Yousef, R (on the application of) v Law Society of England & Wales & Anor [2005] EWHC 560 (Admin)

Case No CO/5727/2004[2005] EWHC 560 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 16th March 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE ROSE
MR JUSTICE HOLLAND
Between
THE QUEEN ON THE APPLICATION OFAppellantNASEEM YOUSEFAppellant-v-
Between
THE LAW SOCIETY OF ENGLAND AND WALESRespondentTHE SOLICITORS' DISCIPLINARY TRIBUNALRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The APPELLANT appeared in person for in personMR GEORGE MARRIOTT appeared for RESPONDENT
J U D G M E N TWednesday, 16th March 2005

LORD JUSTICE ROSE:

[1]Mrs Yousef, who appears before us today in person, appeals against the decision of a solicitors' disciplinary tribunal on 14th September 2004, reasons for which were given on 21st October, that she should be struck off the Roll of Solicitors. The crucial question raised by the appeal is whether the Tribunal, having, in circumstances to which I shall come, found that Mrs Yousef was dishonest, they ought to have struck her off the Roll of Solicitors or imposed, as Mrs Yousef submits, some much less Draconian penalty.[2]The allegations which the Tribunal found proved against her were that she had acted as a solicitor in breach of a condition imposed on her practising certificate for the year 2001 to 2002, that she had sought and obtained a position with a firm or solicitors without obtaining approval from the Law Society, contrary to the conditions on her practising certificate, and that she failed to inform the firm of solicitors for whom she worked of the conditions imposed on her practising certificate, contrary to rule 1(d) of the Solicitors' Practice Rules 1990.[3]The appellant, Mrs Yousef, denied these allegations before the Tribunal. She gave unsworn evidence and made submissions. The conditions, so far as is presently material, related to her being in employment as a solicitor only with the prior approval of the Office for the Supervision of Solicitors. There was, in connection with those conditions, a hearing before the Master of the Rolls on 8th July 2003 in which he varied the conditions so that the her practising certificate became subject to a condition that she practise either in partnership or in employment. It will be apparent that the allegations found to be proved by the Tribunal whose decisions is appealed related to the period prior to the variation of conditions by the Master of the Rolls, in particular to the period when, as became apparent because of her attendance at an immigration appeal hearing before a special adjudicator, she was working on behalf of a firm called Malik & Malik and one of their clients. On 31st October 2003 the Law Society wrote to Mrs Yousef, seeking her explanation for working in that way in apparent breach of the conditions of her certificate at that time. She replied by letter dated 15th November 2003 that, in effect, she had, both in March 2002 and again in November 2002, informed Malik & Malik of the conditions, and it was in that context that she had been so working.[4]However, on 9th December 2003, in a telephone call, which Mrs Yousef accepts was a sign of her behaving wrongly and foolishly, she told the Law Society that she had not, contrary to the terms of her letter of 15th November, informed the partners in Malik & Malik of the conditions on her certificate. It was that telephone call which was at the heart of the finding of dishonesty made by the Tribunal.[5]Mrs Yousef made submissions to the Tribunal in relation to her appearance before the Master of the Rolls and the variation of the conditions on her certificate which then occurred. But, she submitted, there was no question of dishonesty on her behalf. So far as her clients were concerned, she had always worked honestly on their part. She did not handle clients' funds and there was no question of her misappropriating clients' funds.[6]The background to the conditions being imposed on Mrs Yousef's certificate needs to be briefly identified because of certain of the submissions made by Mrs Yousef, both in writing and orally to us today. She had been involved, to put it in a neutral way, in a non-dishonest fashion with another, undoubtedly fraudulent, solicitor who had made off with a very large amount of clients' money, much of which left the jurisdiction of this court. The association with that other solicitor, the Tribunal had concluded, was when she was inexperienced and she had herself, to some extent, been the victim of the nefarious activities of that solicitor, a man called Shah, and the Brandons Group. It was in consequence of that earlier Tribunal decision that conditions were imposed upon Mrs Yousef's practising certificate, which, it is apparent, she did not agree with and was dismayed by. The Tribunal presently the subject of appeal recognised, in its reasons for decision, the difficult situation in which Mrs Yousef found herself. She was not able to earn in an unrestricted way. But they concluded that her employment by Malik & Malik had not been approved by the OSS, as was required by the conditions, and also concluded that Malik & Malik had not been informed of the conditions on her certificate.[7]In paragraph 44 the Tribunal said this:
"To a large extent it was [Mrs Yousef's] case that she had been the victim of others' wrongdoing and the Tribunal has some sympathy for that view. But any solicitor has to remember that one of the burdens to be borne by a solicitor is the fact that he remains liable for his own actions and his own decision making and whatever disadvantages might stem from behaving entirely appropriately, a solicitor must nevertheless adopt such an appropriate stand. 45. The Tribunal concludes that in her desperation to obtain paid work the Respondent skated over the conditions on her Practising Certificate and justified that action to herself by her view that she was a victim in the whole matter and not a perpetrator of nefarious activities. In not being open and frank about her position and the conditions on her Practising Certificate with her employers the Respondent behaved dishonestly."
[8]The Tribunal went on that it had sympathy for Mrs Yousef for what had happened to her in the past, but:
" ... the Tribunal, in the interests of the protection of the public and the good reputation of the solicitors' profession, is not able to overlook the dishonest approach adopted by the Respondent."
[9]The Tribunal went on to conclude that Mrs Yousef knew exactly what she was doing and, although they understood her reasons, they concluded that she made a conscious decision to do things her own way. The dishonesty test in the well-known authority of Twinsectra v Yardley had been met. In all the circumstances, they concluded that striking-off was appropriate.[10]Mrs Yousef in her written grounds, amended grounds, skeleton submissions and reply dated 15th March to submissions made in writing by the Law Society for the purposes of this appeal, tells the court, and we accept, that, at the relevant time in 2002, she felt very vulnerable. She had many domestic and other problems, including divorce proceedings. She never thought that she was doing something dishonest. The Master of the Rolls had relaxed the conditions. She made a number of a complaints to us about the way in which she was deceived by the partners in Malik & Malik, and says that she was duped by them into accepting what they said. This included them writing a letter on 1st October 2003 outlining the terms on which she was engaged by them. She has been left to take all the blame. She also made criticism of the way in which Mr Shah, to whom earlier I referred, was permitted to remove very large amounts of clients' money from this country without, apparently, hinderance by the Office for the Supervision of Solicitors. She told us that, in view of the Master of the Rolls' decision, she thought that she would not be in any trouble in relation to the pre-existing conditions on her certificate. She stresses, rightly, that she was not involved in any misappropriation of funds. She had been stupid and naive but not, she said, dishonest and she should not have been struck off. She invites this court to treat her case sympathetically, bearing in mind that she is a single mother and has had no job for many months.[11]To all of those written and oral submissions I pay careful regard. As it seems to me, the difficulty with Mrs Yousef's case is that the Tribunal were entitled to find, on unimpeachable grounds having regard to her own admissions as to the terms of the December telephone call, that she was dishonest. It is right that her dishonesty was of a different character to the dishonesty of a solicitor who puts his hand in the till, absconds with clients' money or otherwise misappropriates funds. But the Solicitors' Disciplinary Tribunal, as it seems to me, having regard to the requirements of the profession, were fully entitled to conclude that the public interest could only properly be served by Mrs Yousef being struck off the Roll. Accordingly, for my part, despite my sympathy with Mrs Yousef in many respects, I would dismiss this appeal.

