SOLICITORS DISCIPLINARY TRIBUNAL

IN THE MATTER OF THE SOLICITORS ACT 1974

Case No. 11470-2016

BETWEEN:
SOLICITORS REGULATION AUTHORITY

Applicant

and
NICHOLAS WILLIAM WEST

Respondent

______________________________________________
Before:
Mr A. N. Spooner (in the chair)
Miss J. P. Devonish
Lady Bonham Carter
Date of Hearing: 14 June 2016
______________________________________________
Appearances
Adam Solomon, barrister of Littleton Chambers, 3 Kings Bench Walk North, London
EC4Y 7HR instructed by Suzanne Jackson, solicitor of Solicitors Regulation Authority, The
Cube, 199 Wharfside Street, Birmingham,B1 1RN, for the Applicant
Peter Cadman, solicitor of Russell Cooke LLP, 8 Bedford Row, London, WC1R 4BX, for the
Respondent.
______________________________________________

JUDGMENT
______________________________________________

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Allegations
1.

The Allegations against the Respondent made by the SRA were that:

1.1

He engaged in inappropriate and offensive email correspondence which was

disrespectful towards women with his client the Premier League between at least
February 2012 and October 2013 using DLA Piper UK LLPs email system. In doing
so he:
1.1.1

Acted in breach of any or all of Principles 2, 6 and 9 of the SRA Principles

2011 (the Principles)

1.1.2

Failed to achieve Outcome 2.2 of the SRA Code of Conduct 2011

(SCC 2011) to provide services to clients in a way that respects diversity.

Documents
2.

The Tribunal considered all the documents in the case including:

Applicant

Application and Rule 5 Statement with exhibit SEJ/1 dated 14 January 2016
Draft of Proposed Agreed Outcome (undated)
Schedule of Costs

Respondent

Answer to Rule 5 Statement (undated)

Exhibits to Answer

Preliminary Matters
Application to amend Rule 5
3.

The parties made a joint application to amend the Rule 5 statement to omit naming
four people identified in that statement and in the exhibits. The basis of this
application was that the Tribunal had jurisdiction over only one of the four identified.
No allegations had been brought against that individual by the Applicant. Neither the
Applicant nor the Tribunal had jurisdiction over the other three named individuals. It
was submitted that it was not necessary for the purposes of the proceedings against
this Respondent to name the other individuals in open court. Two of the individuals
were not party to the proceedings and were not in a position to be represented, give
explanations or defend any comments made against them or indeed admit or deny that
they were the author or recipient of any emails. The fourth individual was not in a
position to defend themselves against any comment that the Respondent could make
against them.

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The Tribunals Decision
4.

The Tribunal considered the papers and the submissions made by the Applicant by the
Respondent. The Tribunal agreed that the individuals should not be named as three of
them were not regulated and none were before the Tribunal and so could not rebut any
comments that may be made about them.

5.

The normal course of action in cases such as this would be to refer to individuals by
their initials rather than their full name. However to do so in this case, which had
attracted some media publicity, would still make those individuals immediately
identifiable. Accordingly the Tribunal directed that for the purposes of the hearing
and this Judgment, the four individuals referred to be fully anonymized by simple
reference to a letter, bearing no relation to their name. In this case they would be
referred to as A, B, C, D and so on.

Application for the content of the emails to be withheld

6.

The parties made an application for the specific content of emails to be withheld and
to be described in generic terms without reference to the exact language. It was
submitted that it would be wrong, unfair and disproportionate to quote either in the
hearing or the Judgment the content of the emails themselves for the following
reasons:

6.1

The majority of the emails were sent by others. They were sent and received in the
legitimate expectation that those communications would remain private. The emails
consisted of a series of private exchanges between long-standing friends which
contained comments about those friends.

