No 4 of 2006 v Davis & McGlinchey [2006] EWCA Civ 1869

[2006] EWCA Civ 1869

ON APPEAL FROM THE LAW SOCIETY

Venue Royal Courts of Justice

Strand

London, WC2

Date Monday, 18 th December 2006

B E F O R E:

SIR ANTHONY CLARKE

(THE MASTER OF THE ROLLS)

IN THE MATTER OF THE SOLICITORS ACT 1974

RE A SOLICITOR

No. 4 of 2006

DAVIS & MCGLINCHEY

(DAR Transcript of

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MR G MARRIOT appeared on behalf of the Appellant.

MS M BROMLEY appeared on behalf of the Respondent.

JUDGMENT

Between

No 4 of 2006Appellant

Davis & McGlincheyRespondent

SIR ANTHONY CLARKE MR

[1]: This is an appeal under section 13A of the Solicitors Act 1974 by Mr Davis and Ms McGlinchey against conditions imposed upon practising certificates issued to them both for the practice years 2004/2005 and 2005/2006. No application has been made to suspend any of the conditions imposed on the two sets of practising certificates. However, the Law Society has agreed to a stay of the conditions pending the outcome of this appeal. While there are numerous conditions imposed on the two sets of practising certificates, the essential issue in these appeals is whether the Law Society was justified in concluding that, from 1 July 2006, neither Mr Davis nor Ms McGlinchey should be permitted to practise in anything other than employed practice. I should add that they have each applied for a practising certificate for 2006/2007.

Background

[2]Ms McGlinchey was admitted as a solicitor on 2 November 1998. Mr Davis was admitted as a solicitor on 1 March 1989. They practised together in partnership under the name PD Associates (sometimes called PDA) from January 2001 to September 2006. Before entering into partnership with Ms McGlinchey, Mr Davis had been a partner in a firm which practised under the name of Paul Rooney Partnership. From September 2006 Mr Davis and Ms McGlinchey have practised in partnership as Amber Legal. It appears that PD Associates’ main practice was in personal injury work, with a degree of housing repair work. The work was principally done under conditional fee agreements, or CFAs. The appellants submit that their practice was, almost from the outset, beset by problems that arose outside their control. Those problems arose, in part at least, due to what they describe as “the effective collapse of the PI market and the housing disrepair market”. The former market collapse arose, it is submitted, due to the failure of a particular player in the market.

[3]Mr Davis and Ms McGlinchey’s practice has been subject to numerous complaints, regulatory and disciplinary actions since it commenced. They can be summarised in this way: 1) Mr Davis was in breach of principles 19.01 and 20.04 of the Guide to Professional Conduct of Solicitors and of Rule 1 of the Solicitor’s Practice Rules by failing to provide proper information to Weightman Vizards arising out of a housing disrepair matter in 2002. Mr Davis was severely reprimanded by the Law Society adjudicator on 5 March 2003. 2) Ms McGlinchey was found guilty of conduct unbefitting a solicitor by the SDT on 3 December 2003 in that, as she admitted, she had failed properly to deal with correspondence received from the Office for the Supervision of Solicitors (“the OSS”) which had asked her to supply details of PD Associates’ complaints handling procedure. She was fined £1,000 and ordered to pay costs. 3) Both Mr Davis and Ms McGlinchey were issued practising certificates for 2003/2004 with conditions attached. Those conditions required them both to attend accredited practice management and client care courses during that year. The conditions were imposed due to the number of outstanding client complaints against the firm, to Ms McGlinchey’s appearance before the SDT and to the fact that two sets of debt recovery proceedings had been issued against the firm, although they had been subsequently settled. The specific details of the complaints, which span 2002 to 2004, are set out in two case worker reports to which I do not need to refer in detail. Both Mr Davis and Ms McGlinchey attended the required courses. 2004/2005 case worker reports

[4]Both Mr Davis and Ms McGlinchey were issued practising certificates for 2004/2005 subject to conditions. The conditions were imposed consequent on two case worker reports on the partnership. In addition to the above those reports included the following: 1) PD Associates were subject to 14 adverse county court judgments, while Ms McGlinchey was personally subject to one such judgment. Those judgments had however either been satisfied or set aside. 2) Following a successful review a decision to refer Ms McGlinchey’s conduct in communicating directly with a Mrs Stephenson, who she was aware had instructed solicitors in breach of the Guide to Professional Conduct to the SDT, she was severely reprimanded by the adjudicator. 3) Mr Davis and Ms McGlinchey’s failure to respond to correspondence from the Law Society in respect of a practice standard unit report of 10 March 2003 had resulted in them being referred to the SDT. 4) PD Associates have been found to provide inadequate professional services to a Mrs Terry through failing to register a property transfer with the Land Registry having previously delayed stamping the transfer. They have also failed to respond properly to complaints arising out of this.

