Virdi v The Law Society

LORD JUSTICE SCOTT BAKER: Mr Virdi appeals against a decision of the Solicitors Disciplinary Tribunal on 26th October 2007 finding him guilty of five offences under the legislation that covers practising solicitors and ordering that he be suspended from practice for a period of 3 years from that date.

The hearing lasted over 15 days, spread over three separate weeks in May, July and October 2007. Following a lengthy retirement the Tribunal, which comprised three members, announced its decision on the concluding day of the hearing. The Chair (Miss Devenish) gave a short extempore judgment explaining the decision. Detailed reasons, running to 129 pages or thereabouts were not given until 13th October 2008, almost a year after the conclusion of the hearing. We have been given some explanation for this delay which, in my judgment, is both inordinate and inexcusable. The predominant reason for it appears to have been the illness of the clerk. A delay of this magnitude should not have occurred and reflects inadequate management of the Tribunal.

In the event I am not persuaded that the delay has caused any injustice to the appellant because he knew the decision of the Tribunal on 26th October 2007 and the basic reasons for it and his suspension still has another 20 months to run. I am quite unpersuaded that any lesser penalty should have been imposed or that he has any viable ground of appeal, whether occasioned by the delay or otherwise.

There was seven allegations against the appellant, of which five were found proved. Essentially they were that he had been guilty of conduct unbefitting a solicitor.

There was a co-defendant, Davinder Virdee (no relation), who was found guilty of one offence only and is not a party to this appeal.

Proceedings against the appellant began in August 2004. There were also proceedings against three other solicitors who had worked for the appellant, Mr Bridger, Mr Syan and, importantly, Mr Bamrah.

Everybody agreed that the hearing against Mr Bridger, Mr Syan and Mr Bamrah should take place first and the Tribunal so ordered. The cases against them were heard in 2005.

The appellant was born in 1951 and admitted as a solicitor in 1979.

At all material times the appellant and Davinder Virdee practised in partnership under the style of St Johns. The practice was founded by the appellant. The head office was at 6 Wellington Place, St John's Wood. There were also branch offices in Hounslow, Southall and St Anne's Terrace, St John's Wood.

The appellant was the sole equity partner, Davinder Virdee was a salaried partner. The practice employed a staff of 46 including five assistant solicitors. At one time there were five offices, two in Hounslow, two in St John's Wood, with the appellant operating primarily from Southall.

The Hounslow office was owned by Mr Bamrah, the appellant's nephew, the address being 686 - 692 London Road, Hounslow. In late 1995 the appellant took over the premises and some files of Singh Garland & Wells of which Mr Bamrah was the sole proprietor. Thereafter Mr Bamrah worked for the appellant (as well as for his own firm) and Davinder Virdee, who had been working for Mr Bamrah's firm joined the appellant.

Mr Bamrah's practising certificate was terminated in May 1997, although he remained on the Roll of Solicitors.

The Law Society intervened into the appellant's firm of St John's on 20th March 2002. This followed two inspections of their books and documents in March 2000 and November 2001.

Mr Bamrah was found guilty of practising without a certificate and disreputable conduct and struck off the Roll of Solicitors. The Tribunal found that he had acted dishonestly.

The five allegations found proved against the appellant can be summarised as follows:

It was important for the Tribunal to decide whether the appellant's conduct had been dishonest or merely grossly reckless. The Tribunal said that it had grave concerns about the appellant's conduct. It did not believe him in all respects in relation to allegations (a), (b) and (d) but fell short of finding dishonesty proved. It did, however, find that he had been grossly reckless in respect of allegations (a), (b), (c), (d) and (e).

It seems to me that the findings that eventually emerged from the Tribunal, almost a year after the event, are in no way inconsistent with what the Tribunal said on 26th October 2007 but simply set out in great detail the history and background and summary of the evidence and the parties' submissions as well as fleshing out the findings of the Tribunal in greater detail at pages 117 - 124.

Mr Beaumont's main ground of appeal, he having appeared for the appellant both in this court and below, which was argued first before us, relates to the Tribunal clerk, Mrs Elson . Essentially, Mr Beaumont's complaint is that she was inappropriately involved in the Tribunal's findings. The decision was not that of the Tribunal alone, he submits, but was influenced by a contribution from her.

This contention is to be found in ground (b) of the grounds which runs as follows:

We also have evidence from three witnesses, Mrs Whitfield, the deputy clerk to the Tribunal who was the clerk assigned to this case, Mrs Elson, the clerk to Tribunal and Miss Devenish, the panel member who chaired the proceedings. Mrs Whitfield explained that she had been deputy clerk to the Tribunal since 1998 having been admitted as a solicitor in 1982. Her evidence was:

So, after a long deliberation, the Chair of the panel announced its decision on 26th October 2007. Now we have a transcript of what the Chair of the Tribunal said, which is to be found among the material that has recently been produced for the benefit of this court.

Miss Whitfield's evidence is that she took no part in the deliberations and it was the Chair, with the assistance of the other members, who drafted the reasons that were then read orally in court. Mrs Whitfield had taken notes during the Tribunal members' lengthy discussions and helped the Tribunal from time to time with reminders from her notes.

