Solicitor, Re A [2007] EWCA Civ 597

[2007] EWCA Civ 597ON APPEAL FROM THE LAW SOCIETYVenue Royal Courts of JusticeStrandLondon, WC2Date Tuesday, 15 th May 2007B E F O R E:SIR ANTHONY CLARKE(THE MASTER OF THE ROLLS)
IN THE MATTER OF THE SOLICITORS ACT 1974RE A SOLICITORNo. 2 of 2007DR SABINE PITTROF
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The appellant appeared in person.Miss D Rhee (instructed by The Law Society) appeared on behalf of the Respondent.
Judgment

Sir Anthony Clarke, MR:

[1]Dr Pittrof is a German national. She was admitted as a Rechtanswaltin in Germany on 5 May 1999 and continues to practise in law there. Her practice is principally in corporation law and transaction law and involves mergers and acquisitions. In addition to her German qualifications, she was awarded a Bachelor of Law degree from the University of New South Wales in Australia in 1995 and a Doctor Juris or PhD from the University of Heidelburg in 2000. Her doctoral thesis explored issues of comparative constitutional law.[2]On 30 November 2005, Dr Pittrof applied for a certificate of eligibility to sit the Qualified Lawyers Transfer Test (“the QLTT”), under Regulations 5 and 12(a) of the Qualified Lawyers Transfer Regulations 1990 (“the QLTR”). By letter dated 21 December 2005 she sought exemption under Regulation 12(a) of the QLTR from three of the elements or heads of the QLTT, namely the principles of common law, litigation and property.[3]On 20 July 2006, Dr Pittrof was granted a certificate of eligibility and was granted exemption from the principles of the common law head of the QLTT. Her application for exemption from the remaining two heads was, however, refused. Exemption was refused by Miss Heather Morgan, the Law Society adjudicator on the following basis:
“The applications for exemption from the Property and Litigation Heads are refused. The exemption requires between 2 - 3 years practical experience of each subject in this country. Miss Pittrof has no such experience. These subjects are particular, rather than general in content, as indicated by the much longer period of experience needed to warrant exemption than that required for the Common Law Head. It is not possible to rely on experience in another jurisdiction.”
[4]I note that exemption from the common law head usually requires “12 -18 months practical experience within the jurisdiction of England & Wales”. Dr Pittrof, although not having such experience, was exceptionally granted an exemption to the common law head based upon her Australian LLB and her doctoral thesis.[5]Dr Pittrof, by letter dated 22 August 2006, sought a review of the adjudicator’s decision (“the review application”) not to grant exemption from the litigation and property heads of the QLTT. A second Law Society Adjudicator, Ms Fiona Monk, reviewed the original decision and by a decision dated 2 November 2006, refused to grant the exemptions. Her reasons included the following:
“On 22 August Miss Pittrof requested a review of the June 2006 decision. She acknowledges that she has not been admitted in Australia as she has not completed the practical requirements although she has completed all the academic requirements and has completed a PhD thesis on comparative constitutional law (which was part of the reason for the exemption from the common law head being granted). Miss Pittrof suggests that she is being subjected to a different requirement from qualified lawyers applying to Transfer from Australia and from non-qualified European Lawyers. She also submits that she has considerable academic background in both property and litigation and her practical experience in Germany at Wilkie Farr and Gallaghar and Haarmaan Hemmelrath included property and litigation issues. “Miss Pittrof is not admitted in Australia and therefore applies under the QLTR relying on her German qualification. She is therefore subject to the usual requirements in relation to granting an exemption from any Head of the QLTT. I accept that she has extensive academic experience and considerable practical experience in Germany but she has no relative experience in England and Wales, nor has she a relevant English legal qualification which would warrant a reduction to the usual length of practical experience required. I therefore confirm the decision of the previous Adjudicator and the application for exemption from the Property and Litigation Heads is refused.”
[6]By a petition dated 9 February 2007, Dr Pittrof appealed the refusal to grant exemption to the property and litigation heads of the QLTT to me as Master of the Rolls. She did so under Regulation 17(1)b of the QLTR and Regulation 27 of the Master of the Rolls (Appeals and Applications) Regulations 2001. Dr Pittrof seeks a direction that she be granted exemption from the Property and Litigation Heads of the QLTT.[7]It is apparent from her petition that Dr Pittrof essentially relies on the submissions she made in her letter dated 22 August 2006. That letter set out her submissions in respect of the review application. Her submissions can be summarised in this way: i) Her application for an exemption is based on Regulation 12(a) of the QLTR as it was based on her German qualification as a Rechtanswaltin. The application for an exemption from the three heads of the QLTT is based on her Australian qualification, that is to say her LLB. ii) As her reliance on Australian qualification, whilst being a lawyer qualified in Germany, is unusual her application for exemption ought to be considered on the same basis as applications for exemption made by either Australian qualified lawyers or lawyers applying under Directive 98/5 EC. iii) In carrying out the assessment as to whether an exemption should be granted, her extensive practical experience in Germany should be taken properly into account.