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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Scalora (A Solicitor), Re [2009] EWCA Civ 928 (16 January 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/928.html Cite as: [2009] EWCA Civ 928

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		Royal Courts of Justice Strand London, WC2
		16th January 2009

LORD JUSTICE WALLER: Yes.

MS HEARNDEN: My Lord, I appear on behalf of the petitioner, Mr Scalora, my learned friend Mr Murray on behalf of the regulator, which will be referred to as "the SRA" throughout. My Lord, can I begin with a few matters of housekeeping just to check that you have everything?

LORD JUSTICE WALLER: Yes.

MS HEARNDEN: There ought to be a bundle which is paginated, but a number of additions have been made to it since it was first delivered to court. At the front of the bundle before the first…well before the first tab, your tab "the petition"…

LORD JUSTICE WALLER: Yes.

MS HEARNDEN: … are the submissions of the SRA. There have also been a number of insertions behind page 155. Those are number 155A through to D and those relate to the …

LORD JUSTICE WALLER: Well, I am not sure I have got those.

MS HEARNDEN: Ah.

LORD JUSTICE WALLER: There were two bundles, so far as I was concerned, and I wasn't absolutely sure which one I should follow since they both seem to be the same, but one appeared to have a few more in so this is the one I have used, which is Solicitors Regulation … Well, it doesn't say very much. It isn't "Petition and Bundle", which was prepared by your solicitors …

MS HEARNDEN: Yes.

LORD JUSTICE WALLER: It's a different bundle which has more in it. It has everything but neither of them have 155A to D

MS HEARNDEN: Right, well, my Lord. Perhaps the simplest thing is if I hand those up. They relate to the first instance, sorry the review panel's decision. While I hand those up, I understand there was a request that came through from your clerk for originals of academic qualifications.

LORD JUSTICE WALLER: Yes.

MS HEARNDEN: I have put those in a plastic file. They start from high school and work through chronologically I hope…

LORD JUSTICE WALLER: Right..

MS HEARNDEN: …going through to the Gaming Commission documents as well at the back

LORD JUSTICE WALLER: Right. Has Mr Murray had a chance to look at those?

MS HEARNDEN: No, forgive me.

LORD JUSTICE WALLER: Well, in that case it's probably better that you look at them and see that they all match.

MS HEARNDEN: If I continue briefly, my Lord, with the additions while Mr Murray is looking at those.

LORD JUSTICE WALLER: Yes.

MS HEARNDEN: That should be at 295, the Training Regulations…

LORD JUSTICE WALLER: Yes.

MS HEARNDEN: …and behind that an authority of a decision of the Master of the Rolls, Jideofo. Forgive my pronunciation, I referred to Begum to avoid my blushes. Also, Dr Westaby's report, who is the consultant.

LORD JUSTICE WALLER: Now, I have seen these documents.

MS HEARNDEN: I am grateful, my Lord. I simply wanted to check because they came in after the bundle …

LORD JUSTICE WALLER: I have seen them.

MS HEARNDEN: I am grateful. And the last addition was a reference from Douglas Law, a solicitor in Australia, which is a character reference, which is in at page 289 or I hope it is at least.

LORD JUSTICE WALLER: Douglas Law?

MS HEARNDEN: Yes.

LORD JUSTICE WALLER: Yes, I have seen that too. And obviously I have read the petition and I have read the statement. I would not pretend to have read every page of the medical records but I am assuming really that there is no dispute about his condition, Crohn's disease etc, and the effect it had on him in a sense that he was in hospital or whatever. Nobody appears to dispute that.

MS HEARNDEN: My Lord, I think that the area of dispute in respect of the medical evidence is whether it's a sort of peripheral issue which is simply background to the claimant's experiences in early 2000 or whether, as on the petitioner's case, it is central to his state of mind and his ability to make decisions and the quality of those decisions, and the extent to which his actions can be used to judge his character generally, or whether, as on his case, this is such an extraordinary circumstance he found himself in that his faculties were not as they ought to be. But my Lord …

LORD JUSTICE WALLER: There is no, there is no suggestion that his faculties were inhibited

MS HEARNDEN: Well, my Lord.

LORD JUSTICE WALLER: I mean clearly he was very ill

MS HEARNDEN: Yes.

LORD JUSTICE WALLER: And he was very ill during 2004 and 2005. Then he fills in the relevant form in 2006 at the beginning of 2006. Within a very few days, he is actually attending an interview with (inaudible).

MS HEARNDEN: He was also in A&E, my Lord.

