ON APPEAL FROM THE LAW SOCIETY
Royal Courts of Justice
Strand
London, WC2
Tuesday, 4th Feb 2010
B E F O R E:
LORD NEUBERGER
(THE MASTER OF THE ROLLS)
IN THE MATTER OF THE SOLICITORS ACT 1974
RE A SOLICITOR
No. 2 of 2009
M.A. HEATHER
(DAR Transcript of
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The Appellant appeared in person.
MR G MARRIOTT(instructed by RJW) appeared on behalf of the Respondent.
Judgment
Proceedings
LORD NEUBERGER: Dr Heather, Mr Marriott, I am sorry you have been kept waiting. As you will have gathered, a matter in this court which was due to finish at ten went a bit past and then I am afraid I was caught up in something and therefore we are starting a quarter of an hour late. I hope it has not caused you any inconvenience. Thank you. Yes Dr Heather?
DR HEATHER: My Lord, I have really only got one point to make and that’s among many points but as an advocate should concentrate on his own, one point, which really is that there was never any reason for this condition. If they had have asked me “you need a course” and there was never any suggestion of a problem there but if they had of course, I would have done it immediately. In fact I did of course within, I think, eight days when it was applied and therefore the whole of this procedure …
LORD NEUBERGER: No. You did it in seven days I think.
DR HEATHER: … is unnecessary.
LORD NEUBERGER: But I am not quite sure what the problem is. In that case you … they said you should do it. You did it. And commendably you did it very promptly as you say. What is the problem?
DR HEATHER: Well …
LORD NEUBERGER: What are you pleading?
DR HEATHER: … it’s having a qualified practising certificate. It’s a very serious matter for an officer of the court. And then my only remedy was to … was to appeal it because the full mechanism was put into process. I think the SRA policy now, Charles Plant (?) would agree with what I’m saying, the latest consultation paper. There was no … I made six … I made six attempts to go and talk to somebody at the SRA that I could actually discuss these matters with. Anyway it wasn’t refused. It was just ignored.
LORD NEUBERGER: Your point is this is it that really what they should have said to you was “look it would be quite good to go and … on this course” and you should have attended and you would have done it and they turned a little molehill into a great mountain by putting …
DR HEATHER: The whole of this … this is totally unnecessary and this is I mean it is not just an isolated example. It’s the whole culture of regulation of solicitors. It is so wasteful in time and effort and … and of course here of course there is so much procedural difficulties and defects, after which of course would not have arisen anyway if the process wasn’t put in, and for me to withdraw my appeal would in fact waive all those problems like the … the false statement of claim.
LORD NEUBERGER: I mean what might be said against you is, well, you accept very fairly in that it was sensible for you to go on a course. Whether they dealt with it informally or by imposing a condition on your certificate was a matter for them. In order for me to interfere I have got to be satisfied … do I form my own view or do I form a view as to whether the decision was a reasonable one? What is the right approach for me … right basis for me to approach the question?
DR HEATHER: Well, I think it is probably both, my Lord.
LORD NEUBERGER: Well, it cannot be both because they are inconsistent.
DR HEATHER: First …
LORD NEUBERGER: Either I am making a decision afresh or I am reviewing their decision and unless I think it is unreasonable in the sense that it could not have reasonably have been made …
DR HEATHER: Yes.
LORD NEUBERGER: … I have to leave it. I am asking what the right question is.
DR HEATHER: Well, yes. There is … prima facie first of all was totally inappropriate because I didn’t need it, and I mean the whole of my life has been engaged in keeping up to date with everything and I was more up to date on this than the case workers I were dealing with actually were So there it was. There was no ground at all for it and there was not even a suggestion or evidence or hearing to test me or anything like that. And then I think you should reflect on your own position as I have said my Lord as the final arbiter, the pater patriae of the profession. That officers of the court should not be subjected to this kind of … all this procedures and appeals. It is completely unnecessary waste.
LORD NEUBERGER: Well, I mean the other view would be, if I may say so, that given that there is no quarrel between you and the SDT as to what is the appropriate … whether or not it was appropriate for you to attend a course that you are the one who is turning it into a big issue by challenging whether or not it’s on your certificate. You went to the court. The court sorted it out. It is on your certificate for one year but that is all history.
DR HEATHER: I think, my Lord, I do not agree first of all that it was appropriate. I don’t think there was a need for it at all. I was forced really … my duty really to … as an officer of the court to uphold the rule of law. That is the only remedy I have to do and of course I got sucked into all this. I don’t think it should be encouraged.
LORD NEUBERGER: I mean the other thing was that in light of what subsequently happened it could be said that it was not an unreasonable thing to qualify your certificate.
DR HEATHER: Well, if that is so then it should be qualified appropriately. That was not an appropriate qualification. Certainly there was nothing at the … in the tribunal.
LORD NEUBERGER: I mean I … the truth of the matter is that subsequently you were suspended from practice for a year I am afraid and it is a little difficult to say that it was unreasonable to qualify your certificate in this rather mild way given that subsequent decision was that you should be disqualified for example.
DR HEATHER: But then it should have been … should be some appropriate qualification. The problem was …
LORD NEUBERGER: Until they … until they knew whether or not you should be disqualified and that matter was gone into, they were holding the ring by saying you should do something to ensure that you were up to date with the rules and you knew what you had to do.
DR HEATHER: It’s shown by all the … all the …
LORD NEUBERGER: Yes.
