IN THE MATTER OF THE SOLICITOR'S ACT 1974 v RE A SOLICITOR [2002] EWCA Civ 960

ON APPEAL FROM THE LAW SOCIETY
[2002] EWCA Civ 960Venue Royal Courts of Justice, Strand, London WC2A 2LL, Monday 1 July 2002
Between
IN THE MATTER OF THE SOLICITOR'S ACT 1974RE A SOLICITORNO 8 of 2002(ALAN BURDETT)
Before
The Master of the RollsLord PhillipsMR ALAN NEWMAN QC (instructed by Messrs Michael Wood & Co, Preston) appeared on behalf of the Appellant.MR ANDREW MILLER (Instructed by the OSS, Leamington Spa, CV32 5AE) appeared on behalf of the Law Society.Date 1 July 2002
[1]LORD PHILLIPS, MR: On 22 February 2002 a Law Society adjudicator resolved:
"Pursuant to the provisions of Section 13A of the Solicitors Act 1974 (as amended), to impose immediate conditions on the current Practising Certificates of Mr Wood and Mr Burdett for the time being in force .... that they may act as solicitors only in employment which is approved by the Office for the Supervision of Solicitors in connection with the imposition of that condition or as members of partnerships which is so approved; any prospective employers or partners must be informed of these conditions."
[2]I need not go into the circumstances in which that resolution was made, other than to say that the two partners in question were partners in a practice which had broken down in circumstances which raised considerable concern, and had resulted in matters being referred to the Solicitors' Disciplinary Tribunal in relation to each of them.[3]Both Mr Burdett and Mr Wood applied to the Adjudication Panel for review. The adjudicator had resolved that the condition should become effective at the expiry of three calendar months of notification to the partners. The Adjudication Panel did not reach its decision until after that date. It was communicated to Mr Burdett on 14 June, and confirmed the adjudicator's decision but extended the time for conditions to take effect to the present day. Mr Burdett immediately appealed to me. He now applies to me for interim relief in the form of an extension of the conditions until the appeal before me has been heard.[4]It is common ground that this practice cannot continue. Mr Burdett has proposed an alternative under which, in effect, he takes over the existing practice in the existing premises in partnership with two other solicitors who are currently employed by the practice.[5]There has been put before me an agreement dated 28 June 2002, signed by both partners, under which they undertake to appoint the two solicitors, to whom I have referred, as equity partners in the partnership from 9am today, and to undertake that such partners of this partnership who are in breach of the condition imposed under the Regulations shall retire from the partnership with immediate effect. This means that unless I accede to the application, both Mr Wood and Mr Burdett retire from the partnership.[6]I have decided to direct that the conditions, in so far as they affect Mr Burdett, be further suspended until the hearing of his appeal before me, subject to the proviso that he should not undertake any new business. His activities as a solicitor are to be limited to conducting the existing business of his firm. In my view, this will be in the best interests of those current clients of the firm who will not be left in limbo and at the same time the wider interests of the public.[7]I am anxious that a date should be fixed for the appeal to me in the near future. It does not appear that there are any difficulties in relation to that.[8]MR NEWMAN: Mr Burdett is anxious to have clarification about one matter. Does your Lordship's ruling have the effect that it is only Mr Burdett who is able to take on new business.[9]LORD PHILLIPS, MR: If this agreement is valid, there would be two new partners over whom I have no jurisdiction. I do not think I can make any ruling over what they do, unless Mr Miller seeks to persuade me to the contrary. The problem is that, under the current condition, Mr Burdett cannot practise in partnership with them unless the Law Society approves of this. Therefore, I think it is probably open to me to say that this partnership should not conduct new business.[10]MR MILLER: I would urge you to say so and to hold that your own ruling has that meaning. As you will know, the partnership is, as yet, unapproved. Whilst I am very relieved that the position of Mr Wood has been clarified - and I do not pre-empt any decision in respect of the partnership - but the Law Society has some concern that these two gentlemen who are being brought into the partnership are relatively recently qualified, have no management experience that we know of and their entire experience as solicitors since qualification has been within this firm. It is a firm with a particularly difficult regulatory history and series of failings. Perhaps I can put it in this rather negative way: one would feel much more confident if it was someone with experience from the outside. To that extent, the Law Society feels that there is still a question mark.