England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAW SOCIETY

		Royal Courts of Justice Strand London, WC2
		15 October 2003

1. LORD PHILLIPS, MR: The petitioner, Mr Martin Firmin, was born on 4 April 1949 and is 54-years of age. He was admitted as a solicitor on 15 January 1974 and his name remains on the Roll of Solicitors. Initially he carried on practice as a principal in the firm RGF Vickery & Co of 33 Crook Log, Bexley Heath, Kent. On 12 March 2001 he amalgamated that practice with the practice of Stuart Hurrion & Green. Unfortunately, the amalgamation did not run smoothly to the extent that, in or about August 2001, his colleagues locked him out of the firm's premises after which he was constrained to practise on his own account from his home.
2. On 6 February 2003, an adjudicator of the Office for the Supervision of Solicitors ("the OSS"), acting under powers delegated by the Council for the Law Society, considered the petitioner's application under section 12(1) of the Solicitors Act 1974 and resolved:

"Subject to a properly completed Certificate of Fitness being lodged with the Law Society in support of his application, to grant Mr Firmin a practising certificate for the practice year 2002/2003 subject to the conditions:

1.1 That within three months of the date of grant, Mr Firmin may act as a Solicitor only in employment approved by the Office for the Supervision of Solicitors in connection with the imposition of that condition, or as a member of a partnership or as an officeholder and/or shareholder of an incorporated Solicitors practice if so approved. Further that any employer(s)/partner(s)/officeholder(s) and/or shareholder(s) or prospective employer(s)/partner(s)/officeholder(s) or shareholder(s) is informed of this decision.

1.2 That he attends a Law Society approved Accounts course within 3 months of the date of the notification of the decision. Evidence of attendance is to be provided within 1 month of attendance to the office."

3. The adjudicator's reasons were set out as follows:

"I am satisfied that in the light of the breaches of the present condition imposed upon Mr Firmin's current Practising Certificate, and Mr Firmin's referral to the Solicitors' Disciplinary Tribunal, it is in the interest of the public and the profession that Mr Firmin practises only with support and guidance of professional colleagues, and there is shared responsibility in respect of the firm's professional obligations, particularly in regard to provision of Accountants' Reports."

4. Mr Firmin was notified of this decision by letter dated 11 February 2003. By letter dated 12 March 2003, in circumstances to which I will turn, Mr Firmin requested a review of the decision of the adjudicator. The Adjudication Panel Review Session considered the matter on 24 June 2003 and resolved:

"The Panel carefully considered Mr Firmin's application for a review out of time and RESOLVED to allow the application on the grounds that the Tribunal Chairman had specifically requested the Office to do so and although the Office is not bound by the Tribunal's recommendations, it has taken on board the Tribunal's comments in this instance.

The Panel carefully considered the grounds of review submitted by Mr Firmin but RESOLVED to dismiss the review. The Review Panel did not consider there was anything in the grounds of review to persuade them to alter the decision reached by the Adjudicator at First Instance. It was Mr Firmin's responsibility to ensure that his accounts were properly filed with the Law Society.

With regard to Mr Firmin's overall history and his previous breaches of the Solicitors Accounts Rules, the Review Panel considered that Mr Firmin should only be allowed to practise when subject to an appropriate level of supervision and support."

5. The petitioner was notified of the Review Panel's decision by letter dated 30 June 2003. He now appeals to me in respect of the first of the two conditions imposed upon his Practising Certificate. Mr Geldart, his counsel, informed me of that change of stance because originally he was seeking a certificate without any qualification.
6. It is relevant to set out the previous complaints and history to which the Review Panel referred. They are helpfully recorded in the Law Society's written submissions as follows:

"On 3 April 1996, an Adjudicator considered a complaint from Ms B Leman and found allegations of inadequate professional service substantiated. The Petitioner's firm had submitted a private bill to the client without having previously advised her of any liability for private costs. The Adjudicator resolved that RGF Vickery & Co would not be entitled to any private costs and directed them to refund £1,780.00 plus VAT to the client. The Adjudicator also awarded Ms Leman £200.00 compensation to be paid within 35 days of notification of the decision. On the 25 June 1997 the Committee considered an appeal by the Petitioner against the first Instance Decision dated 3 April 1996 and resolved to dismiss the appeal.

On 25 March 1998 the Committee considered a Report of the Monitoring & Investigation Unit dated 19 February 1998 which revealed a cash shortage of £37,874.79. The Committee resolved to stand over the proposal of Intervention for a period of 1 month, during which time the Committee expected the shortage in the client account to be replaced in full. The Committee also resolved to vest a discretion with respect to the Petitioner's next Practising Certificate application and to refer the conduct of the Petitioner to the Solicitors Disciplinary Tribunal.