DR HEATHER: … correspondence anyway. It’s quite clear I understood the rules. In fact there was disagreement on the rules but of course also with regard of course to the hearing and the result of that … the outcome of that, that was why I suggested because there is a difficulty and that there is no problem that this matter be left in abeyance while I am pursuing all these matters in my skeleton, current issues.
LORD NEUBERGER: What relating to your disqualification?
DR HEATHER: Yes … yes, my Lord.
LORD NEUBERGER: I have to take the disqualification as it is at the moment. And you may or may not succeed in challenging it but at the moment I could proceed on the basis that it is there. Are you … you have very helpfully said you were taking what you thought was the most important point and going quite rightly if I may say so to the nub of the matter. The other issues you raise, you are relying on them too are you?
DR HEATHER: Oh yes, my Lord. The whole of my defence.
LORD NEUBERGER: Absolutely. No, I assumed you were.
DR HEATHER: No. I am not withdrawing anything.
LORD NEUBERGER: No, no. No, no. I …
DR HEATHER: Those are really even more important of course.
LORD NEUBERGER: I … I assumed …
DR HEATHER: That …
LORD NEUBERGER: I assumed you were, I just wanted to make sure.
DR HEATHER: I see.
LORD NEUBERGER: Because you started and to be fair to you, you started this morning by very helpfully saying you were going to concentrate on the guts of it and I just wanted to make sure that you were relying on the rest, but the essence of it was that this is really a mountain out of a molehill.
DR HEATHER: Yes but it’s …
LORD NEUBERGER: And a harmful mountain out of a molehill from your point of view.
DR HEATHER: Well yes, very much, but of course these are very important issues in the public interest.
LORD NEUBERGER: I understand that. I understand.
DR HEATHER: The way the whole … the way the whole procedures are conducted.
LORD NEUBERGER: Yes I see. Yeah. Now is there anything else you want to say?
DR HEATHER: Not unless you have any questions on the (inaudible).
LORD NEUBERGER: No.
DR HEATHER: It’s been rather concise.
LORD NEUBERGER: You have made it very concise.
DR HEATHER: And I …
LORD NEUBERGER: And very clear.
DR HEATHER: … they have the article which really comes out of the issue about publication and bias and so on and that the Press Complaints Commission are considering that issue but the Law Society, the representational side of it, are considering assisting my case parallel to their present application for cost … cost-capping which is exactly the same in the civil for … for solicitors of the court because of the facts of the (inaudible) case.
LORD NEUBERGER: Anything else you want to …
DR HEATHER: No.
LORD NEUBERGER: Thank you very much indeed, Dr Heather. Mr Marriott?
MR MARRIOTT: My Lord.
LORD NEUBERGER: First of all, can you help me? Am I exercising my own jurisdiction or am I reviewing the exercise of jurisdiction of others?
MR MARRIOTT: Well, I think my Lord the case on this is Lebow, which you helpfully sent to both parties.
LORD NEUBERGER: Yes.
MR MARRIOTT: And from that clearly this is a re-hearing.
LORD NEUBERGER: Yes.
MR MARRIOTT: But you have to, not have to but you should …
LORD NEUBERGER: Have regard?
MR MARRIOTT: … have regard to why the adjudicator and indeed the adjudication panel came to the decision …
LORD NEUBERGER: So it is something of a sort of – that was my understanding – something of a sort of halfway house?
MR MARRIOTT: (inaudible)
LORD NEUBERGER: Yes, exactly.
MR MARRIOTT: Yes.
LORD NEUBERGER: (inaudible) is better than halfway house, yes. So well -- sorry?
MR MARRIOTT: Sorry and the second point, my Lord, is of course you are entitled, as you believed you were, to take into account new material.
LORD NEUBERGER: Yes.
MR MARRIOTT: In other words the findings of the SDT.
LORD NEUBERGER: Yes.
MR MARRIOTT: And of course unless there has been a legal challenge or fresh material which casts doubt on those findings then those should bear that (inaudible). You should take those into account as well.
LORD NEUBERGER: Yes.
MR MARRIOTT: Well, I think I have developed those in my skeleton argument, that no appeal has been launched and certainly there is no evidence which Dr Heather has adduced or wishes to adduce which might cast doubt on those findings.
LORD NEUBERGER: The Malik case?
MR MARRIOTT: Indeed my Lord, yes.
LORD NEUBERGER: I am grateful for that. Can you like Dr Heather has very helpfully done, can you concentrate then on the point he has dealt with which in a sense is the nub of his complaint? That what should have happened in this case was simply to say the disciplinary proceedings were taking their course and in due course, subject to any application he may make has had the unfortunate result for him. He has been disqualified for a year. But he says nonetheless the right course here was not to have the mountain and the harmful mountain of a qualification on his certificate but have a friendly word with him and he would have gone straight off to the course as indeed he did.
MR MARRIOTT: I think the position sir … my Lord is that the SRA do encourage an informal approach.
LORD NEUBERGER: Yes.
MR MARRIOTT: The problem that the SRA faced here …
LORD NEUBERGER: Yes.
MR MARRIOTT: … was that coming up through the … through the system was a … what’s it called? A PSU report.
LORD NEUBERGER: Yes.
MR MARRIOTT: Which an adjudicator looked at … looked at Dr Heather’s explanations and decided to refer him to the … the tribunal. At the same time he then had … the adjudicator then had to consider his statutory obligation under section 12.
