Neumans LLP v The Solicitors Regulation Authority

This is an appeal by Neumans LLP from an order of Newey J dated 25^th September 2017. The judge dismissed the appellant’s application made under the Solicitors Act 1974 (“the 1974 Act”) for the intervention into its legal practice to be withdrawn and ordered the appellant to pay the respondent’s costs. The principal issue on this appeal is whether and, if so, to what extent the common law principles of procedural fairness (historically referred to as the rules of natural justice) are incorporated into the procedure for intervention into a solicitor’s practice. This is the first time that this question has been considered by the Court of Appeal since the 1974 Act was amended to allow a solicitor’s practice to be conducted through the medium of an LLP. The appellant contends that the procedure followed in this case did not sufficiently respect the common law requirements for procedural fairness or alternatively that the judge was in any event wrong to hold that the intervention was both rational and proportionate in all the circumstances.

The appellant law firm was established in 2006 with three members, Ms Sarwa Sabir, Mrs Chitra Selby and Mr Nabeel Sheikh. The firm has its main office in London and employed thirty-six fee earners and seven support staff. At its inception it was known as Sabir Selby LLP. Ms Sabir joined the firm soon after being admitted to the Roll of Solicitors in 2005. She married Mr Sheikh on 5^th January 2006. Between March 2007 and December 2015 Ms Sabir was away from Neumans on maternity leave and took no part in the operation or management of the firm. Mr Sheikh managed the practice during this period. On 31^st March 2008 Ms Selby also left the firm, leaving Ms Sabir and Mr Sheikh as equal equity partners. It was at this point that the firm was renamed Neumans. Ms Sabir returned to work at the firm on a part-time basis in December 2015. In 2016 she became the managing partner of the firm on a full-time basis.

Ms Sabir was assisted in her role as managing partner by a full-time practice manager, IT manager and head of accounts. This was the central management team of Neumans. In addition to this there were six department heads, one of whom was Mr Sheikh. He was also the compliance officer for legal practice (COLP) and the compliance officer for finance and administration (COFA). He maintained these positions until his resignation on 21^st June 2017.

The 1974 Act was amended by the Administration of Justice Act 1985 (“the 1985 Act”) so as to enable the Law Society to permit a solicitor’s practice to be conducted through what are described in s.9 as recognised bodies. The regulation of such bodies is carried out through rules made by the Law Society under s.9(1). Section 9(2)(f) also provides for rules made under any provision of the 1974 Act to have effect in relation to recognised bodies with such additions or modifications as are necessary. The power includes the making of amended rules to encompass the conduct of managers and employees of the firm and for the appointment of a person or persons to monitor compliance.

In relation to the Law Society’s power to intervene in the practice of a solicitor, paragraph 32 of Schedule 2 to the 1985 Act provides as follows:

“Subject to sub-paragraph (2), where—

(a)

the Society [i.e. the Law Society] is satisfied that a recognised body or a manager of such a body has failed to comply with any rules applicable to the body or manager by virtue of section 9 of this Act; or

…

(d)

the Society has reason to suspect dishonesty on the part of any manager or employee of a recognised body in connection with

(i)

that body's business,

(ii)

any trust of which that body is or was a trustee,

(iii)

any trust of which the manager or employee is or was a trustee in his capacity as such a manager or employee, or

(iv)

the business of another body in which the manager or employee is or was a manager or employee or the practice (or former practice) of the manager or employee; …

…

the powers conferred by Part II  of Schedule 1 to the 1974 Act shall be exercisable in relation to the recognised body and its business in like manner as they are exercisable in relation to a solicitor and his practice.”

Paragraph 35 of Schedule 2 also states:

“In connection with the application of Part II of Schedule 1 to the 1974 Act for the purposes of this Schedule, in that Part of that Schedule—

(a)

any reference to the solicitor or to his practice shall be construed as including a reference to the body in relation to which the powers conferred by that Part of that Schedule are exercisable by virtue of paragraph 32, 32A, 33 or 34(1) of this Schedule or to its business (or former business) as a recognised body;

(b)

any reference to paragraph 1 of that Schedule shall be construed as including a reference to paragraph 32 or 34(1) of this Schedule;”

The Law Society therefore has in relation to a recognised body all the powers of intervention conferred on it by Part II of Schedule 1 to the 1974 Act but the recognised body has the right (like any solicitor) to apply to the High Court for an order directing the Law Society to withdraw its notice of intervention: see the 1974 Act, Schedule 1, Part II, paragraph 6(4).

The intervention into Neumans arose from dealings between Mr Sheikh and a Mr Hitendra Patel. In January 2006 Mr Patel retained Neumans to assist in his defence in criminal proceedings concerning the unlawful marketing of a medicinal product. He was convicted in November 2007 but later appealed and had his convictions quashed in November 2009. On 20 January 2010 the Court of Appeal made an order permitting him to recover his costs from central funds. The costs agreements made between Mr Patel and Neumans are complicated. Originally it was agreed that Neumans would charge for their services at rates of between £150 and £350 per hour plus VAT. But in January 2007 there was an agreement that Neumans could charge higher hourly rates against an estimate that the total costs for the trial were likely to be in the region of £1.25m plus VAT of which the firm’s own costs would amount to about £900,000 plus VAT. At about this time Neumans also orally agreed with Mr Patel that they would cap their costs at £275,000 plus VAT. On 13 October 2009 Mr Sheikh and Mr Patel entered into and executed a deed of variation which removed this cap. The deed stated that the oral capping agreement was not binding and had not therefore varied the original retainer. The revised retainer was not referred to. The deed then proposed higher hourly rates and provided that these higher rates would be applied retrospectively to all work carried out on Mr Patel’s defence. The deed was signed by Mr Sheikh and witnessed by Ms Sabir. The appellant submitted to the Court of Appeal a costs bill of £2,916,396 plus VAT on 27^th June 2011. Substantial documentation was provided to the Court of Appeal but the deed of variation and capping agreement were omitted. The appellant later received, in December 2011, £500,000 out of central funds as an interim payment.

