SOLICITORS DISCIPLINARY TRIBUNAL. IN THE MATTER OF THE SOLICITORS ACT 1974 Case No and. Before:

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1 SOLICITORS DISCIPLINARY TRIBUNAL IN THE MATTER OF THE SOLICITORS ACT 1974 Case No BETWEEN: SOLICITORS REGULATION AUTHORITY Applicant and FRANCIS WILLIAM BRAZELL, MICHAELA CAROLYN HOGGARTH, PHILIP HUGO ELDIN-TAYLOR First Respondent Second Respondent Third Respondent Before: Mr L. N. Gilford (in the chair) Mrs A. Kellett Mr S. Hill Date of Hearing: 11 October 2016 Appearances Andrew Bullock, barrister of The Solicitors Regulation Authority, The Cube, 199 Wharfside Street, Birmingham, B1 1RN for the Applicant. The Respondents all appeared and were represented by Susanna Heley of RadcliffesLeBrasseur, 85 Fleet Street, London, EC4Y 1AE. JUDGMENT

2 2 Allegations 1. The Allegations against the Respondents were: 1.1 Between August 2014 and March 2015, the Respondents made withdrawals from client account and transfers from client to office account in excess of funds held on nineteen client matters resulting in debit balances in client account amounting to 13, The Respondents thereby breached any or all of the following: Rule of the SRA Accounts Rules 2011 (The 2011 Accounts Rules); Principles 4 and 10 of the SRA Principles 2011 (The 2011 Principles). 1.2 The Respondents failed to carry out the client account reconciliation for February 2015 in breach of Rule and of The 2011 Accounts Rules. 1.3 The Respondents failed to notify the SRA promptly that they were in serious financial difficulty in being unable to pay various taxes due to Revenue and Customs (HMRC) for totalling 380, culminating in a winding up petition being presented by HMRC on 25 September 2014 and in so doing: breached Principle 7 of The 2011 Principles; and failed to achieve Outcome of the SRA Code of Conduct. The further allegations against the First Respondent and the Third Respondent were that: 1.4 During the course of an investigation by the Legal Ombudsman ( the Ombudsman ) into a complaint made by Mr BK, which commenced in about June 2014, the First Respondent and the Third Respondent failed to deal with the Ombudsman in an open, timely and cooperative manner in breach of Principle 7 of The 2011 Principles. 1.5 During the course of an investigation by the Ombudsman into a complaint made by the client Ms CH, which commenced in about September 2014, the First Respondent and the Third Respondent failed to deal with the Ombudsman in an open, timely and cooperative manner in breach of Principle 7 of The 2011 Principles. The further allegation against the First Respondent only was: 1.6 The First Respondent failed to provide a proper standard of service to his client Mr EP, the executor of the estate of Mr MFL, in that he failed to keep Mr EP informed of the status of the estate over a period of approximately three years and nine months and long delays were encountered with the administration of the estate and in so doing breached Principle 5 of The 2011 Principles. Allegations 1.4, and 1.5 were admitted by both the First and Third Respondents, and Allegation 1.6 was admitted by the First Respondent.

3 3 Documents 2. The Tribunal reviewed all the documents submitted by the Applicant and the Respondents which included: Applicant: Application dated 14 April 2016 together with attached Rule 5 Statement and all exhibits Applicant s Statement of Costs Respondents: Respondents Response to Rule 5(2) Statement dated 25 May 2016 Statement of Francis Brazell (the First Respondent) dated 7 September 2016 Statement of Michaela Hoggarth (the Second Respondent) dated 8 September 2016 Undated Statement of Philip Hugo Eldin-Taylor (the Third Respondent) Chronology and Factual Summary dated 7 September 2016 Mitigation Bundle of Documents containing character references Statement of Means of Francis Brazell and Michaela Hoggarth dated 7 October 2016 Statement of Means of Philip Eldin-Taylor dated 5 October dated 4 October 2016 from Quantuma LLP to the First Respondent Factual Background 3. The First Respondent, born in 1969, was admitted as a solicitor on 16 September The Second Respondent, born in 1967, was admitted as a solicitor on 3 October The Third Respondent, born in 1953, was admitted as a solicitor on 15 June At all material times the Respondents practised as Directors of Frank Brazell and Partners Ltd ( the Firm ) which operated from a number of different offices and traded under three separate names. In London, the practice traded both as Frank Brazell and Partners from the head office at The Busworks, North Road, London, N7 9DP, and as Walter Jennings & Son at The Podium, 1 Eversholt Street, London, NW1 2DN. The practice also traded as MacAuley & Co at Merlin House, Church Street, Hungerford, RG17 0JG. This office operated a separate bookkeeping system.