[11]LORD PHILLIPS, MR: I follow that. These are matters which will be developed at the hearing. If both these partners under this agreement ceased to be partners in the firm, so there are simply two new equity partners, they would be entitled, would they not, to practise in partnership and accept new business?[12]MR NEWMAN: In effect they have set up a new firm, yes.[13]LORD PHILLIPS, MR: That is, in effect, what would happen, it would take on the existing firm. In those circumstances, it seems to me a little difficult for me to make any ruling as to the business they should undertake. I think it is desirable that this firm should not be undertaking new business pending the clarification of Mr Burdett's position, but I think I only have jurisdiction, either to take him out of the partnership altogether or to direct that he can continue with these partners protem, but only on terms he does not undertake new business.[14]MR MILLER: You can certainly so rule, but I would submit that it is open to you also to rule that he is granted the relief you grant him today only on condition that he and his partnership do not undertake new business beyond that which they already have. The reality is that it is Mr Woods and Mr Burdett's goodwill we are speaking of here. It seems to me that it is perfectly proper, and I think the better and safer course in the circumstances, for the partnership to be limited in that manner. I say that in the hope that this matter will come to an early hearing so that we are dealing with a relatively short period of time. There is the danger that if the alternative partners can, as it were, take new business, it is going to be all too easy to drive a coach and horses through your proviso. One has some concern about that given the history of this business.[15]LORD PHILLIPS, MR: Is there any reason why this cannot come back within two weeks?[16]MR NEWMAN: Mr Thompson and Mr Brunning were not partners in the old firm at all, they were assistant solicitors. In any event, it would be wholly wrong for your Lordship to seek to invoke any sort of restriction on their Practising Certificates where they are not alleged to have done anything and where they are not even here before your Lordship to make representations. I would submit that your Lordship does not have jurisdiction to do so in respect of Mr Thompson and Mr Brunning.[17]LORD PHILLIPS, MR: Having heard those submissions, I think it would be very difficult to implement a condition to say that solicitor A can only act in partnership with solicitors B and C provided that solicitors B and C are not undertaking new business. On the basis that this matter can, and should be brought back before me in a matter of days, I am not going to vary the previous order I made that Mr Burdett must not seek or conduct new business pending that hearing.[18]MR NEWMAN: The only other matter is this that before your Lordship came into court, I made inquiries of my learned friend to find out roughly how long it might be before there would be some sort of substantive response to the suggestion that Mr Burdett has made in relation to the new partnership. Without in any way holding my learned friend to a date, I am told it might be about a fortnight to three weeks. The reason I say that is, whilst I fully appreciate the need for urgency of the hearing before your Lordship, I would invite your Lordship to give sufficient time for this matter to be resolved without having to have a substantive hearing.[19]LORD PHILLIPS, MR: If there is going to be an issue to be canvassed before me, it is going to be an issue as to whether or not this proposed new partnership is acceptable. Therefore, there must be sufficient time for the Law Society to form a view on that. That is one of the matters I had in mind when I asked Mr Miller whether two weeks would be enough.[20]MR MILLER: I hope to be able to bring this to a decision within that time.[21]LORD PHILLIPS, MR: Can you arrange with my clerk for a date before the end of term, having spoken to Mr Miller to make sure that the Law Society will not be saying, "We have not had enough time".[22]MR NEWMAN: At 9.30 in the morning?[23]LORD PHILLIPS, MR: That is the norm, yes, unless there is any reason to find an alternative time.[24]MR NEWMAN: On the matter of costs, would your Lordship simply reserve costs to the hearing?[25]LORD PHILLIPS, MR: That is what I had in mind.

Cited in 1 later judgment