On 28 June 2012 the Court of Appeal asked Master Egan QC, the Registrar of Criminal Appeals, to carry out a formal investigation into various matters relating to Neumans’ bill. He produced a report dated 20^th May 2015 in which he explained why he was satisfied that there was clear evidence of fraud in relation to a number of aspects of the bill and the supporting documentation. The following is a summary of his main conclusions:

“1.

Claims for 2,783 hours of the 3,047 hours Crown Court preparation by NS [i.e. Mr Sheikh] between 27 January 2006 and 11 September 2007 are false.

2.

The sheets that support NS’s claim for 102 hrs work in the Court of Appeal bear a striking similarity to the sheets for the claims for the 2783 hours. This could support an inference that they too are false.

3.

The claim made for the Noting Brief is an example of dishonest opportunism in claiming over £300,000 which HP [i.e. Mr Patel] would never have contemplated agreeing to pay himself.

4.

The creation of the invoice for £2,916,396.22 dated 10 June 2011 for submission to the [Court of Appeal (Criminal Division)] with the deliberate non-disclosure that HP had paid 8 solicitor and own client bills for work up to 16 November 2007 (‘the 8 invoices’) was dishonest and designed to facilitate a payment from Central Funds of far more money than the client was entitled to recover under section 16(6) Prosecution of Offences Act 1985.

5.

The evidence of HP in his affidavit:-

(i)

swearing that he was content to pay £2,188,166 (ex VAT) to the solicitors retrospectively without any legal obligation to do so, and

(ii)

deliberately failing to disclose the 8 invoices

was dishonest and would support a clear inference that he was also involved in a fraud to obtain public funds.

6.

If the jury were satisfied of any of the above that could support a factual conclusion that the retrospective variation agreement of March-October 2009 was designed to facilitate the dishonest claim.”

The report was sent to Neumans on 21 May 2015. On 19 December 2016 the Court of Appeal conducted a fact-finding hearing to decide whether or not the order of 20 January 2010 should be set aside. At the hearing (see [2016] EWCA Civ 2001) both Neumans and Mr Patel were represented by counsel. The Lord Chancellor had filed a statement of case and evidence in support of his application that the costs order be rescinded but neither Mr Patel nor Neumans filed any evidence in reply and neither opposed the order being set aside. In his judgment Simon LJ said:

“81.

The present position is as follows. The Lord Chancellor submits, and Mr Patel and Neumans both accept, that the DCO should be revoked. In our view, this is plainly right. The facts are set out in the Lord Chancellor's case and in the witness statements of Mr Fitzgerald-Morris, including the points by reference to the detail in the Registrar's report and the conclusions are clear. They have not been answered by either Mr Patel or Neumans and they are in no position to contest the facts. If the true facts had been known, we are clear that the court would not have made the original DCO. Additionally on the basis of largely unchallenged facts, as they have now belatedly emerged set out in the Lord Chancellor's case and evidence, we are quite satisfied the DCO should be revoked and we so order.”

Accordingly, the Court of Appeal set aside the costs order in Mr Patel’s favour and ordered that Mr Patel and Neumans were jointly and severally liable to repay the sum of £500,000 by 23 January 2017. At the conclusion of the hearing the Court indicated that it proposed to send the papers in the case to the Director of Public Prosecutions and to the Solicitors Regulation Authority (“SRA”). Mr Patel repaid the £500,000 on 8 January 2017.

On 16 January 2017 Master Egan sent his 2015 report to the SRA. On 21 March 2017 it served on Ms Sabir a notice under s.44B of the 1974 Act requiring her to provide information and documents relating to the matter together with an explanation of her involvement in it. On 7 April 2017 she responded that Mr Sheikh had been in charge of the day-to-day running of Neumans whilst she was on maternity leave and that during this period he had had control of the firm’s finances. It was, she said, “his terrain”.

On 16 April 2017 Neumans then served on the SRA a report which set out to refute point by point the six principal conclusions of Master Egan referred to earlier. As later summarised by Mr John Quentin, the regulatory supervisor appointed to investigate the matter by the SRA, the firm’s response was:

“(a)

Master Egan wrongly concluded that 91% of the hours spent preparing the defence to the Crown Court proceedings were false. The Firm [i.e. Neumans] does not accept the conclusion that the lack of contemporaneous notes by Mr Sheikh must mean the work was not done. If Master Egan is correct in his conclusion then it would mean that only 38 minutes per working day were spent preparing the defence to the Crown Court proceedings. The Firm considers that to be clearly wrong given this case was deemed to be the biggest worldwide conspiracy ever brought to trial.

