Virdi v The Law Society [2009] EWHC 918 (Admin)

Case No CO/10523/2008

[2009] EWHC 918 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 18th February 2009

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE SCOTT BAKER

MR JUSTICE DAVID CLARKE

Between

AMRITPAL SINGH VIRDIClaimant

Between

THE LAW SOCIETYDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr M Beaumont (instructed by the Claimant) appeared for Claimant

Mr A Hopper QC (Solicitor-Advocate)(instructed by Solicitors Disciplinary Tribunal) appeared on behalf the Intervenor

Mr M McLaren QC & Mr D Barton (Solicitor-Advocate)(instructed by The Law Society) appeared for Defendant

J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]Mr Virdi appeals against a decision of the Solicitors Disciplinary Tribunal on 26th October 2007 finding him guilty of five offences under the legislation that covers practising solicitors and ordering that he be suspended from practice for a period of 3 years from that date.

[2]The hearing lasted over 15 days, spread over three separate weeks in May, July and October 2007. Following a lengthy retirement the Tribunal, which comprised three members, announced its decision on the concluding day of the hearing. The Chair (Miss Devenish) gave a short extempore judgment explaining the decision. Detailed reasons, running to 129 pages or thereabouts were not given until 13th October 2008, almost a year after the conclusion of the hearing. We have been given some explanation for this delay which, in my judgment, is both inordinate and inexcusable. The predominant reason for it appears to have been the illness of the clerk. A delay of this magnitude should not have occurred and reflects inadequate management of the Tribunal.

[3]In the event I am not persuaded that the delay has caused any injustice to the appellant because he knew the decision of the Tribunal on 26th October 2007 and the basic reasons for it and his suspension still has another 20 months to run. I am quite unpersuaded that any lesser penalty should have been imposed or that he has any viable ground of appeal, whether occasioned by the delay or otherwise.

[4]There was seven allegations against the appellant, of which five were found proved. Essentially they were that he had been guilty of conduct unbefitting a solicitor.

[5]There was a co-defendant, Davinder Virdee (no relation), who was found guilty of one offence only and is not a party to this appeal.

[6]Proceedings against the appellant began in August 2004. There were also proceedings against three other solicitors who had worked for the appellant, Mr Bridger, Mr Syan and, importantly, Mr Bamrah.

[7]Everybody agreed that the hearing against Mr Bridger, Mr Syan and Mr Bamrah should take place first and the Tribunal so ordered. The cases against them were heard in 2005. The Background

[8]The appellant was born in 1951 and admitted as a solicitor in 1979.

[9]At all material times the appellant and Davinder Virdee practised in partnership under the style of St Johns. The practice was founded by the appellant. The head office was at 6 Wellington Place, St John's Wood. There were also branch offices in Hounslow, Southall and St Anne's Terrace, St John's Wood.

[10]The appellant was the sole equity partner, Davinder Virdee was a salaried partner. The practice employed a staff of 46 including five assistant solicitors. At one time there were five offices, two in Hounslow, two in St John's Wood, with the appellant operating primarily from Southall.

[11]The Hounslow office was owned by Mr Bamrah, the appellant's nephew, the address being 686 - 692 London Road, Hounslow. In late 1995 the appellant took over the premises and some files of Singh Garland & Wells of which Mr Bamrah was the sole proprietor. Thereafter Mr Bamrah worked for the appellant (as well as for his own firm) and Davinder Virdee, who had been working for Mr Bamrah's firm joined the appellant.

[12]Mr Bamrah's practising certificate was terminated in May 1997, although he remained on the Roll of Solicitors.

[13]The Law Society intervened into the appellant's firm of St John's on 20th March 2002. This followed two inspections of their books and documents in March 2000 and November 2001.

[14]Mr Bamrah was found guilty of practising without a certificate and disreputable conduct and struck off the Roll of Solicitors. The Tribunal found that he had acted dishonestly.

[15]The five allegations found proved against the appellant can be summarised as follows: Charges (a) and (b) shutting his eyes to the realities of money laundering or other dishonest transactions that were going on through client accounts. (c) Being a business to which the money laundering regulations applied, he failed to implement and maintain the necessary procedures. (d) He allowed Mr Bamrah, who was his employee, to engage in transactions that had the characteristics of money laundering or financial fraud. (e) He was grossly reckless in allowing Mr Bamrah to practice as a solicitor without a practising certificate. At the conclusion of the hearing, in their decision, that is the extempore decision, the Tribunal said as to: Allegation(a) There was ample documentary evidence to support the allegation which was also supported by the oral evidence of Miss Hartly, Mr Cotter and Mr Merrett. Allegation

(b) Again, there was documentary evidence. The appellant had control of accounts and must have authorised payment for such items as vehicles, school fees and cash. There was no evidence of an underlying legal transaction. Allegation

(c) Procedures with regard to money laundering were implemented but not maintained. The appellant supervised Mr Bamrah whose files had not complied. He should have been alerted to what was going on and indeed he failed to act when asked by Davinder Virdee to do so. Allegation

(d) Mr Bamrah was employed in the widest sense. Allegation

(e) The appellant was aware that Mr Bamrah did not have a practising certificate, following receipt of a letter from the Law Society of 14 December 1998. Furthermore Davinder Virdee raised this with him when she received a similar letter the following March. The Tribunal did not accept the appellant's evidence that he told Davinder Virdee to "sort it out".

[16]It was important for the Tribunal to decide whether the appellant's conduct had been dishonest or merely grossly reckless. The Tribunal said that it had grave concerns about the appellant's conduct. It did not believe him in all respects in relation to allegations (a), (b) and (d) but fell short of finding dishonesty proved. It did, however, find that he had been grossly reckless in respect of allegations (a), (b), (c), (d) and (e).

[17]It seems to me that the findings that eventually emerged from the Tribunal, almost a year after the event, are in no way inconsistent with what the Tribunal said on 26th October 2007 but simply set out in great detail the history and background and summary of the evidence and the parties' submissions as well as fleshing out the findings of the Tribunal in greater detail at pages 117 - 124.

[18]Mr Beaumont's main ground of appeal, he having appeared for the appellant both in this court and below, which was argued first before us, relates to the Tribunal clerk, Mrs Elson . Essentially, Mr Beaumont's complaint is that she was inappropriately involved in the Tribunal's findings. The decision was not that of the Tribunal alone, he submits, but was influenced by a contribution from her.

[19]This contention is to be found in ground (b) of the grounds which runs as follows:

"...it is understood that the judgment of the Tribunal was drafted in whole or in part by the Clerk to the Tribunal and not by the Tribunal members. This is understood to be the current practice of the Tribunal... the Clerk had no statutory or other legal power to take part in the decision-making process, still less to draft all or part of the Tribunal's judgment. The Appellant was entitled to be tried by a, 'Tribunal established by law' - (ECHR Art 6(1)). If the Clerk drafted any part of the judgment, that was a breach of... natural justice: the Appellant thought he was being tried by the Tribunal members and by no-one else. The Appellant has asked the Tribunal to confirm what part the Clerk played in the drafting of the Findings. If she played any part, the decision must be regarded as a nullity and should be quashed."

As this ground reflects on the ordinary practice of the Solicitors Disciplinary Tribunal, leave was given to the Tribunal to intervene in the appeal and we have heard submissions from Mr Hopper QC on the issue.

