Aurangzeb, R (on the application of) v The Law Society of England and Wales

MR JUSTICE NEWMAN: This is a renewed application for permission to apply for judicial review in connection with two decisions of the Law Society, acting by their Panel. The two decisions related to the conduct of the claimant as a solicitor in two respects: firstly, an allegation of practising in breach of conditions which on an earlier occasion had been applied to his right to practise; secondly, a failure to notify the Law Society that he had been made bankrupt.

The basis for the challenge to the Panel's decision, which was a decision to refer the allegations to the Solicitors Disciplinary Tribunal, is that two significant procedural failures occurred, or at least arguably occurred. In connection with the allegation that he had been practising in breach of conditions, it is said it is arguable on the documents that the Panel did not have a statement from a Mr Saunders, which, it is submitted, if it had been accepted, constituted a complete defence to the allegation. Secondly, it is said, in connection with the bankruptcy allegation, that there were facts before the Panel, in connection with the affairs of the claimant which gave cause for concern as to the influence that may have been present, vitiating the decision to refer that matter to the Disciplinary Tribunal.

I have confined my summary of the facts to the barest skeletal detail because, in my judgment, this renewed application falls to be determined by a question of principle. The single judge observed, when refusing leave on the papers:

In my judgment, I would start the court's consideration at a stage anterior to the decision of the single member of the Panel as to the existence of a prima facie case. In my view the question is whether as a matter of principle, it is right for the court to intervene by way of judicial review when the ambit and reach of the decision under challenge goes no further than to place the allegations in question before a disciplinary tribunal. The tribunal meets all the requirements of fairness and Article 6 requirements. It will have the same powers of sanction, in the event that misconduct is upheld, as the Panel could have exercised, had it decided not to refer the matter. Indeed, the Tribunal will have exactly the same powers, including a power of absolution, if that is what is appropriate.

I have heard no detailed legal argument, this being only a renewed application for permission and, even if I had, I would not be minded to conclude that the court has no power to intervene at this stage of the disciplinary process in connection with the Law Society or any other disciplinary body having similar powers. But I have no doubt that the court must, in accordance with basic elementary principles have considerable reservations about the desirability of intervening in the manner suggested, save in circumstances where the facts call out for that intervention, for example where irreparable harm or unfairness is likely to occur or justice could only be met by intervention.

Mr Morgan, who has advanced submissions on behalf of the claimant with great clarity and restraint, puts his case, as he must, on the basis that here there has been a procedural irregularity -- by that he did not invite the court to conclude that it was of a minimal or slight character; on the contrary, he submits that it was serious -- which has resulted in an unfair result: namely, that, in his view, it is strongly arguable that had the material, in particular the material in connection with the breach of conditions allegation, been before the Panel, then no reference would have been made, and where the circumstances in respect of the bankruptcy reference also require investigation.

In my judgment, the insuperable difficulty which the argument, on the facts of this case, presents is that neither at this stage, nor even at the end of a full hearing by way of application for judicial review, would the court be in a proper position to conclude what the outcome should be. If the matter was to be quashed, it would simply go back before another Panel who would have the material, and, as Mr Morgan accepts, it would be quite open to them to come to the very same conclusion as the first Panel. If the court were to adopt a practice involving scrutiny of a decision of a Panel which is limited to a reference to the Tribunal, then if sent back, there can be another application for judicial review in respect of the subsequent reference. The whole process will be at risk of being bogged down and the disciplinary process will be at risk of being undermined by repeated applications for judicial review. It is not sufficient to simply say "Well, the court can deal with them". The fact of the matter is that they could be made.

In my judgment, it is important to establish, as a matter of general principle, that, save in exceptional circumstances, which may be in the general category of those I have attempted to define, where what has occurred is that there has been a procedural failure and the matter is before the Tribunal, the proper conclusion is that the Tribunal will have ample opportunity to cure any of the failures which to that date it is said have occurred. There will be an occasion for justice then to be done. The decision of the Tribunal will be subject to review.

I am bound to say the more the factual area of the case was developed by Mr Morgan, again with restraint, the more it indicated that critical reliance was placed upon a particular document at page 59 in the bundle to support the contention that the Saunders' statement was not before the Panel. Mr Miller, for the Law Society, has shown me other pages which point to a different conclusion, namely that Mr Saunders' statement was before the Panel. It seems to me distinctly possible that, even if leave was granted, there would be evidence from the Panel members which could disclose that they had the statement in the first place.

It seems to me that the only sensible course is to allow this matter to go before the Tribunal, without a further delay, where the claimant can ventilate his grievances, about which I express no view. It would be quite wrong for this court to say anything about the merits of the matter. That is another very good reason why judicial review itself would not be an appropriate remedy, where the very matters which the court may have to consider in full judicial review proceedings would have to be subsequently considered by the Disciplinary Tribunal.

For that reason and for the reason which Silber J gave, namely, that there is now, in any event, a prima facie case finding by a single member, which conclusion is bound to be relevant to the court if it was considering a full judicial review application, everything points to this not being an occasion when the court should intervene. For all those reasons, this renewed application for permission is dismissed.

Thank you very much.

MR MORGAN: My Lord, then I would apply for detailed assessment for public funding purposes.

MR JUSTICE NEWMAN: We have a certificate, have we?

MR MORGAN: Yes.