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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kilshaw v Office of the Supervision of Solicitors [2005] EWHC 1484 (Admin) (20 June 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1484.html Cite as: [2005] EWHC 1484 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		20th June 2005

Monday, 20th June 2005

1. LORD JUSTICE ROSE: This is a sad case. The appellant, who is about 50 years of age, practised for some 20 years as a solicitor in a practice which was undoubtedly of great benefit to members of the public who were particularly ill-equipped to protect their own interests. The matter comes before this court as an appeal against a decision of the Solicitors Disciplinary Tribunal of 23rd July 2002, written reasons for which were given on 30th September 2002.
2. The history of the appeal to this court must be shortly rehearsed. It was originally listed for hearing on 15th December 2003, but taken out of the list on the court's direction on an application by the appellant for an adjournment on medical grounds. It was relisted for 14th May 2004, but adjourned on the court's direction because the appellant was still looking for a solicitor to represent him, in view of his poor health.
3. Richards J gave detailed directions, in particular as to the pursuit by the appellant of an application for Legal Aid and for the filing of a medical report, which was filed in June 2004. The question of Legal Aid was then reviewed but again refused on 4th August 2004, whereupon the appellant sought exceptional funding. That was refused on 6th January 2005 and that decision, following review, was upheld on 22nd February 2005.
4. The appellant then sought directions as to how the matter was to proceed and a medical report was supplied, with a letter from Mrs Kilshaw, the appellant's wife, on 1st April 2005. On 6th April 2005 Collins J directed that the appeal must be heard as soon as possible. He invited the Legal Services Commission to reconsider the question of public funding. He also directed that, whether or not Legal Aid was granted, the appeal must be listed for hearing after four weeks from 6th April.
5. There has been further communication between the appellant and his wife and the listing office, the culmination of which is that the appeal has been heard today. Mrs Kilshaw was informed in response to her enquiry, at the end of last week, that if, in view of her husband's condition, she wished to address the court today, the court would be sympathetic to that happening. Indeed, today, Mrs Kilshaw has, in clear, courteous and eloquent terms, addressed the court on her husband's behalf. She has also provided us with "summing up points", as she describes them, in writing, and Mr Kilshaw himself has also briefly addressed the court.
6. The decision which is challenged is that the appellant was guilty of conduct unbefitting a solicitor (in respects to which, in a moment, I shall come), and that he should, in consequence, be struck off the Roll of Solicitors.
7. The allegations against him were, first, that prior to 1st May 2000 he had acted in breach of Rule 3 of the Solicitors' Accounts Rules 1991 and the Solicitors' Accounts (Legal Aid Temporary Provision) Rule 1992 in paying into his office account monies received in respect of unpaid disbursements in matters where he had acted as a solicitor.
8. Secondly, it was said that, from 1st May 2000, in breach of Rules 1, 7, 13 and 15 of the Solicitors' Accounts Rules 1998, he had failed to pay into clients' account clients' money received in the form of unpaid disbursements in respect of matters in which he was acting as a solicitor. Alternatively, he had failed to transfer, from office to clients' accounts, monies received in respect of unpaid disbursements within 14 days of receipt. It was said that, in consequence, he had improperly utilised monies received for unpaid disbursements for his own benefit. These three allegations gave rise, it was said, fourthly, to conduct unbefitting a solicitor.
9. Mr Kilshaw, by a letter which he wrote on 29th May 2002, to the Solicitors Disciplinary Tribunal, admitted what he described as "technical" breaches of the rules identified in the second of these allegations, but he denied the first, third and fourth.
10. It is to be noted that dishonesty was not alleged against him in any of these charges.
11. The two matters of complaint in the present appeal are, first, that the Solicitors Disciplinary Tribunal ought to have adjourned the hearing before them, rather than proceeding with it, in the face of medical evidence as to the unfitness of Mr Kilshaw. Secondly, it is said that striking-off was far too serious a penalty for that which Mr Kilshaw had done, bearing in mind the absence of any allegation of dishonesty against him.
12. So far as the question of an adjournment is concerned, it is necessary to refer to a little of the history of events before the matter came before the Solicitors Disciplinary Tribunal.
13. There had been, on 22nd June 2002, that is to say about a month before the notified date of hearing, a letter from Mr Kilshaw to the SDT as I shall refer to them. It set out with clarity and in sensible terms a number of points which Mr Kilshaw wished to have considered. They included a request for an assurance that the case would not start before 1.00pm, having regard to the difficulties of Mr Kilshaw in reaching the tribunal at an earlier time.
14. The question of Mr Kilshaw's health was first raised in a letter which he wrote to the tribunal on 18th July 2002, that is to say, some five days before the notified hearing. He sought an adjournment on the basis that he was unwell and had been so for some time. He said that he could not travel from Chester, where he lived, to London the following week because this would be against medical advice. With that letter there was enclosed a note dated 18th July from Mr Kilshaw's general practitioner who said:

"I saw Mr Kilshaw today and found him to have some symptoms of anxiety and depression. As this was our first meeting I need to assess him further to decide on appropriate treatment."

15. Mrs Kilshaw tells us today that this was, so far as Mr Kilshaw was concerned, a new general practitioner because, by reason of their having to move house not long before, they had had to seek the services of a different general practitioner from the one who had previously had the care of Mr Kilshaw.
16. On the date of the hearing, there were two telephone calls made to SDT on behalf of the appellant. A note records that a lady, it may be Mrs Kilshaw, said that medical notes would be faxed to the tribunal that morning, Mr Kilshaw was medically unwell, was totally unfit to appear, and was applying for an adjournment.
17. There was a further telephone call, undoubtedly from Mrs Kilshaw, seeking confirmation that the tribunal knew of her earlier telephone message and a faxed medical note. The medical note was dated 22nd July and said that the doctor who signed it had limited knowledge of the appellant's psychological make-up as he had only recently become his patient. The doctor said:

"... I believe he would have difficulty preparing his case at the present time. I have been able to establish some elements of depressive illness but have insufficient knowledge of him as a patient to say when he could undertake the rigours of a full tribunal."

18. In the second telephone message, Mrs Kilshaw said that, if the hearing went ahead, Mr Kilshaw would appeal. There was also a suggestion, which had been made in earlier correspondence but which is not the subject of complaint before us today, that the proceedings before the tribunal should be in private.
19. The second of the messages also indicated that Mr Kilshaw was due to see a senior consultant on Thursday, this message being received on the Tuesday.
20. In the light of that material, the tribunal, as appears from page 5 of their written reasons, refused the application for an adjournment. They said that the medical evidence was insufficient to convince the tribunal that the respondent was not well enough to attend or to prepare or conduct his case:

"The letter from the Respondent's general practitioner had stated that he had difficulty in preparing his case. The Respondent had clearly been able to deal with all matters against him and he had not given any earlier indication that he was not well."

21. The tribunal referred to the need to take into account the possibility of prejudice to others, but accepted that there was no evidence that such prejudice would occur. They said this:

"The Tribunal recognised its duty first to protect the interests of the public and secondly to preserve the good reputation of the solicitors' profession. The Tribunal found it difficult not to conclude that the Respondent's last minute attempt to have the hearing adjourned was a delaying tactic and weighing the unsatisfactory medical evidence against the Tribunal's fundamental duties to the public and the solicitors' profession it concluded that it was right to proceed to the substantive hearing.

"The Applicant had written to the Tribunal by letter dated 18th July stating that he was unwell and could not attend [and he enclosed the letter from the doctor which I have already set out]..."

22. In the written submissions prepared for this court by Mr Kilshaw on 21st April 2004 he challenges, as did Mrs Kilshaw in her oral and written submissions to us, the tribunal's refusal of an adjournment.
23. He points out that, in October 2001, the family had, in the media spotlight, lost their former home. In March 2002 he had been made bankrupt, in the same spotlight. As a result, there was considerable pressure building up on his health, and his son's health began to worsen. The appellant was not able to sleep, depression was setting in, and it was very difficult for him to concentrate on even routine events, let alone matters requiring prolonged, detailed and rational thought. He said that he had hoped to be able to obtain help to prepare the case before the SDT but that did not materialise and he then simply could not cope and had no option but to seek medical help. The letter from the GP had been rejected by the tribunal and so the further GP's letter had been provided. In these circumstances it is said the SDT should not have gone ahead with the hearing in Mr Kilshaw's absence.
24. In support of that submission both Mr Kilshaw, in his written submissions, and Mrs Kilshaw in her submissions to us, referred to a judgment of Peter Gibson LJ in the case of Teinaz v London Borough of Wandsworth [2002] IRLR 721, in particular at paragraphs 20 and 21. The learned Lord Justice referred to the granting of an adjournment as being a matter for the exercise of discretion with which an appellate body would be slow to interfere, though some adjournments "must be granted if not to do so amounts to a denial of justice."
25. At paragraph 21 Peter Gibson LJ said:

"A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment."

26. In that context, Mr Kilshaw's written submissions say that it does not follow that simply because a party is able to engage in day-to-day correspondence he is necessarily well enough to prepare a detailed and lengthy argument. The SDT, at the date of the hearing, had a duty to weigh the various considerations, including the public interest and the importance of the claimant's right to a fair hearing and his right to earn a living. At the time of the SDT hearing, he had not practised since October 2001 and therefore any adjournment was unlikely to prejudice the general public. But the refusal of an adjournment would be prejudicial to the claimant on human rights grounds and there was no good reason why an adjournment should not be granted. The subsequent medical evidence produced since the SDT hearing, Mr Kilshaw submits, proves beyond doubt that the application for an adjournment was genuine and made in good faith.
27. Mrs Kilshaw, in her submission to us, accepted that the medical evidence proffered to the SDT as to the fitness of her husband to attend was not strong and she was herself disappointed with it. But, bearing in mind the stresses upon the appellant from moving house and the other matters to which I have referred, an adjournment ought to have been granted.
28. As it seems to me, so far as the question of the SDT granting an adjournment is concerned, that decision has to be assessed in the light of the material which was before the tribunal on the date on which the hearing was refused. It is apparent from the history of events which I have set out that the application to adjourn was made at a very late stage, some five days before the hearing. It is also apparent that, whatever the reason why Mr Kilshaw had only very recently sought medical evidence, the fact was, so far as the tribunal were concerned, that he had only sought medical assistance a few days before the hearing was due to take place. The shortcomings of the medical evidence provided in support of the application are apparent on the face of those documents as is in part conceded by Mrs Kilshaw.
29. All of those very recent events, the tribunal were entitled to look at, as it seems to me, in the context of the earlier dealings which Mr Kilshaw had had with the tribunal, up to and including, in particular, the letter to which I have referred, written by him on 22nd June.
30. In the light of all those matters, it seems to me that there was ample material entitling the tribunal to conclude that the application for an adjournment was a manoeuvre by Mr Kilshaw to put off the evil day. That being so, so far as the first ground of complaint against the tribunal is concerned, for my part I am unpersuaded that it has substance.
31. I turn now to the striking-off. It is, at this stage, necessary to refer to some of the material which, it is to be noted, is not factually in dispute so far as Mr Kilshaw is concerned. He was admitted as a solicitor in 1979 and at the relevant times was in sole practice at Buckley, Conwy. The Law Society carried out an inspection of his books of account which began on 5th February 2001. The report revealed that, as at 5th February, there was no client account, an earlier client account having, perfectly properly, been closed by Mr Kilshaw in, I think, 1999. There was a single office account on which there was an overdraft, the limit for which, authorised by the bank, was £35,000. It was a sum slightly less than £100 in excess of that as at 5th February. It was not necessary for Mr Kilshaw to maintain a client account, provided he did not carry out work which required him to hold client funds.
32. It is to be noted that Mr Kilshaw's practice was almost entirely, if not entirely, directed to housing matters and the obtaining of housing benefits by those who were entitled to them. What had happened was that fees had been received by Mr Kilshaw from the Legal Services Commission destined for an Environmental Health Expert, called Mr Chaplin, who was instructed by the appellant in the following circumstances. Mrs Kilshaw herself would visit properties which were said to be in various states of disrepair. Having visited a particular property, she would make a note about its condition and, if the circumstances warranted, she would mark her note urgent and it would be passed to Mr Chaplin for him to carry out an expert assessment.
33. She told us this morning that, in relation to a particular property, it appeared that Mr Chaplin had not, as he claimed to have done, visited the property at all. He was, in consequence, as Mrs Kilshaw expressed it to us, effectively taking money from the Legal Aid fund, to which he was not entitled.
34. There was a further man, to whom I shall refer as S, who Mrs Kilshaw told us had overheard certain conversations, as a consequence of which he sought to blackmail the appellant. It was because he went to the Legal Aid Board that the inspection in February 2001, to which I have already referred, was launched.
35. It appears that, over a period of some 9 months, the appellant had sought and obtained from the Legal Services Commission some 75 payments in respect of fees for Mr Chaplin. Those fees totalled just over £17,500. That money ought to have been paid either into a client account or, within 14 days, to Mr Chaplin. In fact it remained in the appellant's client account. It is inescapable that, by February 2001, had that sum of over £17,500 not remained in the appellant's office account, his authorised overdraft limit on that account would have been exceeded by a sum of that order.
36. The explanation for the non-payment of the fees received for Mr Chaplin to Mr Chaplin was that there was a dispute between the appellant and Mr Chaplin, which Mrs Kilshaw identified, as to whether or not Mr Chaplin was properly entitled to this money. The point is made that Mr Chaplin himself has not at any stage sought to claim these sums from the appellant.
37. The fact is, however, that rather than cease claiming sums from the Legal Services Commission, rather than paying the sums already received to Mr Chaplin within 14 days, and rather than opening a client account in which the monies could properly be held, Mr Kilshaw intermingled these monies with his own monies in the office account.
38. The appellant gave an assurance, following the inspection, that he would put the money on a separate deposit account. Mrs Kilshaw raised the point that if he had done that what would have happened? It might have remained there forever. At all events he did not pay the money into a separate account. He was, sadly, adjudicated bankrupt on 12th March 2002.
39. The submission which was made to the tribunal on behalf of the Law Society was that the appellant had clearly retained the benefit of these sums in his own office account, instead of dealing with them in the way which I have described.
40. The SDT found each of the three allegations, which I earlier identified, proved and that this amounted to conduct unbefitting. They referred to what they regarded as aggravating features, namely the retention of over £17,000 of public money to which the appellant was not entitled, in precisely the circumstances which the Solicitors' Accounts Rules are designed to prevent.
41. The appellant had made a deliberate decision to retain those monies in his office account. It could not be said that this was the consequence of forgetfulness on his part. This was an improper utilisation of money which did not belong to him and there is a heavy duty on a solicitor to act at all times with integrity and probity.
42. The tribunal took the view that there had been a serious breach of these duties. The tribunal took into account the media glare to which, at the relevant time, the appellant had been subjected, but they regarded that as not having any bearing on its decision. The tribunal said this in paragraph 15:

"Although dishonesty had not been alleged... the Tribunal was charged with the imposition of vigorous tests relating to the personal integrity and trustworthiness of solicitors brought before it. The Respondent had fallen woefully short of the standards required of a solicitor and the Tribunal considered it right that its duty to the public and its duty to maintain the good reputation of the solicitors' profession would be met only by the imposition of the ultimate sanction."

It went on to order that the appellant be struck off.

43. In his written submissions, Mr Kilshaw asserts that the problem in this case arose through what he calls "a failure of office systems" and not by reason of any dishonesty. He concedes that the retaining of the disbursements due to Mr Chaplin was in circumstances in which a separate client's deposit account was "overlooked," in the context of a decision having been made to withhold further payments from Mr Chaplin.
44. Mrs Kilshaw submits that it was wrong to suggest that Mr Kilshaw went on claiming payments due to Mr Chaplin after the dispute with him arose. The reality is that the Legal Aid Board had fixed the day beyond which it had made clear claims would not be paid and, on this basis, Mr Kilshaw had no alternative but to submit the claims in order to ensure that, if the dispute with Mr Chaplin was resolved, he, Mr Kilshaw, would be in funds to pay Mr Chaplin which otherwise he would not have had.
45. Mr Kilshaw refers, as did Mrs Kilshaw in her submissions to us, to the well-known decision of the Court of Appeal, Bolton v Law Society [1994] 1 WLR 512, where Sir Thomas Bingham, then the Master of the Rolls giving the judgment of the court with which the other two members agreed, at page 518b said this:

"Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension."

