England and Wales Court of Appeal (Civil Division) Decisions

ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 3 April 2001

1. LORD PHILLIPS, MR: This is an appeal by Isabella Iyama-Onibudo from the decision dated 10 November 2000 of the Appeals Committee of the Office of Supervision of Solicitors, ("OSS"). By that decision, the Appeals Committee dismissed the Appellant's appeal from the decision of the OSS Adjudicator, dated 9 September 2000, imposing an immediate condition on the Appellant's Practising Certificate to the effect that she may not undertake any legal aid work pending the outcome of a hearing before the Solicitors' Disciplinary Tribunal ("the SDT"). The Appellant seeks a continuance of the stay of that condition until the outcome of the hearing before the SDT. That hearing is expected to take place in some months' time in the course of the summer.
2. The facts are complex. It is not my role to attempt to resolve the issues which are before the SDT. I do not exercise a disciplinary function, but a regulatory function in which I have a wide discretion. That discretion falls to be exercised having regard to two considerations: (i) the welfare of the public who are being served by this Appellant as a solicitor; and (ii) the standing and reputation of the solicitors' profession.
3. The Appellant was admitted to the Roll of Solicitors in October 1996. It has not been suggested that she was unaware of the fact that this required her to practise under supervision until 1 October 1999. She set up in practice under the name Iyama & Co, but it is alleged by the Law Society that she practised concurrently as a partner in another firm, Awtar Singh & Co (which incorporated Austin Sheikh & Co). The Appellant denies this, although she accepts that she played a part in supervising the business carried on by that partnership.
4. In the disciplinary proceedings that the Appellant is facing, allegations of misconduct are made against her arising out of the two separate practices. I am told by Mr Engelman, her counsel, that the allegations include an allegation of dishonesty relating to her holding herself out as a partner in the firm of Awtar Singh, if indeed it be the case, as she contends, that she is not a partner in that firm.
5. The Appellant was articled with a firm known as Procaccini Farrell & Co, where she also worked as a practice manager. She has placed before me a bundle of documentary evidence, which includes a letter dated 8 December 1999 from Mr Farrell of that firm. He states in that letter that she was employed with his firm as an assistant solicitor until February 1998. I pick up the account in his letter on page 3:

"It was agreed between Mrs Onibudo [the appellant] and myself that together we would set up our own partnership, which would trade as Iyama & Co. I would continue to be based at Procaccini Farrell & Co, but would also spend a part of each day at Iyama & Co. Mrs Onibudo would be responsible for the day to day running of Iyama & Co and for the case work. I would supervise her work, and provide direction assistance and support.

During our discussions regarding Iyama & Co Mrs Onibudo informed me that Mr Ned Nwoko, a sole practitioner at Awtar Singh & Co solicitors in Kilburn, London wished to leave that firm.

Mrs Onibudo and I discussed the prospect of our partnership covering both the Kilburn offices of Awtar Singh & Co, and the Borough High Street Offices of Iyama & Co.

I spoke with Mr Nwoko on the telephone and he confirmed to me that he wished to leave his practice and return to Nigeria to enter into politics. Mr Nwoko agreed to transfer Awtar Singh & Co, as a going concern. I considered this to be an excellent business opportunity. I was particularly interested in the firm because I am Irish by origin and many of my existing clients at that time were also Irish and were based in and around the Kilburn area of London.

In about December 1997 I went to the offices of Awtar Singh & Co solicitors in Kilburn. I was introduced to then members of staff, and I was shown the firm's accounting records.

I decided to take over the firm. I agreed with Mr Nwoko to do so from the beginning of February 1998.

No formal written agreement was entered into between Mrs Onibudo and myself. However it was my understanding of our arrangement that we were business partners in both firms. My understanding of our arrangement was that I would have day to day responsibility for Awtar Singh & Co, and that Mrs Onibudo would have day to day responsibility for Iyama & Co.

I would concentrate on working to build u the practice of Awtar Singh & Co and Mrs Onibudo would concentrate to build up the firm of Iyama & Co.

It was my hope that between us we could build up a thriving practice covering north (Awtar Singh & Co in Kilburn), central (Iyama & Co in Borough) and South London (Procaccini Farrell & Co in Stockwell)

I have now spoken with Mrs Onibudo in detail and I accept that she did not consider that she was a partner in Awtar Singh & Co during the early part of 1998.

I also accept that it would have been sensible, and that it would have prevented a lot of confusion, if Mrs Onibudo and I had spent the time to spell out our business relationship more clearly and to draw up a partnership agreement. At the time however we did not do so."

6. He then describes the part he plays in supervising Awtar Singh & Co and Iyama & Co where he says:

"....I was much less involved on a day to day basis. I did ensure that I supervised the office by ensuring that I was contactable at all times and by attending at the office on a daily basis. I would on a regular basis review the office files. I would regularly, and at least on a weekly basis, have review meetings".

