The Legal Services Tribunal of New South Wales CITATION : Ian Burnham Mitchell [1992] NSWLST 16 PARTIES : Ian Burnham Mitchell FILE NUMBER(S) : of CORAM: Mr G Williams (Presiding Member) - Mr F Herron - Rear Admiral G. Griffiths CATCHWORDS: Professional Misconduct - fail to act honestly - Professional Misconduct - fail to keep accounts - Professional Misconduct - misappropriate trust moneys/moneys - Professional Misconduct - prepare false documents - Professional Misconduct - prefer own interests to those of others :- LEGISLATION CITED: Legal Profession Act 1987 Real Property Act CASES CITED: DATES OF HEARING: 11/11/91 - 17/01/92 DATE OF JUDGMENT: 01/17/1992 Mr P.R. Garling Mr F. Smith LEGAL REPRESENTATIVES: Mr W. Hodgekiss Messrs Blake Dawson Waldron JUDGMENT: Legal Profession Disciplinary Tribunal In the matter of Ian Burnham Mitchell Determination and orders Before: Mr G. Williams (Presiding Member), Mr F. Herron and Mr G. Griffiths. Appearances: Mr P.R. Garling, instructed by Mr F. Smith, appeared for the Law Society of New South Wales. Mr W. Hodgekiss, instructed by Messrs Blake Dawson Waldron, appeared for the Solicitor. In this matter the Council of the Law Society of New South Wales (the Complainant) complained to the Legal Profession Disciplinary Tribunal against Ian Burnham Mitchell (the Solicitor) under Section 135 of the Legal Profession Act 1987 (the Act). The complaint was dated 10 July 1991, and the particulars of the complaint were: 1. The solicitor signed documents falsely stating that he was a witness to the signatures thereon and that the signatories were personally known to him. 2. The solicitor accepted a Real Property Act transfer as solicitor for the transferees whereas two of the transferees were not living persons at the time. 3. Conflict of interest. 4. Opening and maintaining building society accounts in fictitious names. 5. Maintaining fictitious names in the Trust Account. 6. Preparation of documents in false names. Those particulars were more fully set out in a schedule attached to the complaint. The Complainant sought the following orders: 1. Such orders as to the Tribunal seem fit. 2. That Ian Burnham Mitchell pay the costs of the complainant of these proceedings on a solicitor/client basis. The Tribunal heard the matter on 11 and 12 November 1991 and reserved its decision. The Complainant's case consisted of: 1. Bundle of photocopied documents to be relied on by the Complainant (exhibit "A"). 2. Statutory declaration of Barrie James Murdoch dated 10 July 1991 (exhibit "B"). 3. Copy death certificate of Esmond Henry Beileiter (exhibit "C"). 4. Copy death certificate of Glenville Rivers Beileiter (exhibit "D"). The Solicitor's case consisted of: 1. Statutory declaration of the Solicitor, Ian Burnham Mitchell, dated 15 October 1991 (exhibit"1"). 2. Undated letter from Horace Edward Finlay to the Solicitor (exhibit "2"). 3. Statement of Horace Edward Finlay dated 11 November 1991 (exhibit "3"). 4. Letter dated 8 November 1991 as to the character of the Solicitor from David Scarlett, Solicitor (exhibit "4"). 5. Letter dated 11 November 1991 as to the character of the Solicitor from Howard Halligan, Barrister (exhibit "5"). 6. Oral evidence by the Solicitor, Ian Burnham Mitchell. 7. Oral evidence by Horace Edward Finlay. Before proceeding to deal with the allegations against the Solicitor, the Tribunal will summarise the background of the Solicitor and of the events leading up to the Complaint. The Solicitor was born in 1943 and was admitted as a solicitor in 1975. He is the holder of a current practising certificate. Prior to his admission he was an articled clerk, and later a managing law clerk, with L.W.P. Astley Co., and he remained employed in that firm until 1980. In 1980 he was an employed solicitor for about one year with Philip Roach & Halligan. He then transferred to M.E. Howard & Co. at Hornsby, also as an employed solicitor. The events in question took place during his employment with the latter firm. In 1986 he commenced employment with McCaw Johnson, and in 1987 he transferred to a corporate law position where he continues to be employed. The events which gave rise to the Complaint arose out of dealings by the Solicitor involving Horace Edward Finlay (Finlay) and John William Roach (Roach) in which he acted as solicitor for both parties in various conveyancing transactions including mortgages, variations of mortgages, and a discharge of a mortgage There was also a transfer of property involving Finlay as one of three transferees, and a person named John James Tween (Tween) as transferor. The majority of these transactions occurred over the period from about early 1982 to about early 1984. Further dealings by the Solicitor involving Finlay and Roach occurred in 1989 and 1990. These latter dealings arose out of the earlier mortgage transactions and ultimately became part of the basis for Ground 3 of the Complaint (Conflict of Interest). None of these events came to the notice of the Complainant until 1990. The subsequent investigation conducted by the Complainant resulted in these proceedings before the Tribunal. Both Finlay and Roach had been clients of L.W.P. Astley & Co, and the Solicitor carried out work for both of them during