England and Wales Court of Appeal (Civil Division) Decisions

ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London WC2 Tuesday, 22nd March 2002

Friday, 22nd March 2002

1. LORD PHILLIPS MR: The applicant, Dr Malik, for whom Mr Solley QC acts, applies to me for an order that he be admitted on to the Roll of Solicitors of the Supreme Court and granted a practising certificate. Dr Malik has a Ph.D. in law which he obtained from Manchester University on 26 March 1999. On 14 September of the same year Mr Aubrey Davies, the Chief Adjudicator, determined that he should be registered as a foreign lawyer under section 89(9) of the Courts and Legal Services Act 1990.
2. There was a considerable past history to that decision and in outlining it I am adopting a chronology provided by Janet Paraskeva, the Chief Executive of the Law Society, as an annex to her witness statement of 21st March.
3. On 17 January 1977 Dr Malik was convicted of forging two GCE certificates and obtaining an education grant by deception. He was conditionally discharged for three years. On 13 March 1980 he was convicted at the Crown Court of Manchester of obtaining a pecuniary advantage by deception, namely posing as a solicitor. He was sentenced to community service for that offence and for the breach of the conditional discharge orders.
4. On 7 July 1982 the Solicitors Disciplinary Tribunal made an order under section 43(2) of the Solicitors Act 1974, which prohibited any solicitor from employing him as a clerk without the written permission of the Law Society. He applied to the Solicitors Disciplinary Tribunal to have that order revoked on 13 September 1983 and again on 18 June 1987 and on each of those occasions his application was refused. On 21 September 1989 the Solicitors Disciplinary Tribunal revoked the order. On 28 March 1990 Dr Malik gave undertakings to the High Court in proceedings brought by the Law Society, which included an undertaking not to hold himself out as a solicitor.
5. On 11 May 1991 Dr Malik applied to the Law Society for registration as a foreign lawyer. The Society Standards and Casework Committee rejected his application on 29 September 1992. He appealed to the Master of the Rolls against that decision and his appeal was allowed on the ground that there had been procedural unfairness and the matter was remitted to the Law Society for reconsideration. On 9 February 1993 the Secretary to the Punjab Bar Council wrote to the Law Society alleging that a letter dated 29 June to the Bar Council confirming Malik's status as a foreign lawyer had not been written by him and was a forgery.
6. On 10 March 1993, in accordance with the order of the Master of the Rolls to which I referred, Dr Malik's application came before the Law Society's Exceptional Applications Casework Committee ("EACC") which considered the preliminary issue of whether he complied with the requirements of a foreign lawyer for the purposes of section 89(9) of the Courts and Legal Services Act 1990. The Committee was not satisfied of this and adjourned the matter for further investigation.
7. On 1 February 1995 Dr Malik was formally enrolled as an advocate of the High Court of Pakistan. On 3 February he was made bankrupt upon the petition of the Commissions of the Inland Revenue; that order was discharged upon payment of what was due on 3 March the same year. On 7 April Dr Malik made a second application to the Law Society for registration as a foreign lawyer. A second EACC refused Dr Malik's application for registration and he appealed to the Master of the Rolls who refused that appeal.
8. Finally, on 4th January 1999, Dr Malik made a further application to be registered as a foreign lawyer and it was that application to which Mr Davies acceded. In doing so he explained his attitude to the past history, reciting it in summary and saying:

"No new allegations of impropriety were made against Mr Malik in the context of his current application. Save for some questions about references provided, to which I shall return, the last allegation of substance made is that of 1994 where the Exceptional Applications Casework Committee found that he had held himself out to be a solicitor.

The starting point for my consideration, therefore, was the previous findings made against Dr Malik. My task was to consider what had happened since then and to decide whether in the light of what had happened Dr Malik could now be stated to be a fit and proper person to be registered as a foreign lawyer."

9. That is precisely what the chief adjudicator concluded was the position.
10. Turning to Dr Malik's application to be admitted as a solicitor I should first refer to the provisions of section 3 of the Solicitors' Act 1974. It provides:

"(1) Subject to section 4 and section 20(3) of the Justices of the Peace Act 1949 which relate to omission as solicitors of certain persons who have served as assistant to a justices clerk, no person shall be admitted as a solicitor unless he has obtained a certificate from the Society that the Society -

(a) is satisfied that he has complied with training regulations and

(b) is satisfied as to his character and suitability to be a solicitor.