LORD NEUBERGER: Yes.
MR MARRIOTT: And therefore imposed that condition. And …
LORD NEUBERGER: Well, you say the imposition of the condition has to be seen in the light of the fact the proceedings which resulted, the disciplinary proceedings which were serious enough as we know to result in a year’s suspension.
MR MARRIOTT: Yes.
LORD NEUBERGER: It has to … well in the shadow of that as it were?
MR MARRIOTT: Indeed my Lord. They would be … the adjudicator would have two decisions to make. Is this serious enough to refer to the tribunal? Is the explanation advanced by Dr Heather sufficient and satisfactory and if the answer is no and the adjudicator in my submission reasonably came to that conclusion then the imposition…he could impose a condition and you will note, my Lord, from the papers that there was a recommendation from the case worker to impose a more stringent condition concerning his client account.
LORD NEUBERGER: Yes.
MR MARRIOTT: On which …
LORD NEUBERGER: Monies in the client … it seems to be a somewhat academic point because the evidence is there were no monies in his client account.
MR MARRIOTT: Well the …
LORD NEUBERGER: (Inaudible)
MR MARRIOTT: The findings of the tribunal, my lord, found that monies that were in his office account should have in fact been in his client account. That appears to have been analysed very carefully by the tribunal.
LORD NEUBERGER: That is true. That is quite true.
MR MARRIOTT: Yes.
LORD NEUBERGER: So in other words you say it was a moderate …
MR MARRIOTT: Yes. The adjudicator …
LORD NEUBERGER: Indicates moderation?
MR MARRIOTT: … looked at it. Thought from the papers that the adjudicator saw that there was no money in client account therefore remove that condition and just impose a very moderate one because of course the PSU report indicated an apparent and indeed by the findings of the tribunal an actual understanding by Dr Heather of the rules of conduct in particular the sharing of fees and the introduction and referral code. So I say that was a proportionate response and in one way Dr Heather must agree that, because he rushed off once the order was made to do the course.
LORD NEUBERGER: Well … but the difference is subtle but he says very important. If all you were doing was saying go on the course and he was plainly prepared to do so as you say, with commendable speed he did that.
MR MARRIOTT: Yes.
LORD NEUBERGER: Then why go through the business of humiliating him or disadvantaging him by marking his certificate, rather than just saying well now he has done that we will let it be?
MR MARRIOTT: Because of the decision by the adjudicator, my Lord, which he then complied with and it was noted by the adjudication panel on the internal appeal that he had complied with that condition, but it would not be right, and I developed this in my skeleton argument towards the end, for a person to say “Well now I have complied with that condition therefore I will appeal and please remove the condition on the basis of … that I have complied.”
LORD NEUBERGER: Well I think what he is saying is that … that it is not … he is simply saying it could have been done by a friendly word rather than the imposition of a condition. That is really what it is.
MR MARRIOTT: Yes.
LORD NEUBERGER: And what do you … what do you say about that?
MR MARRIOTT: Well I say … I say my Lord that the … the only way that the SRA could work satisfactorily is by exercising its statutory powers. If a friendly word had been said, then who knows whether Dr Heather would have gone and done the course or not.
LORD NEUBERGER: What is the point of a qualification on the certificate? I mean why is there that rather than …
MR MARRIOTT: Well it is … it is, my Lord, to protect the public. It is to show that the regulator is … has some concern about the way that particular solicitor practises and, as you know, without prejudice to any disciplinary action it is actually to give some protection to the public by asking that solicitor or demanding that that solicitor does certain things, for example training on the code of conduct.
LORD NEUBERGER: I … who sees the certificate in practice? I said “in practice” in the sense of in the real world? It is on the certificate. I mean you do not have it up on the wall necessarily or do you have to have it up on the wall?
MR MARRIOTT: You don’t have to have it up on your wall.
LORD NEUBERGER: Do clients ever ask for it normally?
MR MARRIOTT: They have never asked me for a practising certificate, no.
LORD NEUBERGER: So …
MR MARRIOTT: But …
LORD NEUBERGER: … what is … the impression that Dr Heather gave to me is that there is some … well some disadvantage in having it on your certificate in the sense that people will see it, but I was just wondering who would see it.
MR MARRIOTT: Those people who decided to search the website of the SRA would see it.
LORD NEUBERGER: Right.
MR MARRIOTT: Provided it was kept up to date.
LORD NEUBERGER: If you went to the Law Society and said I want a solicitor or you were looking at solicitors would you go on the Law Society website? I do not know. They presumably have …
MR MARRIOTT: They have their own …
LORD NEUBERGER: If you are searching a solicitor would you … would you see that a person who had a qualified certificate or not?
MR MARRIOTT: I think the answer to that is no, my Lord but can I just check? It is no.
LORD NEUBERGER: So you would look at the … either he is qualified or he is not and …
MR MARRIOTT: Yes.
LORD NEUBERGER: If he is qualified he is on the list and if he is disqualified he is off the list on the Law Society’s website?
MR MARRIOTT: Absolutely.
LORD NEUBERGER: So you would have to look at the SRA website?
MR MARRIOTT: Yes.
LORD NEUBERGER: Yes. And otherwise you would not know unless he chose to put it up in his office or …
MR MARRIOTT: Volunteered …
LORD NEUBERGER: Unlikely as it was a client who looked … asked for it?
