Court of Appeal
Published January 17, 2007
Simms v Conlon and Another
Before Lord Justice Ward, Lord Justice Jonathan Parker and Lord Justice More-Blick
Judgment December 20, 2006

Findings of dishonesty in proceedings against a solicitor by the Solicitors’ Disciplinary Tribunal were inadmissible in evidence in a subsequent partnership action and it was not an abuse of the process of the court for that solicitor in those proceedings to challenge by way of collateral attack the tribunal’s conclusions.

The Court of Appeal so held in a reserved judgment when allowing an appeal by the defendant, Paul Francis Simms, former senior partner of the Bower Cotton Partnership, from the decision of Mr Justice Lawrence Collins ([2006] EWHC 401 (Ch)) that the claimants, Michael Ambrose Conlon and Roger Harris, former partners of the defendant, were entitled to damages for his fraudulent failure to disclose dishonesty.



Mr Simms in person; Mr Philip Engelman for the claimants.

LORD JUSTICE JONATHAN PARKER said that in February 2004 the disciplinary tribunal had ordered Mr Simms to be struck off the Roll of Solicitors for acting dishonestly. His appeal against that order had been dismissed by the Divisional Court on March 17, 2005.

In this action the judge, who had the tribunal’s findings included in the documentary evidence before him, held on the authority of Hollington v Hewthorn ([1943] 1 KB 587) that those findings were inadmissible as evidence, albeit prima facie evidence, of the facts found. However he went on to conclude that in seeking to contest those findings Mr Simms was abusing the process of the court.

Mr Simms’s case was that the tribual’s findings and those of the Divisional Court were inadmissible and the judge erred in permitting the claimants to cross-examine him on material relating to those proceedings.

Further, he said, the judge was wrong to hold that he was abusing the process of the court by making a collateral attack on those findings.

The claimants argued that the order of a professional disciplinary committee was admissible as prima facie evidence of the fact that Mr Simms had been struck off on the ground of dishonesty.

However Sir Andrew Morritt, Vice-Chancellor, in Secretary of State for Trade and Industry v Bairstow ([2004] Ch 1) was correct to conclude that Hollington remained good law. But there remained the issue of whether in seeking to contest the tribunal’s findings of fact, Mr Simms was abusing the court’s process. In denying the allegations of dishonesty against him Mr Simms was doing no more than continuing to protest his innocence.

There was no good reason why the claimants could not have pleaded and proved specific examples of Mr Simms’ dishonesty rather than seeking to import the entirety of the tribunal’s findings into their pleading.

Further, the issues before the tribunal and those in the present action were not identical. The basic issue for these claimants was whether they had been deceived by Mr Simms into entering agreements with him.

A case of abuse of process by Mr Simms was not made out. Given the inadmissibility of the tribunal’s findings, there was not sufficient evidence before the judge to justify his conclusion of dishonesty in relation to Mr Simms’s past conduct.

Moreover, the trial had been procedurally unfair to him. The judge’s order should be set aside and a retrial ordered.

Lord Justice Ward and Lord Justice Moore-Bick gave concurring judgments.



Solicitors: Bower Cotton

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