On 15 July 1998 the Committee considered the Monitoring & Investigation Unit Report of 19 February 1998 and resolved not to Intervene into the Petitioner's firm.

On 7 January 1999 the Petitioner appeared before the Solicitors Disciplinary Tribunal to answer allegations of conduct unbefitting a Solicitor relating to breaches of the Solicitors Accounts Rules. The Tribunal found the allegations to have been substantiated, and, indeed they were not contested. The Tribunal commented that: 'The Tribunal considered that there had been a serious misjudgment by the Respondent. The Tribunal accepted that there had been no dishonesty and that the misjudgment had occurred at a time of professional and personal difficulty. The Respondent had had to bear the costs of his misjudgment and had rectified all matters. The Tribunal considered that this was a case in which it was appropriate to show leniency. The Tribunal therefore ordered that the Respondent be reprimanded and further ordered him to pay the costs of the application enquiry'.

On 17 June 1999 the Adjudicator considered a complaint by Mr A Cobley and found that the service he had received by Vickery & Co (the Petitioner's former practice) had been of an inadequate nature because of delay, failure to inform, failure to reply and a failure to supply adequate costs information. The Adjudicator awarded Mr Cobley £210.00 compensation for actual expenses incurred and a further £150.00 for the inconvenience caused. The Adjudicator also directed the Petitioner to reduce the bill by £167.67.

On 27 September 1999 the Adjudicator resolved to grant the Petitioner a Practising Certificate for the practice year 1998/1999, subject to the condition that he lodge half yearly Accountants Reports with the Law Society, such Reports to be delivered within 2 months of the end of the period to which they related.

On 29 September 1999 the Committee considered an allegation of conflict of interest and inadequate professional service and found that the Petitioner had acted in a conflict of interest situation when he acted for Mrs Greene, who had a potential claim against Mr Charles Whedan, a Consultant at the firm of RGF Vickery & Co. The Committee resolved to reprimand the Petitioner for his conduct and further ordered the Petitioner that he should not be entitled to any fees in respect of the matter and therefore refund any costs plus VAT charged to Mrs Greene, and that the Petitioner should pay a further £250.00 as compensation to Mrs Greene.

On 1 February 2000 the Committee considered a complaint of Ms J Errington of inadequate professional service provided by the firm Vickery & Co. The Committee found the service provided was inadequate for delay, failure to reply and failure to operate an adequate complaints handling system in accordance with Rule 15. The Committee awarded Ms Errington compensation of £300.00 for non financial considerations. R G F Vickery & Co were ordered to return the sum of £12.00 retained for disbursements.

On 30 May 2000 the Adjudicator considered an application for a Practising Certificate for the practice year 1999/2000 and resolved to grant the Petitioner a Practising Certificate, subject to the continuation of the condition that he lodged half yearly Accountants Reports with the Law Society.

On 31 May 2000 the Petitioner was directed pursuant to Section 44B to provide papers requested in relation to his client Mrs Tsoi within 7 days of the decision.

On 23 October 2000 the Adjudicator considered the Petitioner's Practising Certificate application for 2000/2001 and resolved to grant the Petitioner a certificate, subject to the continued condition of lodgement of half yearly Accountants Reports.

On 15 January 2002 the Adjudicator considered a waiver request for submission of the Accountants Report for the period ending 31 August 2000, 28 February 2001 and 12 March 2001 to the firm RGF Vickery & Co. The Adjudicator resolved to refuse the waiver application and referred the Petitioner's conduct to the SDT without further notice, if the Petitioner did not provide the Accountants Reports within 56 days of notification of the decision. The Petitioner did not submit the Reports within the required time. The Petitioner was therefore in breach of the condition attached to his Practising Certificate for years 1999/2000 and 2000/2001.

On 24 January 2002 the Adjudicator considered a practising certificate application for the year 2001/2002 and resolved to grant the Petitioner a Practising Certificate, subject to the continuation of the condition that he lodge half yearly Accountants Reports with the Law Society.

The Accountants Reports for the six month period ending 2 March 2002 (due to be received on or before 2 May 2002) was received late on the 28 August 2002 in breach of the condition upon the Petitioners 2001/2002 Practising Certificate.

The Accountants Report for the six month period ending 2 September 2002 (due to be received on or before 2 November 2002), was received late on 7 March 2003, in breach of the condition attached to the Petitioners Practising Certificate.

On 7 November 2002 the Adjudicator considered a complaint by Mr Bremer of delay, failure to respond, lack of provision of adequate costs information. The Adjudicator found the matters proven and awarded Mr Bremer £750.00 compensation for the inconvenience caused and limited the Petitioners fees to £2,000.00 (representing a total reduction of £3,231.25). The Adjudicator considered that the Petitioner's failure to deal promptly with the OSS letters was an aggravatory factor when determining an amount of compensation for Mr Bremer. The Petitioner was directed to refund the sum of £3,231.24 to the client."

