England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th July 2004

Lord Justice Thomas:

1. This is the judgment of the Court.
2. On 1 April 2004, we heard an appeal by Mr Ronald Anthony Camacho, a solicitor, (the appellant) against a decision of the Solicitors Disciplinary Tribunal (the tribunal) made on 10 April 2003 by which he was suspended indefinitely. We allowed the appeal and reduced the period of suspension to one of 18 months: [2004] EWHC 1042 (Admin)
3. For the reasons set out at paragraphs 32-35 of the judgment of Silber J, we considered that certain conditions should be imposed upon him in relation to his practice.
4. We also set out in our judgments various observations in relation to:

i) The need for the Law Society to consider revised procedures for its disciplinary hearings, including the introduction of case management (see paragraphs 4-5 and 42-49)

ii) The scope of the powers of the Tribunal to impose conditions (see paragraphs 34-36 and 50-53)

iii) The scope of the powers on costs (see paragraphs 54-57).

5. We were told at that hearing that it was uncertain whether the Tribunal had power to impose conditions in relation to the suspension of a solicitor; the practice had been for the Tribunal to suspend either for a finite or indefinite period, but it did not impose conditions; it made recommendations to the Law Society as to the conditions it thought appropriate and left it to them to impose the conditions. As we considered that conditions were appropriate, we proposed that the Law Society should agree to impose the five conditions that we considered should be imposed on the applicant and gave the Law Society until 22 April to agree to impose those conditions.
6. We were told that the Law Society wished to make further representations to the court in relation to our judgments and the Order we had imposed.

The procedures of the Tribunal and the scope of the powers on costs.

7. The first matter on which the advocates instructed by the Tribunal and the Law Society wished to address us were our observations in relation to the procedures of the Tribunal and the scope of the powers in relation to costs. We were told that the observations we had made in relation to the procedures of the Tribunal and in particular the need for the Tribunal to adopt a system of case management had been carefully considered by those responsible for the rules and procedures of the Tribunal; they had considered that the failures in the proceedings of the Tribunal in this matter were very much "one-off" and due entirely to the conduct of those then representing the appellant. Case management would not assist, as the Tribunal would never prevent a defendant from putting his case as he chose, within reasonable bounds, even if this represented a substantial departure from a previously adopted position; the extremely grave consequences for solicitors found guilty of serious misconduct required a more flexible, if not a generous approach. As the Tribunal lacked any power to compel compliance with its procedural directions, it had necessarily to a degree to regulate by consensus. Moreover ir was said that the procedures of the Tribunal had been in existence in their current form for many decades and were well tested, worked well and did not need a case management approach. We were invited to withdraw our observations.
8. As we made clear in our judgments on 1 April 2004, our observations were made to assist the Tribunal. We made it clear in the argument before us in the further hearing, that as the Tribunal had considered our observations and they did not wish to make any changes, that was, as matters presently stand, entirely a matter for them. We also made clear, despite the arguments presented attractively to us on behalf of the Tribunal and Law Society, that we saw no reason whatsoever to doubt or alter the views we had expressed about the current procedures and the real need for a proper system of case management, but there was no more we could, or would, say about the matter.
9. We were also asked to re-visit the issue we had recorded as being raised in relation to the question as to whether the Tribunal was obliged to take into account the means of a defendant to disciplinary proceedings when making an award of costs against the defendant. We made it clear during the course of argument that we saw no reason to answer the questions raised by the appellant's argument, as it had been unnecessary for us to decide them on the facts of this appeal. It was far better to leave the important issue for argument on an occasion, either before the Tribunal or in this court, when the ability of the defendant to disciplinary proceedings to pay the costs claimed by the Law Society was directly in issue.