[20]We also have evidence from three witnesses, Mrs Whitfield, the deputy clerk to the Tribunal who was the clerk assigned to this case, Mrs Elson, the clerk to Tribunal and Miss Devenish, the panel member who chaired the proceedings. Mrs Whitfield explained that she had been deputy clerk to the Tribunal since 1998 having been admitted as a solicitor in 1982. Her evidence was:

"My notes from the 26th October 2007 indicate that the members were in retirement discussing their final decision in relation to liability for approximately six and a half hours. Once a consensus was reached the chairman drafted, with the assistance of the other members, a rather longer set of oral reasons to be read in open court than is normally the case. My contribution was to remind them, from my note, of comments and reasons made and given during the course of the lengthy discussion. It was this set of reasons, as should be apparent from the transcript, which formed the basis of my first draft of section 7 of the Findings. After hearing submissions in mitigation and also costs the members spent a further period of just under two hours considering penalty and costs."

[21]So, after a long deliberation, the Chair of the panel announced its decision on 26th October 2007. Now we have a transcript of what the Chair of the Tribunal said, which is to be found among the material that has recently been produced for the benefit of this court.

[22]Miss Whitfield's evidence is that she took no part in the deliberations and it was the Chair, with the assistance of the other members, who drafted the reasons that were then read orally in court. Mrs Whitfield had taken notes during the Tribunal members' lengthy discussions and helped the Tribunal from time to time with reminders from her notes.

[23]Following the hearing on 26th October 2007 the Tribunal's order was drawn up by the clerk in the ordinary way.

[24]After 26th October there was a long delay before the Tribunal's findings were eventually produced on 13th October 2008 - almost a year later. These findings comprised 12 sections, covering some 135 pages and appendixes of another 117 pages. Mrs Whitfield, as was the practice, produced the first draft of this document but with rather more assistance than usual from the members, largely because of the number of applications and objections that had been made during the course of the hearing. The draft went back and forth and was eventually approved by the Tribunal members.

[25]Miss Devenish the Chair of the Tribunal confirms in her witness statement the account of Mrs Whitfield. In particular she said that if there was an allegation or implication that the decisions, orders and reasons were not wholly those of the members of the Tribunal, as duly constituted, she refuted it.

[26]Mrs Elson pointed out that it was customary for the clerk to retire with the Tribunal, hear its discussions and decisions and take a note. It is also customary for the clerk to have the initial responsibility for producing the written record, as she is the best person for ensuring that she has captured the Tribunal's decisions and reasons accurately and that nothing has been overlooked.

[27]Mr Beaumont made written submissions in his supplemental skeleton argument that were plainly wider than ground 9(b) of his grounds of appeal. His underlying point was that the clerk was an employee of the Law Society, albeit seconded to the Tribunal and that therefore there was an appearance of bias. As I understand it the basic point Mr Beaumont was making was that the clerk's alignment with the Law Society, as prosecutor before the Tribunal, was such as to taint the decision of the Tribunal in the eyes of an impartial bystander. The fact that she was employed by the Law Society and retired with the Tribunal vitiated the proceedings.

[28]With some hesitation we gave leave to amend the grounds of appeal to include paragraphs 2(b), (c) and (d) of Mr Beaumont's supplementary skeleton argument. These are in the following terms:

"(b) the retirement of the clerk with the panel members of the STD on 26th October 2007 when they considered their final verdict and sentence was unlawful at common law because, according to the evidence of Mrs Elson, the clerk is an employee of the Law Society (seconded to the SDT). She therefore had, or appears objectively to have had, a common interest with, or partiality towards, her employer, the Law Society, the body prosecuting Mr Virdi before the Tribunal; (c) The involvement of the clerk in retiring with the panel when they considered their final verdict and sentence and/or in drafting the findings on 26th October 2007, was unlawful at common law, because her employer was party to the proceedings and for her to have played any part in the retirement and/or drafting processes, was, or was tantamount to, the Law Society being a judge in its own cause; (d) The involvement of the clerk in drafting the detailed findings after 26th October 2007, was unlawful at common law, because her employer was a party to the proceedings and for her to have played any part in the drafting process was, or was tantamount to, the Law Society being a judge in its own cause."

[29]Mr Beaumont's first point was that there was no power for the clerk to retire with the Tribunal. He argues that the SDT is a public body. It is a creature of statute and one must look at the statute and the Rules to see what is permissible. He relies on R v Somerset County Council ex parte Fewings

[1995] 1 All ER 533

and particularly on the observations of Laws J at page 522.

[30]Section 46 of the Solicitors Act 1974 enables the Tribunal to make rules about inter alia the procedure and practice to be followed in relation to the making, hearing and determination of applications and complaints including provision about the composition of the Tribunal.

[31]The relevant rules were the Solicitors (Disciplinary Proceedings) Rules 1994. They defined the Clerk in rule 1 as the clerk to the Tribunal or any deputy or person appointed by the Tribunal (whether temporary or otherwise) to perform the duties of that office. The clerk has to be a solicitor of the Supreme Court.

[32]Certain duties of the clerk are provided for in the rules, including supplying a copy of the findings and the order to each party to the proceedings and anyone else present at the pronouncement who requests one.

[33]Mr Beaumont says the Rules say nothing about the clerk retiring with the members or the Tribunal or producing drafts of the findings, and that is true. But points out Mr Hopper, rule 31(a) provides that subject to the provisions of the Rules the Tribunal may regulate its own procedure.

[34]Mr Hopper submits that here lies the power that enables the clerk to retire with the Tribunal and perform the administrative functions that she did. Mr Beaumont submits that there is no evidence that the Tribunal has regulated its procedure in this way. What was done in the present case was no different from the procedure followed by the Tribunal in every other case. A procedure that it has been following for years.

[35]The Solicitors (Disciplinary Proceedings) Rules 2007 came into force on 14th January 2008 and replaced the 1994 Rules - too late, of course, to be applicable in the present case. Those rules, as were the 1994 Rules, were made by the Tribunal President and approved by the Master of the Rolls. They too have a provision (rule 21(1)) that the Tribunal may regulate its own procedures. But the 2007 Rules go in a little more detail into the clerk's duties. Rule 3(11) provides:

"The Tribunal may prescribe the duties to be performed by the clerks or for which they shall be responsible and those duties shall include arrangements for- ... (f) preparing summaries of allegations, evidence and submissions for inclusion in the Tribunal's detailed findings; (g) drawing orders and findings and filing them with the Law Society; (h) The general supervision of other clerks and the Tribunal's administration and staff; and (i) maintaining records..."

[36]Rule 11(f) seems to me to spell out just what the clerk was doing in the present case. Mr Beaumont submits, be that as it may, such power did not exist before the new Rules came into force on 14th January 2008. It seems to me that the more realistic way of looking at it is that the new Rules were simply setting out expressly and giving an imprimatur to what had long been the practice under the power given by rule 31(a) of the 1994 Rules and whether it had previously been regulating its own procedure expressly or impliedly under that Rule. The important point, it seems to me, is that the provision in the new Rules demonstrates that there was nothing objectionable in the practice that had gone before. For my part, I reject Mr Beaumont's submission that there was no power for Mrs Whitfield to do what she did in the present case.

[37]I turn next to the amended grounds that the clerk was employed by the Law Society and that this tarnished the appearance at least of the impartiality of the Tribunal because neither party should appear to have any connection with the Tribunal. The position is as follows. This description has been on the Tribunal's website for some time:

"The staff of the Tribunal are employees of the Law Society. The Clerk and Deputy Clerks are formally seconded to the Tribunal by the Law Society. The full complement of staff consists of a full time Clerk, two part-time Deputy Clerks, all of whom are solicitors of no less than ten years' standing; a full-time Assistant Clerk (also a solicitor) and two part-time Assistant Clerks."