(2) Any person who has obtained a certificate that the Society is satisfied with as mentioned in subsection (1) may apply to the Master of the Rolls to be admitted as a solicitor, and if any such person so applies the Master of the Rolls shall, unless of course the contrary is shown to his satisfaction in writing and in such manner and form as the Master of the Rolls may from time to time think fit, admit that person to be a solicitor."

11. I turn next to the Law Society's Solicitors Admission Regulations 1994.

"3. An application for admission may be made at any time after the applicant has complied with the Training Regulations or the Qualified Lawyers Transfer Regulations.

6. (i) If the Society:

(a) is satisfied that an applicant has complied with the Training Regulations or the Qualified Lawyers Transfer Regulations; and

(b) is satisfied as to the character and suitability of the applicant to be a solicitor it shall issue a certificate to that effect in accordance with Section 3(1) of the Solicitors' Act 1974.

(ii) In any case where the Society refuses:

(a) an application for admission; or

(b) to issue a certificate under paragraph

(i) it shall notify the applicant to this effect within 14 days of receiving the application stating the grounds for refusal.

(iii) In any case where the Society refuses or fails to issue a certificate under paragraph (i) the applicant may appeal to the Master of the Rolls, who may make such recommendations to the Society as the Master of the Rolls thinks fit."

12. On 3 September 2001 Mr Malik applied for admission to the Law Society. That application has not yet been granted nor refused. No certificate has been issued and therefore 14 days from the application Dr Malik acquired the right to apply to me under regulation 6(3). His application was long out of time but no point has been taken on that, nor could it properly have been taken in the circumstances of this case. I must say a little about these circumstances.
13. Dr Malik claims to be entitled to be admitted as a solicitor by virtue of the Qualified Lawyers' Transfer Regulations 1990. Of these Regulation 5 provides:

"(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 applications 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."

14. Dr Malik is a person to whom Regulation 11 applies.
15. On 3 February 2000 the Law Society issued a certificate of eligibility under the Qualified Lawyers' Transfer Regulations certifying that he was an advocate admitted in Punjab, Pakistan; that he had been found eligible under regulation No. 11 and that he was required to pass the following subjects in the Qualified Lawyers' Transfer Test before making application for admission to the Roll of Solicitors of England and Wales: property and professional conduct and accounts; and stating the certificate was valid for three years from the date of issue.
16. This certificate followed a decision of the chief adjudicator, dated 24 January 2000:

"(1) Mr Malik is a fit and proper person to become a solicitor.

(2) Mr Malik is not a Distinguished Specialist Practitioner within the meaning of Regulation 14 of The Qualified Lawyers Transfer Regulations.

(3) I grant Mr Malik a waiver from the Litigation Head and the oral test of the Principles of Common Law in the Qualified Lawyers Transfer Test. I also grant him exemption from the two-year practical experience requirement.

(4) Mr Malik must pass the Property Head and the Professional Conduct and Accounts Head of the qualified lawyers transfer Test.

Reasons

I have carefully considered the substantial volume of papers placed before me; many of which were before me when I dealt with Mr Malik's application to become a Registered Foreign Lawyer in September 1999.

My reasons for the decisions given above are:-

1. During the interview on 14th September 1999, I made it clear that when considering character and suitability issues, I would apply the same standards for a Registered Foreign Lawyer as for a Solicitor. Having found Mr Malik to be of acceptable character and suitability to be registered as a foreign lawyer, it follows (in the absence of any subsequent adverse information) that my decision is the same on this occasion..."

17. He then went on to deal with Mr Malik's experience. There was no subsequent adverse information and therefore he felt able to give the certificate sought.
18. Regulation 18 of the Qualified Lawyers Transfer Regulations provides:

"(1) If the Society at any time is not satisfied as to the suitability to become a solicitor of any person whom it has certified eligible under Regulation 5 it may on such terms as it determines:

(a) prohibit an attempt of the Test; or

(b) refuse to recognise periods of employment as consistent with service under a training contract; or oppose admission as a solicitor

(2) If the Society imposes a prohibition or other sanction under paragraph (1) the unadmitted person may

(a) within one month of receiving notification from the Society of its decision, ask for the matter to be reviewed, and

(b) within three months of receiving notification from the Society of its decision on an application for review under paragraph

2(a) apply to the Master of the Rolls..."