Following the hearing on 26th October 2007 the Tribunal's order was drawn up by the clerk in the ordinary way.

After 26th October there was a long delay before the Tribunal's findings were eventually produced on 13th October 2008 - almost a year later. These findings comprised 12 sections, covering some 135 pages and appendixes of another 117 pages. Mrs Whitfield, as was the practice, produced the first draft of this document but with rather more assistance than usual from the members, largely because of the number of applications and objections that had been made during the course of the hearing. The draft went back and forth and was eventually approved by the Tribunal members.

Miss Devenish the Chair of the Tribunal confirms in her witness statement the account of Mrs Whitfield. In particular she said that if there was an allegation or implication that the decisions, orders and reasons were not wholly those of the members of the Tribunal, as duly constituted, she refuted it.

Mrs Elson pointed out that it was customary for the clerk to retire with the Tribunal, hear its discussions and decisions and take a note. It is also customary for the clerk to have the initial responsibility for producing the written record, as she is the best person for ensuring that she has captured the Tribunal's decisions and reasons accurately and that nothing has been overlooked.

Mr Beaumont made written submissions in his supplemental skeleton argument that were plainly wider than ground 9(b) of his grounds of appeal. His underlying point was that the clerk was an employee of the Law Society, albeit seconded to the Tribunal and that therefore there was an appearance of bias. As I understand it the basic point Mr Beaumont was making was that the clerk's alignment with the Law Society, as prosecutor before the Tribunal, was such as to taint the decision of the Tribunal in the eyes of an impartial bystander. The fact that she was employed by the Law Society and retired with the Tribunal vitiated the proceedings.

With some hesitation we gave leave to amend the grounds of appeal to include paragraphs 2(b), (c) and (d) of Mr Beaumont's supplementary skeleton argument. These are in the following terms:

Mr Beaumont's first point was that there was no power for the clerk to retire with the Tribunal. He argues that the SDT is a public body. It is a creature of statute and one must look at the statute and the Rules to see what is permissible. He relies on R v Somerset County Council ex parte Fewings [1995] 1 All ER 533 and particularly on the observations of Laws J at page 522.

Section 46 of the Solicitors Act 1974 enables the Tribunal to make rules about inter alia the procedure and practice to be followed in relation to the making, hearing and determination of applications and complaints including provision about the composition of the Tribunal.

The relevant rules were the Solicitors (Disciplinary Proceedings) Rules 1994. They defined the Clerk in rule 1 as the clerk to the Tribunal or any deputy or person appointed by the Tribunal (whether temporary or otherwise) to perform the duties of that office. The clerk has to be a solicitor of the Supreme Court.

Certain duties of the clerk are provided for in the rules, including supplying a copy of the findings and the order to each party to the proceedings and anyone else present at the pronouncement who requests one.

Mr Beaumont says the Rules say nothing about the clerk retiring with the members or the Tribunal or producing drafts of the findings, and that is true. But points out Mr Hopper, rule 31(a) provides that subject to the provisions of the Rules the Tribunal may regulate its own procedure.

Mr Hopper submits that here lies the power that enables the clerk to retire with the Tribunal and perform the administrative functions that she did. Mr Beaumont submits that there is no evidence that the Tribunal has regulated its procedure in this way. What was done in the present case was no different from the procedure followed by the Tribunal in every other case. A procedure that it has been following for years.

The Solicitors (Disciplinary Proceedings) Rules 2007 came into force on 14th January 2008 and replaced the 1994 Rules - too late, of course, to be applicable in the present case. Those rules, as were the 1994 Rules, were made by the Tribunal President and approved by the Master of the Rolls. They too have a provision (rule 21(1)) that the Tribunal may regulate its own procedures. But the 2007 Rules go in a little more detail into the clerk's duties. Rule 3(11) provides:

Rule 11(f) seems to me to spell out just what the clerk was doing in the present case. Mr Beaumont submits, be that as it may, such power did not exist before the new Rules came into force on 14th January 2008. It seems to me that the more realistic way of looking at it is that the new Rules were simply setting out expressly and giving an imprimatur to what had long been the practice under the power given by rule 31(a) of the 1994 Rules and whether it had previously been regulating its own procedure expressly or impliedly under that Rule. The important point, it seems to me, is that the provision in the new Rules demonstrates that there was nothing objectionable in the practice that had gone before. For my part, I reject Mr Beaumont's submission that there was no power for Mrs Whitfield to do what she did in the present case.

I turn next to the amended grounds that the clerk was employed by the Law Society and that this tarnished the appearance at least of the impartiality of the Tribunal because neither party should appear to have any connection with the Tribunal. The position is as follows. This description has been on the Tribunal's website for some time:

Mr Michael McLaren QC for the Law Society draws attention to the following points: a written memorandum of understanding between the Master of the Rolls, the Law Society and the Solicitors Disciplinary Tribunal was drawn up in 2003. This is not a public document but the document has this to say. The first paragraph states:

Mr McLaren makes a number of other points to illustrate the independence of the clerk from the Law Society:

The independence of the Tribunal has been considered by the court on a number of occasions. In Pine v The Law Society (2000 unreported, Crown Office 1385/2000) Crane J said at paragraph 23:

We were also referred to Re: P [2005] 1 WLR 3019, a decision of the Visitors and a judgment given by Colman J. That was a case in which apparent bias arose. Colman J referred to the common law test in Porter v Magill, whether all the circumstances were such as to lead a fair-minded and informed observer to conclude that there was a real possibility of bias on the part, in that case, of Miss Nathan, one of the members of the Tribunal. The problem was she was a member of the referring body of the Professional Conduct and Complaints Committee. Although irrelevant to the outcome of the appeal, the Tribunal accepted the appellant's submissions on this.