[5]Seven matters were also set out which formed part of the material referred to the SDT in respect of both Mr Davis and Ms McGlinchey’s conduct. 13 further complaints were detailed. Of those, 11 subsequently formed the basis of a finding of inadequate professional conduct, communicated in only April 2006. I shall refer to them in a moment. Finally, one outstanding matter was set out. This related to a number of alleged breaches of Conditional Fee Regulations 2000 by PD Associates which had been brought to the Law Society’s attention by Master O’Hare. 2005/2006 case worker reports

[6]Two further case worker reports were produced following applications by Mr Davis and Ms McGlinchey for practising certificates for 2005/2006. Those reports incorporated the matters set out in the previous case worker reports, prepared for the 2004/2005 practising certificate application. They also include some further matters, including two county court judgments that had been registered against Mr Davis personally, both of which had been settled or set aside. There were a number of further complaints. 2004/2005 practising certificate decisions

[7]Mr Davis was granted a practising certificate on 11 October 2005 for 2004/2005 subject to a number of conditions. The adjudicator imposed conditions in these terms:

“1. I have DECIDED to grant Mr Paul Davis a practising certificate for the remainder of the 2004/2005 practice year subject to the conditions that he may act as a solicitor only: 1 .1 in employment or partnership, or 1.2 as a member, office holder or shareowner of an incorporated solicitors' practice, the arrangements for which have first been approved by the Law Society. “2. Mr Davis shall immediately inform any actual or prospective employer, partner, co-member/office holder/shareowner of these conditions and the reason for their imposition. “3. For the purposes of the condition outlined at paragraph 1 above, pending the outcome of the disciplinary proceedings, I have DECIDED to approve Mr Davis’ current partnership with Ms McGlinchey, SUBJECT TO the following further conditions:- 3.1 Phyllis Laidlaw is employed by the partners as practice manager, and 3.2 no new adverse disciplinary or regulatory matters arise, and The Law Society receives no new client complaints concerning the firm.” 1 .1 in employment or partnership, or 1.2 as a member, office holder or shareowner of an incorporated solicitors' practice, 3.1 Phyllis Laidlaw is employed by the partners as practice manager, and 3.2 no new adverse disciplinary or regulatory matters arise, and The Law Society receives no new client complaints concerning the firm.”

[8]The adjudicator imposed these conditions for these reasons:

“I am satisfied that a condition of approved employment or partnership is necessary and appropriate in the interests of the public or the profession, having regard to the outstanding disciplinary proceedings. Those raise serious issues of concern, and whilst no conclusions can be drawn at the present time with regard to the outcome of matters that have yet to be determined at The Solicitors Disciplinary Tribunal, I am satisfied that it is reasonable in the circumstances to take action to ensure continuing public confidence in the profession. “I have had regard in particular to guidance issued by the Master of the Rolls in matter No. 13 of 2001. Lord Philips remarked: ‘For the Law Society, (it is) submitted, and in my Judgement correctly submitted, that, in principle, it is right for the Office for the Supervision of Solicitors to have regard to outstanding matters referred to The Solicitors Disciplinary Tribunal when considering whether a solicitor should be permitted to continue without a condition on his Certificate. Plainly, there will be circumstances where matters referred to The Solicitors Disciplinary Tribunal are so serious that, for the protection of the public, a solicitor cannot be permitted to continue without any condition in the interim.’ “In deciding whether or not to approve the present practising arrangement, I have noted the evidence provided in relation to the Judgment debts referred to in the report. “The number of complaints received in relation to P D Associates, now referred to The Solicitors Disciplinary Tribunal, is a matter of concern. I acknowledge however that the partners have now put in place measures to address the difficulties there have been in the past. They have recruited a practice manager, herself an experienced solicitor, who, I am informed, has a 'clean practising certificate'. She will take charge of procedures and administration at the firm, in order to ensure compliance with the rules and requirements of professional practice. Steps are in hand to apply for LEXCEL accreditation. She will take responsibility for managing any complaints. “Accordingly, I am satisfied that it is appropriate to permit the present partnership to continue on the terms indicated. Note however that in the event that the conditions imposed are not met, then it would be reasonable to review the approval granted to Mr Davis and Ms McGlinchey to continue in practice together, pending the outcome of the disciplinary proceedings, and other terms may be considered necessary. This may include a condition that the present partnership is discontinued if it is apparent that Mr Davis and Ms McGlinchey require extra support and supervision which the present arrangement does not provide.”

[9]Ms McGlinchey was issued a practising certificate for 2004/2005 subject to identical conditions to those imposed on Mr Davis’ certificate. The conditions were imposed, again on 11 October 2005, for precisely the same reasons. To my mind in those reasons the adjudicator made the position clear to the appellants. By letters dated 26 January 2006, Mr Davis and Ms McGlinchey appealed out of time against the adjudicator’s decisions of 11 October 2005. Permission to appeal out of time was granted in both cases. Both appeals were, however, essentially dismissed for identical reasons, although the panel did vary the adjudicator’s decision in both cases in an important respect. The decisions were communicated to Mr Davis and Ms McGlinchey by identical letters dated 3 April 2006. The decision of the panel in Mr Davis’ case was in these terms:

“The Panel resolved to vary the adjudicator’s decision on 11 October 2005 and substitute the following decision: ‘1. The Panel DECIDEDto grant Mr Paul Davis a practising certificate for the practice year 200412005 subject to the conditions that he may act as a solicitor only: 1.1.1 in employment which has first been approved by The Law Society; 1.1.2 he is not a member, office holder or shareowner of an incorporated solicitors' practice; 1.1.3 he is not a sole principal, partner or salaried partner of any solicitors’ practice. ‘1.2 He shall immediately inform any actual or prospective employer of these decisions and the reason for the imposition of the conditions on his practising certificate. ‘1.3 Conditions 1.1.1-1.1.3 shall become effective on 30 June 2006 in order to afford an opportunity to Mr Davis to make alternative practicing arrangements. Condition 1.2 shall have immediate effect. ‘1.4 Until 30 June 2006 Mr Davis' practising certificate shall be subject to the conditions imposed on his 2004/2005 practising certificate by the Adjudicator on 11 October 2005, with the exception of condition 3.2. Mr Davis is therefore granted approval to practise in partnership together with Ms McGlinchey until 30 June 2006 subject to The Law Society's discretion to review the approval and the conditions attaching to it as it thinks fit. For the avoidance of doubt, on 1 July 2006 the condition that he may practise only in approved employment as set out in paragraph 1.1.1 to 1.1.3 above shall become effective and therefore Mr Davis will no longer be permitted to practice as a principal of a firm, either with Ms McGlinchey or otherwise from that date. ‘1.5 The Panel expressed the view that any application for approval of employment where it is proposed that Mr Davis and Ms McGlinchey would be working in the same firm at the same office and/or with the same supervisor would be unlikely to succeed.’”