19. The Law Society has not under that regulation opposed Dr Malik's admission as a solicitor. The Society is still considering whether to accede to that application or to oppose it.
20. On 2 October 2001 Mr Mark Pardoe, the education and training officer of the Law Society, wrote to Dr Malik:

"I write in relation to your application for admission as a solicitor.

Your case has been reviewed and in the circumstances the Law Society has decided to call an Exceptional Applications Casework Committee to consider your application.

A date for this committee will be sent to you; I enclose a copy of the written procedures for Exceptional Applications Casework Committees.

Your application will be considered as quickly as practicable but the procedures will take some time to implement and until they are complete the Society will not be in a position to decide whether or not to grant or refuse a certificate."

21. To understand the nature of this step it is necessary to turn to guidelines on character and suitability that had been published by the Law Society. They state in the introduction that questions of character and suitability for the purposes, among other things, of the Solicitors' Act 1974 and the Qualified Lawyers Transfer Regulations 1990 and the Admission Regulations 1994, are determined by adjudicators or, in less serious cases, by senior staff of the Society under delegated powers, then go on to set out the guidelines to which the adjudicator will have regard. Under guideline 16, headed "Exceptional Cases", they state:

"Exceptional cases such as murder, manslaughter and rape will continue to be handled by the Exceptional Applications Casework Committee."

22. To see the nature of an Exceptional Applications Casework Committee one has to turn to the Law Society's General Regulations 1997, which provide under the heading, "Appointment":

"31. There shall be the following Casework Committees of the Council:- the Exceptional Applications Casework Committee..."

23. Regulation 34 provides:

"The terms of reference of the Exceptional Applications Casework Committees are to deal with all casework applications which are decided by the President (or, failing him, the Vice-President or failing him, the Deputy Vice-President) to be of an unusual or sensitive nature."

24. On 4 October Dr Malik replied to Mr Pardoe's letter of 2 October saying, among other things:

"I note what you say, but you have not given me any reasons or explanations as to why my application for a Certificate has been referred to the Committee. No doubt you will be aware that you are required under law to give reasons for your decisions. Further you have not provided any explanation to which members of the Law Society sanction this procedure. I shall be grateful if you could please provide me with the names, their status of the individuals or Committee members who sanctioned the referral to the Exceptional Application Casework Committee."

25. Mr Pardoe replied on 18 October stating, among other things:

"The President consider that the Committee was the appropriate mechanism for a decision to be made in respect of your application given your unusual history and professional record. No decision has been made as to whether or not the Society should issue a certificate under section 3(1) of the Solicitors' Act 1974 and Regulation 6(1) of the Solicitor's Admission Regulations 1974. I confirm that a decision will be made by the Committee in accordance with its procedures. These procedures will involve you being provided with relevant papers and having an opportunity to make representations."

26. Mr Malik replied to Mr Pardoe's letter on 21st October, saying:

"I note what you say. However, with respect, you have not addressed my concerns as set out in my letter dated the 4th instant. I shall be grateful if you would forward me a full reply with reasons and explanations..."

27. He then went on to ask for clarification of a number of matters of detail. Mr Pardoe replied on 22 November, stating, among other things:

"The reasons for the decision that your application is unusual were that your relevant history is exceptionally complex and that information has been received from the OSS that they are in communication with you concerning a serious current complaint from the Legal Services Commission.

The Society regrets that it was not able to consider your application within 14 days but as you will appreciate the background facts are lengthy and complicated."

28. On 12 December Mr Pardoe wrote to Dr Malik:

"In accordance with the procedure for Exceptional Applications Casework committees... the Law Society's report and supporting documents for the above mentioned Committee's consideration were delivered to you today by hand.

As you are aware you will need to serve upon this office your submissions in response, two weeks before the Committee meets. However, I do accept that the material enclosed is voluminous and therefore, should you require more time in which to respond, I would be grateful if you could let me know as soon as possible."

29. On 7 January he wrote again:

"As you are aware the Exceptional Applications Casework Committee is due to consider your application for a practising certificate on 9 and 10 January 2002. You have, of course, received the three volume report submitted to the Committee and served upon yourself on behalf of the Law Society.

We have not received any submissions in response to the report at, either, this office nor the Law Society Solicitor's office of Russell-Cooke. We have, of course, attempted to make contact with you to ascertain your position, unfortunately you have not responded.

In the circumstances we feel that you should be given the opportunity to make submissions on the report and would also hope that you would attend a hearing to make oral representations. We believe that it is your intention both to serve submissions and make oral representations.

