England and Wales Court of Appeal (Civil Division) Decisions

ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 27 March 2001

1. LORD PHILLIPS, MR: This is an appeal by Malcolm Congreve Brown against the decision of the Appeals Committee of the Office of Supervision of Solicitors ("the OSS") dated 21 December 2000. The Appeals Committee resolved to dismiss Mr Brown's appeal against an order of an Adjudicator dated 4 October 2000. By that order, the Adjudicator indicated that he would grant Mr Brown a Practising Certificate for 1999/2000 subject to the condition that he only practise in approved employment or partnership.
2. Mr Brown was admitted to the Roll of Solicitors on 1 March 1963. He practises as a sole practitioner. In August 1995 Mr Brown's accounts were inspected by the Investigating Accounts Department of the OSS. This resulted in a report which was published in October 1995. The reason for the investigation was Mr Brown's involvement in a series of alleged mortgage frauds, allegedly committed by one of his clients, Mr Kelly, in 1990 and 1991. Mr Brown had been involved in these transactions as the conveyancing solicitor.
3. There were seven or eight suspicious transactions in which Mr Brown was involved. These transactions involved a Mr Kelly, Mrs Kelly and a company called Falcon Properties. It was a significant factor in the transactions that Mrs Kelly also used the name of Ms Caroline Stevens and this was, no doubt, a material factor in the trial which was to follow. An issue then was, and still is, whether Mr Brown was aware of the fact that Mrs Kelly and Mrs Stevens were the same person. He has at all times maintained that he was unaware of that fact.
4. The nature of the transactions (not untypical of such transactions at that time) was a purchase and then a repurchase of property, the repurchase being at a substantially greater price than the original purchase, the funding being made for the repurchase on the basis that the repurchase price fairly reflected the market value of the property.
5. On 19 December 1997 the Disciplinary Committee of the OSS considered the Investigation Accountant's Reports. It resolved:

(1) to stand over the disciplinary considerations of the matter until the outcome of the criminal proceedings;

(2) to vest a discretion with respect to the issue of his next Practising Certificate; and

(3) to impose an immediate condition on Mr Brown's Practising Certificate that he should not appear as an Advocate in any criminal proceedings and that he should be required to lodge half-yearly accountant's reports.

6. In November 1998 Mr Brown was convicted of driving with excess alcohol. This matter was referred to the Disciplinary Committee of the OSS who noted his conduct with regret, but otherwise resolved to take no further action against him. In relation to the alleged mortgage frauds, criminal charges were brought against Mr Brown in 1997 and the matter came on for trial in September 1999. The charges against Mr Brown were dismissed by the judge on the basis that there was no case to answer that Mr Brown had the necessary criminal intent. On that basis he directed the jury to enter a verdict of not guilty.
7. On 28 June 2000 the matters relating to the mortgage fraud and Mr Brown's involvement in it were reported to the Solicitors' Disciplinary Tribunal. On 5 January 2001 there was a prelisting hearing. There is an argument of law to be raised as a preliminary argument and the date for a further hearing has not yet been fixed.
8. There is one further matter of complaint against Mr Brown relating to the late payment of counsel's fees in July 2000 for which he was fined £3,500.
9. On 17 August 2000 Miss Moore of the OSS wrote to Mr Brown in response to his application for a Practising Certificate for the year 1999/2000. She informed him that she was referring his application to an Adjudicator. With her letter she attached a copy of her report and draft recommendation. She recommended that Mr Brown's certificate should be subject to a condition that he practise in approved partnership or in employment.
10. Mr Brown's solicitors wrote to the OSS on 24 August setting out their client's response to this recommendation, contending that it was inappropriate to subject his Practising Certificate to these conditions in the circumstances. So far as the involvement in the mortgage fraud is concerned, they argued that Mr Brown ought to be treated as innocent unless and until his guilt was established before the Disciplinary Tribunal. They also argued that it was wrong, as a matter of principle, that Mr Brown should be penalised before he has had a fair hearing.
11. The Adjudicator declined to wait for the outcome of the disciplinary hearing before making his decision. The decision, made on 4 October 2000, was to this effect:

"Without prejudice to any outstanding matters to grant Mr Brown a practising certificate for the year 1999/2000 subject to the condition that he acts as a solicitor only in employment which is approved by the Office for the Supervision of Solicitors in connection with the imposition of this condition or as a member of a partnership which is so approved and that he is not an office holder and/or a director or shareholder of an incorporated solicitors practice and that any employer or prospective employer or partner or prospective partner will be informed of his decision.

The reason for this decision is that in the light of Mr Brown's history with the Office, his recent appearance before the Tribunal and the seriousness of the nature of his outstanding disciplinary hearings, it is in the interests of the public and the profession that he only practises as a solicitor with supervision and support."

12. There was then an appeal to the Appeals Committee who dismissed the appeal stating:

"The Appeals Committee did not consider there was anything in the grounds of appeal to persuade them to alter the decision reached by the Adjudicator at first instance. The Appeal Committee was in addition concerned about the seriousness of the matters going to the SDT.

The Appeals Committee refused to grant Mr Brown any extension of time to the condition taking effect, as the Appeals Committee felt that he had had sufficient time to make the necessary arrangements."

13. Mr Brown has been represented before me by Mr Stephen Hockman QC, who has first made the point that the effect of the condition would be that Mr Brown would have to cease practice because it is not realistic at this point in time, with the hearing before the Disciplinary Tribunal hanging over his head, to think he would be able to satisfy the proposed conditions on his certificate.
14. The second point made is that the object of placing these conditions on the certificate is to protect the public. But the remarkable feature of this case is that the matters which have been given rise to concern all occurred about ten years or so ago. In relation to the driving offence and failure to pay counsel's fees, it is common ground that these would not justify the placing of the conditions on Mr Brown's certificate. They are only matters of background.
15. I consider that there is force in these points. It would indeed be very drastic at this stage to impose these conditions on Mr Brown's certificate. The main feature is that ten years have elapsed since these matters occurred. The disciplinary proceedings are in train and, it seems to me, they could and should be dealt with speedily.
16. In these circumstances, I have concluded that the appropriate course is that this appeal should be adjourned. The stay on the imposition of these conditions should continue until the result of the disciplinary hearing is known. I couple that decision with a strong recommendation that the disciplinary proceedings, which have been on foot for nine months now, be brought to a speedy conclusion.

MR HOCKMAN: Although your Lordship's formal order is in the nature of an adjournment, I hope I would be justified in saying that, so far as the contest between the parties is concerned, our submissions have, in substance, succeeded and I would invite your Lordship to say that we should have our costs.

MR CADMAN: I would invite you to reserve costs until the outcome of the tribunal and we know the their findings with regard to the matters.

LORD PHILLIPS, MR: That is the course I propose to take.