In my view Re: P was very different from the present case. In the first place it was not a SDT case. More importantly, the problem was with a decision-making member of the Tribunal and not the clerk and, even more significantly, the appellant was a member of the referring Committee.

Finally, it is necessary to refer to two Hong Kong cases: Au Wing Lun v The Solicitors Disciplinary Tribunal & Anr CACV 4154/2001 and A & B Solicitors v Law Society of Hong Kong 2000 269/2004. It is common ground that the second authority subsumes the first for the purposes of the present appeal. Le Pichon JA, with whom Vice-President Rogers agreed, was very critical about what had occurred at the Tribunal. The clerk had spent almost 17 hours drafting the findings and order. In the course of quite a short judgment Le Pichon JA said this at paragraph 22:

It was not disputed that what happened in the Hong Kong cases was unsatisfactory but the important distinction is that there was involvement of the clerk in the decision-making process. It is obviously unsatisfactory for the Tribunal to rely on the clerk rather than their own recollections and assessment of the evidence.

Passing reference was made to what happened in the Magistrates' Court. Lord Woolf CJ's Practice Note of 2nd October 2000 [2000] 4 All ER 895 was referred to the court. In that he said:

Once the Tribunal becomes functus it seems to me that the curtain comes down on any argument under Article 6 of the ECHR with a possible exception of a reasonable time issue which incorporates not only the hearing but also any appeal. I shall return in a moment to the question of delay. But that apart, I do not think Article 6 adds anything to the other arguments about the clerk's involvement.

My conclusions about the submissions relating to the clerk's involvement and apparent bias are as follows:

I have already observed that the delay in producing the findings was far too long. It is true that this was an exceptionally complex case that far exceeded its five day time estimate and required an adjourned hearing on two occasions with additional weeks. This was in part at least due to the number of points taken by the appellant's advocate.

The Tribunal attributes the delay in producing the findings to:

While I have great sympathy for the illness of the clerk and the other problems that beset the Tribunal, the Tribunal should have had, and I hope now has, in place management procedures to pick up and deal with potential delays. Save in the most exceptional case findings should be produced in weeks rather than months. This is only fair to the parties.

We were told that from time to time enquiries were made and about when the findings would be forthcoming but that on each occasion the response was that more time would be required.

It is true that the time for lodging an appeal expires 14 days after delivery of the findings (see the White Book 52PD.121 at 22.6B(3)(b)).

It is said that the appellant could have appealed in October 2007, immediately after the decision and order but that would, in my judgment, have been impractical where there was the possibility of a reasons challenge because this was something that would turn on the detailed findings.

The delay of nearly a year in producing the findings following the decision was, in my judgment, as I have already said, both inordinate and inexcusable. Article 6 of the European Convention on Human Rights gives a right to a fair and public hearing within a reasonable time. The appeal process is incorporated within this provision (see Konig v Germany (1978) EHRR 170).

For my part, I am satisfied that the appellant was not prejudiced by the delay because his suspension ran from the date of the order and still has over 18 months to run. As I see the penalty as lenient and one with which I would not interfere, it seems to me that the appellant has suffered no specific prejudice from the delay. He would no doubt have wished to have had the appeal process out of the way, however long ago.

I think that there has been a violation of Article 6 by reason of the delay and that pursuant to section 8 of the Humans Right Act that is a matter to which this court should pay attention. I am unpersuaded that any remedy is required beyond the simple statement of this court that what has occurred does violate Article 6 and is unacceptable. In particular, I do not accept Mr Beaumont's submission that there should be a shortening of the appellant's suspension. If the period imposed was correct, as I believe it was, shortening it, for no reason other than breach of Article 6 - a breach which put the appellant to no significant disadvantage would, in my view, be offensive to the principle in Bolton v The Law Society [1994] 1 WLR 512, in particular the passage at 518.

I turn now to the other grounds of appeal. The first relates to Mr Merrett, who was called by the Law Society to give expert evidence to the Tribunal. The complaint appears to me to be threefold. First, that the Tribunal failed to make any findings about the admissibility of Mr Merrett's evidence about SBLCs (standby letters of credit). Second, that the Tribunal failed to make any findings about the weight to be given about his evidence about SBLCs, and thirdly, by implication they should have given little or no weight to his evidence.

The appellant asked the Tribunal to find that Mr Merrett was not an expert and that his opinion on SBLCs should (a) not be admitted or, if it was admitted, should be given minimal weight. The Tribunal rejected that application and it seems to me plain that that is a decision that his evidence was admissible.