6.2

In the case of SRA v Brough, Chaudhary and Story Case No 11380-2015 the Tribunal
had agreed that the contents of the email should not be quoted in the body of the
Judgment. The Respondent further submitted that they had requested access to the
emails in that case to enable those representing the Respondent to advise fully and
properly and to compare and contrast the emails in that case the purposes of sanction
in this case. The Applicant had declined to release those even for the purposes of
sanction. It was however understood that in the Brough case the emails were between
the Respondent and the comments related to other members of staff.

6.3

It was submitted that there was no public interest in the details of the emails being
part of the open hearing or the Judgment. The Tribunal was reminded of the level of
media interest in the matter and that only two of the emails that were sent by the
Respondent had entered the public domain. Publication of further emails sent by him
would be disproportionate and add an additional penalty to the Respondent.

6.4

The Respondent further submitted that notwithstanding the use of wholly

inappropriate and unacceptable language, the substance of the emails in this case was
quite different to those in Brough. Whereas many of the emails in that case appeared
to have contained quite seriously derogatory terms about work colleagues, almost all
the emails in this case contained what were intended to be light-hearted remarks about
the two friends who were engaged in the emails and who were not in the least
offended by them because they understood their proper meaning.

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6.5

It was submitted that it would be difficult to refer to the Respondents emails without
reference to their context and thereby referring to emails sent by others over whom
the Tribunal had no jurisdiction. The difficulty was in considering the Respondents
emails in a vacuum, which would not be possible and the public references to the
content of the emails would be unfair to the other individuals.

7.

The parties accepted that Brough was not binding and that each case turned on its own
facts.

The Tribunals Decision

8.

The Tribunal considered the contents of the emails which had been set out in the Rule
5 statement. The Tribunal decided that for reasons of transparency the Applicant
should present its case based on the Rule 5 statement. If that meant going through the
emails then that was what should happen. The Tribunal saw nothing in the emails
which would jeopardise the anonymity of the senders and recipients (other than the
Respondent) such as to undermine the decision above. The Tribunal was not bound by
the case of Brough. Every case should be considered on its own facts. The Tribunal
found no basis for restricting the Applicant in their presentation of the case.

Application to proceed by way of Agreed Outcome

9.

The parties had presented to the Tribunal a draft of a proposed agreed outcome. In
that draft document the Respondent fully admitted all of the allegations and it was
proposed that the matter be dealt with by way of a fine in the sum of 10,000.

10.

A draft proposed outcome has been presented at the case management hearing on
6 April 2016. At that time the Tribunal had requested greater clarification of the
Respondents position before determining whether to agree to proceed in the manner
proposed. The parties submitted that these clarifications had now been provided, with
the Respondent providing a full Answer to the Allegations, containing full
admissions. It was submitted that the proposed agreed outcome was a proper outcome
in light of events and with the reputation of the profession in mind.

The Tribunals Decision

11.

The Tribunal considered the submissions, the Rule 5 Statement, the exhibits, the
Respondents Answer and the proposed agreed outcome. The Tribunal considered
whether the agreed sanction was appropriate, proportionate and in the public interest
or whether the matter should proceed to a full hearing.

12.

The Tribunal had regard to Practice direction 6 and the requirement to ensure that as
part of the overriding objective to deal with cases justly the Tribunal must be
independent, impartial and transparent.

13.

The Tribunal noted that the proposed agreed outcome contained no reference to the
two emails which had already entered the public domain.

14.

The Tribunal were not prepared to proceed by way of the proposed agreed outcome
for the a number of reasons:

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14.1

There were a large number of emails that had been sent over an 18 month period. The
fact that a client was involved distinguished it from Brough and meant that the
damage to the profession was arguably greater than in Brough. The Tribunal also
noted that one of the emails referred to a recruitment process. The Tribunal had
considerable concerns about the Respondents lack of insight in this matter, in
particular the instructions he must have given to his previous solicitors to send a letter
on 3 November 2014 denying that the content of the emails was sexist, albeit it was
noted that the Respondent had apologised again since and had now made full
admissions. The Tribunal noted that the Respondent had actively participated in the
exchanges throughout the period. At no stage had he stepped back and advised the
client to take care as to the content. This was important as the client was keen to
encourage diversity.