The appellant and his counsel were apparently unaware of this until recently.

[38]Mr Michael McLaren QC for the Law Society draws attention to the following points: a written memorandum of understanding between the Master of the Rolls, the Law Society and the Solicitors Disciplinary Tribunal was drawn up in 2003. This is not a public document but the document has this to say. The first paragraph states:

"This memorandum of understanding records an interim arrangement between the Law Society and the Solicitors Disciplinary Tribunal ('the Tribunal'). It is the objective of both parties to work as soon as possible towards a situation where the Tribunal becomes wholly independent of the Law Society in the operation and administration of its function. It is recognised in any event that the Tribunal is wholly independent of the Law Society in the exercise of its judicial functions."

The memorandum also notes the following matters which it is submitted are potentially relevant to this case:

"The overriding obligation of the [Tribunal] is to do justice as a judicial body. The [Tribunal's] budget is proposed by the Clerk and submitted to the Society for approval. The Clerk is appointed by the Tribunal to hold office in accordance with the Solicitors (Disciplinary Proceedings) Rules 1994. The renumeration (including pension provision) of the Clerk shall be determined by the Society in accordance with scales and other rates of pay considered by the Society to be appropriate for a person holding such office and with responsibilities comparable to those of similar employees of the Society. The Society cannot withdraw or impede the services provided for the proper performance of the Clerk's office. The Clerk shall be regarded as seconded to the SDT. The staff of the SDT will continue to be employees of the Society and will report to the Clerk as their line manager."

[39]Mr McLaren makes a number of other points to illustrate the independence of the clerk from the Law Society: 1. The Tribunal uses a building not used by the Law Society. 2. The Law Society has no control over and does not interfere with the routine management or operation of the Tribunal. 3. None of the clerks has ever been employed by the Law Society for any purpose other than as clerk to the Tribunal. They have never served the Law Society in any other capacity. 4. The clerks have no routine contact with the Law Society other than as a nominal employer. 5. There is no link between results of cases in the Tribunal and career development of clerks. It is relevant to look at the history of the relationship between the Law Society and the disciplinary control of solicitors:

"...until the Solicitors Act 1888, the disciplinary jurisdiction over solicitors was exercised exclusively by the courts. By virtue of that Act, applications against solicitors were made to a Committee of the Incorporated Law Society, whose members were appointed by the Master of the Rolls. The Committee made findings which were embodied in the report to the court, but the court continued to exercise the disciplinary jurisdiction. The Solicitors Act 1919 granted the powers of the court, to strike a solicitor from the roll and to impose other penalties, to the Disciplinary Committee of the Law Society, but preserved the court's inherent jurisdiction. The Disciplinary Committee was not a committee of the Council of the Law Society, but a separate body whose members continued to be appointed by the Master of the Rolls. This regime continued through successive Solicitors Acts up to and including that of 1957. The Disciplinary Committee was replaced by the Solicitors Disciplinary Tribunal in 1975, by the Solicitors Act 1974. The Disciplinary Committee of the Law Society inevitably operated at the cost of the Law Society. No funding arrangements for the Tribunal were made in the 1974 Act, save for the provision for payment of the (new) lay members by the Lord Chancellor. By default the Law Society continued to fund the Tribunal as successor to the Committee. As the Law Society plays a major part in promoting Solicitors Acts and successive amendments to the current Act ... it was understood that the Law Society would continue to provide that funding, so that no legislative provision was required ... [in any event] no government would readily have permitted any different arrangement. The arrangement is now made explicit, and directly sanctioned by the legislature, as a result of amendments to the 1974 Act by the Legal Services Act 2007, see section 46A... The Society is to continue to provide the Tribunal's budget, under the overall jurisdiction of the Legal Services Board."

[40]The independence of the Tribunal has been considered by the court on a number of occasions. In Pine v The Law Society (2000 unreported, Crown Office 1385/2000) Crane J said at paragraph 23:

"Standing back, and bearing in mind the statutory scheme for the Disciplinary Tribunal, I see no reason to doubt its independence or impartiality. It is independent of the Law Society. There is no indication that the Law Society can influence its decisions, except in the sense of making submissions to the Tribunal as a party before the Tribunal. No evidence or suggestion has been made that the particular Tribunal demonstrated any partiality in any way. In my judgment, the submission that the Solicitors Disciplinary Tribunal does not meet the test of being an independent and impartial tribunal is not made out."

Lord Woolf CJ and Rafferty J agreed. That decision was followed in Holder v The Law Society

[2005] EWHC Admin 2023

(see in particular paragraphs 21 - 27). In Rosen v The Solicitors Disciplinary Tribunal

[2003] EWHC 2108

Admin, the applicant challenged the role of the Clerk as an employee of the Law Society. Hooper LJ, in refusing a renewed application for leave to apply for judicial review, said:

"It is submitted that the position of the clerk to the tribunal is such that this court should intervene and find at this stage the appearance of bias. Collins J considered the matter on the papers and, so far as the clerk is concerned, he said: 'The Mrs Elson point is not one which should properly be raised now since, even if there is any merit in the Article 6 arguments (and I do not believe that there is) it is not suggested that she would in fact influence or seek in any way to influence the tribunal.' ... 3. In so far as the clerk is concerned, I shall deal with that matter very briefly. The clerk is employed by the Law Society but acts to assist the Disciplinary Tribunal during and after hearings. If any point is to be made about the clerk, then it should be made at the hearing. It seems to me very unlikely that any such complaint about the clerk would succeed, particularly in the light of the decision of the Privy Council in Whitefield v General Medical Council IRLR 39 (Privy Council), Privy Council Appeal 90 of 2001. Whereas this court might be prepared to intervene at this stage if there was any suggestion of bias on the part of a member who was hearing the case, it seems to me to be inconceivable that this court would intervene if there was an allegation of bias as against a clerk. The precise role of the clerk in these proceedings would have to be considered, and could only properly be considered, when the case was over. Whitefield v General Medical Council [2003] IRLR 39 followed a complaint as to the presence of the Committee secretary and Committee co-ordinator while the members deliberated. Both were employees of the GMC who were the prosecutors. The evidence showed separation between the section of the GMC that dealt with preparation and prosecution of cases and the section that dealt with the organisation of the relevant adjudicating committees. The Privy Council said at paragraph 41: "41. Their Lordships find no substance in this complaint. They have no reason to doubt the explanation put forward by the Committee Secretary. The circumstances as explained could not conceivably lead a fair minded and informed observer to conclude that there was a real possibility that the Tribunal was biased. Mr Walsh explained that the Committee Secretary is responsible for recording the votes cast, and for preparing the drafts of the Committee's determination. The Committee Co-ordinator is an administrator in the Health Committee Secretariat and provides administrative support, such as typing, photocopying and exhibit liaising between the Committee and the parties about administrative matters such as length of adjournments, and the time at which the hearing is to resume. Their Lordships are satisfied that the presence of each of these members of staff was legitimate and justified and that there was a scrupulous separation of functions which did not give rise to the possibility of bias or any other irregularity."

