam at the outset of the interview. At no point in the interview did Mr Cottam seek to qualify or clarify that statement. In particular, at no point did he attempt to ascribe the admission to the Firm or a member of staff at the firm rather than to himself personally, nor did he do so when telling the FIO that he was the only person who could authorise the transfers. It is clear from the transcript that Mr Cottam made no mention of the alleged role of TN in his interview and he conceded in cross-examination that he had not mentioned TN’s alleged role until October 2019, after he had received a letter from the SRA making it clear that he was likely to face allegations before the Tribunal. Finally, before the Tribunal, Mr Cottam sought to resile from the clear answers he gave in his interview (a position that his own counsel was forced to concede was “unattractive” during closing submissions).

64. In the foregoing circumstances, I am satisfied that it was perfectly reasonable for the Tribunal to conclude on the evidence before it that had Mr Cottam been talking of the firm as a whole in his interview with the SRA investigator rather than himself, he would have mentioned TN, that Mr Cottam had sought to rely on some parts of his interview with the SRA investigator but not others and that Mr Cottam had given a truthful and accurate account in that interview. There is no inconsistency between the latter finding and the Tribunal’s decision on Allegation 1.2.

65. I am likewise satisfied that it cannot be said that the Tribunal erred in finding that there was no plausible reason for TN to have decided to move significant sums of money out of the client account whilst keeping Mr Cottam in the dark about it. Mr Cottam’s case before the Tribunal in this regard was simply unsustainable having regard to the evidence before the Tribunal.

66. The Tribunal was plainly entitled to reject the contention that, as a paid member of staff, TN was not the ultimate beneficiary of the firms income to the extent that she would be motivated to act dishonestly in order to protect her livelihood. Mr Cottam conceded before the Tribunal that, on discovering the transfers in May 2018, he had not suspended or dismissed TN, who was still working at the Firm in 2018, even though he claimed she was responsible. Mr Cottam further conceded in cross examination that all false invoices contained his initials, that not all of them bore TN’s initials and none of them bear the initials of any other fee earner and he conceded that he had signed the list of transfers, including the improper transfers, written out by TN. Whilst Mr Cottam had sought to suggest that TN had confessed her conduct to him, he was forced to concede that there was no evidence that she had done so, whether by way of emails or notes of a meeting, and he conceded that as a result of his failure to mention TN in interview the SRA investigation did not take that line of enquiry. As I have noted, Mr Cottam further conceded in cross examination that the first time he accused TN was in letter to SRA in October 2019 advising that it was likely that allegations would be pursued before the Tribunal.

67. In the foregoing circumstances, it was plainly reasonable for the Tribunal to conclude on the evidence before it that there was no plausible reason for TN to have decided to move significant sums out of the client account whilst keeping Mr Cottam in the dark about her conduct. It was likewise reasonable for the Tribunal to conclude that the absence of a report to the SRA regarding TN’s alleged conduct, and the retention of TN after the fact, was more consistent with Mr Cottam having known about the transfers and having authorised them than it was with him being unaware of them until May 2018.

68. Having regard to the matters set out above, I am likewise satisfied that the remaining grounds of appeal relied on by Mr Cottam cannot succeed.

69. With respect to Mr Cottam’s contention that the Tribunal erred in finding that Mr Cottam was aware that the transfers were taking place and that they were improper and “ignored completely Mr Cottam’s very detailed evidence in his Answer and statements to the contrary”, that evidence fell to be evaluated in the context of the totality of the evidence before the Tribunal, which included the clear concessions made by Mr Cottam in interview and in cross-examination as detailed in this judgment. Having regard to those admissions, and the wider evidence before the Tribunal, it cannot seriously be argued that it was unreasonable for the Tribunal to conclude that Mr Cottam was aware of the improper transfers and, by allowing them to continue, caused the transfers to occur. With respect to Mr Cottam’s assertion that the Tribunal erred in finding that the transfers could not happen without Mr Cottam’s knowledge, despite evidence that the internet banking system was vulnerable to a trusted employee abusing it, there was no cogent evidence placed before the Tribunal to demonstrate this alleged vulnerability, whether by way of expert evidence or evidence of specific incidents where the banking system had been exploited. With respect to Mr Cottam’s assertion that the Tribunal erred in finding that Mr Cottam had not made an admission to creating the invoices in his interview with the SRA investigator, it is clear from the passage cited above that whilst Mr Cottam did not appear to dispute the authorship of the invoices, he made no admission in this regard. Finally, I am not satisfied that it can be said that the Tribunal failed to evaluate Mr Cottam’s re-examination on parts of his interview with the SRA investigator when he stated, “I was made aware by my cashier of the shortfall”. Mr Cottam did not himself explain the significance of this fact. Rather, its significance was suggested to him by a question from his own counsel, namely why would he have need to have been made aware of the shortfall if he was responsible. It was reasonable in circumstances for the Tribunal not to attach any weight to that answer, led as it was from Mr Cottam by his counsel for the first time in re-examination.

70. In the event that the court dismisses, as it must do, Mr Cottam’s appeal on the facts, he pursues no appeal against the sanction imposed on him. As I have noted, Mr Cottam accepted that a finding of dishonesty would result in his removal from the Roll. In circumstances where Mr Cottam’s appeal fails for the reasons I have given, the finding of dishonesty stands. CONCLUSION

71. In conclusion, I am satisfied that there is no basis for concluding in this case that the decision of the Tribunal was wrong, or unjust because of a serious procedural or other irregularity in the proceedings. Accordingly, the appeal is dismissed. I will invite counsel to draw an order accordingly.