(b)

The Firm does not accept the criticism that Mr Sheikh’s attendance notes supporting his work for the 2,783 claimed hours in preparation of the defence to the Crown Court proceedings bear a striking similarity to those supporting his claim for 102 hours in the Court of Appeal proceedings. The Firm accepts as a fact that the attendance notes are similar in style and content. However, the Firm states that fact does not equate to evidence of the work not being done. This fact is reflective of the similar nature of the activities being done, for example, reading and considering documents.

(c)

The Firm considers that the basis of Master Egan’s allegation that the claim of over £300,000 for a noting brief was required to attend the trial of co-defendants of Mr Patel (the trial of which took place prior to Mr Patel’s trial) in order to better prepare Mr Patel’s defence. The Firm accepts that at the time of this earlier trial Mr Patel did not contemplate having to pay in excess of £300,000 for the noting brief. This was because of the existence of the Capping Agreement. At the point of retrospectively varying the fees (with the Deed of Variation) Mr Patel was then in a position to assess the value of work undertaken by the noting brief and, ultimately, pay for that work.

(d)

In relation to Master Egan’s conclusion that the submission of the bill of costs and the deliberate non-disclosure of the eight invoices by the Firm was dishonest, the Firm submits that the non-disclosure was not dishonest. Instead, the Firm chose not [to] disclose the invoices in order to avoid confusion. The Firm considered the invoices to be unenforceable due to the retrospective effect of the Deed of Variation so instead treated the payments made against those invoices as payments on account against the final bill. Further, the Firm is of the view that it did disclose the invoices when it was asked for them.

(e)

Master Egan’s fifth conclusion was in relation to Mr Patel’s affidavit, which the Court of Appeal ordered him to prepare in support of the DCO [i.e. defendant’s costs order]. Master Egan concluded that Mr Patel’s evidence that he was content to pay the final invoice in the full amount and his evidence about the deliberate non-disclosure of the invoices he paid was dishonest. In response to this the Firm repeated its points raised in response to the fourth conclusion. The Firm also directed the Supervisor to a witness statement prepared by Mr Patel to support the Firm’s report to the SRA. Specifically, the Firm provided this statement in relation to Master Egan’s conclusions about the non-disclosure of the eight invoices. As can be seen, Mr Patel’s witness statement does not address this point.

(f)

Master Egan’s sixth and final conclusion is that the Deed of Variation was designed to facilitate a dishonest claim on Central Funds. In response to this point the Firm stated that it took advice from a highly experienced costs lawyer with specific experience in retrospective variation agreements (Mr Roger Mallalieu). Further, Mr Patel was strongly advised by Mr Sheikh to take independent legal advice but he chose not to.”

Mr Quentin prepared a report dated 17 May 2017 in which he recommended intervention into the practice of Mr Sheikh, Ms Sabir and Neumans on the basis that there was reason to suspect dishonesty and that there had been breaches of the SRA Rules. The report was sent to Neumans’ solicitors (RadcliffesLeBrasseur) on the same day. This led to correspondence between RadcliffesLeBrasseur and the SRA in the course of which Mr Sheikh offered to step aside from the management of Neumans whilst the SRA investigation continued and in particular to stand down as the COLP and COFA for the firm. These are regulatory functions provided for under rule 8.5 of the SRA Authorisation Rules 2011 and are mandatory for a recognised body such as Neumans. The individuals appointed must be a manager or employee of sufficient seniority; in a position of sufficient responsibility to fulfil the role; and be approved by the SRA to carry out the role which involves taking steps to ensure that the body and its managers and employees comply with obligations imposed on them by the SRA rules. This involves the duty to self-report instances of material non-compliance.

Ms Sabir was represented by Mr Andrew Hopper QC who made separate representations on her behalf. Ms Sabir also provided a witness statement to support her case. Mr Quentin provided his own comments on these representations in a memorandum of 15 June 2017 in which he continued to recommend intervention. The memorandum was sent to RadcliffesLeBrasseur and to Mr Hopper who then made further written representations on their client’s behalf. RadcliffesLeBrasseur informed the SRA that Mr Sheikh had resigned as Neumans’ COLP and COFA and had also given notice under s.4(3) of the Limited Liability Partnerships Act 2000 so as to cease to be a member of the firm with effect from 21 June 2017.

Notwithstanding these changes and the various representations made to the SRA, the Law Society’s Adjudication Panel resolved to intervene in the practice of Neumans and that of Mr Sheikh. They determined that there was “strong evidence” of misconduct by Mr Sheikh designed to enrich both him and Neumans. There was reason to suspect dishonesty on the part of them both and the firm had also failed to comply with many of the relevant SRA rules. But the Adjudication Panel decided not to intervene in the practice of Ms Sabir. They said:

“We shall give Ms Sabir the benefit of some considerable doubts that we have about her evidence. We do not say that there are no grounds to suspect dishonesty. We do not make a finding that [Ms] Sabir was honest or not. Simply put, we do not propose to intervene into the practice of Ms Sabir on the ground of reason to suspect dishonesty.”