his employment with that firm. He first met Finlay as early as 1970, and it was evident from both his statutory declaration (exhibit "1") and his oral evidence before this Tribunal that he had a close association with Finlay, as well as an intimate knowledge of Finlay's personal background He knew a person named Greta Beileiter (Greta) and was aware that she had been Finlay's de facto wife for many years. He knew that Greta had a number of brothers and sisters, and he had done work for one of the sisters. He had heard of two of Greta's brothers who were named Esmond Henry Beileiter (Esmond) and Glenville Rivers Beileiter (Glen). It was clear from the evidence that the association which had existed between the Solicitor and Finlay and Roach during the Solicitor's period of employment with L.W.P. Astley & Co. was renewed after the Solicitor took up employment with M.E. Howard & Co. The allegations against the Solicitor are set out in detail in the schedule and the Tribunal does not consider it is necessary to repeat those details here. However, the Tribunal will deal with each of the allegations by reference to the general particulars of the complaint stated above. For ease of reference the Tribunal will use the same numbering system as appears in the Complaint. The Particulars of the Complaint Ground 1 The Solicitor signed documents falsely stating that he was a witness to the signatures thereon and that the signatories were personally known to him. Findings on Ground 1 The evidence disclosed that the Solicitor acted for Roach, as mortgagor, and for Finlay, as mortgagee, in a series of mortgage transactions over a period of about two years. The transactions involved the lending of money by Finlay to Roach. However, the mortgage documents were not prepared by the Solicitor on the basis that the mortgagee was a person bearing Finlay's name. He prepared the documents on the basis that the mortgagee consisted of three persons, namely Glen Beileiter (Glen), Esmond Henry Beileiter (Esmond), and Edward Finlaw. It was common ground that at the time these transactions took place Glen was deceased, having died more than 10 years before on 10 June 1971, Esmond was also deceased, having died ten years before on 20 March 1972, and that "Edward Finlaw" did not exist, this name being a pseudonym used by Finlay. Despite these circumstances, the transaction documents bore signatures which purported to be the signatures of Glen, Esmond, and Finlaw. In addition, the Solicitor signed each of the various documents in execution of attestation statements in the form "Signed in my presence by the mortgagee who are personally known to me". The Solicitor's evidence was that on each occasion he prepared the documents in accordance with instructions received from Finlay, that they were taken by or sent to Finlay for signature, and that they were returned to his office already signed. He then signed as a witness. He said he had no reason to believe that Esmond or Glen were deceased, and that he did not become aware that they were deceased until 6 February 1990 when he was so informed either by or through Roach. As to the use by Finlay of the pseudonym "Edward Finlaw" (and also as to the use by Finlay of a pseudonym "Edwards" which appears in the Particulars of Ground 4 of the Complaint - Opening and Maintaining Building Society Accounts in Fictitious Names), the Solicitor said that he had no reason to suspect that any of Finlay's transactions were "in any way fraudulent". The Solicitor was cross examined at some length as to those expressions of belief. As to the deaths of Esmond and Glen, the Solicitor said that he could not recall ever having met Glen. He had met Esmond in late 1971, and he conceded that Esmond was then not a young man, that he was ill as a result of deterioration of health due to alcohol, and that it was necessary for others to care for him. The Solicitor was also aware that in 1971 or 1972 Esmond suffered a stroke such that he was unable to maintain himself at his home. The Solicitor's attention was drawn to a remarkable similarity between the purported signatures of Glen, Esmond, and Greta, as they appeared on the subject documents. The Tribunal notes that even for a person not qualified in signature identification it would be difficult not to reach a conclusion that the signatures were written by the same person. Nevertheless the Solicitor maintained that he did not perceive any warning signs either in the similarity of the signatures, or in the very long lapse of time between his last contact with Esmond, then in an advanced state of poor health, and his witnessing of the signatures purporting to be that of Esmond. In the light of all the evidence, and particularly taking into account the evidence of the close personal relationship which existed between the Solicitor and Finlay over a long period of time, and of the Solicitor's intimate knowledge of the Finlay and Beileiter families, the Tribunal finds it extraordinary that the Solicitor could hold the beliefs which he professed to hold. As to the use by Finlay of pseudonyms, the Solicitor maintained that he understood this to be an innocent device undertaken by Finlay simply to keep some funds separate from other funds, and