A solicitor on the verge of bankruptcy has been struck off for dishonesty after misusing almost £200,000 worth of client money and attempting to mislead the court.
Nicholas Whiffen, who was admitted to the roll in 1997, was a sole practitioner at Kent firm Hesling Henriques solicitors at the time of the accounts rules breaches and other regulatory breaches.
He had wrongly held £154,000 in unpaid disbursements and client damages of more than £12,000 in office account; and allowed payments amounting to £30,000 from client account when he should not have done.
Whiffen also took steps to mislead the court by signing a witness statement verified by a statement of truth in support of an application to set aside a statutory demand. The demand had been served by counsel in respect of unpaid fees for three clinical negligence cases, each of which had concluded.
Whiffen wrongly stated that he disputed counsel’s fees. The tribunal said: “There was no way that a solicitor could sign a witness statement in order to mislead the court without being dishonest.”
He also failed, as the firm’s compliance officer for finance and administration (COFA), to report the breaches to the regulator. The tribunal found that by not reporting them to conceal his wrongdoing, his conduct had been dishonest.
The tribunal acknowledged the fact that Whiffen had been dealing with his late personal and business partner’s illness. However, it also pointed out that there was plenty of activity in the bank accounts at the time – “so it was not merely a case of money passively sitting in the office account unbeknown to the respondent”.
He had, the tribunal found, decided to withhold payments of legitimate disbursements because of what he knew to be “the parlous state of the firm’s finances”.
Days before the hearing, which took place on 13 and 14 April 2021, Whiffen emailed the court effectively requesting an adjournment – stating that if the hearing went ahead it would be a “travesty of justice”.
He was served with a “vast amount of paperwork’ on Friday 9 April. He wrote: “… I will not be attending the hearing on the 13 April as I have not been allowed to prepare to defend myself. Therefore any hearing will be a travesty of justice as I cannot prepare for it. I have now been utterly prejudiced. I am not prepared to be part of some trial where I have been refused the right to defend myself.”
He said he wasn’t prepared to risk breaching covid-19 regulations or his own health by travelling, pointing out that he was not able to remotely work.
“If the hearing takes place when I am unable to attend then I will be appealing and asking advice as to whether my human rights have been breached…”
Whiffen added. “This is an obvious denial of my right to a fair hearing against the SRA who have unlimited resources.”
However, the SRA’s solicitor countered that he had access to the papers since the start of the proceedings in August 2020. The arrangements made to enable Whiffen to attends the SDT’s offices and to use its IT equipment were in line with covid-19 regulations and guidance and the tribunal said none of the grounds claimed by Whiffen justified adjourning the matter.
The hearing therefore took place in Whiffen’s absence and without any representation on his behalf, the tribunal taking the view that it was in the public interest that serious allegations are determined in a reasonable timescale. It was also the tribunal’s view that adjourning the hearing would not guarantee his attendance in future.
“The respondent had access to the papers, knew of the hearing and of the particular arrangements made for him to attend it,”, the judgment said.
Whiffen was struck off and ordered to pay £18,500.00 in costs....