England and Wales Court of Appeal (Civil Division) Decisions

ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London WC2A 2LL Thursday 21 March 2001

1. LORD PHILLIPS, MR: This is an appeal from the decision of the Chief Adjudicator of the Law Society dated 12 July 2000. By that decision the Chief Adjudicator upheld the decision of another Adjudicator, dated 7 June 2000, which refused to grant the appellant, Mr Adebowale, a waiver of the requirement to pass the litigation head of the Qualified Lawyers Transfer Test ("QLTT").
2. The following regulations of the Qualified Lawyers Transfer Regulations 1990 are of relevance. Regulation 11(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."

3. As will become apparent, that provision applies to the appellant.
4. Regulation 2 sets out interpretation and definitions. The definition of "Test" reads:

"'Test' means the Qualified Lawyers Transfer Test which is an assessment of competence in the subjects specified in these Regulations."

5. Regulation 5(3) provides:

"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."

6. The appellant is a qualified barrister and solicitor of the Supreme Court of Nigeria. He was first admitted to that profession in December 1991. He first applied to transfer to the Roll of Solicitors in England and Wales under the provisions of the 1990 Regulations in November 1997. Following his application, he was issued with a certificate of eligibility which specified that he would be required to pass the property, litigation and professional conduct and accounts head of the QLTT and that he should satisfy a two year experience requirement before seeking admission to the Roll.
7. Following provision of further evidence by the appellant as to his experience, the Law Society withdrew the requirement that he should have two years further experience. On 3 April 2000 the appellant wrote to Mrs Debbie Parker-Jones, a casework officer with the Law Society, formally requesting exemption from the litigation head of the QLTT. In that letter he set out some of the litigation and advocacy experience he has had in this jurisdiction. I can summarise this as follows: appearances in the Magistrates' Court in 1996, 1998 and 1999; pleadings and appearances in the county court (1995 - 1997); advocacy and written work for the Immigration Tribunals (1995 - 1997); applications for leave before the Immigration Appeal Tribunals; two appearances before the Employment Appeal Tribunal in London, in one of which his abilities were complimented by the Chairman of the tribunal, Maurice Kay J; three applications for leave to apply for judicial review; and settling pleadings and appearing as an advocate for respondents in over 30 cases in 1999 and 2000 in the course of his employment as an advocate for employment law and health and safety law consultancy. That is not a comprehensive account of the appellant's experience, but is an account which encompasses most of what he has put forward.
8. The appellant was informed that his request for exemption would be referred to the Adjudicator. In a letter dated 15 April (but may well have been dated the wrong month because the fax print-out is a month later) the appellant asked why his application was taking so long to be processed. He referred in his letter to extensive telephone conversations with the Law Society in which it is apparent that there was discussion of documentation. He indicated that he did not wish to send any documents without being asked for fear of being accused of showing off. By a letter dated 18 May 2000 he provided further details of his advocacy and litigation experience and a body of documentary evidence of that experience which is now before me.
9. It is clear from that letter and the documents provided that much of the work experience of Mr Adebowale was gained by him acting as an independent advocate and not in the employment of any firm or company. He attached to his original letter of 8 June 1998 three letters from bodies confirming some of his work experience. One was from Ali & Co, dated 18 January 1998; a letter dated 9 January 1998 from South Kirklees Citizens Bureau; and a letter of 9 January from Bureau Fax Technologies Limited.
10. On 24 May 2000 Mrs Parker-Jones submitted for consideration of a Law Society Adjudicator a report in relation to Mr Adebowale. On the same day she wrote to him a letter which included this paragraph:

"As confirmed during our conversations, where an applicant has been in independent practice, the Society would normally wish to receive a letter from either a senior qualified English barrister or solicitor attesting as to the experience that the applicant has gained, and where currently in employment, a similar letter should be received from the applicant's direct supervisor. Having confirmed, however, the difficulties that you face in this regard, I am duly referring your case to an Adjudicator for consideration."

