England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/11/2016

Mr Justice Leggatt:

1. In these proceedings the Solicitors Regulation Authority ("SRA"), the independent body which discharges the regulatory functions of the Law Society, asks the court to quash two decisions of the Solicitors Disciplinary Tribunal (the "Tribunal") contained in a judgment dated 16 March 2016. The Tribunal is the respondent in these proceedings but, apart from providing some evidence about its practices, has adopted a neutral role and is not represented. Both of the decisions which are challenged relate to Mr Arslan who has appeared in person as an interested party. The Law Society in its representative capacity has intervened in the proceedings and has made submissions by counsel on an issue concerning the standard of proof applied by the Tribunal.
2. The decisions of the Tribunal which the SRA seeks to challenge are:

i) A decision to revoke an order made by the SRA under section 43 of the Solicitors Act 1974 restricting Mr Arslan from being employed by a solicitor's practice or recognised body except with the permission of the SRA; and

ii) A decision to allow an appeal by Mr Arslan against a decision by the SRA under section 44D of the Act to give Mr Arslan a written rebuke, direct him to pay a financial penalty or £500 and publish details of those actions.

The factual background

3. The factual background, in brief summary, is that Mr Arslan (who is not a qualified solicitor) worked at relevant times for a firm of solicitors, Duncan Lewis (Solicitors) Limited, doing immigration work. He was initially employed by the firm under a contract of employment; but from 2 September 2013 he became a consultant under an arrangement whereby a company of which Mr Arslan was the sole director entered into a contract with the firm to provide his services.
4. On or around 30 October 2012 Mr Arslan was instructed on behalf of Duncan Lewis to act for a 20 year old woman, whom I will refer to as "Ms K", in an immigration case. The case was later transferred to another firm, Fadiga & Co Ltd, following a request to transfer the file received on 24 June 2013. Shortly before that, although Mr Arslan did not know it at the time, the SRA had received a report from the Children's Society on behalf of Ms K making an allegation of sexual harassment against Mr Arslan. After a statement had been obtained from Ms K, the SRA sent an email to Mr Arslan on 24 December 2013 attaching a letter outlining her allegations and asking for his response within the (seemingly unreasonable) time frame of seven days. The email was sent to the email address which the SRA held for Mr Arslan.
5. On 26 December 2013 Mr Arslan replied from a different email address acknowledging receipt of the email and stating:

"I wonder whether you can send me your attachments to this email address as I cannot download by a mobile phone as I cannot log into my old email address via computer. This is the email address that I use."

6. On 30 December 2013 the SRA re-sent their email and its attachments to the new address. Mr Arslan responded that day asking for an extension of time, which was granted. On 10 January 2014 he provided a substantive response to the allegations, with supporting documentation.
7. On 14 February 2014 the SRA obtained access to the hard copy and electronic records of Duncan Lewis, which included a copy of the file sent to Fadiga & Co on 24 June 2013. They found discrepancies between documents which Mr Arslan had provided with his response to the SRA's letter and the records of Duncan Lewis. In particular:

i) The documents sent by Mr Arslan with his response included a typed attendance note dated 30 October 2012 of a meeting between Mr Arslan and Ms K (which has been referred to as document "A"). A copy of this attendance note was also in the file provided to Fadiga & Co on 24 June 2013. However, the version relied on by Mr Arslan contained an additional page of text which followed a list of action points with which the document had appeared to end.

ii) The documents relied on by Mr Arslan also included a handwritten attendance note (which has been referred to as document "B"). The note is dated October 2013 but appeared to be a note of a meeting at the end of October 2012. This note was also not in the file provided to Fadiga & Co.

iii) A third document provided by Mr Arslan to the SRA was a typed telephone attendance note dated October 2012 (which has been referred to as document "C"). Again, there was no copy of this document in the file transferred to Fadiga & Co.

iv) The SRA also noticed that documents B and C had been uploaded to the Duncan Lewis system on 27 December 2013.^[1]

8. The SRA concluded that there was insufficient evidence to support the allegation made by Ms K and the Children's Society against Mr Arslan and that matter was discontinued. However, the SRA wrote to Mr Arslan on 3 March 2014 referring to the documents and discrepancies that I have mentioned, asking for his explanation of the discrepancies and inviting him to comment on the allegation that he had dishonestly created documents to provide evidence to support his response.
9. Mr Arslan provided his response to the SRA's letter on 20 March 2014. He denied that any of documents A, B and C had been created or added to after he received the SRA's letter and said that they were all created in October 2012. He explained the fact that documents B and C had been uploaded to the Duncan Lewis system on 27 December 2013 on the basis that he was doing routine administration in the office that day. He said he could not comment on why the documents had not been included in the file sent to Fadiga & Co as the file had been taken away from him by his head of department before 24 June 2014 and he had no involvement in the transfer of the file.
10. The SRA obtained comments from Duncan Lewis on matters raised by Mr Arslan's response and prepared a draft report, which was sent to Mr Arslan together with relevant documents including the comments from Duncan Lewis. Mr Arslan made detailed submissions on the draft report. A second draft report was prepared and sent to Mr Arslan on 27 July 2014 and again he sent detailed submissions in response.
11. All the material including Mr Arslan's submissions was then sent to an adjudicator who produced his decision on 16 January 2015. The issue for the adjudicator was whether Mr Arslan had provided false and misleading information to the SRA during the course of its investigation of Ms K's allegations.