In light of this, whilst there is little obligation for the Committee to adjourn this matter, we have invited the Committee to do so. If you wish to make any representations on this please respond by return."

30. Dr Malik had been abroad. He wrote on 8 January on which day he submitted two files of material for consideration by the EACC and objected to any adjournment of his hearing. Nonetheless on the following day the EACC wrote to him saying that the hearing was being postponed.
31. What then happened is set out in the witness statement of Janet Paraskeva:

"Following the adjournment of the hearing of Dr Malik's application on 9 and 10 January 2002, the EACC nonetheless had a teleconference meeting to discuss various procedural issues in relation to the case. The draft minutes of this meeting are appended... These are not final minutes because the EACC has not met again to approve them. The EACC raised a number of concerns about the way in which the EACC was operating. These included:-

(i) A concern that the involvement of the Director of Regulation in the recommendation to the Council of the membership of the EACC was inappropriate, given that the Regulation Directorate was responsible for putting the Law Society's case in relation to application by Dr Malik.

(ii) A concern that the secretariat of the EACC should be based at the Corporate Affairs department of the Law Society rather than at the Regulation Directorate."

32. Miss Paraskeva goes on to explain that these matters caused her concern; and after further consideration it was decided that it would be appropriate to reconstitute the EACC with members who had had no connection of any kind with either of the Regulation Directorate or indeed with Dr Malik himself. On 6 March 2002 the main Board confirmed the appointment of the new membership of EACC. Arrangements immediately began for the date of the hearing of his application to be fixed. However, the earliest date possible for the members and Dr Malik was 25/26th April 2002. She states that she was informed that the relevant office of the Law Society consulted with Dr Malik to ensure he was available. Mr Solley has told me that while technically Dr Malik would be available, that date follows immediately on the dates fixed for the hearing of his judicial review application in relation to the complaint made by the Legal Services Commission, he having succeeded in his application for permission to seek judicial review of at least part of that matter.
33. At all events it was not until 11 February that the President of the Law Society wrote to Dr Malik to tell him what was going on. It was in those circumstances that on 26 February he applied to me.
34. The matters that have been put before the EACC by the Law Society are exhibited to Miss Paraskeva's witness statement. First, there is a long schedule of the matters considered by the Chief Adjudicator which I have already recited. The final paragraph of this schedule complains that Dr Malik still will not accept the seriousness of those matters. There then follows under the heading "Matters arising since the Chief Adjudication Officer accepted the applicant as a registered foreign lawyer", the following matters:

"21. In fact the Applicant has been the subject of inordinately high levels of complaint by those who have dealt with him professionally, or have been clients of, or have provided services to, his practice, details of which are contained in the documents attached to this note. In particular, but without prejudice to the generality, the Committee's attention is drawn to the following.

(i) The complaint made by the Legal Services Commission. This complaint demonstrates that there has been widespread failure to comply with the LSC's accounting requirements within the Applicant's practice and that the failures are the Applicant's since, inter alia, they involve cases in the Applicant's fields of practice and in which, for example, the applicant's own referees have been involved.

(ii) A complaint on behalf of a Mr Iqbal has resulted in a resolution to bring proceedings against Dr Malik in the Solicitors Disciplinary Tribunal in relation to allegations that Dr Malik had failed to inform the client of his rights under the Legal Aid Act, misled the Court and transferred money from client to office account improperly.

(iii) Three complaints relating to the failure to attend Immigration Tribunal hearings alleging failures of Dr Malik's duty to his clients and to the Tribunal made by the Immigration Appellate Authority and the Immigration Appeal Tribunal.

(iv) A complaint by the Treasury Solicitor at the instigation of Mr Justice Turner in relation to a failure to properly instruct counsel and represent clients at two High Court hearings.

(v) A complaint by the Right Honourable Jack Straw MP on behalf of his constituent, Mr Iqbal [that is the matter already referred to], that Dr Malik failed to deal properly with his client' case.

(vi) Allegations made by the Manchester Evening News in an article of the 7th November 2001 concerning which evidence is awaited.

(vii) A complaint by Mr Khan alleging breaches of the Solicitors Publicity Code 1999 involving Dr Malik allegedly representing himself as a solicitor.

(viii) A complaint by the Bar Council involving the withdrawal of credit for Malik Adams.

(ix) There are over 50 complaints made against the Applicant's firm, a significant proportion of which postdate the applicant's registration as a foreign lawyer and his admission as a partner of Malik Adams and/or Malik Laws.