MR MARRIOTT: Yes that is exactly right. A client is entitled to ask for it. And it is therefore obviously entitled … up to you as to whether you decide …
LORD NEUBERGER: I have to say in my time at the Bar nobody asked to see my call certificate, assuming I had one.
MR MARRIOTT: I don’t think you would have had one of those.
LORD NEUBERGER: That is probably why they did not ask.
MR MARRIOTT: Yes. Certainly when I was called there were no certificates handed out.
LORD NEUBERGER: Yes.
MR MARRIOTT: Indeed there weren’t even practising certificates.
LORD NEUBERGER: No that is true. Yes, Okay. Is there anything else you want to say on that?
MR MARRIOTT: No my Lord.
LORD NEUBERGER: All right. Thank you. Thank you very much. Dr Heather?
DR HEATHER: Well, my Lord, I have been asked to see my practising certificate by a judge when I was assisting a litigant in person.
LORD NEUBERGER: Well that was simply to make sure you were a solicitor.
DR HEATHER: Yes. But he would have seen the … he would have seen the qualification.
LORD NEUBERGER: Well that would have been slightly humiliating, I can see.
DR HEATHER: Also the … the PSU report approved my accounts arrangements and there is a dispute and I claimed of course that … that those figures that were put to the tribunal …
LORD NEUBERGER: Yes.
DR HEATHER: … were spurious really. Just to pull the wool over the eyes of the … of the tribunal to produce some figures which don’t hold water at all either in law or in counting or even in mathematics. So that would not have been before the … the adjudicator because that came very, very late. The adjudicator was going on the PSU report and specifically says that the forensic report is not to be looked at. But … but going to the fundamental point really there was no … there was no conduct ever alleged for me to explain.
LORD NEUBERGER: Yes, I see.
DR HEATHER: There was a lot of confused letters and I unpacked them as best I could with, 144 requisitions with further particulars and asking for precise meanings of words and I proposed a Scott Schedule whereby there could be items of conduct listed and I could in the next column give my reply. That was never … again was not … that was just ignored. There wasn’t a reply to each requisition saying why it wasn’t appropriate or anything. It was just ignored. So there was no conduct … the burden of proof…there is a lot of problems with the burden of proof in all these procedures. The burden of proof …
LORD NEUBERGER: Well, I am not quite sure where we are going on this.
DR HEATHER: Well this is on the … this is on the review that you’re reviewing, the …
LORD NEUBERGER: Yes.
DR HEATHER: … the decision and there was nothing for them to decide on about conduct. So the discretion never vested in the … in the Law Society to … to make the condition in the first place. That was one point on review … that … for your Honour to review and the second point is that the decision relied on a point that the tribunal had found a case to answer.
LORD NEUBERGER: Yes.
DR HEATHER: Under the rules. Well the case to answer that is in … that’s ultra vires because it … because it’s in … and also in breach of human rights because of course it is not a case to answer. It is a prima facie case in favour of the applicant, not against … there’s not … practice direction in criminal law I think (inaudible) on this. Unless it’s been tested by cross-examination there is no case to answer which has been proved. So the … if you had been deciding the case I am sure my Lord you would not have relied on that point which was a very important point which was relied on by the adjudicator.
LORD NEUBERGER: Yes. Thank you very much.
MR MARRIOTT: Can I just come back on that point my Lord? This was raised at the tribunal by Dr Heather. The tribunal rules, as I confess I haven’t got with me, specify a case to answer. Then there’s a definition clause.
LORD NEUBERGER: Yes.
MR MARRIOTT: Case to answer equals prima facie case. I think it was an attempt by the tribunal to remove Latin from the rules.
DR HEATHER: Yes my Lord but on that point it is a … it doesn’t define prima facie case. It just … sorry, it defines it just as prima facie case.
LORD NEUBERGER: I do not think …
DR HEATHER: If it’s a prima facie case for the plaintiff or prima facie case for the defendant and it was interpreted again … there was a prima facie case against the defendant and it doesn’t mean that. It just means prima facie case for the applicant.
LORD NEUBERGER: I have not got a copy of the rules, have I?
MR MARRIOTT: I think Dr Heather did have.
LORD NEUBERGER: Could you pass them to me? That is very kind. Thank you. I am not the best person to return books that I have borrowed but I think this one I will leave in court when I leave so you will get it back.
DR HEATHER: Yes. There is a definition, my Lord in the … of prima facie case in the definition section.
LORD NEUBERGER: Thank you very much. You say there is a definition of a case to answer?
DR HEATHER: Yes …
LORD NEUBERGER: Yes, an arguable or prima facie case.
DR HEATHER: Yes. But it doesn’t say prima facie case, my Lord, for whom? But it should. And it was misinterpreted … misinterpreted in all the cases apparently that go to the tribunal because…it’s all related to the oral hearing point as well which I haven’t dealt with but it’s related to that.
LORD NEUBERGER: Okay. Thank you very much.
MR MARRIOTT: Does your Lordship wish me to expand on that at all?
LORD NEUBERGER: No.
MR MARRIOTT: Thank you.
LORD NEUBERGER: Thank you for offering. I will give my decision now.