LORD JUSTICE WALLER: But I mean there is no suggestion that he didn't understand what he was doing when he filled in the form. No suggestion of the medication was responsible for him not understanding the form that he was filling in

MS HEARNDEN: Well, my Lord, I think it is a position somewhere between the two. The petitioner's case is that at the end of what was a period of extreme distress and repeated desperate medical situations, he found himself exhausted and depressed at the impact his health had had on what should have been a very promising career. That unhappy state in January 2006 is relevant to his actions and before I address you on January 06 itself, if I could just ask the court to turn up Dr Westaby's report, which is at 291 in the bundle. Dr Westaby, as you will see from the first paragraph of his statement, was at the hospital at Chelsea and Westminster where the petitioner was being treated between November 2002 and November 2005, after which point he changed hospitals and he speaks to the history running from November 2002. In the second page of his statement at page 292 he starts off "there was no doubt that Mr Scalora had a chronic relapsing disease of considerable severity". He goes on half way down the paragraph to say "There continued to be episodes of disease activity requiring multiple attendances at the Accident and Emergency Department at Chelsea and Westminster with several short admissions to the ward. Comments during these attendance and admissions describe a man who was clearly debilitated by his symptoms and was experiencing considerable pain. There was no doubt that the severity of the information, particularly in the sigmoid colon and rectum, was a cause of his recurrent episodes of pain." And he goes on to describe further symptoms and then describes the medication that the claimant required in that period. He goes on to describe, in 2004, "acute abdomen with evidence of large bowel perforation". That is the surgery it was required to perform, removing indeed a large part of the large bowel and requiring colostomy bag. He goes on to say that in 2005 there was further evidence of disease activity requiring aggressive pharmacological treatment, including the reintroduction of the injections that the petitioner was having. He goes on to talk about several re-attendances, tramadol, morphine and some fairly considerable medication needs. He was last seen by his clinician in October 2005 after which point he moved hospital. So he had a very good picture of the previous period in the petitioner's life and the extraordinary difficulties his health presented.

His conclusion in the final paragraph of page 292: "I have absolutely no reservation in confirming the severity and debilitating nature of Mr Scalora's inflammatory bowel disease. Both from the clinical notes and my own personal recollections this was a gentleman who was recurrently in constant pain and distress. He had developed a considerable opiate requirement to manage his symptoms and intermittently was requiring hypnotics to manage his disturbed sleep. I have no doubt that his opium requirements would have resulted in a certain degree of dependence which in itself can cause considerable stress and anxiety if the opiates are either tailed off or not available. For much of the period that I knew Mr Scalora he could not have been considered fit to make decisions about the major issues in his life. He goes on to say that it's for Mr Scalora to confirm the exact status of his opiate requirements at the time ie January 2006.

LORD JUSTICE WALLER: Yes, there was a medical report before the review tribunal, wasn't there that yes, emphasised the serious illness that he had and undoubtedly he did have but also said something to the effect that it wouldn't explain…well I think the review panel in its decision mentions. Right?

MS HEARNDEN: My Lord, yes. There was …

LORD JUSTICE WALLER: Can you just tell me where that medical report is in the papers?

MS HEARNDEN: It's 164. It's Stephanie Woodward, who was the pain nurse. The document starts at 163. My Lord, my guess is the statement that you are referring to …

LORD JUSTICE WALLER: Yes, it's at 164. "These certainly do not fully explain the behaviour nor are they intended to excuse the same."

MS HEARNDEN: Well, my Lord, the review panel certainly placed some reliance on the … "doesn't wholly explain" and seemed to disregard entirely the contribution made by the petitioner's health to his decision-making. Ms Woodward …

LORD JUSTICE WALLER: It's not about decisions though. I am not understanding the … I hardly understand the point. What does it, how does it … excuse the deliberate filling in of the form inaccurately?

MS HEARNDEN: My Lord, the Regulator's position is that this is a clear case of dishonesty. Now what appears from some of the case law in this area and for example the Begum case, which is in the bundle, is that, as for example in that case, we have two women who make calculated decisions to withhold information. They say, for example, I wanted a fresh start and that's why I didn't disclose. So they sat down and made a calculated risk assessment about lying or not lying …

LORD JUSTICE WALLER: Not disclosing criminal convictions.

MS HEARNDEN: Exactly my Lord. So there is an underlying dishonesty and then we have an additional layer of failing to disclose and that is a common type of dishonesty seen in these sorts of cases. Whilst your petitioner concedes entirely that the statement made was untrue, he did not have the GDL when he filled in the form ..

LORD JUSTICE WALLER: That he wasn't deliberately dishonest?