Mr Merrett was a fraud analyst with expertise in the fraud relating to financial instruments. SBLCs are a mechanism for conducting international trade. They are not in themselves a tradable commodity. The issue was not whether the transactions that had been going on were actually fraudulent but whether they appeared dubious, so that no solicitor should have allowed them to continue. The applicant was not suggesting that these documents were genuine and adduced no evidence to that effect. The issue was what a reasonably prudent solicitor should have thought.

The point is that Mr Merrett had expertise in financial fraud. He was, in my judgment, entitled to give evidence on that topic and the appellant called no evidence to the contrary. Weight was a matter for the Tribunal. They were not required to specify precisely what amount of weight they gave. His evidence was in any event only part of the picture, the Tribunal (two of whose members were solicitors) had their own expertise as well as the expertise through Miss Hartly and Mr Cotter. There is, in my judgment, nothing in this point.

The next point is that two of five SBLCs files were not adduced in evidence. The thrust of this point, it seems to me, is that two of the five files were lost by the prosecutor and therefore not available for inspection at the hearing and in particular by the appellant. They had, however, been seen by the investigators and reference was made by them to the files. The precise allegation is as follows. The SDT erred in failing to make any finding as to the submission that the Law Society relied on the cases of WC and H as two of five SBLC matters but the copies of these files have not been produced but the Law Society and/or that it was an abuse of the process of the Tribunal to proceed with these matters. This is wrong. The appellant's counsel made three different applications in relation to the missing files in the cases of WC and Helgeson. The first of those was in May 2007. The appellant claimed that the Law Society should not be permitted to rely on extracts from these missing files. The Tribunal refused this application and held that the weight to be placed on the evidence was a matter for the Tribunal in due course. Then in July 2007 the appellant sought to prevent the Law Society from cross-examining on the file of WC. The Tribunal was satisfied that the line of questioning relating to documents before the Tribunal and to which Mr Merrett had referred in his evidence was appropriate. Finally, in October 2007, an attempt was made to secure a stay or dismissal of any allegations which had not been supported by full disclosure of the client file. The SDT declined to consider the application at such a late stage.

For my part, I can see nothing wrong with the approach of the SDT or that the appellant suffered any significant prejudice from the absence of two of the five files. The case was that the files displayed a consistent picture and even if the Tribunal had focused on three files alone the result would have been no different. There is nothing in this ground of appeal.

Next: money laundering. The complaint here relates to the findings of the Tribunal at paragraphs 673 and 675. Those findings are as follows 673:

Mr Beaumont submits that the conclusion of the Tribunal placed far too high a burden on the appellant and indeed on solicitors generally. I cannot agree. These findings show, in my view, how close the appellant came to a finding of dishonesty. What is significant is the finding that he was simply not prepared to take responsibility on his own shoulders. Even when alerted specifically about the necessity of an NCIS report he did nothing.

The short answer to the point is that the Tribunal was entitled to reach the conclusion it did. Indeed, I cannot see how it could have reached any other conclusion.

The appellant's argument is that the Tribunal made an error of law in finding Mr Bamrah to have been employed. Mr McLaren's response is that (i) the Tribunal was entitled on the facts to reach this conclusion and (ii) alternatively, section 1(a) of the Solicitors Act 1974 (as amended) applies to him. Section 1(a) provides:

It will be apparent that the second point only arises if we are against Mr McLaren on the first point. The Tribunal found, at paragraph 675, that for the purpose of the relevant allegations Mr Bamrah was employed by the firm. It was entitled to do so because of a number of findings. These are that Mr Bamrah's involvement with the SBLC matters, the subject of the appellant (for present purposes the firm) having conduct of those matters. Likewise in relation to HYIP matters. Mr Bamrah was under the appellant's supervision. If Mr Bamrah had instigated the clerk payments it was the appellant who had facilitated them and not asked appropriate questions. The appellant had permitted and facilitated Mr Bamrah's participation in the suspicious transactions. Mr Bamrah was employed by the firm in the widest sense. An outsider dealing with Mr Bamrah in relation to the transactions would have perceived him to be employed by the firm. On the appellant's own evidence Mr Bamrah had been within the firm in terms of supervision. Mr Bamrah had used the firm's note paper. Mr Bamrah had been paid by the firm even if that payment was now described as "rent". Mr Bamrah had been able to request money transfers. Mr Bamrah had been employed for the purposes of allegation (d). The appellant had suggested that he had left the matter of the practising certificate in Mr Bamrah's hands to resolve. Mr Bamrah worked in the firm for a long period after Miss Virdee knew there was a problem with his practising certificate. In these circumstances it is not necessary, in my judgment, to make any finding about the ambit of the word "employed" in section 1(a) and whether it is sufficiently wide to cover a contract of services as well as a contract for services. My provisional view is that the wide or purposive construction of section 1(a) is to be preferred.