4 4 7. The First Respondent was the Firm s Compliance Officer for Finance and Administration ( COFA ). The Second Respondent was the Firm s Compliance Officer for Legal Practice ( COLP ) and the Third Respondent was the Firm s Complaints Partner. 8. Following receipt of the Firm s qualified accountant s reports for 2012/2013 and 2013/2014, and notification of a winding up petition against the Firm on 29 October 2014 a Forensic Investigation Officer ( FI Officer ) from the Solicitors Regulation Authority ( SRA ) commenced an investigation of the Firm s books of account and other documents on 18 March The FI Officer produced a report ( the Report ) dated 17 August The Report confirmed that, as at 1 May 2015, a minimum cash shortage existed on client account in the sum of 13, Allegation The FI Officer reviewed a list of client ledger balances with a report date of 28 February 2015, which revealed twelve debit balances. A further list of client ledger balances was reviewed with a report date of 31 March 2015 which revealed seven debit balances. In total there were nineteen debit balances amounting to a shortage of 13, Withdrawals from client account and transfers from client to office account had been made in excess of funds held. There were eight instances where costs were taken in excess of client funds held leaving debit balances ranging from to 1,800. The remaining eleven debit balances related to payments made in excess of client funds held leaving debit balances ranging from 6.00 to 2, One of the twelve debit balances on the report dated 28 February 2015 was rectified in February 2015 and the rest were rectified in April The earliest debit balance occurred in August 2014 and the latest in December The seven debit balances on the report dated 31 March 2015 were rectified on 6 May The earliest debit balance occurred in February 2015 and the latest in March In correspondence with the FI Officer, the Second Respondent explained the reasons for the debit balances. These included posting errors, a mistake as to the funds available, funds being available albeit in a branch account and incorrect amounts requested on the transfer of client matters to a different firm. The Second Respondent stated: The Directors take the issue regarding apparent debit balances seriously. A significant amount of time and resources have been spent in investigating and where necessary rectifying We acknowledge that in 2014 the firm had been under resourced in terms of administrative support. Additionally the two London offices of WJS and FBP had to relocate. The firm was leading up to and then entering the CVA procedure. Earlier in the year the firm closed the Finchley office. Redundancies were also made as necessary. Including the office

5 5 manager A number of matters came to light which has led to the Directors employing an external book-keeper who are [sic] now assisting daily to deal with any historic issues and ensure going forward the issues are not repeated Allegation The Respondents were unable to provide to the FI Officer the client account reconciliation for February 2015 when requested to do so on 26 March The reconciliations for MacAuley & Co were produced as they had a separate bookkeeping system. 15. In an interview with the First Respondent and the Third Respondent on the same day, the First Respondent stated:.we are late with February so we have signed off I believe, January but not February I am hoping that we will do that within the next 7 days. 16. By the time the Report was written on 17 August 2015, the February reconciliation had been produced. Allegation The Firm was presented with a winding up petition by HMRC dated 25 September 2014 relating to a debt in the sum of 380,778. The debt was for various taxes owed to HMRC between 2012 and The SRA was not notified until 29 October 2014 of the petition, approximately one month after the service of the petition. No previous notification had been given to the SRA that the firm was experiencing financial difficulty. A copy of the petition and a Company Voluntary Arrangement (CVA) proposal was provided on 12 November The CVA was entered into on 13 January 2015 and the winding up petition was dismissed by the Court on 19 January Allegation 1.4 (against the First Respondent and the Third Respondent only) 18. On 25 June and 10 July 2014 the Ombudsman wrote to the Third Respondent following the receipt of a complaint from Mr BK concerning the administration of the estate of Mr MFL. The notification included the following warning: If you don t provide what has been asked for. We may report you to your approved regulator for misconduct. You are required under your professional rules to cooperate with the Ombudsman. 19. The Third Respondent acknowledged the first notification by on 3 July 2014 and confirmed he would look into it.