MS HEARNDEN: Well, his position is that he did not deliberately mislead. He didn't sit down and think …

LORD JUSTICE WALLER: How I mean … the fact he can say that now is itself worrying, isn't it?

MS HEARNDEN: Well my Lord, in my submission no. It's borne of an individual looking back on an extremely difficult period of his life and trying to understand the position he found himself in and the actions that he took. He wouldn't in good conscience today ever endorse a decision by himself or anyone else to declare on the form something which he knew to be untrue but what, I hope, is clear from his witness evidence is that the degree of distress that he found himself in and, if I can use the colloquial term, the rock bottom position he ended up in meant that his confused and muddled state meant that he elided the question: "What qualifications do you have?" with "What qualifications will you have". That's why he talks about overconfidence and hoping to get his life back on track and trying to salvage a professional future. In a sense he has deceived himself when completing the form about what the truth is and, if I can put it very simply, this is not a rational man making a rational decision and that's why, my Lord, the petitioner's position is that he ought not to be judged…his character, his underlying personality should not be judged entirely on the basis of actions in January 2006 because they are not parts of his character that he would now recognise. That, in my submission, is played out by the references that you see from a number of individuals which start at 271 from the six individuals who have known him in various contexts, both professional and personal.

LORD JUSTICE WALLER: Are these the ones he has produced for as it were today ?

MS HEARNDEN: Yes , these were not before …

LORD JUSTICE WALLER: The ones that he produced previously, he didn't inform at least one of them of what the allegation was even…

MS HEARNDEN: Well, my Lord, he addresses that in his witness statement he concedes that in all cases he was not as frank as he might have been but there was a …

LORD JUSTICE WALLER: Then what is the situation at that stage?

MS HEARNDEN: Sorry, before the review panel?

LORD JUSTICE WALLER: Well, I mean he is not being frank with his referee.

MS HEARNDEN: Well, my Lord.

LORD JUSTICE WALLER: Is that because he is still in a muddled state of mind?

MS HEARNDEN: Well, my Lord, Mr Lamar was aware, as he says in his supplemental statement of what's going on, as was Lady Gibson, who makes it clear that she was giving a character reference and was given a standard form. In terms of Duncan Calow, yes it was a professional reference and he wasn't aware of the full context, but he explains in his supplementary witness statement at 264 that he had simply made assumptions that his reference was sought to follow on from a previous reference given to the Law Society and…

LORD JUSTICE WALLER: Why didn't Mr Scalora tell Mr Calow, who was going to be relied on as a character witness, the circumstances?

MS HEARNDEN: Well, my Lord, you have the claimant's witness statement on that. He says his embarrassment and discomfort describing his medical conditions, and conceding that the effect those had on him inhibited his discussions with Mr Calow, whon he had only ever known in a professional context and the reference there was, on its face, described as a professional reference dealing with his suitability for the profession. Your petitioner acknowledges now, and I asked him before we came in "What would you do differently?" and he said "Well, I would be frank. I would say, I would tell them everything up front."

LORD JUSTICE WALLER: You see the slightly worrying thing is one obviously is sympathetic to the fact that he suffered this very serious disease but if the effect of suffering from this disease is that on occasions he either deliberately lies or is not frank, that does not make him suitable to be a solicitor.

MS HEARNDEN : : Well, my Lord, if I can addressed that point by saying that, having looked at Dr Westaby's report and the chronology outlined between 2002 and 2005, the number of surgical procedures done in emergency, the severity of some of those surgeries, the need for a full colostomy (inaudible).

LORD JUSTICE WALLER: That's then, but why is he not even frank with his referee in 2009, probably 2008?

