Awan v Law Society

THE MASTER OF THE ROLLS: On 7th August 2001 the Solicitors' Disciplinary Tribunal, the SDT, struck Mr Awan from the Roll of Solicitors. He appealed to the Administrative Court, which on 12th December 2001 dismissed his appeal. He appeals to us against the decision of the Administrative Court with the permission of Lord Justice Schiemann, granted on 6th December 2002. The delay that has occurred in this case reflects the fact that Mr Awan's appeal was struck out for procedural shortcomings on his part and he then had to apply for it to be reinstated.

Mr Awan was born on 30th December 1959 and admitted as a solicitor in February 1990. His practising history is not entirely clear; it seems to me probably as a result of a failure on his part to keep the Law Society fully informed of the circumstances in which he was practising. As best I can, I will summarise the position as follows:

Mr Awan became entitled to practise as a sole practitioner as from February 1993 and by 1994 he was practising as such in the firm of SAF Awan in Luton. Between March and May 1998 he practised with two partners, Mrs Dhaliwal and Mr Khan, as Corbett Hassan, which ceased to trade on 31st May 1998. He then set up Bradshaw Webb with Mrs Dhaliwal, but this partnership was dissolved, probably on 12th November 1998, and its files transferred to Morgan Hall. In the course of 1999 Mr Awan worked as a locum in a short-lived partnership at Morgan Hall with a Mr Uruwalla and then for a time on his own account and then as an in-house solicitor for the Ward Group. In February 2000 he set up another sole practice called Merchant Taylor.

To bring the matter right up to date, we have been informed by Mr Alan Newman QC, who has appeared on his behalf, that on 21st May 2003 he was adjudicated bankrupt, a major part of his debts being monies due by way of costs to the Law Society.

The hearing before the SDT took place in Mr Awan's absence. He was charged with four groups of offences, containing a total of ten charges of conduct unbefitting a solicitor. The SDT found all charges proved. Their findings included the following observations:

Mr Awan represented himself before the Administrative Court. Before us, as I have said, he has had the benefit of being represented by Mr Newman. By no means all the points taken by Mr Newman on his behalf were advanced by him before the Administrative Court, but Mr Hopper, who has appeared on behalf of the Law Society, has not taken any point on this. Mr Newman had some general submissions which did not involve considering details of the individual charges, and I propose to deal with these first.

The first of these is a complaint that the SDT should have adjourned the hearing and not proceeded in Mr Awan's absence. This was a complaint made by Mr Awan to the Administrative Court and, before us, Mr Newman has submitted that the SDT acted unfairly in proceeding with the disciplinary hearing of such importance in the absence of Mr Awan when they should have adjourned the hearing to give him an opportunity to be heard in his own defence. The material facts are as follows:

On 27th July 1999 Mr Awan was due to appear before the SDT to answer charges which subsequently formed the first group of charges heard by the SDT on 7th August 2001. He indicated that he wished to call witnesses, so the hearing was postponed to 14th September 1999. He failed to attend on that date and findings were made against him in his absence. He appealed against these to the Administrative Court. The Office for the Supervision of Solicitors ("the OSS") conceded that there may have been confusion on his part as to whether the hearing on 14th September was to be procedural or substantive. By consent on 2nd May 2001 the Administrative Court set aside the SDT's findings and directed that the charges should be considered by a differently-constituted Tribunal. Thus it was that they formed the first group of charges with which we are concerned today.

Meanwhile, in or about December 2000 the second group of charges was referred to the Tribunal. To these were added, on 5th January 2001, the third group of charges and on 20th June 2001 the fourth group of charges. Mr Awan was given notice of the hearing date on 18th April 2001. On 24th April 2001 Mr Goodwin, who was acting for the OSS, wrote to Mr Awan, asking if he intended to call any witnesses. He received no reply. On 9th July 2001 Mr Goodwin wrote to Mr Awan, drawing attention to the requirements of the relevant rules as to times for service of documents and witness statements, and stating that he would object to any attempt to adduce evidence in disregard of these rules. He added that he would also object to any request for an adjournment on the basis that the matter had been outstanding for a considerable time and it was in the interests of all concerned that the matter should be dealt with expeditiously.