[8]Dr Pittrof’s further submissions are set out in her letter of 22 August 2006, which may be summarised in this way: i) She has completed all the relevant academic requirements for admission as an Australian lawyer. Australian lawyers are required to have a period of only six to nine months practical experience before they are formally admitted in Australia. [She tells me that that is at the College of Law]. Australian lawyers are exempt from the property and litigation heads of the QLTT. There is thus no necessity, or in many cases likelihood, that an Australian lawyer applying under the QLTR will have completed the two to three years practical experience of property or litigation law in England and Wales which the First Adjudicator stated in her decision was required for exemption from those heads generally and, more particularly, in her case. ii) Lawyers from EU member states applying under Regulation 12(b) of the QLTR are not required to demonstrate any practical experience of property or litigation and automatically receive exemption from the QLTT. Lawyers under this rule simply need to demonstrate that they have been working in the United Kingdom for three years prior to the application and working in the field of EU law. iii) There is no justifiable reason why her application should be treated less favourably than an application by either an Australian lawyer or an EU lawyer, neither of whom is required to demonstrate the necessary academic or practical knowledge of English property or litigation law. iv) Furthermore, she admits that she has, through her German practise, worked for clients advising them on cross-border litigation and property matters. She has also been asked to teach a course, which is to focus on property law in common law jurisdictions’ at the University of Applied Sciences in Friedburg.[9]The Law Society in its written submissions initially submits that:
“i) Dr Pittrof cannot rely on exemptions granted to Australian lawyers, under Regulation 11(a) of the QLTR because she is not admitted as a practising lawyer in Australia. She has simply completed the academic stage necessary for Australian qualification. “ii) Nor can she rely on the exemptions granted to EU qualified lawyers under Regulation 12(b) of the QLTR because she has not, as is required, practised law in the UK.”
[10]It seems to me that as a matter of law; those submissions are correct. Dr Pittrof does not, however, specifically seek to rely on either Regulation 11(1) or 12(b) of the QLTR. Her submissions go to the question how the Law Society should exercise its discretion under Regulation 12(a) of the QLTR, since it is under that Regulation that she makes her application. That Regulation is set out in the following terms:
“Any lawyer applying for admission pursuant to European Communities Directive No 89/48 EEC or any legislation implementing the Directive in the UK, who in accordance with that legislation is required by the Society to pass an aptitude test, shall be required to pass the Test in such subjects as the Society shall determine.”
[11]As the Law Society acknowledges in its submissions, in my judgment rightly, this Regulation gives it a general discretion to determine which heads of the QLTT, any particular applicant under it, is required to take on an application for admission. As I understand Dr Pittrof’s submissions, her case is that in exercising as discretion the Law Society ought to have given greater weight to her Australian academic qualifications and her practical experience in Germany and in doing so looked at them in the context of the requirements for exemption arising under Regulations 11(1) and 12(b) of the QLTR.[12]The Law Society’s response to this is that it did take account, and moreover appropriate account, of Dr Pittrof’s Australian degree; that it took account of Dr Pittrof’s knowledge of English law as it was required to do pursuant to Directive 89/48 EEC; and that in doing so it properly took account of its own internal guidelines on the exercise of its discretion under the QLTR.[13]The Law Society further submits that it is not bound by its internal guidelines and that in appropriate cases its discretion can and is properly exercisable, notwithstanding an applicant not meeting the criteria, using that term in its widest sense set out in the guidelines. For example, Dr Pittrof’s application for exemption from the Common Law Head was granted based on her academic experience, notwithstanding the fact that she did not, as set out in the guidelines, demonstrate twelve to eighteen months practical experience of work in an English solicitor’s office. In respect of her application for exemption from the property and litigation heads, however, Dr Pittrof had no relevant practical experience whereas the guidelines specified two to three years.[14]Finally, the Law Society submits that Dr Pittrof’s submissions amount to a challenge to the QLTR themselves. In the first instance, they are a challenge to the treatment of Australian lawyers, who are only required to demonstrate six to nine months’ practical experience post-submissions in Australia. This, as with other similar arrangements, is based on a reciprocal arrangement with the relevant authority in Australia, whereby that authority undertakes to assess whether an applicant is suitable for admission in the other jurisdiction.[15]Secondly, it is a challenge to the differential arrangements laid out in Directives 89/48 EEC and 98/8 EC which Regulations 12(a) and 12(b) of the QLTR implement respectively. The two Directives co-exist. An individual applicant may well satisfy the criteria set out in both Directives. It cannot be the case, however, that an applicant who does not satisfy the more favourable criteria set out in one Directive – in this case Directive 95/8 can rely on those criteria and that Directive effectively to render the more restrictive Directive, namely 89/48, redundant by requiring that it is interpreted consistently with it. The law society submits, to my mind correctly, that the two Directives are focussing on different regimes.