MS HEARNDEN: 2008. My Lord, if we start at 2006 we see a position where matters have deteriorated in the petitioner's life. His career is entirely off track. He is under financial strain and he is exhausted and tired by constant need for pain management, repeated surgeries and, as we see from the A&E reports from the 31 January 2006 at page 115 there are concerns, unsurprisingly, about his dependency on pain medication. The discharge summary says "Concerns re-use of morphine. Has oromorph at home and is requesting ++ whilst here." Now that's two or three weeks after the form was completed, so clearly this is still a period of some turmoil. Looking forward from 2006 and the fact that the claimant is perhaps desperately and not entirely successfully trying to salvage a professional career and, in doing so, is allowing optimism to cloud his judgment and is allowing him to elide what the qualifications he has with what qualifications he will have. Going forward, yes, the petitioner concedes that there is more he could have done to unravel what had happened but, my Lord, his actions thereafter speak to the fact that he himself did not think the game is up, I have been caught out, I have told a lie and I have been found out. His focus, as is evident from the letters he writes to Linklaters and the submissions he makes to Ms Fearn and subsequently to the review panel, are focussed on the devastating impact that his health has had on his ability to study and to make the qualification deadlines that he needs to. That, my Lord, is reflective of the fact that what he did was not a calculated deliberate deception. It is not with the intention of conning, if I can put it that way, Linklaters into giving him a training contract. It is simply willing that he will have got the qualification in time to start and, yes, he concedes that that was a bad decision, one he ought not to have made and one that is not desirable at all for an individual in a position of trust and responsibility, but it is one he says is not of his character. Addressing the point that my Lordship made about whether his disease means that subsequent decisions are going to be impaired, since 2006, gradually improving, his condition has stabilised. It is well managed. He has regular injections of Infliximab in order to keep his condition in a stable state and that is played out by the professional responsibilities he has had in the subsequent period at Fremantle Media and at Two Way Media, both of which involve considerable responsibility, both of which are positions of trust and also involve the regulation of a different professional body, namely the Gaming Commission, whose stringent tests he has complied with. That, my Lord, speaks to the fact that he has been able to perform professional duties with the utmost integrity because his condition is well-managed and, my Lord, having experienced this episode, my understanding would be that certainly if things got so bad again, the petitioner would be well aware of the impact his health could have on his decision-making and would approach professional duties with an enhanced awareness of responsibility and knowledge that he may not be in the best state to be acting professionally. That is why, my Lord, he says that you can trust that allowing him to go forward to complete the LPC, which of course includes a great deal of training about the ethics and professional responsibilities of solicitors, going through to a training contract if he was able to secure one for two years under a principal with all of the training that that includes, that he is a man of character to take on board the lessons learnt involved in this matter and that he would no doubt gain in subsequent parts of his legal training and is a man of character and suitability to go forth into the profession. That, my Lord, is certainly what is played out by his references which all speak to a man whose character normally, if I can put it that way, is of the utmost integrity and that this is an episode that is out of character and the circumstances are so extraordinary that the petitioner should not find himself in a similar position. But, my Lord, I would stress that the submissions I have made about state of mind at the time should not be read as attempting to suggest that he did the right thing. He appreciates that he did the wrong thing. What those submissions are designed to do is draw a distinction between calculated deception, where one weighs up the risks of telling a lie with the benefits that one might gain, as is betrayed by the sort of cases like Begum and Evans, and a man who is in such a position of ill health that he is not acting rationally and that's why, when asked subsequently to explain and justify what he did and why, the petitioner has not found it easy, because it is not a decision that is susceptible to rational interpretation precisely because of the muddled confused state and the desperation that he found himself in come January 2006. My Lord, if there is anything in particular that I can assist with.

LORD JUSTICE WALLER: No, that's very helpfully and very powerfully put. Thank you very much.

You have put in a very long, not long that's an unfair thing to say, a very detailed submission and in truth I don't need to trouble you. Thank you very much.

Judgment

1. There is before me a petition from Mr Filippe Scalora, seeking to have a decision of an SRA review panel set aside. An SRA adjudicator decided by a decision dated 28 April 2008 that Mr Scalora's student membership should be cancelled. That decision was confirmed by a review panel on 10 December 2008. Mr Scalora appeals to the Master of the Rolls under Regulation 32(3)(ii), and the Master of the Rolls, as he has the power to do under section 73(2) of the Courts and Legal Services Act 1990 has delegated his authority to me.
2. What the petition is concerned with is an alleged act of dishonesty and perhaps it is worth reminding ourselves of the correct approach to character and suitability.It is only necessary to refer to the case of Jideofo v the Law Society No 6 of 2006, of which there is a transcript with the papers, the transcript being dated 31 July 2007. It was in that case that the Master of the Rolls approved certain principles. At paragraph 16: first, the test of character and suitability is a necessarily high test; second, the character and suitability test is not concerned with punishment, reward or redemption but with whether there is a risk to the public or a risk that there may be damage to the reputation of the profession; and, third, no one has the right to be admitted as a solicitor and it is for the applicant to discharge the burden of satisfying the test of character and suitability. The Master of the Rolls went on, at paragraph 17, to say:

"I accept the submission that the facts of individual cases are critical. Much depends upon the nature of the wrongdoing, dishonesty or other untoward conduct and upon the particular part played in it by the person concerned. This is I think especially so in considering whether the reputation of the profession would be damaged by admission or re-admission. Thus offences of dishonesty have been correctly regarded as of the greatest importance. The reputation of the profession relies upon the honesty and good faith of its members. As Sir Thomas Bingham MR put it in Bolton, in cases of proven dishonesty the solicitor will almost always be struck off, however strong the personal mitigation. Moreover, it was in this context that he used the striking phrase that the purpose of the strict approach in Bolton is to maintain the reputation of the profession as one in which every member of it, of whatever standing, may be trusted to the ends of the earth. Thus, a solicitor who is struck off for dishonesty may well not be re-admitted however much he can show that he is no longer a risk to the public."

