The simple two stage test in Ivey v Genting Casinos [2017] UKSC 67 still seems to be causing confusion. In Maxfield-Martin v Solicitors Regulation Authority recently, the Solicitors Disciplinary Tribunal was reversed on appeal for failing to consider the two limbs of the test separately.
Transcript
00.35
What appears to be a simple two-stage test for dishonesty seems still to be causing confusion in some quarters.
00.45
The Ivey test propounded by the Supreme Court requires, first, for the tribunal to decide the state of mind of the individual by establishing his or her knowledge and belief and, secondly, to decide whether the conduct was honest by the standards of ordinary decent people.
01.05
It sounds simple enough but it is far to easy to skip to the second limb without properly deciding the first.
The standard hypothetical example given is of a foreigner arriving in this country, immediately boarding a bus and getting off without paying the fare.
01.25
It is not correct to jump immediately to the second part of the test and ask whether that conduct was honest by the standards of ordinary decent people.
First, we have to establish his or her knowledge and belief. If that individual comes from a country where all bus travel is free and he assumes that to be the same in this country, then we need to know what is in that person’s mind.
01.53
In those circumstances, ordinary reasonable people are unlikely to consider that the passenger was dishonest but merely mistaken, and no criminal liability would attach.
A similar error was made by the Solicitors Disciplinary Tribunal recently. Mr Maxfield-Martin, a solicitor, believed he had his firm’s authority to sign off his mental health re-accreditation form.
02.22
The tribunal found that by presenting the declaration which he knew to be untrue and misleading, because a partner had not seen or reviewed the form, he was dishonest, but it tended to conflate the two limbs of the test without considering the first limb of the test properly.
The solicitor’s colleague, Ms Young, had also entered her name on a similar form knowing that her manager had neither seen nor reviewed its contents.
02.52
Allowing the solicitor’s appeal against the finding of dishonesty, Mr Justice Soole said the Tribunal ought to have asked itself whether the handling of Ms Young’s application gave a good indication of what ordinary decent people would make of completing a form in someone else’s name with authority to do so.
The re-accreditation form did not expressly stipulate that it must be signed personally by the maker of the declaration; nor was there any established rule which required a personal signature.
03.25
In the words of Lord Nicholls in Barlow Clowes: “… acting dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances. This is an objective standard. At first sight this may seem surprising. Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated.
04.10
But the standard of what constitutes dishonesty is not subjective. Honesty is not an optional scale with higher or lower values according to the moral standards of each individual. If a person knowingly appropriates another person’s property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour.
04.35
A court will look at all the circumstances known to the individual at the time, and will have regard to personal attributes such as his experience and intelligence, and the reason why he acted as he did.