Gao v Solicitors Regulation Authority [2019] EWHC 2130 (Admin)

Gao v Solicitors Regulation Authority [2019] EWHC 2130 (Admin) was an appeal by Mr John Martin Gao to the Queen’s Bench Division (Administrative Court) before Mrs Justice Lang DBE against the Solicitors Disciplinary Tribunal’s decision of 6 February 2019, which struck him from the Roll after finding him guilty of dishonesty. Mr Gao did not appeal the sanction itself.

The Solicitors Regulation Authority brought three allegations against Mr Gao. First, that in September 2014 he misappropriated approximately £19,500 belonging to a deceased client, Client A. Second, that between 20 January 2015 and 4 March 2015 he failed to return the money promptly upon request. Third, that between 5 March 2015 and 10 March 2016 he issued and maintained civil proceedings against Client A which were without merit and brought in order to extract a further £1,500 plus interest. The SRA alleged that each of these constituted breaches of the SRA Principles 2011 and that Mr Gao had acted dishonestly. The Tribunal found all allegations proved, including dishonesty, applying the test in Ivey v Genting Casinos (UK) Ltd [2018] AC 391.

The factual background concerned work Mr Gao had carried out for Client A over several years. He had received £19,500 from Client A by completing blank cheques she had signed. Mr Gao contended that this was payment for non-legal work he had performed as her personal assistant between 2009 and 2014, producing retrospective invoices in support. Client A, before her death, had maintained that the payments were made in error and that Mr Gao had provided services as her friend, not under any commercial arrangement. After she challenged the payments, Mr Gao launched civil proceedings to recover a further £1,500 he claimed was owed. The County Court proceedings were settled on terms providing for full repayment of Client A’s counterclaim and substantial costs of £20,500.

The Tribunal heard oral evidence from Mr Gao. However, Client A’s evidence and the evidence of two witnesses, Witness C (her niece) and Witness D (a friend), were admitted in written form only pursuant to Civil Evidence Act notices served under Rule 13 of the Solicitors Disciplinary Proceedings Rules 2007. Mr Gao, through counsel Mr Trussler, had not objected to those notices at the case management stage in February 2018, and so the statements were admitted. The Tribunal found Client A’s written account plausible and corroborated to some extent by the written evidence of the two witnesses. By contrast, the Tribunal described Mr Gao’s account as “implausible”, “not remotely credible” and “inconsistent and unpersuasive”, concluding he was a witness who lacked credibility and was unreliable. It rejected his evidence that he had provided the invoices to Client A, noting fundamental errors which strongly indicated they had been created after the fact to bolster his claim. The Tribunal found that his explanation for the discovery of a key document the day before the civil trial was “deeply implausible” and his account of the money being a gift from Client A was “confusing and unpersuasive”.

On appeal, Mr Gao advanced four grounds. Ground 1 contended that the Tribunal erred by failing expressly to direct itself as to the need for special caution when relying on written witness statements which had not been tested in cross-examination. Mrs Justice Lang rejected this submission. She held that there was no requirement for such a direction to be expressly given. The Tribunal was an expert body which included two solicitor members, not a jury in need of directions or a lay panel dependent upon a legal assessor. It was well aware of the limitations of untested written evidence and had been put on notice by Mr Trussler that the reliability of the witnesses was in issue. The decisive factor in the Tribunal’s evaluation was its assessment of the documentary evidence and Mr Gao’s own oral evidence. Given its scathing findings as to the implausibility of his account and his lack of credibility, no injustice had been caused by the absence of an express cautionary direction.

Grounds 2, 3 and 4 addressed allegations 1.1, 1.2 and 1.3 respectively. The overarching complaint was that the Tribunal failed to consider, or give due weight to, Mr Gao’s case. Central to his submissions below had been the contention that it was highly implausible that he, just before admission as a solicitor, would defraud someone he knew in circumstances where discovery was inevitable. Mr Gao further relied on the fact that he had reported Client A’s new solicitors to the SRA, conduct said to be wholly inconsistent with that of a guilty person because it inevitably drew the SRA’s attention to the circumstances giving rise to the proceedings. Mrs Justice Lang held that the Tribunal had fairly and fully set out those submissions in its judgment and given them due consideration. Under the heading “The Respondent’s Case” the Tribunal had expressly recorded Mr Trussler’s argument that it was “highly implausible” that Mr Gao would swindle a lady he had known for years “just as the Respondent was about to become a solicitor” and in a way where discovery was “nothing short of inevitable”, and that launching proceedings and reporting the solicitor were not the actions of a guilty man. The Tribunal had referenced these submissions again in its analysis of each allegation. Thereafter, under the heading “The Tribunal’s Decision”, the Tribunal had carefully considered Mr Gao’s evidence and submissions and made detailed findings rejecting his account. It was entitled on the evidence to find that his explanations were implausible and that he was not a credible witness. The points made in his favour were not determinative and were outweighed by the specific findings on the evidence and the Tribunal’s adverse findings on credibility. In a careful and detailed judgment, the Tribunal had reached conclusions properly open to it. The appeal under grounds 2 to 4 was no more than an expression of disagreement with the Tribunal’s findings and conclusions.

Mrs Justice Lang emphasised that the court should accord respect to the findings of a specialist tribunal, citing Wingate and Evans v Solicitors Regulation Authority [2018] 1 WLR 3969. Such a body is well placed to identify want of integrity by reason of its specialist knowledge of the profession and the ethical standards of that profession. She referred also to Bolton v Law Society [1994] 1 WLR 512, in which Sir Thomas Bingham MR stated that any solicitor shown to have fallen short of complete integrity, probity and trustworthiness must expect severe sanctions, with proven dishonesty justifying striking off in almost every case. The Tribunal’s task was to evaluate the evidence and the weight to be accorded to it, applying the standard of proof beyond reasonable doubt. It had correctly directed itself, properly applied the test for dishonesty from Ivey, and made findings which disclosed no error of approach.

In short, the appeal was dismissed because the Tribunal had given proper consideration to all of Mr Gao’s submissions, made findings of fact which were open to it on the evidence, and reached a conclusion of dishonesty which was amply supported by its adverse assessment of his credibility and reliability.

The Law Society v Salsbury [2008] EWCA Civ 1285, [2009] 1 WLR 1286
Adesemowo v Solicitors Regulation Authority [2013] EWHC 2020
Dupont de Nemours v S.T. Dupont [2003] EWCA Civ 1368, [2006] 1 WLR 2793
Wingate & Evans v Solicitors Regulation Agency [2018] EWCA Civ 366, [2018] 1 WLR 3969
Bolton v The Law Society [1994] 1 WLR 512
Grant [2006] UKPC 2