14.2. The proposed agreed outcome lacked information as to the Respondents earnings or
whether he had lost his bonus. It was unclear from the letter from his employers,
which suggested that no further action was being taken against him.
14.3

For the above reasons and in the interests of transparency the proposed agreed
outcome document was not accepted and the Tribunal directed that the matter should
proceed to a sanctions hearing.

Factual Background
15.

The Respondent was born in 1958 and was admitted to the Roll on 15 October 1985.
At all material times the Respondent practised as a member at DLA Piper LLP (the
firm). At the time of the hearing he held an unconditional practising certificate.

16.

The Respondent had worked for the Premier League and in particular for A for nearly
15 years. In May 2014 a number of unprofessional emails between the Respondent
and A came to light. They came to light when B, formerly As assistant sent the
emails to a national newspaper. The emails attracted widespread national press
coverage. The Respondent was identified as the lawyer engaging in emails with A.

17.

The emails were variously described as sexist and were described by Greg Dyke,
Chairman of the Football Association as totally inappropriate, referred to women in
derogatory terms, contained sexual innuendoes, and made jokes about female
irrationality. The same article quoted then Sports Minister Helen Grant as describing
the content of the emails as completely unacceptable. The England and Everton
womens goalkeeper, Rachel Brown-Finnis found the emails an insult to all women.
There was comment in London Evening Standard by Lord Ouesley who stated that
much more needs to be done with regards to discrimination in football.

18.

The Firm had issued a statement on 16 May 2014 stating we hold the highest
professional standards as a firm and this matter is being fully investigated. A further
statement issued by the Firm regarding the outcome of the investigation concluded
there was a failure to meet the high professional standards in which we take pride as
a firm, whilst recognising that these were emails exchanged between friends and
accessed without permission.

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19.

The Respondent made an apology on 21 May 2014 in which he said I sincerely

apologise for my actions. In sending the emails in question I let myself, my firm and
its clients down. I have an obligation to uphold the highest professional standards and
I give my assurance that this will be the case going forward.

20.

The Firms investigation into the Respondent resulted in a letter being sent to the
Respondent dated 21 May 2014. The investigators made it clear to the Respondent
that the emails were inappropriate and unprofessional and stated to him that the
emails contained language which was a breach of the Firms email policy. A review
of emails between the Respondent, A and B for the period 1 May 2010 to June 2014
revealed other emails of a similar nature. Some of those were found as part of the
review relating to the period prior to the termination of Bs employment on
5 November 2013. They were provided to the SRA by the Firm in a letter dated
16 July 2014. The SRA commenced a formal investigation into the matter by letter
dated 26 September 2014 to which the Respondent provided his response through his
then solicitor on 3 November 2014. The emails were all exchanged between the
Respondent and the client over the firms email system during the course of his
practice over a period of at least 18 months.

21.

B was copied into one of the emails to action an administrative task. In other emails
colleagues were also included. The emails were sent by the Respondent in the course
of his practice from his work email address. The emails formed part of the way in
which the Respondent carried out his role in the business. Some of the emails were
specifically concerned with business including a number which were primarily
concerned with work-related matters but descended into an exchange that contained
content and language that was disrespectful to women.

22.

On 21 February 2012 in response to an email from A the Respondent had written

How kluntilicious (and indeed how Kluntish of you to attribute your own preferences
to me). I fear she will now prove to be a terrible anti-klimax.

23.

On 8 May 2013, in an email exchange with Hello Klunt in the subject heading, the
Respondent received an email from A discussing the possible recruitment of a female
member of staff. In that email A wrote I will find a way of taking her on as a
Konsultant, so you should at least dangle the prospect of my offer (do not offer her
the prospect of my dongle) so as to keep her encouraged. The Respondent replied to
this email in the following terms How Klunticicious to hear you in such stonkingly
Kluntish formIf she is interested in the dangle of your dong

24.