[41]We were also referred to Re: P

[2005] 1 WLR 3019

, a decision of the Visitors and a judgment given by Colman J. That was a case in which apparent bias arose. Colman J referred to the common law test in Porter v Magill, whether all the circumstances were such as to lead a fair-minded and informed observer to conclude that there was a real possibility of bias on the part, in that case, of Miss Nathan, one of the members of the Tribunal. The problem was she was a member of the referring body of the Professional Conduct and Complaints Committee. Although irrelevant to the outcome of the appeal, the Tribunal accepted the appellant's submissions on this.

[42]In my view Re: P was very different from the present case. In the first place it was not a SDT case. More importantly, the problem was with a decision-making member of the Tribunal and not the clerk and, even more significantly, the appellant was a member of the referring Committee.

[43]Finally, it is necessary to refer to two Hong Kong cases: Au Wing Lun v The Solicitors Disciplinary Tribunal & Anr CACV 4154/2001 and A & B Solicitors v Law Society of Hong Kong 2000 269/2004. It is common ground that the second authority subsumes the first for the purposes of the present appeal. Le Pichon JA, with whom Vice-President Rogers agreed, was very critical about what had occurred at the Tribunal. The clerk had spent almost 17 hours drafting the findings and order. In the course of quite a short judgment Le Pichon JA said this at paragraph 22:

"What is essential in any judicial decision is that the parties involved should know exactly not only what the particular Tribunal has decided but the reasons therefor. It is not sufficient that others are permitted to articulate the reasons. The particular matter in which a decision is framed and the wording used is often vitally important. Not only that, the manner in which the Tribunal has indicated in this case that it saw fit to proceed would indicate that it would be open to the Clerk to insert thoughts and expressions of his own, albeit subject to review by the Tribunal. As was said that must in itself be wrong. It would involve a person making suggestions to the Tribunal in secret and without the knowledge of the parties. More importantly, those who have been involved in making judgments know full well the very exercise of framing that judgment can bring home points which may be of particular significance. In this case, the Tribunal failed to appreciate the significance of what had been said by the respondents and indeed in the agreed facts. Whether they would have done that if they themselves had taken the trouble to draft their decision is thus open to question."

Unsurprisingly Mr Beaumont relies strongly on these cases. Mr Hopper, however, points out that neither Hong Kong case investigated the facts and in particular what happened during the drafting process which, importantly, took place before the adjudication.

[44]It was not disputed that what happened in the Hong Kong cases was unsatisfactory but the important distinction is that there was involvement of the clerk in the decision-making process. It is obviously unsatisfactory for the Tribunal to rely on the clerk rather than their own recollections and assessment of the evidence.

[45]Passing reference was made to what happened in the Magistrates' Court. Lord Woolf CJ's Practice Note of 2nd October 2000

[2000] 4 All ER 895

was referred to the court. In that he said:

"In addition to advising the justices it shall be the legal adviser's responsibility to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons. A justices' clerk or legal adviser must not play any part in making findings of fact, but may assist the bench by reminding them of the evidence, using any notes of the proceedings for this purpose."

It is important, in my judgment, to keep in mind the important basic fact that the Tribunal's decision was made on 26th October 2007 and that the outlined reasons for it were given by the Tribunal Chair on that date. On the evidence the clerk took no part in the decision-making process. The order was drawn up on that date and the appellant's suspension began to run at that point. As Moses J held, on similar facts in Baxendale-Walker v The Law Society

[2006] EWHC 643

Admin, the Tribunal was at that time functus officio (see paragraph 23). Moses J's decision was appealed but not on this point.

[46]Once the Tribunal becomes functus it seems to me that the curtain comes down on any argument under

Article 6 of the ECHR

with a possible exception of a reasonable time issue which incorporates not only the hearing but also any appeal. I shall return in a moment to the question of delay. But that apart, I do not think Article 6 adds anything to the other arguments about the clerk's involvement.

[47]My conclusions about the submissions relating to the clerk's involvement and apparent bias are as follows: 1. The SDT is entirely independent of the Law Society. The historical and financial connections are well documented as are the steps that have been taken to keep the two bodies separate. 2. The independence of the Tribunal is well established on the authorities. 3. The attack in the present case is not directly on the Tribunal but on the clerk, it being alleged that because she was employed by the Law Society that this in some way tainted the Tribunal's decision because the Law Society was the prosecutor and neither party should have any connection with the Tribunal. Examination of the clerk's position however shows that her employment by the Law Society (as with all Tribunal clerks) is not employment in the ordinary sense of the word but very much technical employment for remuneration purposes. 4. The clerk was not the decision maker, either by virtue of her position or on the particular facts of this case. Even taking the broadest view of what the independent and informed observer might think, I can see no basis for concluding that the Tribunal's decision could be considered to be biased against the appellant. 5. Nothing the clerk did was improper. She was not in any way a party to the decision. She followed the ordinary administrative procedures adopted in other cases. She was entitled in assist in drafting the findings document which, in the event, was not in any way inconsistent with the extempore reasons give by the Chair on 26th October 2007. Delay

[48]I have already observed that the delay in producing the findings was far too long. It is true that this was an exceptionally complex case that far exceeded its five day time estimate and required an adjourned hearing on two occasions with additional weeks. This was in part at least due to the number of points taken by the appellant's advocate.

[49]The Tribunal attributes the delay in producing the findings to:(1) The unusual complexity of the case;

(2) The illness of the clerk;

(3) Changes in the Tribunal's structure; and

(4) Lack of resources. For my part, the length of the findings appears also to be a contributory factor. Mr Hopper submits that the findings are a public document and must be comprehensive. Further, the clerk in producing the draft document for the Tribunal will wish to err on the side of caution in covering everything. Nevertheless, it seems to me that attention should be given to producing findings that are not disproportionate in length to the issues at the hearing. It should, for example, be possible to summarise evidence relatively succinctly. The bottom line is that the findings are those of the Tribunal and not the clerk and there is no reason, in my judgment, why the Chair should not exercise control over their length.

[50]While I have great sympathy for the illness of the clerk and the other problems that beset the Tribunal, the Tribunal should have had, and I hope now has, in place management procedures to pick up and deal with potential delays. Save in the most exceptional case findings should be produced in weeks rather than months. This is only fair to the parties.

[51]We were told that from time to time enquiries were made and about when the findings would be forthcoming but that on each occasion the response was that more time would be required.

[52]It is true that the time for lodging an appeal expires 14 days after delivery of the findings (see the White Book 52PD.121 at 22.6B(3)(b)).

[53]It is said that the appellant could have appealed in October 2007, immediately after the decision and order but that would, in my judgment, have been impractical where there was the possibility of a reasons challenge because this was something that would turn on the detailed findings.

[54]The delay of nearly a year in producing the findings following the decision was, in my judgment, as I have already said, both inordinate and inexcusable.

Article 6 of the European Convention on Human Rights

gives a right to a fair and public hearing within a reasonable time. The appeal process is incorporated within this provision (see Konig v Germany

(1978) EHRR 170

[55]For my part, I am satisfied that the appellant was not prejudiced by the delay because his suspension ran from the date of the order and still has over 18 months to run. As I see the penalty as lenient and one with which I would not interfere, it seems to me that the appellant has suffered no specific prejudice from the delay. He would no doubt have wished to have had the appeal process out of the way, however long ago.