Finally, I turn to sentence. We were referred to The Law Society v Salsbury [2008] EWCA Civ 1285. In that case Jackson LJ, having reviewed the authorities said this in paragraph 30:

Mr Beaumont drew attention to the following points in mitigation: at the time of sentence the appellant had not worked as a solicitor for 5 years and 7 months; he was not the primary culprit for what had gone on; there were no obvious losers; no client had complained; there was no proof of dishonesty against him; his accounts were in order; the impugned transactions related to only a small fraction of the firm's work; the cause of the failure was the lack of supervision of Mr Bamrah; he had lost everything including his status and he had previously been well regarded in society doing, amongst other things, important charitable work; overall the period of suspension was disproportionate. Furthermore that the Tribunal could impose conditions on his resuming practice.

I have considered all those grounds as indeed did the Tribunal with care. Far from finding anything wrong with the penalty imposed by the Tribunal, in my judgment, if anything, it was on the lenient side.

For all these reasons therefore, I would dismiss this appeal.

MR JUSTICE DAVID CLARKE: I agree with all that my Lord has said in his judgment but because of the importance of some of the arguments we have heard about the proceedings and procedures of the Tribunal, I wish to add two brief observations. The first does not concern the role of the clerk before the making of the order but the written reasons subsequently prepared. Those written reasons, in fact described as "Findings", were not only provided after an inordinate delay but also were extremely long. Like my Lord, I cannot help thinking, despite what has been submitted by Mr Hopper, that their very length was a factor in the extreme delay in their provision. I infer that not only the final reasons were very long but so also was the first draft prepared by the clerk, Mrs Whitfield. I readily accept that those sections which set out the reasoning for the Tribunal's decisions on the various allegations faithfully record their reasoning, as recorded by the clerk, when sitting in on their 6 hours of deliberations at the end of the three week hearing. But some 90 of the 134 pages, that is from page 28 to page 116 inclusive (in the internal pagination), comprise a substantial recitation -- one can hardly call it a summary -- of the evidence and of the submissions made by the advocates for the parties, who included not only the Law Society and the appellant but also Miss Virdee.

Mr Hopper points out to us that the length of the document arises from the fact that the written reasons constitute a public record of the Tribunal's proceedings which are not otherwise transcribed. I would make two observations on this: firstly, it still seems to me that a substantially shorter and more digestible summary should suffice and would actually be more informative and helpful. Secondly, quite apart from the matter of her poor health, I have every sympathy for the clerk in the task that she undertook in preparing the first draft. It was not for her to exercise an independent judgment to decide to omit passages or to truncate particular sections of the document. Were she to have done so, there might have been more force in the submission that by being selective in that way she came nearer to encroaching on the role of a decision maker. Accordingly, it is my view that it would be better if the Tribunal members are involved at an earlier stage of the drafting of the written reasons so as to make their own decisions and communicate them to the clerk as to the extent of the detailed recitation of evidence and argument necessary to be included in the written reasons.

We were told that this hearing was at the time highly unusual as regards its length, though in the short period since then a number of hearings of similar or greater length have taken place. Mr Hopper has explained that the problems in this case, arising partly from budgetary, staffing and logistical difficulties, are not likely to recur for a number of reasons. The budgetary position has changed pursuant to the Legal Services Act and other substantial changes have been made. Whilst I agree that in this case there was a violation of Article 6 of the Convention, sufficiently remedied by the judgments of this court, as my Lord has set out, it does appear that there are grounds for optimism that the lessons of this case for the Tribunal have been learned.

My second much briefer observation is this. The delay in the provision of the written findings has led to our finding of a violation of Article 6. It was faintly suggested by Mr Beaumont that the Law Society should take some share of the blame for the delay because, as far as we are aware, no enquiries were made as to the progress of the preparation of the written findings. I would expressly reject that suggestion. The violation which we have found was on the part of the Tribunal and of it alone.

LORD JUSTICE SCOTT BAKER: Are there any applications?

MR BARTON: My Lord, on behalf of the Society I would make an application for an order that the appellant should pay the costs of this appeal. My Lord, on express instructions from my client I would also flag up at this stage, but say no more than that, that on a full consideration of the written judgment, the Society may wish to make an application for wasted costs. I base that essentially on the significant quantity of work undertaken prior to this appeal in dealing with the original set of submissions, a significant amount of which was abandoned and indeed had it been pursued fully, I very strongly suspect that this appeal would not have finished in two days any way.

LORD JUSTICE SCOTT BAKER: I am not so sure about that.

MR HOPPER: So far as we are concerned on costs, we had never intended that the intervention of the Tribunal in this appeal should have any costs consequences. I will maintain that in a general sense despite the way in which the appeal has developed as it has. We do, however, press for an order of the costs that are at present reserved in relation to the hearing of the application to disclosure.

LORD JUSTICE SCOTT BAKER: Yes.

MR HOPPER: Which your Lordships fairly rejected in total. There is a schedule in that respect which was served for last week's hearing in the sum of £9,476.

LORD JUSTICE SCOTT BAKER: Has Mr Beaumont seen that?

MR HOPPER: That was served on the 11th, my Lord, before the 12th February hearing.

LORD JUSTICE SCOTT BAKER: How much?

MR HOPPER: £9,476.00.

Lastly, my Lord, in my most recent skeleton argument I foreshadowed the possibility of an application in relation to the costs related to the way in which the appeal had changed, which resulted in the application for our amendment yesterday. Having regard to the fact that my Lords allowed that amendment and in actual fact looking backwards we managed to deal with the point, that is not a matter that I now press.