The proceedings before the Solicitors' Disciplinary Tribunal.

7. An application was made on behalf of the OSS by Emma Grace, a solicitor on 20 November 2002 that Mr Firmin be required to answer allegations contained in the statement which accompanied the application. Those allegations were that Mr Firmin had been guilty of conduct unbefitting a solicitor in that he had:

"(i) Failed to deliver to the Law Society an Accountant's Report for periods ending 31 August 2000 and 28 February 2001 contrary to Section 34 of the Solicitors Act 1974 and Rule 35 of the Solicitors Accounts Rules 1998;

(ii) failed to deliver to the Law Society the Final Accountant's Report for the period ending 12 March 2001 contrary to Section 34 of the Solicitors Act 1974 and Rule 36(5) of the Solicitors Accounts Rules 1998; and

(iii) failed to comply with a decision of Adjudicator dated 15 January 2002."

8. Miss Grace duly conducted the proceedings before the Solicitors' Disciplinary Tribunal on 11 March 2003 on behalf of the Law Society. Mr Firmin admitted that he had been in breach of the Accounts Rules as alleged. His case was that there was the most cogent mitigation for these breaches. He gave considerable detail to the Tribunal of the reasons why he had failed to file his accounts. These were to the effect that he had instructed an accountant and had provided him with all the relevant information. The accountant had failed to produce the accounts notwithstanding frequent and urgent requests by Mr Firmin that he should do so. This evidence was supported by a letter from Mr Firmin's accountant which included the following statement:

"I confirm that in respect of all the Accountants Reports mentioned Mr Firmin has instructed me to prepare and deliver the same on his behalf and has provided me with all necessary documents to enable me to have done so.

I regret that, due to discrepancies concerning dates and consequent confusion within my office, I have failed to comply with Mr Firmin's instructions to me and that it is as the direct result of this that the allegations that he now faces have arisen.

I have apologised to Mr Firmin for the shortcomings in the service that I have provided to him and I am now immediately dealing with all matters outstanding including, in particular, delivery of the Accountants Reports that are the subject matter of this application. I shall ensure these reports are delivered prior to the date of the Tribunal hearing on Tuesday 11 March."

9. The Tribunal found that the allegations against Mr Firmin were substantiated, observing that they were not contested. The Tribunal then referred to the previous disciplinary hearing on 7 January 1999 and noticed that the circumstances there led the Tribunal to conclude that it was appropriate to show leniency. They went on to deal with the matters directly before them and they found as follows:

"The Tribunal was satisfied that the Respondent had done everything that he possibly could to arrange for the filing of his Accountant's Reports. He had been let down by his accountant and the Tribunal noted that the accountant had in his letter of 10 March 2003 accepted full responsibility for the failure to deliver the Reports on time and had accepted that it was as a direct result of the accountant's failure to follow the Respondent's instructions that the disciplinary proceedings had been brought against the Respondent. Responsibility for the filing of a solicitor's Accountant's Report rested with the solicitor and the Tribunal considered that the case had been properly brought by the OSS. In these exceptional circumstances, however, the Tribunal accepted that the respondent had done everything possible to comply with the Rules. It was not within the power of the Tribunal to overrule the decision of the adjudicator in relation to the condition on the Respondent's practising certificate. It would, however, be open to the Respondent to make known to the Law Society the Findings of the Tribunal. The Tribunal considered that it would be helpful if Miss Grace also wrote to the Law Society to explain the circumstances in which the allegations had arisen. Given the Respondent's explanation of the circumstances of the Tribunal considered that it was appropriate to make no order against the Respondent save an order in respect of the Applicant's costs which were in any event agreed."

10. The next day Mr Firmin wrote to Miss Higgs, the case worker at the OSS concerned with his case, asking for a review of his decision of 6 February 2003. He sent a copy of his letter to Miss Grace. She replied on 14 March:

"Thank you for your letter and I note the letter that you have sent to Laura Higgs the Case Worker. I have copied your letter to my contact at the OSS and can confirm that I had, in fact, already written to her sending a copy of your submissions and a note of the Tribunals request with regard to the condition on your practising certificate. I am sure that you were very relieved by the outcome of the hearing, which I think was a fair one and am pleased that you have managed to sort out the difficulties you had with your accounts.

Certainly if the OSS do contact me for further information I shall be happy to pass on again the Tribunal and Chairman's suggestions with regard to the condition on your practising certificate and I do wish you all the best of luck for the future."

11. Miss Higgs referred Mr Firmin's request to the Review Panel with the following recommendation, of which a copy was sent to Mr Firmin:

"If the Panel chooses to consider Mr Firmin's application for a review out of time, the Panel is asked to take the Tribunal Chairman's comments into consideration, but also the following recommendations:

1. that Mr Firmin is not to practise as a sole principal, and

2. that if he is a principal in private practice, he lodges half yearly Accountant's Reports with the Law Society, such Reports to be delivered within two months of the end of the period to which they relate.

