Malik, Re Solicitors Act 1974

I would like to say before I start that I have received two documents, or at least two emails, from Mr Barton which have been copied I think to Dr Malik, which just clarify one or two small points.

On 23 July 2008 a Solicitors Regulation Authority (“SRA”) Adjudicator, Ms Webb, considered an application to terminate the suspension of Dr Malik’s practising certificate. She terminated the suspension and granted him a certificate for the practising year 2007-2008. In doing so she imposed a number of conditions on the certificate. Those conditions were these:

“1.

He may act as a solicitor only in employment which has first been approved by the Solicitors Regulation Authority

2.

He is not a member, office holder or shareowner of an incorporated solicitor’s practice

3.

He is not a sole principal, partner or salaried partner of any solicitor’s practice

4.

[Dr Malik] shall immediately inform any actual or prospective employer of these conditions and the reasons for their imposition.”

Ms Webb imposed the conditions for the following reasons:

“Dr Malik appeared before the Solicitors Disciplinary Tribunal in November 2007 where an allegation that he had provided to the Law Society an explanation that was false and misleading, was substantiated.

I have also noted the comments of the tribunal (paragraph 50 of the findings) that Dr Malik’s evidence was “unconvincing and unreliable” and that “he did not display the frankness and transparency in dealing with his own professional body that was expected of a member of the solicitor’s profession”.

Accordingly, I am satisfied that Dr Malik should practise at the present time only in a position approved by his regulatory body, in order to protect the interests of the public and the profession, and maintain public confidence in the effective regulation of the profession by the Solicitors Regulation Authority”.

Ms Webb applied the wrong test: see paragraphs 18 to 21 of my judgment in Odunlami v the Law Society (No 20 of 2008) [2008] EWCA Civ 1598. The test is and, as stated in that decision, remains that stated by Lord Phillips MR at paragraph 25 of the Court of Appeal decision in Awan v The Law Society [2003] EWCA Civ 1969. That is to say, the test is whether conditions are necessary in the interests of the public and the reputation of the profession. Such conditions must not only be necessary but also reasonable and proportionate. This test is correctly accepted by both sides in this appeal.

An appeal from Ms Webb’s decision was dismissed by an SRA Appeals Panel on 17 September 2008. The Appeals Panel did not consider that any of the grounds of appeal pursued before it justified allowing the appeal. It further held that the allegation substantiated before the Solicitors Disciplinary Tribunal (“SDT”) was sufficiently serious to warrant the imposition of regulatory conditions. Unfortunately it too wrongly endorsed the test applied by Ms Webb.

Dr Malik then applied to the SRA for approval of employment with Malik Law Chambers. That application was refused on 9 October 2008. An appeal from that decision is not pursued before me. Such an appeal is not within my jurisdiction, as explained in paragraph 7 of the decision in Brandon v The Law Society (No 12 of 2008) [2008] EWCA Civ 967. Dr Malik seeks in the present appeal to challenge the imposition of conditions. He seeks an order directing that his 2007-2008 practising certificate be issued free of conditions. This is or may be of importance because he is at present holding over under his 2007-2008 practising certificate and has applied for a 2008-2009 practising certificate.

Dr Malik was admitted as a solicitor on 1 February 2002. Before that date he had practised, from November 1995, as a registered foreign lawyer. He has authored and co-authored several books on immigration law, an area of law in which he specialises. In that regard he has also contributed in various degrees to a number of radio and television programmes. Dr Malik has been involved with a number of businesses since 1995. The first was called Malik Law Associates. Its business address was 233 Bethnal Green Road, London, which it appears from the Land Registry records was at that time owned by Dr Malik. On 10 January 2000, the Law Society intervened in Malik Law Associates, which at that time comprised Dr Malik, as a registered foreign lawyer, and three others. The intervention was not challenged by any form of legal process and, although I note that Dr Malik says that the intervention was unwarranted and should not have been undertaken, it is not necessary or indeed appropriate for me to resolve that issue for the purposes of this appeal. I therefore say no more about it.