46. Those observations by the then Master of the Rolls have to be read in the light of subsequent observations in the Privy Council in Ghosh v General Medical Council [2001] 1 WLR 1915. There are also observations by Lord Gill (Lord Justice Clerk) in MacMahon v Council of the Law Society of Scotland SLR 36 which are pertinent. These comments are referred to in a Divisional Court judgment in Langford v The Law Society [2002] EWHC 2802 Admin where, at paragraph 14 of the judgment, a passage is cited from the speech of Lord Millett in Ghosh at 1923. He was giving the judgment of the Privy Council in an appeal under the Medical Act 1983. But this court, in paragraph 14, expressed the view that the principle should be of equal application in relation to appeals by solicitors. Lord Millett said this:

"The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not called makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes.

"It is true that the Board's powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past."

47. Lord Millett went on to refer to an unreported decision in Evans v General Medical Council and continued by saying this:

"... the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances. The council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the committee for reconsideration."

48. Lord Gill (Lord Justice Clerk) in MacMahon said this:

"... we must now apply a less rigorous test. We should simply look at the tribunal's decision in the light of the whole circumstances of the case, always having due respect for the expertise of the tribunal and giving to their decision such weight as we should think appropriate."

49. He went on at paragraph 16:

"Nevertheless, in following this approach we think that it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist tribunals in appeals of this kind..."

