Yussouf v The Solicitors Regulation Authority [2018] EWHC 211 (Admin)

Case No CO/4192/2017[2018] EWHC 211 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 th February 2018
Before
MR JOHN HOWELL QCSitting as a Deputy High Court Judge
Between
RIZWANA YUSSOUFAppellantTHE SOLICITORS REGULATION AUTHORITYRespondent
Mr Gregory Treverton-Jones QC (instructed by RadcliffesLeBrasseur) for AppellantMr Rory Dunlop (instructed by Capsticks Solicitors LLP) for Respondent
JudgmentMr John Howell QC:
[1]This is an appeal from a decision of an Adjudication Panel of the Solicitors Regulation Authority (“SRA”) refusing Ms Rizwana Yussouf a “certificate of satisfaction” and to admit her as a solicitor.

INTRODUCTION

[2]The Appellant, Ms Yussouf, is now in her mid-fifties. She has long wanted to become a solicitor and has had to face considerable difficulties in achieving that objective. In August 2004 she was granted student enrolment by the Law Society. She then took a post-graduate law conversion course and thereafter studied for, and passed, the Legal Practice Course. She began a full-time training contract on September 6th 2010 with CM Atif & Co that ended, after an extension, in March 2012. She subsequently obtained employment with a local authority as a legal assistant.[3]On April 29th 2014 she submitted her first application to the SRA for admission as a solicitor and for a practising certificate. In her application form, in response to the question whether she had “had a County Court Judgment (CCJ) issued against” her, Ms Yussouf’s answer was: “No”. In fact, as she then knew, she had had such a judgment issued against her by the Woolwich County Court in the sum of £4,891 on October 30th 2009 (“the 2009 Judgment”). In the event Ms Yussouf ultimately withdrew her first application on January 12th 2015.[4]Ms Yussouf submitted a second application for admission as a solicitor and for a practising certificate on March 8th 2016. It was dismissed by an Adjudicator, who also cancelled her existing student enrolment, on February 27th 2017. He found that she had acted dishonestly when making her first application by failing to disclose the 2009 judgment and also that, during the consideration of that application, she had provided misleading information to the SRA in relation to its existence, and to her knowledge, of it. The Adjudicator based his decision on the documents he had without affording Ms Yussouf an oral hearing.[5]Ms Yussouf applied for a review of that decision by the SRA’s Adjudication Panel. In her lengthy grounds of appeal her current solicitors, RadcliffesLeBrasseur (“Radcliffes”), contended that, when she had completed the first application form, Ms Yussouf had believed, genuinely but mistakenly, that a county court judgment was a judgment debt that had not been satisfied; that one that had been satisfied (as the 2009 judgment had been by that date) was extinguished; and that the 2009 judgment did not have to be disclosed as it had been discharged. They stated that she had read the questions quickly and without the care and attention to detail required but that she had not been dishonest. They further contended that Ms Yussouf had had no reason to conceal the judgment as she knew that the SRA would carry out a credit check. Radcliffes also contended that Ms Yussouf had not supplied misleading information to the SRA during its consideration of her first application for the reasons they gave. They further contended that, if the Adjudication Panel was minded to refuse her application having considered the written representations, Ms Yussouf should be given the opportunity to be heard in person.[6]The Adjudication Panel considered the matter afresh and issued its decision on May 30th 2017. They refused the application for Ms Yussouf to be given the opportunity to be heard in person. They found that her explanation of why she did not disclose the 2009 judgment was inconsistent with her previous explanations and was not credible, and that her failure to disclose it was dishonest. The Panel also found that she had provided misleading information to the SRA during its consideration of her first application in relation to the existence, and her knowledge of, the 2009 judgment. It considered that there were no exceptional circumstances relating to their findings both that Ms Yussouf was dishonest and that she had provided misleading information and, therefore, that she did not have the necessary character and suitability to be admitted to the Roll. Accordingly they considered that she did not have the necessary character and suitability to be admitted to the Roll. They refused her application for admission and cancelled her student enrolment.[7]Ms Yussouf’s appeal to this court is against the finding of dishonesty by the Adjudication Panel. She seeks an order quashing the Panel’s decision and requiring her to be admitted as a solicitor. In summary her grounds of appeal are that(i) the Panel acted unfairly in not providing her with an oral hearing before making a finding of dishonesty against her;(ii) that the Panel had adopted the wrong test for what constituted dishonesty;(iii) that the Panel was wrong to conclude that there were such inconsistencies in her statements as to justify a finding of dishonesty against her; and(iv) that the Panel acted unfairly in making that finding by relying upon her delay in completing the online screening process in relation to her first application which they also thought, wrongly, had not been explained. THE RELEVANT LEGAL FRAMEWORK i. the requirements for admission as a solicitor[8]No person may be admitted as a solicitor unless he or she has obtained a certificate from the Law Society that it is satisfied that he or she has complied with the training regulations and that it is satisfied as to his or her character and suitability to be a solicitor: see section 3 of the Solicitors Act 1974 This general rule is, subject to sections 4 and 20(3) of the 1974 Act. . In practice the functions of the Law Society as an approved regulator under the Legal Services Act 2007 in this and other respects relevant to this appeal have now to be, and are, discharged by the SRA.[9]An application for admission must be made to the SRA in such form, accompanied by such fee and documents, as it prescribes: see regulation 5.1 of the SRA (Solicitors Regulation Authority) Admission Regulations 2011 (“the Admission Regulations”). If it is satisfied that the applicant has complied with certain training regulations and if it is satisfied about the applicant’s character and suitability to be a solicitor, the SRA “shall issue” the certificate required by section 3(1) of the 1974 Act: see regulation 6.1 of the Admission Regulations. The issue of such a certificate prima facie entitles the applicant to be admitted as a solicitor: see regulation 7.1.[10]The SRA satisfies itself as an applicant’s character and suitability in a number of ways including compliance with Part 1 of the SRA (Solicitors Regulation Authority) Suitability Test 2011 (“the Suitability Test”) See the Guidance Note to regulation 6(1) of the Admission Regulations; the introduction to Part 1 of the Suitability Test and regulation 2.1(c) of the SRA (Solicitors Regulation Authority) Training Regulations 2014 - Qualification and Provider Regulations. . The Suitability Test provides inter alia that: “2: Disclosure 2.1 All material information relating to your application must be disclosed. Failure to disclose material information will be treated as prima facie evidence of dishonest behaviour. 3: Behaviour not compatible with that expected of a prospective solicitor or authorised role holder 3.1 Unless there are exceptional circumstances we will refuse your application if you have….been responsible for behaviour….which is dishonest.... 5: Financial evidence5.1 Unless there are exceptional circumstances we will refuse your application if:(a) there is evidence that you cannot manage your finances properly and carefully;(b) there is evidence that you have deliberately sought to avoid responsibility for your debts; and/or(c) there is evidence of dishonesty in relation to the management of your finances.5.2 If you have been declared bankrupt, entered into any individual voluntary arrangements (IVA) or have had a County Court Judgment issued against you it will raise a presumption that there has been evidence that you cannot manage your finances properly and carefully. 6: Regulatory history 6.1 Unless there are exceptional circumstances we will refuse your application if you: … ... (b) have failed to disclose information to a regulatory body when required to do so, or have provided false or misleading information;”. (a) there is evidence that you cannot manage your finances properly and carefully; (b) there is evidence that you have deliberately sought to avoid responsibility for your debts; and/or (c) there is evidence of dishonesty in relation to the management of your finances. … ... (b) have failed to disclose information to a regulatory body when required to do so, or have provided false or misleading information;”. ii. the SRA’s decision-making processes[11]The SRA has delegated decisions under the Admission Regulations inter alia to Authorisation Officers, Adjudicators and Adjudication Panels.[12]Where a decision is to be taken by an Adjudicator, Guidance on “Decision-making, appeals and interview procedures” issued by the SRA (“the Guidance”) provides for a case officer to present the Adjudicator with a case report (which may recommend a particular outcome) and a paginated bundle of relevant documents. Any such recommendation is not binding on the Adjudicator. The report and the bundle (including any additional documents not previously disclosed to the applicant) are to be provided to him or her for comment before any decision is made.[13]If the SRA has refused to issue a certificate of satisfaction, the applicant may apply in writing for a review of the decision within one month of receiving notification of it: see regulation 6.3 of the Admission Regulations. It appears that the SRA has delegated decisions on such reviews inter alia to an Adjudication Panel. The Guidance provides that a Panel will include a combination of legally qualified and lay members with at least one lay member on each panel. It is supported by a panel adviser.[14]The Guidance indicates that it is in the applicant’s interest to ensure that the appeal grounds “are set out comprehensively as this will enable the matter to be dealt with expeditiously”. After receipt of the appeal the case officer is required to update the documents prepared for the Adjudicator by including inter alia an updated report, with a brief summary of the matter and any response to the appeal grounds, which may recommend or advocate a particular position, and any other documents, correspondence or representations. The report and the bundle or any documents not previously disclosed are to be provided to the applicant before the appeal is determined. The applicant is to be given notice of the appeal hearing date and may make representations in writing on all the evidence and information to be considered by the Adjudication Panel before its final determination.[15]The Guidance indicates that most decisions are based on the documents supplied to the decision takers. It also states: “7.1 The decision maker will decide whether an interview or attendance is necessary or desirable to reach a fair determination of a matter at the [first instance decision] stage or on appeal. 7.1 A relevant person or case officer may request or recommend an interview is held or attendance is permitted or required. The decision whether to permit or request attendance or hold an interview is at the sole discretion of the decision maker.10.1 Most of our decisions are paper based. In some circumstances, the decision maker(s) may decide that it is necessary or desirable to request the attendance of the relevant person(s) to make representations or to conduct an interview. The decision maker(s) will consider any request to attend and make representations.10.2 When considering whether there shall be an interview or attendance, the decision maker(s) will undertake an appraisal of the material already available. They will have regard to all the circumstances of the case, which may include but are not limited to matters where:(i) the honesty of the relevant person is being questioned;(ii) there are important material facts in dispute which, in the opinion of the decision maker, could not fairly be determined on documentation alone; or(iii) the decision maker considers it appropriate and necessary to assist them in making a proper determination; ... ...10.3 If a request to attend and make representations is refused the reasons for refusal will be contained in the decision.” (ii) there are important material facts in dispute which, in the opinion of the decision maker, could not fairly be determined on documentation alone; or (iii) the decision maker considers it appropriate and necessary to assist them in making a proper determination;[16]The Guidance also states that “the standard of proof required will be on a balance of probabilities except where the normal principles of law require a higher standard” and that written reasons will be provided for all decisions. iii. the right of appeal to the High Court[17]Regulation 6.5 of the Admission Regulations (made under section 28(3D) of the 1974 Act) provides Mr Dunlop submitted on behalf of the SRA that in this case there was a right of appeal by virtue of regulation 2 of the Admission Regulations taken with regulations 6.4 and 17.1 of the SRA (Solicitors Regulation Authority) Training Regulations 2014 - Qualification and Provider Regulations. The right of appeal there conferred applies to a failure to disclose any issue which might cause an individual to meet the outcomes of the suitability test before or during any period of recognised training which leads the SRA to conclude that the individual is not eligible to begin or continue recognised training on the grounds of character and suitability. In this case, however, the non-disclosure alleged occurred after Ms Yussouf’s period of recognised training and the conclusion was not that she was not suitable to begin or continue a period of recognised training but that she should not be admitted as a solicitor. It is, however, unnecessary to decide whether or not these provisions apply in this case as there is otherwise a similar right of appeal to the High Court, to which I have referred, that does. that:
“Where we refuse or fail to issue a certificate of satisfaction under regulation 6.1... and we have upheld that refusal or deemed refusal following a review under regulation 6.3, you may appeal under this regulation to the High Court, which may: (a) affirm our decision; (b) direct us to issue a certificate of satisfaction to you; or (c) make such recommendations to us as the High Court thinks fit.”