Discussion

[16]Dr Pittrof applies for admission under Regulation 12(a) of the QLTR, which implements Directive 89/48. In doing so, she seeks exemption from sitting the property and litigation heads of the QLTT. In support of her application she relies on her Australian academic qualification and her professional and academic experience both while studying and in legal practice in Germany. She submits that because of this experience she ought to be treated in an equivalent manner to practising Australian lawyers or EU lawyers who qualify for admission in England and Wales under Regulations 11(1) and 12(b) of the QLTR respectively. She cannot and does not apply for admission under either of those two Regulations, as she is neither admitted to practise in Australia nor has she practised law within the United Kingdom for three years.[17]I turn first to the position under the Directives. In my judgment, the Law Society is justified in treating an applicant under Regulation 12(a) and an applicant under Regulation 12(b) of the QLTR differently. The justification for differential treatment is set out in the Directive 98/5. Recitals 2-5 of that Directive are in these terms: “(2) Whereas, pursuant to Council Directive 89/48/EEC of 21 December 1998 on a general system of the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration ($), a lawyer who is fully qualified in one Member State may already ask to have his diploma recognised with a view to establishing himself in another Member State in order to practise the profession of lawyer there under the professional title used in that State; whereas the objective of Directive 89/48/EEC is to ensure that a lawyer is integrated into the profession in the host Member State, and the Directive seeks neither to modify the rules regulating the profession in that State nor to remove such a lawyer from the ambit of those rules; “(3) Whereas while some lawyers may become quickly integrated into the profession in the host Member State, inter alia by passing an aptitude test as provided for in Directive 89/48/EEC, other fully qualified lawyers should be able to achieve such integration after a certain period of professional practice in the host Member State under their home-country professional titles or else continue to practise under their home-country profession titles. “(4) Whereas at the end of that period the lawyer should be able to integrate into the profession in the host Member States after verification that the possesses professional experience in the that Member State; “(5) Whereas action along these lines is justified at Community level not only because, compared with the general system for the recognition of diplomas, it provides lawyers with an easier means whereby they can integrate into the profession in a host Member State, but also because, by enabling lawyers to practise under their home-country professional titles on a permanent basis in a host Member State, it meets the need of consumers of legal services, who owing to the increasing trade flows resulting, in particular, from the internal market, seek advice when carrying out cross-border transactions in which international law, Community law and domestic laws often overlap;”.[18]The Recitals make two things clear. First, Directive 89/48 seeks to enable a professional qualified as such in one member state to obtain entry into that profession in another member state following, for instance, the passing of an aptitude test. Second, Directive 98/5, while it has the same object of facilitating entry into a profession in a member state other than a professional’s home member state, does so on the basis of the professional having worked for a certain period in professional practice in their non-home member state. If Dr Pittrof had, for instance, worked in the United Kingdom for three years she could, in theory, and perhaps in practice, have applied for admission as a solicitor under either provision.[19]The recitals make clear that the EU was introducing a second and -- in the words of recital 5 of Directive 95/5 -- an “easier means whereby they can integrate into their profession in the host Member State”. The two regimes co-exist, having the same end, but seek to achieve it through different means: the one, through an aptitude test, the other through integration in the host member state’s profession through working in it. One regime is based on an applicant for admission demonstrating the requisite level of integration for recognition through an aptitude test; the other through practical experience equivalent to that required by an aptitude test (see recital 14 of Directive 98/5). In my opinion, the two different regimes cannot be assimilated, nor can the criteria in one be relied on to undercut the requirements of the other.