LORD JUSTICE SCOTT BAKER: Thank you.

MR HOPPER: In relation to the flagged up possibility of a wasted costs order, my Lord I have given thought to the Tribunal's position on that and although we have reservations about the way in which the matter has developed and in relation to the hearing of last Thursday in particular, a wasted costs application, in my submission, would, for us, be wholly disproportionate having regard to the amount of costs involved.

My Lord the Konig matter--

LORD JUSTICE SCOTT BAKER: Thank you.

MR HOPPER: What I have is from my learned friend by email. The only references on it are application No 6232/73, judgment dated 28th June 1978.

LORD JUSTICE SCOTT BAKER: I thought we had it in one of the files.

MR HOPPER: It is possible that you did, my Lord. I only had various things--

LORD JUSTICE SCOTT BAKER: I could not find it.

MR HOPPER: Perhaps my learned friend, Mr Beaumont, can. It is his authority.

LORD JUSTICE SCOTT BAKER: I expect the shorthand writer will be able to find it.

MR HOPPER: Lastly my Lord, would you be so very kind as to when perfecting your judgment, assign the names "Mrs" Elson and "Mrs" Whitfield rather than "Miss". I do not know how many people are going to be affected by that.

LORD JUSTICE SCOTT BAKER: Of course. Sometime one is in trouble for not being politically correct.

MR HOPPER: It is always best to get it right I find, however much subsequent thought has gone into it. My Lords so far as--

LORD JUSTICE SCOTT BAKER: I do not think I called them the Chairperson either -- Miss Devenish.

MR HOPPER: With utter propriety you referred to Miss Devenish as the "Chair".

My Lord, so far as the comments about the Tribunal and delay are concerned, you will, of course, understand that this has caused already a very great deal of anguish and although my Lord's comments will be reported back, we hope we have already addressed the matter.

LORD JUSTICE SCOTT BAKER: We are very grateful to you for your assistance in the case Mr Hopper. Mr Beaumont, what do you say about costs?

MR BEAUMONT: I say a number of things, if I may. The first is that the first indication of any issue of a wasted costs application--

LORD JUSTICE SCOTT BAKER: No application has been made yet, it has simply been flagged up.

MR BEAUMONT: I shall flag up my response, if I may. I will deal with that last. First of all, I apply for costs against the Solicitors Disciplinary Tribunal because your Lordship has found that the SDT violated Article 6. It cannot be said that the appeal has failed completely. Your Lordship also, by way of remedy, dealt with the matter by way of public acknowledgement and I think it was my Lord, David Clarke J's comment that the judgment itself represents the remedy. It does not lie in the mouth of the SDT, in those circumstances, it coming before this court, having violated a fundamental provision of the European Convention, which is what this court has found--

LORD JUSTICE SCOTT BAKER: On the other hand it has intervened in these proceedings and is not asking for costs against you on issues that it has succeeded on.

MR BEAUMONT: I am simply focusing on the delay point. That was always one of my grounds of appeal. It was resisted by the Law Society.

LORD JUSTICE SCOTT BAKER: Yes.

MR BEAUMONT: The court has found that (a) that there was a violation of Article 6 by virtue of the delay. The Law Society has resisted that argument unsuccessfully. The SDT has dealt with that unsuccessfully. The correct order, in my submission, is those costs of Mr Virdi attributable to that ground alone, he may in the general scheme of things be quite modest, should be paid by the perpetrator of the violation of Article 6 which is what this court has found, though they should also be paid by the Law Society to the extent that the Law Society sought, quite clearly, to defend that position. So before the Law Society starts thinking about wasted costs orders, it should consider what it was it tried unsuccessfully to resist. That is the first point.

The second point in relation to Mr Hopper's application is this. I pray in aid the doctrine of estoppel for the following reason. Mr Hopper made the clear assurance, both to us and to the court, and he does not quarrel about this, that even though the SDT had joined in the appeal, it was not seeking an order for costs. In other words it regarded itself as acting in the public interest.

LORD JUSTICE SCOTT BAKER: But you made a completely misconceived application last week for relief which was rejected out of hand. That was totally unnecessary.

MR BEAUMONT: Nevertheless it was made in circumstances in which so far as the SDT are concerned, they have already indicated that they would not be seeking costs arising in these proceedings. Mr Virdi was entitled to believe, in those circumstances, that that assurance related to the proceedings generally and not merely to parts of them. That is classic territory for the operation of estoppel. There had been a clear and unequivocal assurance that the SDT were not seeking costs. We made an application for disclosure that failed. I do not recall your Lordship using the expression "completely misconceived". If it is necessary to do so, I shall defend that position because this is untrodden and pretty virgin territory. There was a serious issue, for example, the first draft. That is clear from your Lordship's judgment. Indeed, my Lord, David Clarke J, has inferred, as I recall that part of the judgment.

LORD JUSTICE SCOTT BAKER: Is the figure of £9,476 agreed subject to liability or not?

MR BEAUMONT: At the moment I am addressing the principle.

LORD JUSTICE SCOTT BAKER: I know but I am anxious to know that and it is now 5.45 so we have to move on.

