Heather, Re A Solicitor

1. This is an appeal from the decision of the Law Society acting through its regulatory body, the Solicitors’ Regulation Authority (“SRA”). It is brought under section 12(1)(e) of the Solicitor’s Act 1974. It is memorable for no other reason and it is worth noting that this is the last appeal, as this jurisdiction was transferred to the High Court on 1 July by the Legal Services Act 2007, commencement number 5, Transitory and Transitional Provisions Order 2009. As it was filed on 31 January 2009 the present appeal remains one to which the Master of the Rolls has jurisdiction by way of paragraph 4(A) of the 2009 Order.

2. This appeal is brought by Dr Michael Heather, who appeals from the decision of Ceri Griffiths, an SRA adjudicator. On 30 September 2008 the adjudicator imposed a condition which was on his 2007/2008 practicing certificate in the following terms, and the condition was that Dr Heather: “…attends a course accredited by the Solicitors Regulation Authority on the ‘Solicitors’ Code of Conduct 2007’ within six months of the date of the notification of this decision and provides confirmation of his attendance (in the form of a certificate or letter of attendance from the course provider) of such course within one month thereafter.”

3. To his credit Dr Heather complied with this condition very promptly, attending the course scarcely a week later on 6 October. The reason the condition was imposed was that the adjudicator had found Dr Heather was facing allegations of serious breaches of the solicitors’ professional rules of conduct and these were sufficiently serious to justify the bringing of disciplinary proceedings against him. The adjudicator said that the practicing certificate can be subject to conditions properly where it is necessary to do so in order to protect the public or the reputation of the profession and that, in the circumstances of Dr Heather’s case, the allegations he faced satisfied that test, and he also bore in mind that the condition would not affect his present practicing arrangements. In brief, in other words, the adjudicator thought that the condition was proportionate.

4. Despite this, Dr Heather appealed against the adjudicator’s decision to the SRA appeals panel on 18 December 2008, a sort of internal review procedure. The panel dismissed the appeal. Dr Heather then issued the present appeal from the adjudicator’s decision by petition, as I have mentioned, dated 31 December 2009. That appeal was stayed by my predecessor Lord Clarke by consent, pending the outcome of the disciplinary proceedings. The hearing of those disciplinary proceedings took place in March 2009 and the SDT gave its decision on 22 June 2009. That decision was that Dr Heather was to be suspended from practice for a year from 24 March 2009. There does not appear to have been an appeal against that decision, although Dr Heather has made it clear that he intends to seek permission to appeal out of time and possibly to make an application to the European Court of Human Rights. Although Dr Heather in those circumstances applied for the stay imposed in relation to these proceedings to be continued while the SDT’s disciplinary decision was reconsidered in some way or another, I refused his application on 12 October. At the moment, as I have explained to Dr Heather, it seems to me that I have to proceed on the basis that the SDT’s decision stands.

5. I should mention one preliminary issue. Dr Heather was suspended, as I have mentioned, from practice by the SDT. By virtue of section 15(1) of the 1974 Act, that operated to suspend his practicing certificate. Replacement date for Dr Heather’s practicing certificate was 31 October 2008. Dr Heather’s certificate therefore expired on that date. The question therefore arises whether there remains jurisdiction to entertain an application in relation to a practicing certificate which is no longer in force. I am prepared to accept that there is jurisdiction to hear the present appeal. The powers bestowed on the Master of the Rolls under section 13(4) of the 1974 Act seem to me at least to be arguably wide enough to conclude that such jurisdiction remains in the circumstances of the present case. Indeed it is right to record, for what it is worth, that my view is that there is such jurisdiction. But, at any rate, I proceed on the basis that there is.

6. If I may go into the details of this matter a little more. Dr Heather is a solicitor and chartered engineer. He retired in 2005, but before then he was a fulltime university lecturer. During his time as a lecturer he carried out what he describes as a pro bono sole practice for experience in support of academic and research work in legal systems. Following his retirement he took over the practice of a deceased solicitor Mr Anthony Patton, from whom he appears to have worked for some period as a consultant. He practiced as a sole principal under the title Ambrose Solicitors. The practice seems to have carried out work largely arising out of road traffic accidents. On 8 May 2006 Ms Elaine Robinson, of the SRA’s practice standards unit, visited Ambrose Solicitors. She produced a report dated 21 May 2006 identifying a number of concerns about Dr Heather’s practice and suggesting that in a number of regards it was being conducted in breach of the Solicitors’ Practice Rules 1990 and the Solicitors’ Introduction and Referral Code 1990. In light of those concerns an SRA adjudicator on 8 March 2007 referred Dr Heather’s practice to the SDT and, in light of what was regarded, at any rate by the SDT, as Dr Heather’s failure to provide a sufficient explanation concerning his conduct, the Law Society had vested in it a power to impose regulatory conditions on his next practicing certificate.