The adjudicator's decision

12. The adjudicator concluded that, on the balance of probabilities, Mr Arslan had received and read the SRA's email of 24 December 2013, including its attachments, within two days after it was sent and had then created an additional page for document A and (the whole of) documents B and C in an attempt to mislead the SRA. In relation to two other documents both dated 15 April 2013, referred to as documents D and E, the adjudicator found that a similar allegation of attempting to mislead the SRA had not been proved.
13. On the basis of his factual findings, the adjudicator considered whether it was appropriate to make, and decided that he should make, orders under each of sections 43 and 44D of the Solicitors Act.
14. Section 43 of the Act provides as follows:

"Control of solicitors' employees and consultants

(1) Where a person who is or was involved in a legal practice but is not a solicitor—

…

(b) has, in the opinion of the Society, occasioned or been a party to, with or without the connivance of a solicitor, an act or default in relation to a legal practice which involved conduct on his part of such a nature that in the opinion of the Society it would be undesirable for him to be involved in a legal practice in one or more of the ways mentioned in subsection (1A),

the Society may either make, or make an application to the Tribunal for it to make, an order under subsection (2) with respect to that person.

(1A) A person is involved in a legal practice for the purposes of this section if the person—

(a) is employed or remunerated by a solicitor in connection with the solicitor's practice;

(b) is undertaking work in the name of, or under the direction or supervision of, a solicitor;

…

(3) Where an order has been made under subsection (2) with respect to a person by the Society or the Tribunal—

(a) that person or the Society may make an application to the Tribunal for it to be reviewed, and

(b) whichever of the Society and the Tribunal made it may at any time revoke it.

(3A) On the review of an order under subsection (3) the Tribunal may order—

(a) the quashing of the order;

(b) the variation of the order; or

(c) the confirmation of the order;

and where in the opinion of the Tribunal no prima facie case for quashing or varying the order is shown, the Tribunal may order its confirmation without hearing the applicant.

…"

15. The adjudicator concluded that Mr Arslan was a person involved in a legal practice as defined in subsection (1)(a), that the condition set out in subsection (1)(b) was satisfied, and that it was appropriate to make an order under subsection (2) with respect to Mr Arslan. An order was made in the terms of subsection (2) as from 16 January 2015 (the date of the adjudication).
16. Section 44D of the Act provides as follows:

"Disciplinary powers of the Society

(1) This section applies where the Society is satisfied—

(a) that a solicitor or an employee of a solicitor has failed to comply with a requirement imposed by or by virtue of this Act or any rules made by the Society, or

(b) that there has been professional misconduct by a solicitor.

(2) The Society may do one or both of the following—

(a) give the person a written rebuke;

(b) direct the person to pay a penalty not exceeding £2,000.

(3) The Society may publish details of any action it has taken under subsection (2)(a) or (b), if it considers it to be in the public interest to do so.

…"

17. The adjudicator considered that the requirements for taking action under section 44D were met and that it was a proportionate outcome in the public interest to rebuke Mr Arslan in writing and direct him to pay a financial penalty. Having regard to the circumstances of the case and submissions made by Mr Arslan about his means, the adjudicator fixed the amount of the penalty at £500.

The Tribunal decision

18. Pursuant to section 43(3)(a) of the Act, Mr Arslan applied to the Tribunal for the order made by the SRA adjudicator under section 43 to be reviewed. He also exercised his right under section 44E of the Act to appeal against the actions taken by the adjudicator under section 44D. That review and appeal were heard together by the Tribunal over three days on 9-11 February 2016. At the hearing Mr Arslan appeared in person and the SRA was represented by a solicitor and counsel.
19. As mentioned earlier, the Tribunal's written decision was delivered on 16 March 2016. In this decision, the Tribunal set out the background and the parties' submissions and reached the following conclusions:

i) The Tribunal considered the standard of proof and determined that the correct standard to apply, both when reviewing the adjudicator's decision under section 43 and on the appeal from the decision under section 44D, was the criminal standard of proof (beyond reasonable doubt) and not the civil standard of proof (on the balance of probability).

ii) The Tribunal considered the position of Mr Arslan as someone who worked for a solicitor's firm as a consultant under a contract for services and decided that he came within section 43 but was not an "employee of a solicitor" within the meaning of 44D. It followed that the SRA did not have power to impose sanctions on Mr Arslan under section 44D.

iii) The Tribunal held that the correct approach for both a section 43 review and an appeal against a decision made under section 44D was to proceed by way of a review and not a rehearing.

iv) The Tribunal nevertheless considered that it needed to undertake a detailed consideration of the facts underpinning both decisions and went on to consider, first, whether Mr Arslan had obtained access to the attachment to the SRA's email of 24 December 2013 before the email was re-sent to him on 30 December and then whether each of documents A, B and C had been created or amended by Mr Arslan with the intention of misleading the SRA. On these issues the Tribunal concluded that it could not find, to either the civil or criminal standard of proof, that Mr Arslan had obtained access to the email attachment before 30 December 2013; nor did it find, either on the civil or the criminal standard, that any of documents A, B and C had been created or amended by Mr Arslan to mislead the SRA.