[18]The High Court will allow such an appeal where the decision impugned was “(a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings” of the Adjudication Panel: see CPR 52.21(3).[19]The decision of the High Court on such an appeal is final. THE FACTUAL BACKGROUND i. the 2009 Judgment[20]It appears that Ms Yussouf bought the long lease of a flat, 3A Dacre Gardens, Lewisham, with a mortgage, in December 2006. She has said that she later moved to a smaller property and rented the flat out to help her meet payments under her mortgage. She has said that the 2009 Judgment arose out of a disrepair claim by her tenant and that it was obtained in default of appearance, as she had no knowledge of the claim. She has said that she had arranged that correspondence to her at that address would be sent to her managing agent and not to her. The 2009 Judgment appears to have led to a Charging Order being registered against that property See letter from Mohabirs dated August 8th 2016. .[21]On November 19th 2012 Ms Yussouf completed the sale of the flat. The solicitors then acting for her have stated that the Charging Order (or “judgment/equitable charge”) was not discovered until brought to their attention by the buyers’ solicitors, who had made the required searches, in the later stages of the sale or after completion) See letters dated July 15th 2015 from CM Atif & Co and August 8th 2016 from Mohabirs. . Ms Yussouf claims that this was when she first learnt of the 2009 judgment. It is said that the debt was discharged from the proceeds of sale either on completion See the e-mail dated July 2016 from Mr Saltifi, letter from Radcliffes dated October 17th 2016. Radcliffes have also stated, however, that the net proceeds of sale (after her mortgage and certain other expenses had been discharged) were paid into an account held by her sister as representative of her parents who had initially paid for the mortgage: see page 3 of their letter dated November 28th 2016. or thereafter See letter dated February 29th 2016 from Mr Saltifi. The completion statement attached to Radcliffe’s letter dated November 28th 2016 does not apparently include a deduction from the sale price for the 2009 Judgment debt. But it may be an early version as it is dated November 9th, not November 19th, 2012. .[22]Ms Yussouf subsequently obtained a certificate of satisfaction from Woolwich County Court on January 8th 2015 stating that the date of final payment was January 8th 2012 If the debt was satisfied from the proceeds of sale, the date of final payment is wrong. Mr Treverton-Jones QC submitted that it should have been January 8th 2013, rather than January 8th 2012. . ii. Ms Yussouf’s first application for admission as a solicitor and for a practising certificate[23]Ms Yussouf submitted her first application for admission as a solicitor and for a practising certificate on April 29th 2014 (although the application form had been signed by her on November 20th 2013).[24]Section 5 of the application form addressed the Suitability Test. Under the heading “financial behaviour - refer to Section 5 of the Suitability Test”, it stated:
“All material information relating to your application must be disclosed. Failure to disclose material information will be treated as prima facie evidence of dishonest behaviour. You must disclose any matters that have occurred in the UK and/or overseas. I have read and understood this statement □ 5. Have you ever been declared bankrupt, entered into any individual voluntary arrangements (IVA’s) or have had a County Court Judgment (CCJ) issued against you? Yes □ No □ If you answered “yes” to question 5, it will raise a presumption that you cannot manage your finances properly and carefully and we will refuse your application unless there are exceptional circumstances.”
It then indicated information that had to be provided if the answer was “yes’. I have read and understood this statement □ Yes □ No □

I have read and understood this statement □

[25]In the application form Ms Yussouf ticked the box giving the answer “No” to the question whether she had had a County Court judgment “issued against” her. She did not tick the box, however, stating that she had read and understood the statement about disclosure and its consequences.[26]Her failure to tick that box was drawn to her attention and, on June 6th 2014, she submitted that page revised, with a tick against that statement and a tick in the box giving the answer “No” in respect of County Court judgments.[27]There was, however, a delay in dealing with her first application. Applicants for admission are required by the SRA to complete an online screening process to help assess their character and suitability to be a solicitor. This involves checks on matters such as their identity, criminal records, insolvency and county court judgments. The SRA had to send Ms Yussouf reminders that she needed to submit the application to begin the process by e-mails dated June 3rd, August 28th, September 17th and October 9th 2014.[28]She submitted her application for this process on October 10th 2014 and subsequently, on October 14th 2014 provided the necessary information for this process, including all her addresses over the previous 5 years (including the address of the flat she had owned), for Experian to check on behalf of the SRA. When completing this application she again answered “no” to the question regarding County Court judgments see paragraph [2.4] of the Authorisation Officer’s report to the Adjudicator, paragraphs [4.6], [6.31], [6.21] and [6.24] of the Adjudicator’s decision. Ms Yussouf agreed in her grounds of appeal to the Adjudication Panel that she knew of the 2009 Judgment when she completed this form stating that she did not have any county court judgments issued against her: see at [13.1], [14] and [25]. .[29]Experian found that Ms Yussouf had two county court judgments issued against her, one of which was the 2009 Judgment. Accordingly, on October 29th 2014, the Authorisation Officer then dealing with her application e-mailed her referring in general terms to both judgments. The first was described as “issued in October 2009 for the amount £4891". To enable the application for admission to proceed, Mrs Yussouf was asked to provide certain information by November 12th 2014 including “an explanation as to why you have not disclosed these CCJs under the Suitability Test (Section 5 Financial Behaviour) within your application for admission”; a copy of the judgments and certificates of satisfaction, and a full credit report through Experian or Equifax.[30]It appears that Ms Yussouf subsequently obtained legal advice from a solicitor, Mr Amjad Saltifi, and his legal assistant, Ms Martina Jovovic.[31]In response to the e-mail sent to Ms Yussouf on October 29th 2014, Ms Jovovic sent an e-mail to the Authorisation Officer (with a copy to Mr Saltifi) on December 9th 2014 stating that “despite our numerous attempts to attend this matter closely, we were unable to trace [the two] judgments” and asked for that Officer’s assistance “as to where exactly we should look at these two CCJs”.[32]On December 15th 2014 the Authorisation Officer replied by email stating that the SRA had received this information from Experian and asking whether the judgments were not detailed on the full credit report (from Experian or Equifax) that she had asked Ms Yussouf to supply. Ms Jovovic replied by emails shortly thereafter attaching the report that had been obtained from Experian; stating that no County Court judgments were listed in the report, and asking for a copy of the SRA’s report. The report obtained from Experian on November 12th 2014 that Ms Jovovic sent to the SRA provided all the information which that company held about Ms Yussouf at the addresses provided. But these included only her current address (and not the address of the flat she had previously owned) and, for that reason, it did not reveal the 2009 Judgment.[33]The Authorisation Officer sent the SRA’s own credit report to Ms Jovovic on December 16th 2014. Ms Jovovic subsequently sought, and was granted, an extension of time to provide the information that the SRA had requested until January 15th 2015. When informed that it was unlikely to be provided by that date, on January 9th 2015 the Authorisation Officer gave Ms Yussouf the option of withdrawing her application and resubmitting it once all the required information had been collated. On January 12th 2015 Ms Jovovic informed the Authorisation Officer that Ms Yussouf had decided to withdraw her application and that, once all the necessary documentation had been obtained, she would reapply. ii. Ms Yussouf’s second application for admission and for a practising certificate[34]On January 14th 2015 the Authorisation Officer sent an e-mail to Ms Yussouf, which was copied to Mr Saltifi and Ms Jovovic, stating that, when re-applying for admission, she should ensure that she included certain information including “an explanation as to why you failed to disclose the CCJs to the SRA” in the her first application submitted on April 29th 2014.[35]Ms Yussouf’s second application for admission and a practising certificate was eventually submitted on March 8th 2016. It was accompanied by a letter written by Mr Saltifi described as “detailing all the circumstance as per your request”. Mr Saltifi stated in his letter, dated February 29th 2016, that:
“The Applicant was not aware of the existence of the County Court Judgments (in further text “CCJ”). Furthermore the Applicant got to know about them through the letter from SRA. The first judgment was granted on 30th October 2009...in relation to a property known as 3A Dacre Gardens, London, SW13 5RY for the amount of £4,891.00. This judgment was satisfied through the proceeds of sale and was paid in full on 8th January 2012. Please find enclosed the letter from the solicitors acting on the Applicant’s behalf through the process of sale together with the Letter of Cancellation of the said judgment dated 8th January 2015.”
The letter from CM Atif & Co stated that “the County Court judgment/equitable charge” was only discovered when brought to their attention by the buyer’s solicitors who had made the required searches. The Letter referred to by Mr Saltifi was the Certificate of Satisfaction to which I have referred in paragraph [22] above.[36]Having completed her assessment of the information that had been supplied, the newly appointed Authorisation Officer sent Ms Jovovic an e-mail (copied to Mr Saltifi) on May 13th 2016 asking (among other requests for information) for a “a detailed explanation” within 14 days of how Ms Yussouf could have been unaware of each debt accrued and judgment entered against her and for her “failure to disclose these CCJs at all relevant points to the SRA”.[37]After an extension for a response had been granted, Mr Saltifi responded in a letter dated June 3rd 2016. Mr Saltifi stated that he would reply to the points raised in the same order as they had been raised in the e-mail. Seeking to explain the circumstances of the 2009 Judgment he stated that “the judgment was satisfied through the proceeds of sale in 2012 however, that the Certificate of Satisfaction was obtained as soon as the Applicant discovered about the existence of this judgment”. The letter further stated that:
“This statement is written on behalf of the Applicant and is based on her instructions. At the relevant time the applicant was not aware that judgments were entered against her, it is not in her nature to ignore such serious matters and refuses to allow monetary judgments or any judgment to remain outstanding. It is accepted however that the applicant should have made additional effort to monitor post sent to former address in order to attend to defending any possible legal claim with which she disagrees. ........ As stated above, due to her change of address, she was not aware of their existence. As soon as she was informed about these CCJ she took the necessary steps and settled them. The first two judgments [one of which was the 2009 Judgment] were settled in 2012 once the property got sold.”
