Hard on the heels of the publication of the Rock Review, which we reported on here, comes an example of the type of behaviour from a landlord’s representative that Baroness Rock criticised in her report. The case involved a solicitor who engaged in what he described as “sharp practice” when he served notices to quit in different forms and by different means on the 82 year old tenant of an Agricultural Holdings Act (AHA) holding. The scheme he devised was a “ruse” to try to get what is known as a bare notice past the tenant undetected so as to “trick” him into missing the opportunity to serve a counter-notice and thereby put the landlord in the position of being able to apply to the Agricultural Land Tribunal for Wales (ALTW) to terminate the tenancy.
The tenant asked the ALTW to find that the service of the notice in question had been “procured either by fraud or by misrepresentation” and that all of the notices to quit were a nullity. The ALTW proceedings were stayed pending the outcome of a claim that the tenant had brought in the High Court in Wales which sought a declaration that all the notices to quit were invalid and of no effect because the landlord “acted fraudulently in instructing its solicitors to serve the notices in the manner in which they were served and because the manner of service rendered the notices misleading and insufficiently clear and certain to have effect.”
The landlord failed to serve a defence to the claim within the prescribed time and, on 22 July 2022, having heard no evidence in respect of the substance of the claim and having made no findings of fact, the Court declared that the offending notice was invalid and of no effect to terminate the AHA tenancy.
The conduct of the landlord’s solicitor was referred to the Solicitors’ Regulation Authority (SRA) which referred him to the Solicitors’ Disciplinary Tribunal (SDT). In his defence, the solicitor submitted that he had merely followed a long-established practice in his field of agricultural law of serving multiple, different, notices to quit on tenants in the hope that one or more of such notices might be overlooked and a counter-notice not served in respect of the overlooked notice. The SDT noted that leading practitioners’ textbooks on agricultural law and caselaw treated the practice of serving multiple notices as standard and commonplace and the SRA accepted that this is, indeed, an established practice.
The SDT judgment, which was published on 6 March 2023, was critical of the solicitor’s conduct. It said that he was a highly experienced solicitor who was an expert in his field of agricultural law and that, whilst he had followed a practice which he had regarded as commonplace in his field, as he himself acknowledged with the benefit of hindsight, his actions amounted to a “spoof”, “trick”, “ruse” and “sharp practice” – an attempt to “disguise” the service of differing multiple notices to quit. He had thereby sought to take advantage of the tenant, whom he knew to be elderly. The tribunal concluded that the misconduct was such that he had fallen far short of the standards of integrity, probity and trustworthiness expected of a solicitor and ordered him to be suspended from practice for 12 months. Some commentators think that he got off lightly.
Although those practising in this field will recognise the legitimate deployment of ruses de guerre to seek to create advantage on behalf of a client, this case may serve as a useful reminder to some not to slacken the ethical professional backbone that must inform and underpin all such deployments.
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