20. In the result, the Tribunal revoked the section 43 order and allowed Mr Arslan's appeal from the decision made under section 44D.

These proceedings

21. The SRA seeks to challenge these orders of the Tribunal in this court by two different routes. Under section 44E(6) there is a right of appeal from the Tribunal to the High Court from a decision of the Tribunal on an appeal against disciplinary action taken under section 44D, and the SRA pursues such an appeal. There is no right of appeal from a decision of the Tribunal on a review of an order made under section 43, but the SRA has brought a claim for judicial review of that decision.
22. Directions were given that both the application for permission to proceed with the claim for judicial review and, if permission is granted, the claim itself should be decided at this hearing; and both matters have been argued together.

The issues

23. Three grounds of challenge to the Tribunal's decision are advanced by the SRA:

i) First, it is said that the Tribunal erred in law in substituting its own findings of fact for those of the adjudicator. This ground has two limbs: (a) that the Tribunal erred in undertaking its own fact-finding exercise; and (b) that there was no proper basis for overturning the adjudicator's findings in any event.

ii) Second, it is argued that the Tribunal erred in law in holding that the criminal standard of proof should be applied.

iii) Third, it is said that the Tribunal erred in law in concluding that Mr Arslan was not an "employee" within the meaning of section 44D with the result that the SRA had no power to impose disciplinary sanctions on him under that provision.

24. I propose to consider the issues in the following order. I will deal first with the question whether Mr Arslan was an employee, which raises a discrete point of statutory interpretation. Second, I will consider the nature of a review under section 43 and of an appeal under section 44E. Third, I will consider the appropriate standard of proof. Finally, I will consider the SRA's contentions that the Tribunal erred in its approach to the evidence and had no proper basis for overturning the adjudicator's findings.

(1) Was Mr Arslan an "employee"?

25. The SRA submits that the Tribunal erred in law in interpreting the term "employee" in section 44D as having the meaning which the term has at common law and in employment legislation such as the Employment Rights Act 1996 – that is to say, a person who in engaged under a contract of employment (or a contract of service, as it is also sometimes called) in contrast to someone who is classified as an independent contractor engaged under a contract for services.
26. For the SRA, Mr Dutton QC submitted that, in the absence of any statutory definition of the term "employee" in the Solicitors Act, Parliament must have intended the term to be given an ordinary, non-technical meaning. In support of this contention, Mr Dutton relied on R v Callender [1993] QB 303. In that case the appellant, who described himself as a self-employed accountant, was engaged by an individual to prepare accounts for quarterly VAT returns and annual income tax returns. The appellant falsely claimed to be a qualified accountant and was paid fees for work which he never did. He was convicted of an offence under section 16 of the Theft Act on the basis that he had obtained by deception the opportunity to earn remuneration in an "office or employment". He appealed against his conviction on the ground that he did not come within that description, as he was self-employed. The Court of Appeal rejected his argument, holding that the word "employment" should be given its meaning as a matter of ordinary language and that, so construed, it covered the arrangement under which the appellant agreed to supply his services as an accountant. The Court was also concerned that, if the appellant's argument was sound, there would be, not just a small lacuna, but a "yawning gap" in the protection for the public afforded by the statutory provision. Mr Dutton submitted that the same approach to interpretation should be applied in the present case.
27. As a matter of ordinary language, I believe there is a difference between the use of the words "employ" and "employment", and the word "employee". It is natural to speak of "employing" someone as an accountant to prepare your tax returns – to take the facts of the Callender case as an example – even though that person is an independent contractor. It is also a perfectly proper use of ordinary language, as was said in Callender, to describe such a state of affairs as "employment". But I do not think that in ordinary language it would be natural to describe the self-employed accountant in that case as an "employee". In Callender reference was made to the definitions of "employ" and "employment" given in the Shorter Oxford English Dictionary. The same dictionary defines an "employee" as "one who is employed for wages or a salary". "Wages" and "salary" are terms generally used to describe the remuneration paid to someone who is employed under a contract of employment in the employment law sense. I would therefore consider that giving the term "employee" its meaning in ordinary language produces the opposite conclusion from that contended for by the SRA.
28. Mr Dutton submitted in the alternative that, even if the term "employee" does not apply to anyone who is engaged under a contract for services, it at least covers an individual who undertakes work under the control of a solicitor. He sought to draw support for this interpretation from the definition of the term "employee" given in the SRA Glossary incorporated in the Code of Conduct made by the SRA under its rule-making powers. The Glossary includes within its definition of the term "employee" an individual who is:

"engaged under a contract for services, made between a firm or organisation and

(a) that individual;

(b) an employment agency; or

(c) a company which is not held out to the public as providing legal services and is wholly owned and directed by that individual; …

under which the firm … or organisation has the exclusive control over the individual's time for all or part of the individual's working week or in relation to which the firm or organisation has designated the individual as a fee earner in accordance with arrangements between the firm or organisation and the Lord Chancellor … pursuant to the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 …"