In July 2000 a new business, known as Malik Associates, started trading from 233 Bethnal Green Road. According to Dr Malik, Malik Associates was the trading name of UK Immigration Law Consultancy Limited (“UKILCL”), which was incorporated on 10 July 2000 and initially had two directors and shareholders, a Mr Imdad Mallick and Mr Tariq Malik. A Miss Halima Malik also became a director at some stage. Dr Malik says in his petition that none of the directors is related to him, Malik being, I understand, a common name. It is Dr Malik’s case that UKILCL is not a firm of solicitors but of immigration consultants. On 20 September 2000 UKILCL was granted a 24-year lease of the office premises at 233 Bethnal Green Road. Dr Malik was, he says in his petition, at no time a shareholder or director or employee of UKILCL. He reiterates in his petition the position he outlined to the SDT and which is recorded in paragraphs 29-32 of the SDT judgment in the case of Dr Malik (In The Matter of Akbar Ali Malik (No. 9865 of 2007)) dated 8 January 2008, namely that he was asked to join Malik Associates but, having initially accepted that offer, he never took it up as he was engaged in writing a book. Malik Associates ceased trading in April 2002.

In the meantime, on 22 December 2001, Dr Malik wrote to the Law Society to say that he and Mr Christodoulides commenced the Malik Law Partnership and would open the office from 2 January 2002. He described himself as a member of the Pakistani Bar. He was admitted as a solicitor on 1 February 2002. Dr Malik says that he was only a consultant solicitor to the firm. This is partially confirmed by correspondence, again from Mr Christodoulides to the Law Society, dated 12 July 2002, which confirms that Dr Malik had ceased to be a partner in Malik Law Chambers on 10 July 2002. There is some uncertainty in the evidence as to Dr Malik’s precise role but his case throughout has been that he was directly concerned with Malik Law Chambers but not in any way with Malik Associates.

On 1 February 2001 Dr Malik had transferred the title of 233 Bethnal Green Road to a Mr Ghulam Butt. Following Malik Associates’ closure, Malik Law Chambers is said to have moved from 239 Bethnal Green Road to the office premises it had occupied at 233 Bethnal Green Road. It did so on 1 May 2002, that is almost immediately after Malik Associates had ceased trading.

On 4 June 2003 Mr TB Saru wrote to Malik Associates complaining about certain matters upon which he said he had instructed Malik Associates. On 16 June 2003 Malik Law Chambers wrote a letter in reply, which I was told was probably written by one of the partners but not by Dr Malik, who is described on the notepaper as a consultant. The letter includes the following:

“Re: Your Letter

We refer to your letter dated 04/06/03 addressed to M/s Malik Associates Immigration Consultants. Although we are not obliged to consider your complaint however out of courtesy we have decided to reply to you.

We have surprisingly noted the contents of your letter.

You are aware that you were a previous client of Malik Associates, the company that formerly traded at the same premises (albeit the two are unconnected). We understand that Malik Associates had been instructed to handle your application for leave to remain in the United Kingdom as a student. They had submitted your application to the Home Office on 22^nd October 01 as you had overstayed in this country.

That application was successful and you were granted leave to remain in the United Kingdom until 31^st October 03. The Home Office sent the papers relating to your matter directly to our address and we requested you to collect the same. In February 03 you had collected your entire file of papers from us.

We are surprised that you did not mention any of the concerns regarding your outstanding application when you collected the file and indeed you were happy. Nor did you complain after collecting the file. We note that you had four months to concoct a strange story. The purpose of your letter (to Malik Associates) is beyond our understanding.

We understand that you had instructed Malik Associates to make an application on your behalf for leave to remain in the UK as a student. It is our understanding that Malik Associates NEVER accepted any instructions form you to make any application for ‘indefinite leave to remain in the UK’. You are fully aware that you do NOT qualify for indefinite leave to remain in the UK also it is not possible in your matter to make two different immigration applications at the same time.

We are extremely surprised that how and why you felt a need to contact the Home Office while you know that your immigration matter was decided in December 02. How Home Office could have any record for your ‘application for indefinite leave to remain’ while any such application has never been made?

We believe that at no time whatsoever did you instruct Malik Associates to handle and application regarding indefinite leave to remain. You only instructed them to handle your student application matter, which was successful.

We trust this clarifies the situation.