[38]The Authorisation Officer raised further questions in the light of Mr Saltifi’s letter in an e-mail to Ms Jovovic dated June 16th 2016. These questions included the following:
“In respect of [the 2009 Judgment] Mr Saltifi also makes reference to this judgment being satisfied via the proceeds of sale of the property in 2012. However, he also states that Mrs Yussouf obtained a Certificate of Satisfaction in respect of the judgment as soon as she became aware of it. This document is dated 8 January 2015. Can an explanation be provided for how Mrs Yussouf can settle a judgment of which she was unaware? If the monies were automatically deducted from the proceeds of sale, how could Mrs Yussouf be unaware of this at the time?”
[39]In a letter dated July 8th 2016 Mr Saltifi stated in reply that Ms Yussouf learnt about the judgment when the land registry title deed was obtained and that it was met soon after it was brought to her attention by the buyer’s solicitors informing hers of the outstanding entry in the charges register.[40]The Authorisation Officer raised further questions in the light of this response with Ms Jovovic in an e-mail dated July 18th 2016. She pointed out that it had previously been stated that Ms Yussouf had not disclosed the County Court judgments in her first application for admission as she had been unaware of them but that Mr Saltifi had now said that she was aware of the judgment when her property was sold in January 2012. She asked for an explanation of these apparently contradictory statements as well as of her failure to disclose the 2009 Judgment in her first application.[41]In response, on July 27th 2016, Mr Saltifi sent an e-mail stating that what it contained was “the statement of Mrs Yussouf”. In it she stated that the 2009 Judgment only came to light just before completion of the sale of her property in November 2012 (not January 2012) and it was then paid “to conclude the sale and ease my finances. It was deemed to be satisfied and my understanding at that time was that it was not outstanding and did not need to be disclosed which I now accept was incorrect and I apologise for my misunderstanding.”[42]On August 3rd 2016 the Authorisation Officer apparently e-mailed Ms Yussouf indicating that she was minded to refuse her application stating that information provided about two judgments (including the 2009 Judgment) and the date of the sale of her flat had been contradictory and misleading. On August 10th 2016 Ms Yussouf provided further information concerning the date on which she learnt of the 2009 Judgment, when the flat was sold and when the 2009 Judgment was satisfied. iii. the Adjudicator’s decision on Ms Yussouf’s second application[43]On September 12th 2016 the Authorised Officer sent Ms Yussouf a draft of her decision to refuse her application. In it she stated, among other objections to Ms Yussouf’s admission, that Mrs Yussouf had failed to disclose the 2009 Judgment in her first application. She considered that the statement in December 2014 that she had been unable to trace the judgment and the submission of the limited credit report involved presenting misleading information to the SRA and that there were no exceptional circumstances excusing doing so. However she accepted that Ms Yussouf’s explanation for her failure to disclose the 2009 Judgment “can be accepted as a misunderstanding”. Although she also thought that, in making a subsequent statement, that she did not disclose the judgment as she did not know of it, Ms Yussouf was acting in a way that a reasonable and honest person would know was dishonest, the Authorisation Officer did not find that Mrs Yussouf had been dishonest in her dealings with the SRA. She did find, however, that some of her actions might suggest a lack of integrity.[44]In a letter dated October 17th 2016, Ms Yussouf’s current solicitors, Radcliffes, submitted representations about the draft decision on her behalf. In it, responding to the suggestions that she might lack integrity, they stated that “Mrs Yussouf assumed (incorrectly) that she did not have to disclose the [2009 Judgment] on her application for admission. My summary of the position is that she understood that the CCJ and Charging Order had been cancelled and it was her understanding that meant that the CCJ had been cancelled ab ingnitio [sic] and therefore ceased to exist.” They also stated that, when the Experian report had been obtained in November 2014, Ms Yussouf believed that she had entered all relevant addresses in the online application form; that errors in confirming such entries were not uncommon; and that, had she intended to deceive the SRA, she would not have supplied all the relevant addresses to Experian for its check for the SRA shortly before.[45]Following a further exchange the Authorised Officer informed Radcliffes that Ms Yussouf’s application would be referred to an Adjudicator for decision as an allegation had been made that an adverse decision could in certain circumstances involve indirect discrimination. In her report to the Adjudicator dated December 23rd 2016, the Authorisation Officer in substance repeated what she had stated in her draft decision about non-disclosure, the supply of misleading information, dishonesty and lack of integrity. She also addressed some of the matters raised in respect of her draft report by Radcliffes. Radcliffes were then able to make representations on certain parts of the report on February 10th 2017.[46]The Adjudicator’s decision was given on February 27th 2017. He did not first interview Ms Yussouf or offer her an oral hearing.[47]The Adjudicator made a finding of dishonesty against Ms Yussouf. He noted that she had indicated on several occasions that she had no county court judgments issued against her (in her first application form, in her amended version of that form in June 2014, and in the information for her Experian background check for the SRA). He noted that her position about her knowledge of the 2009 Judgment had changed: initially she had said that she was unaware of it and then that she was aware of it but that there was no need to disclose it as it had been satisfied. He observed that no explanation had been provided for how she arrived at this conclusion. He was not convinced that she had misunderstood what he regarded as a simple question, especially having seen it on three occasions. In his view she had understood it. He was satisfied that she must have known that her failure to disclose it was dishonest by the ordinary standards of reasonable and honest people.[48]The Adjudicator also agreed with the Authorisation Officer that Mrs Yussouf had presented misleading information to the SRA (in the form of her credit report) and had sought to mislead it about her knowledge of some county court judgments, including the 2009 Judgment, in December 2014. He did not accept it was the result of a mistake “when consideration is given to her conduct as a whole during this application, and the dishonesty finding that I have made.”[49]The Adjudicator did not go on to consider Ms Yussouf’s alleged financial mismanagement. But he found she did not have the necessary character and suitability to be admitted as a solicitor given the findings of dishonesty and the provision of misleading information in relation to the existence, and her knowledge, inter alia of the 2009 Judgment. iv. Ms Yussouf’s appeal against the Adjudicator’s decision[50]As I have mentioned Radcliffes submitted grounds of appeal against the Adjudicator’s decision on her behalf. These accepted that Ms Yussouf knew about the 2009 Judgment when she submitted her first application and the information for the Experian background check but that she had not disclosed it. They repeated that, at the time of her first application, she had mistakenly believed that a County Court judgment was a judgment debt that had not been satisfied; that one that had been satisfied was extinguished; and that the 2009 Judgment was no longer relevant to her credit history or her application for admission. They stated that she had not read the form correctly and that she explained her behaviour as a serious lack of attention to detail: she read the questions quickly and did not complete the form with the care and attention it deserved. They submitted references to support that contention. They contended that, since she knew that the SRA would carry out a background check into her credit history (as a result of information on the admission form sent her by the SRA), it was inherently improbable that she would deliberately lie. That was also the case when she completed an Experian background check on October 14th 2014 in which she disclosed her former addresses but stated she did not have any county court judgments issued against her. They contended that Ms Yussouf had not acted dishonestly: she had misunderstood the extent of her disclosure obligation, answered the questions too quickly and did not read the application form with the care required.[51]Radcliffes further contended that Ms Jovovic’s email was a request for assistance as to how to find records of the CCJs, not a representation that there were none. Mr Saltifi’s letter dated February 29th 2016 “was sent to the SRA without asking Ms Yussouf to check it for accuracy” and it would not have contained the statement that she had not been aware of the judgment before making the first application, had she seen it before it was sent. Her solicitors sought an oral hearing before any decision that Ms Yussouf realised that her conduct was dishonest or that she had supplied misleading information.[52]The Authorisation Officer produced a report for the Adjudication Panel dated April 14th 2017. In it she stated that the first occasion on which a lack of care and attention to detail had been put forward as an explanation of Ms Yussouf’s failure to disclose the 2009 Judgment was in the grounds of appeal. She noted that Ms Yussouf had delayed completing the pre-screening application until almost six months after she submitted her first application but that no explanation for this delay had been provided. She pointed out, in relation to Ms Jovovic’s e-mail that, rather than acknowledging the existence of the 2009 Judgment, it had maintained that she knew nothing about any of the judgments the SRA had referred to. The Authorisation Officer pointed out that Mr Saltifi’s letter dated February 29th 2016 was not the only occasion on which it had been stated that Ms Yussouf had no knowledge of the judgment: reference was made to the letter dated June 3rd 2016. The Authorisation Officer invited the Adjudication Panel to uphold the Adjudicator’s decision.[53]On May 3rd 2017 Radcliffes made representations on the Authorisation Officer’s report. They emphasised the inherent improbability of Ms Yussouf lying on her admission form given that she knew that background checks into her credit history would be carried out. Had she embarked on a deliberate course of deception she would not have disclosed her previous addresses to Experian. The reason for the late reference to her lack of attention was because Radcliffes had concentrated on the judgments themselves, rather than on issues of their disclosure, as the recommendation for not admitting her had been on the basis of such judgments, rather than non-disclosure which had only assumed significance after the Adjudicator’s decision. The delays in completing the pre-admission screening process had an innocent explanation: the process on the first application was delayed by errors in the application form which meant that it had to be returned to Ms Yussouf and the Training Principal. Radcliffes stated that the letters from Mr Saltifi dated February 29th and June 3rd 2016 had not been checked by Ms Yussouf before they had been sent and that, had she been given the opportunity to check them, she would have corrected them. v. the decision of the Adjudication Panel[54]The Adjudication Panel considered the matter afresh. It refused Ms Yussouf’s application to be heard in person. It stated that:
“Mrs Yussouf has asked for the opportunity to be heard in person. We have considered this request. We are, however, satisfied we can consider Ms Yussouf’s appeal without requiring oral representations. We have sufficient information and evidence from the bundle of documents to be able to determine this matter properly. This includes an extensive range of statements, letters, emails and representations made on Mrs Yussouf’s behalf, which we have considered carefully.”
