In the matter of the Solicitors Act 1974 v Re A Solicitor [2008] EWCA Civ 1598

[2008] EWCA Civ 1598

ON APPEAL FROM THE LAW SOCIETY

Venue Royal Courts of Justice

Strand

London, WC2

Date Tuesday, 9 th December 2008

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. 20 of 2008

A.ODUNLAMI

(DAR Transcript of

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THE APPELLANT APPEARED IN PERSON.

MR J GOODWIN (instructed by Solicitors Regulation Authority) appeared on behalf of the Respondent.

Judgment

Between

In the matter of the Solicitors Act 1974Appellant

Re A SolicitorRespondent

Sir Anthony Clarke:

[1]Mr Odunlami appeals from a decision of the Solicitors Regulation Authority (the SRA) to impose conditions on his practising certificate for 2007 - 2008. The conditions imposed were as follows:

“1. He may act as a solicitor only: 1.1 in employment or partnership; or 1.2 as a member, office holder or shareholder of an incorporated solicitor’s practice. the arrangements for which have been first approved by the Solicitors Regulation Authority. 2 [He] shall immediately inform any actual or prospective employer, partner, co-member/office holder/shareowner of these conditions and the reasons for their imposition”

[2]The conditions were imposed initially on 2 April 2008 by Mr Smallwood, an authorised officer of the SRA. Mr Odunlami appealed that decision to an SRA Adjudicator, Ms Webb. That appeal was dismissed on 30 May 2008. In this appeal Mr Odunlami originally sought two orders. First, he sought an order that his 2007/2008 practising certificate be issued free of conditions. Secondly, and in the alternative he sought an order approving his current partnership with a Ms Giwa in Anthony Taylor, Solicitors, pursuant to the conditions. The second application falls away for two reasons.

[3]First, it is no longer possible to approve his partnership arrangements with Ms Giwa because she was struck off the roll of solicitors by the Solicitors Disciplinary Tribunal (the SDT) on about 9 - 10 September 2008. Secondly, it is not possible to raise an appeal against a decision to refuse such an approval of practice arrangements on an appeal of this kind; see Brandon v The Law Society (No 12 of 2008)

[2008] EWCA Civ 967

at paragraph 7. It is right to say that Mr Odunlami does not argue the contrary, especially since he correctly recognises that he cannot practise with somebody who has been struck off as a solicitor. There is no suggestion that Mr Odunlami was personally responsible in any way for Ms Giwa being struck off by the SDT. I am not myself concerned in this appeal with the rights and wrongs of that decision. However, this means that the sole live issue in this appeal is whether the SRA was justified in imposing the practising certificate conditions on Mr Odunlami’s 2007/2008 practising certificate.

[4]I will return in a moment to the position as it stands today because Mr Odunlami has produced a statement dated 8 December bringing matters up to date and he has explained to me that he has a new partner in respect of whom he has written to the Law Society, and of course he is also in the process of applying for his 2008/2009 practising certificate.

[5]I should make two further matters clear. The first is that the conditions are themselves currently stayed pending resolution of this appeal. They were stayed on 31 July 2008 after Mr Odunlami had applied for such a stay and the SRA had not opposed the granting of such a stay. It is therefore accepted by Mr Goodwin that the SRA were mistaken in a letter which I was shown this morning dated, I think, 23 June 2008, which was written before the stay was granted. The second point is that Mr Odunlami had previously instructed Mr James of counsel to represent him in this appeal; however, Mr James was not available to appear today but Mr Odunlami decided to continue in person, as he put it, in order to save costs. I am satisfied that this has caused no prejudice to Mr Odunlami, who has explained the matters clearly in his written materials including the statements to which I have just referred, and he has also made the position clear orally this morning. The background.

[6]Mr Odunlami was admitted as a solicitor on 2 April 2006. He had practised before that as a registered foreign lawyer. Since admission he practised initially in partnership under the name Maxwell Jones Solicitors. He resigned from that firm on 1 October 2007. He then entered into partnership with Ms Giwa, whereafter they practised under the name Anthony Taylors Solicitors.