[20]Turning to the status of Australian lawyers, Dr Pittrof’s submission rests on the assertion that the sole difference between her and a newly admitted Australian lawyer is that the latter will have undergone the six to nine months’ practice or practical experience, albeit at a College of Law in Australia. The conclusion to be drawn from this is that there is no justification for assuming that the Australian lawyer has anymore sufficient experience in English law which would justify an automatic exemption.[21]In my opinion, the fundamental distinction between Dr Pittrof and an Australian qualified lawyer is that the latter has undertaken a period of vocational training in a common law jurisdiction prior to entering into the profession in that jurisdiction. The length and nature of that vocational training, while it will vary across such jurisdictions and indeed may well vary within the states of Australia, remains vocational and practical training. Dr Pittrof has no equivalent practical or vocational experience of property or litigation law in a common law jurisdiction. If she had been admitted in Australia, she would have had such vocational training and experience. Absent that, I see no justification for treating Dr Pittrof’s LLB as sufficient in and of itself, to justify treatment under Regulation 12(a) of the QLTR in an equivalent fashion to an application under Regulation 11(1) of the QLTR.[22]I for my part am not persuaded that Dr Pittrof is an overseas lawyer under Regulation 11(3), any more than an overseas lawyer under 11(1). However, whether that is so or not, the Law Society recognises that this is an application under Regulation 12(a) and it has a duty under Regulation 5:
“In making any determination under Regulation 6-15 … to have regard to the nature and extent of the applicant’s practical experience in the law of England and Wales and any other qualification.”
As I see it, the Law Society has an obligation in the exercise of its discretion under Regulation 12(a) to take account of all the relevant circumstances of the case, as indeed it would if it were exercising a discretion under Regulation 11(3).[23]In my opinion, the QLTR requires the Law Society to conduct an examination of an applicant’s knowledge and experience of the relevant area of English law in assessing whether to grant an exemption of the aptitude test; that is to say, a relevant head of the QLTT. Exemptions should be based on a consideration of the applicant’s knowledge and experience of that area of English law and, particularly, practical experience of it. An exemption from the aptitude test is effectively what is achieved under Directive EC 98/5. That exemption is based on practical integration in and experience of working in the profession, in this case in England and Wales. It seems to me that any exemption sought from the QLTT heads under Regulation 12(a) of the QLTR must also look at practical experience in order to justify exemption from that aspect of the aptitude test. While Dr Pittrof has a good degree of academic experience of Australian law, general common law principles and cross-border based property law and litigation and indeed considerable experience of practising in Germany, none of that experience is based in, nor is practical experience gained in, the practice of the England and Wales.[24]In these circumstances, it seems to me that there is no proper basis upon which I could conclude that the Law Society’s adjudicators exercised their discretion on any wrong principle. It was essentially a matter for the exercise of their discretion in all the circumstances of the case. As I see it, the conclusion reached by the Law Society was within the proper ambit of the exercise of its discretion.[25]In all these circumstances, it appears to me, that I have no alternative but to refuse this application.[26]I will only add this. It looks as if there are certainly other ways in which Dr Pittrof could make use of her undoubted qualifications and experience in England and Wales in the various ways set out in the Regulations.

Order

Application refused.