High Court of Justice in Northern Ireland Queen's Bench Division Decisions

CARE2883 25 June 1999

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

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IN THE MATTER OF CH

and

IN THE MATTER OF THE SOLICITORS (NORTHERN IRELAND) ORDER 1976

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CARSWELL LCJ

This is an appeal from a decision of the Law Society of Northern Ireland made on 25 November 1988 under Article 6 of the Solicitors (Northern Ireland) Order 1976, as substituted by Article 9 of the Solicitors (Amendment) (Northern Ireland) Order 1989, whereby the Society declined to dispense in the appellant's case with the requirements of Regulation 8 of the Solicitors Training and Admission Regulations 1988. He had applied to be registered as a student, but because he did not satisfy the requirements laid down by the 1988 Regulations his application was rejected by the Education Committee of the Law Society. He asked the Council of the Law Society to dispense with the requirements of Regulation 8(3), but the Council declined to do so.

The appellant has brought this appeal before me under the provisions of the substituted Article 6(4) of the 1976 Order, which provides:

"(4) An applicant aggrieved by a decision of the Society under paragraph (3) may, after giving notice to the Society, appeal to the Lord Chief Justice; and on such appeal -

(a) the Society may appear and be heard; and

(b) the Lord Chief Justice may make such order (including an order for the payment of costs) as he thinks proper.".


 


The issue was raised whether I as an appellate tribunal should regard myself free to consider the substance of the appeal de novo and reach my own conclusions, or whether I should treat the Law Society's decision like a discretionary decision of a judge in an interlocutory matter and confine myself basically to reviewing it, on the lines laid down in Evans v Bartlam [1937] AC 473 and Hadmor Productions v Hamilton [1983] AC 191. I think that, as Mr CM Lavery QC submitted on behalf of the appellant, the correct approach lies in between these. No limitations are placed by statute or by the Rules of the Supreme Court on my disposition of such an appeal. It does not seem to me that it is governed by RSC (NI) Order 55 Part II, which applies only to appeals to the High Court. This provision may, however, be a useful analogy, as it applies Order 59, rule 10 to the latter appeals, empowering the court to draw inferences of fact and give any judgment and make any order which ought to have been given or made, and make such further or other order as the case may require. I am of opinion that I should approach the appeal as a rehearing, with similar freedom to review the findings of fact and draw inferences from them.

At the same time, I think that I should give substantial weight to the considered conclusions of the Law Society, as the body which has long experience in discharging its responsibility of educating and training entrants to the profession. It would not be appropriate to equate the present type of appeal with those which are brought against the findings of disciplinary bodies. It is well established that appellate tribunals are very reluctant to differ from their conclusions on sentence, because they are so well placed to weigh the seriousness of professional misconduct: see the remarks of Lord Goddard CJ in Re a Solicitor [1956] 3 All ER 516 at 517, which were approved by the Privy Council in McCoan v General Medical Council [1964] 3 All ER 143 at 147. They may be somewhat readier to review the conclusions of professional bodies on other issues, but there is still a detectable reticence about overruling them. It was submitted that as Lord Chief Justice, with a statutory function in the admission of solicitors, I should not hesitate to come to the conclusions which I think right, even if it means differing from the approach adopted by the Law Society. This is, I think, correct in principle, but it seems to me that I should nevertheless be cautious about rejecting the Society's conclusions unless satisfied that I should not follow them.

The registration of persons as students is governed by the Solicitors Admission and Training Regulations 1988, made under the authority of the substituted Article 6 of the 1976 Order. By Regulation 5 a person who intends to seek admission as a solicitor must apply to the Law Society for registration as a student. Under Regulation 8 registration is conditional upon the registered student satisfying one of the requirements set out in paragraphs (1) to (5) of the Regulation. The most common route of entry is under paragraph (1), by possession of an acceptable law degree and being offered a place in the Instiute of Professional Legal Studies. Paragraph (2) makes provision for holders of degrees in other disciplines, who again must be offered a place in the Institute. A different route is open to a law clerk under paragraph (3), which provides that he may be registered if he -

"(3) Has served in an executive capacity

(a) as a bona fide law clerk or employee of a solicitor for a continuous period of seven years and

(b) attained the age of 29 years and

(c) satisfied the Committee as to his standard of general education, and knowledge and experience of the work of a solicitor".

Paragraphs (4) and (5) are not material to the present case. Regulation 18 contains a dispensing power in the following terms:

"Without prejudice to any of the powers contained in these Regulations, the Council may, in any case (including a case of non-compliance with the Regulations) in which it considers that the circumstances justify such a course, relax or dispense with any particular requirement of these Regulations on such terms as they may deem appropriate."

The appellant is now aged 26 years, having been born on 29 August 1972. He possesses a degree in law from Wolverhampton University, but he has been unable to score high enough marks in the admission test to obtain entry to the Institute. He based his application instead on Regulation 8(3), relying on cumulative periods of employment with D & Co, a firm of solicitors in Banbridge. During his last two years at school he worked for periods for this firm, full-time in the summer holidays and part-time after school during much of the school year. Through his undergraduate years he worked full-time in the office during the vacations, and in a graduate year at Queen's University, Belfast he worked part-time during term and full-time in the vacations. In all it is reckoned that in those years, between 1991 and 1996, he totalled almost two years of full-time work and a further eleven months approximately of part-time work. Since May 1996 he has been employed full-time as a law clerk or legal executive, so adding a further three years to his total of employment. His employer Mr D states that he has trained the appellant in a number of areas of practice and that he has been able to undertake quite responsible work on behalf of his firm.