The Adjudication Panel gave the following reasons as to why it was necessary in their view for the Law Society to exercise its power of intervention in relation to the practices of Mr Sheikh and Neumans:

“9.16

We have carefully considered whether it is necessary to intervene into the individual and former practice of Mr Sheikh and the Firm [i.e. Neumans], and have balanced the need to exercise the powers of intervention in the public interest against the serious consequences of the intervention for him, Ms Sabir, the Firm’s employees and clients.

9.17

We are satisfied that it is necessary to exercise powers of intervention in this case because there is strong evidence which suggests that the misconduct of Mr Sheikh is serious, involves the public at large and large sums of public money.

9.18

The misconduct was intentional and pre-meditated and appears to have been designed to enrich Mr Sheikh and the Firm.

9.19

The misconduct had its origins, it seems, in 2009 when the idea of the Deed of Variation was conceived and then executed. However, the consequences of the misconduct continue to the present, as can be vividly seen from the Court of Appeal’s judgment of 19 December 2016.

9.20

The Firm was slow to self-report matters which ought to have been reported years ago. It seems that it was only after an FI investigation started, in the comparatively recent past, that the Firm self-reported.

9.21

Mr Sheikh has recently resigned as the COFA and COLP. He has also, very recently indeed, resigned as a member of the Firm. This removes some risk to the Firm and to the public, since a person who appears to us to be wholly and obviously unsuited to be a COFA and a COLP is no longer in those roles. His resignation as a member of the Firm also provides an apparent degree of reassurance.

9.22

However, Mr Sheikh is still at large, and he can still influence the way in which the Firm is managed and run, albeit with a degree of less viability, and with less personal liability (as a COLP, COFA and member) than before. He poses a continuing threat to it that is not extinguished by him resigning in the way that he has.

9.23

Moreover, this was, until very recently, a firm with two owners: Mr Sheikh and his wife, Ms Sabir. They ran it together. Mr Sheikh’s relationship with the Firm is so close and their respective interests and history so closely intertwined that no meaningful and realistic distinction can be drawn between him and the Firm.

9.24

We have been asked to accept that (i) Ms Sabir is now in charge of the Firm and she is best placed to continue to do so; (ii) there is no risk any longer because Mr Sheikh is not in any recorded and regulated roles. We do not accept this. For years, and particularly when Ms Sabir has been on maternity leave, Mr Sheikh has run the Firm. Significantly, he has controlled the finances. He has done this without any robust third party oversight.

9.25

Equally significantly, Ms Sabir, when recently describing her role as the Managing Partner in response to the Production Notice, does not mention any financial management role at all. While her list of functions is not prescriptive, the fact that there is no mention of fiscal control at all is telling.

9.26

The fact that Mr Sheikh has now resigned as the COFA does not mean that his ability to exercise control and influence of the Firm’s finances is restrained. It means that he is no longer accountable to the SRA about them as COFA. His legal obligations as a member have ceased.

9.27

We consider that Mr Sheikh’s breaches of the rules, principles and outcomes identified above creates an unacceptable risk to clients and the wider public. On balance, we are satisfied that the need to intervene into the practice to protect clients and the public interest outweighs the serious implications of intervention for Mr Sheikh and Ms Sabir.”

Prior to making its decision the Panel received a request from Ms Sabir to attend in person and to make representations. The request was declined. In [2.1] of its Decision, the Panel said:

“Ms Sabir has requested that she attends before us for interview to make representations. We have considered whether we have all the information and evidence that we require to enable us to make a decision in respect of this matter. We have extensive and detailed representations from Ms Sabir’s legal representative, in addition to the bundle of evidence. We do not consider it necessary to invite her for interview as we have sufficient evidence and information to make a decision.”

Notice of intervention was given to Mr Sheikh and Ms Sabir on 30 June 2017 pursuant to Part II of Schedule 1 to the 1974 Act and the intervention was effected on 3 July 2017. Neumans is now in administration.

On 10 July 2017 Neumans applied for the notice of intervention to be withdrawn. In its claim form (which was supported by a witness statement from Ms Sabir) the firm challenged both the legality and grounds of the intervention process as well as its proportionality. Newey J rejected the submission that the common law requirements of procedural fairness remain operative within the statutory framework governing intervention in a solicitor’s practice. It is not (and cannot be) suggested that the Law Society did not have reason to suspect dishonesty in this case on the part of Mr Sheikh. It was contended by Ms Morris QC for Neumans that this was not enough because the reference in paragraph 32(1)(d) to “dishonesty on the part of any manager” is one to someone who remained a manager at the time when the notice of intervention was given. This would not include Mr Sheikh. Newey J rejected this submission. He held that paragraph 32(1)(d) is wide enough to include someone who was a manager or employee when the relevant conduct took place regardless of whether he remains one. The validity of the notice of intervention given under Part II of Schedule 1 to the 1974 Act could therefore only be challenged if the Law Society was obliged at common law to adopt some other or additional procedure to ensure that the process was fair and failed to do so. Otherwise questions of proportionality are matters to be considered by the Court on a paragraph 6(4) review rather than as in limine questions going to the legality of the intervention process.

Having decided on the basis of the authorities that the rules of natural justice did not apply and that the safeguard for Neumans lay in the firm’s right to apply to have the intervention lifted, the judge then went on to consider whether the intervention should be withdrawn. This enabled him to take into account all the changes made in relation to the management of Neumans including, in particular, Mr Sheikh’s resignation as a member of the firm and the proposals as to who should take on the roles of COLP and COFA.