Yours sincerely

Malik Law Chambers”

It is clear from that letter 1) that Malik Law Chambers (“MLC) were taking the point that Mr Saru had instructed Malik Associates (“MA”) and not MLC and 2) that the two firms were not connected but 3) that the writer of the letter was fully aware of what had transpired between Mr Saru and MA. On 23 June 2003 Mr Salu wrote to the “complaints handling partner” of MLC in these terms:

“I wish to complain about the handling of my case by your firm.

I initially instructed your firm on O6/10/2001, after my application for indefinite leave to remain in the U.K. was refused by the Home Office and another practitioner had lodged an appeal against this decision on my behalf. There was delay in taking over my case papers, but eventually you received these and Dr Malik gave my file to a Mr Ali took conduct of my case at this time on behalf of your firm.

I made it clear to Mr Ali that I required assistance with my appeal, and to take steps to remain in the U.K. following my retirement from the British Army. I was not given advice as to the status of my appeal, but I was told that I should apply for indefinite leave and also make an application to extend my student visa. I was asked and did pay £600 -- £250 for dealing with the appeal, and £350 for the applications. Two forms were filled, and I signed both. One was a student visa application and one was an indefinite leave application. I paid the sum of £600 by cheque on 06/10/2001.

It became clear that Mr Ali was not able to deal with my case, and he passed the file to Dr Malik for attention …”

In the latter part of the letter, which I have not quoted, Mr Saru said that he had subsequently spoken to Dr Malik who had been abusive to him.

That letter is to my mind important because it makes clear that it was Mr Saru’s case that he had instructed Dr Malik. It also shows some confusion in Mr Salu’s mind as to whether he had instructed MA or MLC. That is because in the first letter to which I have referred he wrote to MA whereas in this letter he wrote to MLC. I am bound to say that I would have expected Dr Malik to have responded to the allegation that he personally had dealt with the matter. However, unfortunately he did not do so. On 10 July 2003 Mr Saru wrote to the Office for Supervision of  Solicitors making a complaint “against Dr AA Malik and others at MLC”. He enclosed a complaint form and a copy of the letter of 23 June which he said had been returned to him. There followed exchanges between the Law Society and Dr Malik of MLC during which the point was taken that Mr Saru had not instructed MLC.

In the further exchanges I need only refer for present purposes to a letter of 18 April 2005 which Dr Malik wrote to the Law Society on MLC notepaper. I refer to it because the SDT refers to it specifically. It reads:

“Re: Complaint by Mr T B Saru.

Thank you for your letter of 08^th April 2005, the contents of which have been noted.

I have previously explained to you that I was neither a partner of the firm nor did Malik Law Chambers ever take instructions from Mr Saru.

In any event I confirm again that this firm received no instructions from Mr Saru to act for him, save to the extent that this firm passed on one letter received from the Home Office, as the Home Office sent the papers relating to Mr Saru’s matter to the address where this firm operates from. Mr Saru was contacted and he was requested to collect the documents and in February 2003, Mr Saru collected his entire file of papers.

Also please note again this firm has no connection to the Immigration Consultancy, Malik Associates. That consultancy was trading from 233 Bethnal Green Road. It has since closed down. We moved into the same premises in the last week of April/1^st week of May.

The Records Department of the Law Society were also informed accordingly on 02^nd April 2002. Clearly, Malik Associates and Malik Law Chambers Solicitors have no connection, but are separate entities.

Please also note that when the previous consultancy dissolved and to avoid confusion, Malik Associates kept their web page to let clients and other 3^rd parties know that Malik Law Chambers Solicitors were now operating from the same premises.

[The] Malik Law Chambers web host provider was contacted over two years ago to locate Malik Associates web page and remove it. This was removed accordingly. Copies of the web page references you provided for Malik Associates are dated 18^th March 2003. We are now into April 2005 and you will note there is no Malik Associates Immigration Consultancy web page live anywhere.

We hope that the information provided in this letter substantively answers any outstanding queries you had. However, should you have any queries please do not hesitate to contact us.”

Matters were not resolved between the Law Society and Dr Malik, and the conduct of Dr Malik was referred to the SDT. He was alleged to be guilty of conduct unbefitting a solicitor in two respects, namely:

“a)

He gave an explanation to the society during an investigation into a complaint that was false and misleading b) he unreasonably delayed in answering correspondence from the Society.”