29. In his reply submissions Mr Dutton showed that the Code of Conduct already contained a definition of the term "employee" that encompassed an individual engaged under a contract for services when the Legal Services Act 2007 was enacted which added provisions to the Solicitors Act (in particular, sections 31A and 44D) which refer to "employees" of solicitors. Mr Dutton submitted that Parliament should be taken to have included these provisions with knowledge of how the term "employee" was being interpreted by the Law Society in regulating solicitors and with the intention that the term should be given a similar meaning.
30. I do not think that much weight can be given to a professional code of conduct in construing an Act of Parliament. Nor can I accept that it is legitimate to interpret the term "employee" as it is used in the Solicitors Act by reference to rules which the SRA has made under that Act, when the power to make such rules in relation to a person itself depends, as it does, on whether that person is a solicitor or an "employee of a solicitor": see sections 31 and 34A of the Act. As Mr Dutton quite properly accepted in argument, it is not permissible to use delegated legislation to define the scope of primary legislation. The SRA cannot, by choosing to define a statutory term in a particular way, enlarge its own statutory powers. Thus, the meaning of the term "employee" in the Solicitors Act is a prior question to its meaning in the SRA Code, and must be determined first. If and insofar as the definition adopted by the SRA goes beyond the scope of the term on its correct statutory interpretation, the rules exceed the authority of the SRA and are to that extent of no effect.
31. I do not think that in ordinary language an individual such as Mr Arslan whose services are supplied to a solicitor's firm under a contract between the firm and the company which the individual owns and directs would naturally be described as an "employee" of the firm, even if the firm has control over his work or exclusive control over his time for all or part of his working week. But I do not rest my conclusion simply on the ordinary meaning of the term. The conclusion that the term "employee", as it is used in the Act, does not include individuals engaged under contracts for services who fall within the SRA Glossary definition is strongly supported by the language of section 43. Section 43 is headed "Control of solicitor's employees and consultants". That heading is itself instructive, as it indicates that someone who is engaged by a solicitor's firm as a consultant under a contract for services is not covered by the term "employee". Section 43 applies in relation to a person who is "involved in a legal practice". The definition of that phrase in subsection (1A) indicates that the term "employed" (let alone the term "employee") is used in a narrower sense than that contended for by the SRA. The definition clearly envisages that a person may be remunerated by a solicitor in connection with the solicitor's practice and may undertake work in the name of, or under the direction or supervision of, a solicitor without being "employed" by the solicitor. That is inconsistent with the SRA's case that the term "employee" and its cognates are used in the Act in a broad sense to include someone who undertakes work under the control of a solicitor.
32. Mr Dutton also submitted that there is no principled distinction from a regulatory point of view between someone who is employed by a solicitor under a contract of employment and an individual, such as Mr Arslan, who works under the supervision of a solicitor as a consultant. Again, I am unable to agree. It remains the position in law that a person engaged under a contract of employment owes duties towards, and is owed duties by, the employer which are far more extensive than those applicable in a consultancy relationship. There seems to me to be a significantly stronger case for bringing individuals who are in such a close relationship with a solicitor within the umbrella of regulation governing solicitors than there is as regards independent contractors who do not have the rights and duties of employees. Whether in the modern age independent contractors or a particular class of independent contractors should be subject to regulation by the SRA is another question. But in my view it would require an amendment to the statute to achieve that result.
33. A further submission made in the SRA's skeleton argument is that interpreting the term "employee" in section 44D in its common law and employment law sense would be contrary to the purpose of the Legal Services Act 2007, which (amongst other changes) introduced amendments to section 43 and a new section 44D into the Solicitors Act as part of a reform of legal services regulation which promoted a concept of entity-based regulation extending beyond qualified solicitors to people who are not solicitors but who are involved in a legal practice regulated by the SRA. The SRA submitted that it was an essential part of this reform to ensure that all the rules and sanctions at the disposal of the SRA can be used against everyone permitted to provide the relevant services, and that the term "employee" must be interpreted to give effect to this legislative purpose.
34. I certainly accept that one of the purposes of the amendments made to the Solicitors Act by the Legal Services Act was to give the SRA as the regulatory arm of the Law Society powers to protect the public against risks posed by persons involved in a regulated legal practice who are not solicitors, as was done by the amendments made to section 43. But I do not accept that interpreting the term "employee" in section 44D in what I consider to be its normal sense of someone employed under a contract of employment is inconsistent with this legislative purpose. It seems to me that section 43 has been carefully drafted to enable the SRA to achieve this purpose without giving it powers to regulate people who are not already within the scope of sections 31 and 34A. It is important to note that section 43 does not give the Society or a Tribunal power to make an order directly against a person who falls within its scope, in the way that section 44D does. It confers the power to make an order "with respect to that person": see subsection (1). That difference is significant. The way in which an order made under section 43 operates is not by prohibiting the individual concerned from working for a solicitor or other regulated person or body. What it does pursuant to subsection (2) is to prohibit a solicitor or other regulated person or body from employing or remunerating the individual concerned. In other words, the order does not take effect directly against the individual (who may not be someone over whom the Law Society has jurisdiction) but affects the individual indirectly. Thus, the class of persons specified in subsection (2)(a) against whom the order can have direct effect is narrower than the class of persons with respect to whom an order may be made, as defined in subsection (1A).
35. On analysis, therefore, it can be seen that the legislation has been carefully constructed to give the Law Society through the SRA power to protect the public against risks presented by someone who does work for or on behalf of a solicitor whether or not that person is an employee of the solicitor, without giving the Society powers to regulate and discipline individuals who are neither solicitors nor employees of solicitors.
36. Finally, I do not accept that the fact that section 44D applies only to solicitors and employees of solicitors leaves a significant lacuna, let alone a "yawning gap" in the protection provided by the Act. There is no power to impose the most severe sanctions available under the Act on anyone who is not a solicitor. In particular, even an employee who is not a solicitor cannot have their professional qualification or right to practise removed or suspended by the Tribunal, since they have no such qualification or right. The inability to give a written rebuke to a person involved in a solicitor's practice who is neither a solicitor nor an employee of a solicitor and to direct such a person to pay a financial penalty of up to £2,000 does not seem to me to create a significant gap in protection when the SRA has at its disposal the powers conferred by section 43.
37. I conclude that the Tribunal correctly interpreted section 44D and correctly held that Mr Arslan was not within its scope. I would, for that reason, dismiss the appeal brought by the SRA against the Tribunal's decision under section 44E.