The power to impose conditions

10. We therefore turn to the only issue that it is apposite for us to decide – the power to impose conditions.
11. Although, as we have said, there had been some uncertainty at the hearing on 1 April 2004 as to whether the Tribunal had power to impose conditions in relation to the way in which a solicitor might practice, it was accepted by all those represented before us that the terms of s. 47 of the Solicitors Act 1974 were sufficiently wide to give the Tribunal itself power to impose conditions under which a solicitor might practice.
12. We are sure that all the parties were right in their view. S.47 is in very wide terms:

"Subject to subsection (3) and to section 54, on the hearing of any application or complaint made to the Tribunal under this Act, other than an application under section 42, the Tribunal shall have power to make such order as it may think fit, and any such order may include provision for any of the following matters –

(b) The suspension of that solicitor from practice indefinitely or for a specified period

…

(d) In the circumstances referred to in subsection (2A) the exclusion of that solicitor from legal aid work (either permanently or for a specified period)

…

(e) The termination of that solicitor's unspecified period of suspension from practice.

…

(g) In the case of a former solicitor whose name has been removed from the roll, a direction prohibiting the restoration of his name to the roll except by order of the Tribunal"

13. As can be seen from the width of the statutory provisions, the Tribunal has a broad discretion to make such orders as it thinks fit; indeed it is its duty to make orders that are seen to preserve the trust that the public is entitled to place in solicitors.
14. It was submitted, however, that a Tribunal ought not to exercise such power and the practice of making a recommendation to the Law Society as to the conditions on which a person should be permitted to practice should continue so that the Law Society could implement the recommendations by imposing conditions on practising certificates. In exercising those powers, the Law Society acted in accordance with the guidance given by successive Masters of the Rolls. For example, in Re a solicitor No 6 of 1993, (transcript 23 July 1993), the then Master of the Rolls (Sir Thomas Bingham MR) stated:

"The purpose of a condition on a practising certificate is not punitive, but is intended to ensure that a solicitor who has run into trouble in a professional capacity is subject to a degree of oversight in the conduct of his professional life at least until he has demonstrated over a period that he is not in need of any such supervision to protect the public"

The powers to impose conditions were exercised by the Law Society following disciplinary hearings (see Re a solicitor no 9 of 1993 (transcript 9 December 1993) and Re a solicitor No 5 of 1999 (transcript 2 July 1999).

15. There were two principal reasons, it was submitted, why the Tribunal should not exercise its power to impose terms.

i) Reasons of subsequent policing and enforcement. It was submitted that the Tribunal had no power to act on its own motion or to enforce its orders. Orders for suspension and striking off were policed by the Law Society, primarily through the power to intervene in practices. The only means of enforcement would otherwise be through separate disciplinary proceedings or for injunctive relief; the responsibility for these would fall on the Law Society.

ii) Role of practising certificates: It was submitted that the better practice was for the Tribunal to confine itself to a recommendation as to the terms on which a solicitor might practice after a period of suspension. The Order for suspension made by the Tribunal would suspend the defendant's practising certificate and he would have to give notice of his intention to apply for a new certificate (s.12 of the Act). When that application was made, the Law Society would exercise its discretion on the basis of the facts available at that time; the decision would be made by an adjudicator (to whom the Law Society had delegated its powers) who would not be bound to follow the recommendations. Nonetheless, it was virtually inevitable, after a period of suspension, that the Law Society would impose conditions on the practising certificate as to the terms on which the solicitor could resume practice. Recommendations by the Tribunal were (and would be) accorded the utmost respect by the Law Society, as those of the Court would be in this case. The imposition of conditions was an onerous responsibility that the Law Society was experienced in exercising; currently about 600 solicitors were subject to Conditional Practising Certificates.

16. We cannot accept these arguments.

i) If a Tribunal considers that a period of complete suspension followed by a period of restricted practice is the appropriate sanction to protect the public, then as it is accepted that the Tribunal has power to impose such conditions or restrictions, then it is the Tribunal which should impose that penalty and not leave it to others. A body entrusted by Parliament to exercise disciplinary powers and protect the public should not, unless there are compelling reasons, delegate part of that task to others; there are no compelling reasons which apply to the jurisdiction of the Tribunal. It is well able to decide the appropriate terms and it should impose those terms as part of the penalty in the public interest.

ii) It was urged upon us, and we accept, that the Law Society in the exercise of its regulatory powers cannot bind itself to accept a recommendation from the Tribunal, exercising disciplinary functions, to impose a condition on a practising certificate. The jurisdiction of the Law Society to impose conditions on practising certificates is derived from its regulatory powers under ss. 9-18 of the Act which are quite distinct from the disciplinary powers under s.46-54. The Law Society has to consider the application for a practising certificate on the materials available to it when the application is made. There is also a separate appeal procedure in respect of the imposition of terms –first to an Adjudication panel and then to the Master of the Rolls.