7. As already mentioned, on 30 September 2008 an adjudicator exercised that discretion and imposed the condition which forms the subject matter of this appeal. By that time the SDT had concluded that Dr Heather had a case to answer in respect of the matters referred to it. In that connection it might be convenient to have a slight detour into a point raised by Dr Heather in his concise and clear submissions today. He says that the concept of a case to answer in rule 6(1) of the Solicitors’ Disciplinary Proceedings Rules 2007 does not necessarily mean a case for the solicitor to answer. I do not agree. It seems to me quite clear that it means a case for the solicitor who is said to be in breach of the rules to answer. That is clear for rule 6(1), together with rule 6(2), 6(3) and 6(4), and it is no way called into question by the definition of case to answer, namely “an arguable or prima facie case” in rule 2(1). What it means is, quite clearly, how rule 6 works is that a solicitor member has to look at the papers to see whether they reveal a case for the solicitor to answer a prima facie case for him to answer , and, if not, that is the end of the matter, and if so the matter proceeds. It is a familiar process to any practitioner, not merely in connection with disciplinary proceedings.

8. I revert to the history of the matter. In imposing the practicing certificate the adjudicator said this: “The Solicitors Disciplinary Tribunal has certified that Dr Heather has a case to answer. In due course after testing the evidence the Tribunal will make its own findings about Dr Heather’s conduct. In the meantime it remains the case that he is facing allegations of breaches of the professional rules of conduct of a serious nature. It is settled that when necessary to do so to protect the public or the reputation of the profession conditions can be imposed on a practicing certificate pending the Tribunal’s findings. The imposition of a condition in such circumstances is not intended to pre-judge the outcome but is a regulatory measure taken in the public interest. Although Dr Heather claims to be ‘well versed’ in the 2007 Code I consider it necessary in order to ensure that he is aware of the current rules and regulatory requirements for him to attend training and for such training to be made a condition attaching to his practicing certificate. I am satisfied that such a condition is necessary in the public interest. The condition will not affect his present practising arrangement and I have allowed a considerable period of time for him to comply with it.”

9. The adjudicator had received a recommendation from the SRA’s case worker that a further condition should be imposed and namely one barring Dr Heather from holding client funds. That was rejected as unnecessary. As I have mentioned, the SRA appeals panel dismissed the subsequent appeal and refused to withdraw the condition on review, as it concluded the condition was both appropriate and proportionate. Following the imposition of the certificate conditions Dr Heather’s disciplinary proceedings came before the SDT, who held a two-day hearing and found that 11 of the 13 allegations of breaches of the two 1990 rules, and indeed of the Solicitors’ Accounts Rules 1998, had been proved (see in the matter of Michael Ambrose Heather No 9953-2008). As a result, as I have mentioned, Dr Heather was suspended from practice for twelve months. Dr Heather had made a number of submissions, although he has concentrated mainly in his oral submissions, and I think realistically concentrated on what I am going to treat as the forced point. But before dealing with that, it is right to mention first of all my relevance, and in that connection I cannot do better than quoting from what Sir Anthony Clarke said in a case in the matter of the Solicitors’ Act 1974 , Lebow, Re a Solicitor No 13 of 2007 [2008] EWCA Civ 411 at paragraph 23: “This appeal is by way of a re-hearing, although one of the factors which successive Masters of the Rolls and I myself have taken into account in the past is the importance of the judgment of the adjudicator and the appeal panel. It is important to have in mind that the imposition of conditions on a practicing certificate is a regulatory decision and one based on the need to protect the public and the reputation of the profession. Conditions, however, if they are to be imposed, must be both necessary and proportionate.”

