Dodgy disclosure but not quite dishonesty

The recent Solicitors Disciplinary Tribunal (SDT) decision in the case of Solicitors Regulation Authority v Nasar Hussain (Case No. 12688-2024) offers important lessons for practitioners involved in personal injury litigation and professional regulation. The case arose from Mr Hussain’s personal injury claim, which the trial judge dismissed on the basis of Mr Hussain's “fundamental dishonesty”. However, the SDT ultimately concluded that Mr Hussain’s conduct, while falling short of the standards expected of solicitors, did not amount to dishonesty.

Background: The Underlying Personal Injury Claim

Mr Hussain, a solicitor with over 23 years’ untarnished practice, represented himself in a personal injury claim following a road traffic accident in June 2019. When preparing his claim, Mr Hussain failed to disclose a pre-existing injury that he had sustained to his left shoulder after a fall in December 2018, to his medical expert, Dr Tanvir, and omitted it from his witness statement and the expert’s report. Both documents alleged that the injuries were wholly attributable to the road traffic accident.

According to the SDT, during the trial of the personal injury claim in April 2021, HHJ Sephton QC found Mr Hussain’s evidence “conflicting and incoherent”, noting significant discrepancies between his account to Dr Tanvir and his evidence in court. The SDT quoted the judge having concluded that Mr Hussain “knew jolly well” his account was false and found him to be “fundamentally dishonest” under the test in Ivey v Genting Casinos [2017] UKSC 67. The claim was dismissed, and Mr Hussain and his daughter (also a claimant) were ordered to pay costs.

SDT Proceedings: Allegations and Findings

Following the adverse judgment, Mr Hussain self-reported to the SRA, triggering disciplinary proceedings. In the Rule 12 Statement, the SRA alleged that, between July 2020 and April 2021, Mr Hussain failed to disclose relevant medical history in his personal injury claim, breaching Principles 1 (upholding the rule of law), 2 (public trust), 4 (honesty), and 5 (integrity) of the SRA Principles, as well as paragraph 1.4 of the Code of Conduct for Solicitors.

The SDT’s analysis focused on two key occasions: (1) when Mr Hussain received Dr Tanvir’s addendum report in August 2020, which still omitted reference to the prior injury, and (2) when he signed his witness statement in October 2020, again failing to mention the earlier fall and asserting that all injuries were attributable to the accident.

The Tribunal found that Mr Hussain had breached his ongoing duty of disclosure, particularly as an experienced solicitor with some prior personal injury expertise. His failure to ensure the accuracy of the expert report and witness statement constituted serious misconduct. However, the Tribunal distinguished between a mere failure to disclose and deliberate dishonesty.

Why the SDT Did Not Find Dishonesty

Despite the civil court’s finding of “fundamental dishonesty”, the SDT confirmed it was not bound to reach the same conclusion. Applying the two-stage test in Ivey, the Tribunal first considered Mr Hussain’s actual state of knowledge. It was clear that he knew of the prior injury and its relevance. The second stage required the Tribunal to assess whether his conduct was dishonest by the standards of ordinary decent people.

Several mitigating factors were referenced during the SDT proceedings including:

• Mr Hussain had disclosed his full medical records to the defendant’s solicitors.
• He had attempted to rectify the expert report by contacting the medical agency twice, although the corrections were not made.
• Dr Tanvir later accepted responsibility for the oversight and apologised.
• There was no evidence of exaggeration of symptoms or fabrication of documents.
• Mr Hussain self-reported the adverse judgment to the SRA and cooperated fully.
• He provided substantial character evidence attesting to his integrity.

On balance, the SDT concluded that, while Mr Hussain’s conduct was misleading and fell below the standards expected of a solicitor, it did not meet the high threshold for dishonesty. The Tribunal also declined to make a finding of recklessness, noting that this was not clearly pleaded.

Sanction and Costs

The SDT imposed a four-month suspension, suspended for two years, and ordered Mr Hussain to pay £15,000 towards costs. The Tribunal emphasised that misleading the court is inherently serious, but that the absence of dishonesty, the isolated nature of the episode, and Mr Hussain’s exemplary career warranted a proportionate response.

Implications for future dishonesty cases

This decision underscores several key points for practitioners:

• Civil findings of dishonesty are not determinative in disciplinary proceedings. The SDT will conduct its own assessment, applying the Ivey test and considering all relevant evidence and mitigation.
• The threshold for professional dishonesty remains high. Mere failures to disclose, even if serious, may not amount to dishonesty absent clear evidence of intent to mislead for personal gain.
• Solicitors must be scrupulous in ensuring accuracy in expert reports and witness statements. The duty of disclosure is ongoing and extends beyond the mere provision of records.
• Mitigation matters. Self-reporting and cooperation are key. When this is combined with an unblemished record can significantly influence the outcome.

This case highlights the importance of rigorous disclosure and transparency in litigation, as well as the nuanced approach taken by the SDT in assessing dishonesty. Practitioners should be aware that while misleading the court is always serious, only the clearest cases will result in findings of professional dishonesty and the most severe sanctions.