that he saw nothing wrong with it. During the course of the hearing, Counsel for the Solicitor informed the Tribunal that Mr Finlay would be available to give evidence and would be brought to the hearing and called as a witness, despite his advanced years. Notwithstanding the impression that the Tribunal formed, whether rightly or wrong, that Mr Finlay would appear as a frail and ailing person of limited capacity, nevertheless it hoped that his evidence might assist to clarify some of the problems generated by the evidence of the Solicitor. However, when Mr Finlay was eventually called to give evidence, he presented as a remarkably well preserved man for his age; he was 82 years of age on the day he gave evidence. Unfortunately his evidence did nothing to assist the Tribunal. While he appeared to have a reasonable knowledge of the general aspects of his association with the Solicitor, he appeared to have a selective lapse of memory in responding to any questions relating to the execution of the documents and the deaths of Glen and Esmond. The end result was that the Tribunal was unable to place any reliance on his evidence. The Tribunal has given close consideration to the whole of the available evidence, and it is unable to find that there is sufficient positive evidence to enable it to be comfortably satisfied that the transactions in question involved an unlawful or improper scheme on the part of Finlay, or, if there was such a scheme, that the Solicitor had knowledge of it or was a part of it. If the Tribunal had been able to bring in a finding in those terms, the result of these proceedings would have been very much more serious for the Solicitor. However, the Tribunal has no difficulty in being satisfied that the Solicitor failed to make reasonable enquiries as to the continuing existence and capacity of Glen and Esmond in the face of the glaring signals generated by the very long lapse of time, the state of Esmond's health when the Solicitor last knew him, and the similarity of the signatures on the documents. At this point the Tribunal wishes to make it clear that it does not intend to give the impression that if the Solicitor had made such enquiries he would have been any less culpable in signing the attestations in the forms in which they were couched. That aspect will be covered later in the Tribunal's general findings. At the end of the hearing it was submitted on behalf of the Complainant that this ground, and all the elements of it, had been made out against the Solicitor. Counsel for the Solicitor did not take issue with that submission, but in any event, and despite the Tribunal's finding which serves to exclude the Solicitor's conduct from the more serious category referred to above, the Tribunal finds on the evidence that this ground, as set out in Annexure "A", was clearly established. Ground 2 The Solicitor accepted a Real Property Act transfer as solicitor for the transferees whereas two of the transferees were not living persons at the time. Findings on Ground 2 It was common ground that in a transfer dated 23 March 1983 and registered on 27 May 1983 the Solicitor had signed his name immediately above the words "Ian Burnham Mitchell Solicitor for the Transferee", and that the transferee was named as Glen Beileiter, Esmond Henry Beileiter and Edward Finlaw. The facts set out in Ground 1 apply equally to Ground 2, in that Glen and Esmond Beileiter were deceased at the time the Solicitor purported to accept the transfer on their behalf. Again on this ground it was submitted by Counsel for the Complainant that the ground had been made out, and Counsel for the Solicitor did not take issue with that submission. The Tribunal makes the same comments on this ground as it did in respect of Ground 1, and it finds on the evidence that this ground was clearly established. Ground 3® Conflict of interest. Findings on Ground 3 The evidence disclosed that in 1982 the Solicitor prepared two mortgages while acting for Roach as mortgagor, and for "Glen Beileiter, Esmond Henry Beileiter and Edward Finlaw" as mortgagees in one of the mortgages, and for "Esmond Henry Beileiter, Greta Beileiter and Paul Finlay" as mortgagees in the other mortgage. The situation was the same as in Grounds 1 and 2 in relation to Glen and Esmond in that they were both deceased. It was alleged in the Complaint, and the Tribunal is satisfied on the evidence, that the Solicitor failed to take adequate steps to ascertain the identities of the mortgagees to ensure that valid mortgages came into operation, and, further, that he signed the mortgages as witness to the signatures of the "mortgagees", in circumstances in which they did not sign in his presence, but nevertheless caused the mortgages to be registered. In December 1983 the Solicitor, while still acting for all parties, wrote letters to Finlay and Roach about arrears of mortgage instalments due by Roach. In his letter to Finlay he sought instructions as to the action Finlay required him to take in respect of arrears and loss of interest, and suggested either a requirement that Roach enter into a "further mortgage providing for substantial penalty interest", or that "we issue a notice calling up the mortgage". In his letter to Roach