11. The report that she sent to the Adjudicator set out all the information that had been provided by the appellant and annexed the relevant documentation. Under the heading "Summary - The Issues" it stated:

"Although there are no set guidelines, in general terms in order for exemption to be granted from a written Head of the Test, approximately two/three years relevant experience would need to have been gained in a solicitor's office (or other suitable legal entity). In recent times, Adjudicators have granted exemption from the Litigation Head on the basis of approximately twelve months senior level litigation experience gained with major City law firms here."

12. The letter went on under the heading "Recommendation" to say:

"The office makes no recommendation in this case".

13. The Adjudicator refused Mr Adebowale's application. In his decision he gave reasons which were forwarded to the appellant by Mrs Parker-Jones on 16 June as follows:

"Application for exemption from the Litigation Head refused.

Although the applicant appears to have had reasonably extensive experience in various tribunals his experience has, since 1997, been largely unsupervised. One would normally grant exemption where there has been two or three years relevant experience in a solicitor's office. This has not been achieved in recent years."

14. When he received this letter Mr Adebowale telephoned Mrs Parker-Jones. There was a conversation which plainly became heated because it led to Mr Adebowale writing a lengthy letter of 16 June 2000 complaining of unfair and discriminatory treatment by Mrs Parker-Jones.
15. As a result of that letter, the matter was referred to Ann North, the Manager of the Entry and Qualification Unit of the Law Society. She took over the conduct of the administrative side of the case. It was to her that Mr Adebowale forwarded his grounds of appeal from the Adjudicator's decision in a letter dated 27 June 2000. I can summarise his grounds of appeal as follows:

(1) the criteria as laid down in Regulation 11(1) of the 1990 Regulations for judging his application for exemption had been confused by the Adjudicator with other Regulations;

(2) the purported requirements of supervision, or lack of it, and the two or three years relevant experience in a solicitor's office, taken into consideration by the Adjudicator, was tantamount to acting illegally or ultra vires;

(3) that it was Wednesbury unreasonable to suggest that the only way by which the appellant's practical experience in the law of England and Wales could possibly be acquired was by the experience of being supervised and having two or three years relevant experience in a solicitor's office;

(4) that the requirements indirectly discriminated against a particular section of prospective applicants, because a considerably smaller proportion of black or ethnic minority candidates would be able to comply with the requirement.

(5) that the Adjudicator had failed to take account of the evidence of the appellant's High Court and Court of Appeal litigation experience referring only to extensive experience in various tribunals; and

(6) that Mrs Parker-Jones had fettered the discretion of Adjudicator by writing a prejudicial report to him.

16. Ann North prepared a report for the Chief Adjudicator which she forwarded to him on 29 June 2000. That again set out all the relevant facts and background.
17. Under "The Issues" it stated:

"The Adjudicator is asked to consider Mr Adebowale's appeal following the refusal of an application for exemption from the litigation head of the Qualified Lawyers Transfer Test."

18. Under "Recommendation" it said again:

"The office makes no recommendation in this case."

19. Mr Adebowale was informed of the Chief Adjudicator's decision by letter dated 12 July 2000 telling him that his appeal had been dismissed. The decision was set out as follows:

"Having considered all the papers including the Appellant's letter of appeal dated 27th June 2000, I have reached the same decision as the Adjudicator who dealt with the application on 7th June 2000, namely that the Appellant cannot be granted exemption from the Litigation Head of the Qualified Lawyers Transfer Test.

Clearly the Appellant has considerable experience in various tribunals but the syllabus for the Litigation Head is very much wider than tribunal work and the Appellant has not demonstrated that breadth of experience.

Accordingly, the requirements set out in your Certificate of Eligibility dated 17th July 1998 will stand."