[56]I think that there has been a violation of Article 6 by reason of the delay and that pursuant to section 8 of the Humans Right Act that is a matter to which this court should pay attention. I am unpersuaded that any remedy is required beyond the simple statement of this court that what has occurred does violate Article 6 and is unacceptable. In particular, I do not accept Mr Beaumont's submission that there should be a shortening of the appellant's suspension. If the period imposed was correct, as I believe it was, shortening it, for no reason other than breach of Article 6 - a breach which put the appellant to no significant disadvantage would, in my view, be offensive to the principle in Bolton v The Law Society

[1994] 1 WLR 512

, in particular the passage at 518.

[57]I turn now to the other grounds of appeal. The first relates to Mr Merrett, who was called by the Law Society to give expert evidence to the Tribunal. The complaint appears to me to be threefold. First, that the Tribunal failed to make any findings about the admissibility of Mr Merrett's evidence about SBLCs (standby letters of credit). Second, that the Tribunal failed to make any findings about the weight to be given about his evidence about SBLCs, and thirdly, by implication they should have given little or no weight to his evidence.

[58]The appellant asked the Tribunal to find that Mr Merrett was not an expert and that his opinion on SBLCs should (a) not be admitted or, if it was admitted, should be given minimal weight. The Tribunal rejected that application and it seems to me plain that that is a decision that his evidence was admissible.

[59]Mr Merrett was a fraud analyst with expertise in the fraud relating to financial instruments. SBLCs are a mechanism for conducting international trade. They are not in themselves a tradable commodity. The issue was not whether the transactions that had been going on were actually fraudulent but whether they appeared dubious, so that no solicitor should have allowed them to continue. The applicant was not suggesting that these documents were genuine and adduced no evidence to that effect. The issue was what a reasonably prudent solicitor should have thought.

[60]The point is that Mr Merrett had expertise in financial fraud. He was, in my judgment, entitled to give evidence on that topic and the appellant called no evidence to the contrary. Weight was a matter for the Tribunal. They were not required to specify precisely what amount of weight they gave. His evidence was in any event only part of the picture, the Tribunal (two of whose members were solicitors) had their own expertise as well as the expertise through Miss Hartly and Mr Cotter. There is, in my judgment, nothing in this point.

[61]The next point is that two of five SBLCs files were not adduced in evidence. The thrust of this point, it seems to me, is that two of the five files were lost by the prosecutor and therefore not available for inspection at the hearing and in particular by the appellant. They had, however, been seen by the investigators and reference was made by them to the files. The precise allegation is as follows. The SDT erred in failing to make any finding as to the submission that the Law Society relied on the cases of WC and H as two of five SBLC matters but the copies of these files have not been produced but the Law Society and/or that it was an abuse of the process of the Tribunal to proceed with these matters. This is wrong. The appellant's counsel made three different applications in relation to the missing files in the cases of WC and Helgeson. The first of those was in May 2007. The appellant claimed that the Law Society should not be permitted to rely on extracts from these missing files. The Tribunal refused this application and held that the weight to be placed on the evidence was a matter for the Tribunal in due course. Then in July 2007 the appellant sought to prevent the Law Society from cross-examining on the file of WC. The Tribunal was satisfied that the line of questioning relating to documents before the Tribunal and to which Mr Merrett had referred in his evidence was appropriate. Finally, in October 2007, an attempt was made to secure a stay or dismissal of any allegations which had not been supported by full disclosure of the client file. The SDT declined to consider the application at such a late stage.

[62]For my part, I can see nothing wrong with the approach of the SDT or that the appellant suffered any significant prejudice from the absence of two of the five files. The case was that the files displayed a consistent picture and even if the Tribunal had focused on three files alone the result would have been no different. There is nothing in this ground of appeal.

[63]Next: money laundering. The complaint here relates to the findings of the Tribunal at paragraphs 673 and 675. Those findings are as follows 673:

"The Tribunal found allegation (c) substantiated against the First Respondent. The Tribunal found that the procedures had been implemented but not maintained by the First Respondent. There was evidence for example that some staff had been on Money-laundering courses. The Tribunal had found however that the First Respondent had supervised Mr Bamrah on matters where files had not complied with the procedures. The First Respondent should have been alerted by the accounts which he controlled and the Tribunal noted that he had particular obligations as a money-laundering compliance officer. The clear impression given by the First Respondent in his oral evidence was that he expected everyone else including his legal staff, his accounts department and his auditors to identify any matters of concern and bring them to his attention. He appeared to take no responsibility himself and as stated above had not been alerted by the transactions he authorised through the accounts. When a member of staff, namely the Second Respondent, had brought matters of concern to him and requested an NCIS report he had not made such a report."

At 675:

"The Tribunal found allegation (d) substantiated against the First Respondent. The First Respondent's failure to supervise Mr Bamrah adequately in relation to transactions carried out by Mr Bamrah or carried out by the First Respondent with Mr Bamrah's involvement, which the Tribunal had found had the hallmarks of fraud/money-laundering, enabled Mr Bamrah to continue with his involvement in the transactions and that involvement had been found by an earlier division of the Tribunal to involve dishonesty on the part of Mr Bamrah. The First Respondent [who of course is the appellant in the present proceedings] thereby permitted Mr Bamrah's participation, whether or not he recognised at the time that the transactions were suspicious (see paragraph 685 below). The First Respondent had controlled the accounts through which money relating to the transactions passed and thereby facilitated Mr Bamrah's participation. The Tribunal found for the purposes of this allegation that Mr Bamrah was employed by the firm, in the widest sense, and that anyone outside the firm dealing with him in relation to the transactions would have perceived him as being so employed. The First Respondent's evidence had been that Mr Bamrah had been within the structure of the firm in terms of supervision. He had used the firm's notepaper. He had been paid by the firm, even if that payment was now described as rent. He had been able to request money transfers.

(d) "

Apart from dealing with the money laundering issue, that paragraph also makes pertinent observations with regard to the next point, dealing with the employment of Mr Bamrah, to which I shall come in a moment.

[64]Mr Beaumont submits that the conclusion of the Tribunal placed far too high a burden on the appellant and indeed on solicitors generally. I cannot agree. These findings show, in my view, how close the appellant came to a finding of dishonesty. What is significant is the finding that he was simply not prepared to take responsibility on his own shoulders. Even when alerted specifically about the necessity of an NCIS report he did nothing.

[65]The short answer to the point is that the Tribunal was entitled to reach the conclusion it did. Indeed, I cannot see how it could have reached any other conclusion. The Employment of Mr Bamrah

[66]The appellant's argument is that the Tribunal made an error of law in finding Mr Bamrah to have been employed. Mr McLaren's response is that(i) the Tribunal was entitled on the facts to reach this conclusion and

(ii) alternatively, section 1(a) of the Solicitors Act 1974 (as amended) applies to him.

(a) provides:

"A person who has been admitted as a solicitor and whose name is on the roll shall, if he would not otherwise be taken to be acting as a solicitor, be taken for the purposes of this Act to be so acting if he is employed in connection with the provision of any legal services..."

Then is set out (a), (b) and (c), to which I need not specifically refer.