written on the same day, the Solicitor called for "your next instalment within the next three days, without further delay" . In July 1989, while still acting for all parties, the Solicitor informed Roach that Finlay wished to call up his mortgage and would force a sale of the mortgaged property if that did not occur. On 14 February 1990, again while still acting for all parties, the Solicitor wrote to Roach enclosing, by way of service, a notice of default under the mortgage pursuant to Section 57(Z)(b) of the Real Property Act. Among other things, the notice threatened the enforced sale of the mortgaged property and called on Roach to pay the costs and disbursements involved in the preparation and service of the notice. The evidence before the Tribunal also established other aspects of the Solicitor's conduct going to the question of conflict of interest in this context. Those aspects are set out in the appropriate items of the particulars of Ground 3. The Solicitor said he believed "that no conflict of interest arose in relation to this matter" (Exhibit "A" page 116). He said that all he did was to endeavour to resolve the problems which had arisen between the parties. His Counsel submitted on his behalf that "there has been no loss suffered by anyone", and that what he did was done "as it were under the aegis of the Law Society". The Tribunal finds on the evidence that there could hardly be a clearer case of conflict of interest. It is notable, of course, that most solicitors who become involved in a conflict of interest situation are the last to be able to recognise it. As to the claim that no loss was suffered, it is the Tribunal's view on the evidence that the absence of loss was more a matter of good fortune, and that the consequences could well have been much more serious. As to the suggestion that the Solicitor acted "under the aegis of the Law Society", the Tribunal is satisfied on the evidence that by the time the matter came to the attention of the Complainant the conflict situation was so well advanced that the Complainant took the reasonable step of permitting the Solicitor to finalise the last steps in the remedial action. The Tribunal also notes that Roach was by then independently represented and that his independent solicitors concurred in that action. The Tribunal also notes its very serious concern that at the time the Solicitor, acting on behalf of the mortgagees, sent the default notice to the mortgagor, also his client, on 14 February 1990, he was at least by then aware that two of his purported mortgagee clients had died about ten years before he had created the mortgage documents. On his own evidence he had been informed of the deaths on 6 February 1990. On this ground it was submitted by Counsel for the Complainant that the ground had been made out, with the exception of items 8 and 9 in the particulars in respect of which evidence had not been adduced. Counsel for the Solicitor took no real issue with that submission, but in any event the Tribunal finds on the evidence that this ground, with the two exceptions noted, was clearly established. Ground 4: Opening and maintaining building society accounts in fictitious names. Findings on Ground 4 This ground related to the opening of various building society accounts in five names or titles. It was alleged in the particulars that the Solicitor had opened on behalf of his client Finlay various accounts in names other than those of his client. These operations were connected generally with the dealings between the Solicitor and Finlay already described. Counsel for the Complainant conceded that there was insufficient evidence to enable a finding adverse to the Solicitor in respect of sub paragraphs (i), (ii), (iii) and (iv) of the particulars. However, as to sub paragraph (v), he referred to evidence in cross examination in which the Solicitor admitted that he gave directions for the opening of a building society account in the name of Peter Edwards. Counsel for the Solicitor did not take issue with this submission. The Tribunal notes the Solicitor's general expressions throughout the hearing as to his belief and lack of knowledge in relation to any unlawful or improper scheme on the part of Finlay, and it makes the same comments as to that aspect on this ground as it has done above in relation to Ground 1. The Tribunal finds on the evidence that, as to sub paragraph (v) of this ground, that part of the ground was clearly established Ground 5 Maintaining fictitious names in the Trust Account. Findings on Ground 5 It was alleged in this ground that the Solicitor caused certain entries to be made in trust ledger accounts maintained for Finlay and that fictitious names were used. The allegations are set out in detail in the particulars of Ground 5. As these transactions also formed part of the general dealings between the Solicitor and Finlay, the Tribunal sees no point in setting them out in detail again here. Once again, the Tribunal notes the Solicitor's general expressions throughout the hearing as to his belief and lack of knowledge in relation to any unlawful or improper scheme on the part of Finlay, and it makes the same comments as to that aspect on this ground as it has done above in relation