A Solicitor, Re [2008] EWCA Civ 1358

[2008] EWCA Civ 1358ON APPEAL FROM THE LAW SOCIETYVenue Royal Courts of JusticeStrandLondon, WC2Date Tuesday, 4 th November 2008B E F O R E:SIR ANTHONY CLARKE(THE MASTER OF THE ROLLS)
IN THE MATTER OF THE SOLICITORS ACT 1974RE A SOLICITORNo. 18 of 2008A.A. KANJOO
(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 DID NOT APPEAR AND WAS NOT REPRESENTED.MS M BUTLER (instructed by The Solicitors Regulation Authority) appeared on behalf of the Respondent.
Judgment

Sir Anthony Clarke:

[1]This is an appeal by Mr Kanjoo, who is and has since 29 August 1964 been a Pakistani advocate. Before I say anything about the merits I should mention two things. First, Mr Kanjoo has not attended today. I understand that the last correspondence from Mr Kanjoo was in July. However, I am told by Ms Butler on behalf of the Solicitors Regulation Authority (SRA) that her skeleton argument for today’s appeal was sent to Mr Kanjoo by special delivery last Friday, and she tells me on instructions that it was signed for. In addition, her skeleton was sent by e-mail and a receipt for the e-mail was itself received by e-mail. It thus appears that Mr Kanjoo is aware of today’s hearing. The most recent notice said that the hearing would take place at 9.30 this morning. It is true that it indicated that it would take place in court 71 and not court 73, but checks have been made at court 71 and Mr Kanjoo has not arrived. In these circumstances, since there is evidence that Mr Kanjoo is aware of this hearing and it is now twenty past ten, it seems to me that I should proceed to determine it.

Second Preliminary Issue

[2]The second preliminary point is this: that the appellant requested that this hearing be conducted in private, by letter dated 25 June. He did not however give any grounds as to why the hearing should be conducted in private.[3]The SRA does not consent to it being heard in private and it further submits that there is no good reason for holding the hearing in private. The general principle which I adopt can be seen in L v The Law Society (No 13 of 2008) [2008] EWCA Civ 811. It is only in a rare case that it is appropriate to hold a hearing of this kind in private. In the present case I see no reason whatever to depart from the general rule that this hearing, like most hearings, should take place in public.

Substantive Issue

[4]I turn to the substance of the matter. Since August 1999 Mr Kanjoo has been an advocate of the Supreme Court of Pakistan. In 2001 he settled in the UK and has since March 2003 practised in England and Wales as a registered foreign lawyer. In the same year he applied for transfer to the roll of solicitors under the Qualified Lawyers Transfer Regulations 1990 (QLTR). Further to that application he was granted a certificate of eligibility, again in 2003, and then in November 2005 he was granted exemption from two of the four heads of the qualified lawyers transfer test (QLTT). By 2007 he had completed two years relevant work experience and had passed one of the two required heads of the QLTT, namely professional conduct and accounts. He then applied for exemption from the fourth and final head of the QLTT, namely property. He did so on the basis of his work experience during the previous two years.[5]That exemption application was dealt with by Mr Nigel Butcher, an SRA Adjudicator on 24 September 2007. The application was refused. In giving reasons for a refusal Mr Butcher said this:
“In order to grant an exemption from any head of the Qualified Lawyers Transfer Test I have to be satisfied that the applicant has sufficient practical experience of the relevant area of legal practice, in this case property law, to show that exemption from the test is justified. I would need to have full details of the number and type of matters dealt with by the applicant over the relevant period and be satisfied that properly supervised experience had been gained in all the areas covered in the head of the test. In this case I have insufficient information to enable me to assess the nature and extent of Mr Kanjoo’s experience and accordingly I am obliged to refuse the application.”
[6]Mr Kanjoo had provided a number of references but they were all in more or less general terms. After the decision of Mr Butcher, as I understand it Mr Kanjoo provided some further references but again in somewhat general terms. He sought a review of Mr Butcher’s decision. That review was refused by the SRA’s Review Panel on 12 March 2008. In giving its reasons for upholding the decision of Mr Butcher, it said this:
“… The criteria for exemption are as follows: … For Property & Litigation: Approximately 2-3 years relevant experience or less if the applicant has a recognised appropriate English legal qualification gained within 7 years preceding the application. As Mr Kanjoo has not gained any English legal qualification, it is necessary to establish the nature and extent of his experience and to assess whether it meets the requirements of the QLTR syllabus on the Property Head of Test which covers conveyancing, wills & probate. Then written evidence submitted by Mr Kanjoo in support of his review application was rather thin on the detail of his work experience in those areas and the more recent references from two former firms dated October and November 2007 were similarly vague. It is not in doubt that Mr Kanjoo has been working for solicitors’ firms in England since 2003. During this time he has been in partnership in at least two firms as a Registered Foreign Lawyer he may do. The periods of work in any given firm have ranged from six months with Shah & Co where he was a partner, a little over year with Bokhari & Co, a year with Woodgrange Solicitors where he was a partner and about 18 months with Aqsa Law. At present Mr Kanjoo is working on an ad hoc basis for Vanguard Solicitors, the new name for Aqsa Chambers. Mr Kanjoo was given an opportunity to expand upon his work experience with particular reference to conveyancing and wills & probate. He said that when he was with Shah & Co he did ‘odd things’ on the files but never had conduct of a matter from beginning to end. Mr Kanjoo was unable to say how many files he had worked on when at that firm. Similarly when he was with Bokhari Solicitors he did not have conduct of any matters from beginning to end but would be asked to attend to particular tasks on the files. When at Woodgrange, Mr Kanjoo said he has had conduct of 8 or 9 conveyancing files throughout the entirety of the transaction. He has dealt with some 5 or 6 probate files from beginning to end and his experience has been limited to obtaining simple Probates/Letters of Administration with little in the way of experience of administration of estates. The Panel finds that Mr Kanjoo’s experience in dealing with conveyancing, wills & probate has not been comprehensive but has been somewhat superficial and fragmented. The Panel also found it difficult to assess the quality of the supervision given to Mr Kanjoo. The Panel has attached due weight to Mr Kanjoo’s admission that he has dealt with very few files where he has seen an entire transaction through from beginning to end with the many different aspects of law and procedure that that entails. As mentioned above, the length of time Mr Kanjoo has been engaged with various firms is not doubt but that in itself is not sufficient to demonstrate that he has gained adequate knowledge of the subjects covered by the Property Head of Test to be granted exemption.”
[7]Mr Kanjoo now appeals from the SRA’s decision to refuse to grant exemption under Regulation 17(1)(b) of the 1990 Regulations. He seeks an order granting him exemption from the property head of the QLTT.