LORD NEUBERGER MR:
This is an appeal from the decision of the Law Society acting through its regulatory body, the Solicitors’ Regulation Authority (“SRA”). It is brought under section 12(1)(e) of the Solicitor’s Act 1974. It is memorable for no other reason and it is worth noting that this is the last appeal, as this jurisdiction was transferred to the High Court on 1 July by the Legal Services Act 2007, commencement number 5, Transitory and Transitional Provisions Order 2009. As it was filed on 31 January 2009 the present appeal remains one to which the Master of the Rolls has jurisdiction by way of paragraph 4(A) of the 2009 Order.
This appeal is brought by Dr Michael Heather, who appeals from the decision of Ceri Griffiths, an SRA adjudicator. On 30 September 2008 the adjudicator imposed a condition which was on his 2007/2008 practicing certificate in the following terms, and the condition was that Dr Heather:
“…attends a course accredited by the Solicitors Regulation Authority on the ‘Solicitors’ Code of Conduct 2007’ within six months of the date of the notification of this decision and provides confirmation of his attendance (in the form of a certificate or letter of attendance from the course provider) of such course within one month thereafter.”
To his credit Dr Heather complied with this condition very promptly, attending the course scarcely a week later on 6 October. The reason the condition was imposed was that the adjudicator had found Dr Heather was facing allegations of serious breaches of the solicitors’ professional rules of conduct and these were sufficiently serious to justify the bringing of disciplinary proceedings against him. The adjudicator said that the practicing certificate can be subject to conditions properly where it is necessary to do so in order to protect the public or the reputation of the profession and that, in the circumstances of Dr Heather’s case, the allegations he faced satisfied that test, and he also bore in mind that the condition would not affect his present practicing arrangements. In brief, in other words, the adjudicator thought that the condition was proportionate.
Despite this, Dr Heather appealed against the adjudicator’s decision to the SRA appeals panel on 18 December 2008, a sort of internal review procedure. The panel dismissed the appeal. Dr Heather then issued the present appeal from the adjudicator’s decision by petition, as I have mentioned, dated 31 December 2009. That appeal was stayed by my predecessor Lord Clarke by consent, pending the outcome of the disciplinary proceedings. The hearing of those disciplinary proceedings took place in March 2009 and the SDT gave its decision on 22 June 2009. That decision was that Dr Heather was to be suspended from practice for a year from 24 March 2009. There does not appear to have been an appeal against that decision, although Dr Heather has made it clear that he intends to seek permission to appeal out of time and possibly to make an application to the European Court of Human Rights. Although Dr Heather in those circumstances applied for the stay imposed in relation to these proceedings to be continued while the SDT’s disciplinary decision was reconsidered in some way or another, I refused his application on 12 October. At the moment, as I have explained to Dr Heather, it seems to me that I have to proceed on the basis that the SDT’s decision stands.
I should mention one preliminary issue. Dr Heather was suspended, as I have mentioned, from practice by the SDT. By virtue of section 15(1) of the 1974 Act, that operated to suspend his practicing certificate. Replacement date for Dr Heather’s practicing certificate was 31 October 2008. Dr Heather’s certificate therefore expired on that date. The question therefore arises whether there remains jurisdiction to entertain an application in relation to a practicing certificate which is no longer in force. I am prepared to accept that there is jurisdiction to hear the present appeal. The powers bestowed on the Master of the Rolls under section 13(4) of the 1974 Act seem to me at least to be arguably wide enough to conclude that such jurisdiction remains in the circumstances of the present case. Indeed it is right to record, for what it is worth, that my view is that there is such jurisdiction. But, at any rate, I proceed on the basis that there is.
If I may go into the details of this matter a little more. Dr Heather is a solicitor and chartered engineer. He retired in 2005, but before then he was a fulltime university lecturer. During his time as a lecturer he carried out what he describes as a pro bono sole practice for experience in support of academic and research work in legal systems. Following his retirement he took over the practice of a deceased solicitor Mr Anthony Patton, from whom he appears to have worked for some period as a consultant. He practiced as a sole principal under the title Ambrose Solicitors. The practice seems to have carried out work largely arising out of road traffic accidents. On 8 May 2006 Ms Elaine Robinson, of the SRA’s practice standards unit, visited Ambrose Solicitors. She produced a report dated 21 May 2006 identifying a number of concerns about Dr Heather’s practice and suggesting that in a number of regards it was being conducted in breach of the Solicitors’ Practice Rules 1990 and the Solicitors’ Introduction and Referral Code 1990. In light of those concerns an SRA adjudicator on 8 March 2007 referred Dr Heather’s practice to the SDT and, in light of what was regarded, at any rate by the SDT, as Dr Heather’s failure to provide a sufficient explanation concerning his conduct, the Law Society had vested in it a power to impose regulatory conditions on his next practicing certificate.
As already mentioned, on 30 September 2008 an adjudicator exercised that discretion and imposed the condition which forms the subject matter of this appeal. By that time the SDT had concluded that Dr Heather had a case to answer in respect of the matters referred to it. In that connection it might be convenient to have a slight detour into a point raised by Dr Heather in his concise and clear submissions today. He says that the concept of a case to answer in rule 6(1) of the Solicitors’ Disciplinary Proceedings Rules 2007 does not necessarily mean a case for the solicitor to answer. I do not agree. It seems to me quite clear that it means a case for the solicitor who is said to be in breach of the rules to answer. That is clear for rule 6(1), together with rule 6(2), 6(3) and 6(4), and it is no way called into question by the definition of case to answer, namely “an arguable or prima facie case” in rule 2(1). What it means is, quite clearly, how rule 6 works is that a solicitor member has to look at the papers to see whether they reveal a case for the solicitor to answer a prima facie case for him to answer, and, if not, that is the end of the matter, and if so the matter proceeds. It is a familiar process to any practitioner, not merely in connection with disciplinary proceedings.