Notwithstanding these developments the judge decided that the intervention should continue. Neumans now appeal on three grounds:

It is not in dispute that the common law imposes a duty of fairness (which may include a duty of prior consultation) in relation to the exercise of a statutory power whose exercise affects individual rights: see Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180. The content of that duty will differ according to the context and circumstances but, as a general rule, fairness will require the party affected to be given advance notice of the case it has to meet or the reasons for the proposed exercise of the power and an opportunity to respond: see R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 at 560; Al Rawi v Security Service [2011] UKSC 34 at [89]. In Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39 Lord Neuberger of Abbotsbury said:

“[179] In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute.”

The question whether the right to be consulted and heard in advance of the exercise of the power is by implication limited or modified often arises when the statute conferring the power also includes some mechanism for the exercise of the power to be challenged or reviewed normally after it has been exercised. In Bank Mellat the Treasury used the power contained in s.62 and Schedule 7 to the Counter-Terrorism Act 2008 to impose financial restrictions which prohibited dealings with Bank Mellat on the ground that the development of nuclear weapons by Iran posed a risk to the national interests of the United Kingdom. Section 63 of the 2008 Act gave any person affected by the decision the right to apply to the High Court to set it aside. The Supreme Court, by a majority, held that the rights conferred by s.63 did not exceed what was already available by way of judicial review and did not exclude the duty of prior consultation which was in the circumstances necessary to achieve fairness.

A significant part of the reasoning in Bank Mellat centred on the fact that the exercise of the power depended on particular factual allegations which could have been the subject of consultation with the bank without causing any difficulty. Neumans take a similar position in the present case. Although Ms Morris acknowledges that there will be cases of suspected dishonesty which involve the misuse of client money and where the need for swift action excludes any possibility of prior consultation, this, she says, was plainly not one of those cases. The conduct complained of took place in 2011 when the bill was submitted to the Court of Appeal. Master Egan did not produce his report until May 2015. The Court of Appeal finally set the costs order aside in December 2016 and reported the matter to the SRA but the investigation (which involved correspondence and other communications with Neumans and its solicitors) lasted until June 2017 and the intervention finally took place in July. There was no immediate danger to clients’ funds and ample time in which to provide Neumans with details of all the matters which the Law Society relied on as justifying intervention and in which to allow Neumans to provide a response. The variety of circumstances in which the power of intervention becomes exercisable is therefore inconsistent, she says, with the exclusion by implication of any duty of prior consultation and there were no particular circumstances in this case to make a process of prior consultation either impossible or impractical. By way of comparison she took us to the procedure under the Medical Act 1983 for dealing with allegations of misconduct against doctors. Where the General Medical Council after investigation decides to refer the complaint to a Medical Practitioners Tribunal (MPT) it must notify the doctor concerned and even if it considers that an interim suspension order should be made the doctor is informed and the matter has to be referred for decision to an Interim Orders Tribunal. These are often cases where the health of patients and their safety are at stake but the right of the doctor to respond to the allegations is not excluded.

In the case of intervention in a solicitor’s practice this is not, however, untrodden ground. In Giles v Law Society (1996) 8 Admin LR 105 the Law Society intervened in a solicitor’s practice on grounds of suspected dishonesty. No particulars of the suspected dishonesty were contained in the notice to intervene or the accompanying letter and the report of the investigating officer on which the intervention was based was not disclosed to the solicitor until later. But the Court of Appeal held that the rules of natural justice had no application to intervention in a case of suspected dishonesty: Nourse LJ (at page 113) said:

“In Yogarajah v The Law Society Walton J considered the provisions of Sch 1 to the 1974 Act in the light of Lord Hailsham's observations. He summarised his views thus:

"This provides a simple and sensible statutory scheme: on one hand enabling the Law Society to act swiftly when the possibility of mischief becomes apparent and, on the other hand, enabling the solicitor, against whom such action is taken, to apply as swiftly to the Court to obtain a suspension of such activity on its behalf. I see no necessity for complicating this scheme and so, in effect, depriving it of its essential characteristics - swiftness of action - by the introduction of the concept of natural justice into a category of situations - a reason for suspicions - into which it does not sensibly fit."

Those observations were, with others of Walton J in the same case, approved by Balcombe LJ (with whose judgment Oliver and Neill LJJ agreed) in Buckley v The Law Society, unreported, 9 October 1985.

Mr McCulloch seeks to distinguish the decision and reasoning of Walton J in Yogarajah v The Law Society on the ground that what the judge was there considering was the more extreme argument that the solicitor must be given a fair opportunity to meet the case against him before the notice of intervention is given. That is not a valid ground of distinction. The judge's view, approved by this court in Buckley v The Law Society, was that the rules of natural justice do not apply at all to the giving of a notice of intervention on the ground of suspected dishonesty. In my view, on a careful construction of the provisions of Sch 1 of the 1974 Act in the context in which it was passed, and for the reasons stated by Walton J, there is no requirement, at the time that a notice of intervention under para 1(1)(a) is given, for the solicitor to be given particulars of the suspected dishonesty or of the reasons for suspecting it. If he applies to the High Court under para 6(4), he will have the opportunity, as the appellant did here, of knowing what the case against him is and of answering it. Under these provisions that is the point of judicial determination when, in the words of Lord Hailsham, the solicitor will be given a reasonable opportunity of presenting his case.”

