Ayre v The Law Society [2008] EWCA Civ 1379

Petition No: 3 of 2008[2008] EWCA Civ 1379IN THE HIGH COURT OF JUDICATURECOURT OF APPEALCIVIL DIVISIONVenue Royal Courts of JusticeStrandLondonWC2A 2LLDate 22 May 2008BEFORE THE MASTER OF THE ROLLS
IN THE MATTER OF THE SOLICITORS ACT 1974 AND IN THE MATTER OF THE MASTER OF THE ROLLS (APPEALS AND APPLICATIONS) REGULATIONS 2001 AND IN THE MATTER OF: LIAM AYRE and THE LAW SOCIETY
(Transcript of the Handed Down Judgment 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)
Judgment
Between
AyreAppellantThe Law SocietyRespondent
[1]This is an appeal by Mr Ayre from a decision of a Solicitors Regulation Authority (SRA) adjudicator, dated 29 May 2007. Mr Ayre had applied for transfer to the roll pursuant to the Qualified Lawyers Transfer Regulations 1990 (the QLTR). The Adjudicator held that before he could be admitted in this way he had to satisfy a condition that he complete 8 months contentious experience in a common law subject. Mr Ayre appealed that decision.[2]On appeal, an SRA review panel, by a decision dated 9 October 2007, varied the 8 months to 6 months. Mr Ayre has appealed from that decision to me as Master of the Rolls, pursuant to regulation 17(1)(b)(ii) of the QLTR. Before that appeal could be heard, the SRA consented to provide Mr Ayre with a further review of the adjudicator’s decision. That review, conducted by the SRA’s chief adjudicator, took place on 9 April 2008. It again varied the condition, this time reducing it so as to 3 months.[3]Mr Ayre now appeals, by way of amended petition, against the chief adjudicator’s decision. He seeks an order varying the condition so that all he need do prior to transfer to the roll is to complete a two-week litigation course. The appeal was listed for hearing on 13 May 2008 in open court. However the parties subsequently agreed to waive an oral hearing and that the appeal should be determined on the papers. This seems to me to have been a sensible agreement. This judgment however remains a public one.[4]Mr Ayre qualified as a solicitor in Australia on 06 October 2000. From 15 May 2000 to 28 April 2006 he practised as a solicitor in, Sydney, Australia with Freehills, an Australian law firm. On 29 May 2006 he joined Allen & Overy LLP, an English law firm. He practises however from their office in Frankfurt, Germany.[5]In October 2006 Mr Ayre applied for transfer to the roll via the QLTR. In January 2007 the Law Society issued him with a certificate of eligibility pursuant to regulation 11 of the QLTR and required him to complete the Professional Conduct and Accounts Examination components of the Qualified Lawyer Transfer Test (QLTT). It also required him to complete two years work experience.[6]Mr Ayre passed the required components of the QLTT. He contested however the two year work experience requirement. As noted earlier that challenge was the subject of three decisions by the SRA; the upshot of which is that rather than have to complete two years’ experience he is now required to complete three months’ contentious experience. I do not consider the initial decision of 29 May 2007 or the first internal appeal decision of 09 October 2007 because the SRA’s most recent decision of 09 April 2008 held that in both cases the decisions were flawed. They were held to be flawed on the ground that neither the adjudicator nor the appeals panel appeared to have taken account of the SRA’s Guidance. This is perhaps an unfair criticism to make of the adjudicator’s decision of 29 May 2007 given that the guidance I have seen is dated July 2007, but perhaps the guidance was available prior to its publication by the SRA in July. The issue on the present appeal is whether the chief adjudicator was wrong to hold that Mr Ayre should be required to complete a further three month period of contentious experience. It is submitted on behalf of Mr Ayre that he can satisfy the contentious experience requirement by attending a two week litigation training course designed for trainee solicitors.[7]The chief adjudicator reached his decision to require Mr Ayre to undertake three months contentious experience on the following grounds. First he accepted that the SRA’s QLTR’s guidelines applied to Mr Ayre’s case. This conclusion is not disputed on behalf of Mr Ayre.[8]The second ground of his decision is set out as follows in paragraphs 8 and 9 of his determination:
“8. . . . whilst it is accepted that that some firms arrange for their trainees to supplement the experience they gain in the firm by completing the litigation course referred to, I am aware that it has been made clear to those firms by the SRA that a course alone is not sufficient to provide the required opportunities to develop the skills in a contentious context. Trainees must also gain experience of ‘real’ contentious cases, although this might be gained through pro bono experience rather than within the training establishment in which they are working. 9. In addition it is not in my view appropriate for Mr Ayre to seek to ‘cherry pick’ from two different routes to qualification. Whilst it is appropriate to look for equivalence between the two routes, it is not appropriate to pick and mix between them. Mr Ayre seeks to equate his position with that of a trainee solicitor but does not recognise that trainee solicitors are required to work within a defined regulatory framework, to have completed the academic stage of training and an LPC and to undertake a PSC each of which will have focused on the law and practice of England and Wales.”