I revert to the history of the matter. In imposing the practicing certificate the adjudicator said this:
“The Solicitors Disciplinary Tribunal has certified that Dr Heather has a case to answer. In due course after testing the evidence the Tribunal will make its own findings about Dr Heather’s conduct. In the meantime it remains the case that he is facing allegations of breaches of the professional rules of conduct of a serious nature. It is settled that when necessary to do so to protect the public or the reputation of the profession conditions can be imposed on a practicing certificate pending the Tribunal’s findings. The imposition of a condition in such circumstances is not intended to pre-judge the outcome but is a regulatory measure taken in the public interest.
Although Dr Heather claims to be ‘well versed’ in the 2007 Code I consider it necessary in order to ensure that he is aware of the current rules and regulatory requirements for him to attend training and for such training to be made a condition attaching to his practicing certificate. I am satisfied that such a condition is necessary in the public interest. The condition will not affect his present practising arrangement and I have allowed a considerable period of time for him to comply with it.”
The adjudicator had received a recommendation from the SRA’s case worker that a further condition should be imposed and namely one barring Dr Heather from holding client funds. That was rejected as unnecessary. As I have mentioned, the SRA appeals panel dismissed the subsequent appeal and refused to withdraw the condition on review, as it concluded the condition was both appropriate and proportionate. Following the imposition of the certificate conditions Dr Heather’s disciplinary proceedings came before the SDT, who held a two-day hearing and found that 11 of the 13 allegations of breaches of the two 1990 rules, and indeed of the Solicitors’ Accounts Rules 1998, had been proved (see in the matter of Michael Ambrose Heather No 9953-2008). As a result, as I have mentioned, Dr Heather was suspended from practice for twelve months. Dr Heather had made a number of submissions, although he has concentrated mainly in his oral submissions, and I think realistically concentrated on what I am going to treat as the forced point. But before dealing with that, it is right to mention first of all my relevance, and in that connection I cannot do better than quoting from what Sir Anthony Clarke said in a case in the matter of the Solicitors’ Act 1974, Lebow, Re a Solicitor No 13 of 2007[2008] EWCA Civ 411 at paragraph 23:
“This appeal is by way of a re-hearing, although one of the factors which successive Masters of the Rolls and I myself have taken into account in the past is the importance of the judgment of the adjudicator and the appeal panel. It is important to have in mind that the imposition of conditions on a practicing certificate is a regulatory decision and one based on the need to protect the public and the reputation of the profession. Conditions, however, if they are to be imposed, must be both necessary and proportionate.”
As the authorities make clear, the imposition of conditions are regulatory and not a disciplinary or punitive measure (see paragraph 25 of Awan v The Law Society [2003] EWCA Civ 1969). As regulatory measures they are imposed to ensure, as Sir Thomas Bingham MR put it in Re: A Solicitor Number 6 of 1993 as cited in Brandon v The Law Society [2008] EWCA Civ 969 at paragraph 32, that a solicitor who has run into trouble in a professional capacity is subject to a degree of oversight in the conduct of his professional life, at least until he has demonstrated over a period that he is not in need of such supervision to protect the public. The first point it is convenient to consider is Dr Heather’s contention advanced in written submission that the process adopted by the SRA was not compliant with the rules of natural justice. In that connection the relevant principles are set out in the judgment of Sir Anthony Clarke in Lebow v The Law Society to which I have referred. In that case, in paragraph 28 he said that an appeal to the Master of the Rolls from an SRA decision to impose a condition on a practicing certificate was:
“…not separate from [the process whereby practicing certificate conditions are imposed on the process provided by the Solicitors’ Act 1974] by rather if part of that process as is clear from section 13 of the 1974 Act. It is the appellate stage of the process and arises following the culmination of the internal process whereby the SRA exercised its jurisdiction to impose conditions. The right to bring the present appeal – and I interpose which in that case as in this was from a decision to impose practicing certificate conditions – from the adjudicator’s decision is provided by section 13(2)(b) of the Act which takes the form of an ordinary hearing renders the procedure whereby practicing certificate conditions are imposed viewed as a whole consistent with article six of the European Convention on Human Rights.”
The next issue it is convenient to consider is Dr Heather’s challenge to the vesting of a discretion to impose the practicing certificate condition. I cannot rule on that. My jurisdiction arises in respect of the imposition of practicing certificate conditions and does not apply to a decision taken by the SRA under section 12(1)(e) of the 1974 Act. No statutory appeal lies in such decisions with the Master of the Rolls. I suspect that the property venue for such an appeal would be by way of an application for judicial review. Of course, no such challenge was taken at the time. It is probably too late to raise it. It is only fair to Dr Heather that I do express a view on it rather than leave it as a procedural point, and I ought to say that if Dr Heather could raise it in these proceedings I would not have been persuaded by it. Section 12(1)(e) provides that it is for the Law Society to determine this question in its discretion whether an explanation given in respect for any matter relating to an individual solicitor’s conduct is “sufficient and satisfactory”. I can see nothing to suggest that the decision taken by the SRA, exercising the power of the Law Society counsel in reaching its decision to vest a discretion in the circumstances of this case, was such as to satisfy a challenge to it on jurisdictional or judicial review grounds.