[55]The Adjudication Panel decided to make a finding of dishonesty against her and a finding that she had supplied the SRA with misleading information.[56]When dealing with her knowledge of the 2009 Judgment:(1) The Panel found that Ms Yussouf knew about the 2009 Judgment but did not declare it to the SRA on April 29th 2014.(2) The Panel stated that they did not find the explanation provided, that it was not disclosed because she had mistakenly thought that, as it had been paid, it had been extinguished and did not need to be declared, convincing. The question asked was clear: it did not distinguish between those judgments that had been paid and those that had not. It had asked for all to be declared. The form made it clear that declaring any would raise a presumption about her financial management, meaning that Ms Yussouf would be likely to be refused admission: see at [6.6]-[6.8].(3) In response to the suggestion that it was improbable that Ms Yussouf would lie given that she knew she would have to go through a background check, the Panel considered that “the fact that the authorisation officer had to chase her four times over a period of 5 or 6 months to carry out the online screening process suggests a quite different picture. If anything, it gives the impression Mrs Yussouf was reluctant to go through the screening process and needed the officer to press her four times before she did so”. It noted that she had offered no explanation for the delay: see [6.10]-[6.11].(4) The Panel then noted that Mrs Yussouf had given different reasons at different times about her knowledge of the 2009 Judgment and why she did not declare it, referring to (i) the statements in December 2014 by her representative that she could not trace the two CCJs despite numerous attempts; (ii) the letter dated February 29th 2016; (iii) the letter dated June 3rd 2016; (iii) the letter dated July 8th 2016; (iv) the statement in the email dated July 27th 2016 and (v) the letter to the SRA dated August 10th 2016, as well as the requests that prompted them: see [6.12] and [6.13]. The Panel considered that the accounts provided were inconsistent, that opportunities to explain inconsistencies had not been taken, and that it was not until July 2016, nineteen months after she had first applied for admission, that Mrs Yussouf admitted that she had known about the 2009 Judgment at the date of her application: see [6.13]-[6.14].(5) The Panel found that the statement that Mr Saltifi’s letter dated February 29th 2016 was sent without asking Mrs Yussouf to check it for accuracy “unconvincing” and that the letter “could not have been produced without her instructions ”given that she knew that she needed to explain why she had not declared the judgment when reapplying”: see [6.15]. The Panel also thought that there was no explanation why the letter dated June 3rd 2016 also stated that she was unaware of the CCJs including the 2009 Judgment; that it was not “credible to suggest that Ms Yussouf’s representatives got this point wrong twice”; and, given that the Authorisation Officer was saying that she needed a detailed account of Mrs Yussouf’s knowledge, that it was also not “credible that Mrs Yussouf would fail a second time to check what her representatives planned to write on her behalf”: see [6.16]. The Panel stated that “if Mrs Yussouf’s representative had caused the inconsistency by giving statements that Mrs Yussouf had not checked, it would have been easy and straightforward for Mrs Yussouf and her representatives to explain this...[but Mr Saltifi’s] 8 July 2016 letter admitted that Mrs Yussouf knew about [the 2009 Judgment], which directly contradicted representations made in December 2014 and February and June 2016 that she did not know about” it and that in her letter dated August 10th 2016 she “did not suggest that her representatives had wrongly stated her position”: see [6.17]-[6.18].(6) The Panel did not accept that her argument, that she did not declare the 2009 judgment because she did not think that she needed to do so, provided a credible explanation. “It is inconsistent with what the form expressly requests. Furthermore it is inconsistent with several accounts Mrs Yussouf and her representatives gave to the SRA in 2014 and 2016, which stated that she did not know about” it. They paid “particular account” to her failure to provide an explanation why she had not made Mrs Jovovic aware of the judgment which she knew had been issued against her and which she had paid off: see [6.19]-[6.20].(7) The Panel stated that the first time carelessness had been raised as an explanation for the completion of the form was in the grounds of appeal; that, had it been part of the reason for not declaring the 2009 judgment, they would have expected it to have been mentioned in 2016; and that three references had stated that Mrs Yussouf was professional, diligent and businesslike. The Panel did not accept that as an explanation for her failure to disclose the judgment: see 6.21]-[6.25].[57]The Panel approached the issue of dishonesty on the basis that, in accordance with Twinsectra Limited v Yardley and others, as interpreted and applied in Bultitude v Law Society, individuals will be considered to have acted dishonestly(a) if they did so by the ordinary standards of reasonable and honest people and(b) if they were aware that they were acting dishonestly by those standards: see [5.4] and [6.28]. It stated that the standard of proof was the balance of probabilities: [5.4], [6.29]-[6.33].[58]The Panel were satisfied that the first limb of the Twinsectra test was met by her failure to disclose the 2009 Judgment in her first application form and in the additional page completed on June 6th 2014. They rejected the arguments that Ms Yussouf had misunderstood what the form had required, that she answered the questions too quickly and that she did not read the application form with the care required for the reasons indicated above: see [6.34]-[6.35].[59]The Panel also found that Mrs Yussouf knew that her conduct was dishonest by the standards of honest and reasonable people and that both limbs of the Twinsectra test were satisfied: see [6.37]-[6.45]. The Panel accordingly found that Mrs Yussouf was dishonest in failing to disclose the 2009 Judgment when she applied for admission on April 29th 2014. In relation to section 3.1(a)(iv) of the Suitability Test, no exceptional circumstances had been suggested and they did not find any.[60]The Panel did not agree that the correspondence between Ms Jovovic and the SRA’s Case Officer in December 2014 was simply a request for assistance from the SRA. Ms Jovovic informed the SRA that, “despite our numerous attempts to attend this matter closely, we were unable to trace” the two county court judgments to which the SRA had referred. The Panel found Ms Yussouf had not explained why she did not make Ms Jovovic aware of the 2009 Judgment or ask her to check whether this was one of the County Court judgments the SRA had discovered. Instead she had instructed Ms Jovovic to disclose a credit report that had no judgments listed and that provided only partial information. The Panel found that she had supplied misleading information about the existence of the 2009 Judgment and her knowledge of it in December 2009. In relation to section 6.1(b) of the Suitability Test there were no exceptional circumstances: see [6.47]-[6.51].[61]In conclusion the Panel found that Ms Yussouf did not have the necessary character and suitability to be admitted to the Roll having taken into account their findings that she was dishonest, that she had provided misleading information to the SRA, and that there were no exceptional circumstances relating to these findings: see [6.52]. They found it unnecessary to consider issues raised about her financial management. The Panel accordingly cancelled her student enrolment and refused her application for admission.

WHETHER THE ADJUDICATION PANEL MISDIRECTED ITSELF ON WHAT CONSTITUTED DISHONESTY

[62]On behalf of Ms Yussouf Mr Gregory Treverton-Jones QC contended that the Adjudication Panel misdirected itself on what constituted dishonesty by applying a test, based on Twinsectra Limited v Yardley and others, as interpreted and applied in Bultitude v Law Society, that individuals will be considered to have acted dishonestly(a) if they did so by the ordinary standards of reasonable and honest people and(b) if they were aware that they were acting dishonestly by those standards. In the light of the decision of the Supreme Court in Ivey v Genting Casinos (UK) Limited [2017] UKSC 67, [2017] 3 WLR 1212 (“Ivey”), only the first of those elements was necessary.[63]In Ivey Lord Hughes JSC, in a judgment with which all the other members of the Supreme Court agreed, stated (at [62]) that:
“Successive cases at the highest level have decided that the test of dishonesty is objective. After some hesitation in Twinsectra Ltd v Yardley [2002] 2 AC 164 , the law is settled on the objective test set out by Lord Nicholls of Birkenhead in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 : see Barlow Clowes International Ltd v Eurotrust International Ltd [2006] 1 WLR 1476 , Abou-Rahmah v Abacha [2007] Bus LR 220 and Starglade Properties Ltd v Nash [2011] Lloyd's Rep FC 102 . The test now clearly established was explained thus in the Barlow Clowes case, para 10 by Lord Hoffmann, who had been a party also to the Twinsectra case: “Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant's mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards. The Court of Appeal held this to be a correct state of the law and their Lordships agree.” “Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant's mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards. The Court of Appeal held this to be a correct state of the law and their Lordships agree.”
[64]Lord Hughes went on to explain that the meaning of, or test for, dishonesty in civil actions should equally apply in criminal cases notwithstanding R v Ghosh [1982] QB 1053. In his view (at [63]) “it would be an affront to the law if its meaning differed according to the kind of proceedings in which it arose.”[65]Mr Treverton-Jones and Mr Rory Dunlop (who appeared on behalf of the SRA) both accepted that whether a person has acted dishonestly should now be decided in accordance with this guidance. Strictly speaking, however, Lord Hughes’s judgment in Ivey on this issue was obiter. Mostyn J has said, of the two-element test used by the Adjudication Panel in this case, that “curiously, it applies to disciplinary proceedings but not to all other civil proceedings where only the objective element is needed”: see Malins v Law Society [2017] EWHC 835 (Admin) per at [26]. Having reviewed much of the case law in an earlier case, Mostyn J thought in that earlier case that it was a step too far him to go to reject the two-element test given its consistent application and the decision of a Divisional Court in Bryant v the Law Society [2007] EWHC 3043 (Admin), [2009] 1 WLR 163: see Kirschner v General Dental Council [2015] EWHC 1377 (Admin) at [9]-[23]. The Divisional Court in that case had considered itself bound by the decision of the Court of Appeal in Bultitude v the Law Society [20004] EWCA Civ 1853 to apply the two-element test and that such were the consequences of a finding of dishonesty in regulatory proceedings that nothing less than the criminal standard should be applied: see Bryant v the Law Society supra at [153]-[157].[66]The issue, however, does not appear to have been the subject of argument in Bultitude v the Law Society. Kennedy LJ simply expressed his agreement (at [32]) with the submission of counsel as to the correct test. Further, in the light of Ivey, the test in criminal proceedings is now likely to be treated as the same as that in civil proceedings. Moreover it would indeed be “curious” for the test for what constitutes dishonesty to be different in regulatory or disciplinary proceedings from other civil proceedings. This is not merely because, as Lord Hughes put it, it would be an “affront to the law” for dishonesty to mean something different in regulatory or disciplinary proceedings from other forms of civil proceedings, when the consequences of an adverse finding of dishonesty may be just as great. In the context of proceedings the purpose of which is to uphold proper professional standards, it would be not merely ”curious” but also incongruous to treat actions as honest that ordinary and reasonable people (or solicitors) would regard as dishonest. That would imply that professions, such as solicitors, have laxer standards of honesty than ordinary reasonable people. Such an approach would undermine public confidence in the regulation of those involved.[67]Mostyn J considered that it was a step too far him to go to reject the two-element Twinsectra test. That was, however, before the judgment in Ivey. Since then HHJ Seymour, reflecting the agreement of counsel but without a review of the authorities or recognition that Lord Hughes’ judgment on the issue of dishonesty was obiter, has stated that the law in regulatory or disciplinary proceedings is also as Lord Hughes stated in Ivey it was in civil and criminal proceedings: see General Medical Council v Krishnan [2017] EWHC 2892 at [22] and [24]. For my part, had it been necessary to do so, I would have taken the step that Mostyn J was himself understandably then reluctant to take.[68]The problem that Mr Treverton-Jones has to confront, however, is what difference it makes in this case if the second, “subjective” element of the test for dishonesty is inapplicable: the Adjudication Panel found that the first, “objective” element was satisfied. Mr Treverton-Jones submitted, however, that regulatory bodies wrongly apply the “objective” element without reference to the actual state of mind of the individual concerned as to the facts and that that is what the Adjudication Panel did in this case.