20. It is from that decision that Mr Adebowale appeals to me. The first point that he has raised is a procedural one. In June 2000 he wrote to the Law Society asking for disclosure of documents relating to those applicants who have in the past been granted exemption from the litigation head of the test in order to enable him to demonstrate that he is as well, or better, qualified than them. He says that this is a request made orally in the course of last year and he has repeated that request to me.
21. In my judgment, even if I had the power to do so, it is not necessary to call for these documents in order to dispose of Mr Adebowale's appeal fairly. The essential issue is whether he has provided the Law Society with adequate material to demonstrate that his experience entitles him to waiver of the litigation test. The applications for waiver made by other applicants is not material that I need to consider in order to determine this appeal. I would add that I have been told by Mrs Coles, for the Law Society, that they will not voluntarily release such material because it contains confidential matters and that, even if the name of the applicant is not disclosed, they would be at risk of infringing data protection requirements were they to disclose this.
22. I turn to the substance of the appeal. The first point raised by the appellant is that the Adjudicator has failed to have regard to his High Court and Court of Appeal experience. That experience consisted of two applications in immigration matters for permission to apply for judicial review, in which he was responsible for very competent documentation on behalf of the applicants, and an application he made as a litigant in person which enabled him not merely to do the paper work but to appear both on the first application, which was rejected, and then on the renewed application to the Court of Appeal. That material was before the Adjudicator and the Chief Adjudicator. I have no reason to conclude that the Chief Adjudicator did not have proper regard to that material. The fact that he did not mention it is not surprising. It does not evidence a great amount of High Court experience; on the contrary it demonstrates very slight High Court experience and, apart from the appellant's own application, it was experience in the same narrow field of immigration which he had amply demonstrated in relation to tribunal work.
23. The appellant also complains that the Law Society Chief Adjudicator "shifted the goalposts" because he applied an additional yardstick when considering Mr Adebowale's case. He compared Mr Adebowale's experience with the syllabus of the test in order to see the extent to which that experience would be a satisfactory substitution for the knowledge that would be required to be demonstrated by the test. It does not seem to me that that was shifting the goalpost. The question had always been whether the appellant had demonstrated adequate experience of litigation. One way of considering whether it was adequate was to compare his experience with the range of experience required to be demonstrated by the test. The issue was whether his experience was a satisfactory substitute for the test. I do not consider that the Chief Adjudicator can be criticised or was doing anything improper by adopting that criteria. On the contrary, it demonstrates a sensible approach to his task. So that complaint is not made out.
24. The next point taken in the appellant's skeleton argument is that the case worker officer and Ann North demonstrated partiality because on their reports they each stated that "The Office makes no recommendation in this case". I cannot see how that fact demonstrates partiality. In any event, adjudicators appointed by the Law Society do not decide cases on the basis of comments made by case workers preparing the report. They apply an independent judgment. They are trained by the Law Society before being appointed as Adjudicators and are well qualified to make up their own minds. I have been referred to the particular qualifications of both the Adjudicator and Chief Adjudicator who were involved in this case. There is no question of their being unqualified to apply the right tests and to exercise an independent judgment.
25. The appellant submits that the Adjudicator and the Chief Adjudicator applied the wrong test because they approached the application on the basis that what was really needed was a letter or other certificate from a qualified barrister or solicitor who had supervised the appellant and could vouch for his experience. He says, on that premise, that there was indirect discrimination because there would be fewer black applicants who could satisfy such a criterion because of the documented difficulty that black applicants have in obtaining training places with solicitors. That point is based on a false premise. It is quite plain that the Chief Adjudicator did not apply any such criterion. This appellant was not in a position to provide that form of reference. He provided instead documentation and an account of his own experience. The Chief Adjudicator had regard to all the evidence of experience that was produced. He had to consider whether that experience was adequate to justify a waiver of the litigation head.
26. In his final ground of appeal, Mr Adebowale submits that the Adjudicator's decision in the appeal procedure appeared to lack judicial impartiality or any objective impartiality. I cannot see any basis for that assertion. The question is whether the Chief Adjudicator's decision that there should not be a waiver of the litigation head was one that he could reasonably and fairly reach on all the relevant material that was before him. I am in no doubt that it was.
27. This appellant has very considerable experience of tribunal work and has demonstrated considerable ability on paper in relation to that work. But one has only to compare the limited breadth of his experience with the areas that candidates are required to cover when they take the litigation test to see that the Chief Adjudicator was entirely reasonable in concluding that this appellant should be required to demonstrate knowledge in those areas by taking the test.
28. For these reasons this appeal will be dismissed.

MRS COLES: I am obliged, my Lord. I make no application for costs.

LORD PHILLIPS, MR: No order for costs.