On 12th July Mr Awan visited his doctor and obtained a certificate headed, "For Social Security and Statutory Sick Pay purposes only." It stated that he should refrain from work for 13 weeks on account of anxiety and depression. Mr Awan then telephoned the SDT, requesting an adjournment. He said that he had suffered a stroke in January and was suffering from high blood pressure. He was told that he would have to write, making a formal application for an adjournment, and that he should provide not merely a copy of his medical certificate, but also a doctor's report and prognosis. These requirements were forcefully confirmed in writing on 19th July 2001.

On 27th July the SDT wrote again, emphasising that the Tribunal would require a doctor's certificate and prognosis. On 30th July Mr Goodwin wrote to Mr Awan stating that if he did not produce medical evidence or failed to attend, he, Mr Goodwin, would invite the Tribunal to deal with the matter in Mr Awan's absence. On 1st August copies of all of this correspondence were served on Mr Awan at his home address. The day before the hearing Mr Awan telephoned the Clerk of the SDT, stating that he was sending a medical report. He was told to write, specifying the directions which he sought. In the event, all that he sent was the original certificate of 12th July, or a copy of it.

Mr Newman suggested to us that Mr Awan had produced medical evidence which the SDT should not have ignored, not being qualified medical officers. In his skeleton argument he also, as I think before us, referred to the fact that the objection that was taken by Mr Goodwin before the Tribunal was to the effect that the medical certificate had been received late and did not expressly state that Mr Awan was not fit to attend at the hearing. So far as Mr Goodwin's submissions are concerned, that is correct, but the basis upon which the Chairman of the Solicitors' Disciplinary Tribunal decided to continue in Mr Awan's absence appears from the following extract from the transcript, addressing Mr Goodwin:

The certificate that was provided to the SDT was manifestly not that which had been required and it did not show that Mr Awan was not fit to attend the hearing. The certificate, of course, made no mention of his having had a stroke or having high blood pressure; the conditions that he had put forward over the telephone when he said he was not fit to attend.

Having regard to all this past history which I have set out, I consider that the Tribunal was entitled to proceed on the basis that Mr Awan had failed to demonstrate that his health prevented him from attending the hearing. The requirement for evidence to this effect could not have been made clearer, as equally was true of the warning as to the consequences that might follow if he did not produce the necessary evidence. His conduct, it seems to me, had all the hallmarks of prevarication by a man who wished to avoid the hearing. My strong suspicion is that the Tribunal reached precisely the same conclusion although they had not so distinctly expressed it.

Before the Administrative Court Mr Awan was given considerable latitude to advance by way of submission what was, in fact, evidence. In relation to this incident he said that he had been assured by his doctor that the medical certificate would suffice, because that was what was required at the Tribunal. The Administrative Court, as explained in the judgment of Lord Justice Kennedy, was not able to accept this as being credible. It seems to me that they were well justified in reaching that conclusion.

Mr Newman has referred us to the recent decision of this Court in Teinaz v LB Wandsworth [2002] IRLR 721 where Lord Justice Peter Gibson said this in paragraphs 20 to 21:

In my judgment, Mr Awan manifestly failed to satisfy the last requirement. Mr Newman also contended that the fact that Mr Awan was denied the benefit of Legal Aid before the SDT, and indeed before the Administrative Court, rendered the proceedings unfair and a breach of Article 6 of the Human Rights Convention. That was a submission that Mr Newman advanced rather more forcefully in relation to the original hearing before the Disciplinary Tribunal than in relation to his appearance before the Administrative Court, having regard to the fact that the transcript shows that Mr Awan had no difficulty in putting his case, such as it was, before the Court.

In support of that submission, Mr Newman referred us to the decision of Pine v The Law Society of 25th October 2001, which I do not believe is reported. That also was a case where the Disciplinary Tribunal proceeded with a hearing in the absence of the defendant. On that occasion the defendant was not able to afford the fare to London. The hearing resulted in the solicitor being struck off.

The judgment of the Court was given by the Vice-Chancellor, who considered a number of authorities and summarised their effect by citing from a decision of the European Commission in X v United Kingdom (1984) 6 EHRR 136 as follows:

It seems to me that Mr Awan had only himself to blame for the fact that the SDT proceeded in his absence. The allegations that were made against him were of stark simplicity. He did not require legal representation to answer them, either before the Tribunal or before the Divisional Court. I reject the contention that there was any infringement of Article 6.