(x) There are County Court judgments outstanding against the Applicant and/or his firm."

35. Mr Solley has submits that in referring Dr Malik's application to the EACC, the Law Society has, in effect, been guilty of an abuse of process. He submits that this is an improper attempt to appeal the decision reached by the Chief Adjudicator and that it is quite wrong that matters dealt with by the Chief Adjudicator should be revived for further consideration at this stage. Mr Solley further submits that the fresh matters referred to by Dr Paraskeva are not significant. The complaint of the Legal Services Commission is being challenged in judicial review proceedings. A number of the complaints are now closed. Mr Solley, having taken instructions, outlined what Dr Malik had to say about a number of these matters which, if made out, would appear to be an answer to them. Mr Solley submits that the 50-odd complaints against the firm should be totally disregarded as they are not made against Dr Malik personally. He further submits that any complaints which have not yet been determined should be disregarded on the ground that there should be a presumption, that is always made in criminal proceedings, that Dr Malik has not been guilty of any impropriety unless and until the impropriety is proved. Mr Solley submits that the EACC proceedings should be disregarded and that there is no reason why Dr Malik should not be admitted as a solicitor straightaway. Alternatively, he invites me to direct the EACC to disregard all the old matters that had been considered by the chief adjudicator and/or the complaints that have been closed or have not yet been resolved.
36. For the Law Society Mr Rabinder Singh has submitted first, that Regulation 18 of the 1990 Regulations expressly envisages that even where a certificate of eligibility under regulation 51 has been issued the Society may oppose the application for admission when it is made.
37. He further submits that, in any event, the earlier decision of the adjudicator cannot prevent the Law Society from performing its statutory duty under section 3 of the 1974 Act. There is, he submits, no doctrine of estoppel in public law. He referred me to Wade and Forsyth, Administrative Law (8th Edition 2000) at pages 242 to 244, and the recent decision of the House of Lords in R v East Sussex County Council, ex parte Reprotech (Pebsham) Ltd [2002] UKHL 8, and drew my attention to the observation of Lord Hoffmann that the reason there is no estoppel is not least because of considerations of public interest.
38. Mr Singh submits that in practical terms it would be quite wrong, having regard to the public interest, for Dr Malik's application to be granted without consideration of the question of whether the character and suitability criteria in section 3(1)(b) of the 1974 Act are at this date satisfied. This should, he submits, be done by the EACC at the hearing listed for 25/26 April.
39. Section 3 of the 1994 Act is designed to ensure that no person is admitted as a solicitor unless the Law Society is satisfied at the time of admission as to his character and suitability to be a solicitor. That is an important statutory requirement that is imposed in the public interest. It requires the Law Society to consider the character and suitability of an applicant at the time that he applies for his certificate. The previous decision of an adjudicator cannot preclude the Law Society from carrying out that task. Where there are no additional matters to be considered since the time that an adjudicator has reached his decision, the Law Society's task is likely to be an easy one.
40. Here, in my judgment, there are additional matters which the Law Society must consider. It cannot be right simply to disregard a volume of complaints on the basis that they have not yet been proved. The matters referred to in the annex to Miss Paraskeva's witness statement are properly matters which require consideration and I consider that they are matters which have properly been delegated to the EACC. It is not at this stage appropriate that either I or the Law Society should tell the EACC how to go about its task.
41. In the first volume of the material put before the EACC there is an introduction, which I imagine has been prepared by the Regulation Department of the Law Society. The EACC should treat that as submissions and not, of course, as instructions. The basic question for the EACC is whether it is satisfied as to the character and suitability of Dr Malik to be a solicitor. Having said that, there is a passage in that introduction which it seems to me plainly merits careful consideration. It is paragraph 4.1.1 under the heading "Previous Decisions":

"The Committee should consider and give due weight to decisions previously made in relation to Dr Malik's character and suitability but must exercise its own judgment on the basis of the information and submissions presented to it. The decision of Mr Davies of the 18th September 1999 requires particularly careful consideration. Although the decision was on the different application for registration as a foreign lawyer, Mr Davies considered the Law Society's general discretion in the context of Dr Malik's character and suitability applying the same standard as Mr Davies would have applied for a solicitor. On the 21st January 2000 Mr Davies followed his previous reasoning and decision in deciding that Dr Malik was a fit and proper person to become a solicitor for the purpose of eligibility to take the QLTT."