[7]On 19 May 2005, while still a registered foreign lawyer, Mr Odunlami, and his then partner Mr Omisade, were both referred to the SDT following a forensic investigation of the practice. Before that matter came before the SDT a Law Society Adjudicator upheld a complaint by a Ms Teming against Maxwell Jones, holding that the services provided by Mr Odunlami and Mr Omisade in 2003 were inadequate. They were ordered to pay Ms Teming about £1700 in compensation and the fees they could charge were made subject to a limit. That is, however, now a long time ago. On 21 March 2006 a further forensic investigation into their practice was included in the matters referred to the SDT and on 8 March 2007 further conduct, the breach of an undertaking, was also referred to the SDT.

[8]I note in passing that one further consequence of the May 2005 decision was that regulatory conditions were imposed upon Mr Odunlami’s partner, Mr Omisade’s 2004/2005 practising certificate. An appeal from that decision came before me on 28 July 2006: see Omisade v The Law Society (No 14 of 2005)

[2006] EWCA Civ 1296

. It appeared to me then that the material before the SRA was not sufficiently clear to justify the imposition of conditions on Mr Omisade’s practising certificate: see paragraphs [20] - [22]. I allowed Mr Omisade’s appeal so that the SRA could investigate matters further and in the light of its findings consider whether the imposition of conditions on his 2005/2006 practising certificate was appropriate. The outcome of Mr Omisade’s appeal does not, of course, affect the decision in this case, not least because the matters that seemed to me to need further investigation in 2006 were before the SDT on 12 June 2007.

[9]The specific allegation pursued by the SRA before the SDT in June 2007 was that Mr Odunlami and Mr Omisade had each acted in a manner such that his conduct was unbefitting a solicitor. The particulars of that allegation were that they had: first, acted in breach of the Solicitors Accounts Rules 1998; secondly, failed to disclose material information to a client; thirdly, acted for the seller, the lender and the buyer in a conveyancing transaction where there was either an actual or potential conflict of interest; and finally, failed to inform lender clients that he was acting for all parties in the same transaction.

[10]Mr Odunlami, and, I note, Mr Omisade, admitted the allegations: see paragraph 66 of the decision of the SDT in Omisade & Odunlami (No 9418/2006) (Unreported, 27 August 2007). Mr Odunlami was fined £11,500 and ordered to pay the SRA’s costs. While no allegation of dishonesty was made, the SDT held, at paragraphs 67-70 of its judgment that his conduct was at the “serious end of the scale”. It further noted that he, and Mr Omisade, had continued to practise in breach of the Solicitors Accounts Rules after the SRA had pointed out to them that they were in default. It added that it considered the partners’ breach of the conflict rules and their non-disclosure of material information to be very serious. While it noted that it had given serious consideration to interfering with their practice, the SDT chose not to do so.

[11]In the light of the SDT’s decision and Mr Odunlami’s previous regulatory history, on 15 October 2007 the SRA imposed conditions on his 2006/2007 practising certificate. The conditions imposed were the same as those which form the subject of the present appeal, which of course relates to the 2007/2008 practising certificate.

[12]Mr Odunlami’s regulatory history did not, however, stop there. On 9 January 2008 an SRA Adjudicator found that Mr Odunlami had acted in breach of Rule 1(d) of the Solicitors Practice Rules 1990, Principle 21.01 and Rule 1.06 of the Guide to the Professional Conduct of Solicitors and Rule 20.03 of the Solicitors Code of Conduct 2007. He was severely reprimanded by the Adjudicator. Then on 18 February 2008 further allegations concerning his conduct and that of his then former partner, Mr Odunlami, were referred to the SDT. On 23 April he and Mr Odunlami were reprimanded by an SRA Adjudicator for failing to deliver their accountant’s report on time for the period 1 June 2006 - 31 May 2007. Other complaints were also outstanding against him. In addition to the reprimand on 23 April 2008, Mr Odunlami’s conduct was once more referred to the SDT and a discretion was vested in respect of the imposition of practising certificate conditions.

[13]Prior to 23 April 2008 decisions, Mr Smallwood considered Mr Odunlami’s application for a 2007/2008 practising certificate. As I have indicated, on 2 April 2008 he imposed the conditions that form the subject of this appeal. He gave these reasons:

“In view of Mr Odunlami’s recent appearance before the Solicitors Disciplinary Tribunal, and having regard to the Tribunal’s findings and to Mr Odunlami’s regulatory and disciplinary history with the Solicitors Regulation Authority, I am satisfied that it is necessary and appropriate in the interests of the public and the public confidence in the Solicitors Regulation Authority’s regulation of the profession that Mr Odunlami should practice as a principal solicitor only in an arrangement where he alone does not have responsibility for business management or the proper operation of client accounts or compliance with the Solicitors’ Accounts Rules, whilst he re-establishes a record of satisfactory professional practise.”

