England and Wales Court of Appeal (Civil Division) Decisions

ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 24 October 2001

1. LORD PHILLIPS, MR: This is an appeal from the decision of the Appeals Committee of the Office for the Supervision of Solicitors ("OSS"), of 23 August 2001, imposing a condition on Mr Walker's Practising Certificate for the year 2000/2001, whereby he is required to practise in an approved partnership.
2. This matter was last before me on 18 January 2001. I refer to the judgment I gave for details of the facts. The case relates to serious accounting irregularities committed by Mr Walker in 1996/1997. Those irregularities did not involve dishonesty, they involved incompetent book-keeping. They also led to severe financial penalties being imposed upon him and, pursuant to the recommendation of the Solicitors Disciplinary Tribunal which imposed those fines, to a decision by the OSS, confirmed by the Appeals Committee on 11 November 1999, that Mr Walker's Practising Certificate be subject to a condition that he practise in employment or approved partnership.
3. Mr Walker appealed to my predecessor, Lord Woolf, who, on 30 March 2000 upheld the decision but gave Mr Walker six months to comply. Mr Walker had been in negotiations with a solicitor called Mr Chohan with a view to forming a partnership in order to satisfy the condition imposed.
4. On 19 July 2000 the OSS approved Mr Chohan as being a suitable solicitor for this purpose, subject to further conditions in relation to the signing of cheques. Meanwhile they reimposed a condition on Mr Walker's new Practising Certificate and directed that, subject to review, it should remain in place during the currency of his next two Practising Certificates.
5. The conditions as to the signing of cheques had the effect, according to Mr Walker, of throwing his negotiations with Mr Chohan into disarray. He appealed to the Appeals Committee which, on 7 September 2000, rejected his appeal. He then appealed to me, not merely against the conditions in relation to signing the cheques but, more importantly, against the requirement of partnership. So far as the lesser condition of signing the cheques is concerned, his appeal was successful, but I was not persuaded that he had made out a sufficient case for the need to, in effect, reverse the decision of Lord Woolf.
6. However, he did make out a strong case as to the consequences if it should prove impractical to comply with the condition. He had had some problems in relation to forming a partnership with Mr Chohan before the hearing. I said at the time:

"He has submitted that the defaults which led to the imposition of the condition that he should practise in partnership are now over three years old; that he has maintained a thriving partnership which is of great benefit not only to his clients but to the community; that he has rectified the deficiencies which are shown to exist in the book-keeping of his firm and now has in place an accounts department which will ensure that the irregularities that occurred in the past will no longer occur; and that in all these circumstances it is not reasonable that the condition that he should practise in partnership should subsist."

7. In the course of my judgment, I said that:

"Having heard what Mr Walker has said, I would urge the OSS to examine his practice so that they can give consideration to the points he has made before me."

8. I had been told in the course of the hearing that that would be a practical possibility. I allowed Mr Walker a further two months to conclude negotiations with Mr Chohan. He expressed concern as to whether two months would be long enough, at which I said:

"I have made my order. You have two months, you will have to move fast. If Mr Chohan is going to say 'nothing doing', that will be something he will make plain very quickly indeed and you will have to seek some alternative solution. I have urged the OSS to review your position, and if you are having difficulties with Mr Chohan you must raise this immediately with the OSS."

9. During the two months I allowed, it fell to the OSS to consider whether conditions should be continued on Mr Walker's next Practising Certificate for 2000/2001. In relation to this there was a further matter outstanding. The documentary evidence records that on 11 October 2000:

"The Committee considered allegations that Mr Walker wrote offensive correspondence to Lane Heardman, solicitors, and, further, that Mr Walker's attitude towards Lane Heardman in the conduct of the conveyancing in relation to 27 Albion Road, Hounslow was inappropriate and unhelpful. The Committee resolved to refer his conduct to the Solicitors Disciplinary Tribunal and to vest a discretion in respect to the issue of his next Practising Certificate."