to Ground 1. Counsel for the Complainant submitted that this ground had been made out, and Counsel for the Solicitor did not take issue with that submission. The Tribunal finds on the evidence that this ground was clearly established. Ground 6 Preparation of documents in false names. Findings on Ground 6 The details of this ground were set out in the particulars of Ground 6. Briefly, they referred to the preparation by the Solicitor on behalf of Finlay of the documents referred to in Ground 1, the documents referred to in Ground 2, and an unregistered mortgage from "Hewitt" to "Paul Edwards" dated 3 May 1984. There was an additional item relating to a caveat, but Counsel for the Complainant conceded that there was insufficient evidence to enable an adverse finding against the Solicitor on that item. Once again these items related to the general dealings between the Solicitor and Finlay, and once again, the Tribunal notes the Solicitor's general expressions throughout the hearing as to his belief and lack of knowledge in relation to any unlawful or improper scheme on the part of Finlay. The Tribunal makes the same comments as to that aspect on this ground as it has done above in relation to Ground As to sub paragraphs (i), (ii) and (iii) of this ground, the Tribunal finds on the evidence that the ground was clearly established. Findings generally Having found on the evidence that all grounds alleged by the Complainant against the Solicitor have been established, subject to some comparatively minor excepted items in three of the grounds, the Tribunal turns its consideration to the submissions made on behalf of the Complainant and the Solicitor, and to the consequences arising out of its findings. Counsel for the Complainant submitted, among other things, that the evidence had established a case of professional misconduct against the Solicitor. He maintained that the Solicitor had certified to his client, Roach, that a state of affairs existed when, in truth, it didn't; that the Solicitor had presided over the creation of legal relations which could not have been created; that he had ensured the registration of documents which he knew to have been in a state not capable of being properly registered; that at every turn in relation to the subject transactions the Solicitor had facilitated an untrue state of affairs; that such untrue state was partly to his knowledge, and partly the result of his gross dereliction of duty in failing to make any enquiries to establish the facts. Counsel for the Solicitor submitted, among other things, that the Tribunal should not find that in this case there had been professional misconduct, and that it should resort instead to a lesser finding of unsatisfactory professional conduct. He maintained that the Solicitor had been misled by Finlay; that no loss had been suffered by anyone; and that the Solicitor took an active part in correcting what had been done wrongly. Counsel also submitted that it was possible that within New South Wales at that moment hundreds of letters were being dispatched from solicitors' offices reading "Dear Mr so and so, please sign this and send it back". Counsel stressed that he made that comment not in diminution of the Solicitor's position, but only as a matter of general comment. Both Counsel also referred the Tribunal to a number of decided cases. They are recorded in the transcript, and for the purpose of the Tribunal's findings they need not be repeated here. The Tribunal has given close consideration to the whole of the evidence, as well as to the helpful submissions of both Counsel and the case references. In considering whether or not a case of professional misconduct has been established against the Solicitor, the Tribunal has put aside the question of the consequences which flowed from his conduct, and has determined the issue by looking at the conduct of the Solicitor at the time it occurred. That has long been a well settled approach in matters of this nature. The Tribunal has no difficulty in finding that the Solicitor has been guilty of professional misconduct. It is more than comfortably satisfied that the conduct of the Solicitor constituted professional misconduct whether viewed in the light of the common law definition or the definition now prescribed in the Legal Profession Act. In reaching that conclusion, the Tribunal refers to and adopts the submissions as to the Solicitor's conduct made by Counsel for the Complainant and summarised above. To add to those submissions, the Tribunal refers specifically to the fact that over a long period of time the Solicitor consistently signed his name to a series of documents, in execution of attestation statements in the form "Signed in my presence by the mortgagee who are personally known to me", in circumstances in which two of the purported signatories were deceased and the other signatories did not sign in his presence. It matters not whether or not the Solicitor was aware that the signatories were deceased. The form of the attestation could not be clearer: "Signed in my presence by the mortgagee who are personally known to me". In the view of the Tribunal it is untenable even to contemplate that a person as qualified as a solicitor should be unable to