England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Sleeman
sitting as a Judge of the High Court)

		The Royal Courts of Justice The Strand London Monday 8 July 2002

Monday 8 July 2002

1. LORD JUSTICE MANCE: This is a second appeal. It is subject, therefore, to the provisions of CPR 52.1(3), whereby the Court of Appeal will not give permission unless it considers that the appeal would raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it.
2. The decisions below were given by Master Rose on 30 August 2001. He struck out the claim in these proceedings, pursuant to CPR 3.4(2)(b), on the grounds that the statement of case was an abuse of the process or likely to obstruct the just disposal of the proceedings. The basis on which he did that was that it was a matter appropriate for judicial review, and not appropriate for ordinary proceedings begun by claim form. That decision was affirmed by His Honour Judge Sleeman on 29 October 2001, sitting as a Judge of the High Court.
3. Both courts below considered the matter on a wider basis than I have to. Indeed, Dr Adoko ("the applicant") complains that His Honour Judge Sleeman looked at the matter on that wider basis, since he indicates (and indeed the judgment of His Honour Judge Sleeman confirms) that he confined himself to a narrow point. In the circumstances I will try to confine myself to the narrow point which is the only point which, as the applicant has made clear, he wishes to pursue in this court.
4. The narrow point is that the applicant maintains that he has a properly pursuable claim for damages in ordinary civil proceedings, on account of the Law Society's refusal, on 14 May 2001, to consider his reapplication to be admitted as a solicitor, made on 28 March 2001. That narrow claim is the subject of the last numbered paragraph, paragraph 11, in the particulars of claim, which reads as follows:

"In accordance with the practice of the Defendant that after some time an applicant whose application for admission has been refused, may reapply for admission, the Claimant reapplied on 28/03/2001 for admission as a solicitor. On 14/05/2001 the Defendant refused to consider his application. This refusal:

(i) Violates the right of the applicant to practice his profession.

(ii) Is contrary to Article 14 of the Human Rights Act 1998 in that the application of the Claimant is refused consideration because the Claimant is black.

(iii) In 1994 the Employment Tribunal found that the First Defendant discriminated against the Claimant on racial grounds by refusing to exempt the Claimant to practice law as a solicitor. The continued refusal to exempt the Claimant is a continued racial victimisation to penalise the Claimant for having successfully brought a case of racial discrimination against the Defendant.

(iv) In 1995 the Employment Tribunal also held that the Claimant had been treated maliciously by the First Defendant by undue delay in dealing with the Claimant's application for exemption in order to be admitted as a solicitor."

5. Those particulars indicate that some brief statement of the background history is appropriate, even though I seek, as I have said, to confine myself to the real point in issue.
6. The applicant was called to the Bar as a member of the Inner Temple in 1960. He practised for many years abroad, so he falls within the scope of the Qualified Lawyers Transfer Regulations 1990. In 1989 he first applied to become an English solicitor and he was refused an exemption by the Law Society from the relevant test. He then worked in a solicitors' firm for some four years, he tells me. He was still refused exemption.
7. There took place the proceedings, referred to in the particulars which I have just read, for racial discrimination. They were at any rate successful in so far as they led to the Law Society granting him an exemption from the test in 1995. However, the applicant tells me that any decision whether to admit him as a solicitor was still deferred, pending the outcome of outstanding proceedings which were taking place against him before a disciplinary tribunal of the Inns of Court. Those proceedings led to a finding on 20 June 1997 of professional misconduct in respect of misuse of documents provided by the Law Society on discovery in prior litigation.
8. The Law Society subsequently, on 14 February 2000, refused the applicant's application for admission as solicitor. It gave three grounds. One of them was that finding of professional misconduct. Another was the publication by the applicant himself of an article about a third party, accusing him of certain misdeeds. The applicant tells me that that was a matter where he acted in the public interest. Of course I cannot deal with the merits of the position. I simply record that that was one of the reasons for the Law Society's refusal. The third reason was that the applicant had applied to become, and apparently became, a voluntary bankrupt in mid-1999, and only in exceptional circumstances will a bankrupt be admitted as a solicitor prior to discharge. The applicant tells me -- and this seems to me irrelevant, but I record it -- that he in fact ceased to be bankrupt on 28 June 2002. He also explains the circumstances in which he became bankrupt, which arose, he tells me, out of unfortunate litigation and was due to the fault of other lawyers.
9. The applicant failed to challenge that refusal to admit him by the Law Society by review proceedings in accordance with the procedure set down in the regulations, for which there are time limits. He took no real step, it appears, to challenge the position until early 2001, by which time the Law Society took the view that it was too late.
10. A major aspect of the current claim, when it was issued on 5 June 2001, related to the Law Society's refusal to admit him on 14 February 2000. That was the claim which Master Rose addressed at some length in the judgement to which I have referred. He concluded that the claim was one which could only be pursued by judicial review and was hopeless, because inappropriate in the form in which it was sought to be pursued. He applied the principles in O'Reilly v Mackman [1983] 2 AC 237, which are considered in the Civil Procedure White Book 2002 in the note at 54.3.3. Master Rose did not specifically address paragraph 11 of the particulars of claim except in so far as he appears to have treated it as an aspect of the applicant's plea that on 3 January 2001 he applied to the defendant to review its decision to refuse to admit the claimant into the Roll of Solicitors. In so far as he did treat it as an aspect of that claim, it seems to me that he was mistaken. It was a separate complaint relating to a separate decision made, as I have pointed out, on 14 May 2001.
11. There was an appeal to His Honour Judge Sleeman, as I have mentioned. He reviewed the whole area considered by Master Rose although, as I have pointed out, that may no longer strictly have been in issue before him. But he did also address the narrow point which remains at the conclusion of his judgment, in this passage which appears at pages 8-9:

"It is interesting to note that today the appellant has sought to limit his submissions to the Law Society's refusal to consider his re-application for admission to the Roll by his letter dated 28th March 2001. In refusing to reconsider the matter, he says his human rights have been infringed; and, further, he submits he can now commence a claim in damages.

Miss Phelps [counsel for the Law Society] submits that the letter is not a proper application within any of the provisions of regulation 19(1) or 19(3). [I venture to question whether the reference to 19(1) should not have been to 19(2).] Therefore, she submits, the Law Society were in effect entitled to treat the letter as not a proper reapplication. Further, she submits that the appellant should have applied for a review of that decision within one month, and thereafter, if unsuccessful, to the Master of the Rolls to review the matter, pursuant to regulation 18, within three months.

Whether or not the letter of 28th March was a proper application, I find that the appellant's remedy can only be to challenge the decision for failure to consider the matter properly by way of judicial review because only public law issues arise.

For the reasons I have given, I dismiss this appeal."

12. Before me, the applicant now submits that that was wrong. He submits he has a human rights claim which he can pursue as what he describes as a private law claim and which is for damages alone. In that connection, I note that the prayer in the particulars of claim is not for damages alone. Paragraph 31 claims:

"A declaration that the decision of the Claimant to refuse ... to consider re-application of the Claimant for admission as a solicitor is contrary to section 6, Article 6 and Article 14 and Article 17 of the Human Rights Act 1998."

13. Paragraph 32 claims baldly "Damages", and paragraph 33, "Costs". The claim for damages is, I would add, wholly unspecific as to its basis or its amount. The applicant disclosed during the course of his submissions that he had retired in 1998. When I asked him what loss he could in the circumstances claim he did not suggest any specific loss. On the contrary, he said that there are general damages: "As long as there is a violation of a right there is always general damages." In other words, his claim is for general damages. He does not suggest more.
14. Even if the applicant were to seek to abandon the declaration and to claim only damages, it seems to me that cannot make any alteration of substance to the position. There is here no conceivable contractual or tortious claim. The claim is a straightforward claim in respect of the decision of a public authority which is challenged as having been improper; there is said to have been a complete refusal to consider an application which is alleged to have been an appropriate application; and the first question any court would have to consider would be whether that decision did infringe either the procedure laid down by the regulations or, as claimed, the applicant's human rights. A challenge of that nature to the decision is preeminently a matter for judicial review. The first matter which the court must be satisfied about is that there has been an illegal decision, which is what is asserted (not surprisingly, in fact) in conjunction with a claim for a declaration, whether or not the applicant says he wishes to pursue that.
15. Damages can be claimed now against a public authority in most situations if human rights are infringed, by virtue of section 8 of the Human Rights Act, which reads:

"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would find) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings."

16. The court can, in the context of judicial review proceedings, order damages. CPR 54.3(2) reads:

"A claim for judicial review may include a claim for damages but may not seek damages alone.

(Section 31(4) of the Supreme Court Act 1981 sets out the circumstances in which the court may award damages on a claim for judicial review)".

17. That subsection reads:

"On an application for judicial review the High Court may award damages to the applicant if --

(a) he has joined with his application a claim for damages arising from any matter to which the application relates; and

(b) the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he would have been awarded damages."

18. But it seems to me that it was by judicial review proceedings that this claim, if it had merit, had to be pursued.
19. The Law Society would say that it has no merit because regulation 19 was not complied with. The procedure for review under the regulations was not followed. Whether or not it there is force in that -- and there seems to be some force in it -- is irrelevant to decide, as His Honour Judge Sleeman also thought.
20. The fundamental question is whether the requirements for grant of permission to appeal are satisfied, namely would the appeal raise an important point of principle or practice, or is there some other compelling reason for the Court of Appeal to hear it? I am quite satisfied that on no view can this application satisfy either of those two requirements, and for this reason it must fail.
ORDER: Application refused