The conditions imposed on Ms McGlinchey’s 2004/2005 practising certificate were varied in identical terms. The panel first said that it:

“… considered that there were no grounds for thinking that the original decision of the adjudicator was so flawed that they should treat it as a reconsideration”. ‘1. The Panel DECIDEDto grant Mr Paul Davis a practising certificate for the practice year 200412005 subject to the conditions that he may act as a solicitor only: 1.1.1 in employment which has first been approved by The Law Society; 1.1.2 he is not a member, office holder or shareowner of an incorporated solicitors' practice; 1.1.3 he is not a sole principal, partner or salaried partner of any solicitors’ practice. ‘1.2 He shall immediately inform any actual or prospective employer of these decisions and the reason for the imposition of the conditions on his practising certificate. ‘1.3 Conditions 1.1.1-1.1.3 shall become effective on 30 June 2006 in order to afford an opportunity to Mr Davis to make alternative practicing arrangements. Condition 1.2 shall have immediate effect. ‘1.4 Until 30 June 2006 Mr Davis' practising certificate shall be subject to the conditions imposed on his 2004/2005 practising certificate by the Adjudicator on 11 October 2005, with the exception of condition 3.2. Mr Davis is therefore granted approval to practise in partnership together with Ms McGlinchey until 30 June 2006 subject to The Law Society's discretion to review the approval and the conditions attaching to it as it thinks fit. For the avoidance of doubt, on 1 July 2006 the condition that he may practise only in approved employment as set out in paragraph 1.1.1 to 1.1.3 above shall become effective and therefore Mr Davis will no longer be permitted to practice as a principal of a firm, either with Ms McGlinchey or otherwise from that date. ‘1.5 The Panel expressed the view that any application for approval of employment where it is proposed that Mr Davis and Ms McGlinchey would be working in the same firm at the same office and/or with the same supervisor would be unlikely to succeed.’”

[10]The panel gave a number of detailed reasons for the decisions which I have quoted. They replicate its reasons for imposing conditions on both Mr Davis and Ms McGlinchey’s 2005/2006 practising certificates, which it did on the same date. I turn to the 2005/2006 decision.

Practising certificate decisions 2005/2006

[11]In the light of the matters set out in the two case worker reports drafted in response to the 2005/2006 practising certificate applications, the panel on 29 March 2006 decided to issue practising certificates to Mr Davis and Ms McGlinchey subject to a number of conditions. The conditions imposed on the two certificates were identical. The conditions were also identical to the conditions attached by the panel to the 2004/2005 practising certificates which I have quoted. It is not necessary to quote them again. As can be seen, the essence of the decisions in relation to both the 2004/2005 certificates and the 2005/2006 certificates was that the appellants would continue in partnership subject to the 11 October decision until 30 June, except that condition 3.2 was removed. Thus the panel accepted the appellant’s case that condition 3.2 was unworkable. However, from 30 June, which it will be noted is three months from the date of 29 March adjudication, the appellants were not to be permitted to practise in partnership.

[12]The panel gave detailed reasons for its decisions which may be summarised in this way: 1) There were good grounds to intervene in their practice despite the absence of any allegations of dishonesty. 2) Those reasons included the history of ignoring the Law Society’s efforts to regulate their practice in the interests of the public and the profession.

[13]In arriving at its decision, the panel took account amongst other things of the following: the large amount of evidence of complaints about the running of the practice, which included conspicuous failures to respond to letters from clients and the Law Society: 1) The adverse finding imposed on Ms McGlinchey by the SDT for her failure to respond to the Law Society, and her failure to learn the lesson arising from that decision -- that is, she continued to fail to respond to the Law Society’s correspondence with her. 2) The appointment of Ms Laidlaw as practice manager had not been beneficial to the proper running of the practice as it had not stopped further failures on the part of them both to attend meetings with the Law Society in June 2005 which had thereby hindered its investigation of their practice. 3) Complaints against the firm had, notwithstanding Ms Laidlaw’s appointment, continued to be dealt with in an unsatisfactory manner. Further complaints had been made by Gateshead Council. Their behaviour had “bordered on the oppressive” insofar as their clients were concerned and they had effectively buried their heads in the sand, insofar as complaints were concerned. Their complaints handling system had not improved. They had both been blacklisted by the Bar Council under the withdrawal of credit scheme. 4) There had been a large number of complaints over the past few years, a large number of which had resulted in findings of professional misconduct and/or inadequate professional service. There was evidence that their client’s case had not been properly progressed. One had been struck out and, in two other cases, limitation periods had been missed, amongst other things. They had been required to attend client care practice management courses, to no noticeable beneficial effect.