[69]If the Adjudication Panel had applied the “objective” element without reference to the actual state of mind as to the facts of the individual concerned, then in my judgment they would have erred in law, notwithstanding what HHJ Sycamore appears to have said in General Medical Council v Krishnan supra at [25] The transcript may be in error, as what he said in paragraph [25] appears to be inconsistent with what he said in paragraph [24] and it is inconsistent with the part of the judgment of Lord Hughes that he cites in support. . As Lord Hughes stated in Ivey at [60] See also eg Central Bank of Ecuador & Ors v Conticorp SA & Ors (Bahamas) [2015] UKPC 11 per Lord Mance JSC at [9]. , “in order to determine the honesty or otherwise of a person's conduct, one must ask what he knew or believed about the facts affecting the area of activity in which he was engaging.... “dishonestly”, where it appears, is indeed intended to characterise what the defendant did, but in characterising it one must first ascertain his actual state of mind as to the facts in which he did it. It was not correct to postulate that the conventional objective test of dishonesty involves judging only the actions and not the state of knowledge or belief as to the facts in which they were performed. What is objectively judged is the standard of behaviour, given any known actual state of mind of the actor as to the facts.”[70]The difference between the “objective” and “subjective” elements in the two-element test for dishonesty was not that the former had no regard to the individual’s state of mind but the latter did. The “subjective” element in the test was whether the individual must have realised that ordinary honest people would regard his conduct as dishonest.[71]It is quite plain that in this case the Adjudication Panel did have regard to what they found Ms Yussouf’s state of mind to have been when she filled in the application form twice. In reaching their conclusion in respect of the “objective” test they took into account their findings about her state of mind reached in paragraphs 6.7 to 6.25: see paragraph [6.35] of their decision. But, even if that be wrong, Mr Treverton-Jones was unable to explain how, given their findings about Ms Yussouf’s state of mind, the Adjudication Panel could have done anything other than find that the “objective” test, correctly applied, was met.[72]For these reasons in my judgment the Adjudication Panel made no material error of law in determining whether Ms Yussouf’s conduct in failing to disclose the 2009 Judgment when completing the relevant part of the first application form twice was dishonest given their findings about her conduct. WHETHER THE ADJUDICATION PANEL’S REFUSAL OF AN ORAL HEARING WAS UNFAIR i. submissions[73]Mr Treverton-Jones QC contended that denying Ms Yussouf an oral hearing was unfair. In R (Wayne Thompson) v the Law Society [2004] EWCA Civ 167, [2004] 1 WLR 2522, the Court of Appeal applied a test that an oral hearing should be held when there is a disputed issue of fact that is central to the determination of the case which cannot fairly be resolved without hearing oral evidence: see at [45]-[51]. While the court thought it difficult to envisage an issue where such a hearing would be required when considering inadequate professional performance, the crucial feature of that case was that no dishonesty was alleged: see at [27]. Individuals facing an allegation of dishonesty should ordinarily have the opportunity to clear their name at an oral hearing before any finding of dishonesty is made against them.[74]The most fundamental attribute of all in a professional person, so Mr Treverton-Jones submitted, is honesty. It would be unthinkable, for example, for the SRA or the Solicitors’ Disciplinary Tribunal to make a finding of dishonesty against a practising solicitor without an oral hearing. That would be contrary to the common law requirements of fairness and also the solicitor’s article 6 rights. There was no sufficient reason why the position should be different when decisions on admission are made. The ramifications of any finding of dishonesty by the Adjudication Panel for Ms Yussouf were profound: not only would she be barred from entry to the solicitors’ profession, something towards which she has worked for many years, but also, although the decision is not published, her application for membership of any other profession may be affected (as the finding may have to be disclosed) and it may become more widely known. A finding of a dishonest failure to disclose a matter to gain entry to the profession is in effect a finding of fraud by false representation, a criminal offence.[75]Mr Treverton-Jones submitted that it would be hard to envisage any circumstances in which an oral hearing could be lawfully refused. What was crucial was what she thought at the relevant time. It is all too easy to detect dishonesty from documents: an oral hearing enables the decision-maker to see and judge the individual and crucially to question the individual about points that are troubling the decision-maker. The Panel fell into error when dealing with the alleged inconsistencies in Ms Yussouf’s explanations for non-disclosure and about the delay in 2014, mistakes it is highly likely that they would not have made had she been given an oral hearing. Moreover points (such as her knowledge that the SRA would carry out an Experian search) when conveyed orally have infinitely more power than those made among others in a document. An oral hearing was necessary to get to the truth and so that Ms Yussouf can feel that she had a fair hearing: see R (Osborn) v Parole Board [2013] UKSC 61, [2014] AC 1115, per Lord Reed JSC at [2i, ii, iv, viii and x] and [64]-[72].[76]On behalf of the SRA Mr Dunlop contended that the question is whether the procedure adopted was unfair, not whether having an oral hearing would be “fairer”: see R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 per Lord Mustill at pp560d-561a. In this case there was no requirement for, or expectation of, an oral hearing.[77]Mr Dunlop submitted that the requirements of fairness depend on the character of the decision-making body, the kind of decision it is to make and the legal framework within which it operates: Lloyd v McMahon [1987] AC 625 per Lord Bridge at p702h. The guidance in R (Osborn) v Parole Board supra about the circumstances in which an oral hearing may be required was specific to the Parole Board: see R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331, [2017] 1 WLR 4750, per Sales LJ at [56]. The Parole Board is an independent and judicial body taking decisions about the right to liberty; its legal framework created a presumption of oral hearings and what fairness required in their proceedings was informed by article 5.4 of the ECHR. The Law Society, however, so Mr Dunlop submitted, is not an independent judicial body. The demands of fairness are generally greater when the decision-making body is an independent tribunal or court created by statute: see R (Hassett) v Secretary of State for Justice supra per Sales LJ at [51(i)]. Demands of fairness are also likely to be higher the more that rights are affected by a decision. There is an important distinction to be drawn, so he submitted, between a decision taking away existing rights and one not to grant a future benefit: see R v Devon County Council ex p Baker [1995] 1 All ER 73 per Simon Brown LJ at p91a-b. Decisions on admission to the Roll do not involve taking away rights. Moreover it is in everyone’s interests for such decisions to be taken expeditiously and the framework for decision-making by the SRA is designed to make oral hearings generally unnecessary. The decision-making framework is similar to that analysed in R (Wayne Thompson) v the Law Society supra where the court did not think it impossible for there to be an issue requiring an oral hearing within that framework but found it difficult to think of one: see at [45]-[46].[78]Mr Dunlop contended that this case turned on what was said and done in documents and so it could be determined fairly without an oral hearing: see R (Wayne Thompson) v the Law Society supra at [41] and [46]; R (Heather Moor & Edgecomb Limited) v Financial Ombudsman Service [2008] EWCA Civ 642, [2008] Bus. LR 1486, per Stanley Burnton LJ at [58]. The fact that an issue concerned Ms Yussouf’s honesty makes no difference. Ms Yussouf had been given a fair opportunity to explain her initial non-disclosure in writing and she should have known that her case was likely to be decided on the papers. Mr Dunlop submitted that the only reason given for Ms Yussouf wanting an oral hearing was that she wanted to “confirm” in person that she did not intend to behave dishonestly or mislead the SRA. But there is no requirement to have oral evidence when it is obvious what a person will say: see R (Heather Moor & Edgecomb Limited) v Financial Ombudsman Service supra per Stanley Burnton LJ at [60]. Her personal appearance would not remove the “glaring inconsistencies and implausibilities in her account” and any impression she might be able to make should not properly be relied on to discount them: see Sheik v Law Society [2006] EWCA Civ 1577 at [96]-[97]. Nor was a hearing fairly required to enable her to resile from what had been said on her behalf. It might be different if she had presented evidence that her former lawyers had misunderstood her instructions or deliberately misrepresented them and said that she had wanted them to be called and cross-examined but she did not do so.[79]Mr Dunlop further submitted that the decision in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 likewise related to a very different factual and legal context: in that case the decision-making body was an independent judicial body (the First-tier Tribunal). The kind of decision was more serious (it required the individuals to leave this country where they had built up their private life immediately on pain of criminal prosecution; they were deprived of entitlement to benefits and their access to housing and health services was restricted; and they were banned from re-entering the country). The legal framework did not suggest that oral hearings would be unusual. But, if the approach to determining when an oral hearing on the question of dishonesty could fairly be denied was applicable, on the facts in this case it could be. ii. the circumstances in which an oral hearing may be required on an application for a certificate that the SRA is satisfied as to the character and his or her suitability to be a solicitor of an applicant for admission to the Roll[80]As Lord Bridge stated in Lloyd v McMahon supra at p702 “what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.” The requirements of fairness are not necessarily limited, however, to cases in which “rights” in some strict sense are affected. As Lord Bridge himself pointed out in R v Secretary of State for the Environment ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521 at p598, they apply “to decisions whereby citizens may be affected in their person, their property or their reputation”. They may also apply when an authority contemplates depriving someone of an existing benefit that he hopes to retain or denying a person a benefit which he hopes to attain: see R v Devon County Council ex p Baker supra at pp88-89, 91a-b. It is in this context that Simon Brown LJ stated (at p91a-b) that there was an “unsurprising principle” that the demands of fairness may be somewhat higher “when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit. That is not to say that a bare applicant will himself be without any entitlement to fair play. On the contrary, the developing jurisprudence suggests that he too must be fairly dealt with.”[81]The SRA’s decision on any application for a certificate that it is satisfied as to applicant’s character and suitability to be a solicitor and for admission to the Roll is a decision that affects that applicant’s freedom to provide legal services and his or her reputation. In that respect it is no different from decisions that may be taken against solicitors in disciplinary proceedings. Such an applicant is not a person with a mere hope of obtaining a future benefit. The decision is one that affects his rights. As the Admission Regulations make plain, if the SRA is satisfied as to the applicant’s character and suitability to be a solicitor, it is required to issue a certificate of satisfaction (provided that it is also satisfied that he has met the relevant training regulations) and that certificate entitles the applicant to be admitted as a solicitor unless good cause is shown to the contrary: see paragraph [9] above. No doubt the SRA must exercise judgment as to whether the objective criteria it has specified are met in relation to suitability and character, but it has no general, much less an arbitrary, discretion to deny a certificate or admission, particularly if its authorisation scheme is to comply with the requirements of Part 3 of the Provision of Services Regulations 2009 see in particular regulation 15(1), (2), (7) and (8). . Such an applicant, therefore, does not merely have a mere hope of obtaining a benefit, as Mr Dunlop appeared to imply. But, even if an applicant merely had such a hope, he would nonetheless be entitled to have his application dealt with fairly.[82]It is no doubt for an applicant to satisfy the SRA about his or her character and suitability to be a solicitor: see Jideofo v Law Society (2007) July 31st per Sir Anthony Clarke MR at [16]-[17]. Fairness nonetheless requires that the applicant should be notified of those matters which the SRA consider might lead it to conclude that it is not satisfied about his character and suitability to be a solicitor and should be given an opportunity to satisfy the SRA that it should nonetheless be satisfied. Such an opportunity need not necessarily be provided by way of an oral hearing. “There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing”: R v Army Board of the Defence Council ex parte Anderson [1992] QB 169 per Taylor LJ at p187g.[83]The question is, therefore, whether the procedure adopted was unfair, not whether it could be improved, and “the court must determine for itself whether a fair procedure was followed....Its function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required”: R (Osborn) v Parole Board supra per Lord Reed JSC at [65].