The appellant's application was considered by the Education Committee of the Law Society at its meeting on 4 June 1998. The Committee took the view that since he was well short of the prescribed age of 29 years and had at the very most three years' experience in an executive capacity, his application should be refused and it should be indicated to him that he should renew it when he had at least six years' experience in an executive capacity. This was conveyed to the appellant by a letter from the Society dated 16 June 1998. The reason for the reference to six years' experience is to allow applicants to commence the registration process, enrol in the student course and commence their studies as soon as they have completed the necessary seven years.

The appellant then sought to have the matter referred to the Council of the Law Society, which is the body entitled to exercise the dispensing power contained in Regulation 18 of the 1988 Regulations. It came before the Council at its meeting on 25 November 1998, when the Council had before it the appellant's original petition together with a letter of 19 November 1998 from him in which he set out his case for seeking dispensation from the requirements of Regulation 8(3). Mr Joseph Donnelly, chairman of the Education Committee, conveyed to the Council the Committee's recommendation that a dispensation should not be given, on the ground that the appellant lacked the continuous experience in an executive capacity required by Regulation 8(3). The Council accepted the recommendation and refused the appellant's application.

The appellant exercised his right of appeal to me by petition dated 9 March 1999, and the matter came on for hearing before me on 15 June 1999. Mr Lavery submitted on his behalf that it was a unique case, stressing the depth of commitment shown by the appellant in the amount of time that he had spent working for D & Co since his schooldays. Mr GEJ Simpson for the Society relied upon the reasons set out in an affidavit sworn by Mr Donnelly, paragraphs 7 to 9 of which read as follows:

"7. In his letter dated 19th November 1998 (contained in Exhibit JD 5) the Petitioner referred to the 1985 Report of the Committee on Professional Legal Education in Northern Ireland (`the Bromley Committee Report'), a copy of which Report is now shown to me and marked `Exhibit JD 7'.

8. At chapters 2 and 5 of the Bromley Committee Report it was recommended that part of the professional training of barristers and solicitors should be a period at the Institute of Professional Legal Studies (paragraph 2.4), that entry to the Institute should be by way of written selection test (paragraphs 5.14-5.28) and that in view of the value of attending a full-time course at the Institute, it was recommended that alternative routes into the profession should be discontinued and that all those wishing to obtain a practising qualification should attend a full-time course at the Institute except for law clerks with seven years service whose experience is judged by the Law Society to be sufficient to enable them to undertake the vocational professional training at the Institute on a part-time basis, and three other limited categories (paragraph 2.5). The Council, of which I have been a member since November 1995, believes that the intention of the Bromley Committee in its recommendation at paragraph 2.5(a) was not to provide a means for law graduates to enter the Institute other than by way of the written admission tests, but rather to provide, inter alia, a means for suitable individuals who had not undertaken a law degree but who had sufficient practical experience an opportunity to study at the Institute while continuing in their employment with a legal office.

9. Owing to the substantial over-subscription to places on the full-time course at the Institute of Professional Legal Studies, each year there are large numbers of graduates who are unable to secure a place at the Institute by way of the written admission test. If they meet the criteria of Regulation 8(3) they would be entitled to apply to be registered as a student and if accepted by the Society to then attend the Institute as an `ex-quota' student. If there are special circumstances Regulation 18 gives the Council power to relax or dispense with the usual requirements of Regulation 8(3) but it has never considered the possession of a degree or other academic qualifications of itself as sufficient grounds to make such a relaxation or dispensation".


 


The Council of the Law Society accordingly has a firm policy not to allow the provision for law clerks to be used as a back-door method of entry for those who have been unable to obtain admission to the Institute by means of its regular entrance procedure. I see considerable merit in this policy, for it was the clear intention of the Bromley Committee that the full-time course at the Institute, which the Committee regarded as very valuable, should be the standard method of entry to the profession and that other routes should be regarded as exceptions. This being so, the Law Society is in my opinion correct to apply the provisions of Regulation 8(3) with some strictness and to be slow to dispense with its requirements.

The appellant's commitment to obtaining entry to the profession is not in doubt. It is certainly commendable and augurs well for his usefulness to society when he becomes a practitioner. He is unable to satisfy the requirements in two respects, his age and the length of his service "in an executive capacity". He is still over two years short of the prescribed age of 29 years. His employment with his firm has been continuous for only three years, not the seven years required, and even if one totted up his service periods they would still would be well short of the full period. In any event, I do not consider that it is legitimate to add up these periods and treat the total as comparable with the continuous service of an experienced law clerk, which is the norm for registration under Regulation 8(3). Nor does it appear possible to regard the holiday or part-time work of a schoolboy as serving a firm of solicitors "in an executive capacity", and it seems to me doubtful whether the appellant's work could be regarded as falling within this definition until rather later in his career.

The dispensing power under Regulation 18 is conferred upon the Council of the Law Society so that it may retain a measure of flexibility and treat an exceptional case upon its merits. I think that the Council should be slow to exercise it so as to dispense with the requirements of Regulation 8(3) and should do so only in a truly exceptional case, where there are reasons which would make it wrong to refuse the registration of an applicant who does not satisfy the strict requirements of the Regulations. In my judgment this is not such a case, and I consider that the Council was correct in its decision not to accept the appellant's application for registration.

I accordingly must dismiss the appeal.

CARE2883

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

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IN THE MATTER OF COLIN HANNA

and

IN THE MATTER OF THE SOLICITORS (NORTHERN IRELAND) ORDER 1976

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JUDGMENT

OF

CARSWELL LCJ

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