Mr Kanjoo’s Submissions

[8]Mr Kanjoo submits that the SRA erred in refusing to grant him an exemption in respect of the property head because it failed properly to apply its guidelines for granting waivers under Regulation 11(1) of the QLTR. The guidelines applicable are the QLTR 1990 Exemption Guidance. That guidance states, insofar as is relevant:
“Exemptions from property and litigation For exemption to be granted from a written Head of the Test, approximately 2/3 years relevant experience would normally be needed to have been gained in England & Wales.”
[9]Mr Kanjoo submits that the SRA erred in its approach because it failed simply to base its decision on the fact that he had practised in England for over four years, as at 28 June 2007. He submits that the requirements in the guidelines should properly be read as simply requiring a minimum of two to three years work experience. He submits that it says nothing about evidencing the nature and quality of that experience. The SRA’s error then was to insist on his producing detailed evidence of the nature and quality of the experience he has gained. Equally, he submits that there is no reference in the QLTR to providing evidence of the nature or type of matters which an individual seeking exemption had been engaged upon while working in England.[10]He further submits that the SRA ought to have given greater weight than it did to the references he produced.[11]He also submits that he was inappropriately required to take part in an oral examination during his appeal before the Review Panel. He submits that if he had been aware that he would have to sit an oral examination he would have prepared for one and not sought an exemption as one would have been unnecessary.[12]Finally, he submits that as he has worked as a partner in a number of English solicitors practices he has gained sufficient experience to justify the grant of an exemption.[13]I should add that Mr Kanjoo also complains about the SRA’s appeal process. He submits that the Review Panel simply and improperly endorsed the Adjudicator’s decision. In doing so it failed to consider the facts of his application for an exemption.

The SRA’s Submissions

[14]The SRA submits both in its written submission and through counsel, Ms Butler, who has provided a detailed skeleton argument, that the purpose of the QLTR is to ensure that overseas lawyers who seek admission to the roll of solicitors have a minimum level of knowledge in critical areas of the law of England and Wales. It seeks to ensure therefore that lawyers who seek admission to the roll and thereafter practise in England and Wales have equivalent qualifications and experience to solicitors who qualify via the domestic qualification route.[15]In order to ensure that that is the case it is submitted that Regulation 5(3) of the QLTR requires that the SRA has to take account of the ‘nature and extent of the applicant’s practical experience in the law of England and Wales and any other academic or other qualification.’ It is in this context that the 1990 Exemption Guidance must be read. The QLTR expressly required the SRA to take account of the nature and extent of Mr Kanjoo’s experience. A failure to do so would have amounted to a failure on the SRA’s part properly to carry out the assessment as to whether a waiver was justified. While the SRA accepts that Mr Kanjoo has practised for four years in England, he has, it is submitted, failed to discharge the burden of establishing that the experience he has gained in that time is sufficient to justify the grant of an exemption from the property Head of the QLTT.[16]In response to Mr Kanjoo’s submissions the SRA submits as follows. First, there is no evidence to support the submission that the Adjudicator and then the Review Panel failed to consider the facts of Mr Kanjoo’s case. The evidence is to the contrary. Both decisions rejected the application on the basis that the evidence submitted was insufficient to establish the case for an exemption. Moreover, it is evident from the Review Panel’s decision that it did not simply rubber stamp the Adjudicator’s decision. Finally it submits that Mr Kanjoo was not subject to an oral exam by the Review Panel. He was simply asked questions in order to expand on and explain the documentary evidence he had submitted. The Review Panel’s decision was based on an assessment of that documentary evidence and his oral explanation and not on any answers to specific legal questions.