MR BEAUMONT: These are serious applications and I must deal with these points. So I resist that application in principle on the basis effectively of estoppel, that is they clearly indicated they were not seeking costs and they seek to resile from that general--

LORD JUSTICE SCOTT BAKER: We have that point.

MR BEAUMONT: So be it. So far as the quantum of this is concerned, we submit that it is remarkable and utterly disproportionate that anyone should seek to claim 9,000 -- I think the total is £8,000-odd plus VAT for what was a 30-minute hearing. The other problem with this is, on the one part it seeks to claim hourly rates at £400 an hour, yet when it comes to the hearing it seeks to charge a brief fee. So the summary assessment application seems to have its cake and eat it. It seeks to charge both hourly rates and a very hefty brief fee for a 30-minute period, which is utterly disproportionate in the circumstances. I cannot say more than that in relation to quantum. What I can indicate is that my fees for the whole exercise, that is in relation to the interlocutory matters and drafting of the appeal are £10,000, so to charge £9,000, or £8,000 plus VAT for a 30-minute hearing is utterly disproportionate even allowing--

LORD JUSTICE SCOTT BAKER: What do you say about the Law Society's claim for costs?

MR BEAUMONT: As against Mr Virdi?

LORD JUSTICE SCOTT BAKER: Yes.

MR BEAUMONT: What I would say is one or two points if I may? In relation to the concessions that I have made, it is a case of damned if you do, damned if you do not. I did not receive -- despite assurances that I would do so -- the Law Society's detailed 50 page odd skeleton argument until Monday, I think, it was the 9th. When it was received there had been specific representations that this document was being prepared and served by Mr Barton. When it was received I did not recognise the author. It turns out that the email came from a junior at Fountain Court. Without telling us, and I have made this comment before, the Law Society instructed leading counsel. There we were in the week before the hearing, and that was the first time that we had been told they were relying on leading counsel. That document relied, so far as reasons are concerned, on an authority called Jiwaji, an unreported case, but a very, very important case which your Lordship has not had to look at, I do not think. The essence of that decision was that it placed in context various criticisms about the absence of reasons and detailed reasons, which was an argument that permeated a number of grounds. Within 24 hours of receiving that document, that is by the Tuesday evening and despite personal illness as well, I had decided that due to the decision in Jiwaji a number of these points could not be pursued. I had until then no knowledge of this unreported decision. There is absolutely no reason, in my respectful submission, why the Law Society could not have drawn that authority to our attention at an earlier stage and said: "Look, by virtue of this decision, you cannot run a number of grounds". That could have been done at an early stage. They have, as I understand it, a detailed archive on all decisions affecting their process. They did not draw it to our attention. They waited to this late stage. I withdrew those points within 24 hours, again despite a period of personal illness. I withdrew by the Tuesday evening a number of those points by personal email to Mr McLaren and yet I am damned for having done so. If the Law Society had drawn to our attention this unreported decision at a much earlier stage, and plainly could have done so before Christmas 2008.

MR JUSTICE DAVID CLARKE: This will be your answer to any argument, if it is ever advanced, that a wasted costs order should be made. It is not an answer to the application for costs in principle.

LORD JUSTICE SCOTT BAKER: The fact is that you have just lost all along the line. Why should not your client pay the costs?

MR BEAUMONT: That is one point I make in relation to concessions. Actually I had apprehended that this point needed to be dealt with in relation to the costs application itself. On the one hand, the Law Society kept its powder dry to the latest possible stage. As soon as we withdrew, based on this Jiwaji decision on a number of points and made it clear what we were arguing, we nevertheless have been condemned for having done that. If they had drawn this to our attention and carried on nonetheless, yes, I accept that would be entirely blameworthy but, in my respectful submission, the tenor and detail of your Lordship's judgment is such that it cannot be seriously suggested that the primary ground of appeal was one that was utterly misconceived. In fact your Lordship has, if I may be forgiven this, circumvented my main critic of the regulation 31 point which deals with matters of trial procedure and not administration. Your Lordship has not actually made any finding about that. It cannot be said that that argument was not actually quite a close run thing, in my respectful submission, by which I mean the statutory point.

Another point I make in relation to costs application is that Mr Hopper and I, as sole counsel -- you may remember, I do not have an instructing solicitor, I only have Mr Virdi to support me and he instructs under the Public Access Scheme. Mr Hopper has dealt with the matter on his own, yet the Law Society has attended with two senior counsel - one leading counsel and a senior solicitor-advocate. We submit that is disproportionate. So such costs as they are permitted by way of an order that follows the event. I accept that basic proposition must, to be proportionate, should be limited to the costs of senior counsel. I balk at the suggestion that this was not a case fit for leading counsel. I make that point faintly. On the other hand, your Lordship has already held this was a complex matter. So really costs of one counsel only should follow the event and there is also the point about the Law Society unsuccessfully resisting the SDT's violation as found of Article 6. As far as the SDT is concerned, we respectfully submit that they were estopped from pursuing any costs whatsoever, despite the suggestion that the application for disclosure was ill founded. I simply pray in aid the fact, as far as that is concerned, it was very much virgin and untrodden territory. It was a matter for argument and serious consideration.