6 6 20. The Ombudsman sent a formal letter dated 18 July 2014 to the Third Respondent to give notification of the appointment of an investigator in the matter. The complaint related to failing to keep the beneficiary updated as to the progress of the administration of the estate and to respond to various s and telephone calls. The outcome expected was that the estate would be finalised as quickly as possible and a date would be provided as to when this would be done. 21. An update was given by the Third Respondent on 1 August 2014 to the effect that he had been informed by the fee earner (the First Respondent) that he intended to send distribution letters and a report by Friday week. 22. The Ombudsman asked the Third Respondent for an update on the status of the matter on 11 August It was confirmed on the same day that there was a delay in finalising matters due to the out sourced typing service. 23. This was followed up again by the Ombudsman on 18 August and 26 August 2014 requesting details as to the progress being made, as no update had been received. The Third Respondent replied on 28 August 2014 to apologise and give reasons for the delay. The same day the Ombudsman confirmed that an extra few days would be given for the firm to provide the update. 24. The Ombudsman wrote again on 2 September 2014 enquiring as to when the information would be coming and stating that if this was not forthcoming a full investigation would commence. The First Respondent replied to the Ombudsman that same day to provide details on the progress of the estate. A further update was expected by the Ombudsman at the end of that week. A reminder to this effect, and that an update was expected by close of business that day, was sent by the Ombudsman to the First Respondent on 5 September A holding was sent by the First Respondent on 9 September A full update was provided by the First Respondent on 10 September 2014 in which he stated he had: requested interim disposal cheques of 5,000 for each beneficiary to go out with short covering letters in the next 24 hours paid what he understood to be the last tax due on the estate requested from accountants confirmation that no further work was needed requested clearance or discharge from HMRC in relation to the tax position. 26. The Ombudsman replied that day requiring confirmation as to when the letters had been posted to beneficiaries. The Ombudsman confirmed in a letter dated 11 September 2014 that as it had been agreed that finalisation was to be expedited. As soon as this was done the Ombudsman confirmed the complaint would be considered as informally closed. This was acknowledged by the Third Respondent.

7 7 27. A request was made by the Ombudsman for an update on 18 September 2014, and again on 22 September Mr BK confirmed to the Ombudsman on 30 September 2014 that no letters or cheques had been received. 28. The Ombudsman sent a further to the Third and First Respondents on 1 October 2014 requesting an update. The Third Respondent telephoned the Ombudsman that same day and by dated 6 October The Ombudsman confirmed that there had been no contact from the First Respondent. 29. The Third Respondent s to the Ombudsman on 6 October 2014 stated: the Cheques are to be sent today. Confirmation of this and the position regarding the remaining outstanding points was requested by the Ombudsman on 7 October On 10 October 2014 Mr BK confirmed that there had still been no cheques or correspondence received from the firm. Mr BK confirmed receipt of a cheque of 5,000 on 11 October On 14 October 2014, the Ombudsman wrote to the First Respondent regarding the lack of further communication in relation to the finalisation of the estate and indicated that unless information was received by 17 October 2014, a referral would be made to the SRA to consider the failure to cooperate. 31. The First Respondent sent an update on 17 October 2014 and proposed a further update next Friday. On 23 October 2014 the Ombudsman ed and confirmed the promised update should be sent by close of business the following day. 32. No update was sent so the Ombudsman ed the First and Third Respondents on 28 October 2014 to confirm a referral would be made to the SRA for non-cooperation. It confirmed that the agreed resolution of the matter be concluded by 25 November Weekly updates were expected but were not provided. On 25 November 2014 Mr BK confirmed that the firm had failed to comply with the informal resolution. 33. The Ombudsman ed the First and Third Respondents for an update on 25 November A brief response was made on 26 November 2014 by the Third Respondent who had asked the First Respondent to provide further information. On 27 November 2014 the Ombudsman requested a fuller update by return. 34. On 2 December 2014 the Ombudsman ed the First and Third Respondents to express her dissatisfaction in them failing to update her/respond to her enquiries. 35. On 7 January 2015 the Ombudsman sent a further indicating that unless an update was received by 8 January 2015, the case would be reopened and a formal investigation would follow. 36. Mr BK raised further concerns regarding the estate with the Ombudsman on 9 January 2015, regarding a beneficiary who lived in Australia, not having received her cheque. The Ombudsman ed the First and Second Respondents for an update on the status of the estate on 12 January 2015 as they had failed to update her as promised. This was followed up with an dated 14 January 2015.