The third point raised by Dr Heather is that the decision to impose a condition was in breach of what he describes to be a conciliation agreement of 3 April 2006. I have not seen such an agreement. The SRA has provided a photocopy of a letter from Dr Heather dated 3 April 2006. He refers in his letter to “requisitions and the Law Society letter dated 3 April 2006” and there is a further letter, dated 4 May 2006, from Dr Heather referring to a letter from a Mr Lebow of the Law Society of 3 April. I find it very difficult to see how the letter of 3 April 2006 could be said to amount to, or to contain, a conciliation agreement which would preclude, on any view, the SRA adjudicator in September 2008 properly taking a decision to impose a condition on Dr Heather’s practicing certificate. It seems to me that Dr Heather’s reply to that letter makes it clear that it was a letter seeking information, not proposing a conciliation, but in any event it is difficult to see how it could properly be concluded that there was a conciliation proposal given that, at that time, there was no dispute between the Law Society and Dr Heather, or there was at that stage the start of a monitoring and investigation process.
Furthermore, there is nothing in Dr Heather’s reply to the letter to suggest that he was accepting any proposals in the 3 April letter. He simply answers some questions. But even, assuming that Dr Heather was right on this as a matter of language and there was a conciliation agreement, it seems to me if it had been offered and accepted it could not better the SRA and its adjudicator’s discretion when the question whether to impose a practicing certificate arose. In Malik v The Law Society No 2 of 2002 [2002] EWCA Civ 490 the issue was whether a Law Society adjudicator’s decision to grant the appellant’s registration as a foreign lawyer was precluded the Law Society from later performing a statutory duty under section 3. In essence what was said was that the adjudicator’s decision to grant registration finally determined the issue of the appellant’s character and suitability. Lord Phillips MR at paragraph 39 accepted the Law Society’s submission that it could not be precluded from carrying out its statutory duty under section 3 of the 1974 Act. He held that the adjudicator’s prior decision did not preclude the Law Society from carrying out its duty which as he put it was “imposed in the public interest”. It seems to me clear that this statement of principle is applicable to the present situation.
Dr Heather’s submission here is analogous to that put on behalf of the appellant in Malik v The Law Society to which I have referred, namely that the SRA adjudicator is precluded from carrying out its duty imposed in the public interest to assess whether it is necessary to impose practicing certificate conditions, in this case due to a conciliation agreement. In both cases the point is essentially that there is an estoppel but there cannot be an estoppel which prevents somebody from carrying out his public duty when that duty is imposed for the public interest. The fourth point which, as I have mentioned, is the one that Dr Heather has, I think, correctly and helpfully concentrated on in his written submissions, is that it was unnecessary to impose a condition on the practicing certificate in this case. As his prompt attendance on the course demonstrates, he would have been prepared to comply with, as it were, a quiet word suggesting that he goes on the course rather than having the embarrassment and disadvantage of the matter recorded on is practicing certificate. He puts it this way: that imposing the condition was making a mountain out of a molehill and has led to other present proceedings. I accept that if a quiet word had been had then the present proceedings would not have happened and to that extent Dr Heather is right. The imposition of the condition, rather than the quiet word, has resulted in these proceedings.
But I think the Law Society and the SDT can say with equal force -- and indeed I am bound to say, as a matter of common sense, with more force -- that it is not so much the imposition of the condition that has led to these proceedings but Dr Heather’s objection to the imposition of the conditions. The imposition of a condition on a certificate is a serious matter. I can see that, but I do not accept that it is a severely embarrassing matter for a solicitor. Common sense and general experience suggests to me that a solicitor is rarely asked to produce his certificate and rarely has to show it. I am told that if you examine the Law Society’s website and look for a solicitor you will find all the solicitors listed. It does not recorded whether any particular solicitor has a qualified practicing certificate. It is true that if you look on the SRA website you could see which solicitors have been subject to a condition. I would have thought it rare in the extreme, and Dr Heather has not suggested it has happened to him, that a solicitor is asked by a client for his certificate. I suspect that if he is asked for a certificate the relations are already bad enough for the solicitor’s reputation not to be affected and his client advised by a qualification anyway. The only occasion Dr Heather can point to when he has been asked for his certificate was when he appeared in court for somebody on an informal basis and the judge wished to be satisfied that he was a solicitor. I can see that it would have been mildly embarrassing if his certificate had been qualified, but no more than that.
So I think, with due respect, it is he who is making a mountain out of a molehill. But there is a wider point here. The requirement was not imposed on Dr Heather simply for his benefit. It was imposed on Dr Heather for the public benefit and I can see a powerful argument. I do not say it is an argument which would apply in every case, but I do see a powerful argument for saying that that sort of thing should be recorded on the practicing certificate. We live in a society where freedom of information is at a premium, and quite rightly at a premium, in a way it has not been before, when people are entitled to know (if they want to know) details which might affect them of a person in whom they are entrusting their affairs or seeking advice.
It seems to me entirely proper that consideration should be given to any requirement imposed on a solicitor when deciding whether to record it on his certificate. In the present case, of course, given that this is a rehearing, I can properly take into account the SDT’s decision in the proceedings against Dr Heather. It is plain that the nature of the matters referred to the SDT -- which were in all but two respects found proved after a contested hearing -- were serious, as is most easily demonstrated by the sad fact that Dr Heather was suspended from practice for a year.