As the language of the Master of the Rolls showed in that case, the principle that he is there developing applies as much to admission as to readmission and thus obviously applies to the situation with which this petition is concerned, which is the enrolment of the petitioner.

3. So with that introduction it is convenient to turn to the facts of this case. Perhaps the starting point is to go back to September 2003 where Mr Scalora commenced a two-year part time graduate diploma in law, the GDL, at the University of Westminster. If he had successfully completed that diploma, as I understand it, he would have completed it in the summer of 2005. Mr Scalora was, however, unfortunately ill, extremely ill, during 2004 and was unable to complete the first part time year successfully. His illness is Crohn's disease, and hospital treatment resulted in him being unable to sit his end-of-the-year exams in 2004. He was further unable to sit his end-of-year exams during the resit period in September 2004, and it appears that applications to the university made by Mr Scalora to sit the exams during 2005 were unsuccessful, although Mr Scalora says that he was not in fact aware of that until after the end of 2005. But in any event, one consequence of this was that Mr Scalora was only ever fully enrolled on the GDL for the first of his two years and he never obtained the GDL diploma at the University of Westminster.
4. In January 2006 Mr Scalora applied to Linklaters for a training contract. That contract would have commenced in 2008. Mr Scalora had to fill in an application form providing details of his education. On that application form he stated that he had attended the University of Westminster and that the course started on 1 September 2003, and it stated that it ended on 1 June 2004. That application form further stated under the heading of "Qualification" that he had achieved a pass in the GDL in July 2004. That statement on the form was untrue. He had not passed the GDL in July 2004 and indeed he never did pass the GDL.
5. On the basis of the application form he was interviewed by Linklaters and in reliance on that form they offered him the training contract which would have commenced in 2008. In the event in September 2006, Mr Scalora emailed a Miss Noble at Linklaters and informed her of the following. What he said in the e-mail was that:

"At the time the final GDL examinations took place in 2004 I was in the Chelsea Westminster hospital recovering from emergency major bowel surgery."

6. Pausing there, though I am not sure this has been explored in any detail, that itself does not seem quite accurate in that it would not have been the final examination. In any event what he explains there is that his application to take the exam had been unsuccessful. He suggests that he had spoken to a Miss Soo in April 2006 and explained the situation to her. There is no indication, at least in the papers, that the explanation given in April 2006 explained the full situation. In any event, what thereafter happened was that Linklaters took up the point that he had filled in the application form inaccurately and they refused his training contract and they reported the matter to the SRA.
7. That resulted in a Miss Fearn of the SRA investigating the matter and, in the result, his student membership was cancelled. She gave her reasons for that, saying that she did not consider that Mr Scalora was willing to comply with the legal and regulatory requirements as he had failed to inform Linklaters that he did not have a GDL. Instead he confirmed by way of his curriculum vitae to them that he had been awarded a GDL on 1 June 2004. She continued that in her view there was a risk that Mr Scalora's continued student membership of the Law Society would diminish the confidence in the solicitor's profession.

"He has been responsible for dishonest behaviour in that he provided Linklaters with false information in order to obtain a pecuniary advantage in the form of a training contract. In submitting his application form and applying for the training contract, Mr Scalora agreed that the information he provided was true and accurate. He also understood that any misrepresentation could be cause for dismissal or rejection. In accordance with the guidelines on the assessment of character and suitability, I am confident Mr Scalora is not of suitable character to be granted student membership. I consider he is a risk to the public and the reputation of the profession at this time."

8. Mr Scalora appealed that decision. A review panel investigated matters. During that investigation there was an interview and the details of that interview are recorded at page 155A and B of the file before me. It is recorded in that interview that Mr Scalora said this:

"I made a mistake and there are really no excuses for it. However I am now trying to make it right. I did tell Linklaters about the issue with my qualifications. They would not have found out that I did not pass my GDL otherwise. It was not real deception."