[67]It will be apparent that the second point only arises if we are against Mr McLaren on the first point. The Tribunal found, at paragraph 675, that for the purpose of the relevant allegations Mr Bamrah was employed by the firm. It was entitled to do so because of a number of findings. These are that Mr Bamrah's involvement with the SBLC matters, the subject of the appellant (for present purposes the firm) having conduct of those matters. Likewise in relation to HYIP matters. Mr Bamrah was under the appellant's supervision. If Mr Bamrah had instigated the clerk payments it was the appellant who had facilitated them and not asked appropriate questions. The appellant had permitted and facilitated Mr Bamrah's participation in the suspicious transactions. Mr Bamrah was employed by the firm in the widest sense. An outsider dealing with Mr Bamrah in relation to the transactions would have perceived him to be employed by the firm. On the appellant's own evidence Mr Bamrah had been within the firm in terms of supervision. Mr Bamrah had used the firm's note paper. Mr Bamrah had been paid by the firm even if that payment was now described as "rent". Mr Bamrah had been able to request money transfers. Mr Bamrah had been employed for the purposes of allegation (d). The appellant had suggested that he had left the matter of the practising certificate in Mr Bamrah's hands to resolve. Mr Bamrah worked in the firm for a long period after Miss Virdee knew there was a problem with his practising certificate. In these circumstances it is not necessary, in my judgment, to make any finding about the ambit of the word "employed" in section 1(a) and whether it is sufficiently wide to cover a contract of services as well as a contract for services. My provisional view is that the wide or purposive construction of section 1(a) is to be preferred.

[68]Finally, I turn to sentence. We were referred to The Law Society v Salsbury

[2008] EWCA Civ 1285

. In that case Jackson LJ, having reviewed the authorities said this in paragraph 30:

"... 'a very strong case' is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere. It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review; see CPR rule 52.11(1)."

[69]Mr Beaumont drew attention to the following points in mitigation: at the time of sentence the appellant had not worked as a solicitor for 5 years and 7 months; he was not the primary culprit for what had gone on; there were no obvious losers; no client had complained; there was no proof of dishonesty against him; his accounts were in order; the impugned transactions related to only a small fraction of the firm's work; the cause of the failure was the lack of supervision of Mr Bamrah; he had lost everything including his status and he had previously been well regarded in society doing, amongst other things, important charitable work; overall the period of suspension was disproportionate. Furthermore that the Tribunal could impose conditions on his resuming practice.

[70]I have considered all those grounds as indeed did the Tribunal with care. Far from finding anything wrong with the penalty imposed by the Tribunal, in my judgment, if anything, it was on the lenient side.

[71]For all these reasons therefore, I would dismiss this appeal.

[72]MR JUSTICE DAVID CLARKE: I agree with all that my Lord has said in his judgment but because of the importance of some of the arguments we have heard about the proceedings and procedures of the Tribunal, I wish to add two brief observations. The first does not concern the role of the clerk before the making of the order but the written reasons subsequently prepared. Those written reasons, in fact described as "Findings", were not only provided after an inordinate delay but also were extremely long. Like my Lord, I cannot help thinking, despite what has been submitted by Mr Hopper, that their very length was a factor in the extreme delay in their provision. I infer that not only the final reasons were very long but so also was the first draft prepared by the clerk, Mrs Whitfield. I readily accept that those sections which set out the reasoning for the Tribunal's decisions on the various allegations faithfully record their reasoning, as recorded by the clerk, when sitting in on their 6 hours of deliberations at the end of the three week hearing. But some 90 of the 134 pages, that is from page 28 to page 116 inclusive (in the internal pagination), comprise a substantial recitation -- one can hardly call it a summary -- of the evidence and of the submissions made by the advocates for the parties, who included not only the Law Society and the appellant but also Miss Virdee.

[73]Mr Hopper points out to us that the length of the document arises from the fact that the written reasons constitute a public record of the Tribunal's proceedings which are not otherwise transcribed. I would make two observations on this: firstly, it still seems to me that a substantially shorter and more digestible summary should suffice and would actually be more informative and helpful. Secondly, quite apart from the matter of her poor health, I have every sympathy for the clerk in the task that she undertook in preparing the first draft. It was not for her to exercise an independent judgment to decide to omit passages or to truncate particular sections of the document. Were she to have done so, there might have been more force in the submission that by being selective in that way she came nearer to encroaching on the role of a decision maker. Accordingly, it is my view that it would be better if the Tribunal members are involved at an earlier stage of the drafting of the written reasons so as to make their own decisions and communicate them to the clerk as to the extent of the detailed recitation of evidence and argument necessary to be included in the written reasons.

[74]We were told that this hearing was at the time highly unusual as regards its length, though in the short period since then a number of hearings of similar or greater length have taken place. Mr Hopper has explained that the problems in this case, arising partly from budgetary, staffing and logistical difficulties, are not likely to recur for a number of reasons. The budgetary position has changed pursuant to the Legal Services Act and other substantial changes have been made. Whilst I agree that in this case there was a violation of

Article 6 of the Convention

, sufficiently remedied by the judgments of this court, as my Lord has set out, it does appear that there are grounds for optimism that the lessons of this case for the Tribunal have been learned.

[75]My second much briefer observation is this. The delay in the provision of the written findings has led to our finding of a violation of Article 6. It was faintly suggested by Mr Beaumont that the Law Society should take some share of the blame for the delay because, as far as we are aware, no enquiries were made as to the progress of the preparation of the written findings. I would expressly reject that suggestion. The violation which we have found was on the part of the Tribunal and of it alone.

LORD JUSTICE SCOTT BAKER: Are there any applications?

[77]MR BARTON: My Lord, on behalf of the Society I would make an application for an order that the appellant should pay the costs of this appeal. My Lord, on express instructions from my client I would also flag up at this stage, but say no more than that, that on a full consideration of the written judgment, the Society may wish to make an application for wasted costs. I base that essentially on the significant quantity of work undertaken prior to this appeal in dealing with the original set of submissions, a significant amount of which was abandoned and indeed had it been pursued fully, I very strongly suspect that this appeal would not have finished in two days any way.

LORD JUSTICE SCOTT BAKER: I am not so sure about that.

[79]MR HOPPER: So far as we are concerned on costs, we had never intended that the intervention of the Tribunal in this appeal should have any costs consequences. I will maintain that in a general sense despite the way in which the appeal has developed as it has. We do, however, press for an order of the costs that are at present reserved in relation to the hearing of the application to disclosure.

LORD JUSTICE SCOTT BAKER: Yes.

[81]MR HOPPER: Which your Lordships fairly rejected in total. There is a schedule in that respect which was served for last week's hearing in the sum of £9,476.

LORD JUSTICE SCOTT BAKER: Has Mr Beaumont seen that?

[83]MR HOPPER: That was served on the 11th, my Lord, before the 12th February hearing.

LORD JUSTICE SCOTT BAKER: How much?

[85]MR HOPPER: £9,476.00.

[86]Lastly, my Lord, in my most recent skeleton argument I foreshadowed the possibility of an application in relation to the costs related to the way in which the appeal had changed, which resulted in the application for our amendment yesterday. Having regard to the fact that my Lords allowed that amendment and in actual fact looking backwards we managed to deal with the point, that is not a matter that I now press.

LORD JUSTICE SCOTT BAKER: Thank you.

[88]MR HOPPER: In relation to the flagged up possibility of a wasted costs order, my Lord I have given thought to the Tribunal's position on that and although we have reservations about the way in which the matter has developed and in relation to the hearing of last Thursday in particular, a wasted costs application, in my submission, would, for us, be wholly disproportionate having regard to the amount of costs involved.

[89]My Lord the Konig matter--

LORD JUSTICE SCOTT BAKER: Thank you.

[91]MR HOPPER: What I have is from my learned friend by email. The only references on it are application No 6232/73, judgment dated 28th June 1978.

LORD JUSTICE SCOTT BAKER: I thought we had it in one of the files.

