England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		28th July 2006

1. MR JUSTICE OUSELEY: This is an appeal under section 49 of the Solicitors Act 1974 in respect of a decision of the Solicitors Disciplinary Tribunal made on 19th January 2006 with the detailed reasoning following on 15th February 2006. The Tribunal in fact announced in summary form what its reasons were at the end of the oral hearing on 19th January 2006. By its decision, the Tribunal made an order under section 43 of the Solicitors Act which prevents the appellant, who is not a solicitor, from being employed or remunerated in connection with a solicitor's practice without the written permission of the Law Society for such period as the Law Society thinks fit. The Tribunal also ordered the appellant to pay the costs of the Law Society's application for the order and of the inquiry. This was to be subject to a detailed assessment.
2. The appeal as originally lodged challenged only the decision of the Tribunal in relation to costs. It was said that the Law Society had failed to make out all the grounds upon which it had relied when applying for the section 43 order, and so either it should have been ordered to pay a proportion of the costs, or alternatively the appellant should not have been ordered to pay the totality of the costs. The grounds emphasised that he had no money since the proceedings and the order had deprived him of the ability to make an effective living. I note in passing that although the appellant's application for an admission as a solicitor has been refused on account of the section 43 order, permission has been granted by the Law Society, pursuant to the order on 24th April 2006, for the appellant to work with a firm of solicitors as an immigration case worker. This does not provide him, we understand, with full -time employment. The appellant is also seeking a revocation of the section 43 order, as he is fully entitled to, and that application will be heard in October 2006.
3. The appellant also seeks to amend his grounds of appeal some two months out of time and seeks an extension of time to do so. He seeks to contend in this amendment that the section 43 order should not have been made at all, essentially contending that it was unnecessary in the circumstances and indeed disproportionate for the order to have been made. He points out that the Tribunal had rejected the allegation that he had been dishonest and misrepresented who he was in the proceedings. It was that allegation that sparked off the inquiry which led to these proceedings. He points out as well that the Tribunal had accepted that there were mitigating circumstances in what he had done. I would be prepared to extend time so that the merits can be considered.
4. I turn then to the facts. The appellant, who is a lawyer qualified in Nigeria but not in the United Kingdom, was employed by a firm of solicitors called Nathaniel and Company in 2003. There is a debate which we need not resolve about whether the appellant was dismissed summarily in April 2004 as a consequence of the misconduct underlying this application or whether he resigned at an earlier stage and did some temporary work for them until April 2004.
5. What happened was this. A man called Martins, who also worked for Nathaniel & Co, but also worked for another firm, R C Hall & Co, asked the appellant who was junior to him at the firm if he would represent an appellant, E, an asylum seeker, before the Immigration Appellate Authority on 31st July 2003 in a bail application. The request was made on 30th July 2003. On 31st July 2003 the appellant rang in to say that he was ill. He made no reference to the bail application which he had understood his firm were expecting him to make on behalf of a client of theirs. Nonetheless, he said that he felt obliged to undertake the making of the bail application on behalf of the firm and thought that because it was a short application he would be able to manage. It was when he looked at the papers that day on the way to court that he says that he realised that E was not a client of Nathaniel & Co but was in fact a client of R C Hall & Co, the other firm for which Martins worked. Nonetheless, the appellant continued to the IAA and represented E for the purposes of his bail application.
6. On arrival at the IAA, as is required, the appellant filled in a form called a section 84 form. This says who he is and gives the name of the organisation for which he worked. He filled in his name properly and identified Nathaniel & Co as the firm for which he worked. This was handed to the usher. The purpose of a section 84 form is to identify which professionally qualified body authorises him to practise or supervises him in his appearances before the IAA. No complaint was made of the way in which the appellant represented E before the Adjudicator.
7. A barrister was there, not involved in the case, who alleged that the appellant had said that he was Martins. The barrister says that he was concerned about this; so concerned that he raised the matter with an Adjudicator which passed its way as a complaint to the Regional Adjudicator, to the Immigration Services Commissioner, to the Office for the Supervision of Solicitors, and to the Law Society for investigation. Early on in the correspondence, the appellant accepted that he had acted for E without authority because E was neither the client of the appellant's employer, nor was the appellant employed by the firm of which E was a client. But he denied that he had ever represented himself to be Martins. In a letter of 6th August 2004 to the Law Society, the appellant said:

"In conclusion, I accept that I acted without authority from my previous employers when I represented Mr E, but I was assisting my colleague Mr Martins and I acted in good faith because I gave an undertaking to cover the hearing honestly unaware of the consequences. I completed the section 84 form in good faith stating my employers at the time. Once again, I am deeply sorry and there will never be a repetition of this in my life."