9. It is doubtful whether it was correct to suggest that Linklaters would not have found out about the deception in the absence of a confession. The likelihood is that they would have wanted to see his qualifications before he actually commenced his training contract and one suspects that the reason for bringing the matter out at that stage was to prevent Linklaters finding out on their own .But, however that may be, to say it was not a real deception seems, at least prima facie to show a lack of appreciation of the seriousness of what had taken place.
10. He accepted in that interview that it was not excusable, but one of the things he said was:

"I was just ticking box. I made a wrong assumption with regard to the GDL. It was an online form; I just ticked the wrong boxes"

11. That, first of all, is simply not accurate when one looks at the form. Furthermore, it is somewhat inconsistent with the position which he has taken up since that interview and indeed inconsistent with the main thrust of what he now puts before me in his petition. In any event the SRA review panel dismissed the appeal by a decision dated 10 December 2008 and they gave their reasons for so doing. They included (a) that he had confirmed, in response to a question from the panel, that he had no real excuse for what he claimed falsely and in full knowledge was untrue; and (b) that the panel had had regard to the opinion expressed in the medical report handed over at interview, that the medical condition did not fully explain Mr Scalora's behaviour. They also referred to his character references and refer to the fact that, certainly in relation to one such, he had not revealed the course of conduct that was in issue and had excused that by suggesting that they were busy professionals having no real time to read into the details of the case and of him being embarrassed about the circumstances.
12. The panel also expressed concern that Mr Scalora appeared not to appreciate his lack of frankness towards certain of his referees also raised character and suitability issues, and their final conclusion was:

"…the panel considered that Mr Scalora had not demonstrated that he met the character and suitability guidelines and there could not be '…a well founded confidence' that he was 'a person of unquestionable integrity, probity and trustworthiness' and so they concluded that he failed the test in Bolton…"

13. With his petition Mr Scalora has put in a statement in which he seeks to make various points. He says that he now acknowledges and has always acknowledged that the statement that he made in that application form was incorrect, but he still maintains that he neither lied nor deliberately attempted to deceive Linklaters. The explanation, emphasised by Miss Hearnden who appears for him today, is that his illness, very severe illness, is what caused him to say things that he would not otherwise have said. In that context there has been produced a further medical report by a Dr Westaby, and that is at page 291 of the file. That certainly sets out the very serious nature of the condition from which Mr Scalora suffered. In that report there is no dealing, with any precision in any event, with the way that might have affected his ability to know whether he was being truthful or otherwise when filling in the form. Of course in the report that was before the review panel, as referred to in their reasons for dismissing the appeal, there was the statement by Stephanie Woodward. She having spelt out the serious nature of his condition and all that he was going through in 2004 and 2005, said that those circumstances "do not fully explain Mr Scalora's behaviour nor are they intended to excuse the same".
14. In his petition Mr Scalora is saying that there was no premeditation. He was not, he says, deliberately lying, but:

"I honestly believe that when completing that application form what I had in mind was that I had enrolled with the university of Westminster for the course and I would have the GDL by the time I was due to start any training contract with Linklaters, should they accept me. I am an intelligent person. As can be seen from my academic record, I am an achiever, indeed possibly an overachiever. I am used to expecting that I would be able to deal with the educational courses without problem, and there would have been no hesitation in my mind to think that I would obtain the GDL without problem once I was well enough to sit the examinations,"