It is important to note that Dr Malik did not respond to the allegation that he personally had dealt with Mr Saru’s case until a late stage. On 2 April 2007 on behalf of the SRA, Mr Barton wrote a letter to Dr Malik which contained a notice under the Civil Evidence Act in these terms:

“I hereby give you notice to admit the documents exhibited to my Statement to the Tribunal. The consequences of a notice to admit is that in the absence of an appropriate counter notice you are taken to admit that the documents are true copies of genuine originals, and in the case of letters, that they were duly sent upon the date upon which they purport so to have been to the named addressees.

I also give you notice of my intention to rely, under the terms of the Civil Evidence Acts, upon statements made within documents, and by this means the documents become admissible to prove the facts stated in them..

All the documents are of course already in your possession.

It follows that in the absence of an appropriate counter notice from you requiring me to strictly prove documents or produce witnesses, the Tribunal can proceed upon the documents alone.

You should understand that the onus is now upon you to respond to this letter by serving an appropriate counter notice if there is any issue of fact. If you fail to do so you will be in difficulty in putting before the Tribunal any version of the facts which is inconsistent with the documents upon which I rely.”

This occurred on 12 November 2007. Dr Malik gave evidence and so too did Miss Malik. They were both cross-examined by Mr Barton. Dr Malik was not represented by Mr Hedley Marten, who has represented him before me. After hearing the evidence and hearing and considering submissions made on both sides, SDT announced its decision at about 5.30 pm. I am told by Mr Barton, and accept, that the SDT gave very short reasons, along the lines subsequently set out in paragraphs 50 and 51 of the reasons given much later, which were in these terms :

“50.

The Tribunal found allegation (a) to have been substantiated. The Tribunal found the Respondent’s evidence to be unconvincing and unreliable. He had exhibited an inability to be open and frank as to his position as was demonstrated in his signing of a form making application for registration to the OISC stating that he was both an advisor and a principal with a firm that he, on his evidence today, never did join. His bold assertion to The Law Society that there had been no connection between Malik Associates and Malik Law Chambers did not display the frankness and transparency in dealing with his own professional body that was expected of a member of the solicitors profession. The Tribunal takes a very serious view of the Respondent’s behaviour in this connection.

51.

With regard to allegation (b) the Respondent’s evidence was unconvincing, in particular it was very surprising that no mention had been made of the letters which he had said he had written to The Law Society until he had produced copies in these proceedings. He had produced corroborative evidence in the form of certificates of posting. It was surprising and no proper reason had been given why he did not produce the evidence which he had placed before the Tribunal to The Law Society’s Adjudicator or why he had not produced it in the disciplinary proceedings at an earlier stage. However The Law Society was not able to prove to the requisite very high standard of proof that it had not received the letters which the Respondent said he had sent and for this reason the Tribunal has found allegation (b) not to have been substantiated.”

I understand that the reason for the SDT’s comments in part of paragraph 51 is that the relevant correspondence which Dr Malik relied upon was only produced at the hearing. However, that correspondence led to the SDT dismissing allegation (b).

The SDT also announced that Dr Malik should pay costs in the sum of £9,078.37 and that he be suspended for six months. The suspension was with immediate effect. It is important to note that no application to suspend the period of suspension was made pending receipt of the SDT’s detailed reasons.

No attempt was made to appeal against the decision of the SDT to the High Court under section 49 of the Solicitors Act. The High Court has wide powers on such an appeal. It is important to note that I have no jurisdiction to hear an appeal from the decision of the SDT.

Dr Malik set out the basis of his appeal in some detail in his petition but his submissions have been refined both in a skeleton argument and orally by Mr Marten, who has said everything that could be said on behalf of Dr Malik. Before turning to those submissions I should note that two documents including a manuscript note were put before me at a late stage, but since no-one suggested that they are of significance, for present purposes I shall take no notice of them.

It is plain from the submissions made on behalf of Dr Malik that the essential basis of this appeal is that the SDT reached wrong conclusions of fact, wrongly found Dr Malik guilty of conduct unbefitting a solicitor and wrongly suspended him for six months. Dr Malik further submits that the SRA should have so held and should have reached different conclusions from the SDT.