10. A witness statement from Mr Field states that on 16 January 2001 he sent the clerk for the Solicitors Disciplinary Tribunal ("SDT") a set of papers following the resolution of the Office to refer the petitioner's conduct to the tribunal. The case against the petitioner was that he had written offensive correspondence to other solicitors.
11. By letter of 30 January 2001, the clerk to the tribunal wrote to Mr Field indicating that the tribunal had declined to mark the original set of papers as disclosing a prima facie case. However, four days before that, Mr Field had received a further file from the Office relating to a complaint made against Mr Walker. He referred that matter to the SDT urging them to reconsider the previous complaints, but I am now informed that it is only the last matter which is actually active.
12. On 22 February the OSS wrote to Mr Walker enclosing a draft recommendation that the condition be continued on his new Practising Certificate. This draft included the reasons for the recommended decision:

"These conditions are imposed on the grounds that in light of the pending disciplinary proceedings against Mr Walker and the Findings of the Solicitors Disciplinary Tribunal it is in the interests of the public and the profession that Mr Walker practises as a solicitor only with supervision and support."

13. When he received that draft recommendation, Mr Walker took counsel's advice and wrote a letter which included the following:

"The important matter is the continued imposition that I enter into partnership. This in my view is unnecessary and unfair. You will note from the judgment of Lord Phillips that he urged the OSS to examine this issue again and reconsider the requirement of partnership. That has not yet happened and I assume that your Office will do so prior to the papers being finally submitted to the Adjudicator."

14. The Adjudicator, Miss Webb, did not comply with that suggestion. On 12 March she issued a decision imposing the condition of partnership on the certificate. As to the application for an extension of time for compliance with the condition, she said:

"I have considered whether to extend time for compliance with the condition outlined in paragraph 1. I am satisfied however that since the condition of approved partnership or employment was first suggested by the Tribunal in January 1999, formally imposed by the OSS in September 1999, endorsed by the Master of the Rolls initially in March 2000 (so that it should have taken effect in September 2000) and re-affirmed by the Master of the Rolls on 18 January 2001, when he allowed 2 months for the condition to take effect, there can be no question that Mr Walker is likely to be prejudiced by not having had sufficient notice or time to make arrangements to ensure compliance. Accordingly, I make no direction to vary the timescale imposed by the Master of the Rolls"

15. Not surprisingly, Mr Walker appealed the decision to the Appeals Committee which rejected his appeal and, in so doing, added:

"For the avoidance of doubt the Committee directed that the condition specified shall take effect from 30 September 2001 irrespective of any appeal that Mr Walker may lodge with the Master of the Rolls. They expressly recorded that although they have discretion to direct that the condition shall not have effect pending any appeal, that it was not appropriate to exercise that discretion in this case, having particular regard to the Master of the Rolls' decision of 18 January 2001. They were also satisfied that in the light of the timescale referred to in the decision of the Adjudicator there can be no question that Mr Walker is likely to be prejudiced by not having sufficient time or notice to make the necessary arrangements."