[14]In paragraph 4.7.9 of the panel’s reasons it said:

“4.7.9 The Panel noted that conditions on the Partners' 2004/2005 practising certificates enabled them to practice as a principal with each other and no other principal. However the Partners' approval to practice together was subject to a condition that Ms Laidlaw, a solicitor, was employed as a practice manager to deal with the complaints. The Panel doubted the impact an employed solicitor could reasonably have over the Partners in a practice as they ultimately paid the wages of the Practice Manager and determined whether she had a job or not. As principals of the firm the Partners could choose to ignore any proposals for dealing with client matters etc that the Practice Manager may suggest. It was also noted that since the appointment of the Practice Manager, complaints had come through to The Law Society and Mr Davis and Ms McGlinchey had failed to respond to correspondence from The Law Society properly or at all, in particular an authority requested at the meetings in June 2005 had, despite several reminders, not been produced until Mr Marriott's letter of 22 March 2006, some 6 months after it had first been requested. This led the Panel to consider that the appointment of MS Laidlaw had, for whatever reason, not had the effect which had been hoped for when the condition was imposed. It seemed to the Panel that this failure had seriously hindered the Law Society's conduct of their enquiries.”

In the light of these points the panel concluded:

“4.7.19 The evidence of repeated failures by Mr Davis and Ms McGlinchey to respond to the Law Society and/or clients who complain, promptly or at all, gave rise to concerns that it was not in the public interest to continue to permit Mr Davis and Ms McGlinchey to practise as principals. They each had a well documented history of not responding properly or at all with their regulatory body. Therefore the Panel were not convinced that if they were permitted to practice as principals of a practice that the Law Society would be in a position to regulate their practices properly. The Panel therefore concluded that it was not in the public interest to permit Mr Davis or Ms McGlinchey to practise as a principal of any practice regulated by the Law Society. “4.7.20 The matters which have resulted in Mr Davis and Ms McGlinchey’s referral to the Solicitors’ Disciplinary Tribunal have yet to be tested before the Solicitors’ Disciplinary Tribunal.”

The panel then repeated the statement of Lord Philips in No. 13 of 2001, which is quoted above. It continued:

“4.7.21 In light of the seriousness of the partners’ history with the Law Society and the allegations which are to be put before the Solicitors’ Disciplinary Tribunal and the supporting evidence, the Panel considers that it is in the interests of the public and the profession that each of Mr Davis and Ms McGlinchey’s practice as a solicitor be subject to a high degree of supervision and support for the time being.”

[15]The panel also decided, due to the seriousness of matters arising against them both, to refer Mr Davis and Ms McGlinchey to the Director General of Fair Trading for his consideration whether to exclude either or both of them from the group consumer credit licence issued to the Law Society. On the same date, the panel considered the quality of professional services provided by PD Associates in respect of complaints made by 11 clients. Ms Bromley submits that, in respect of all those matters, the panel decided that the service provided to the clients was inadequate. They directed that the appellants should pay varied amounts of compensation for each of the clients. In respect of some of the complaints the panel directed that the appellants should pay in full any outstanding loan that the client had with the finance provider and provide evidence that this had been done within 28 days to the Law Society.

[16]In the case of one client, Mrs Beck, the panel directed that in relation to the two adverse costs orders payable by Mrs Beck dated 13 August 2003 and 15 January 2004, those costs should be paid in full by Mr Davis and Ms McGlinchey to Neath and Port Talbot County Council. In the case of another client, Ms Nancholas, the panel directed that the petitioners should pay any disbursements still arising from her claim. The appellants were informed of those decisions by letters dated 4 April 2006.

[17]The appellants appealed against the conditions imposed on their practising certificate for 2005/2006. That appeal was dismissed on 25 May 2006. Since 11 October 2005 a number of further complaints have been received by the Law Society, including complaints by Dickinson Dees; Gateshead Council; Ms Gorman; Merthyr Tydfil Council; the Bar Council; Hugh James; Mr Nyomtato; Mrs Tracey Davies and Mrs C Lewis. Ms Bromley submits that a common thread running through many of the complaints is failure to keep clients informed; failing to release papers; failing to respond to correspondence; failing to comply with court orders and failing to respond to the Law Society. I will return to some of these matters in a moment but it appears to me that Ms Bromley’s characterisation of these events is broadly correct. Ms Bromley submits that the decision which is the subject of this appeal was an entirely reasonable and measured response by the panel to the particular circumstances of Mr Davis and Ms McGlinchey’s case.

Proceedings before the SDT

[18]There remain three or more sets of proceedings against both Mr Davis and Ms McGlinchey pending before the SDT. The first arises by way of an application by the Law Society, dated 6 April 2006, which relates to a number of matters that were set out in the various case worker reports to which I have referred. In addition to that two referrals have arisen from the Bar Council’s action, which withdrew them both from the Bar Credit Scheme and await a determination by the SDT. The first referral arose from their failure to respond to the Law Society’s request for confirmation that they had complied with the panel’s direction on 29 March 2006. The second referral arose from their failure to comply with the panel’s direction.

[19]Those matters arose after the two practising certificate decisions by the Law Society which are the subject of the present appeal. It is not, however, in dispute, as I understand it, that it is appropriate for me to take that into account in determining this appeal. Indeed the thrust of the case made by Mr Marriot on behalf of the appellants is that things have improved rather than the reverse since the decisions in early April 2006.

The present appeal

[20]The appellants’ case in this appeal is set out in an amended petition submitted by both appellants on 22 September.