Finally, in relation to this wasted costs idea, either the Law Society should pursue this or it should not pursue it. What is not proper is simply to flag something up. The court is not concerned with parties who flag up applications they have not made. Either the application should be made or not. If it is made it is then for the court, as I understand Ridehalgh v Horsefield, to deal with the matter summarily and as a matter of impression and require a means to show cause why I should not pay wasted costs. There are other considerations, such as I cannot tell the whole story due to the effect of privilege -- I am thinking on my feet, this is the first that I have heard of this.

LORD JUSTICE SCOTT BAKER: There is no wasted costs application at present. I am not quite clear why you are going down this road at 5.53 pm. I am quite certain that everybody in the court is anxious to get away.

MR BEAUMONT: I will call a spade a spade. This is, in my respectful submission, just a form of personal intimidation. There was an awful lot of friction between Mr Barton and myself. If he is going to make this application, he should make it--

LORD JUSTICE SCOTT BAKER: Mr Beaumont, if anybody has raised the temperature in this case, it is you. I think you ought to appreciate that.

MR BEAUMONT: I am sorry, I do not accept that. I have done my very, very best for Mr Virdi. If it is an offence to present one's case vigorously and to do one's very, very best, as I have said it is a very sad day when the Bar cannot stand up both for itself and for people in a vulnerable position like Mr Virdi. We are supposed to be courageous and to do our very, very best. If that involves raising temperature, it has to be remembered that we were not prosecuting anybody; I was doing my best to defend my client. I am sorry if your Lordship regards that as offensive. I will defend that position and proposition anywhere at any time. Actually, I was going to ask your Lordship -- may be it is too much to ask -- whether your Lordship would be willing, in a summary fashion, to spring to my defence in something of a sporting manner and to indicate that I have done my very, very best within the traditions of my profession. It is grossly wrong and improper for Mr Barton, without the imprimatur of Mr McLaren QC -- and I cannot imagine he would give it -- that it is grossly wrong for this to be flagged up, as it were. I take that as a matter of personal intimidation. If the application is going to be made, fine, I will then instruct BMI accordingly and all sides can pursue my insurers. But really personal intimidation is not what this is about and I will not accept it. I do ask the court to indicate whether the court considers that I have done anything improper in the course of presenting this appeal. I ask your Lordship for your Lordship's assistance in that respect and I ask for it now please?

LORD JUSTICE SCOTT BAKER: Is that all?

MR BEAUMONT: It is. I ask for your Lordship's assistance.

LORD JUSTICE SCOTT BAKER: Mr Barton, do you wish to add anything?

MR BARTON: No, I do not think there is anything I can usefully say. Under the provisions of CPR 47, there is no obligation upon me to make an application now and I do not do so. I have said what I have said and I leave it at that. I having nothing to say in relation to the observations of Mr Beaumont.

MR HOPPER: My Lord, in order to spare Mr Barton from defending his own position, may I say that I was present during costs discussions and heard the instructions from Mr McLaren to his junior. The matter has been put on the basis of leading counsel's advice and guidance.

So far as the comments about me are concerned, I take them in reverse order. My schedule reflects the fact that in some respects, like Mr Beaumont, I work alone. When one prepares a schedule of costs, because I am a solicitor as well as dressing up occasionally--

LORD JUSTICE SCOTT BAKER: We have not, of course, been into the schedule and it may be that this is not a case for a summary assessment.

MR HOPPER: I am in your Lordships' hands. It is a very late time of day to be arguing this. I am merely explaining two things I think. The first is that my practice is to split what I do into preliminary stages and call that solicitor's work and everything from skeleton argument on to be part of the brief fee. So far as it appears to be a lot for a half-an-hour appointment, my Lords will recall that we had at very short notice to deal with matters of very considerable principle.

My Lords, on the question of estoppel, if my learned friend is right and what I said when indicating that we would not want to add to the costs of this matter as a result of intervention, that that is to be interpreted against me in such a way that any application, any course of action could be pursued which would incur me and those instructing me--

LORD JUSTICE SCOTT BAKER: Speaking for myself it seems to be a complete nonsense that point.

MR HOPPER: Do you need my assistance in relation to the application of costs against the Tribunal?

LORD JUSTICE SCOTT BAKER: I do not think so.

LORD JUSTICE SCOTT BAKER: The Law Society is to have the costs of the appeal against the appellant, to be taxed if not agreed.

As far as the Tribunal is concerned, we think that it is appropriate that the appellant should be condemned in costs thrown away by the unnecessary interlocutory application. On the other hand, Mr Virdi has succeeded on an important point of principle in establishing a violation of Article 6 through the delay and, in the light of that, taking a broad view, what we propose to do is to reduce the amount of costs that would otherwise be payable to the Tribunal in respect of the aborted application, for which £9,476 is sought. That would have been the subject of a detailed assessment had it stood alone. But meeting the broad justice of the case, we think that the right course is to order Mr Virdi to pay £5,000 to the Tribunal. We make it clear that the Tribunal has not sought any other costs of intervening in the proceedings. Is that clear?

MR HOPPER: Eminently so.

MR BARTON: Thank you.