8 8 37. The First Respondent sent an to the Ombudsman on 15 January 2015 apologising for the lack of progress due to significant and unusual work pressures. He stated that he hoped to complete the matter within three weeks from 19 January The Ombudsman replied on 19 January 2015 indicating that the finalisation of the estate should take place on or before 13 February 2015, which had been the First Respondent s timescale, and requesting an update by 6 February As no update was received, the Ombudsman requested an update on 14 February 2015 and followed this up with a letter dated 27 February A further from Mr BK on 2 March 2015 indicated that although he had been informed by the Ombudsman on 19 January 2015 that the First Respondent expected a conclusion to the estate within three weeks, there had been no contact at all. The Ombudsman sent an to the First and Third Respondents on 3 March 2015 requiring an acceptable update. 40. A referral was made to the SRA on 5 March 2015 for the conduct of the First and Third Respondents to be considered. They were advised by the Ombudsman on the same day that a referral had been made regarding their non-cooperation. Allegation 1.5 (against the First Respondent and the Third Respondent only) 41. On 9 September 2014 the Ombudsman wrote to the Firm to inform the Firm that a complaint had been made by Mrs CH. The Ombudsman asked for a copy of the complaint Mrs CH had made to the Firm in order to assess whether or not her complaint could be investigated further. The notification included a warning that: If you don t provide what has been asked for. We may report you to your approved regulator for misconduct. You are required under your professional rules to cooperate with the Ombudsman. This was acknowledged by the Third Respondent on 10 September The Ombudsman sent a further letter to the First Respondent dated 23 September 2014 to notify him that the complaint would be investigated further. An dated 7 October 2014 was sent to the First Respondent giving details of the complaint and making a request for relevant documentation which was to be produced by 21 October The main complaint related to a failure by the First Respondent to adhere to an agreement he had made with Mrs CH at a meeting in May This was to release funds from the estate (to her two sisters who were beneficiaries), or if he had done this then they had failed to inform Mrs CH that they had done so (Mrs CH had received her interim payment). The complaint also referred to a failure to reply to correspondence and a failure to attend appointments. The Third Respondent acknowledged the on 8 October No information was received so the Ombudsman sent a reminder on 27 October A response was received the same day from the Third Respondent to say the matter had been taken up with the fee earner (the First Respondent). The Ombudsman

9 9 replied to confirm documents were required by 30 October No documents or response was received. 45. The Ombudsman made a referral to the SRA on 6 November The Third Respondent was notified that his conduct had been referred to the SRA for consideration on the same day. The Third Respondent acknowledged this and said he had sent it to the fee earner (the First Respondent). Allegation 1.6 (against the First Respondent only) 46. The First Respondent acted for the executor, Mr EP, in the administration of the estate of Mr MFL who had died on 9 June The firm took over the matter in October 2010 and the First Respondent had overall responsibility for the management of the matter. 47. The First Respondent failed to update Mr EP, the client, on the progress of the matter from 16 August 2011 up to at least May 2015, a period of three years and nine months. Mr EP had tried on numerous occasions to telephone the First Respondent for an update but his calls were not returned. He had also attended the office to attempt to obtain an update. 48. In relation to the same estate, Mr BK (one of the intended beneficiaries under the estate) complained to the Ombudsman, as set out under Allegation 1.4 above. During this process there were further delays in the estate being progressed and it had still not been finalised by April No update had been provided since the interim payments were made in October On 15 September 2015 a copy of the Report was sent to the Respondents. The Second Respondent responded on behalf of all the Respondents on 30 September 2015 and 26 October In summary, the Respondents: gave details regarding the HMRC petition, the CVA and money still owed to the Firm by the Legal Aid Authority together with information regarding the restructuring of the Firm; confirmed that the Firm had complied with the determinations made by the Ombudsman; confirmed that the Firm had had extensive communications with the SRA and the FI Officer about all of the concerns; stated no client money was lost or misappropriated and any rectifications required had been done; accepted there were occasions of delay in responding to the Ombudsman but did not accept they had failed to cooperate with the SRA;

10 10 confirmed they were not aware of the HMRC petition until about 1 October 2015; that they were then busy obtaining independent legal advice and attending meetings and as soon as they became aware the petition had been advertised, they notified the SRA; accepted there were debit balances which were dealt with on discovery and confirmed that new systems had been put in place to prevent any repetition; accepted that the reconciliation for February 2015 was under way but not complete. Witnesses 50. The following witnesses gave evidence: Francis William Brazell (the First Respondent) on mitigation only. Findings of Fact and Law 51. The Tribunal had carefully considered all the documents provided, the evidence given and the submissions of both parties. The Tribunal confirmed that all allegations had to be proved beyond reasonable doubt and that the Tribunal would be using the criminal standard of proof when considering each allegation. 52. Allegation Between August 2014 and March 2015, the Respondents made withdrawals from client account and transfers from client to office account in excess of funds held on nineteen client matters resulting in debit balances in client account amounting to 13, The Respondents thereby breached any or all of the following: Rule of the SRA Accounts Rules 2011 (The 2011 Accounts Rules) Principles 4 and 10 of the SRA Principles 2011 (The 2011 Principles) The Respondents admitted Allegation but did not admit Allegation The Tribunal found Allegation proved both on the Respondents admissions and also on the documents provided In relation to Allegation 1.1.2, Principles 4 and 10 of the SRA Principles 2011 stated: Principle 4 You must act in the best interests of clients. Principle 10 You must protect client money and assets Mr Bullock on behalf of the Applicant, submitted that the Tribunal was required to consider whether breaches of the 2011 Accounts Rules demonstrated a level of personal culpability by the Respondents such that there was also a breach of The 2011 Principles.