16. The position has been made plain to me, and for the first time to the Law Society today, that Mr Walker was having some difficulty with the proposal that he should enter into partnership with Mr Chohan. Apparently, Mr Chohan has applied for a judicial appointment which leaves him disinclined to enter into a fresh partnership agreement at this point. In these circumstances, Mr Walker sought interim relief before the Administrative Court, pending an appeal to me. That application was adjourned because the judge was uncertain as to whether he had jurisdiction or whether it was a jurisdiction that I should exercise. In the meantime a cancelled hearing enabled this substantive appeal to be placed before me.
17. By way of appeal, Mr Sampson, who has appeared for Mr Walker, has first objected to consideration being given to the outstanding matter before the Solicitors Disciplinary Tribunal. More significantly, he has emphasised that a further nine months have gone by without any indication of shortcomings in the accountancy carried out by Mr Walker's firm. He also emphasised the fact that the Law Society did not follow my strong recommendation to investigate to see whether there were any accountancy shortcomings or grounds for apprehension that necessitated the condition that Mr Walker should practice in partnership because of their concerns about this aspect of his practice.
18. For the Law Society, Mr McLaren submitted, and in my judgment correctly submitted, that, in principle, it is right for the OSS to have regard to outstanding matters referred to the Solicitors Disciplinary Tribunal when considering whether a solicitor should be permitted to continue without a condition on his certificate. Plainly, there will be circumstances where matters referred to the SDT are so serious that, for the protection of the public, a solicitor cannot be permitted to continue without any condition in the interim. That, however, is plainly not this case, as Mr McLaren accepted.
19. The first complaints of this type were rejected as not even showing a prima facie case. The current complaint is strongly contested by Mr Walker and could not justify measures as serious as placing a condition on the certificate of the type appealed against.
20. Much more serious is the fact that Mr Walker has simply disregarded the condition that was imposed upon his certificate. Although I made it plain that he should inform the Law Society if he was having difficulties in arranging a partnership with Mr Chohan, he did not do so. He simply appears to have proceeded on the assumption that, when his certificate came to be reconsidered, the Law Society would have followed my recommendation and concluded that there was no need for the condition to subsist.
21. I consider that attitude highly unsatisfactory but that is not what is in issue today. The issue today is whether it is necessary that Mr Walker should practise in partnership and, having regard to the state of affairs as they now exist, whether it is necessary, for the protection of the public, to impose on his certificate a condition which will force him to cease to practise. Unless an extension is granted, that will be the result. The consequences of that, as were made plain at the last hearing, would be extremely serious for his workforce and for his clients. Again, there is no hint of complaint that I have seen in relation to the manner in which he serves their needs.
22. The witness statement of the Adjudicator, Miss Webb, gives no explanation as to why it was that no pro-active steps were taken, pursuant to my recommendation, to consider whether or not it was necessary for this condition to subsist. That is unfortunate because I have no positive information from the Law Society about that matter. It would appear that the statutory accounts have been properly filed up to this time. But, as Lord Woolf remarked, that is not a sufficient guarantee that all is well with solicitors' accounts.
23. In these circumstances, I propose to adjourn this appeal for three months directing that the condition be suspended during that period in the hope that, when this matter is restored, I shall have some positive evidence from the Law Society to assist me to decide whether, four years after the material events, it is necessary for the protection of the public that Mr Walker practises with an approved partner. I hope that, while this period elapses, there will be communications between the parties so that Mr Walker can be kept informed as to whether he is likely to be back in front of me in three months facing a case which requires him to enter into partnership.
24. As long as that remains a possibility, it would be blameworthy to take no steps to anticipate it. If Mr Chohan is not available, Mr Walker should be looking around so that, in the event I was to conclude in three months that he should enter into partnership with somebody else, he will be in a position to ensure me this can be done quickly. As his counsel has accepted, he has been taking advantage of the position that it is possible to play for time by making repeated appeals, year by year, as a fresh certificate is subjected to a condition.

MR SAMPSON: My Lord, plainly a day will have to be fixed in due course. It seems that, although Mr Walker may well feel that he has been successful today, that the fateful day has been put off for further inquiries. It would not seem appropriate that the question of costs be dealt with today.

LORD PHILLIPS, MR: I think the question of costs should be dealt with today. I will see what Mr McLaren has to say about that.

MR MCLAREN: My Lord has criticised each party's conduct. In those circumstances I am a little hesitant to make application for the Law Society's costs, just as I expect Mr Sampson would not be happy to make an application for his costs because we are both responsible for the need to adjourn. In my submission, you should order that costs of today be reserved until the hearing of the appeal.

LORD PHILLIPS, MR: My inclination is to make no order as to costs of today.

MR MCLAREN: So be it.

MR SAMPSON: My Lord I rose to make the comment I did for the same reasons of hesitation my learned friend did. It would be hard to criticise the proposed order your Lordship wishes to make.

LORD PHILLIPS, MR: Of course, if the Law Society concludes that all is now well, there will be no need for a further hearing.

MR SAMPSON: No, my Lord.