understand those words and the actions they require. They are simple and direct. They are obviously there to mean what they say, and to be used for a real purpose. They are clearly there to ensure that the documents which bear them, and which are capable of creating important legal interests in property, are executed under rigidly controlled principles. In the view of the Tribunal, any solicitor who departs from those principles is guilty of disgraceful conduct. In the case of this Solicitor, not only did he depart from those principles consistently, but he did it blatantly and recklessly, and even went to the extent of announcing openly to his clients that he was doing so. For example, in correspondence forming part of Exhibit "A" at page 43, he wrote to Mr Hewett forwarding a variation of mortgage "for your signature, where indicated and then for return to this office. Mr Mitchell of this office will witness your signature thereon". The Tribunal was most concerned to hear the comment of Counsel for the Solicitor which indicated that the practice of the Solicitor in witnessing signatures in such a manner could possibly exist to some degree in the profession. The Tribunal would be appalled if that were in fact the case, but in view of the indication it feels obliged to issue a very strong warning signal to the profession generally that conduct of the nature described will be regarded most seriously, and that solicitors who indulge in it must expect to suffer very serious consequences. The Tribunal turns now to that part of these proceedings which related to conflict of interest. The Tribunal has already expressed its views on that part of the Solicitor's conduct involving conflict of interest, but it considers that this is also an area in which a warning signal should be sent to the profession. It is common knowledge that the consequences flowing from conflict of interest problems give rise to a substantial proportion of professional negligence claims against solicitors. Not only does this have the effect of bringing the profession into disrepute, but it also serves to increase professional indemnity insurance premiums, which in turn strikes generally at those competent and diligent members who form the major part of the profession. It is for these reasons that the Tribunal also takes a serious view of conduct involving conflict of interest. The only safe way for a solicitor to avoid a conflict of interest is to refrain from acting for more than one party in any particular transaction. Any solicitor who chooses to do otherwise should be aware that he does so at his peril, and that in those circumstances he should be on constant guard to detect any situation in which even a glimmer of potential for conflict is beginning to arise, at which time he should immediately withdraw and send the parties off for independent advice. Orders It remains for the Tribunal to deal with the orders which should be made in respect of the Solicitor's conduct. In considering this aspect the Tribunal has given due consideration to the whole of the evidence, and particularly to those parts of the evidence which go to penalty. In doing so, the Tribunal has concluded that the Solicitor is saved from a much more serious result by the following factors: [1] He has been involved in practice in the law profession for about 15 years. Apart from the matters under reference in these proceedings, there was no evidence adverse to his character or professional reputation. Although the evidence presented on his behalf as to character was sparse, it supported him as a person of good private and professional character. [2] The Tribunal is unable to find that there is sufficient positive evidence to enable it to be comfortably satisfied that the transactions under reference involved an unlawful or improper scheme on the part of Finlay, or, if there was such a scheme, that the Solicitor had knowledge of it or was a part of it. [3] Apart from the circumstances which arose during the latter part of 1989 and the early part of 1990 which formed part of the conflict of interest allegations, the more serious events occurred more than seven years ago. [4] No loss was suffered by anyone as a result of the Solicitor's conduct. [5] No evidence was placed before the Tribunal to suggest that the Solicitor is unfit at this time to continue in practice. Notwithstanding these factors, the Tribunal nevertheless regards the conduct of the Solicitor as being most serious and this will be reflected in the orders it proposes to make. The Tribunal therefore orders 1. That the Solicitor pay a fine of $10,000.00 within a period of thirty days from this date. 2. That the Solicitor be suspended from practice as from the expiration of the said period of thirty days if the said fine shall not then have been paid until it shall have been paid. 3. That the Solicitor pay the costs of the Complainant of these proceedings, such costs to be assessed on a solicitor and client basis as if taxed in the Supreme Court of New South Wales. If agreement cannot be reached between the Solicitor and the Complainant on the amount of costs, either party to have liberty to apply. Dated: 17 January 1992. 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