11 Ms Heley, on behalf of the Respondents, submitted there was no evidence before the Tribunal to explain who had authorised the transfers or how and why they had been made. She submitted the Tribunal needed to be certain about this in order to determine the Respondents were personally culpable and had breached The 2011 Principles. Whilst the Respondents had admitted a breach of Rule of the 2011 Accounts Rules, this was on a strict liability basis and all matters had been rectified by 6 May The last breach had taken place on 30 March 2015 during a period when the Respondents had been facing a number of other stressful issues including the presentation of the HMRC winding up petition The First Respondent s witness statement dated 7 September 2016 confirmed that a small number of errors arose predominantly due to incorrect amounts being demanded by a former partner of the Firm for transfer on live files which she had taken with her when she left the Firm so the files were not available. He could not confirm whether he had authorised the transfers although he believed he did not The Second Respondent confirmed in her witness statement dated 8 September 2016 that the withdrawals and transfers were dealt with by the First and Third Respondents. She confirmed the First Respondent s account of events The Third Respondent s undated witness statement stated he had limited use of the client account although he was a signatory on the bank accounts so did effect transfers when asked. He also confirmed the explanation given by the First Respondent The Tribunal considered carefully all the documents provided and noted the Respondents had relied on a bookkeeper at the material time. The Applicant had not established who had made the actual transfers. The Tribunal was satisfied that these were simply bookkeeping errors which did not import personal culpability on the Respondents. The errors had been rectified reasonably promptly and no clients had suffered losses. The Tribunal therefore found Allegation not proved. 53. Allegation The Respondents failed to carry out the client account reconciliation for February 2015 in breach of Rule and of The 2011 Accounts Rules The Respondents admitted they had breached Rule but did not accept they had breached Rule of the 2011 Accounts Rules Rule stated as follows: Reconciliations must be carried out as they fall due, or at the latest by the due date for the next reconciliation As the Respondents had admitted they had breached Rule by not carrying out a reconciliation for February 2015 within five weeks as required by the Rule, Mr Bullock submitted that a breach of Rule did not really add much to matters. Ms Heley, on behalf of the Respondents, agreed with this.

12 The First Respondent in his witness statement stated the failure to complete the February 2015 reconciliation was not a systematic failure but rather an issue arising from the investigation into client account and difficulties with producing a hard copy reconciliation rather than an electronic version The Second Respondent in her witness statement stated this had been the first time a client account reconciliation was late and this was due to the investigations into the debit balances. She confirmed the reconciliation was completed and sent to the SRA by 1 May The Third Respondent in his witness statement indicated February 2015 had been a particularly difficult time for the Firm The Tribunal having considered matters found there was a breach of Rule on the Respondents admissions and on the documents provided. As Mr Bullock did not seek to pursue the breach of Rule further, and both parties conceded this did not add anything to the allegation, the Tribunal found Allegation 1.2 proved but only on the basis of a breach of Rule Allegation The Respondents failed to notify the SRA promptly that they were in serious financial difficulty in being unable to pay various taxes due to Revenue and Customs (HMRC) for totalling 380, culminating in a winding up petition being presented by HMRC on 25 September 2014 and in so doing: breached Principle 7 of The 2011 Principles; and failed to achieve Outcome of the SRA Code of Conduct The Respondents admitted Allegation but did not admit Allegation The Tribunal found Allegation proved both on the Respondents admissions and on the documents provided Principle 7 of The 2011 Principles stated: You must comply with your legal and regulatory obligations and deal with your regulators and ombudsman in an open, timely and cooperative manner Outcome stated: You must achieve these outcomes: you notify the SRA promptly of any material changes to relevant information about you including serious financial difficulty Mr Bullock submitted the issue for the Tribunal to decide was whether the delay to notify the SRA established a breach of Principle 7. He submitted it was difficult to see how there could be a breach of an Outcome without a breach of a Principle as the Outcomes set out what needed to be done in order to comply with obligations under the Principles. He submitted that a solicitor was required to deal with the regulator in a timely manner and if there was a failure to notify the SRA, then there was a failure by the solicitor to cooperate. In this case, there had been serious financial difficulties of which the Respondents had failed to promptly notify the SRA.