I think it is impossible, with all due respect to Dr Heather, in light of that seriously to suggest that the imposition of the condition was not something which was appropriate in this case. Fifthly, and connected with that, is the question of whether the condition, bearing in mind what it provided, was reasonable and proportionate. The first point to make is that the condition was not as strong as that which had been proposed by the case worker. As Mr Marriott, who appears for the Law Society and with whose assistance I am grateful, points out, that tends to support the proposition that this was a considered and moderate reaction by the adjudicator. It can be said, I suppose, that the condition was so moderate, namely simply requiring Dr Heather to attend a course which he properly did, that it was not worth recording on his certificate. That is almost criticising the Law Society and the regulatory bodies for being too moderate, but in my view one of the reasons that you could justify being rather moderate in the condition imposed was that there was the added factor that it was being recorded on the certificate. I certainly cannot see any basis for suggesting that the imposition of the requirement and the recording it by way of condition was either unreasonable or disproportionate.
Finally, there is the submission made by Dr Heather that the SRA was wrong to publicise its decision. The first point is, of course, that that has no bearing on this appeal. The question of publicising it was a matter for the SRA and I suppose could have been, in theory, judicially reviewable. I am bound to say in light of the conclusions I have expressed as to the reasonableness of including the matter as a condition on his certificate rather than having a friendly word, it is namely freedom of information and the right of the public to know. I find it impossible to accept that Dr Heather has any grounds for complaining about the SRA’s publication of the decision. In all these circumstances, with gratitude for the economic way in which Dr Heather made his submissions and with gratitude also to Mr Marriott in his reply submissions which were equally concise, I would dismiss this appeal.
Order: Appeal dismissed; costs summarily assessed at £4,500 to be paid within 4 weeks
…………………………………….
LORD NEUGERGER
THE MASTER OF THE ROLLS
MR MARRIOTT: My Lord, there is an application for costs of the SRA against Dr Heather.
LORD NEUBERGER: So I see.
MR MARRIOTT: There is a schedule which you have seen.
LORD NEUBERGER: Yes, I have looked at it.
MR MARRIOTT: I have …
LORD NEUBERGER: I have not immediately got it to hand. Yes I have now, thank you. It is about £4,600 … £4,800?
MR MARRIOTT: Yes. I should make it plain my Lord that, those sitting behind me, there is no claim for their attendance today.
LORD NEUBERGER: Well what do you say, Dr Heather, to that?
DR HEATHER: As you said my Lord, if there had been a quiet word there would never have been any costs.
LORD NEUBERGER: Well it seems to me that unfortunately for you, you have lost and the normal rule is that you have to pay the costs if you lose.
DR HEATHER: Yes.
LORD NEUBERGER: There are two questions. Have you got any special reason for not paying costs, and secondly, if you have not, what do you say about the sum being claimed?
DR HEATHER: Well as I have already said about this, all the excessive work in all these procedures which are certainly, as Mr Marriott was conducting in the hearing before the tribunal … I cannot really see it needed very much work at all. But also as an officer of the court I think … I mean, doing what I … these are costs which have arisen in my employment. And I don’t see that they should fall personally on officers of the court and this is like going into … talking to the boss about some grievance at work.
LORD NEUBERGER: Uh huh.
DR HEATHER: So the … the review to the … the appeal to the Master of the Rolls should be as you said a domestic matter and should not be subject to a normal costs reward. Particularly here where none of it would have arisen with that quiet word.
LORD NEUBERGER: I have dismissed Dr Heather’s appeal. In those circumstances, not unsurprisingly, Mr Marriott asks for the costs. I can see no good reason for acceding to Dr Heather’s suggestion, which is making no order for costs. I have some sympathy for Dr Heather. I can see how he feels that this is, as he put it, taking the matter further up the line in terms of talking to I think he said the boss. But I am afraid these are legal proceedings. Of all people a lawyer is somebody who should appreciate that if he takes an appeal to a court -- and with masses of previous cases where costs have been ordered Dr Heather must have been aware, and if he was not he only has himself to blame -- that he was at risk on costs. While there is an element in my mind, I have to say, of kicking a man when he is down, I think it would be wrong in principle for me not to award costs. The question then is how much? The matter has taken an hour in court but Mr Marriott can say that, bearing in mind the issues that were raised, if they had all been pursued it would have been more work for him. I would like to, from Dr Heather’s point of view, cut down the costs of claim, which are £4,829.31. But I do think that when the court receives what it regards in all fairness as an entirely reasonable claim for costs, going through it, looking at the number of hours spent and the rates and the charges, I am bound to say that I think it would simply be unfair on the Law Society if I was to cut these costs significantly. I will run them down to £4,500 but I certainly do not think I should go further than that to assist Dr Heather. But I do appreciate that if this matter were to go to assessment in the normal way the chances are there would be some reduction, but doing the best I can it simply would be unfair to reduce it below £4,500. So I will award £4,500.
MR MARRIOTT: Thank you my Lord.
LORD NEUBERGER: Thank you both very much. How long do you want to pay the costs, Mr … Dr Heather?
DR HEATHER: Just the normal …
LORD NEUBERGER: Four weeks?
DR HEATHER: 28 days, yes.
LORD NEUBERGER: Alright?
MR MARRIOTT: I am content with that my Lord.
LORD NEUBERGER: Good. Thank you very much and thank you very much for letting me have the book. I’ll make sure you get it back. Thank you.