8. The Law Society Adjudicator resolved that the matter should be referred to the Tribunal and a Panel Review dismissed the appellant's application for a review of that decision in December 2004. Hence the matter came before the Solicitors Disciplinary Tribunal on the Law Society's application for the section 43 order.
9. At the hearing, the appellant was represented by counsel and was himself present. The Tribunal found that the first part of the allegations against the appellant had been substantiated, namely, that he had acted in a matter without the knowledge or authority of his employer when representing E at the bail hearing. But it did not find proved the second part of the allegation, namely that he represented to the IAA that he was acting in the particular matter under the supervision of his employer firm when that firm was not instructed in the matter. The Tribunal was clearly satisfied that he had not represented himself to be Mr Martins. The Tribunal then said this:

"(24) The Tribunal accepts the Respondent's explanation for what happened. It accepts that he was unwell on the day in question and that might well have affected his judgement. The Tribunal recognises that the Respondent was 'bounced' into the situation in which he had found himself. He had agreed to undertake advocacy on behalf of a client having been instructed by a senior member of staff at the firm which employed him, and it was only on his way to the court that the Respondent discovered that in fact the client was a client of another firm for whom the senior additionally undertook work.

(25) The Respondent's serious error of judgment was to continue to represent Mr E who was not a client of his firm."

In the light of its conclusions in relation to those matters, the Tribunal further held that:

"The respondent himself agreed that a section 43 order would be appropriate. The Tribunal therefore made the order sought in the terms set out above and further ordered that the respondent should pay the costs of and incidental to the application and inquiry ...subject to detailed assessment."