Mr Marten’s submissions on behalf of Dr Malik may be summarised in this way:

“[1] The thrust of the [SRA’s] case before the [SDT] … was encapsulated in paragraphs 18 and 19 of its Rule 4 (2) statement:

‘18. On 18 April 2005 the Respondent [Dr Malik] wrote in answer … He stated that ‘… this firm [Malik Law Chambers] has no connection to the Immigration Consultancy, Malik Associates. That consultancy was trading from 233 Bethnal Green Road. It has since closed down. We moved into the same premises in the last week of April/1^st week of May [2002].

19.

There are two false and misleading statements in this letter. The first is that Malik Law Chambers had no connection with Malik Associates. The second is that Malik Law Chambers moved into the same premises as previously occupied by Malik Associates. There was and is a connection between the two businesses, and they both operated out of the same premises at all material times. There was therefore no movement.’

This is said repeatedly:

‘this is all consistent with the two businesses operating out of the same premises with [Dr Malik] participating in various ways in both of them at the same time’ …

‘Any notion of separation is a fiction’

[2] From [Dr Malik’s] Chronology it can be seen that

(1)

the actual order of events was:-

     1995-2000 Malik Law Associates Solicitors… occupies      233

     2000-April 2002 MA occupies 233

May 2002 – onwards MLC occupies 233.

(2)

Throughout the time that MA was at 233, MLC was at 239.

Every letter, bill or other document in any of the Bundles confirms this. In particular, any letter from MLC dated pre-May 2002 will be seen to have come from 239, and every letter from MLC after then will be seen to have come from 233.

[3] There was accordingly never a time when the two entities occupied the same premises.

[4] More particularly, it has not even been suggested by the [SRA] that [Dr Malik] was ever a director or member of MA; nor was he.

[5] Not only were MA and MLC different entities, but being on the same street they were competing in the same market, namely immigration. MA and MRC were at all material times separate entities, and in the context of Mr Saru’s complaint, that fact was central and fundamental. It needed to be got clearly across to the [SRA].

[6] It is submitted that that fundamental fact is not altered.

(1)

by the fact, as [Dr Malik] told the [SDT] and the [SDT] accepted, that MA had invited [Dr Malik] to join them and he had accepted but subsequently changed his mind. [See SDT Findings Paras 42 and 43]

(2)

by the fact, as [Dr Malik] freely admits, he foolishly signed [an] OISC application form in anticipation of joining MA…

(3)

By the fact that MA in its April 2000 website advertised [Dr Malik’s] books…

[7] It is clear as a pikestaff that [Dr Malik] had no involvement whatsoever in any advice that Mr Saru received from MA … Nor did the [SDT] find that he had.

[8] It is conceded that, after MLC moved into 233 following the collapse of MA, MLC dealt with correspondence that subsequently arrived from Mr Saru. Had MLC simply ignored such correspondence as it was fully entitled to do, [Dr Malik’s] downfall would never have ensued

[9] It is accordingly submitted that, read in the light of the above, [Dr Malik’s] fatal letter dated April 2005… although ‘bold’ was in all essentials true.

[10] The [SDT’s] sanction was in the circumstances totally unjustified. At best, it was punitive out of all proportion to the perceived crime.

[11] It is submitted that the [SDT’s] still unexplained failure to serve [Dr Malik] with its findings until 5 March 2008 only added insult to injury: by that time it was pointless to appeal.

[12] It is clear that the [SRA’s] decision to impose conditions on [Dr Malik’s] practising certificate simply follows the [SDT’s] unappealed findings.”

It is plain from those submissions and indeed from the principal submissions made by Mr Marten yesterday that the essential basis of this appeal is that the SDT’s findings were wrong.

I am unable to accept these submissions. As I have already explained, Dr Malik could have appealed against the decision of the SDT but chose not to do so. In these circumstances, subject to one point, the natural starting point for the SRA and, on appeal, by me as Master of the Rolls is the decision of the SDT. That one point is that both the SDT and indeed the Master of the Rolls is entitled to have regard to new material which has become available since the decision of the SDT. There is, however, no such new material of any significance in this case. Dr Malik is seeking to challenge the decision and reasoning of the SDT.

I accept these submissions advanced by Mr Barton on behalf of the SRA:
1) This appeal is a collateral attack on the judgment of the SDT, which is impermissible since Dr Malik did not appeal from it. 2) The SDT heard the evidence of Dr Malik and his witnesses, which it summarised at paragraph 42 to 44 of its written findings as follows:

“42.