Discussion

[17]There are a number of considerations which have led me to the conclusion that this appeal should be dismissed. First, it is incorrect to submit, as Mr Kanjoo did, that the SRA erred in its approach to the QLTR and the 1990 Exemption Guidelines. The SRA is required, as a matter of law, to apply the QLTR in deciding applications for exemptions from heads of the QLTT. Regulation 5(3) of the QLTR requires, as the SRA rightly submitted, that it take account of ‘the nature and extent of the applicant’s practical experience in the law of England and Wales’ when making ‘any determination under Regulations 6 to 15’ of the QLTR. The application for an exemption, or to use the language of the QLTR, ‘a waiver’ from the property head of the QLTT is an application under Regulation 11(1) of the QLTR. The SRA therefore had to take account of the nature and extent of Mr Kanjoo’s experience and not simply, as he submits, the length of his experience. Further, I must reject Mr Kanjoo’s submission based on his reading of the 1990 Exemption Guidelines. First, those guidelines cannot take precedence of the wording of the QLTR. They are guidelines only. Secondly, it is not the case that they simply require length of experience to be taken into account. They merely provide guidance as to the length of experience required to be presented by an applicant for an exemption in satisfying the SRA of the requirement laid down in Regulation 5(3). It follows that I also reject the submission that Mr Kanjoo’s experience in practice as a partner in various firms is sufficient, in and of itself, to satisfy an exemption from the property head.[18]Second, it is plain that an applicant from an exemption from a Head of the QLTT will need to provide evidence of experience in the area of the law covered by that Head. An applicant seeking an exemption of the property Head will as a matter of course have to satisfy the SRA that they have sufficient experience of those matters that would otherwise be examined under that Head, ie conveyancing, wills and probate law. Third, it is readily apparent that the SRA Adjudicator and the Review Panel took account of the evidence which Mr Kanjoo submitted to them, including the oral answers he provided when interviewed by the Review Panel. It is wrong to assert that the oral interview conducted by the Panel was an oral examination. If it were Mr Kanjoo would no doubt have found himself facing a series of questions about conveyancing law, wills and probate law. He did not. On the contrary as the transcript of his interview with the Adjudication Panel makes clear, he was simply asked to expand upon the nature of his practical experience. No questions of law were asked or answered. In my judgment the Review Panel considered his appeal with care. Its decision was one reached only after that consideration and was not, as Mr Kanjoo submitted, a mere endorsement of the Adjudicator’s decision.[19]Fourth, the question arises whether it can properly be said that the SRA erred in its approach to Mr Kanjoo’s evidence of his experience. It is apparent that the references which he supplied go no further than to demonstrate that he was a diligent lawyer who, in the view of his referees, gained experience in conveyancing, immigration and family law. Only one reference, that of Aqsa Law Chambers, states that Mr Kanjoo also gained experience in wills and probate. The references, including the Aqsa Law reference, provide no detail as to the nature and extent of the experience gained. Taken at their highest the references do not provide satisfactory evidence of sufficient experience to justify an exemption from the property Head. Equally, Mr Kanjoo’s statement of experience, submitted under the title ‘Reasons for Review’ to the SRA Review Panel, simply sets out that he undertook work in conveyancing, wills and probate while working at the firms which supplied references for him; although I note that apart from the Aqsa Law references the submission that he conducted work in wills and probate law is not supported by his references. Again, this is too vague and lacking in detail to provide the basis on which an exemption could properly be justified. Finally, it is also apparent that the oral answers Mr Kanjoo gave to the Panel do not provide an adequate basis to justify the grant of an exemption. Mr Kanjoo’s answers to the questions posed as to the nature of his experience do not paint a picture of an individual who has had sufficient, detailed practical experience of conveyancing, wills and probate law. I can therefore see no basis for finding that either the SRA Adjudicator or the Review Panel erred in finding that Mr Kanjoo had not satisfied the SRA that he could properly be granted an exemption from the property Head of the QLTR.[20]I must therefore dismiss the appeal. I should however add this: if Mr Kanjoo wishes to reapply for an exemption from this Head of the QLTR he should provide detailed information of the number, type, nature and extent of his practical experience in the relevant areas. He could surely obtain some what used to be called further and better particulars, evidence based, upon which the SRA could properly act. I am confident that he could do that even though I recognise that he has indicated that there are difficulties in relation to some of the firms in which he has practised. He should perhaps contact the SRA in order to ascertain from them precisely the nature of the evidence that they would like to see. That is however for the future. In the alternative of course he might simply wish to take the examination, and if he is as well qualified as he says, then there is no reason why he should not pass the examination. But the appeal must be dismissed. Postscript[21]I may have slightly misstated the position at the beginning of my judgment. What I said about the e-mail is correct; however, as to the special delivery, Ms Butler’s instructions are not that it was delivered but that it would have been delivered and that the sender would have been notified if it had not been delivered. However, notwithstanding that, there seems to me to be, sufficient evidence that Mr Kanjoo probably received the submissions.

Order

Appeal dismissed ……………………………………. SIR ANTHONY CLARKE THE MASTER OF THE ROLLS