7. Mr Farrell goes on to state that he decided to leave Awtar Singh & Co in November 1999 when Mr Nwoko took over, having returned to this country.
8. The complaints made against the Appellant in relation to Iyama & Co arise out of a report dated 29 July 1999 of the Monitoring and Investigation Unit of the OSS. That report highlighted issues in respect of compliance with the Solicitors Accounts Rules, and allegations that on a number of occasions the firm had incorrectly claimed and received disbursements from the Legal Aid Board in respect of services provided to immigrants in relation to their claims for permission to reside in this country.
9. As a result of this report, the OSS resolved to refer the matter to the Compliance and Supervision Committee which, in turn, resolved to refer the matter to the Solicitors' Disciplinary Tribunal. That referral gave rise to a discretion to require the Appellant's Practising Certificate to be subject to the condition which was imposed by the Adjudicator on 19 September 2000 and upheld on appeal on 10 November 2000. It is against that condition that the Appellant appeals.
10. The condition, as stated by the Adjudicator, is that she does not:

"....undertake any Legal Aid work and notifies the Legal Aid Board within 14 days of this decision within 14 days of the date of the letter notifying her of this decision and that she copies such written notification to this office at the same time."

11. The adjudicator explained that:

"This condition is imposed on the grounds that irregularities regarding claims for costs and disbursements upon the legal aid board were highlighted in the Monitoring and Investigation Units report dated 29 July 1999 and, in view of this, it is in the interests of the public and the profession that Ms Iyama-Onibudo's practising certificate be restricted in this way for the time being pending determination of the issues by the Solicitors Disciplinary Tribunal."

12. It is not apparent from that account that there was before the Adjudicator not only matters in relation to Iyama & Co, but also in relation to Awtar Singh & Co. It should have been apparent, so that the Appellant could have dealt with those matters at that stage. That is a procedural irregularity. However it has been made plain to the Appellant that on this hearing those matters would be in issue and they are matters on which Mr Engelman has addressed me fully. Thus, on this hearing, any consequences of the original irregularity no longer persist. The imposition of the condition was upheld by the Appeals Committee on 10 November 2000, but the Appeals Committee ruled that that condition would not become effective pending appeal to me.
13. A complaint was made on 4 October 1999 by the Immigration Appellate authorities to the OSS in relation to the failure of a representative from Iyama & Co to attend a hearing where the Appellant had filed a certificate of readiness and given an undertaking to the firm that she would attend. Mr Engelman informs me that the Appellant was appearing "de bono". She had telephoned to tell the Appellate Tribunal that the appeal was not being pursued. Although that matter has been referred to the OSS it does not seem to me that it is of sufficient significance to play any part in my decision today.
14. I turn to outline the complaints concerning the activities of Awtar Singh & Co. On 24 November 1999 the Monitoring and Investigation Unit of the OSS produced a report on their investigations into the practice of that company. Their report identified suspected dishonesty on the part of the firm's law clerks, accounts irregularities and suspected over claims for legal aid payments in relation to travelling to and waiting on prisoners at Rochester Prison. As a result, on 24 May 2000, the Compliance and Supervision Committee of the OSS referred the conduct of the Appellant, as well as that of Mr Nwoko and Mr Farrell, to the Solicitors' Disciplinary Tribunal.
15. On 12 January 2000 the Compliance and Supervision Committee considered a complaint by the Law Society relating to matters set out in a letter sent by the Legal Aid Board to the senior partner of Awtar Singh & Co, from which I quote:

"First, that most, if not all, of the work on the files in our possession appears to have been carried out by unqualified staff without appropriate arrangements for supervision being in place. Secondly, that in any event, your files do not demonstrate that advice and assistance has properly been given or that all work claimed for has been properly and reasonably carried out.

....We must also add that in view of the discoveries we have now made about your supervision arrangements, and our examination of the files submitted, we are concerned that considerable sums of money have been paid from the fund to yourselves outside the terms of the Legal Aid Act 1988 and the accompanying regulations. You have received a total of £138,743.00 from the fund for immigration advice and assistance in the period October 1997 - September 1998 and we cannot now be satisfied that this money was properly claimed for advice and assistance actually and reasonably carried out."

16. The Compliance and Supervision Committee resolved to refer these matters to the Solicitors' Disciplinary Tribunal and to vest a discretion in the Law Society to impose a condition on the Appellant's Practising Certificate.
17. The issues that these matters raise for consideration by the Solicitors' Disciplinary Tribunal are not matters that I am able to resolve. But, the overall case that is advanced before That tribunal is, on the face of it, one that gives rise to extreme concern that in both the firms in question there appears to have been what one might call a small army of unqualified staff working without proper supervision; staff that this Appellant should have been supervising in accordance with the agreement she had made with Mr Farrell. But, she was not in a position in which she should have undertaken those responsibilities as she should, herself, have been under supervision. Serious irregularities are alleged amounting to fraud upon the Legal Services Commission.
18. Those are the relevant circumstances that led the Adjudicator and the Appeal Committee to consider that, pending the hearing before Solicitors' Disciplinary Tribunal, the Appellant should not be permitted to undertake legal aid work. Mr Engelman has urged me to permit her to continue to do so until the Disciplinary Tribunal proceedings are heard.
19. In my judgment, the decision that her Practising Certificate should be subject to that condition was amply justified in the public interest and in the interests of the good standing of the profession. I would uphold the imposition of that condition and dismiss this appeal.

MR GOODWIN: In those circumstances I would ask for costs in favour of my clients. I have served a costs schedule, but I have not had an opportunity to discuss that with my learned friend, but if agreement cannot be reached as regards a figure, I would ask for costs to be assessed if not agreed.

MR ENGELMAN: I have no observations to make.

LORD PHILLIPS, MR: The appeal will be dismissed with costs to be assessed if not agreed.