[Dr Malik] and Ms Mallik had given a full explanation to the Tribunal of the relationship that existed between Malik Associates and Malik Law Chambers and how it came about that from letter headings it appeared that they operated from either the same premises or premises that enjoyed close proximity. Malik Associates had been trading before [Dr Malik] was invited to join that firm. He had initially accepted that invitation, postponing his joining until he had finished writing a book. The Tribunal noted that Malik Associates offered books by [Dr Malik] for sale on its Website.

43.

When [Dr Malik] finished his book, he changed his mind. He did not join Malik Associates but set up a solicitor’s practice. That practice prospered to the detriment of Malik Associates, which subsequently closed.

44.

Malik Law Chambers in due course employed staff from the former firm of Malik Associates. Ms Mallik, a director of the company trading as Malik Associates, and the co-author with [Dr Malik] of a book had become a caseworker, then a trainee and later a solicitor at Malik Law Chambers. [Dr Malik’s] letter to The Law Society dated 18^th April 2005 stated that Malik Law Chambers had no connection with Malik Associates. In view of the history of these two firms which had been placed before the Tribunal, [Dr Malik’s] relationship with Ms Mallik and other members of staff of Malik Associates, and his acceptance of a job with Malik Associates, the Tribunal found that [Dr Malik] clearly misled The Law Society by making that bold assertion without making sure that The Law Society was fully apprised of all the relevant facts. The Tribunal found allegation (a) to have been substantiated.”

In these circumstances I am wholly unable to approach this appeal on the basis that the SDT erred in fact or in principle. In any event it appears to me that the SDT was entitled to reach the conclusions that it did, given these specific considerations, to which I have already referred.

In these circumstances I am wholly unable to approach this appeal on the basis that the SDT erred either in fact or law. It follows that the principal thrust of Dr Malik’s appeal fails.

I recognise that this is unfortunate for Dr Malik and indeed that there are a number of points to be made in his favour. They include the following, which were emphasised by Mr Marten:

Those submissions undoubtedly have some force. However, if this matter is approached as matters stood at the time it was considered by Ms Webb and the Appeal Panel, I am quite unable to say that they were not entitled to impose the conditions. Given the findings of the SDT, in my judgment the conditions were indeed necessary, proportionate and reasonable in the interests of the public and the reputation of the profession. To my mind that was only a short time ago. It would be quite wrong for me to allow this appeal on the basis that matters have significantly changed since then.

Before adding a postscript I should just mention one other point taken by Mr Marten in his submissions. It is that the penalty imposed upon him was disproportionate to that imposed upon Mr Ali, Dr Christodoulides and others, whose conduct was not referred to the SDT. The difficulty, however, is that Dr Malik’s conduct was referred to the SDT. No challenge was made to the referral of his conduct to the SDT. Any possible discrepancy between the way in which the others were treated and Dr Malik was treated was no doubt put before the SDT if Dr Malik and his advisers thought it appropriate to do so at that time. That was the time to take that point. It appears to me that that fact is not now relevant to my consideration of this appeal.

I would, however, like to add this. Mr Marten posed the question in the course of his submissions, when will this end? I can quite understand that that is an important point from Dr Malik’s point of view. As I indicated earlier, Dr Malik has now made an application for his 2008-2009 practising certificate. It will be the duty of the SRA to consider the position afresh as things stand at present. It may well be that on reflection, in the light of the debate that we have had and indeed in the light of my conclusions, that Dr Malik will feel it appropriate to take a more mollified approach to the current situation, perhaps to accept that he did not react to Mr Saru’s substantive complaint in quite the way he should have and that there is force in the approach of the SDT. If he were to do that, rather than simply to say “The SDT is wrong and everything they did was unjustified”, and invite the SRA to look forward to the future, given the various factors that I indicated, namely that there has been no finding that Mr Saru was provided with inappropriate or unsatisfactory services and in the light of the fact that there has never been a complaint, so far as I am aware, about the way in which Dr Malik has rendered services to his clients over the years. It may well be that the SRA will look at the matter somewhat differently from the way they have in the past. But all these are matters for the SRA. They are not matters for me. For the reasons I have given I have reached the conclusion that I really have no alternative but to dismiss this appeal.