Finally, in relation to the procedural complaints with which I am dealing, I would make this observation: The Divisional Court conducted a review of the substance of the allegations against Mr Awan and did not simply decide his appeal on the basis that the Tribunal had been entitled to proceed in his absence. We also have considered what Mr Newman has had to say in relation to the substance of the allegations against him and he is today represented by Queen's Counsel. It seems to me that there can be no question of unfairness or breach of Article 6 when the proceedings are considered as a whole.

A further general point that Mr Newman advanced was that there had been an abuse of process. Mr Newman has contended that the procedures to which Mr Awan has been subjected by the OSS and the SDT have resulted in his being punished twice for the same offences which, says Mr Newman, is an abuse of process. Mr Newman got off to a false start in his submission by relying upon the fact that the Disciplinary Tribunal dealt twice with the first group of offences, but overlooking the fact that they did so because the first decision on their part was quashed. Mr Newman readily conceded that in the light of that there was no argument of double jeopardy in relation to that group of offences, but he had a different submission which was based on a contention that there were two rounds of hearings, two rounds of convictions and two rounds of punishment.

The first round relied upon was a series of decisions taken by the OSS in relation to the imposition of conditions on Mr Awan's practising certificate. Mr Newman submitted that Mr Awan received a second punishment in respect of the same matters when struck off by the SDT on 7th August 2001. The facts are as follows:

On 12th April 2000 a case worker wrote to Mr Awan, inviting his comments on a report and draft recommendation to the Compliance and Supervision Committee. The recommendation was that second group of offences should be referred to the SDT and that pursuant to section 13(a) of the Solicitors Act 1974 Mr Awan's certificate should be made subject to conditions, including the condition that he practise only in approved employment. On 28th June of the same year the Committee adopted these recommendations. Mr Awan appealed unsuccessfully against that decision. Then on the 6th September an adjudicator decided, having regard to Mr Awan's past regulatory history and the proceedings pending before the SDT, that his next certificate should be subject to the same conditions, this time pursuant to section 12 of the Solicitors Act.

Mr Newman has described these decisions as convictions and contended that the imposition of conditions on Mr Awan's certificate were punishments, so that it was an abuse of process for the SDT to impose any further remedy in respect of misconduct. These submissions are misconceived. They confuse the regulatory role of the OSS with the disciplinary role of the SDT. Where serious charges are pending before the SDT, it is common for the OSS to impose restrictions on a solicitor's practising certificate for the protection of the public and the reputation of the profession pending the SDT hearing. It is, it seems to me, plainly not merely proper but essential that in appropriate cases they should do so. The imposition of such conditions is not a punishment and in no way pre-judges the result of the hearing before the SDT. There is no question here of Mr Awan having been tried and punished twice over for the same offences.

I turn then to the substantive charges and to the first group of charges which were accurately summarised by the Administrative Court as follows:

On the 6th September 1996 the Appellant's firm gave instructions to that firm of official transcribers to provide a copy of a transcript of certain proceedings. The letter contained an undertaking to be responsible for their costs in doing so. It read thus:

It is signed "Yours faithfully" and a signature above the title words, SAF Awan Solicitor. [I interpose that it was made plain today that it was Mr Awan himself who signed that letter and undertaking.] A transcript was provided promptly and an invoice was raised on 27th September 1996 for £1,275.16. That invoice was finally paid on 13th October 1999, approximately one month after Mr Awan had originally been due to appear before the Tribunal to answer the allegations relating to his conduct in relation to this firm of transcribers. That is on 14th September 1999.

Following complaint to the OSS, the Appellant said on 2nd April 1997 that a cheque would be sent by the end of April 1997 and, similarly, on 14th May 1997 the Appellant told the OSS that he would pay the fees by 29th May 1997. On 29th May 1997 he said he would pay within one week. None of these promises was kept. After a request for his formal explanation from the OSS, to which he did not reply, the matter was considered by the Compliance and Supervision Committee on 22nd April 1998 and the Appellant was directed to pay in full the amount outstanding and due to Beverley F Nunnery and Co within 14 days of his being notified of the decision, failing which, his conduct would be referred to the Disciplinary Tribunal. He neither paid nor appealed.