The appellant’s submissions

[21]The basis of Mr Davis’ and Ms McGlinchey’s appeal is that the imposition of conditions on their practising certificates for 2004/2005 and 2005/2006 was disproportionate and that they are an unwarranted and unnecessary fetter on their ability to practise. They also complain that the conditions are illogical and irrational and that:

“They go against legitimate expectation given by the Law Society in 2003/2004, and the earlier decision relating to 2004/2005, and are unnecessary for the protection of the public.”

[22]They further submit that the Law Society’s handling of their case was unduly heavy-handed and oppressive and that if the conditions imposed remain on their practising certificates, they will have a catastrophic effect on them both, as it is most unlikely that they will secure alternative employment or be able to dispose of their practice at anything other than a nominal value. The appellants further rely on the fact that no suggestion has been made at any time of any dishonesty against either of them. The appellants set out detailed written submissions in support of their appeal. They may be summarised broadly as follows: 1) The Law Society’s handling of their 2003/2004 practising certificate application evidences an unwarranted and unnecessary enthusiasm for closing down a small practice. 2) As to the 2004/2005 practising certificate application, complaint is made or rather noted that the Law Society were not as thorough as they should have been in ascertaining whether the judgment debts arising against PD Associates had been compromised or satisfied. The suggestion is that a heavy handed approach was again taken by the case worker. The appellants take issue with the manner in which the Law Society alleged that they had breached the condition imposed on their certificates that no new complaints should arise. They say that the complaint relied on by the Law Society had arisen prior to the 11 October on which the conditions were imposed. They do however accept that new matters have arisen post 11 October 2005 although they submit that they are either of no substance or are in hand. [I note in passing as already indicated that as a result of the appellant’s efforts the panel removed condition 3.2 on the 2004/2005 practising certificate.] 3) As to the 2005/2006 practising certificate application, the appellants submit that the panel relied on no more than two fresh matters in addition to those that were before the Law Society the previous year. The suggestion appears to be that that was not sufficient to give rise to the more draconian conditions imposed on that year’s practising certificate. They submit that they had a legitimate expectation that the Law Society would, following 2004/2005, have given them time to put their practice in order and allow them to continue to practice with the same conditions as imposed on the 2004/2005 certificates. They submit that they have dealt with the issues raised by the Law Society “albeit more tardily than would be desirable”. 4) Insofar as issues raised by the Law Society in August 2006 are concerned, that is those relating to events after early April 2006, the appellants make a number of detailed submissions to which I will return. 5) As to the matters pending before the SDT hearing, in respect of four of the allegations of professional misconduct which relate to one client matter they accept that they did delay in dealing with it. They accept that allegations arising from a failure to pay costs to Kennedys “probably amounts to conduct unbefitting” a solicitor, although they state that those costs have now been paid. Five allegations are said to relate to matters that arose prior to October 2005 when they were going through a very stressful time. While not making any specific admissions, the appellants “fully accept that they have been guilty of conduct unbefitting” a solicitor, at least for the purposes of the present appeal. They submit that the SDT is likely to do no more than to fine them. 6) They say that from November 2006 they are in a position to employ a fully qualified practice manager. It is said that he will be able to fulfil that role with more rigour than Ms Laidlaw, who left the practice early in the year (I take it that that manager has now been employed). The appellants do however accept that ultimate responsibility for their practice rests with them. 7) In conclusion, the Law Society have failed to strike a proper balance between the appellants’ interest in being able to practise and the regulator’s interest in the protection of the public. They submit that the condition imposed will put an end to their practice and render them virtually unemployable. They recognise the need for conditions on their practising certificates, but submit that those conditions should enable them to continue to practise together.

The Law Society’s Submissions

[23]In the respondent’s submissions Ms Bromley sets out in considerable detail the disciplinary regulatory history of both appellants to which I have referred. She submits that:

“…a common thread running through many of the complaints, is failure to keep clients informed, failing to release papers, failing to respond to correspondence, failing to comply with court orders and failure to respond to the Law Society.”

Ms Bromley submits that the decision to impose conditions on both the 2004/2005 and the 2005/2006 practising certificates was entirely reasonable and measured in the circumstances. She further outlines a number of matters which she says are adverse to the appellants which have arisen since the decisions under appeal were made. I shall return to those in a minute.

[24]Ms Bromley submits that the imposition of conditions on practising certificates is a regulatory matter and not a punishment. They are imposed where they are necessary to protect the public and the profession. They are a means of safeguard and control. The question is whether the imposition of conditions is correct in principle. Due to the repeated failings in the operation of the appellant’s practice, and the fact that since the conditions were imposed they have continued to exhibit those same failings, there is no basis on which the decision to impose the conditions can be impugned. She submits that in the circumstances of the case the imposition of the conditions was right in principle and the conditions imposed were reasonable and proportionate.

Discussion

[25]It is clearly the case that solicitors must conduct themselves and maintain their practice to the highest of standards. This principle is not in dispute. It was clearly set out by Sir Thomas Bingham MR as he then was in his judgment in Bolton v The Law Society

[1994] 1 WLR 512

where he said in the Court of Appeal at page 518:

“It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness … Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees.”

In that case Sir Thomas Bingham was dealing with an appeal from the SDT which is not the case here. Equally he was dealing with a case of dishonesty so that he was referring in particular to a lack of integrity, probity and trustworthiness, which again is not the case here. I stress again that no allegation of dishonesty has been made against either appellant. The absence of dishonesty is of course an important consideration.