iii) Thus, although we accept that the Law Society will accord our views or those of a Tribunal the utmost respect, the Law Society does not have to follow any recommendation made by us or the Tribunal. Neither we nor the Tribunal has any means of being certain that the penalty that is determined to be in the public interest will be imposed. As the Tribunal is an independent body, separate and apart from the Law Society (with its combined duties of regulation and representation of the profession), we consider that in each case the Tribunal must address the question as to whether the public interest is best served by it imposing a condition which it can be certain will be put into effect or leaving the matter entirely to the Law Society. Unless there are exceptional reasons, we consider that the Tribunal should impose itself the conditions it considers appropriate, as that is part of the decision it has made; if the defendant considers the conditions too harsh or wrong in principle, then as the imposition of the conditions is part of the penalty, the route of appeal should be that route that has been provided in respect of the penalty and not that provided in respect of the regulatory powers.

iv) In this case, we have no doubt that the public interest demands that the conditions which we consider are necessary to protect the public must have the necessary certainty of imposition; we were of the view that the penalty of indefinite suspension was far too harsh and the justice of the case and the protection of the public would be met by a period of complete suspension followed by a return to practice on conditions. As we considered that the just penalty, it would have been an abdication of our responsibility not to have imposed that penalty, as it is now accepted we had power to do so.

v) We see no reason whatsoever why the Law Society cannot police orders made by the Tribunal; it may entail some cost, but that is the cost of self regulation that the Law Society must bear. We trust therefore that the Law Society will ensure that the orders of the Tribunal will be vigilantly policed by the Law Society and any breach made the subject of disciplinary proceedings. Any breach of an order of the Tribunal restricting the terms on which a solicitor can practice would be a disciplinary offence which would generally merit a separate penalty and not merely intervention in a practice; that penalty would be required because the solicitor would have breached an Order of the Tribunal which it had imposed as a penalty; there is no reason why a solicitor should be treated any differently or more leniently that any other person who breaches the terms of an order imposed by a court or disciplinary tribunal and which has been imposed as part of the penalty to protect the public.

For these principal reasons, we reject the contentions advanced by the Law Society and the Tribunal and make it clear that it is duty of the Tribunal in each case where it considers that restrictions are required to consider imposing those restrictions itself.

The power of the Tribunal to vary the conditions

17. The question then arose as to whether the period for which terms would be imposed should be for a certain period or whether it should be for an indefinite period with permission to apply to the court or to the Tribunal to vary the conditions. It was submitted on behalf of the appellant that the period should be a finite one as that would be appropriate in the circumstances; it was submitted on behalf of the Tribunal that if the period was to be an indefinite one, then, although the Tribunal had power to vary that at any time in the future on the application of the defendant, it should never do so because of resource implications for the Law Society in keeping files open for an indefinite period.
18. The position is in our view clear. The powers conferred by s. 47 are very wide, as we have stated. The Tribunal has, for example, power to defer sentence. It is clear to us that if the Order of the Tribunal imposed conditions for an indefinite period, but gave the defendant permission to apply to vary the conditions either at any time or after the elapse of a defined period, then that was an Order which the Tribunal had power to make. It would then be open to the defendant to apply to the Tribunal in accordance with the terms of the Order to vary the conditions.
19. There is therefore, in our view, no impediment to the Tribunal, if it thinks fit, imposing conditions for an indefinite period with permission to apply to it, so that it can re-consider the conditions and vary them. We do not consider the resource implications can be material. In the first place there was no evidence that any significant resource would be required and we cannot believe that any would be. Secondly, and of greater importance, if justice and the public interest require conditions to be imposed for an indefinite period, with the opportunity to review the matter at any time in the future, then the Law Society must find the resources necessary to keep open the relevant files.

Conclusion

20. On the facts of this case, we considered that a finite period for the duration of the conditions would be apposite; we therefore imposed the conditions to run for a period of one year at the expiry of the period of suspension of 18 months.