In an exchange of emails on 10 August 2013, referring to another individual, the

Respondent wrote to A and C Nobody has more experience in foetus shopping than
the stupendously fertile [job title] so I will leave it to him to advise you on such
matters

25.

On 12 August 2013 the Respondent received an email from A stating I had a

girlfriend once called double deckerhappy for you to play upstairs, but her dad got
angry if you went below to which the Respondent replied Sooooo irredeemably
Kluntish.

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26.

On 23 September 2013 the Respondent wrote to A Phew finally on the plane and
about to head in the direction of the Lobes. Have spent all day fending [name] off my
graphite shaft. She is terribly relentless isnt see [sic]?!

27.

On 24 September 2013 the Respondent wrote to A I am afraid [name] is not

improving as the day goes on. His latest kluntribution Save your cash in case you
find some gash. Its a good job there are no ladies present. Oooooh dear!.

28.

On 4 October 2013 A emailed the Respondent stating Ive decided to teach her to
talk, what harm can it do, to which the Respondent replies How lovely to see that
yet another Redeye has not diminished your Kluntishness in any way!

The Respondents Response

29.

In his response dated 3 November 2014 the Respondent presented a number of

reasons as to why the emails could not and should not have been regarded as sexist,
discriminatory or disrespectful women.

30.

The letter stated that the word klunt was a nickname inspired by one of the Flanimal
characters from a childrens book written by Ricky Gervais. It was not sexist and had
no great meaning or significance. The reference to fending an individual off my
graphite shaft was a reference to that individual having made enquiries about a
golfing trip, including whether the Respondent wanted regular or graphite shafted golf
clubs. The Respondent claimed the point of the email was to make a light-hearted
reference to [names] relentlessness. It was described as a play on words. The
reference to gash was not the Respondents own word but a quote from someone
else and the reference to there being no ladies present referred specifically to one
individual, not women generally.

31.

The letter stated that he fully accepted making serious mistakes in sending private
emails from his Firms business account which included the use of inappropriate
language. However he disputed that the emails were sexist, maintained that he himself
did not hold sexist attitudes and confirmed that himself and A had since adopted a
radically different approach to the content of emails.

SRA Investigation
32.

The SRA wrote to the Respondent on 26 September 2014 inviting a response. This
was conveyed in the letter of 3 November 2014 as referred to above. On
14 August 2015 an authorised officer of the SRA considered the documents and
decided to refer the conduct of the Respondent to the Tribunal.

Witnesses
33.

None.

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Findings of Fact and Law
34.

The Applicant was required to prove the allegations beyond reasonable doubt. The
Tribunal had due regard to the Respondents rights to a fair trial and to respect for his
private and family life under Articles 6 and 8 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms.

35.

Allegation 1 - He engaged in inappropriate and offensive email correspondence

which was disrespectful towards women with his client the Premier League
between at least February 2012 and October 2013 using DLA Piper UK LLPs
email system. In doing so he:
1.1
1.2

Acted in breach of any or all of Principles 2, 6 and 9 of the SRA Principles

2011 (the Principles)
Failed to achieve Outcome 2.2 of the SRA code of conduct 2011 (SCC
2011) to provide services to clients in a way that respects diversity.

Applicants Submissions
35.1

The Respondent engaged with his client in the inappropriate and offensive emails
which were disrespectful to women and which failed to encourage equality of
opportunity and respect for diversity from at least February 2012 to October 2013.
The Respondent could have been expected to anticipate that colleagues and the
personal assistant of A might access the correspondence at some point. Further it was
likely that the Firm could have accessed the Respondents emails without his consent
and without his password.

