A long-serving solicitor described as one of the UK’s top clinical negligence practitioners has been struck off for taking costs from clients’ damages.
Marcus Paul Nickson, a solicitor for almost 40 years, took around £500,000 to improve cashflow at his now-closed Cumbria practice KJ Commons & Co Ltd.
The SRA allegations fell into three types: misconduct in relation to legal aid retainers, misconduct when moving clients from legal aid to private retainers, and other failures of costs advice and misconduct.
Over a three-day hearing in July, the Solicitors Regulation Authority outlined that costs were taken by Nickson’s firm from damages awarded to clients with serious brain injuries in legal aid funded cases, when the firm had no entitlement to those costs.
Those withdrawals resulted in ‘significant shortfalls’ in client funds.
The SRA submitted it was ‘abundantly clear’ that certain clients, from whose damages deductions were made, had not been properly advised as to their rights. The regulator accused Nickson of ‘culpable ignorance’ of the rules.
‘Even if the tribunal concluded that [Nickson] was not dishonest in making the deduction it was plainly dishonest not to advise the client regarding the deduction or how it played into the regime,’ submitted the SRA.
The tribunal found a number of charges proven against Nickson, including that his firm was in breach of a High Court order to submit its costs to legal aid assessment, but instead retained those costs, resulting in a £247,000 shortfall in one client’s funds.
In another case, Nickson breached a High Court order requiring almost £500,000 to be paid into court by 10 March 2009. In the event, £419,000 was paid into court in May 2009, but the balance was never paid.
Nickson admitted to failing to take action following advice from his in-house costs draftsman and three barristers that his firm had improperly taken costs from a client’s damages.
The tribunal also found Nickson failed to provide adequate advice to clients about the benefits and/or detriments of switching from legal aid to private funding for their cases.
Lawyers for Nickson submitted that Nickson’s direct involvement was of a ‘limited kind’ and asked the tribunal to be ‘very careful about the gap between the practitioner being expected to know something and what he in fact did’.
He admitted his lack of understanding of how the legal aid system worked was ‘highly culpable’ because he had not taken the case that he should have to understand the damages deductions system.
The tribunal found dishonesty not proved but made several findings of culpability were, noting there had been a ‘serious lack of integrity, recklessness involving vulnerable clients and lack of trustworthiness in handling damages running to hundreds of thousands of pounds’.
It added: ‘There was no concealment but [Nickson] should have known that his conduct was in material breach of his obligations to protect the public and the reputation of the legal profession.’
In mitigation, Nickson submitted he had suffered ‘trauma upon trauma’, including a depressive illness and the break-up of his marriage.
His financial situation was described as ‘bleak’ and he had personal debts of around £52,000.
The SRA submitted a costs application for almost £100,000, which included the cost of producing four forensic investigation reports. The tribunal agreed to these costs, but with regard to his financial circumstances, said they should only be enforced with the leave of the tribunal.