15. Again, in one sense that explanation is itself troublesome, as is pointed out in the submissions put in by Mr Murray on behalf of the SRA. Of course, it was possible to think that he might pass the GDL at a later date, but that simply does not provide any excuse for falsely claiming that he already had. It is right to say that Mr Scalora also accepts that there are other inconsistencies in the application form and points out that those in fact have not been spotted by Linklaters, but he explains those errors, again, by reference to his state of mind and by an explanation as to what he expected to achieve.
16. The petitioner also suggests that he did not gain anything as a consequence of completing the form as he did. This is said in paragraph 24 of the petition to be because Linklaters, as do other firms, regularly offer training contracts to individuals who have not at the time they apply for them passed the GDL. Again, that points to a serious lack of appreciation of what the effect of a deception can be. It is not the point that he might have got a training contract even if he had told the truth, when in fact he was telling a lie.
17. He, as again counsel on his behalf have done, seeks to distinguish his case from cases such as Evans v Solicitors Regulation Authority (No 01 of 2007) and  Begum v Solicitors Regulation Authority (No 11 of 2007) It is said that in those cases they were cases of someone taking a deliberate decision not to reveal for example as in the Begum case a conviction for theft. It is submitted that, so far as Mr Scalora was concerned, this was not a deliberate and rational withholding of information; this was a case in which he was overconfident about passing the GDL and a case in which he was confused as a result of his ill-health and continuing medication. So, it is said, there is not the same concern as there would be in a case such as Evans  and Begum.
18. In my view there is serious doubt as to whether the circumstances are not precisely equivalent to those in Begum. I will come in a moment to the question of how the illness affects the position but, on any view, as it seems to me a deliberate decision was being taken to misinform Linklaters, possibly in the hope that by the time he came to start the training contract he would have passed the GDL but, on any view, a deliberate decision being taken.
19. He also relies on further character references which have been obtained in the meanwhile and certainly he has produced good character references. I have already referred to the fact that he has this further medical report but that it does not, as it seems to me, focus on the question whether it would provide a reason or an explanation for what appears to be a deliberate decision to put false information in the application form. He suggests now that his health is under greater control. I have great sympathy with Mr Scalora suffering from the condition from which he does suffer but, as I put to Ms Hearnden during the course of the hearing today, if this condition can lead to Mr Scalora behaving in the way that he did in relation to filling in this application form, that in itself provides a risk and she, in her submissions, referred to the fact that there was now a greater control of health. One problem with that is that it was very much later in time, 2008, when in obtaining references Mr Scalora did not reveal what had happened to one of his referees. That itself poses questions about his judgment and integrity even at a time when his health was more under control, as the review panel pointed out.
20. The SRA, in detailed submissions, summarised their position in this way. They say, first, the petitioner must have acted dishonestly when he completed the application form and they say, in accordance with the general principles set out above, personal mitigation is therefore all but irrelevant. They submit that, in any event, the facts relied on by the petitioner to excuse his inaccurate completion of the application form do not constitute a valid excuse. They say the petitioner has provided inconsistent explanations for his conduct since the commencement of the investigation. Accordingly, they say that the petitioner has not demonstrated that he has the character and suitability necessary to be a solicitor and they submit therefore the appeal should be dismissed.
21. Taking the matters reasonably shortly. What they say is that the medical history is what the petitioner now focuses on but, they submit, that simply cannot provide an excuse for lying. They say that the petitioner still does not accept that he lied or deceived and they say that is simply unacceptable and indeed shows an inability to accept the seriousness of the position. They refer to the fact the petitioner at one stage talks about muddled logic, but they point out that he does not say that the medication meant that he did not understand the form or did not understand the question he was being asked or did not understand the answers that he was giving. Indeed there appears to be no medical evidence to support the view that he did not understand what he was doing. They point out that it does not assist matters for the petitioner to say, as if it's an explanation for putting in a dishonest answer on a form, that it was submitted at a time when he was trying to salvage his career. The very fact that that can be stated again raises doubts about the petitioner's judgment and integrity. They say that the fact he can criticise the panel for holding that the untrue statements were made to gain advantage, again shows that the petitioner does not appreciate the seriousness of what happened because clearly, even on his case, i.e. that he was overconfident about what he was going to be able to achieve, the actual statement was made in order to obtain a training contract with Linklaters..
22. The final submission they make is in paragraph 28, which I shall just read out:

"The same attempt to excuse his behaviour by relying on confusion about what the form was asking and overconfidence about eventually passing the GDL appears in paragraph 27 of the petition. The petitioner is attempting to have his cake and eat it. He cannot at the same time claim that he did not understand the question and claim that he did understand it but answered it untruthfully because of overconfidence. The two are inconsistent alternatives, and the petitioner's attempt to rely on both at the same time raises further questions about his integrity."

23. The submissions of the SRA seem to me to be very powerful indeed. The petitioner is, of course, as I have already indicated, someone with whom one must have very great sympathy because of his debilitating Crohn's disease but the evidence establishes the telling of a deliberate lie in order to obtain a training contract. It establishes that the petitioner has never fully faced up to the fact that he deliberately lied in order to obtain that contract and thus the remorse which he suggests that he now has is remorse without the proper acceptance of the very serious dishonesty committed. It is doubtful even now, as one reads the petition, that there is a recognition of the seriousness of the dishonesty.
24. It seems to me that the original adjudicator was right in the view she formed. It further seems to me that the review panel were right in their view and I have no hesitation in dismissing the petition.

Order: Application refused

MR MURRAY: My Lord, there only remains the question of costs. The SRA is seeking its costs of responding to the petitioner. I have a schedule for a summary assessment and a copy has already been provided. My Lord, the SRA is not claiming any costs for its own time. It is only my costs which are being claimed and those appear on the second page of the schedule. I should point out at the outset that the fee claimed is both for attendance at the hearing and also for drafting the written submissions.