[26]However, the regulatory role of the Law Society is not limited to dealing with cases of dishonesty. The presence of dishonesty is not a necessary condition for either regulatory or disciplinary sanction. Lapses from the high standards required of solicitors can take more forms than those involving dishonesty. The appellants themselves accept in their petition that they have been guilty of conduct unbefitting a solicitor. They accept that some form of condition should be imposed on their practising certificates. The question is whether, in the light of their admitted lapses from the required high standard, the conditions imposed are in all the circumstances of the case disproportionate and oppressive.

[27]In deciding whether to impose regulatory conditions the Law Society must look to protect the public and maintain public confidence in the profession. In doing so it must inevitably sometimes make decisions which adversely affect individual solicitors. Adverse consequences to an individual solicitor do not in themselves render a decision, whether regulatory or disciplinary, based on the need to protect the public and public confidence in the profession, wrong in principle. It does not therefore follow that the imposition of conditions on practising certificates, which preclude solicitors from continuing to practise in partnership, are disproportionate or wrong in principle. It all depends upon the circumstances of a particular case.

[28]I have considered the detail which was before the panel and I do not accept the submission that the Law Society has acted in an oppressive or heavy-handed fashion. The condition imposed on the 2003/2004 practising certificate to undergo practise management and client care training appears to me to have been perfectly reasonable in the circumstances such as were known to the adjudicator at the time. Neither of the appellants challenged that decision and both undertook the required courses. Having attended the courts, the reasonable expectation would be that the conduct of their practice would have improved. From the evidence that was before the adjudicator in 2005 that improvement, unfortunately, did not materialise. Things seem if anything to have got worse.

[29]The appellants, for instance, were subject to 14 sets of legal proceedings which resulted in judgment debts against the partnership. It is true that those judgments were either set aside or varied, as the appellants point out in their written submissions. It is also right to record that the fact that they have been set aside or varied was recorded in the case worker reports that were submitted to the adjudicator on the 2004/2005 practise certificate application. However, it can hardly be said that allowing the situation to arise in which such proceedings resulted in judgment debts is other than a serious lapse. It appears to me that matters did not significantly improve in the period before 2005/2006. The appointment of a practice manager, Ms Laidlaw, which it was hoped would improve matters did not, in the event, significantly do so. It is true that the appellants have now appointed a new practice manager, but of course that had not happened at the time of the panel’s decision, and I will return to that in a moment.

[30]It seems to me that on the material available to the panel, the manner in which the appellants conducted their practice was, in a number of important respects, inadequate. I can see no reason to interfere with the decisions expressed in the letter of 4 April 2006, namely the decision of the panel to impose revised conditions on the practising certificate for 2004/2005 and the conditions which I have quoted on the practising certificate for 2005/2006. In the circumstances of this case, given the material before the panel including evidence of events between October 2005 and the consideration by the panel at the end of March 2006, both decisions were reasonable and proportionate and within the ambit of discretion to be afforded to a regulator. Neither appellant had shown himself or herself to be capable either individually or as working in partnership as able properly to discharge the professional duties to their clients or their responsibilities towards their regulatory body in a satisfactory way.

[31]It appears to me that the panel’s decision suitably protects the public and the public confidence in the profession. The conditions do of course permit the appellants to continue practising in employed practice. I have reached the clear conclusion that on the basis of the material before the panel of March 2006, there is no basis upon which I could properly interfere with the panel’s conclusion as to either the 2004/2005 certificates or the 2005/2006 certificates.

[32]I recognise that those decisions will have an adverse effect on the appellants, but it nevertheless appears to me to be a proportionate effect for the reasons advanced by Ms Bromley. However, Mr Marriot submits that the position has improved since then and I should at the very least adjourn these appeals pending the outcome of the proceedings before the SDT, which are due to be heard sometime in 2007. I have considered carefully whether it is appropriate for me to take that step. I have done so by reference to six particular matters which have arisen in part since October 2005 and in part since March 2006.

[33]I therefore return to the events which are specifically relied upon by the Law Society. There are essentially six matters which were set out in Ms Bromley’s submissions. The first matter is set out in paragraphs 48 to 51 of her submissions as follows:

“48. On 21 December 2005 a complaint was received from Dickinson Dees which related to failure to comply with the terms of an order made by Birmingham County Court made on 23 November 2005 and drawn up on 2 December 2005 (tab Apage 156). This required the appellants to pay money in to court by 30 November 2005. “49. The Law Society wrote to the appellants on 20 April 2006 requesting their response to the complaint within 21 days. The appellants failed to reply and the Law Society wrote again on 9 May 2006. No reply was received to that letter. “50. A further complaint was received from Dickinson Dees in May 2006 and the Law Society wrote a further letter to the appellants on 2 June 2006. (tab J page 93-96) That letter made it clear that the appellants had failed to reply to letters from the Law Society dated 13 April and 9 May 2006 and had failed to respond to a telephone message. “51. Ms Bromley submits that it is apparent from the letter from the appellants of 26 June 2006 (Tab I page 42) that they only attempted to pay the money in to court on 10 March 2006 and that was unsuccessful. It was not until 22 September 2006 that the money was finally paid to Birmingham City Council. (Tab I page 51).”

In relation to these matters, as I understand it, the appellants accept that there was delay but rely upon the fact that the monies have now been paid.