[93]MR HOPPER: It is possible that you did, my Lord. I only had various things--

LORD JUSTICE SCOTT BAKER: I could not find it.

[95]MR HOPPER: Perhaps my learned friend, Mr Beaumont, can. It is his authority.

LORD JUSTICE SCOTT BAKER: I expect the shorthand writer will be able to find it.

[97]MR HOPPER: Lastly my Lord, would you be so very kind as to when perfecting your judgment, assign the names "Mrs" Elson and "Mrs" Whitfield rather than "Miss". I do not know how many people are going to be affected by that.

LORD JUSTICE SCOTT BAKER: Of course. Sometime one is in trouble for not being politically correct.

[99]MR HOPPER: It is always best to get it right I find, however much subsequent thought has gone into it. My Lords so far as--

LORD JUSTICE SCOTT BAKER: I do not think I called them the Chairperson either -- Miss Devenish.

[101]MR HOPPER: With utter propriety you referred to Miss Devenish as the "Chair".

[102]My Lord, so far as the comments about the Tribunal and delay are concerned, you will, of course, understand that this has caused already a very great deal of anguish and although my Lord's comments will be reported back, we hope we have already addressed the matter.

LORD JUSTICE SCOTT BAKER: We are very grateful to you for your assistance in the case Mr Hopper. Mr Beaumont, what do you say about costs?

[104]MR BEAUMONT: I say a number of things, if I may. The first is that the first indication of any issue of a wasted costs application--

LORD JUSTICE SCOTT BAKER: No application has been made yet, it has simply been flagged up.

[106]MR BEAUMONT: I shall flag up my response, if I may. I will deal with that last. First of all, I apply for costs against the Solicitors Disciplinary Tribunal because your Lordship has found that the SDT violated Article 6. It cannot be said that the appeal has failed completely. Your Lordship also, by way of remedy, dealt with the matter by way of public acknowledgement and I think it was my Lord, David Clarke J's comment that the judgment itself represents the remedy. It does not lie in the mouth of the SDT, in those circumstances, it coming before this court, having violated a fundamental provision of the European Convention, which is what this court has found--

LORD JUSTICE SCOTT BAKER: On the other hand it has intervened in these proceedings and is not asking for costs against you on issues that it has succeeded on.

[108]MR BEAUMONT: I am simply focusing on the delay point. That was always one of my grounds of appeal. It was resisted by the Law Society.

LORD JUSTICE SCOTT BAKER: Yes.

[110]MR BEAUMONT: The court has found that (a) that there was a violation of Article 6 by virtue of the delay. The Law Society has resisted that argument unsuccessfully. The SDT has dealt with that unsuccessfully. The correct order, in my submission, is those costs of Mr Virdi attributable to that ground alone, he may in the general scheme of things be quite modest, should be paid by the perpetrator of the violation of Article 6 which is what this court has found, though they should also be paid by the Law Society to the extent that the Law Society sought, quite clearly, to defend that position. So before the Law Society starts thinking about wasted costs orders, it should consider what it was it tried unsuccessfully to resist. That is the first point.

[111]The second point in relation to Mr Hopper's application is this. I pray in aid the doctrine of estoppel for the following reason. Mr Hopper made the clear assurance, both to us and to the court, and he does not quarrel about this, that even though the SDT had joined in the appeal, it was not seeking an order for costs. In other words it regarded itself as acting in the public interest.

LORD JUSTICE SCOTT BAKER: But you made a completely misconceived application last week for relief which was rejected out of hand. That was totally unnecessary.

[113]MR BEAUMONT: Nevertheless it was made in circumstances in which so far as the SDT are concerned, they have already indicated that they would not be seeking costs arising in these proceedings. Mr Virdi was entitled to believe, in those circumstances, that that assurance related to the proceedings generally and not merely to parts of them. That is classic territory for the operation of estoppel. There had been a clear and unequivocal assurance that the SDT were not seeking costs. We made an application for disclosure that failed. I do not recall your Lordship using the expression "completely misconceived". If it is necessary to do so, I shall defend that position because this is untrodden and pretty virgin territory. There was a serious issue, for example, the first draft. That is clear from your Lordship's judgment. Indeed, my Lord, David Clarke J, has inferred, as I recall that part of the judgment.

LORD JUSTICE SCOTT BAKER: Is the figure of £9,476 agreed subject to liability or not?

[115]MR BEAUMONT: At the moment I am addressing the principle.

LORD JUSTICE SCOTT BAKER: I know but I am anxious to know that and it is now 5.45 so we have to move on.

[117]MR BEAUMONT: These are serious applications and I must deal with these points. So I resist that application in principle on the basis effectively of estoppel, that is they clearly indicated they were not seeking costs and they seek to resile from that general--

LORD JUSTICE SCOTT BAKER: We have that point.

[119]MR BEAUMONT: So be it. So far as the quantum of this is concerned, we submit that it is remarkable and utterly disproportionate that anyone should seek to claim 9,000 -- I think the total is £8,000-odd plus VAT for what was a 30-minute hearing. The other problem with this is, on the one part it seeks to claim hourly rates at £400 an hour, yet when it comes to the hearing it seeks to charge a brief fee. So the summary assessment application seems to have its cake and eat it. It seeks to charge both hourly rates and a very hefty brief fee for a 30-minute period, which is utterly disproportionate in the circumstances. I cannot say more than that in relation to quantum. What I can indicate is that my fees for the whole exercise, that is in relation to the interlocutory matters and drafting of the appeal are £10,000, so to charge £9,000, or £8,000 plus VAT for a 30-minute hearing is utterly disproportionate even allowing--

LORD JUSTICE SCOTT BAKER: What do you say about the Law Society's claim for costs?

[121]MR BEAUMONT: As against Mr Virdi?

LORD JUSTICE SCOTT BAKER: Yes.

[123]MR BEAUMONT: What I would say is one or two points if I may? In relation to the concessions that I have made, it is a case of damned if you do, damned if you do not. I did not receive -- despite assurances that I would do so -- the Law Society's detailed 50 page odd skeleton argument until Monday, I think, it was the 9th. When it was received there had been specific representations that this document was being prepared and served by Mr Barton. When it was received I did not recognise the author. It turns out that the email came from a junior at Fountain Court. Without telling us, and I have made this comment before, the Law Society instructed leading counsel. There we were in the week before the hearing, and that was the first time that we had been told they were relying on leading counsel. That document relied, so far as reasons are concerned, on an authority called Jiwaji, an unreported case, but a very, very important case which your Lordship has not had to look at, I do not think. The essence of that decision was that it placed in context various criticisms about the absence of reasons and detailed reasons, which was an argument that permeated a number of grounds. Within 24 hours of receiving that document, that is by the Tuesday evening and despite personal illness as well, I had decided that due to the decision in Jiwaji a number of these points could not be pursued. I had until then no knowledge of this unreported decision. There is absolutely no reason, in my respectful submission, why the Law Society could not have drawn that authority to our attention at an earlier stage and said:

"Look, by virtue of this decision, you cannot run a number of grounds"

. That could have been done at an early stage. They have, as I understand it, a detailed archive on all decisions affecting their process. They did not draw it to our attention. They waited to this late stage. I withdrew those points within 24 hours, again despite a period of personal illness. I withdrew by the Tuesday evening a number of those points by personal email to Mr McLaren and yet I am damned for having done so. If the Law Society had drawn to our attention this unreported decision at a much earlier stage, and plainly could have done so before Christmas 2008.