The answer that Mr Newman has put forward in relation to these matters is that the invoice submitted by Beverley Nunnery and Co was an overcharge because the transcript had been ordered by another firm of solicitors, those who were on the other side in the proceedings, who were responsible for the lion's share of the costs, leaving Mr Awan liable for a fairly modest copying cost. What, in fact, Beverley F Nunnery had done was split the costs 50-50 between the two firms. The contention advanced by Mr Newman is one which was raised by Mr Awan, but only shortly before the date when the original disciplinary hearing was due to be heard.

The argument advanced can be demonstrated by reference to two letters. The first is from Beverley F Nunnery and Co, dated 9th July 1999, in answer to a letter written to them, dated the previous day, in which Mr Awan had stated that he was under the impression that the shorthand writers had been paid.

Mr Awan went on to suggest that the other solicitors, Jenkin Evans, were responsible for the costs of transcribing the evidence.

To this, Beverley F Nunnery replied:

He then went on to summarise the sad and lengthy history of his attempts to get paid. He continued:

I then move on to a letter, again from Beverly Nunnery and Co, dated 14th July 1999, this time to Mr Goodwin:

What is suggested, based on the fact that the copying of transcript was done on behalf of Mr Awan on the same day that it was ordered, is that plainly when the order was placed the task of typing out the transcript had been completed so that, on the wording of the terms of contract with the Lord Chancellor's Department, the cost of transcription should have been billed to the solicitors who had initially ordered it.

It is said by Mr Newman that the undertaking to pay the fees was an undertaking to pay for a copy and only covered the copying charges.

As a matter of construing the undertaking, I do not accept, in fact, that its reference to a "copy" meant that there was no undertaking to pay the costs of transcription if those were properly attributable to Mr Awan under the normal practice. I can see an argument that the practice of dividing the fees if the second order comes in before they have been billed does not exactly represent the terms of contract with the Lord Chancellor's Department which focuses upon the time of completion. It seems to me that the practice is a sensible one and if it is observed by all transcribers it is certainly at least arguable that any solicitor who orders a transcript will have to pay in accordance with that practice. But it seems to me that the gravamen of this group of charges is that an undertaking was to pay the proper charges of the shorthand writer. It is quite plain that Mr Awan had no reason to believe that the invoice that he had received was not an invoice for what was properly due and the various promises that he made to pay the shorthand writer were plainly promises to pay the invoice as it had been presented to him. The point that he took at a very late stage was a point taken as the result of an afterthought.

It seems to me that that course of conduct, as I have summarised it, was conduct unbefitting a solicitor of a high order and the argument now advanced as to the basis upon which he should have been charged is essentially an irrelevance.

I turn to the second group of charges and, again, I shall adopt the summary of these charges made by the Divisional Court:

On 27th June 1997 the Appellant's firm, of which he was again a sole practitioner, gave instructions to Dr Duffield to provide a psychiatric report in respect of the client. It was made clear to the doctor that the client was Legally Aided and that authority had already been obtained from the Legal Aid Board for the disbursement in relation to his fees, limited to the sum of £800. Dr Duffield provided a report on 18th July 1997 and a fee note totalling £792. He received an acknowledgment on 21st July 1997. The application to the Legal Aid Board had been made for payment and that his fees would take a few weeks. Dr Duffield was not paid until 1st June 2000.

The matter proceeded in a broadly similar way to the way in which matters had proceeded with the transcribers. Following the Appellant's patent failure to pay and the complaint to the OSS in May 1998, the Appellant told that Office by telephone on 9th July 1998 that he had applied to the Court for taxation out of time and indicated that the payment should be available by the end of the month. (That is incidentally, the Court commented, in stark contrast to what he had told Dr Duffield when he received the original fee note.) No such payment was made and Dr Duffield proceeded to attempt recovery through the courts. He obtained a judgment in default on 12th October 1998 and, in the absence of payment, he issued a Warrant of Execution. The Appellant still did not pay and apparently he refused to pay the entry in or about April 1999. That is apparent from the document which is before us, which is a bailiff's report in respect of what the bailiffs had attempted to do. Part of it reads thus:

The Divisional Court recorded:

Before us, Mr Newman referred to the fact that a statement had been taken from a witness who might have been the individual seen by the bailiff rather than Mr Awan, so that it might have been demonstrated that part of the charges relating to the bailiff's visit was based on a mistake. But the statement, so it seems, has some aspects which were less than satisfactory and in the end Mr Newman decided that he would not seek to adduce any evidence in relation to this, leaving the facts as they have been set out, essentially undisputed.