[34]The second matter is set out between paragraphs 52 and 62 of the Law Society’s submissions:

“52. On 22 March 2006 the Law Society received a complaint from the Bar Council that the name of PD Associates had been placed on the Withdrawal of Credit Scheme as a result of substantial fees being owed to Counsel. (tab J pages 97-103) “53. The Law Society wrote separate letters to Mr Davis and Ms McGlinchey on 22 March 2006 asking for their detailed response to the complaint, within 14 days of the date of that letter, and on 6 April asking for a reply in 8 days. (Tab J pages 104-109) “54. On 30 March 2006 the Investigation Casework Team of the Law Society had received a letter from Mr Marriott, solicitor for the Petitioners, in which he referred to the complaint by the Bar Council and indicated that the fees were not due because instructions had been given under Conditional Fee Agreements. (Tab J page 110) “55. On 20 April 2006 the Law Society wrote to Mr Marriott asking if he was also instructed in respect of the complaint by the Bar Council. On 24 May the Law Society were informed that Mr Marriott was no longer acting as he was without instructions. (Tab J pages 112-113) “56. On 6 June 2006 the Law Society wrote separately to Ms McGlinchey and Mr Davis enclosing a case note prepared for adjudication. (Tab J pages 114-115) “57. The matter was considered by the Adjudicator on 25 July 2006 and on 31 July 2006 the Law Society wrote separately to Mr Davis and Ms McGlinchey informing them of the Adjudicator's decision, (Tab J pages 116 - 119) namely: ‘to expect Paul John Davis and Elaine McGlinchey within 56 days of their receipt of notification of my decision, to discharge in full a total sum of £18,642.99 owed to a number of barristers, the details of which are set out in a schedule annexed to a Withdrawal of Credit Scheme direction dated 13 February 2006 and provided they do so, they should be severely reprimanded in respect of their misconduct. For the avoidance of doubt, if Paul John Davis and Elaine McGlinchey fail to settle all outstanding fees within 56 days of their receipt of notification of my decision, then I direct that their conduct shall be referred to the Solicitor's Disciplinary Tribunal for determination without delay.’ “58. The letter of 3 1 July 2006 informed the Petitioners that they had a right of appeal within 14 days of the date of that letter, i.e. by 14 August 2006. “59. On 15 August 2006 the Law Society wrote again to the Petitioners, pointing out that no appeal had been received within the time limit and making it clear that they were now expected to comply with the decision of the Adjudicator, within the time specified. (Tab J page 120) “60. On 28 September 2006 the Law Society wrote again to the Petitioners, informing them that they had been informed by the Bar Council that not all of the outstanding fees had been settled and therefore the matter was being referred to the Intervention and Disciplinary Unit. (Tab J page 122) “61. On 29 September 2006 Ms McGlinchey contacted the case worker by telephone, saying that they had sent a letter of appeal dated 22 September 2006. That letter had not been received by the Law Society. In any event, it was well outside the time limit for appealing. (Tab J pages 127-155) “62. On 2 October 2006 the Law Society informed her that the Law Society would not be processing any appeal in this matter. (Tab J page 156-157) On 18 October 2006 the Bar Council wrote to the Law Society indicating that a number of further complaints had been received since the direction to withdraw credit had been made. (Tab J page 158-159) On 23 October the Bar Council wrote to clarify that all the payments except one made by the appellants in the last three weeks did not relate to fees that were the subject of the direction to withdraw credit. (Tab J page 160).”

The appellants accept that there was a direction to pay £18,642.99. In fact the sum of £4,954.24 had been paid in respect of fees not incurred on a conditional fee basis. The balance also concerns conditional fee agreements. Of the balance some £462.66 has been paid concerning a successful conditional fee agreement. The monies outstanding all affect one set of barristers’ chambers, namely India Buildings, and attached to the appellants’ closing submissions is both an example of the CFA and the fee note. The balance becomes payable if the case is a successful one.

[35]The appellants submit that the confusion between fees properly due to counsel and those fees only due upon a successful case is regretted by the petitioners. However, it appears to be accepted, insofar as India Buildings is concerned, that those chambers concede the point. Nonetheless the appellants recognise that it is an unsatisfactory state of affairs to have credit withdrawn and will be taking active steps to have the withdrawal set aside, the difficulty at present being that the Law Society are not prepared to entertain an appeal out of time. I would only note in that regard that presumably it is the Bar Council that has to be persuaded of the position. It is only very recently that these matters have come to notice so far as the action of the Bar Council and the direction to pay the £18,642.99 is concerned. It seems clear that the appellants did not comply with the direction of the panel. However that may be, this is a matter which will be considered in due course by the SDT.

[36]The third matter is set out in paragraphs 63, 64 and 65 of the Law Society submissions:

“63. On 15 March 2006 the Law Society received a complaint from Gateshead Council. (tab A pages 158-161) PD Associates had acted for various claimants in relation to proceedings against the Council for housing disrepair claims. Orders for costs were made against all four of PDA's clients. In the case of Mrs L Grace, a wasted costs order of £400 had been made against PD Associates on 19 January 2005. PDA had failed to respond to any correspondence from the Council about these various costs orders and the costs orders had not been paid. “64. The Law Society wrote separate letters to Ms McGlinchey and Mr Davis on 27 April 2006 requesting their response by 12 May 2006. The appellants did not reply and the Law Society wrote again on 12 May 2006. (tab J pages 161 - 167) “65. Ms McGlinchey wrote to the Law Society by letter dated 21 June in which she apologised for the delay in responding to the letters of 27 April and 12 May. This gave details of the payments that had been made in respect of the various costs orders. At that stage, the only payment that was still outstanding was the sum of £400.00 which was the wasted costs order against PD Associates.”