[84]The Guidance is designed to secure that applicants have an opportunity in writing to address concerns that it has before any decision is made on admission and for a review of such decisions. Following such guidance may very well be sufficient to secure a fair hearing in some cases. Thus an allegation that can be decided on the basis of documents which record the relevant facts, which are not in dispute, may be fairly determined without an oral hearing. For example, in R (Wayne Thompson) v the Law Society supra, Mrs Anderson complained that she had been misled by her solicitor. He contended that she had withheld certain documents creating a false impression of the advice and explanations that she had received and submitted with his appeal to the Adjudication Panel all the documents that he contended she had withheld. In such circumstances, provided the solicitor knew the case that he had to meet in relation to all the documents, an oral hearing was not required in order to determine whether Mrs Anderson had been misled: see at [37]-[44]. Similarly, in R (Heather Moor & Edgecomb Limited) v Financial Ombudsman Service supra, the issue was whether advice given by the claimants, who were independent financial advisers, adequately alerted their client to the risks associated with a transfer from an occupational pension scheme. The Court of Appeal held that fairness did not require the Ombudsman to provide an oral hearing to enable the financial advisers to cross examine their client as to the advice he had received, as their advice had been given in meetings of which they had kept detailed notes (which they did not claim were inaccurate), as the advice had been subsequently confirmed in writing and as they did not suggest that any advice previously given had been contradicted or modified orally: see at [58]-[59].[85]There may nonetheless be circumstances in which an oral hearing may be necessary, as the Guidance itself recognises: see paragraph [15] above. It is neither desirable nor possible to define exhaustively the circumstances in which fairness requires such a hearing. But, given the seriousness of a finding that the SRA is not satisfied as to an applicant’s character and suitability to be a solicitor, in my judgment one should be held when material facts are in dispute which cannot fairly be resolved on the basis of the documentation available or when a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility: see R (Osborn) v Parole Board supra per Lord Reed at [2(ii)], [74], [75], [78], and [85]. This may involve hearing from the applicant or from others: ibid at [82].[86]Mr Dunlop submitted that such guidance applied only to the Parole Board and should not be applied to decisions on admission by the SRA. I reject that submission. It sits very uneasily in any event with the SRA’s own Guidance: see at paragraph [10.2(ii)] quoted in paragraph [15] above. But more significantly in my judgment such guidance in R (Osborn) v Parole Board simply reflects what fairness requires in such cases.[87]There are no good reasons to distinguish what fairness in such circumstances requires of the Parole Board and of the SRA. Both are dealing with issues of serious significance for the individuals concerned: the Parole Board is concerned with the right to liberty; the SRA with an individual’s right to provide legal services and his reputation. The fact that prisoners have procedural rights under the ECHR was not the determining factor in the formulation of the guidance to which I have referred: Lord Reed took as his starting point the requirements of the common law: see at [63]. That guidance reflects the common law before the enactment of the Human Rights Act 1998: see eg R v Army Board of the Defence Council ex parte Anderson supra per Taylor LJ at p188a-b Mr Treverton-Jones accepted in opening Ms Yussouf’s appeal that no one has the right to become a solicitor: see Jideofo v Law Society (2007) July 31st per Sir Anthony Clarke MR at [16]-[17]. That is no doubt true in the sense that there are conditions to be satisfied. But that case was not decided by reference to the Admission Regulations. Mr Treverton-Jones and Mr Dunlop subsequently agreed that article 6 is engaged by decisions to refuse admission to a profession when it is arguable that national law affords an applicant a right of admission: see De Moor v Belgium (1994) (1994) 18 EHRR 372, Chevrol v France (2003) Feb 13th ECtHR App No 49636/99. That in my judgment is this case. Although they did not agree whether article 6 is engaged whenever an individual is refused admission to the Roll or only when such a refusal is arguably invalid under national law, they agreed that article 6 would not have added anything to the common law on the issue of the legality of refusing an oral hearing to Ms Yussouf. I do not consider it necessary to resolve this since in my judgment the guidance in R (Osborne) v Parole Board to which I have referred reflects the common law independently of the Human Rights Act 1998. I merely note that the outcome of an application for admission to the SRA will be directly decisive for an applicant’s right to provide services. The ECtHR has treated that as being sufficient to engage Article 6 of the ECHR. Thus the ECtHR has found, for example, that the determination whether a person is “fit and proper” that is decisive for a right to provide services itself engages article 6, not merely to a judicial review of its legality: see Kingsley v United Kingdom (2001) 33 EHRR 13 at [42]-[44], approved by the Grand Chamber: (2002) 35 EHRR 10. It is also why article 6 applies to decisions determining planning applications, not merely to a judicial review of their legality: cf R(Alconbury Developments Ltd) v Secretary of State for Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295. .[88]Thus the Court of Appeal has applied the test for oral hearings applicable to the Parole Board (then formulated in Smith v Parole Board [2003] EWCA Civ 1269 in similar terms to that to which I have referred in R (Osborn) v Parole Board) to decisions by the Law Society about inadequate professional performance by solicitors: see R (Wayne Thomson) v the Law Society supra at [46] and [50]-[52]. It is irrelevant that in cases of inadequate professional performance the outcome might have affected practice as a solicitor rather than admission as a solicitor: the outcome of both may affect an individual’s right to provide legal services and his or her reputation.[89]It is no doubt the case that the Parole Board is an independent tribunal created by statute whereas the relevant statutory functions of the approved regulator have been devolved to an independent authority, the SRA, to be discharged in accordance with arrangements and regulations made under statutory powers. In my judgment that makes no material difference to when fairness may require an oral hearing. Indeed the test which applies to the Parole Board, as formulated in Smith v Parole Board and endorsed in R (Wayne Thompson) v Law Society, was treated as applicable to the Financial Services Ombudsman, a person discharging statutory powers who is not a court or tribunal, by the Court of Appeal in R (Heather Moor & Edgecomb Limited) v Financial Ombudsman Service supra at [61].[90]In all these cases, if material facts in dispute cannot fairly be resolved on the basis of the documentation available or if a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility, fairness requires an oral hearing not merely to assist decision-making but also to enable the individual concerned to participate when he or she has something to say which is relevant to the decision, thereby avoiding a sense of injustice which he or she might otherwise feel: cf R (Osborn) v Parole Board supra per Lord Reed at [66]-[69].[91]Mr Dunlop also suggested that it was relevant that the legal framework governing the Parole Board created a presumption of oral hearings, whereas the SRA’s rules do not require or expect oral hearings and are designed to make them generally unnecessary. In my judgment such arguments are nothing to the point: the issue is whether fairness requires an oral hearing in the circumstances, whatever measures the legal framework contains to reduce the need for them. Indeed the SRA Guidance recognises that they may be required: see paragraph [15] above. Saying whether fairness requires an oral hearing normally or exceptionally given such a framework and the nature of the issues to be resolved may describe what is anticipated but it provides no test for whether fairness requires one in any particular case.[92]Mr Dunlop sought to derive assistance from R (Hassett) v Secretary of State for Justice supra for his submission that the guidance derived from R (Osborn) v Parole Board that I have mentioned should not be treated as applying equally to the SRA when it is dealing with applications for admission as a solicitor. The issue in that case concerned whether the decision to maintain Category A status for two prisoners was unlawful in the absence of an oral hearing. A Category A prisoner is one whose escape would be highly dangerous to the public, or to the police or to the security of the State and for whom the aim, when considering his conditions of detention, is to make escape impossible. Such a status is maintained unless the Deputy Director of Custody - High Security or the Category A Review Team (who are officials of the Secretary of State) have “convincing evidence that the prisoner’s risk of re-offending if unlawfully at large has significantly reduced”: see at [1]-[3] and [19]. The requests for an oral hearing were based on expert reports that the prisoners had each obtained: see at [32] and [47]. The Court of Appeal found that there was no real or significant dispute between the expert psychologists on whether the prisoners would present a risk to the public if they escaped: see at [68] and [72]. The Court also found that the guidance in the relevant Prison Instruction (at 4.7(b)), on when an oral hearing might be required if there was a significant dispute on the expert materials, was lawful, distinguishing what had been said on that matter in R (Osborn) v Parole Board by Lord Reed at {86]: see [21] and [58] for the relevant provisions. In considering that issue they emphasised that the Secretary of State’s officials were carrying out management functions in relation to prisons (not an independent adjudicative function relating to the release of a prisoner, and thus his liberty and his Convention rights) and that they were concerned merely with the risk if the prisoner escapes (rather than any risk can be managed in the community): see at [51], [59]-[66]. All that said, the Court of Appeal nonetheless recognised that it was likely that an oral hearing would be required in respect of such decisions where there was “a real and live dispute [between experts] on particular points of real importance to the decision”: see at [63]. Moreover, in R (Hassett) v Secretary of State for Justice, the advice in the relevant Prison Service Instruction (at [4.7(a)]) that an oral hearing might also be appropriate “where important facts are in issue” including “a significant explanation or mitigation is advanced which depends on the credibility of the prisoner”, was not in issue.[93]In my judgment that case does not assist Mr Dunlop. When considering an application for a certificate of satisfaction and for admission as a solicitor, the SRA is performing an independent adjudicative function in the public interest that is directly decisive for an individual’s freedom to provide legal services and reputation. Nor does the decision in that case undermine the principle that fairness requires an oral hearing in such a case when material facts are in dispute which cannot fairly be resolved on the basis of the documentation available or when a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility.[94]The question whether an individual has acted dishonestly is one likely to raise such an issue. It is one that inevitably depends on the state of mind of that individual when he or she did, or failed to do, something. Moreover the significance of any such finding is also particularly serious. That is no doubt why, in the SRA’s own guidance, the first of the factors to which regard is to be had when considering whether an oral hearing is required is where “the honesty of the relevant person is being questioned”: see paragraph [10(i)] quoted in paragraph [15] above.[95]In Ahsan v Secretary of State for the Home Department supra the Court of Appeal considered when an oral hearing was required to determine whether or not an individual had obtained leave to remain by deception. Such a finding could mean such leave would be invalidated (with consequences for that individual’s lawful presence and rights in this country), would prejudice their chances of obtaining leave to enter in future and might become a source of shame and injure their reputation if it became known to others: see at [9], [20]-[21], [22]. The deception alleged involved getting others to take a language test for them and the evidence they would be likely to give was that they took the test in person: see [24]. The Court considered whether an oral hearing was required, whether as part of the fair procedure required under article 8 of the ECHR (if removal interfered with their rights to respect for their private or family life under that article) or as a matter of fairness at common law when such rights were not engaged. The Court held that the requirements were the same in each case.[96]In his judgment, with which the other members of the Court agreed, Underhill LJ stated (at [91]) that:
“I would be reluctant to accept that it was possible fairly to determine an allegation of this character – that is, an allegation of deliberate dishonesty, with serious implications for the Appellants' rights and reputation – without them being given the opportunity to give oral evidence in rebuttal. In that connection I note Lord Wilson's observation in Kiarie and Byndloss that oral evidence may be particularly important precisely because of the scepticism with which an appellant's case was likely to be met.... I do not rule out the possibility that a sufficiently strong case may be shown [such that an oral hearing was unnecessary], but the test would have to be no lower than that required for certification in the context of a human rights appeal”
. That test, as he explained it, is whether the case against the individual is “unanswerable” so that their case is “clearly unfounded”. That would involve in such a case showing “why there is in the circumstances of the case nonetheless no prospect that the [individual’s] oral evidence could discharge the evidential burden on them”: see at [155]-[156].[97]Turning to the common law, Underhill LJ stated (at [94]) that:
“In the case of a migrant whose leave to remain is invalidated on the grounds of deception, with the consequences identified at paras. 20-21 above, I believe that common law principles of fairness, just as much as article 8, require that they should have the opportunity to give evidence orally (except in a case where it is established that oral evidence could truly make no difference).”