Sedley J said:

“Mr McCulloch, however, argues that the preferences for full and early disclosure expressed by Mr Justice Carnwath are entitled to the force of law, with the consequence that breach of them vitiates an intervention such as the present one and requires the court ex debito justitiae to exercise its power to direct withdrawal. He relies, correctly for this purpose, on the classic decision of the Court of Common Pleas in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 and on the judgment of the Privy Council in Kanda v Government of Malaya [1962] AC 322, [1962] 2 WLR 1153. The latter gives life to the near-truism that a right to be heard is worthless unless the individual affected knows what is being said against him. The former, most memorably in the judgment of Byles J, is authority for the proposition that in construing and applying a statutory regime the common law will insist upon a right to be heard where the statute is silent. The doctrine is generous in its willingness to insist on supplementary forms of justice in public administration without requiring the individual to go down the thorny path (which belongs more properly to contract law) of seeking out implied terms; but it is not unbounded, and it requires the court to have careful regard to Parliament's prescriptions, especially when these do provide for an opportunity to be heard, albeit not at the stage which the individual would have preferred: see Wiseman v Borneman [1971] AC 297; Pearlberg v Varty [1972] 2 All ER 6.

Applying these principles to the legislation which we are now considering, it seems to me that the want of any provision in Sch 1 for notice to be given to the solicitor of particulars of a suspected breach other than a failure to comply with certain specified rules demonstrates not an omission which (in the phase of Byles J) it is for the justice of the common law to supply, but an intelligible scheme of professional self-regulation for the protection of clients and the public which defers, but does not deny, a due opportunity for the solicitor to know the case against him or her and to challenge it and its consequences before a court of law.”

The reference made in the last part of this extract from the judgment of Sedley J to the position of intervention in the case of a breach of the rules reflects the fact that at that time the Law Society was required under paragraph 1(2) of Schedule 1 to the 1974 Act to give the solicitor prior notice of the grounds of intervention in such cases. The express requirement to give such notice has now been removed from Schedule 1 but, as Newey J observed, it is difficult to see how the removal of the requirement to give notice can be interpreted as an indication that Parliament intended to increase rather than diminish the scope of any common law obligation of prior notice and consultation. Certainly that was the view of Sharp J (as she then was) in Gadd v The Law Society [2012] EWHC 2843 (QB) who said:

“It is submitted on behalf of the Law Society, and rightly in my view, that the common law principles of natural justice do not apply to the intervention process which is a statutory process enabling a challenge to be made in the High Court as provided for in Schedule 1 to the Solicitors Act 1974: see Giles v. The Law Society [1996] 8 Admin LR 105 and Miller v. The Law Society [2002] All ER (D) 312.”

In Holder v Law Society [2003] EWCA Civ 39 the Court of Appeal was faced with an argument that the intervention process was also incompatible with the solicitor’s right to peaceful enjoyment of his possessions guaranteed by Article 1 of the First Protocol to the European Convention on Human Rights (“A1P1”). This was also rejected. Carnwath LJ said that the legislation lay within the ambit of the margin of appreciation allowed to Parliament:

“[31] In the present case, the “margin” arises at two stages: first, the discretion allowed to the legislature in establishing the statutory regime, and, secondly, the discretion of the Law Society as the body entrusted with the decision in an individual case. (In the former case, the only remedy for exceeding the “margin” may be a “declaration of incompatibility” under the 1998 Act.) The intervention procedure, now contained in the Solicitors Act 1974, is long-established (dating back to 1941, in its earliest form), and has been reviewed by the court on many occasions. As appears from the cases to which I have referred, it has been recognised as “draconian” in some respects, but necessary for the protection of the public interest; and the courts have repeatedly emphasised the “balancing exercise” which it involves. I see no material difference between this and the “fair balance” which Article 1 requires. Nor do I see any reason why the Human Rights Act 1998 should be thought to have changed anything. There has long been a right of individual petition to the Strasbourg Court for breaches of the Convention, but we have not been referred to any questioning of the intervention procedure under Article 1. I see no arguable grounds for thinking that the margin allowed to the legislature has been crossed, particularly having regard to the deference which is properly paid to an Act of Parliament, as compared to an administrative decision (see the Roth case, above, at paras 26, 83).”

Ms Morris submitted that the focus of the Court in Giles was on a no-notice intervention on grounds of suspected dishonesty in which context it is easier to understand why the perceived need to protect the public against the continuation in practice of a dishonest solicitor will often be held to outweigh the disadvantages to him of losing his practice without being given a prior opportunity to defend himself. The seriousness of the consequences of intervention was recognised by the Court in Giles and also in Sheikh v Law Society of England and Wales [2006] EWCA Civ 1577 where Chadwick LJ adopted the language of Sedley J in Giles who described the consequences as drastic and potentially terminal. Ms Morris submits that what the Court did not say in any of these cases was that the rules of fairness or natural justice could never apply to the intervention process particularly where the Law Society did in fact give notice of its intended action to the solicitor and provide some opportunity for a response. In such cases the need for immediate without notice intervention does not exist and the Court is entitled to consider whether the procedure that was followed did adequately safeguard the interests of the solicitor by giving him a proper opportunity of answering the case on which the Law Society relied.