13 Ms Heley submitted the Respondents had acted properly in this case. They had entered into negotiations with HMRC guided by their insolvency advisers and in fact the SRA had been notified during a telephone call about a month after the issue of the winding up petition. The SRA had raised some queries and the Respondents had cooperated fully throughout. Ms Heley submitted there was no breach of Principle Ms Heley further submitted that the Tribunal was required to find cumulative breaches to establish a breach of Principle 7. She referred the Tribunal to the case of David Bellchamber [ ] in which a previous division of the Tribunal had found that a lack of openness was a necessary requirement to establish that a respondent had failed to act openly Ms Heley also referred the Tribunal to the case of SRA v Chan, Ali and Abode Solicitors Ltd [2015] EWHC 2659 (Admin) in which Lord Justice Davis had stated: 27. In addition, those drafting such charges would, in my view, be well advised to bear in mind the desirability in principle of aiming to seek to include in a charge sheet the minimum number of charges necessary to meet the justice of the particular case: and not the maximum number possible Mr Bullock submitted the case of Bellchamber could be distinguished as in that case the respondent had failed to comply with an adjudicator s decision. The SRA had been pursuing the respondent for payment of costs and whilst he had not paid those costs, he had been open with the SRA in making it clear that he did not intend to pay them. Mr Bullock submitted that was different from this particular case where the Respondents had failed to notify the regulator of serious financial difficulties promptly In relation to the case of SRA v Chan, Ali and Abode Mr Bullock submitted the paragraph referred to was simply guidance to SRA draftsman and related to cases where there was manifest over pleading of charges. That case did not confirm that the Tribunal could disregard an allegation concerning the breach of a Principle The First Respondent in his witness statement set out some background to the position in which the Firm had found itself. He had become involved in a lengthy, complex legally aided extradition case involving a Rwandan national, during which the Legal Aid Agency refused to make any payments on account putting him in a difficult position. The First Respondent confirmed the Respondents had fully engaged with their professional advisers, the Firm s bank, creditors and others as they sought to trade through the issues. They were surprised when presented with a petition by HMRC as they had been involved in ongoing communications with them. The Respondents had attempted to negotiate an agreed way forward and had been confident agreement could be reached with creditors. He stressed no client money had been at risk as a result of the Firm s cashflow issues Both the Second and Third Respondents in their witness statements adopted and confirmed the explanation given by the First Respondent.

14 The Tribunal noted the winding up petition presented by HMRC was dated 25 September 2014 and thereafter the Respondents spent some time negotiating with HMRC. The SRA was notified of the position on 29 October 2014, approximately a month later. The Respondents had employed professionals to assist them and had not ignored the situation. Indeed, they entered into a CVA on 12 November 2014 shortly thereafter. The Respondents accepted they had breached Outcome in that they had not promptly notified the SRA The Tribunal concluded the Respondents had not breached Principle 7. The Tribunal was not satisfied the Respondents had acted with a lack of openness or failed to cooperate with the SRA in these circumstances. The Tribunal found Allegation not proved. 55. Allegation During the course of an investigation by the Legal Ombudsman ( the Ombudsman ) into a complaint made by Mr BK, which commenced in about June 2014, the First Respondent and the Third Respondent failed to deal with the Ombudsman in an open, timely and cooperative manner in breach of Principle 7 of The 2011 Principles. Allegation During the course of an investigation by the Legal Ombudsman ( the Ombudsman ) into a complaint made by the client Ms CH, which commenced in about September 2014, the First Respondent and the Third Respondent failed to deal with the Ombudsman in an open, timely and cooperative manner in breach of Principle 7 of The 2011 Principles Allegations 1.4 and 1.5 were against the First Respondent and the Third Respondent only. Both Respondents admitted both these allegations. The Tribunal found both allegations proved against both Respondents based on their admissions and also on the documents provided. 56. Allegation The First Respondent failed to provide a proper standard of service to his client Mr EP, the executor of the estate of Mr MFL, in that he failed to keep Mr EP informed of the status of the estate over a period of approximately 3 years and nine months and long delays were encountered with the administration of the estate and in so doing breached Principle 5 of The 2011 Principles Allegation 1.6 was against the First Respondent only. The First Respondent admitted this allegation and the Tribunal found it proved both on his admission and on the documents provided. Previous Disciplinary Matters 57. None for any Respondent Mitigation 58. The Tribunal heard evidence from the First Respondent. He confirmed that whilst the Company Voluntary Arrangement was not formally completed, the Firm had complied with all its obligations and a formal Certificate of Completion would be

