England and Wales Court of Appeal (Civil Division) Decisions

ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 14 March 2001

1. LORD PHILLIPS, MR: This is an appeal brought by Dr Driver against decisions dated 20 June 2000 and 27 July 2000 of the Law Society that Dr Driver is not eligible under the Qualified Lawyers Transfer Regulations 1990 ("the Regulations") to sit the Qualified Lawyers Transfer Test ("QLTT") so as to enable him to apply to be admitted to the Roll of Solicitors in this jurisdiction.
2. Regulation 17 of the Regulations provides that:

"(1) A person seeking to establish eligibility under Regulation 5 may:

(a) within one month of receiving notification from the Society of any decision ask for the application to be reviewed; and

(b) within three months, or such longer period as may be prescribed by or under statute, of receiving notification from the Society of its decision on an application for review under paragraph (a) apply to the Master of the Rolls who may:

(i) affirm the decision of the Society; or

(ii) make such other order as the Master of the Rolls thinks fit."

3. The Law Society initially took the view that this Regulation was not applicable and that I had no jurisdiction to entertain an appeal or application from him.
4. It did not seem to me that that view was correct. In those circumstances I suggested to the Law Society that they should consider waiving the second requirement of Regulation 17 that there should be an application by Dr Driver for review before he had a right to apply to me. The Law Society accepted that Regulation 17 gave me jurisdiction and acceded to my suggestion that they should waive the requirement under 17(1)(b). It is in those circumstances that Dr Driver appeals to me today.
5. I should emphasise at the outset that my jurisdiction is one conferred on me by the Regulations, and that my role, as I see it, is to consider whether or not, under those Regulations, Dr Driver was eligible to apply to take the Qualified Lawyers Transfer Test.
6. The QLTT is a stage in a procedure by which a foreign lawyer or United Kingdom barrister, who wishes to be admitted to the Roll of Solicitors, can convert to being a qualified solicitor without the requirement of the education and training that other routes require. The taking and passing of the QLTT, coupled with the complying with further appropriate training requirements, entitles an applicant to be admitted to the Roll of Solicitors in England and Wales.
7. The Regulations set out the criteria which must be met before an applicant is eligible to sit the QLTT. If an applicant falls within the criteria set out in the Regulations, the Law Society issues the applicant with a certificate of eligibility. Noone can sit the QLTT without such a certificate. The certificate determines what heads of the QLTT the applicant must sit, as well as specifying any further training requirements.
8. The facts of the case I take largely from Dr Driver's own petition, coupled with a statement that he has filed in support of his application, a further memorandum in support of that application and also from a file containing a number of contemporary documents that are relevant to his application. Dr Driver is a British citizen who read English as an undergraduate at the University of Sussex from October 1972 to June 1975. In July 1978 he received his degree at that university.
9. In 1976 Dr Driver emigrated to the United States of America. In 1979 he entered the University of San Diego Law School. In order to enter Law School he had to sit the Law School Admissions Test. He passed that test with the high score of 680 out of a possible 800 points. On 31 December 1983 he graduated as a Doctor of Law from the University of San Diego.
10. In his petition, Dr Driver states, and has confirmed to me, that he took and passed the Multistate Bar examination in 1994, although he has been unable to obtain any documents to show proof of his score in that examination or to show that the score was adequate to entitle him to qualify as a practising lawyer in the various States of the United States.
11. In February 1994 Dr Driver also passed the Californian Bar examination. He has exhibited the certificate to that effect. Dr Driver has stated in his petition that after the Bar examination process one may apply to the State Bar for admission as an attorney. He has told me that, in order to be called to the Bar of the State of California, he would first have had to take a further examination on legal ethics. He has told me that, by this stage, he had been in the United States long enough and was anxious to return to this country, so, instead of staying on to take the ethics examination and apply for admission to the Californian Bar, he came back to England. On his return to this country he obtained a diploma in Business Information Technology in a European context from Canterbury University in November 1998.
12. While Dr Driver was in the United States he had a wide range of experience in legal work. He worked as a law clerk to a Californian attorney from the end of his first year of Law School to the remainder of his time there. Between 1984 and 1991 he acted as Corporate Counsel for a company known as 21st Century Financial in San Diego.
13. On his return to England, Dr Driver first took steps to obtain admission as a solicitor in this country in 1996. There is a body of correspondence with the Law Society relating to that application. This includes a lengthy letter to Dr Driver, dated 13 June 1996, from Mr Nicholas Saunders, the Head of Legal Education, giving him information about the Qualified Lawyers Transfer Regulations and the Qualified Lawyers Transfer Test. That letter stated that these Regulations were not of any assistance to him as, "....you have not completed all the Bar examinations required for admission as an attorney in California".
14. In his petition Dr Driver complained that he was not told about the Qualified Lawyers Transfer Regulations and the test until 1998. He now accepts that that is not correct; he plainly was informed about these matters in 1996. Before me, however, he has complained that he should have been sent an application form to enable him to apply under the Regulations and that he was treated unfairly in not being sent such a form. In my view there is no justification in that complaint, provided that Mr Saunders was correct in his conclusion that those Regulations could not afford Dr Driver any assistance. That is the issue that I have to resolve.
15. Dr Driver was unhappy about his treatment by the Law Society in 1996 and he issued proceedings in the Brighton County Court against the Law Society and Mr Saunders. Those proceedings were dismissed for want of jurisdiction, although Dr Driver does not accept that they were properly dismissed for that reason. As far as I am concerned, however, that has no relevance to his present application.
16. In 1998 Dr Driver made further inquiries as to his eligibility to be admitted to the Roll. Again he was told that he first needed to be admitted as an attorney in California if he was to follow the QLTT route. He says that he was led to believe that he needed to demonstrate his experience and understanding of English law. To this end he prepared a 100-page thesis showing that Californian law, and indeed the law of most American States, is derived from the English common law. He complains that it was not until after he prepared this memorandum that he received an application form for the QLTT. He says that "....it was only then that the Law Society decided to reveal the secret of the existence of the QLTT process". For reasons I have given, that complaint is not made out. In 1998 Dr Driver's approach met with the same response that he was not entitled to sit the QLTT.
17. The matters that have led to the present application commenced on 9 June 2000 when Dr Driver completed the application form required to obtain a certificate of eligibility. He was told that he was not eligible to apply for this certificate because he had not been admitted as an attorney in California. He replied in a letter of 18 July 2000 to Sarah Butler asking the Law Society to re-examine their decision. In that letter, and in his petition to me, Dr Driver has made a number of wide-ranging points.
18. First he says that the Law Society's decision treats as worthless his considerable academic qualifications. He complains:

1. that he has better qualifications than the average solicitor in this country;

2. that the decision discriminates against him on the basis of national origin, which is not a complaint I have found it easy to follow;

3. that the decision is not based on an objective appraisal of the public's best interest, but is motivated by the Law Society's standard operating procedure which aims at maintaining a cartel;

4. that the Law Society's decision creates a dual standard as the process of qualification in the United States is more arduous than that in this country;

5. that it is not right to say that he does not qualify to take the QLTT because he has passed the examinations required for admission in California.

19. Dr Driver also says that the Law Society throughout the 5 year period that I have described has been behaving in bad faith in frustrating his efforts to qualify.
20. I have the relatively narrow task of considering whether the Law Society has correctly decided that Dr Driver is in a position to qualify as a solicitor by the route afforded by the Qualified Lawyers Transfer Regulations. Regulation 5 of the Regulations provides as follows:

"(1) A person seeking to establish eligibility under these Regulations to apply for admission must provide such evidence as the Society may require that the applicant:

(a) is a person to whom any of Regulations 6 to 15 applies; and

(b) is suitable to be admitted as a solicitor.

(2) If the Society is satisfied that an applicant is so eligible it must issue a certificate to that effect stating any subjects in the Test which the applicant is required to pass and in respect of applicants to whom Regulations 6, 10, 11 or 15 apply any other conditions which the applicant must satisfy. A person who does not hold such a certificate may not attempt the Test.

(3) In making any determination under Regulations 6 to 15, the Society shall have regard to the nature and extent of the applicant's practical experience in the law of England and Wales and any other academic or other qualification."

21. The Regulations then deal with a number of categories of persons, to which Dr Driver does not suggest that he belongs. He invokes Regulation 11 which provides that:

"(1) An overseas lawyer who has qualified in one of the professions listed in the Schedule to these Regulations by passing the qualifying examinations required of a person who has not previously qualified for admission in any other jurisdiction must, prior to applying for admission, pass the Test in such subjects as are specified in the Schedule unless in any individual case the Society grants a waiver."

22. The Regulation then goes on to make certain other provisions as to the qualification of an overseas lawyer. Under Regulation 11, subparagraphs (3) and (4) provide that an overseas lawyer must apply to the Society who will determine whether that lawyer is an eligible applicant and, if so, what subjects he is required to pass in the Test. In Regulation 2 there are a number of definitions. These include the following:

"'Overseas lawyer' means a member of one of the professions listed in the Schedule to these Regulations."

23. The Schedule provides:

"Lawyers of the following Courts who wish to be admitted as solicitors in England and Wales and who have passed the qualifying examinations required for admission to such Courts of a person who has not previously qualified for admission in any other territory are required to pass the written Heads of Test."

24. There is a list of the different territories, one of which is "California - Attorney at Law".
25. It is apparent that most of the grounds of complaint raised by Dr Driver do not focus on the narrow question of whether he falls within the Regulations. It is right to observe that it may well be the case that the training and experience that Dr Driver gained in California result in his being a suitable person to transfer to the solicitors' profession in this country subject, perhaps, to certain further training. But that is not the issue because the Regulations do not give the Law Society a free discretion as to who should be admitted and on what terms.
26. The Qualified Lawyers Transfer Regulations are only one avenue by which applicants can qualify to be solicitors. They expressly require that an applicant such as Dr Driver must (i) be an overseas lawyer as defined, and (ii) have qualified by passing the examinations required in order to become an overseas lawyer.
27. Dr Driver is not an overseas lawyer within the definition of the Regulations because he has not qualified to practise as a member of the Californian State Bar. It is also apparent from what he has told me that he has not passed all the examinations required in order to qualify as a practising member of the Californian Bar. He has not passed the examination dealing with ethics, an important area for any practising lawyer.
28. In those circumstances, it is plain that the Law Society has been correct at all stages in informing Dr Driver that the Qualified Lawyers Transfer Regulations do not enable him at present to apply to take the QLTT. His present qualifications, perhaps, put him in a position to qualify in California and then to invoke the Regulations. They are also qualifications which could well prove advantageous should he choose to become a solicitor by other routes that are available to him.
29. For the reasons I have given, I must dismiss this appeal.
30. LORD PHILLIPS, MR: Are there any further applications.
31. MRS COLES: I have no further applications, my Lord.
32. LORD PHILLIPS, MR: You are fortunate that nobody is asking you to pay the costs.