SDT: Simon Edmund John Kaberry
- Application 10721-2011
- Admitted 1974
- Hearing 11 January 2012
- Reasons 22 February 2012
The SDT ordered that the application of the applicant for restoration to the roll should be granted; that the applicant might not practise as a sole practitioner, partner or member of a limited liability partnership (LLP), legal disciplinary practice (LDP) or alternative business structure (ABS); that for the avoidance of doubt the applicant might only work as a solicitor in employment; that the applicant might not handle client money or become a signatory to any client or office account; that the applicant should before obtaining a practising certificate undertake 16 hours of continuing professional development approved by the Solicitors Regulation Authority; and that there should be liberty to either party to apply to the SDT to vary the conditions set out above.
The SDT wished to make it clear that it was not undertaking a retrial of the issues which had led to the applicant being struck off the roll. The applicant was of the view that information which had been placed before previous SDT hearings had been misleading. Those assertions had played no part in the SDT’s decision on the present application.
It had considered the application as set out in its own guidance. The first factor to consider was whether the application was premature having regard to the time that has elapsed since the original striking-off order was made in 1995. The applicant had applied for restoration in 2001 and failed. It was open to him to make the present further application. The timescales involved were therefore no bar to the application.
The applicant could not appeal against the order of the original tribunal and if he was to be restored to the roll he must establish exceptional circumstances. The SDT had heard the evidence of Professor Lader, whom it had found to be candid and impartial. The gist of his evidence was that the applicant’s actions throughout the material period were heavily influenced by the toxic effects of a drug which he had been inappropriately prescribed by his GP.
The effect of the drug was cumulative and persistent, with the result that the applicant did not have lucid moments, and that to the extent that he might on occasion have realised that what he was doing was wrong, the drug would have precluded him from knowing or caring that his actions were improper and from being able to do anything about them.
The original strike-off order had been made at a hearing when the applicant was not present, and it was made without the benefit of the medical evidence. The SDT found that those factors, combined with the evidence of Professor Lader given at the present hearing, did amount to exceptional circumstances which entitled it to consider whether the applicant should be restored to the roll.
Furthermore, and/or additionally, while the SDT did not question the original tribunal decision it considered that the combination of three factors also amounted to an exceptional circumstance: the legal test for dishonesty having changed; the tribunal originally not having had the benefit of Professor Lader’s evidence; and the acquittal of the applicant of all 14 criminal charges arising from the same factual matrix.
The applicant had explained the work he had been doing over the past six years, all of which had been pro bono and which had, on average, taken up three days each week. The SDT was aware that the applicant had not been employed with any law firm. It was concerned to learn that when a law firm had applied for permission to employ the applicant that application had been refused.
The respondent’s representative had been unable to explain why it had been refused, which had concerned the SDT, because in the two other cases which it had considered during the hearing (Black and Thobani), the solicitor had been given permission to work in a law firm.
The SDT was satisfied that the work that the applicant had done was as much as he could do to satisfy the rehabilitation test and that it was sufficient. The SDT had given careful thought to how the public would perceive the applicant being restored to the roll. It was satisfied that he had made no personal gain as a result of his actions.
The public’s perception of those who fell under the influence of prescription drugs had moved on over the years, and the SDT was satisfied that the appropriately informed member of the public would not view the applicant’s restoration to the roll as being amiss.
The SDT appreciated that the applicant had made no reimbursement to the Compensation Fund, but in the particular circumstances it was not felt appropriate or practical to expect him to do so. In those circumstances, the SDT had concluded that the applicant should be restored to the roll but subject to conditions, including that he should first undergo 16 hours of CPD training to be approved by the respondent, and that he should work only in an employed capacity.