15 15 provided in due course. The First Respondent produced an dated 4 October 2016 from the Firm s insolvency advisers which confirmed this to be the position. 59. The First Respondent also confirmed that one issue remained to be resolved on the estate concerning Mr EP and this related to assets in South Africa. The First Respondent had been trying to extract information from there. It transpired this was not available and the First Respondent confirmed he had now received confirmation that he could proceed on the basis of the information that was available. The First Respondent also confirmed the two complaints made to the Legal Ombudsman had been resolved and dealt with in accordance with the determinations made. 60. Ms Heley referred the Tribunal to a number of character references for the First and Second Respondents. She also confirmed that one of the referees for the First Respondent, a barrister, was attending the Tribunal later that day and would be available to give evidence should the Tribunal wish to hear from her. Ms Heley further submitted that the Second Respondent was at the time in a period of recent family bereavement. 61. Ms Heley submitted that all the Respondents were experienced and dedicated professionals who had worked in the area of legal aid for many years, with little hope of great financial reward had been a bad year for the Firm financially and there had been generic problems with obtaining payments from the Legal Aid Agency. The First Respondent had been working on one particular lengthy legally aided case which involved extradition proceedings where payments were delayed. The amount of time that the First Respondent had spent on this one case (up to 4000 hours) was the sole contributing reason for the detrimental effect on the amount of time he had been able to spend on managing the Firm and handling his other matters In 2013 the Firm had merged with N s practice. However, shortly afterwards, N had a period of absence from the office due to ill health. During this time the other feeearners at the Firm had to manage her case load. Shortly after her return to the Firm (in July/August 2014), N gave the Respondents notice that she intended to demerge her practice from the Firm. This meant that her live client files had to be extracted and handed over to her. As a result of this a number of account breaches arose temporarily on her files due to transfers of funds being made at her request at a time when the Firm was already in financial difficulties and the First Respondent was heavily engaged in the legal aid case (referred to above). Ms Heley submitted this was not a case where the Firm had a poor record of compliance. There had been nineteen instances of bookkeeping errors all of which were rectified and funds replaced by 6 May It had been accepted there had been a failure by the First Respondent and the Third Respondent to reply to letters from the Legal Ombudsman but this was at a time when they had been co-operating with SRA enquiries, negotiating their Company Voluntary Arrangement and dealing with clients. Ms Heley submitted the Respondents took their obligations very seriously but were simply unable to cope with the various demands on their time during that period.

16 Ms Heley reminded the Tribunal that the First Respondent had admitted the allegations relating to the complaint concerning Mr EP from the outset. He was no longer carrying out any further probate work and resolution of this particular estate would be the last such case he would deal with. He intended to focus on his criminal practice in the future. In relation to the Second Respondent, Ms Heley submitted the Accounts Rules breaches had not been brought to her attention. Concerning the Third Respondent, he was an experienced childcare Solicitor Advocate who had made attempts to engage with the Legal Ombudsman and had tried to explain the reason for the delay in dealing with matters during a difficult period at the Firm. Sanction 65. The Tribunal had considered carefully the First Respondent s evidence, the Respondents submissions and statements. The Tribunal also took into account the glowing references provided in relation to the First and Second Respondents. The Tribunal referred to its Guidance Note on Sanctions when considering sanction. The Tribunal also had due regard to the Respondents rights to a fair trial and to respect for their private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 66. The Tribunal considered the aggravating and mitigating factors. Clients had suffered harm as a result of the delays caused in administering probate which resulted in the complaints made to the Legal Ombudsman relating to the allegations against the First Respondent and the Third Respondent. The First Respondent and the Third Respondent ought reasonably to have known that their conduct was in material breach of their obligations to protect the public and the reputation of the legal profession. This was an aggravating factor. 67. The accounts breaches had taken place over a relatively short period of time and the Respondents had not sought to conceal the position. The delay concerning the February reconciliation had been an isolated incident. Their conduct was not planned and they had rectified the position quickly notifying the regulator of the Firm s financial position, albeit not as quickly as they could have done. The Respondents had shown genuine insight and remorse, they had cooperated with the regulatory proceedings and had made open and frank admissions where appropriate. All the Respondents had previously held a long unblemished record. These were all mitigating factors. 68. The Tribunal accepted, in the overall scheme of things, that the misconduct had arisen as a result of the unfortunate exceptional circumstances the Respondents had found themselves in which amounted to a perfect storm. The failures had taken place over a six month period. The bookkeeping errors had been corrected relatively quickly. 69. Dealing firstly with the First Respondent he had a number of allegations against him which were found proved. These included breaches related to the Firm s accounts and finances and failures to cooperate with the SRA and the Legal Ombudsman, as well as a failure to provide a proper standard of service to his client. His client had suffered a delay of at least three years and nine months when he had attempted to contact the Third Respondent. This was not acceptable behaviour.