10. The costs order made by the Tribunal was made on the understanding that it was agreed that such an order should be made. At the hearing, a Mr Goodwin for the Law Society had opened matters on the basis that he had discussed the position on costs with Mr James, counsel for the appellant, who had requested that there be an order for costs to be assessed if not agreed. The Tribunal announced its decision at the hearing and specifically adverted to the question of costs, saying that it was conceded that there should be an order for costs on the basis of there being a detailed assessment of them. It also pointed out that it was conceded in this case that the conduct limited to the first part of the allegations did justify a section 43 order being made. Neither then nor at any earlier stage in the proceeding did counsel demur from the suggestion that the costs order had been agreed subject to detailed assessment or seek to take issue with that in the light of the findings announced by the Tribunal. Nor did anyone take issue with the fact that a section 43 order had been agreed to be appropriate, even though the more serious part of the allegations were contested.
11. So far as the merits of the making of the order are concerned, Mr Ojelade has submitted that in the light of the findings of the Tribunal and in the light of the comments which they made, which in many ways accept that there were significant mitigating circumstances which led him to do what he did, the Tribunal had a duty to consider for itself whether the order should be made. It could not simply accept what had been said by counsel conceding the appropriateness of an order.
12. The position, in my judgment, is this. The starting point is that a section 43 order is not a punishment. As was submitted by the Law Society to the Tribunal, and as is plainly correct, section 43 is a regulatory provision designed to afford safeguards and exercise control over those employed by solicitors when in any given case that was considered to be appropriate. It should not be viewed as a punishment. The fundamental principle involved was the maintenance of the good reputation of the solicitors' profession, both in the interests of the profession and of the public. The collective reputation of that profession was of importance to the public and there had to be confidence in solicitors and in those employed by solicitors' firms. I agree with those comments. That is the purpose of it.
13. The impact which the making of such an order may have of course, varies from person to person, but it is important also that it is open to an appellant to seek to have the order revoked and meanwhile to seek permission, as has happened here, from the Law Society in order that employment continue.
14. As to the contention that this was a disproportionate and unnecessary order, putting to one side for the moment the acceptance by counsel that it was appropriate and considering it simply on the basis of the facts found and the mitigation considered, there is plainly a proper basis for the making of such an order. It is not right for someone who is employed by Firm A to act and appear on behalf of someone who is not a client of that firm and instead to act on behalf of the client of another firm with whom he has no connection. It is a good illustration, notwithstanding the mitigation that has been put forward, of the circumstances in which an error of judgment of that sort requires somebody to work under closer supervision.
15. For my part, I have little difficulty in seeing why, even though the more serious allegation was found not proved, it was considered by counsel for the appellant that an order should be made. Once, however, one considers that counsel did acknowledge that an order should be made in the circumstances as found, it is very difficult to see that the Solicitors Disciplinary Tribunal can be regarded as having erred. It is important to recognise that the decisions of this sort do involve exercises of judgment made by the Tribunal as an informed and expert body on the situation which it faces. Accordingly, I would not accept the contention that on the merits the Tribunal had gone too far. They were fully aware of all the financial circumstances which the appellant drew to their attention during the course of his address to them.
16. So far as costs are concerned, the position is that it would have been open to the Tribunal to make an order for less than the full costs which the Law Society had incurred. In this connection, it is useful to refer briefly to Baxendale -Walker v Law Society [2006] EWHC 643 Admin in which my Lord Moses LJ, at paragraphs 49 to 50, made some helpful comments, if I may respectfully say so, in relation to costs. He pointed out that since the solicitor in that case had brought the proceedings upon himself, and since they were in part successful, he would normally expect the Tribunal to pay all of the costs, even though one of the allegations was found not to have been proved. The Tribunal might, in some circumstances however, reflect the failure of one of the allegations by making an order that the unsuccessful solicitor should not have to pay all of the costs. So I accept that it would have been permissible for the Tribunal to have made only a partial order for costs. I, for my part, do not accept that it would have been open in the light of that authority at paragraph 43 for the Law Society to have been ordered to pay part of the costs for the appellant, even though it appeared that the barrister in question did not attend the Tribunal hearing.
17. However, the position is that counsel agreed without subsequent demur, in the light of the Tribunal's finding, that a costs order covering the full matter was appropriate. In the light of that, it is, in my judgment, impossible to say that the Tribunal erred in making the costs order which it did. It was plainly better placed with the full file in a position to evaluate the relative importance of the various points, so as to reach a view on whether the concession had gone too far. For my part, as I have said, I see nothing there to persuade me that the court's appellate powers should be exercised differently.
18. I simply add this. First, that although a complaint has been shown to us in respect of counsel's conduct of the hearing before the Tribunal, we have not been shown anything by way of a response to that and I for my part would be reluctant to make any findings as to the adequacy of counsel's representation, or to use it as a basis for upsetting a Tribunal decision in the absence of a very much clearer picture as to the interaction between counsel and his client and counsel's response. Second, I observe that the Tribunal itself recognised that the appellant had been placed in a difficult position by Mr Martins, against whom it appears no proceedings have been taken. But be that as it may, there is material in the mitigation which the Tribunal had accepted and in the circumstances described by the appellant, for them to contemplate the revocation application with sympathy.
19. LORD JUSTICE MOSES: I agree for the reasons given by my Lord. The only point I wish to emphasise is that however much this court might think that it would have taken a different approach, that of itself is not sufficient to require it to reverse the rulings of the Tribunal, expert as they are in what is or is not a serious error of judgment. It found in this case that there was a serious error of judgment, even though this appellant was forced to exercise that judgment at the last minute. That, of course, is the very stuff of the advocate, and indeed of the solicitor.
20. However, I do acknowledge the hardship that this appellant has suffered as a result of the order made, particularly in the context that it was not designed to be a punishment. But he has suffered. Having lost his job he has found great difficulty in getting other work, and, bearing in mind the existence of section 43, that is not surprising. He has a young family which is shortly to be enlarged and he has obviously great difficulties in supporting it.
21. I do hope that those considering his application, which we understand to take place at the end of October, will bear those features in mind as well as the facts of the instant case. Of course, nothing I say can bind in any way what the Law Society or the Tribunal is likely to do, but I am sure that they will bear those important features in mind in considering whether it really is necessary for this order to continue beyond the period to the end of October. But for the reasons my Lord gives, there is no ground for overturning the decision of the Tribunal.
22. MR WILLIAMS: My Lord, I apply for costs on behalf of the Law Society. I appreciate everything we have heard about the situation of Mr Ojelade, but this appeal - -
23. LORD JUSTICE MOSES: Is there an assessment? Can we assess the figure?
24. MR WILLIAMS: I have a schedule, my Lord.
25. LORD JUSTICE MOSES: How much are they?
26. MR WILLIAMS: The total for my instructing solicitor and myself inclusive of VAT is £350. It also occurs to me that there is going to be a detailed assessment in relation to the Tribunal.
27. LORD JUSTICE MOSES: Is it not better that there is in relation to this?
28. MR WILLIAMS: I think so, my Lord.
29. LORD JUSTICE MOSES: What do you want to say about costs apart from the fact that you cannot pay them?
30. MR OJELADE: My Lord, it has been extremely difficult for me. For about three years now, I have been virtually unemployed because of these proceedings.
31. LORD JUSTICE MOSES: Just one moment. (Pause). We will make no order as to costs.
32. MR OJELADE: Thank you very much.
33. LORD JUSTICE MOSES: But there are still the other costs. I hope it all goes well for you at the end of October. I will also order that you have a transcript of both my remarks and of Ouseley J's free of charge. You will be able to take them along and make sure that the Tribunal considering it at the end of October have got them.
34. MR OJELADE: Thank you, my Lord. My Lord, there was an outstanding order for costs as well.
35. LORD JUSTICE MOSES: There is nothing we can do about that one. You will just have to hope that they do not enforce it.
36. MR OJELADE: At the Tribunal, the Tribunal made an order for costs.
37. MR JUSTICE OUSELEY: You have lost your appeal on that. That remains. You have to pay that unless you can persuade them otherwise.
38. LORD JUSTICE MOSES: As a matter of mercy we have not ordered you to pay the costs here. We probably have no basis for doing that either. Thank you very much.