35.2

The Applicant submitted that the email correspondence that the Respondent engaged
in was clearly offensive and inappropriate. The emails contained comments and
references that were sexually explicit and sexist. Many of the exchanges contained
abusive, disparaging and insulting comments about women. They were all exchanged
between the Respondent and his client over the firms email system during the course
of his practice over a period of at least 18 months. The emails formed part of the way
in which the Respondent carried out his role in the business. Such conduct
undermined his integrity, the trust the public placed in him in the provision of legal
services and demonstrated failure to run his business and carry out his role in a way
that encouraged respect for diversity and equality.

35.3

The Respondents response by way of his letter of 3 November 2014 provided

explanations which taken alone appeared highly unlikely and taken together even
more so. Given the tone and gender-based content of many of the exchanges the
Applicant submitted it was far more likely that the term klunt was used as an
amalgam of the words cunt and clitoris than as a reference to a fictional character
from Flanimals. The explanation of the graphite shaft comment sought to put the
email in the context of a golfing trip. The other meaning involving a play on words
was not explained and the Applicant submitted that the only possible double meaning
was a coarse sexual reference. Although the reference to gash was not the
Respondents own choice of word, this ignored the fact that he chose to send an email
repeating the phrase and indicating that he considered it amusing.

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35.4

The email referring to the dangle of your dong was sent in the context of the clients
recruitment procedures. The emails were all sent from the Respondents business
email address to an email address at As place of work and therefore clearly related to
the way in which the Respondent was carrying out his role in the business.

Respondents Submissions
35.5

The Respondent, in his Answer and in submissions before the Tribunal admitted all of
the allegations in their entirety. The Respondent fully accepted that the content of his
emails was inappropriate, unacceptable and offensive and he apologised unreservedly
for his conduct. In sending the emails he recognised the damage caused to the
reputation of the profession. The Respondent accepted that the letter of
3 November 2014 was sent on his instructions. The Respondent confirmed that his
correct and current position was as set out in his Answer and in submissions before
the Tribunal, namely an unequivocal admission and unqualified apology for his
conduct.

35.6

The Allegation was admitted and Tribunal found the allegation proved in full beyond
reasonable doubt on the evidence.

Previous Disciplinary Matters

36.

None.

Mitigation
37.

In mitigation the Tribunal was informed that the Respondent had an unblemished
regulatory history. The exchange of emails had been between friends in the
expectation of privacy. The emails were never accessed prior to the SRA investigation
nor by anybody at the Firm. The emails were only found by a third-party at the
Premier League after many hours of searching. The Tribunal was told that the
Respondent had already suffered as a result of the publicity in the press, who had
identified him as one of the parties to the emails. The actual recipients of the emails,
one male and one female, had confirmed that they were not personally offended by
the content of emails. The Respondent had never intended to upset or offend anyone
and were thoughtless rather than planned. No harm had been caused to clients or the
wider public and none had been intended.

38.

The Respondent had co-operated with the investigation and although the letter of
3 November 2014 was not an admission, it did not slow down the process.

39.

The Respondent had been removed from the bonus pool and as a consequence did not
know how much of a bonus he would have received in that year but he estimated it to
be between 20,000 and 25,000.

40.

The Respondent had allowed the distinction between friend and client to become
blurred and the Tribunal was invited to note that he was generally the replier rather
than the instigator of the emails exchanged. As referred to above the Respondent
unreservedly apologised for his conduct.

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41.

The Respondent accepted that in the circumstances of the case the seriousness of the
admitted conduct was such that a reprimand would not be a sufficient sanction. The
Applicant accepted the Respondents submissions that neither the protection of the
public nor the protection of the reputation of the profession would justify the
Respondent being suspended from practice or struck off the roll.

42.