MR JUSTICE HOLLAND: I agree.

[13]MR MARRIOTT: My Lord, there is just one application which is for the Law Society's costs. It is just over £5,000.

LORD JUSTICE ROSE: Well, Mr Marriott, it is not realistic, is it, to seek an order for costs against Mrs Yousef, leaving aside the question of quantum, on which we are certainly not going to embark.

[15]MR MARRIOTT: Leaving aside that the principle should be adhered to. It is a matter for the Law Society as to whether they should actually, as it were, take instalment from her or not.

LORD JUSTICE ROSE: It may be that it is appropriate that an order for costs should be made, not to be enforced without leave of the court.

[17]MR MARRIOTT: May I take instructions, my Lord?

LORD JUSTICE ROSE: Yes. (Pause).

[19]MR MARRIOTT: The Law Society would be content with such an order.

LORD JUSTICE ROSE: Then we make that order, but not in any particular sum.

[21]MR MARRIOTT: Presumably to be assessed?

LORD JUSTICE ROSE: To be assessed if not agreed, yes. Thank you.

[23]MRS YOUSEF: I would request that costs should not be allowed because I am not working and there are other costs already imposed when the previous decision was made and I think that the sum of £10,000 is already outstanding.

LORD JUSTICE ROSE: Mrs Yousef, the fact that you have lost makes you vulnerable to an order for costs. We have made the order not to be enforced without leave of the court because we recognise your dire financial circumstances. Thank you.