[124]MR JUSTICE DAVID CLARKE: This will be your answer to any argument, if it is ever advanced, that a wasted costs order should be made. It is not an answer to the application for costs in principle.

LORD JUSTICE SCOTT BAKER: The fact is that you have just lost all along the line. Why should not your client pay the costs?

[126]MR BEAUMONT: That is one point I make in relation to concessions. Actually I had apprehended that this point needed to be dealt with in relation to the costs application itself. On the one hand, the Law Society kept its powder dry to the latest possible stage. As soon as we withdrew, based on this Jiwaji decision on a number of points and made it clear what we were arguing, we nevertheless have been condemned for having done that. If they had drawn this to our attention and carried on nonetheless, yes, I accept that would be entirely blameworthy but, in my respectful submission, the tenor and detail of your Lordship's judgment is such that it cannot be seriously suggested that the primary ground of appeal was one that was utterly misconceived. In fact your Lordship has, if I may be forgiven this, circumvented my main critic of the regulation 31 point which deals with matters of trial procedure and not administration. Your Lordship has not actually made any finding about that. It cannot be said that that argument was not actually quite a close run thing, in my respectful submission, by which I mean the statutory point.

[127]Another point I make in relation to costs application is that Mr Hopper and I, as sole counsel -- you may remember, I do not have an instructing solicitor, I only have Mr Virdi to support me and he instructs under the Public Access Scheme. Mr Hopper has dealt with the matter on his own, yet the Law Society has attended with two senior counsel - one leading counsel and a senior solicitor-advocate. We submit that is disproportionate. So such costs as they are permitted by way of an order that follows the event. I accept that basic proposition must, to be proportionate, should be limited to the costs of senior counsel. I balk at the suggestion that this was not a case fit for leading counsel. I make that point faintly. On the other hand, your Lordship has already held this was a complex matter. So really costs of one counsel only should follow the event and there is also the point about the Law Society unsuccessfully resisting the SDT's violation as found of Article 6. As far as the SDT is concerned, we respectfully submit that they were estopped from pursuing any costs whatsoever, despite the suggestion that the application for disclosure was ill founded. I simply pray in aid the fact, as far as that is concerned, it was very much virgin and untrodden territory. It was a matter for argument and serious consideration.

[128]Finally, in relation to this wasted costs idea, either the Law Society should pursue this or it should not pursue it. What is not proper is simply to flag something up. The court is not concerned with parties who flag up applications they have not made. Either the application should be made or not. If it is made it is then for the court, as I understand Ridehalgh v Horsefield, to deal with the matter summarily and as a matter of impression and require a means to show cause why I should not pay wasted costs. There are other considerations, such as I cannot tell the whole story due to the effect of privilege -- I am thinking on my feet, this is the first that I have heard of this.

LORD JUSTICE SCOTT BAKER: There is no wasted costs application at present. I am not quite clear why you are going down this road at 5.53 pm. I am quite certain that everybody in the court is anxious to get away.

[130]MR BEAUMONT: I will call a spade a spade. This is, in my respectful submission, just a form of personal intimidation. There was an awful lot of friction between Mr Barton and myself. If he is going to make this application, he should make it--

LORD JUSTICE SCOTT BAKER: Mr Beaumont, if anybody has raised the temperature in this case, it is you. I think you ought to appreciate that.

[132]MR BEAUMONT: I am sorry, I do not accept that. I have done my very, very best for Mr Virdi. If it is an offence to present one's case vigorously and to do one's very, very best, as I have said it is a very sad day when the Bar cannot stand up both for itself and for people in a vulnerable position like Mr Virdi. We are supposed to be courageous and to do our very, very best. If that involves raising temperature, it has to be remembered that we were not prosecuting anybody; I was doing my best to defend my client. I am sorry if your Lordship regards that as offensive. I will defend that position and proposition anywhere at any time. Actually, I was going to ask your Lordship -- may be it is too much to ask -- whether your Lordship would be willing, in a summary fashion, to spring to my defence in something of a sporting manner and to indicate that I have done my very, very best within the traditions of my profession. It is grossly wrong and improper for Mr Barton, without the imprimatur of Mr McLaren QC -- and I cannot imagine he would give it -- that it is grossly wrong for this to be flagged up, as it were. I take that as a matter of personal intimidation. If the application is going to be made, fine, I will then instruct BMI accordingly and all sides can pursue my insurers. But really personal intimidation is not what this is about and I will not accept it. I do ask the court to indicate whether the court considers that I have done anything improper in the course of presenting this appeal. I ask your Lordship for your Lordship's assistance in that respect and I ask for it now please?

LORD JUSTICE SCOTT BAKER: Is that all?

[134]MR BEAUMONT: It is. I ask for your Lordship's assistance.

LORD JUSTICE SCOTT BAKER: Mr Barton, do you wish to add anything?

[136]MR BARTON: No, I do not think there is anything I can usefully say. Under the provisions of CPR 47, there is no obligation upon me to make an application now and I do not do so. I have said what I have said and I leave it at that. I having nothing to say in relation to the observations of Mr Beaumont.

[137]MR HOPPER: My Lord, in order to spare Mr Barton from defending his own position, may I say that I was present during costs discussions and heard the instructions from Mr McLaren to his junior. The matter has been put on the basis of leading counsel's advice and guidance.

[138]So far as the comments about me are concerned, I take them in reverse order. My schedule reflects the fact that in some respects, like Mr Beaumont, I work alone. When one prepares a schedule of costs, because I am a solicitor as well as dressing up occasionally--

LORD JUSTICE SCOTT BAKER: We have not, of course, been into the schedule and it may be that this is not a case for a summary assessment.

[140]MR HOPPER: I am in your Lordships' hands. It is a very late time of day to be arguing this. I am merely explaining two things I think. The first is that my practice is to split what I do into preliminary stages and call that solicitor's work and everything from skeleton argument on to be part of the brief fee. So far as it appears to be a lot for a half-an-hour appointment, my Lords will recall that we had at very short notice to deal with matters of very considerable principle.

[141]My Lords,

[141]on the question of estoppel, if my learned friend is right and what I said when indicating that we would not want to add to the costs of this matter as a result of intervention, that that is to be interpreted against me in such a way that any application, any course of action could be pursued which would incur me and those instructing me--

LORD JUSTICE SCOTT BAKER: Speaking for myself it seems to be a complete nonsense that point.

[143]MR HOPPER: Do you need my assistance in relation to the application of costs against the Tribunal?

LORD JUSTICE SCOTT BAKER: I do not think so. (Short Adjournment)

LORD JUSTICE SCOTT BAKER: The Law Society is to have the costs of the appeal against the appellant, to be taxed if not agreed.

[146]As far as the Tribunal is concerned, we think that it is appropriate that the appellant should be condemned in costs thrown away by the unnecessary interlocutory application. On the other hand, Mr Virdi has succeeded on an important point of principle in establishing a violation of Article 6 through the delay and, in the light of that, taking a broad view, what we propose to do is to reduce the amount of costs that would otherwise be payable to the Tribunal in respect of the aborted application, for which £9,476 is sought. That would have been the subject of a detailed assessment had it stood alone. But meeting the broad justice of the case, we think that the right course is to order Mr Virdi to pay £5,000 to the Tribunal. We make it clear that the Tribunal has not sought any other costs of intervening in the proceedings. Is that clear?

[147]MR HOPPER: Eminently so.

[148]MR BARTON: Thank you.