These recommendations are made on the basis that although the Tribunal made no finding against Mr Firmin, they did note that the Law Society was correct in making the application and it is ultimately Mr Firmin's responsibility to deliver his Accountant's Reports on time, and the Office is of the opinion that Mr Firmin's responsibility for compliance with the rules and regulations which govern solicitors should be shared. Further that it is in the interests of the public and the profession [with regard to his] accounts that he should be subject to closer monitoring."

I have recounted the Review Panel's response earlier in this judgment.

12. Mr Firmin submitted a witness statement in which he advanced his grounds for petitioning me. He has been represented by Mr Geldart who, it is fair to say, found himself pushing against an open door. Mr Firmin makes the following points in his letter. The long list of matters advanced by the Law Society in relation to previous complaints and history were not as bad as they looked. Essentially, they all related to the period of the original hearing before the Solicitors' Disciplinary Tribunal or thereabouts. He then submits that the imposition of the condition would effectively prevent him from being able to practise at all. His current practice is that of a sole practitioner operating from his home. Despite initial difficulties, he has built that practice up to approximately 200 current files, mainly conveyancing, probate and wills. That has been done by a combination of his own personal connections and through advertising in the local parish magazine. It is a rural practice and much of the work comes from those who come from the surrounding villages. He employs a full-time secretary and a part-time assistant. He has no other source of income. Mr Firmin makes the forceful point that, at this stage of his working life, he would have very limited prospects of becoming a partner or obtaining employment with another firm of solicitors, so the imposition of the condition would prevent him from continuing to practise at all.
13. Mr Firmin then refers to the matter which was before the Solicitors' Disciplinary Tribunal. He says that he has dispensed with the services of his previous accountant and has appointed a different firm to act for him. In all these circumstances, his submission is that there is no requirement in the public interest to prevent him from continuing to practise as he does and that the consequences of the condition are unduly harsh.
14. When I read these papers, one matter caused me particular concern. The reason for the original decision was exclusively Mr Firmin's failure to submit accounts in due time. That was the only matter referred to by Miss Higgs when she recommended the Review Panel to impose the conditions. But, in imposing those conditions, the Review Panel stated that they were having regard to Mr Firmin's overall history and his previous breaches of the Solicitors Accounts Rules. That overall history, as far as I can see, in so far as it related to complaints, all dated back to the period before 12 March 2001, to a time when Mr Firmin was practising as Vickery & Co. At no time had it been put to him that this past history was such as to make it appropriate for conditions such as those imposed to be placed on his Practising Certificate. To take them into account at the final stage did not seem to me to be consistent with fair process.
15. Mr Goodwin, for the Law Society, has made it plain that these matters are only referred to by way of general background. It seems to me that it would be quite wrong and disproportionate for these conditions to be imposed upon Mr Firmin on the ground of this past history. If in the future there are further complaints, it will be open to the OSS to consider the matter in the round having regard to past history and any future complaints. That is not the position before me.
16. As to justifying the decision of the Review Panel, Mr Goodwin has relied on Mr Firmin's failure to provide accounts. He has sought to persuade me that a degree of blame should be attached to Mr Firmin for those matters: he should perhaps have moved more quickly to appoint an alternative accountant. This particular matter was investigated by the Solicitors' Disciplinary Tribunal. They have made as strong findings as I have ever seen in his favour by way of mitigation, to the effect that he has done everything he could possibly have been expected to do in order to comply with those obligations. If the OSS had wished to challenge that finding, they needed to do so more specifically than simply by submissions of their advocate before me. There is nothing in the papers before me which justifies such a challenge.
17. One is left with the bald failure of Mr Firmin to comply with the accountancy obligations, but, subject to all the mitigation found by the SDT. Mr Firmin accepts that he should have obtained an Accountant's Report. His evidence is that he has now employed other accountants. In these circumstances, it does not seem to me proportionate or justified to impose the first condition on his certificate, which would be likely to have the effect that he would have to cease to practise.
18. For those reasons, I allow this appeal and direct that the first condition shall not be one to which his certificate is subject.
19. MR GELDART: Would you also allow a further three months for compliance with the second condition from today's date?
20. MR GOODWIN: My Lord, no objection.
21. LORD PHILLIPS, MR: Yes.
22. MR GELDART: Would you order the Society to pay Mr Firmin's costs. I have discussed the matter with Mr Goodwin and have asked for the modest sum of £350 plus VAT.
23. MR GOODWIN: My Lord, I feel I would have difficulty seeking to persuade you otherwise.
24. LORD PHILLIPS, MR: I order that the Law Society should pay those costs in that sum.