The consequences identified in the paragraphs referred to were prejudice to the prospect of subsequently obtaining leave to enter and, if the finding became known, a possible source of shame and injury to reputation.[98]Mr Dunlop submitted that Ashan provided no relevant guidance: in that case the decision was to be taken by an independent tribunal, rather than a regulator; the consequences were more serious, involving the loss of a right rather than a future benefit; and the legal framework did not suggest that oral hearings would be unusual. In my judgment none of these matters justifies departing materially from the guidance provided. If oral evidence could make a difference to whether or not an individual is found to have acted dishonestly, it cannot be fair to that individual to exclude it, whether the finding may be made by a tribunal or by a regulator. The consequences of such a finding will, of course, vary depending on the statutory scheme within which it is made. But the consequences for an individual of a finding that the SRA is not satisfied as to character and suitability as a solicitor because he has acted dishonestly are, self-evidently, sufficiently serious for him or her to be treated fairly. As Lord Clarke MR put it in Afsar v the Solicitors Regulation Authority [2009] EWCA Civ 842 at [38], “where...the SRA positively asserts dishonesty, it should prove it to the appropriate civil standard. The refusal of student enrolment or cancellation of enrolment on the grounds of dishonesty is as serious a matter as to strike off a solicitor for dishonesty. I would add that it is incumbent on the SRA in properly discharging its regulatory function to ensure that it adopts as rigorous and fair approach as the court does to the matter.” Indeed it is notable that, in other cases to which I was referred, oral hearings in cases of potential dishonesty have been held by those taking decisions on behalf of the Law Society or the SRA: see Jideofo v Law Society supra at [27], [41]; Masrur [2009] EWCA Civ 944 at [8]; and Khan v Solicitors Regulation Authority [2010] EWHC 1555 at [7], [30]. Such a hearing was also held where matters of mitigation were put forward: see Mulla v Solicitors Regulation Authority [2010] EWHC 3077 (Admin) at [5].[99]In summary, therefore, when the SRA are deciding whether it is satisfied as to an applicant’s character and suitability as a solicitor, fairness requires an oral hearing when material facts are in dispute which cannot fairly be resolved on the basis of the documentation available or when a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. When considering whether the applicant has acted dishonestly, if such factual issues arise or such an explanation is advanced, fairness requires that an opportunity should be provided to give evidence on such matters orally except when oral evidence could truly make no difference. An applicant may decide not to take advantage of such an opportunity but it is one that he or she should be offered. iv. whether it was unfair for the Adjudication Panel to refuse Ms Yussouf’s request for an oral hearing[100]In this case the Adjudication Panel refused Ms Yussouf’s request for an oral hearing because in their view they had “sufficient information and evidence from the bundle of documents to be able to determine this matter properly”: see paragraph [54] above. The question, however, is whether oral evidence could truly have made no difference. But in any event, as I have mentioned, the question whether the Adjudication Panel’s refusal to give Ms Yussouf an oral hearing was unfair is one for this court to answer. It is not a question of whether their view that none was required was reasonable.[101]That is not to say that the reasons the Panel gave for their decision on the merits are irrelevant. They are plainly matters of which account must be taken when considering whether an oral hearing might have made a difference.[102]In considering that question I have borne in mind not only that the Authorisation Officer in her initial draft decision and in her report to the Adjudicator thought that Ms Yussouf’s explanation for her failure to disclose the 2009 Judgment, that it involved a misunderstanding on her part, could be accepted See paragraph [43] above. but also that the first occasion on which an allegation of dishonesty on her part in not disclosing the 2009 Judgment was formulated against her was made was in the Adjudicator’s decision itself, even though he did not first offer her an oral hearing. The first of these points might suggest that the documentary material was not of itself so conclusive that oral evidence would be pointless. The second point is significant when considering Mr Dunlop’s submission that Ms Yussouf had had ample opportunities (which she took) to provide documentary evidence and written submissions on the essential issues. As is evident from the factual background described above, Ms Yussouf’s representatives were asked repeatedly about her knowledge of, and her reasons for not disclosing, the 2009 Judgment. The answers given by her or on her behalf were plainly highly relevant. But responding to such questions is not the same as responding to a properly formulated charge of dishonesty: see eg Malins v Solicitors Regulation Authority [2017] EWHC 835 (Admin) per Mostyn J at [36] and [39].[103]Mr Dunlop contended that this was a case in which the central issues of fact all turned on documents. That I do not accept. It is true that Ms Yussouf stated at least twice when making her first application that no county court judgments had been issued against her when she now accepts that she then knew that the 2009 Judgment had been. Her explanation for doing so was that she had mistakenly believed that a county court judgment was a judgment debt that had not been satisfied; that one that had been satisfied (as the 2009 Judgment had been) was extinguished; and that she had carelessly read the application form incorrectly: see paragraph [50] above. The question whether, when she stated that she had no county court judgment issued against her, she was acting dishonestly depends on her state of mind at that time, not on any documents.[104]In my judgment whether she needed to be heard orally in order fairly to determine the credibility of that explanation depends on whether an oral hearing could truly have made no difference given what the documents disclosed.[105]The critical matter in answering that question is not what may appear to be the implausibility of a person of Ms Yussouf’s age and experience misreading a clearly worded question more than once. How implausible that may be could be illuminated by her being questioned. The critical matter concerns the statements made by her representatives that stated or implied that she did not know of the existence of the 2009 Judgment at the relevant times when she accepts that she did. Such earlier statements would be inconsistent with the explanation she later gave that her non-disclosure of the 2009 Judgment was based on a misunderstanding.[106]In my judgment the crucial question is whether the Adjudication Panel could fairly draw the inferences they did against her from these statements without giving Ms Yussouf the opportunity to respond to them. On this my judgment has wavered. Ultimately, and with some considerable hesitation, I have concluded that they could not do so.[107]There were two explicit statements about Ms Yussouf’s knowledge that the Adjudication Panel regarded as inconsistent with her case about her understanding when completing the admission application forms in 2014. (1) The first was in Mr Saltifi’s letter dated February 29th 2016. That letter was written specifically to deal with the request of the Authorisation Officer that, with her second application for admission, Ms Yussouf should ensure that she explained she had not disclosed in her first application the county court judgments (which the SRA had by then identified for her) see paragraphs [33] and [34] above. . Moreover Ms Yussouf had withdrawn her first application more than a year earlier to enable that and other information to be provided see paragraph [33] above. . In his letter Mr Saltifi stated that see paragraph [35] above. :
“The Applicant was not aware of the existence of the County Court Judgments .....Furthermore the Applicant got to know about them through the letter from SRA. The first judgment was granted on 30th October 2009.” (2) The second explicit statement on which the Adjudication Panel placed emphasis was in the next letter from Mr Saltifi dated June 3rd 2016. In it he stated that the Certificate of Satisfaction “was obtained as soon as the Applicant discovered about the existence of this judgment". Since the Certificate was obtained in January 2015, this was consistent with his previous statement that “the Applicant got to know about them through the letter from SRA” in 2014. The letter further stated that it was “written on behalf of the Applicant and is based on her instructions. At the relevant time the applicant was not aware that judgments were entered against her.”
This was read by the Adjudication Panel as referring to the time of her first application. (In fact it might be read more naturally in context, however, as a reference to the time at which the relevant judgments were obtained, rather than at the time of her first application: see paragraphs [36] and [37] above. That has not, however, been suggested on behalf of Ms Yussouf.)[108]In her grounds of appeal and response to the Authorisation Officer’s Report on them, it was asserted that Ms Yussouf was not asked to check these letters for accuracy before they were sent out and that they would not have contained such statements had she seen them before they were sent see paragraphs [51] and [53] above. . Mr Treverton-Jones also submitted that it was self-evident that Mr Saltifi should have realised that his statements were inaccurate and the letters were each internally inconsistent. In the letter dated February 29th 2016 Mr Saltifi stated that the 2009 Judgment was satisfied through the proceeds of the sale in January 2012 (as supported by the letter from CM Atif & Co and the Certificate of Satisfaction that he attached to his letter). It is also the case that in the letter dated June 3rd 2016, he stated that “as soon as she was informed about these CCJs she took the necessary steps and settled them. The first two judgments [one of which was the 2009 Judgment] were settled in 2012 once the property got sold” see paragraph [37] above. . This was inconsistent with the implication in the same letter arising from the statement that the 2009 Judgment was settled when the Certificate of Satisfaction was obtained in 2015 (that itself recorded the debt as having been finally satisfied in 2012.)[109]Effectively the contention that Ms Yussouf did not see the two letters from Mr Saltifi dated February 3rd and June 3rd 2016 before they were sent but would have corrected the statements about the time at which she first knew of the 2009 Judgment had she seen them is in substance that, for whatever reason, the letters did not reflect her instructions to Mr Saltifi.[110]The Adjudication Panel felt able to discount that possibility, finding it “unconvincing”, on the basis(i) that, given that she knew that her knowledge about county court judgments was directly relevant to her second application, they did not think it credible that Ms Yussouf would have failed to check what her representatives planned to write in their letters dated February 29th 2016 and June 3rd 2016 was correct See the Decision of the Adjudication Panel at [6.15]-[6.16]. ; and(ii) that no claim had been made that the inconsistencies were her representative’s fault when it would have been easy and straightforward to have done so. Thus (a) no explanation was provided in Mr Saltifi’s email dated July 27th 2016 why the admission in his letter dated July 8th 2016 that Ms Yussouf knew of the 2009 Judgment in 2012 contradicted earlier statements that she had not known in 2014 and (b) no such suggestion was made by Ms Yussouf in her letter dated August 10th 2016 See the Decision of the Adjudication Panel at [6.17]-[6.18]. .[111]It is notable, however, that the Panel did not refer to the internal inconsistencies in the letters dated February 29th and June 3rd 2017 when considering whether Ms Yussouf’s case about how statements that were untrue came to be included in them. Mr Dunlop submitted that her instructions may have been inconsistent. But such internal inconsistencies may equally indicate that Mr Saltifi had not understood, or was confused about, them. Moreover in my judgment neither of these two reasons given by the Adjudication Panel itself for discounting the possibility that the letters did not reflect her instructions provides a conclusive reason for rejecting her case on that matter.[112]It has never been put to Ms Yussouf that in the circumstances she could not possibly have trusted her solicitor to make representations in accordance with her instructions without checking whether what he was going to say, or had said, accurately did so. Whether or not it is credible that she may have trusted her solicitor to that extent may depend on the answers that she might give to questions about the possibility, and fact, of her doing so. In my judgment she ought fairly to be given that opportunity to respond to such questions before an adverse inference of dishonesty is drawn against her on that basis.