Mr Ayre’s submissons

[9]The basis on which Mr Ayre appeals the SRA’s decision is the submission that it has failed to justify its decision to treat him in a less favourable position than it does trainee solicitors.[10]Trainee solicitors are required to undergo two year training contracts, during which they have to gain both contentious and non-contentious experience. Both in his petition and in the written submission made on his behalf Mr Ayre submits that the SRA permits trainee solicitors to satisfy their contentious experience requirement by attending a two-week intensive litigation training course, run by the College of Law. He submits that there is no justifiable reason why he ought not be permitted to satisfy the contentious experience requirement by attending that course. He further relies on the SRA’s submission that he is required to undertake a three month period of contentious experience because of what it describes as the principle of equivalence; that is to say before admission via the QLTR route applicants for admission must satisfy the SRA that they have an equivalent level of experience to trainee solicitors seeking admission.[11]The second limb of Mr Ayre’s submission rests on his contentious experience in Australia. Whilst he was the Australian equivalent of a trainee solicitor working for Freehills he worked in their project finance department. He did so for a period of five months. During that time 80 per cent of the work he carried out was contentious work. He accepts that this experience was gained more than five years before he made his QLTR application; albeit only a month out of time. However he submits that, in the exercise of its discretion the SRA could and should have properly exercised its discretion and considered this experience. He submits that if he had made his application a month earlier the SRA would not have required him to undergo further experience and given this its submission that he does not have a level of experience commensurate to that of a candidate for admission is unsustainable.

Law Society’s submissions

[12]The Law Society in its written submissions submits that the chief adjudicator’s decision was an appropriate one. It submits that it was appropriate in the circumstances of Mr Ayre’s application. Those circumstances were that the SRA must be satisfied that any application for admission via the QLTT route has an equivalent level of qualification and experience to that of a trainee solicitor seeking admission i.e., one who has passed the academic stage of qualification, the Legal Practice Course and completed a two year training contract.[13]It further submits that Mr Ayre has failed to satisfy it because his experience in Australia, with its different procedural system, which was obtained more than five years before his QLTT application and that he has no work experience in the jurisdiction of England and Wales.