(2) The nature of a review by the Tribunal

38. I turn to the nature of the Tribunal's task in conducting a review under section 43(3) and an appeal under section 44E. It is not in dispute that the Tribunal was correct to hold that, in both cases, the proper approach was to proceed by way of a review and not a re-hearing. As for what such a review involves, the Tribunal accepted submissions made to it by Ms Emmerson that its function was analogous to that of a court dealing with an appeal from another court or from a tribunal and that it should apply by analogy the standard of review applicable to such appeals which is set out in rule 52.11 of the Civil Procedure Rules. Rule 52.11 makes it clear that a court or tribunal conducting a review should not generally receive new evidence that was not before the original decision-maker, although it may do so if justice requires it; and it should interfere with a decision under review only if satisfied that the decision was wrong or that the decision was unjust because of a serious procedural or other irregularity in the proceedings.
39. It follows that the Tribunal should not embark on an exercise of finding the relevant facts afresh. On matters of fact the proper starting point for the Tribunal in this case was the findings made by the adjudicator and the evidence before the adjudicator. The Tribunal had to consider whether, on that evidence, the adjudicator was justified in making the factual findings that he did.
40. More guidance on the proper approach to a review is given in the judgment of Clarke LJ in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, which Mr Arslan cited in his skeleton argument. The passage at paras 14-17 of the judgment was approved by the House of Lords in Datec Electronics Holdings Ltd v UPS Ltd [2007] 1 WLR 1325 at para 46 (Lord Mance). In that passage the point is made that the approach to any particular case will depend upon the nature of the issues under review. Where a challenge is made to conclusions of primary fact, the weight to be attached to the findings of the original decision-maker will depend upon the extent to which that decision-maker had an advantage over the reviewing body; the greater that advantage, the more reluctant the reviewing body should be to interfere. Another important factor is the extent to which the original decision involved an evaluation of the facts on which there is room for reasonable disagreement. In such a case the reviewing body ought not generally to interfere unless it is satisfied that the conclusion reached lay outside the bounds within which reasonable disagreement is possible.
41. In the present case the SRA adjudicator did not hear any oral evidence. His decision was based entirely on written evidence and submissions, all of which were available to the Tribunal. In that respect, the Tribunal was in as good a position as the adjudicator to assess the evidence and draw appropriate inferences from it; and there was nothing to prevent the Tribunal, if satisfied for good reason that a finding of the adjudicator was wrong, from reaching a different conclusion.
42. I do, however, see force in the point made by Mr Dutton that in the case of a finding made under section 43(1)(b) the language of that provision requires the Tribunal to afford some independent weight to the opinion of the adjudicator if there is scope for reasonable differences of view. The statutory test is not simply whether the person concerned has "occasioned or been party to … an act or default in relation to a legal practice", but whether that is so "in the opinion of the Society". It seems to me that this wording requires the Tribunal on a review to treat the adjudicator's opinion as an evaluation with which it should not readily interfere.

(3) Standard of proof

43. It follows from the nature of the Tribunal's role as a review body rather than a primary decision-maker that it was not for the Tribunal to apply its own standard of proof. In relation to the standard of proof, the only relevant questions for the Tribunal were to ask, first, what standard the SRA as the primary fact-finder ought to have applied; and second, whether the SRA adjudicator had properly applied that standard.
44. There can be no doubt that, in deciding whether to take action under section 44D, the SRA was correct to apply the civil standard of proof. That is because the SRA had a statutory obligation to apply that standard. In the exercise of the Law Society's powers under the Solicitors Act, the SRA has made rules – the Disciplinary Procedure Rules 2011 – which govern the procedure applicable to decisions made under section 44D. Rule 7.7 of those Rules expressly provides that the standard of proof shall be the civil standard. It follows that the only question for the Tribunal when hearing an appeal under section 44E is whether the SRA properly applied the civil standard of proof. There is no scope for the Tribunal to apply the criminal standard.
45. The same is true when the Tribunal is reviewing an order made by the SRA under section 43. There are no rules which dictate the standard of proof which the SRA must apply when finding facts for the purpose of deciding whether to make such an order. But in my view it is plainly appropriate for the SRA to apply the civil standard for that purpose, as it did in this case. As Treacy J said in Gregory v The Law Society [2007] EWHC 1724 (Admin) at para 18:

"Section 43 is not punitive in nature. It is there to protect the public, to provide safeguards and to exercise control over those who work for solicitors, in circumstances where there is necessity for such control shown by their past conduct."