Despite the force of these submissions, I consider that Giles is binding authority on us that the common law rules of procedural fairness are excluded by the statutory machinery in this case and that the solicitor’s rights and interests are adequately protected by being able to challenge the need for an intervention on an application under paragraph 6(4). I think it is clear from the language and terms of the judgments in Giles that the Court of Appeal was not restricting its observations to dishonesty-based interventions of an urgent and serious kind but was looking at the machinery of intervention more generally. It is also, I think, difficult to formulate as a matter of principle some kind of half-way house under which the common law rules are excluded for certain types of case but not for others. If the paragraph 6(4) right of review is effective to remove the need for some prior process of consultation and representation then it must logically do so in all cases. Insofar as reliance on A1P1 and Article 6 add anything to the appellant’s case on procedural unfairness, those issues have also been addressed and determined by this Court in Holder.

The provisions of Schedule 1 of the 1974 Act governing intervention have been adopted wholesale without significant amendment under the 1985 Act and it is not suggested that different treatment is mandated by reason of Neumans being an LLP. In these circumstances, we are, in my view, bound to dismiss the first ground of appeal. Although the Law Society may, as in this case, engage with the solicitor prior to the intervention, any inadequacy in that process is not sufficient in itself to render the intervention unlawful.

It is not therefore strictly necessary for me to deal with the particular complaints about the procedure that was adopted but I am far from persuaded that any real unfairness occurred. Three objections are taken to the fairness of the pre-intervention procedure:

The first of these points seems to me to be highly technical and without merit. It was always the Law Society’s position (as well understood by all concerned) that any intervention in the practice of Neumans would be based on the conduct of Mr Sheikh. It was his management of the firm which was always under scrutiny and the need to intervene in the practice of Neumans fell to be measured by the danger which his participation in the practice of the firm represented. This was why Mr Sheikh resigned from the firm and why Ms Sabir’s opposition to the intervention was based on the measures which she proposed to take for the future management of the firm. There is nothing in the suggestion that Neumans did not have adequate notice of the case against it.

The second and third points are directed to the findings of the Adjudication Panel about Ms Sabir’s ability to run the firm free from Mr Sheikh. I have quoted the relevant findings in [17] above. Ms Sabir and Neumans were provided in April 2017 with details of the findings made by Master Egan and served a detailed response. They and their solicitors received Mr Quentin’s report of 17 May 2017 which recommended intervention and both were able to make representations in response and, in the case of Ms Sabir, to serve a witness statement. Mr Quentin’s comments on these responses were also shown to RadcliffesLeBrasseur and to Mr Hopper who made further written representations in reply. The Adjudication Panel declined to hear Ms Sabir in person but that is no longer relied upon in itself as constituting unfairness.

I am unable to accept that there was any element of procedural unfairness in the Adjudication Panel not providing Neumans with a minded-to letter summarising their proposed course of action and inviting yet a further round of submissions. Neumans and Ms Sabir had notice from Mr Quentin’s report and his rejection of their response to it that the SRA did not consider that the risk to the public had been removed. They were able to and did propose certain measures including Mr Sheikh’s removal from the firm which were included in the submissions made by RadcliffesLeBrasseur and Mr Hopper and the Adjudication Panel considered them before making its decision. I see no reason why the Panel acted unfairly in declining to initiate another period of consultation based upon its rejection of the proposed safeguards as adequate. One of the difficulties was that the proposals lacked detail and were incomplete. But, by the time the decision to intervene was made, the appellant had been given ample opportunity to formulate and present its case on what safeguards would be adequate to ensure the proper functioning of the firm free of Mr Sheikh and it failed to do so. Moreover, even when it made the subsequent application for a review hearing, Neumans had not fully set out what it proposed. Further witness statements were served only shortly before the hearing before Newey J. I do not therefore accept that the Adjudication Panel can be criticised for reaching a decision on the basis of the material as it existed at the time.

That brings me to the third ground of appeal which is whether on the paragraph 6(4) review Newey J was right to hold that the intervention was proportionate and should continue. This of course required him to take into account not only the grounds of intervention but also any relevant proposals for the future conduct of the firm. For this purpose he was able to look at all the material available at the hearing.

The nub of the firm’s challenge is that the proposals put forward for the management of the firm did provide adequate protection for the public and that the judge failed to strike a fair balance between the interests of the firm and its employees and any continuing risk. The judge was clearly conscious of the need to weigh these matters and said that his decision was made more difficult by the fact that Mr Sheikh has resigned. He also considered the various witness statements filed on behalf of Neumans which confirmed that Ms Sahi (a solicitor who joined Neumans as a consultant in 2016) and Mr Brennan (a barrister) were willing to take on the roles of COLP and COFA and would have equal voting rights with Ms Sabir. In addition there was the evidence of Ms Sabir that she was in charge of the firm and would not allow her husband to influence her decision on professional matters.