This relates to the Gateshead Council. As to that, the relevant amount, which I think is no more than £400, has now been paid. However, it can be seen from the history just set out that the situation has been far from satisfactory.

[37]The fourth point is set out between paragraphs 66 and 68 of the submissions. This relates to the Merthyr Tydfil Council. The appellants say that explanation was provided to the Law Society in a letter dated 28 June. They say that the number of cases involved is 12. The total amount of costs by way of liability is £16,821.86. The lead case involves a sum of £11,904.61 and the other 11 cases shared the difference.

[38]Five further complaints have been received by the Law Society from Mr Nyomtato, Mrs Davies, Mrs Christine Shaw and Mr Peter Embling. The appellants say, no doubt correctly, that those complaints are in the course of being conciliated, with the exception of one case where the file has been closed.

[39]The sixth complaint is set out in paragraph 70, which is in these terms:

“70. On 25 October 2006 a new complaint was received by the Law Society from Mrs Lewis. Mrs Lewis stated that that due to PD Associates failure to comply with an Unless Order dated 1 November 2005 her case was struck out of court with an order that she pay the defendant's costs of the case. She was not informed of this decision by the appellants. No action was taken by the firm, which led to a Default Costs Certificate being obtained by the defendant on 20 April 2006. On 1l July 2006 the defendants obtained a Notice of Issue of Warrant of Execution in the sum of £2368.91 which was sent to Mrs Lewis on 14 July 2006. Mrs Lewis states that when she telephoned the firm to speak to Ms McGlinchey she was told that Ms McGlinchey was either out of the office or too busy and would call her back but her calls were never returned. Mrs Lewis wrote a letter of complaint to the firm on 22 July 2006 but she did not receive a response to this letter (Tab J pages 183-193).”

As to that, Mr Marriot submits in his closing submissions that the matter is regretted. The file relating to the matter has now been forwarded to new solicitors and the amount comprised in the warrant of the execution now paid.

[40]It is not possible for me on the material available to arrive at detailed resolutions of all these issues. However, it appears to me that the picture presented by these further matters is far from sufficiently encouraging to lead me to reach a different conclusion from the conclusion which I reached in relation to the decision on 4 April. I naturally hope that Ms McGlinchey and Mr Davis will be able to improve in the future. I note that they have now employed a new practice manager. However, they remain in control of the position as partners and the history of the matter is far from encouraging for the future.

[41]I should say in parenthesis that there is one matter which has given the appellants considerable concern which I do not in any way hold against them. In paragraph 9 of Mr Marriot’s outline reply, which was lodged before the hearing last week, he identifies as a considerable concern to the appellants the position concerning outstanding matters at Abbey Legal. That is a matter which was raised in paragraph 46 of the Law Society’s submissions, in which Ms Bromley refers to an attendance note of a telephone conversation between the case worker Carol-Ann Hutchings and a Suzanne Murray at Abbey dated 29 September. The submission continues:

“It is clear that a substantial number of claims remain unpaid and there is a query as to whether they will be paid.”

Mr Marriot’s submission is as follows:

“First and foremost the suggestion that the clients’ loans have not been paid is refuted. This was a misunderstanding by the case worker. A copy of the letter from Abbey confirming the position dated 7 December is attached. In addition the appellants telephoned Abbey with regard to the attendance note and the attendance note prepared by Miss Vinci is attached. Of particular relevance is again the failure by the Law Society’s case worker to fully understand the position which is now reflected in the letter referred to above and the emotive language used by the Law Society’s case worker.”

[42]In the light of those submissions and such material as is available to me at present, which may or may not include the whole picture, I think it would be quite wrong for me to accept the submission in paragraph 46 of the Law Society’s submissions or to draw any inference adverse to the appellants in that connection.

[43]Nevertheless, the position remains as I have stated it to be. Although I understand that this decision will be disappointing to the appellants, the fact is that there is a long history in this case which shows failings on the part of the appellants and failings to deal sensibly with requests of the Law Society. It is plain that the position remains less than entirely satisfactory. I have already given my reasons for concluding that there is no basis upon which I could properly hold that the decision of the panel communicated in April 2006 was disproportionate or in any way flawed. I do not think that the events since then would justify me in reaching any different conclusion.

[44]For all these reasons I have reached the conclusion that I have no alternative but to dismiss this appeal.

[45]However, I recognise the force of the point made by Mr Marriot at the conclusion of the oral submissions last week. When the conditions were attached to the 2004/2005 practising certificate and the 2005/2006 practising certificate, the appellants were given three months to wind the matter down, if that is the right expression. I entirely accept Mr Marriot’s submission that it would not be in the public interest, and certainly not in the interests of the appellants, if I were to give a direction which would have the effect of closing the partnership down now. It would leave the Law Society having to intervene and it seems to me that it would be far better to take similar action to that stated in the letters of 4 April 2006, subject to any further specific submissions

[46]I therefore propose to dismiss the appeal but to make the conditions, essentially conditions 1.1, 1.2 and 1.3 in the 2004/2005 certificates and the equivalent provisions in the 2005/2006 certificates, take effect from 1 April 2007.

[47]I would finally say that although I realise that this will have an adverse effect upon the appellants, I hope that they will be able to continue in some way or other as solicitors in the future.

Order

Appeal dismissed.