LORD JUSTICE WALLER: Have you any comments on …

MS HEARNDEN: My Lord, yes. The power to award costs comes from the Master of the Rolls (Application and Appeals) Regulations. They are in the bundle, and the page in question I want to look at is 159.

LORD JUSTICE WALLER: 159.

MS HEARNDEN: 159. It is actually the last page of the regulations, but they start at 157.

LORD JUSTICE WALLER: Now I am looking at the Training Regulations, that's wrong?

MS HEARNDEN: No, my Lord, it's the Master of the Rolls (Application and Appeals) Regulation 2001. They are in the bundle at 157.

LORD JUSTICE WALLER: Is this your bundle? It probably is.

MS HEARNDEN: Probably, yes. They are certainly in mine.

LORD JUSTICE WALLER: Yes.

MS HEARNDEN: These are the procedural regulations that govern decisions of this kind. Paragraph 14 says the Master of the Rolls may make such order as to costs of any application or appeal as he or she thinks fit, so it is an entirely open discretion, my Lord.

LORD JUSTICE WALLER: Right.

MS HEARNDEN: My primary submission is that there ought to be no order as to costs today. We have an individual who last month completed his GDL exams. He is awaiting the outcome but qualification will now provide little comfort going through to the future. He has done his very best to support himself financially throughout all of this and in the course of his difficult health problems, which the court has observed that there must be sympathy with. When one finds oneself faced with a barrier created because of issues with the regulator there is little one can do except pursue every opportunity and every avenue to rectify matters which the petitioner continues to feel that his aspirations to be a lawyer sadly are no more. To make an order to costs today, my Lord, I would submit does punish him in a way that the case law suggests that sanctions from a regulator ought not to do and that now finding himself unable to pursue a career in the legal profession is simply a sufficient penalty. I would invite you on the basis of the fact that his health, the fact he has been a student (inaudible) to support himself means that a costs order which, whilst in the grand scheme of …

LORD JUSTICE WALLER: He has been in good work though, hasn't he, I mean…

MS HEARNDEN: Yes he has been supporting himself throughout because of course he aims to pay…

LORD JUSTICE WALLER: I mean it's quite well remunerated work?

MS HEARNDEN: I am not sure I know exactly what my client's salary is, but yes he has been supporting himself. But of course there are periods when he hasn't been historically and he has also had to obviously pay course fees …

LORD JUSTICE WALLER: Just to … I looked at Jideofo. We both had difficulty in pronouncing it, but there was no order for costs in that case. What about Evans and Begum? Were there orders for costs in Evans and Begum?

MR MURRAY: Mr Pardoe, who is sitting behind me, says that in those cases there was an agreement between the parties that there would be no order as to costs

MS HEARNDEN: My Lord, yes. I would invite the court to exercise its discretion to make no order as to costs. Whilst, in the grand scheme of the litigation that these courts see, the costs schedule may not be enormous, it's a very substantial sum for a young man and an individual to be faced with paying as the price for having tried his utmost to pursue a career in a profession which he has always dearly wished to do. If you are against me on the general principal point, if I can put it that way, of …

LORD JUSTICE WALLER: My inclination is to feel that he should pay some costs and that without (inaudible) on the bill or anything, one would simply say that he should pay some proportion of it.

MS HEARNDEN: Well, my Lord, I would obviously then advocate for as low as proportion as your Lordship, unsurprisingly, is inclined to make and that if there is to be a cost of today then a very token sum of say £400 to pick a figure out the air, my Lord, would seem to be a fairly substantial amount for a young man to find and write a cheque to the…

LORD JUSTICE WALLER: The next question which has arisen…Oh, do you want to say anything?

MR MURRAY: Only to say well that the costs on the schedule are costs which the SRA has incurred and in my submission there is no reason not to order them in full. It is not an enormous sum.

LORD JUSTICE WALLER: The next question is costs. It does seem that in some cases that no order for costs are made, but this does seem to me to be a case in which it is reasonable that there should be some award of costs and in making my judgment as to what the sum is I am not in any way criticising the bill which has been put in but I am having regard to the likely means of the petitioner and the sum I am going to award is £1,500 as a contribution towards the costs of the Law Society.

MR MURRAY: Would that be plus VAT or inclusive of VAT?

LORD JUSTICE WALLER: £1,500 in a round sum.

MS HEARNDEN: My Lord, if I might ask for 28 days for payment?

MR MURRAY: No objection.

LORD JUSTICE WALLER: 28 days to pay. It is probably convenient to draw up a form of order that you can give to the associate and then it can be handed to me and then everybody knows we have got the right order, alright? Thank you very much

MR MURRAY: Thank you, my Lord.