42. The Committee will wish to consider whether events since Mr Davies' decisions lead them to take a different view from his assessment that Dr Malik had put his past behind him and had become a fit and proper person to become a solicitor.
43. For these reasons I am not prepared to grant Dr Malik the relief that he seeks; but it would not be right to leave this application without commenting that he has, in my judgment, good cause to complain of the delay which has occurred. The Law Society was initially in disarray in that the composition of the EACC as first constituted was not satisfactory and Dr Malik was initially not given a satisfactory explanation for the reference to the EACC. Furthermore, there was delay in informing him about the reconstitution of that committee.
44. MR SOLLEY: My Lord, the issue of costs raises its head.
45. LORD PHILLIPS MR: Before we get to that I had reached the end of what I was going to say, subject to this. It does seem plain that the date that has been fixed for this hearing is one that is not satisfactory to your client because of his preoccupation with his judicial review application. Is that still the position?
46. MR SOLLEY: My Lord, we have obviously looked at that over lunch and Mr Malik is so anxious to get this matter, the real nitty gritty of it concluded. We consider that it may be that we would like to hold on to that date.
47. I think in the light of your Lordship's judgment I must apply only for costs on a standard basis here. In my submission it was entirely proper that Dr Malik came before your Lordship in the circumstances in which he found himself. I do not read your Lordship's judgment, little time as I have had to absorb it, as necessarily, for example, accepting the need to go into tittle tattle from the Manchester Evening News where evidence had been awaiting for several months. In other words your Lordship has helpfully concentrated the minds of those who are going to be dealing with this matter and I therefore submit that given your Lordship's concluding remarks it is entirely proper that Dr Malik came before your Lordship. I therefore apply for costs on the standard basis.
48. MR SINGH: My Lord, I am instructed to oppose the application for costs. I do so briefly for these reasons. My understanding, my Lord, is that in this jurisdiction there is a power to award costs, but that it does not follow the event normally. Here, where in substance my Lord has actually refused the application and denied the relief sought, in my submission the normal position --
49. LORD PHILLIPS MR: I am not sure that you are right in saying that costs do not normally follow the event. There are occasions when the Law Society is successful and the Law Society does not seek costs; but certainly where an applicant is successful before me it is usual that he gets his costs.
50. MR SINGH: I was not aware of that. I apologise if that is a misunderstanding. In any event where the applicant has not been successful on a point of substance, as he has not been in this case, in my respectful submission the normal order ought to be that he should not get his costs. I am not asking for mine. Of course I take on board the final comments that have come from your Lordship. It could be said that there have been unnecessary costs incurred here on both sides. One has in mind, for example, the nature of the case seemed at first to be based upon delay, then seemed to be on a very wide basis, indeed in a written argument served late on Monday and developed orally on Tuesday. That of course then led to some further work having to be done over the adjournment until today. All things considered, my Lord, I would suggest that the just order is no order as to costs.
51. MR SOLLEY: My Lord, I shortly would say it was always clear, with respect, that the issues were wide issues. It was perfectly plain from the bundle that was put in some significant time ago. We would not have had 25th April if Dr Malik had not done what he has done. But he has shunted the process forward and achieved in that sense the nub of what was required, which is the concern over delay.
52. LORD PHILLIPS MR: There was delay and I think Dr Malik had justification for bringing this matter before me which, when he did so I certainly understood was predominantly being brought to my attention because of the delay that had occurred. The submissions that have since has been made of substance on his behalf have not succeeded. I consider that the appropriate order for costs is an order which is, in effect, costs in the cause. If Dr Malik succeeds in his application before the EACC then he should have the costs of this hearing before me. Should he not succeed then I shall make no order as to costs.
53. MR SOLLEY: My Lord, I may be absolutely wrong about this but I have a certain concern that those who are deciding the application, the EACC advising the Law Society, are also going to be the costs paymaster, as it were, knowing that if they grant a certificate and rule in Dr Malik's favour costs would follow from that. I would ask my Lord to disconnect it.
54. LORD PHILLIPS MR: If you have this concern one easy way of dealing with it is simply to direct that my order as to costs is not made known to the EACC. That will ensure that that order has no apparent effect on their decision.
55. MR SOLLEY: My Lord, Dr Malik's concern is the transcript of today's judgment -- I do not necessarily share the same concern, it may be that --
56. LORD PHILLIPS MR: I will direct that the transcript of my judgment will end that the order as to costs should be separately provided and that the order as to costs is not to go to the EACC.