In these circumstances there can be no justification for treating the fact-finding exercise as if it were, or were akin to, a criminal proceeding.

46. Mr Dutton invited the court to give an opinion on the standard of proof which the Tribunal should apply in a case where it acts as the primary fact-finder. An example of such a case would be one where a complaint has been made to the Tribunal that a solicitor or an employee of a solicitor has failed to comply with rules made by the SRA under section 31 or section 34A of the Solicitors Act. Mr Dutton argued that there is uncertainty about the standard of proof which the Tribunal ought to apply in such cases which needs to be resolved. He also made the point that it is wholly illogical for the Tribunal to apply a different standard of proof when, for example, hearing a complaint about an employee of a solicitor of the kind referred to in section 47(2E) of the Act from that which the SRA is required by law to apply when deciding whether to take action under section 44D.
47. On the substance of the question, Mr Dutton argued that proceedings before the Tribunal are civil proceedings, not criminal proceedings, that the essential purpose of professional regulation and discipline is the protection of the public and not punishment of a person who commits misconduct, and that in principle the proper standard of proof to apply in all such proceedings is the civil and not the criminal standard. He cited a strong body of authority in support of this argument and also pointed out that the modern tendency has increasingly been to apply the civil standard of proof in disciplinary proceedings, leaving solicitors along with barristers in a small minority of professions where the criminal standard continues to be used.
48. Mr Treverton-Jones QC, who has appeared for the Law Society to address this issue, defended the Tribunal's practice of applying the criminal standard of proof. He submitted that the decisions of this court in Re A Solicitor [1993] QB 69 and of the Privy Council in Campbell v Hamlet [2005] 3 All ER 1116 are authority for the proposition that the standard of proof applicable in disciplinary proceedings brought against solicitors is the criminal standard and that this court is, even if not strictly bound by those authorities, obliged to afford them great weight.
49. For my part, I agree with Mr Dutton that the present situation in which the Tribunal, when acting as a primary fact-finder applies a different standard of proof from that which the SRA applies when carrying out that role is unsatisfactory and illogical. I also see considerable force in the point that the climate and approach to professional regulation and discipline have changed since Re A Solicitor was decided. Persuasive as his submissions were, however, I would decline the invitation to express a concluded view on the question in the present case. To do so would require us to decide whether a previous decision of this court and a decision of the Privy Council should not now be followed. Those authorities do seem to me ripe for reconsideration. But not in a case where the Tribunal was not undertaking a primary fact-finding role so that the question of what standard of proof is appropriate in that situation does not arise. In these circumstances, any views that we express on the point could only amount to obiter dicta and would have no binding force. As the former President of the Queen's Bench Division, Sir Anthony May, said when rejecting a previous attempt by Mr Dutton on behalf of the SRA to argue this point in a case where it did not affect the decision:

"The court is not in the business of conducting academic seminars, because decisions which develop the law need to do so in cases where the point at issues matters."

See Richards v The Law Society [2009] EWHC 2087 (Admin), para 21.

(4) Was the Tribunal's decision justified?

50. I turn then to the Tribunal's decision in this case. Different approaches apply in this court to the appeal from the Tribunal's order under section 44E on the one hand, and, on the other, the challenge by way of judicial review to the Tribunal's order under section 43. To avoid unnecessary complication, I will deal only with the latter. That is because I have already reached the conclusion – subject to the agreement of my Lord, the President – that the appeal from the order under section 44E should be dismissed in circumstances where this court's decision on that appeal is final (see section 44E(8)). I will therefore consider the Tribunal's conclusions solely in the context of section 43 applying the principles applicable to claims of judicial review. Those principles require the court to focus on the process of reasoning by which the Tribunal reached its decision and to determine whether that process was unreasonable in the Wednesbury sense or otherwise involved any error of law.
51. It follows from the conclusions I have already reached about the proper function of the Tribunal in conducting a review and on the issue of the standard of proof that, in my opinion, the Tribunal went wrong in law in two connected ways. First, although the Tribunal correctly held that it should proceed by way of a review and not a re-hearing, when it actually examined the evidence the Tribunal acted as if it were the primary decision-maker and lost sight of its proper function. The second error of law flowed from the first. The Tribunal decided that it should apply, and did apply, the criminal standard of proof. I have explained why it was clearly wrong to do so when the Tribunal was not the primary fact-finding body and its function was limited to reviewing findings of fact made by an adjudicator who had been right to apply the civil standard of proof.
52. The significance of this error is not removed by the fact that in giving the reasons for its decision the Tribunal repeatedly said that it did not find matters proved to either the civil or the criminal standard. It was a serious flaw in the decision-making process that the Tribunal approached the evidence as if it were re-hearing the case applying its own standard of proof. That legal error permeated the whole of its discussion of the evidence.
53. There were, in my view, further significant flaws in the reasoning of the Tribunal. I will mention some of them.
54. In examining the evidence the Tribunal first considered the adjudicator's finding that Mr Arslan had been able to read the letter attached to the SRA's email of 24 December 2013, and was therefore aware of its contents, before the letter was re-sent to Mr Arslan's current email address on 30 December 2013. The Tribunal concluded that:

"The Adjudicator was right to find that [Mr Arslan] successfully received the email of 24 December 2013, but was wrong, without any evidence, to conclude that he was able to open the attachments to that email …"

On this basis the Tribunal found that:

"as [Mr Arslan] was not aware until 30 December 2013 at the earliest of the content of the … letter he could not have amended or created documents to provide false or misleading information to the SRA during the course of their investigation."