The Respondent invited the Tribunal to deal with this matter by way of a financial
penalty. In assessing the level of the fine the Tribunal was invited not to impose a
larger penalty because of the Respondents standing as discussed in Fuglers and Ors v
Solicitors Regulatory Authority [2014] EWHC 179 (Admin). The Respondent
submitted that the wider media coverage was not because of the Respondent but
because of who he was corresponding with. It was submitted that when the actual
emails were looked at they did not merit a higher sanction because of who the
Respondent was.

Sanction
43.

The Tribunal referred to its Guidance Note on Sanctions (December 2015) when
considering sanction.

44.

The Tribunal assessed the seriousness of the misconduct with reference to the
Respondents culpability and harm caused together with aggravating and mitigating
factors.

45.

The Tribunal accepted that the Respondents motivation was continuing an email
exchange between friends and not with an intention of causing offence. To that extent
the emails were spontaneous rather than planned and the Respondent had not
breached a position of trust. However he had direct control and complete
responsibility for the emails that he sent as reflected by his level of experience. He
held a senior position at his Firm.

46.

The harm caused to the reputation of the profession became apparent when the
content of the two of the email exchanges became public. The Tribunal accepted that
the Respondent had allowed the line between client and friend to become blurred, this
meant that there was all the more reason to exercise caution in the content of emails.
The Respondents client was using all means at its disposal to come across as an
organisation that supported equality and diversity. Some of the emails were sent in the
context of a recruitment exercise. The language in the emails was despicable and it
was reasonably foreseeable that at some stage the emails may be seen by others who
would be offended by the content.

47.

The misconduct was aggravated by the fact that it was repeated and continued over a
significant period of time, approximately 18 months. The Respondent ought to have
known that sending these emails was in material breach of his obligations.

48.

The misconduct was mitigated, however, by the Respondents previously

unblemished career. The Tribunal noted the Respondents full admissions and
apologies. While the Tribunal accepted that the insight shown by the Respondent was
now genuine it was troubled by the letter of 3 November 2014 which had offered a

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series of completely implausible explanations for what were quite clearly sexist and
offensive emails.
49.

The Respondent had made admissions to acting with a lack of integrity, behaving in a
way which did not maintain the trust the public placed in him and the provision of
legal services and carrying out his role his business in a way that did not encourage
equality of opportunity and respect for diversity. These were serious matters, such that
making no order or imposing a reprimand was insufficient to protect the public and
the reputation of the legal profession.

50.

The Tribunal did not consider that the misconduct was so serious as to justify a
suspension or consideration of striking the Respondent from the roll. The appropriate
sanction was a financial penalty. The Tribunal considered the level of the fine and
noted that he had been representing a sensitive client in the public arena. As referred
to above, these exchanges has continued for a year and a half, during which time the
Respondent had not advised his clients to exercise caution in the manner and content
of the communication. It was important to send a message to the profession that the
content of email communication between solicitors and clients must be appropriate at
all times and not undermine the reputation of the profession. The Tribunal accepted
that this had been a sad and salutary lesson for the Respondent and indeed for the
profession not to engage in inappropriate and offensive correspondence particularly
when using business email addresses in the course of their work.

51.

In all the circumstances the appropriate level of fine was 15,000. The Respondent
had not submitted a Statement of Means and there was therefore no basis for
considering a reduction based on that. The Tribunal had not increased the fine based
on the Respondents status, save for the fact that his experience had been taken into
account when assessing the level of culpability.

Costs
52.

The parties had reached an agreement on costs, namely that the Respondent would
pay the Applicants costs in the sum of 12,000. The Tribunal considered this to be an
appropriate and proportionate sum and made an order for costs in those terms.

Statement of Full Order

53.

The Tribunal Ordered that the Respondent, NICHOLAS WILLIAM WEST, solicitor,
do pay a fine of 15,000.00, such penalty to be forfeit to Her Majesty the Queen, and
it further Ordered that he do pay the costs of and incidental to this application and
enquiry fixed in the sum of 12,000.00.

Dated this 20th day of July 2016

On behalf of the Tribunal

A. N. Spooner
Chairman