[113]Given that Mr Saltifi had stated that Ms Yussouf knew about the 2009 Judgment in 2012, the Authorisation Officer asked in her e-mail dated July 18th 2016 for an explanation not only of why she had failed to disclose it in her first application (which Mr Saltifi provided in his reply on July 27th 2016) but also for an explanation for the apparently contradictory statement (which was not specifically identified) that she had not disclosed any such judgments in her first application for admission as she was unaware of them. Mr Saltifi failed to provide any such explanation in his reply. On the material apparently available to the Adjudication Panel, it does not appear that this question was specifically repeated in the e-mail from the Authorisation Officer on August 3rd 2016 to which Ms Yussouf’s letter dated August 10th 2016 was a response see eg paragraph [2.17] of the Authorisation Officer’s Report on the Grounds of Appeal. . Accordingly it is her former solicitor’s failure in his e-mail dated July 27th 2016 (which does not appear to have been copied to Ms Yussouf) to address the specific question about this inconsistency raised in the Authorisation Officer’s e-mail dated July 18th 2016 (which was also not apparently copied to Ms Yussouf) that the Adjudication Panel relied on to discount the possibility, that any earlier, untrue statement by that solicitor about her knowledge of the 2009 Judgment was something that did not reflect Ms Yussouf’s instructions to that solicitor at the time.[114]The problem is that, if his earlier letter did not do so, that might explain why Mr Saltifi failed to address the question and, far from being necessarily inconsistent with what Ms Yussouf now says, it might be consistent with it. The failure to answer the question might reflect incompetence on his part (something that Mr Treverton-Jones’s submissions on the internal incoherence of his letters might support) or possibly embarrassment about earlier mistakes on his part. It does not appear, however, that any point was taken about this e-mail, or that any questions were put to Ms Yussouf about her knowledge of it and why no explanation for the earlier statement was provided in it, before the Adjudication Panel relied on it to draw an adverse inference as to her honesty against her Although the Authorisation Officer in her draft decision and report to the Adjudicator referred to Ms Yussouf acting dishonestly by the standards of a reasonable and honest person by “actively stating that she did not disclose the CCJs because she did not know about them”, Radcliffes may not have addressed that point in their representations dated October 17th 2016 and February 10th 2017 as the Authorisation Officer nonetheless concluded that, given her explanation for non-disclosure, she had not been dishonest in her dealings with the SRA: see page 9 of their letter dated October 17th 2016. The apparent inconsistency of her acceptance that she knew of the 2009 Judgment in 2012 and her initial position that she was unaware of it at the relevant time, implied in the events of December 2014 and stated in the letter dated February 3rd 2016, however, was highlighted by the Adjudicator in his Decision when dealing with the facts: see at paragraphs [6.7]-[6.13].}. It was in response to this that Radcliffes stated her case that she had not checked the letters before they had been sent out. .[115]This is not to say that there may not be other questions that should be put about Ms Yussouf’s case that she was unaware of the contents of these letters before they were sent, such as when she first saw them. But in my judgment, for the reasons I have given, these letters are not of themselves sufficient to show that no oral hearing was required as a matter of fairness to Ms Yussouf before any adverse inference that she had acted dishonestly in filling in the admission forms was drawn against her.[116]The statements implying that Ms Yussouf did not know about the 2009 Judgment were made in December 2014. On December 9th 2014 Ms Jovovic told the SRA that “despite our numerous attempts to attend the matter closely, we were unable to trace the [two] judgments” which the SRA had earlier referred to, of which one was “issued in October 2009 for the amount £4891". On December 15th 2014 Ms Jovovic forwarded a credit report from Experian that showed no judgments had been issued.[117]Mr Treverton-Jones submitted that Ms Jovovic was saying only that she and Ms Yussouf had been unable to trace the two judgments which the SRA had referred to. In my judgment, however, these statements implied that Ms Yussouf had no knowledge of the 2009 Judgment, even after numerous efforts had been made to “trace” it. The statements made to the SRA in December 2014 clearly implied that Ms Yussouf neither knew of, nor could find, any county court judgment that had been issued against her in 2009 for the amount the SRA had mentioned, although she knew of at least one that had been issued in that year (which in fact was for that amount). The exchanges, therefore, provided misleading information, albeit by implication, (as the Adjudication Panel found, a finding against which Ms Yussouf has not appealed).[118]The question is, however, whether the supply of such misleading information may have an explanation consistent with Ms Yussouf’s case about her belief about what she had to declare in the application form for admission.[119]The case advanced on her behalf was that Ms Jovovic made online enquiries with Ms Yussouf in her office and was unable to trace the two judgments referred to by the SRA because Ms Yussouf had only entered her current address; that she believed at the time that she had entered all relevant addresses; that it is not uncommon for errors to occur by failing to press a confirmation button about such entries online; and that it is improbable that Ms Yussouf would have deliberately withheld the information about her previous addresses as she had supplied them shortly before to Experian for the SRA check; and that, had she intended to deceive the SRA, she would then have withheld the information about her earlier addresses See Radcliffes’ letter dated October 17th 2016 p11; her grounds of appeal at [25]. . The Adjudicator rejected this explanation, that it was a mistake, by reference to Ms Yussouf’s conduct as a whole, the finding of dishonesty that he had already made against her and the fact that she knew she had to include her former addresses See the Adjudicator’s Decision at [6.34]. . The Adjudication Panel relied on that fact and on the absence of any explanation of why Ms Yussouf did not make Ms Jovovic aware of the 2009 Judgment or ask her to check whether it was one of the judgments the SRA had discovered.[120]If the question of her dishonesty is not otherwise determined by the subsequent letters written on her behalf, that cannot of itself lead to the conclusion that Ms Yussouf was dishonest on this occasion. The fact that Ms Yussouf was aware that her former addresses needed to be included in the credit check and had previously provided them may in fact support her case (as Radcliffes contended that it did) that a mistake was made on this occasion. The questions raised by the Adjudication Panel, however, are ones that are well put. But the issue is whether those questions (and other questions, such as why both she and Ms Jovovic did not notice, if they did not do so, that the credit report produced only related to Ms Yussouf’s current address and questions about what the other efforts were that they had made to trace the judgments) in my judgment should have been put to Ms Yussouf as a matter of fairness before any adverse inference was drawn about her honesty on this occasion and about her state of mind when completing the admission form. Neither the Adjudicator nor the Adjudication Panel made an express finding of dishonesty against her with respect to the exchanges in December 2014 for the purpose of the Suitability Test. If a finding of dishonesty in respect of the exchanges in December 2014 is effectively to be made (as it implicitly has been), then it is one should be clearly alleged and an opportunity given specifically to respond to it. But in any event I am not prepared to find that it is inconceivable that whatever Ms Yussouf might say when confronted with such questions could not result in the Adjudication Panel finding that what occurred in December 2014 reflected incompetence and carelessness, rather than dishonesty, on her part.[121]In relation to both the letters to which I have referred and the exchanges in December 2014, it can no doubt be said that Ms Yussouf could have been forthcoming about what her instructions in fact were at various times to Ms Jovovic and Mr Saltifi and what she knew, and when, about what they did on her behalf. It is also true that she did not provide statements from them, or ask for an oral hearing to enable them to give evidence, about such matters. Such evidence might be necessary to persuade an Adjudication Panel to accept her case on such matters. But, even in its absence, for these reasons in my judgment the Adjudication Panel could not fairly draw the inferences it did against her, from the statement in the letters to which I have referred and the events in December 2014, without giving Ms Yussouf the opportunity to respond to them.[122]In my judgment none of the other matters relied on by the Adjudication Panel would in themselves justify denying her an oral hearing in relation to the charge of dishonesty. For example it was necessarily implicit in her case, that she had misunderstood what she was required to declare, that she did not read the application form with care and the fact that, when a charge of dishonesty is made, such a point is elaborated is not necessarily any conclusive indication that her case about her misunderstanding is necessarily untrue.[123]It is, however, the apparent cumulative impact of all the matters relied on by the Adjudication Panel that appears to suggest that there is an overwhelming case against Ms Yussouf. But ultimately, if each may be capable of explanation given an oral hearing, it was unfair for Ms Yussouf to be denied one. v. conclusion[124]Accordingly in my judgment it was unfair for Ms Yussouf to be denied an oral hearing.

OTHER MATTERS AND RELIEF

[125]Given that I have found that it was unfair to deny Ms Youssouf an oral hearing, there is no need to address the further grounds on which it is contended that the Adjudication Panel should not have reached the finding of dishonesty that it did.[126]It is nonetheless necessary to consider whether any relief, and (if so) what relief, should be granted given that, as I have mentioned, the Adjudication Panel found that Ms Yussouf had provided the SRA with misleading information in December 2014, a finding against which she has not appealed. Under section 6.1(b) of the Suitability Test such a finding itself warrants refusal of admission unless there are exceptional circumstances (which the Adjudication Panel thought that there were none in this case). Mr Treverton-Jones nonetheless submitted that the appeal should be allowed and the Adjudication Panel’s decision quashed, as the Adjudication Panel’s decision on the provision of misleading information was influenced by their finding of dishonesty. Mr Dunlop submitted that in the circumstances the dishonesty finding should be quashed but that the court should not remit the finding relating to the provision of misleading information, leaving the issue of dishonesty to be decided at another date were Ms Yussouf to re-apply for admission.[127]The Adjudication Panel’s decision that Ms Yussouf did not have the necessary character and suitability to be admitted to the Roll and to refuse her admission was one expressed to have been reached having taken account of both their finding on dishonesty and on the provision of misleading information. It may well be that, had the Adjudication Panel addressed those issues only by reference to the provision of misleading information, it would have reached the same conclusion. But the Adjudicator was expressly influenced on that issue by his finding of Ms Yussouf’s dishonesty. Although not equally explicit, it is difficult to conclude that the views which the Adjudication Panel expressed about her conduct, when considering whether misleading information had been provided and also whether there were any exceptional circumstances, were not influenced by their conclusion on her honesty. Moreover the time at which any future application might be made and might be successful (even if it were to be found that Ms Yussouf had not acted dishonestly) may be influenced by the view taken about the circumstances in which the misleading information was supplied to the SRA by Ms Yussouf. Those views would also be admissible in considering any future application and might well influence any subsequent determination about her honesty. In such circumstances, in my judgment it is better and fairer simply to allow the appeal, leaving the Adjudication Panel free to consider the application afresh, not bound by any of their earlier findings. It is also in both Ms Yussouf’s and the public interest that the question of her honesty is determined sooner, rather than later, in relation to her current application, rather than in some possible future application. The longer that issue may have to await determination the less reliable memories are likely to be.

CONCLUSION

[128]For the reasons given this appeal will allowed. The questions whether the SRA is satisfied that Ms Yussouf has the character and suitability to be admitted as a solicitor, whether her application for admission should be refused and whether her student enrolment should be cancelled are remitted to the Adjudication Panel of the SRA for them to reconsider in the light of this judgment.