55. In reaching these conclusions, the Tribunal disregarded the finding of the adjudicator that Mr Arslan had provided contradictory reasons as to why he could not open the email attachments. That was a matter which the adjudicator was entitled to take into account and which the Tribunal failed to take into account in considering this question. Secondly and more fundamentally, the Tribunal made a serious error of reasoning in treating the question of whether Mr Arslan was able to read the SRA's letter before 30 December as separate from the question of whether he had created or amended documents A to C before that date, when logically the two questions were intimately connected.
56. Evidence provided to the SRA by Duncan Lewis, which included screenshots of information recorded on its electronic system, showed the following:

i) Document A was modified on 27 December 2013 at 02:25 hours. It can be seen from the document history that the person who accessed the document was Mr Arslan.

ii) Document B was uploaded onto the case management system on 27 December 2013 at 14:56 hours. It can be seen from the document history that the person who uploaded the document was Mr Arslan.

iii) Document C was created on 26 December 2013 at 10:22 hours. Although the document was created on that date, the document date had been manually changed to 11 November 2012. The document history shows that the (only) person who accessed the document on 26 and 27 December 2013 and again on 9 January 2014 was Mr Arslan.

57. Mr Arslan did not dispute that he had made changes to the contents of Ms K's file over the Christmas holiday period. His explanation was that it was part of a general process of updating all his files which he carried out between September and December 2013. There was, however, no reason for him to review Ms K's file at that time to check that it was up to date. Her file had been transferred to another firm of solicitors in June 2013 and a letter from Duncan Lewis to the SRA dated 16 April 2014 confirmed that the final bill for work done on the case was submitted to the Legal Aid Agency on 15 July 2013. For that purpose, Mr Arslan had submitted a checklist on 27 June 2013 which required him to check that the file was complete and that the time ledger was fully consistent with the file. The file was subsequently archived on 29 August 2013 as the case had been concluded.
58. In assessing whether Mr Arslan had indeed been unable to open the email attachment and read the SRA's letter until 30 December 2013 as he claimed, the adjudicator was clearly entitled to consider the likelihood that Mr Arslan uploaded, amended and created on the electronic data management system on 26 and 27 December (i.e. immediately after acknowledging receipt of the SRA's email) documents which he later submitted as part of his response to the SRA's letter for a reason other than preparing that response. The adjudicator was also clearly entitled to consider whether the alternative reason put forward by Mr Arslan for doing so was plausible. All this, as well as the contradictory explanation given by Mr Arslan for his alleged inability to open the email attachment, was plainly material to the question of whether he had in fact done so before 30 December 2013.
59. For the Tribunal to say, therefore, that Adjudicator's finding was made "without any evidence" was misconceived. There was relevant and seemingly cogent evidence which supported the adjudicator's finding on this question but which the Tribunal erroneously failed to take into account.
60. I next consider document C (a typed attendance note of a telephone conversation dated October 2012). As mentioned, the information recorded on the Duncan Lewis data management system showed that this document was created by Mr Arslan on 26 December 2013 and was manually given a document date of 15 November 2012.
61. This evidence further undermined Mr Arslan's explanation that his reason for reviewing Ms K's file on 26 and 27 December 2013 was to ensure that it was up to date. Updating the file could not be a reason for creating an attendance note of a conversation said to have taken place some 14 months earlier, adding it to a file which had been closed in July 2013 and back-dating the record of when the document was created to November 2012. It seems impossible to avoid the conclusion drawn by the adjudicator that the document was created in an attempt to mislead the SRA.
62. The Tribunal did not comment on the adjudicator's finding that Mr Arslan had created this note on the document system on 26 December 2013 at 10:22 hours and presumably therefore accepted that finding. However, the Tribunal considered that "for it to be misleading, the document would have to mislead; it did not." The basis for this statement appears to be that:

"The Tribunal did not see any evidence to confirm that Document C was not a true record of the telephone conversation it purported to note."