Newey J concluded that the intervention should continue in essence because he was not satisfied that the practice of Neumans would in fact be able to be kept separate from Mr Sheikh. He set out his reasons as follows:

“(i)

Neumans has made common cause with Mr Sheikh. Master Egan’s May 2015 report did not prompt the firm to distance itself from Mr Sheikh in any way. When giving judgment on 19 December 2016, Simon LJ said that the defendant’s costs order in Mr Patel’s favour fell to be revoked on the basis of “largely unchallenged facts” and that Mr Patel and Neumans were both “in no position to contest the facts”. Neumans nevertheless, and despite Ms Sabir by now being the managing partner, roundly rejected Master Egan’s findings in its “self-report” of April of this year. On top of that, Mr Sheikh was allowed to continue as both COLP and COFA, notwithstanding the very serious allegations that had been made against him and the Court of Appeal’s indication that it considered that the firm’s conduct should be referred to the SRA. RadcliffesLeBrasseur, moreover, acted for, and made representations on behalf of, both Neumans and Mr Sheikh;

(ii)

Until very recently, therefore, there was no indication of Neumans, or Ms Sabir in particular, separating itself from Mr Sheikh or even bringing an independent judgment to bear. That is perhaps unsurprising when Ms Sabir and Mr Sheikh were married to each other and also co-owners of the firm. It does, however, cast doubt on whether it is realistic to suppose that Neumans would act entirely independently of Mr Sheikh and his interests in the future. That is of the more concern since there are matters relating to Mr Patel and the £2,916,396 bill of costs that have yet to be resolved;

(iii)

Mr Sheikh’s resignation as COLP, COFA and member has the air of a last throw of the dice. Mr Sheikh did not resign until after his solicitors had been supplied with both the Intervention Report and Mr Quentin’s 15 June memorandum. That limits the reassurance that it provides;

(iv)

While Ms Sabir said in her witness statement of 19 July 2017 that the “future practice of Neumans is not dependent on a continuing stream of clients introduced by my husband”, she spoke in her previous statement, made just ten days earlier at a time when he had already resigned, of Mr Sheikh as a “rain maker” and of its “still [being] open to him to introduce clients as a third party introducer”. Further, RadcliffesLeBrasseur told the SRA’s solicitors in a letter of 19 July that Ms Sabir estimated that, during the year leading up to the intervention, approximately 40% of Neumans’ gross fee income was attributable to clients introduced to the practice by Mr Sheikh. These matters raise further questions as to whether there would or could in fact be a complete divorce between Mr Sheikh and Neumans, and the profiles on Neumans’ website compound those concerns. On top of that, there is force in the SRA’s observation that leaving an LLP such as Neumans “requires much more than a simple resignation in terms of the practical position of the members”;

(v)

There is a lack of clarity as to the roles that Ms Sahi and Mr Brennan would play if the intervention were withdrawn. It is said that they would have equal voting rights with Ms Sabir, but on what basis? What, if any, interest would each of them have in Neumans? It is noteworthy that I have not been supplied with even draft documentation; and

(vi)

The SRA, whose views are entitled to respect, considers that the intervention should continue.”

Ms Morris does not suggest that these findings were not open to the judge and, in my view, they provide a more than sufficient basis for concluding that the decision to intervene was rational and proportionate and should continue. Mr Sheikh clearly ran the firm prior to the intervention and was acknowledged by Ms Sabir to be the “rainmaker” in terms of introducing clients and new work. The proposals for the appointment of a new COLP and COFA were made very late and the candidates are untested. There is very little, if any, indication in the evidence of their respective experience and whether they would be suited to taking on these roles. The doubts as to Ms Sabir’s ability to limit the influence of her husband remain.

In these circumstances, it is not possible to say that the intervention was not proportionate or that the Law Society has acted irrationally in opposing the application to terminate the intervention. They were entitled to exercise a proper degree of caution in the judgment which they made. For the same reason, the judge was right to conclude that on a proper consideration of the proposals put forward by the firm there were no grounds for ordering the withdrawal of the notice of intervention.

I would therefore dismiss the appeal.

I agree.

I agree that this appeal should be dismissed for the reasons given by Patten LJ. I would like to add a few words of my own only in relation to the issues of procedural fairness.

There is, in my view, an air of unreality about this case. Ms Sabir submits that she was not afforded the basic rights of procedural fairness to which the common law would normally entitle her. In fact, as Patten LJ has demonstrated in his judgment, she was given the opportunity to make representations. There was no procedural unfairness on the facts of this case.

For its part the Respondent submits that the law should not impose a duty of procedural fairness in this context, where speed and sometimes secrecy are of the essence in order to protect the public interest. Yet, on the facts of this case, the Respondent did afford the opportunity to make representations before intervention took place. That at least suggests that it is possible, depending on the facts of a particular case, to comply with the normal requirements of procedural fairness and so it may not be necessary to have an absolute rule that those requirements never apply before an intervention can take place. In other contexts public law has not shied away from imposing the duty of procedural fairness as a matter of principle, while recognising that (where appropriate, depending on the facts of the individual case) it may not be possible to comply with that duty in advance of a decision, for example because there is a need for speed or secrecy.

However, in the end, whether the duty to act fairly is to be implied by the common law, to “supply the omission of the legislature”, to use Byles J’s famous phrase, will depend crucially on the particular statutory framework in which the issue arises. In the context of the statutory framework of the 1974 Act, this Court has already held in Giles that the requirements of procedural fairness are satisfied by looking at the entire package, including the opportunity to challenge the intervention on its merits before the High Court. For the reasons given by Patten LJ I agree that the amendments made to the 1974 Act since then have made no material difference to the essential analysis in Giles. I also agree that this Court is bound by its previous decision in Giles.