17 The Tribunal took into account that the First Respondent was not the Complaints Partner of the firm at the material time, however he should have taken steps to ensure a proper standard of service was provided to Mr EP who had made many attempts over a very long period of time to contact the First Respondent regarding his matter. Taking into account all the allegations found proved, the Tribunal was satisfied that a fine of 4,000 was the appropriate and proportionate sanction in this case and this would adequately reflect the seriousness of the misconduct whilst maintaining the reputation of the profession. 71. The Second Respondent was less culpable. There were fewer allegations found proved against her. The withdrawals and transfers had been from the Firm s offices in London whereas she was based in Hungerford which operated a separate client account. She had made admissions relating to the accounts breaches on a strict liability basis, and admitted the failure to notify the SRA promptly that the Firm was in financial difficulty. The Tribunal accepted that she had been going through difficult personal circumstances at the time, details of which were contained in her witness statement. The Tribunal determined that the appropriate and proportionate sanction which would reflect her misconduct was a fine of 1, The Third Respondent had been the Complaints Partner of the Firm and as well as the allegations concerning the accounts breaches and the failure to notify the SRA, he had failed to deal with the Legal Ombudsman in an open, timely and cooperative manner in relation to two separate matters. In his witness statement the Third Respondent had stated that as the Complaints Partner, he relied on other fee earners to provide him with the necessary information to pass onto the client or the Legal Ombudsman. He reiterated the difficult circumstances of the Firm at the material time which had led to other matters being prioritised. He also stated the complaints related to particularly complex matters which required substantial time to review and resolve. 73. Notwithstanding this, the Tribunal s view was that as the Third Respondent was the Complaints Partner of the Firm, he had the responsibility and obligation to obtain the files and could and should have taken a proactive approach on these issues. He could have investigated matters himself and/or arranged for the transfer of the files to other fee earners. Taking this into account, the Tribunal concluded that the appropriate and proportionate sanction in relation to the Third Respondent was a fine of 4,000. This would adequately reflect his misconduct whilst maintaining the reputation of the profession. Costs 74. Mr Bullock, on behalf of the Applicant requested an Order for the Applicant s costs. He confirmed those costs had been agreed with the Respondents in the sum of 12,000. Mr Bullock requested the Tribunal to make an order that the First Respondent and the Second Respondent should jointly and severally contribute 8,000 towards the costs, and the Third Respondent should contribute 4,000. He reminded the Tribunal that the First and Second Respondents had some equity in a property and he therefore requested an order that the costs against them were not to be enforced for a period of twelve months, save that the Applicant may apply for a Charging Order over their property. Mr Bullock confirmed the Applicant would consider payments by instalment to discharge the debt.

18 Ms Heley confirmed the Applicant s costs had been agreed in the sum of 12,000 to be paid jointly and severally. She confirmed the Respondents had taken minimal earnings from the firm, using their own savings which indicated they were committed individuals who took their responsibilities very seriously. 76. The Tribunal had considered carefully the matter of costs and was satisfied that the amount of costs agreed in the sum of 12,000 was reasonable. Accordingly, the Tribunal made an Order that the First and Second Respondents be jointly and severally liable to pay the sum of 8,000 towards the Applicant s costs and the Third Respondent pay the sum of 4,000 towards the Applicant s costs. 77. In relation to enforcement against the First and Second Respondents, they had both filed a Statement of Means which indicated that although they were not in a position to be able to meet a costs payment at the moment, they did have some equity in their residential property. Accordingly, the Tribunal accepted Mr Bullock s submission that the Order for costs against them was not to be enforced for a period of 12 months save that the Applicant may apply for a Charging Order in respect of property owned by them. The Tribunal was reassured to hear the Applicant would allow payments to be made by way of instalments. 78. The Third Respondent had not requested any restriction in relation to the costs order made against him. Indeed he had provided a Statement of Means confirming he was in receipt of some income. The Tribunal did not therefore consider any restriction was necessary. Statement of Full Order 79. The Tribunal Ordered that the First Respondent, FRANCIS WILLIAM BRAZELL, solicitor, do pay a fine of 4,000.00, such penalty to be forfeit to Her Majesty the Queen, and it further Ordered that he do pay, jointly and severally with the Second Respondent, Michaela Carolyn Hoggarth, the costs of and incidental to this application and enquiry fixed in the sum of 8,000.00, such costs not to be enforced for a period of 12 months save that the Applicant may apply for a Charging Order in respect of any property owned by the First Respondent. 80. The Tribunal Ordered that the Second Respondent, MICHAELA CAROLYN HOGGARTH, solicitor, do pay a fine of 1,000.00, such penalty to be forfeit to Her Majesty the Queen, and it further Ordered that she do pay, jointly and severally with the First Respondent, Francis William Brazell, the costs of and incidental to this application and enquiry fixed in the sum of 8,000.00, such costs not to be enforced for a period of 12 months save that the Applicant may apply for a Charging Order in respect of any property owned by the Second Respondent. 81. The Tribunal Ordered that the Respondent, PHILIP HUGO ELDIN-TAYLOR, solicitor, do pay a fine of 4,000.00, such penalty to be forfeit to Her Majesty the Queen, and it further Ordered that he do pay the costs of and incidental to this application and enquiry fixed in the sum of 4,

19 19 Dated this 18 th day of November 2016 On behalf of the Tribunal L. N. Gilford Chairman