Those facts portray a very similar picture of prevarication in order to avoid discharging a professional obligation and, again, represent, so it seems to me, conduct unbefitting a solicitor of a high order.

I turn to the third group of charges. These relate to the failure to pay the fees of counsel, Mr Simon Bull, and the failure to reply to letters from the OSS in relation to it. It is a long and sorry story and I shall take the first part of it from the concise findings of the SDT.

What happened then was that on 25th July 2000 Mr Awan called on Mr Bull's chambers with a lengthy account of his efforts to recover his costs in the litigation in which Mr Bull had acted; efforts which had taken him as far as the Court of Appeal and left him with a recovery of only £5,000. None of this had any bearing on his liability to pay Mr Bull's fees. Mr Bull has not yet received a penny.

On 26th July 2000 Mr Awan raised this contention for the first time in a letter to the OSS:

That averment, Mr Awan repeated to the Administrative Court, adding the contention, I think for the first time, that the fee initially agreed was not £1,250 but £750. The contention that it was agreed with counsel's clerk that Mr Bull would accept a reduced fee of £500 is totally inconsistent with the voluminous documentation evidencing the attempts of Mr Bull's clerk to extract the fee from Mr Awan and Mr Awan's reaction to these attempts. In short, it is totally incredible and manifestly untrue. This behaviour is all part of the previous pattern and, again, constituted conduct unbefitting a solicitor of a high order.

The fourth group of charges I think I ought to read as they were formulated. The first one:

Mr Awan's answer to the first charge consists, in effect, of a bare denial on the basis that because of the frequent moves, which I have described at the beginning of this judgment, some of his documents were not available to him. That denial, in my judgment, cannot stand with the considerable documentary evidence and, in particular, the schedule prepared for the OSS, consisting of eight closely-typed pages, supported by contemporary documentation, setting out the efforts of Mr Thomsett, an Investigation and Compliance Officer, to obtain from Mr Awan information about his practice's accounts. This picture, in my judgment, justified the comment made by the SDT:

As to the second charge, Mr Newman has rightly submitted that the dates set out in the charge are incorrect. That will be apparent from the summary I gave at the beginning of this judgment as to Mr Awan's movements from practice to practice. It seems likely, at least, that Bradshaw Webb ceased trading under that name in January 1998 and not 1999. The fact remains that there was, in my judgment, and indeed as Mr Newman has really accepted, a failure to comply with the Law Society's rules in relation to accounts in that although the dates are wrong, Mr Awan was in breach of the rules in his failure to produce any accounts at all, notwithstanding the fact that for a material part of the period he had been handling clients' funds. Even if one removes that particular charge, it does not seem to me that it greatly affects the overall picture.

That brings me to Mr Newman's final submission, although he did not make it as a final submission; he made it at an earlier stage. This is that the penalty of striking Mr Awan from the Roll was disproportionate to Mr Awan's offences. Mr Newman drew attention to the fact that the sums of money involved in each case were relatively small. I am inclined to think that that is a matter that cuts in both directions. Sometimes a solicitor does not meet his obligations because he is simply not in a position to do so. No such mitigation is, it seems to me, available in this case for the pattern of prevarication that is so plainly made out.

This is what the Administrative Court has had to say by way of summary:

Mr Newman has joined issue with this summary in this way: He submits that Mr Awan's integrity, probity and complete trustworthiness were never in issue before the Tribunal. He says that had they been, that fact should have been expressly spelt out in the charges leveled against him. He submits that the penalty that has been imposed of striking-off could only have been justified had a case of dishonesty been expressly alleged and been made out.

I cannot accept this submission. The series of ten charges, all of the same character, covering a period of six years, as particularised in the statements submitted pursuant to Rule 4(2) of the Solicitors Disciplinary Proceedings Rules 1994 by Mr Goodwin, necessarily and clearly painted a picture of a man who lacked integrity, probity and trustworthiness and was not fit to be a solicitor.