63. The Tribunal here completely ignored the fact that there were two ways in which document C could have been misleading. The first was by providing a false record of the telephone conversation it purported to note. The Tribunal was certainly entitled to find that there was no evidence which proved that document C was false in that respect; nor had the adjudicator found that it was. The second way in which the document was capable of being false and misleading was in purporting to provide a contemporaneous record of a telephone conversation in October 2012, when in fact it was at best based solely on Mr Arslan's recollection of such a conversation some 14 months later. If it had been contemporaneous, it added credibility to the account which Mr Arslan was providing. The adjudicator had found that document C was misleading for that reason. The Tribunal had no evidential basis and offered no reason for overturning this finding, and its conclusion that the document was not misleading was in my view irrational.
64. The finding of the adjudicator – which the Tribunal had no reason to reject – that document C was created in an attempt to mislead the SRA had an obvious bearing on the likelihood that documents A and B were also, in the case of document A added to, and in the case of document B created with, a similar intention. The Tribunal's conclusions in relation to documents A and B are vitiated by their failure to take this into account.
65. In relation to document B (a handwritten attendance note dated "October 2013" apparently of a meeting in 2012) the Tribunal effectively found that, because there was no direct evidence of the date when the document was created but only of the fact that it was uploaded onto the electronic system by Mr Arslan on 27 December 2013, it could not be said that document B had been created to mislead the SRA. The Tribunal paid no regard, however, to the fact that document B had not been on the file when it was transferred to Fadiga & Co on 24 June 2013 and failed to consider whether it was credible that document B had been (a) erroneously omitted from the file at that time, (b) subsequently found by Mr Arslan and (c) uploaded to the data management system by him for the innocent purpose of updating the file long after it had been closed and archived but only the day after he had acknowledged receipt of the SRA's email of 24 December 2013.
66. As for document A (the typed attendance note dated 30 October 2012 to which an extra page had apparently been added after the file had been sent to Fadiga), the only reasons given by the Tribunal for overturning the adjudicator's finding that this document had been amended in an attempt to mislead the SRA were that the content of the additional text "did not bear on the substance of [Ms K's] allegations fully" and also dealt with other issues. The Tribunal considered that if Mr Arslan "was trying to construct a justificatory document, he could and would have done better than the document that had been produced". It also found that he had no need to rebut the allegations by amending the attendance note, as he also provided to the SRA an email from Ms K referring to an arrangement to meet him in Beckenham. However, that email was sent in June 2013 and did not relate to the initial meeting on 30 October 2012 and what was then said. Moreover, the additions went beyond simply the fact of Ms K initiating a meeting in Beckenham and provided explanations for (a) why Ms K had Mr Arslan's mobile number, (b) how and why Mr Arslan had agreed to collect documents from her away from the office near where he lived and (c) a record of an invitation to Mr Arslan by Ms K to travel to Croydon where she lived, which he is said in the note to have refused. All these matters were relevant to Ms K's allegations and supported statements made in Mr Arslan's response to the SRA's letter which he provided on 10 January 2014.
67. The suggestion that, if Mr Arslan was trying to create a document to support his case, he could have done a better job was a patently invalid reason for rejecting evidence that he had tried to do exactly that. Nor again did the Tribunal consider whether it was credible that the additional page of document A might have been (a) erroneously omitted from the file sent to Fadiga, (b) found by Mr Arslan subsequently and (c) uploaded by him on 27 December 2013 as part of a routine process of administration.
68. I see no reason to suppose that, if the Tribunal had approached its review of the adjudicator's findings properly, it would have found anything wrong with those findings. Certainly, nothing in the reasons given by the Tribunal provides a reasonable basis for overturning those findings. In these circumstances I conclude that the Tribunal's decision on the section 43 review cannot stand and should be quashed.

Other points

69. Mr Arslan, who chose to represent himself at the hearing after removing his instructions to solicitors and leading counsel, made a number of allegations in his skeleton argument and oral submissions that he has been treated unfairly and oppressively by the SRA. These include allegations that the SRA's adjudication panel is not an independent and impartial body; that he was prevented from collecting evidence to rebut the allegations raised against him; that the SRA and its adjudicator acted improperly and in a procedurally unfair way; that the SRA has invaded his right to privacy; that the SRA has defamed him; and that the SRA has changed his exam results because of his dispute with them so as to fail him in exams which he should have passed.
70. It is sufficient to say that no evidence has been placed before the court which provides any foundation for these allegations, none of which was accepted by the Tribunal or played any part in its decision which is the subject of these proceedings.

Conclusion

71. For the reasons given, I would (1) dismiss the SRA's appeal against the Tribunal's decision to allow Mr Arslan's appeal under section 44E of the Solicitors Act 1974 and (2) give the SRA permission to proceed with its claim for judicial review of the Tribunal's decision to revoke the order made by the SRA under section 43 of the Act, uphold the claim and quash the Tribunal's decision on that issue.
72. It is important to make clear that, although Mr Arslan claimed in his submissions that he has been prevented by the SRA from working for any solicitor's firm since the Tribunal decision was given, that claim is incorrect. Since the order under section 43 was revoked by the Tribunal on 16 March 2016, Mr Arslan has not been under any such restriction. However, if My Lord agrees with my conclusion, the effect of the order which the court will now make quashing this part of the Tribunal's decision will be to reinstate the section 43 order. As from today, then, no solicitor, employee of a solicitor, recognised body or manager or employee of a recognised body will be entitled to employ or remunerate Mr Arslan in connection with any solicitor's practice or the business of any recognised body, except with the SRA's permission. That is subject to Mr Arslan's right to make another application to the Tribunal for the order to be revoked, if he chooses to do so.

Sir Brian Leveson P:

73. I agree with the cogent analysis of this case in all its aspects. In that regard, I emphasise the observations of Leggatt J in relation to the standard of proof in these cases and underline the need for a re-evaluation of the approach to disciplinary measures intended to protect the public. Notwithstanding Mr Dutton's encouragement to do so, to go further than the confines of this case would not have been appropriate.

Note 1    Evidence provided later by Duncan Lewis showed that document C had in fact been created on the system on 26 December 2013: see paragraph 56(iii) below.    [Back]