Discussion

[14]The starting point for an assessment of Mr Ayre’s application for admission via the QLTT route is regulation 11 of the QLTR, which states:
“11 (1) An overseas lawyer who has qualified in one of the professions listed in the Schedule to these Regulations by passing the qualifying examinations required of a person who has not previously qualified for admission in any other jurisdiction must, prior to applying for admission, pass the Test in such subjects as are specified in the Schedule unless in any individual case the Society grants a waiver. (2) An overseas lawyer to whom paragraph (1) of this Regulation applies may also be required to complete such a period of experience in legal practice, not exceeding two years, as the Society may determine, prior to applying for admission.”
[15]It is not in dispute that Mr Ayre satisfies regulation 11(1). Regulation 5 (3) of the QLTR requires the Law Society to take account of certain experience gained by an application who seeks admission under the QLTR route when it makes it assessment under regulation 11(2). Regulation 5 (3) states that:
“In making any determination under Regulations 6 to 15, the Society shall have regard to the nature and extent of the applicant’s practical experience in the law of England and Wales and any other academic or other qualification.”
[16]It is clear that the effect of regulations 11(2) and 5(3), when read together, is that depending on the level of experience of legal practice gained by the overseas lawyer, by way of their ‘other qualification’ they may be required to complete up to two years legal experience in the jurisdiction of England and Wales.[17]Mr Ayre is an overseas lawyer qualified in Australia, which is one of the professions listed in the Schedule to the QLTR. The Law Society, that is to say the SRA, is therefore required, in virtue of regulation 5 (3), to take account of his qualification as a solicitor in Australia.[18]The SRA’s chief adjudicator held however that it would be inappropriate to take account of Mr Ayre’s experience gained in Australia because it was experienced gained over five years prior to his application. He did so because he held that it was appropriate for him to take account of the SRA’s QLTR guidance July 2007. In his written submissions on behalf of the Law Society Mr Miller refers to the guidance as a schedule to the QLTR. However, it is not, so far as I can see, either scheduled to or referred to in the QLTR. It is simply guidance (or guidelines) which the SRA will take into account in exercising its discretion under the QLTR.[19]The guidance includes the following:
“In order to qualify as a solicitor of England and Wales under the provisions of the Qualified Lawyers Transfer Regulations 1990, certain lawyers are required to complete a two-year period of legal experience. This applies to applicants under . . . Regulation 11 – Certain overseas solicitors (lawyers) – two years’ legal practice experience. . . . The period of experience must be gained in three distinct areas of common law and have been undertaken within the previous five years. This must include work that, if carried out by a solicitor, would be regarded as contentious business and non-contentious business for a period of no less than three months in each. . .”
Regulation 11 – Certain overseas solicitors (lawyers) – two years’ legal practice experience.[20]This guidance appears to me in one respect to be inconsistent with and in another respect to fetter the discretion conferred on the SRA by regulation 11(2). It is inconsistent because it provides that certain lawyers ‘are required to complete a two-year period of legal experience’, whereas regulation 11(2) simply provides (as set out above) that an applicant may (not must) be required to undertake two years practical legal experience prior to admission. It fetters the discretion because it provides that the experience ‘must … have been undertaken within the previous five years’, whereas the regulation contains no such limitation[21]If the guidance had simply specified that in respect of those to whom regulation 11(1) applied, up to two years practical experience might be required, it would have been unobjectionable. Equally, if in respect of the nature of experience required and the time period in which it had to be gained, it had stated that the SRA would have particular regard to experience in certain areas and that the level of weight given to such experience would, all other things being equal, diminish the further in time from the application it was gained it would have been unobjectionable. Indeed, if it had said that such experience should ordinarily have been obtained within five years, it would again have been unobjectionable.[22]In these circumstances the chief adjudicator, in my opinion, erred in treating the guidance as having greater weight than the provisions of the regulations themselves. He erred in following guidance which was in conflict with the terms of the QLTR. He did so because he treated the period of five years as an absolute limit. It was not justifiable to do so under the regulations. In my opinion he should have treated the period of five years and one month (or less) as no more than a relevant factor. It follows that that the chief adjudicator erred in principle in reaching the conclusion he did. Under regulation 17(1)(b)(ii) of the QLTR I have the power to make such an order as I think fit. In these circumstances, while I could no doubt remit the matter to the chief adjudicator for further consideration, it appears to me that the appropriate course is to consider the matter for myself.[23]Mr Ayre is an applicant who has gained a considerable amount of practical legal experience in Australia and since 2006 in Frankfurt working for Allen & Overy. The vast majority of that experience is non-contentious. For a fifteen month period, from May 2000 to 26 October 2001, he worked first as a trainee and then as a qualified solicitor doing primarily, that is to say 80 per cent, contentious legal work for Freehills, Solicitors in Australia. He applied under the QLTR in October 2006. It is not clear from the documents submitted when in October he applied. However it is apparent that the application was at the most a month and perhaps only a few days over the five year period set out in the guidance[24]It seems to me that the SRA both could and should have taken account of Mr Ayre’s contentious legal experience gained in Australia. It was significant experience gained over fifteen months both as trainee and as solicitor. It is a level of experience that goes beyond that necessary for admission by those who apply for admission following the completion of a training contract. Despite the period of time which has elapsed since it was attained, it seems appropriate to give it weight given the length of time over which it was attained.[25]That being said it was not experience of contentious work in England and Wales. It did not give Mr Ayre experience of, for instance, the operation of the Civil Procedure Rules. What Mr Ayre gained was practical experience of litigation; what he lacks is specific experience of the English civil justice system. Nevertheless, given Mr Ayre’s experience as a litigator, it seems to me to be reasonable to conclude that, if Mr Ayre were to attend the College of Law’s litigation training course (both its theoretical and practical components), which is deemed suitable in certain circumstances for trainees, he would gain the necessary experience to satisfy Regulation 11 of the QLTR. Neither party has referred to the availability of any other possible course.[26]In arriving at this conclusion, I should stress that each case depends upon its own facts and, as I see it, Mr Ayre’s experience was at the very borderline. I would also note that the SRA should give serious consideration to revisiting the guidance (or guidelines), with a view to drafting them so that they are consistent with the regulations.[27]I would therefore allow the appeal and substitute a requirement that Mr Ayre attend a two-week litigation course, as run by the College of Law prior to applying for admission as a solicitor. In the light of the facts that the parties waived the necessity of holding an oral hearing and that Mr Ayre has made no application for costs, I make no order as to costs. Sir Anthony Clarke MR 22 May 2008.