The Administrative Court rightly observed that it requires a very strong case to justify the interference by the Court with the exercise of the SDT's discretion as to what the penalty should be.

Mr Newman referred us to two decisions: one in relation to an appeal in GMA v Ghosh and a similar appeal from Preiss v General Dental Council to the effect that in a disciplinary case an appeal should take the form of a re-hearing. It does not seem to me that either of those decisions bears on the present proceedings because the statute in question in relation to each of those matters expressly provided that the appeal be by way of re-hearing. Whether or not that is the case, it seems to me that Mr Awan essentially had a re-hearing before the Divisional Court and we have considered in depth the underlying facts. Whether I had approached this by way of re-hearing or simply by way of review of the decision of the Administrative Court, I would have reached same conclusion which is that the Solicitors' Disciplinary Tribunal was well-founded in striking Mr Awan from the Roll and for this reason I would dismiss the appeal.

LORD JUSTICE MAY: I agree. I only wish to add a few words on the single subject of adjournment of the disciplinary hearing which the Tribunal refused on 7th August 2001. Those who are the subject of disciplinary proceedings of this kind must certainly be given a proper opportunity to attend any substantive hearing. In the present case, Mr Awan was given ample notice of the hearing. He asked for it to be adjourned because he said he was not medically fit to attend. Courts and tribunals are frequently faced with applications, often at short notice, to adjourn hearings fixed well in advance which would be inconvenient and expensive to put off, both for the Tribunals and for other parties.

As Peter Gibson LJ said in Teinaz v London Borough of Wandsworth (2002) IRLR 721:

In the present case Mr Awan asked for an adjournment of the hearing fixed for 7th August 2001 by telephone on the 12th July 2001. He was told in the clearest terms in three letters, dated 19th, 27th and 30th July that the Tribunal would require a doctor's report and prognosis, failing which, the Tribunal would be invited to deal with the matter in his absence. Mr Awan did not send a doctor's report and prognosis such as was asked for. On 6th August 2001 he faxed a copy of the doctor's statement on a form headed "For Social Security and Statutory Sick Pay purposes only" that Mr Awan was suffering from an anxiety state and depression and that he should refrain from work for 13 weeks. This was plainly not a certificate suitable or sufficient to sustain Mr Awan's application for the adjournment of the Tribunal hearing. It was prepared for wholly different purposes and said nothing about Mr Awan's ability in medical terms to attend the hearing and it attempted no prognosis such as had been required. The doctor had simply not been asked to address these questions.

In these circumstances, in my judgment, the Tribunal was entitled to regard the application for an adjournment as insubstantial and I am sure that they did. They were entitled in their discretion to refuse the application and to proceed with the hearing in Mr Awan's absence.

The present submission is not, in my view, improved by reference, with hindsight, to the doctor's letter of 10th December 2001, written four months after the hearing. This referred to the doctor's statement of 12th July 2001 and said that Mr Awan was still suffering from depression, hypertension and anxiety. What it did not substantiate was Mr Awan's assertion in support of his application that he had suffered a stroke in January 2001.

In the case of Teinaz, to which I have referred, Peter Gibson LJ referred to the judgment of Atkin LJ in Maxwell v Keun (1928) 1 KB 645 at 653, where he said:

Atkin LJ went on to say that the Appellate Tribunal will occasionally interfere if otherwise there would be injustice.

I do not consider that there was injustice here. I also observe, as a separate and additional point, as has the Master of the Rolls, that the Divisional Court and now this Court has reviewed in detail the merits of Mr Awan's case with a result with which I entirely agree. The refusal of the adjournment caused no injustice.

LORD JUSTICE CARNWATH: I agree with both judges.

MR HOPPER: My Lord, you dismissed the appeal with costs. There is a schedule but, subject to your Lordship's guidance, we were not intending to trouble you with the matter to the extent of summary assessment because in the light of bankruptcy it may be that the matter will go no further in the event. But for form's sake, I apply for costs.

MR NEWMAN: I cannot resist that. I am formally instructed to ask your Lordship's for leave to appeal.

THE MASTER OF THE ROLLS: That is most ambitious in the light of the submissions you made, Mr Newman, which is saying something! Permission is refused.