[14]As I noted earlier, Mr Odunlami appealed that decision to an SRA Adjudicator, Ms Webb, who dismissed the appeal. She did so, noting the test applied by Mr Smallwood, and holding that applying that test the imposition of conditions was both necessary and proportionate. I will return to the test applied in a moment, but, as I shall indicate, it appears to me that it is wrongly stated. I turn to the parties’ submissions.

Mr Odunlami’s Submissions

[15]His position is put succinctly in his petition. He makes two points. First, he submits that the matters before the SDT were not serious and no allegation of dishonesty was put against him. He was only fined. In respect of matters pending before the SDT at the time that the petition was issued, they were not serious either. Secondly, he submits that the conditions imposed were disproportionate. They are too onerous as they fail properly to balance his right to practise in an unfettered manner with the need to protect the public.

[16]Mr Odunlami expanded his position in a witness statement dated 23 July 2008 in which he makes much the same points. Importantly, however, he further expands his position in the statement to which I referred earlier, namely that of very recent date, namely 8 December 2008. The principal new thrust of that statement is that the position is now very different from what it had been historically. He submits, and indeed it is accepted by Mr Goodwin on behalf of the SRA, that, while there are outstanding complaints both being considered by the SRA and indeed by the SDT, they all relate to historical matters. None of them relates to Mr Odunlami’s current practising position. Mr Odunlami states that to be the position and, as I understand it, Mr Goodwin accepts his word on that matter. I will return to the current position in a moment.

The SRA’s Submissions

[17]The SRA’s position is that the imposition of the conditions was necessary and that the conditions imposed at the time that they were imposed were reasonable and proportionate. The SRA relies on Mr Odunlami’s regulatory and disciplinary history to which I have referred.

[18]I should first say a word about the test. Mr Goodwin in his written submissions sets out what he submits to be the test for the imposition of conditions, namely that the conditions are imposed for the protection of the public and the maintenance of the reputation of the profession and the confidence that inspires. That formulation differs from the formulation of the test applied by Mr Smallwood and approved by Ms Webb. Mr Goodwin submits that the purpose of imposing such conditions was that identified by Sir Thomas Bingham MR in Re A solicitor (No 6 of 1993) as being:

“intended to ensure that a Solicitor who has run into trouble in a professional capacity is subject to a degree of oversight in the conduct of his professional life at least until he has demonstrated over a period that he is not in need of such supervision to protect the public.”

[19]In my opinion, Mr Goodwin correctly accepts that both Mr Smallwood and Ms Webb applied the wrong test in assessing whether practising certificate conditions should be imposed. The test they applied was whether, and I quote Mr Smallwood’s judgment, “it is necessary and appropriate in the interests of the profession and the public confidence in the Solicitors Regulation Authority’s regulation of the profession”. The test has been stated on many occasions by more than one Master of the Rolls. In particular Lord Phillips MR, giving the lead judgment in the Court of Appeal at paragraph 25 in Awan v The Law Society

[2003] EWCA Civ 1969

, stated the test clearly in this way:

“Where serious charges are pending before the SDT, it is common for the OSS to impose restrictions on a solicitor’s practising certificate for the protection of the public and the reputation of the profession pending the SDT hearing.”

[20]The same test is evident in a different context in Sir Thomas Bingham’s judgment in Bolton v The Law Society [1994] 1 WLR at 512 at 519-520. In that judgment he focused on the interests of the public and the profession as a whole as the touchstone for assessing whether solicitors should be struck off for misconduct. In both that decision and Awan it is evident that the test requires an assessment of the interests of the profession as a whole and its reputation and not the reputation of the Law Society or indeed now the SRA.

[21]The test has recently been restated and applied on an appeal such as this from the imposition of practising certificate conditions. At paragraph 22 of Brandon v The Law Society, to which I referred earlier, I put the test in this way:

“Regulatory conditions are imposed where they are necessary in the interests of the public and the reputation of the profession. They must not only be necessary but also reasonable and proportionate.”

That in my judgment remains the test now, just as it was before the advent of the SRA, and it seems to me to be a matter of some concern for the SRA, and the profession, that its Adjudicators have reformulated the test. They should in the future adhere to the test to which I have referred.