50. As it seems to me those observations in the Privy Council and by the Lord Justice Clerk are apt to guide this court's consideration in relation to the striking-off ordered in the present case.
51. The submission which is made by Mrs Kilshaw is that, at the time of the material events, her husband was unhappy and distressed. He was being threatened by S and complaints about S's conduct to the police by the Kilshaws were unjustifiably ignored. She accepted that the money should have gone on deposit and that it is perhaps no excuse that the family were, as she put it, "going through hell at the time." She stressed that there was no question of dishonesty being proved against the appellant and she submitted that suspension would have been appropriate. She posed the question: if striking-off is appropriate where there is no dishonesty, that is a potential threat which may encourage dishonesty by a solicitor who has erred without dishonesty, but who has nothing further to lose if he is then dishonest.
52. Mrs Kilshaw said, and for my part I accept, that the effect of striking-off on Mr Kilshaw, his wife and family has been very hard indeed. This is a family with young children whom Mr Kilshaw, having practised respectably and honourably for 20 years as a solicitor, is no longer able to support. The reports in various places of the appellant having been found guilty of appropriating clients' money have been particularly distressing.
53. Mr Kilshaw, in his oral observations to this court, expressed his regret for what has occurred. He described it as an innocent mistake from which he had not benefited and subsequent events were outside his control. He has suffered a great deal of stress and heartache. He is not a dishonest person, but he did not feel that he could pay the fees to an expert who was himself dishonest. He invited us to take into account, as I do, the submissions made to us orally and in writing by his wife.
54. Those written submissions additionally draw attention to the expressions of surprise, regret and dismay by those who know Mr Kilshaw, and particularly those for whom he has acted, at the fact that he has been struck off. The sentence of striking-off, it is said, is disproportionate to the conduct of which Mr Kilshaw was found guilty by the Solicitors Disciplinary Tribunal.
55. As I said at the beginning of this judgment, this is a sad case. But in my judgment it is impossible to say that striking-off was too serious a punishment. The conduct of which Mr Kilshaw was found guilty by the tribunal, in circumstances in which, as it seems to me, having regard to the lack of dispute as to crucial factual matters, Mr Kilshaw's contribution, had he attended the hearing, could have made no difference, show that, over a substantial period of time, he had applied for and received some 75 payments of money due to Mr Chaplin. The Solicitors' Accounts Rules are directed at the avoidance of intermingling of monies belonging to clients with those which belong to the practice.
56. In this case intermingling occurred over a substantial period. It is unavoidable to conclude that it was an intermingling which benefited Mr Kilshaw because of the beneficial impact which it had on the size of his overdraft and the extent to which that overdraft was permitted.
57. In those circumstances, for my part, I would dismiss the appeal in relation to the striking-off.
58. MR JUSTICE FIELD: I agree with all that my Lord, Lord Justice Rose, has said and add only a few brief observations in deference to the detailed written submissions Mr Kilshaw has served and the well-argued submissions that Mrs Kilshaw has advanced today.
59. I am in full agreement with Lord Justice Rose's conclusion that the appellant has not established any grounds for interfering with the SDT's discretionary decision not to adjourn the hearing held on 23rd July 2002. The application for an adjournment came very late and was based on very limited medical evidence. The tribunal were entitled to conclude that the medical evidence was insufficient to show that the appellant was unfit to attend. In the circumstances of this case the tribunal were not, in my judgment, bound to adjourn to enable the medical situation to be clarified. Whether it did so was a matter of discretion. It cannot be said that they exercised their discretion in such an unreasonable and unfair way that their decision cannot stand.
60. Turning to the question of penalty, as the SDT observed, the Solicitors' Accounts Rules in issue in this case were designed to protect the public. The appellant was well aware of what those rules require. The office account was very substantially overdrawn and for a considerable period of time. There was an obvious risk that if the disbursements payable to Mr Chaplin were paid into that account they would not be available to be paid out as disbursements or to be repaid to the Legal Aid Board. There was no obstacle to the appellant in good time opening a client account or instructing the Legal Aid Board to withhold the disbursements that had been claimed in respect of Mr Chaplin. Instead he did neither of these things. The breaches of the Accounts Rules were, accordingly, entirely avoidable and they were serious. As Lord Justice Rose has observed, the result of these breaches was that the appellant personally benefited.
61. It is of great importance that the Accounts Rules are scrupulously complied with and a breach of the quality that has occurred in this case was bound to attract a severe sanction even though dishonesty was not alleged. In my judgment the penalty imposed by the SDT was not disproportionate. On the contrary it was well within the margin of appreciation that must be accorded to the SDT.
62. Accordingly I too would dismiss this appeal.
63. MRS KILSHAW: Why is Mr Chaplin not in this court? Why has Mr Chaplin never been charged? It was not just one case, my Lord, you are talking about near enough three quarters of a million pounds that Mr Chaplin took off the Legal Aid Board. Why is he not in the court?
64. LORD JUSTICE ROSE: Mrs Kilshaw, I cannot answer that question, whether or not he ought to be is a matter for somebody else.
65. MRS KILSHAW: My family has no future, my son has no future and this court has just condemned my family. My son is under psychiatric care, cannot attend school, and now my husband cannot work. What more does this British court want from my family? To lay down our lives and die? Is that what this court wants because that is what this court is doing to my family, killing it. My husband has never been dishonest, never has been dishonest and I think it is a travesty that people can sit there and call him dishonest but do not know him. They have never met my husband, do not know how he worked, how he operated, he would not steal a penny from anybody, but there are hundreds and thousands of people like Chaplin who stole from the Legal Aid Board. Why is he not in court? He got away with three quarters of a million pounds of fraud and no one seems to want to know, but my husband, he is the dishonest one. Well, he is not, and you have it wrong. You can think what you want, all of you in this court, because my husband is not dishonest.
66. LORD JUSTICE ROSE: Thank you very much Mrs Kilshaw.
67. MR WILLIAMS: My Lord, I have to make an application for costs.
68. MRS KILSHAW: Make what you want, because you will not get it, because I do not have any money. Make what you want. I am leaving the court, my Lord.
69. LORD JUSTICE ROSE: Thank you Mrs Kilshaw. It would seem, Mr Williams, that such an order is not likely to be met and it may be that it is not an order which ought to be enforced without leave of the court.
70. MR WILLIAMS: My Lord, I was going to say, whether Mrs Kilshaw remained or not, that given the financial circumstances my clients were very sensitive about the question of any enforcement. If my Lord was minded to be make an order, not to be enforced without leave, then I could readily understand that, but I must seek an order, please, to be assessed by the court.
71. LORD JUSTICE ROSE: We shall make an order that the appellant pay the respondent's costs, to be assessed, but that will not be enforced without the leave of the court.
72. MR WILLIAMS: I am obliged.