[22]However, that being so, I apply that test to the facts of the present case. I return to Mr Goodwin’s submissions, which may be summarised as follows. 1) It is incorrect to submit, as Mr Odunlami does, that the various rule breaches he admitted were minor. Given the SDT’s findings, to which I have referred, they were not minor. The SDT held in August 2007 that Mr Odunlami was a solicitor who is in need of close supervision in his practice. The public, Mr Goodwin submits, would be “surprised, dismayed and concerned” if he were permitted to practise without any safeguards or controls imposed. This is especially the case where the vast majority of solicitors do not encounter regulatory or disciplinary measures, and Mr Odunlami has been subject to both. 2) Both Mr Smallwood and Ms Webb took account of all relevant factors in exercising their discretion, and the decision to impose conditions ought not therefore to be interfered with on appeal. 3) Any adverse effect or fetter on Mr Odunlami’s ability to practise is a consequence of the need to protect the public and the reputation of the profession and cannot therefore be criticised on the ground advanced. 4) The decision to impose the conditions was taken perfectly properly in the light of Mr Odunlami’s regulatory and disciplinary history, and as such justified. 5) Given that history, the conditions imposed were reasonable, necessary and proportionate. 6) Mr Goodwin relies upon the matters which have come to light or are still under investigation by both the SRA and the SDT although, as I indicated earlier, he recognises that they all relate to historical matters.

Discussion

[23]The issue in this appeal is whether the imposition of practising certificate conditions was justified in this case and, if so, whether the conditions imposed were reasonable and proportionate. In my judgment the conditions were both justified, and reasonable and proportionate when they were imposed. Indeed this seems to me to be a straightforward case. Mr Odunlami’s practising history leaves a lot to be desired, and it is fair to him to note that he recognises in his two statements to which I have referred that that was the case. The thrust of his submissions today is that that is all in the past and that he should be allowed to practise in an unfettered way in the future. He undoubtedly had professional difficulties while practising with Mr Omisade. He admitted those errors, however, before the SDT in 2007. It seems to me that when the matter was presented to the Adjudicator and the appeal panel earlier this year, the picture was such that they were entirely justified in imposing the conditions that they did. He is a solicitor whose practice certainly needed to be supervised, and they were correct to say that he is a solicitor who needs to demonstrate over a period of time that he is practising consistently with his professional obligations. In my judgment there is no basis for complaint about the way in which the SRA had dealt with those matters.

[24]What then of the present position? I have already indicated more than once that the present complaints all, insofar as they are still extant, relate to the past, not the current, practice. I understand that an application for Mr Odunlami’s 2008/2009 practising certificate has just been made. I also understand, although Mr Odunlami does not have the correspondence with him, that he wrote to the SRA in October informing them that he is now practising with Mrs Jane Inyang-Disi, and he informs me that Mrs Jane Inyang-Disi is an entirely appropriate partner, that she has had no problem with the SRA or the SDT and that there is no reason whatever, he says, why he should not carry on a partnership with her. The SRA has, I understand, acknowledged that letter, albeit some time in November, but has not responded in any substantive way to it.

[25]So the position at present is, as I understand it, and this is accepted by Mr Goodwin, that the SRA will now have to consider whether in the light of the current position to grant a practising certificate for 2008/2009 without conditions, which is no doubt what Mr Odunlami has applied for. It is not for me to prejudge how they will view that application. They will, I am sure, as is their duty, have regard not only to the history but, importantly, to the current position and to the capabilities of Mrs Inyang-Disi as Mr Odunlami’s partner.

[26]If the SRA should decide to impose the same condition as has been applied in 2006/2007 and 2007/2008, they will have to consider whether to approve the partnership with Mrs Inyang-Disi, which, as I understand it at any rate, is already in existence. There is no suggestion, as far as I am aware, that there is any possibility of the SRA imposing any more stringent conditions, and so then the matter will simply be whether the SRA should approve this partnership arrangement. There is nothing that I have seen which would suggest that they will not be willing to do so, but of course they will have to look at all relevant matters. However, that is for the future.

[27]It appears to me that there is no basis upon which I could properly hold that it was wrong to impose the conditions on Mr Odunlami’s 2007/2008 practising certificate. It follows that I have no alternative but to dismiss the appeal, but I hope that things may improve for him in the future in the way that I have indicated, although I stress that that is not a matter for me but for the SRA.

Order

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