10. As the authorities make clear, the imposition of conditions are regulatory and not a disciplinary or punitive measure (see paragraph 25 of Awan v The Law Society [2003] EWCA Civ 1969 ). As regulatory measures they are imposed to ensure, as Sir Thomas Bingham MR put it in Re: A Solicitor Number 6 of 1993 as cited in Brandon v The Law Society at paragraph 32, that a solicitor who has run into trouble in a professional capacity is subject to a degree of oversight in the conduct of his professional life, at least until he has demonstrated over a period that he is not in need of such supervision to protect the public. The first point it is convenient to consider is Dr Heather’s contention advanced in written submission that the process adopted by the SRA was not compliant with the rules of natural justice. In that connection the relevant principles are set out in the judgment of Sir Anthony Clarke in [2008] EWCA Civ 969 Lebow v The Law Society to which I have referred. In that case, in paragraph 28 he said that an appeal to the Master of the Rolls from an SRA decision to impose a condition on a practicing certificate was: “…not separate from [the process whereby practicing certificate conditions are imposed on the process provided by the Solicitors’ Act 1974 ] by rather if part of that process as is clear from section 13 of the 1974 Act . It is the appellate stage of the process and arises following the culmination of the internal process whereby the SRA exercised its jurisdiction to impose conditions. The right to bring the present appeal – and I interpose which in that case as in this was from a decision to impose practicing certificate conditions – from the adjudicator’s decision is provided by section 13(2) (b) of the Act which takes the form of an ordinary hearing renders the procedure whereby practicing certificate conditions are imposed viewed as a whole consistent with article six of the European Convention on Human Rights.”

11. The next issue it is convenient to consider is Dr Heather’s challenge to the vesting of a discretion to impose the practicing certificate condition. I cannot rule on that. My jurisdiction arises in respect of the imposition of practicing certificate conditions and does not apply to a decision taken by the SRA under section 12(1) (e) of the 1974 Act . No statutory appeal lies in such decisions with the Master of the Rolls. I suspect that the property venue for such an appeal would be by way of an application for judicial review. Of course, no such challenge was taken at the time. It is probably too late to raise it. It is only fair to Dr Heather that I do express a view on it rather than leave it as a procedural point, and I ought to say that if Dr Heather could raise it in these proceedings I would not have been persuaded by it. Section 12(1) (e) provides that it is for the Law Society to determine this question in its discretion whether an explanation given in respect for any matter relating to an individual solicitor’s conduct is “sufficient and satisfactory”. I can see nothing to suggest that the decision taken by the SRA, exercising the power of the Law Society counsel in reaching its decision to vest a discretion in the circumstances of this case, was such as to satisfy a challenge to it on jurisdictional or judicial review grounds.

12. The third point raised by Dr Heather is that the decision to impose a condition was in breach of what he describes to be a conciliation agreement of 3 April 2006. I have not seen such an agreement. The SRA has provided a photocopy of a letter from Dr Heather dated 3 April 2006. He refers in his letter to “requisitions and the Law Society letter dated 3 April 2006” and there is a further letter, dated 4 May 2006, from Dr Heather referring to a letter from a Mr Lebow of the Law Society of 3 April. I find it very difficult to see how the letter of 3 April 2006 could be said to amount to, or to contain, a conciliation agreement which would preclude, on any view, the SRA adjudicator in September 2008 properly taking a decision to impose a condition on Dr Heather’s practicing certificate. It seems to me that Dr Heather’s reply to that letter makes it clear that it was a letter seeking information, not proposing a conciliation, but in any event it is difficult to see how it could properly be concluded that there was a conciliation proposal given that, at that time, there was no dispute between the Law Society and Dr Heather, or there was at that stage the start of a monitoring and investigation process.

13. Furthermore, there is nothing in Dr Heather’s reply to the letter to suggest that he was accepting any proposals in the 3 April letter. He simply answers some questions. But even, assuming that Dr Heather was right on this as a matter of language and there was a conciliation agreement, it seems to me if it had been offered and accepted it could not better the SRA and its adjudicator’s discretion when the question whether to impose a practicing certificate arose. In Malik v The Law Society No 2 of 2002 [2002] EWCA Civ 490 the issue was whether a Law Society adjudicator’s decision to grant the appellant’s registration as a foreign lawyer was precluded the Law Society from later performing a statutory duty under section 3 . In essence what was said was that the adjudicator’s decision to grant registration finally determined the issue of the appellant’s character and suitability. Lord Phillips MR at paragraph 39 accepted the Law Society’s submission that it could not be precluded from carrying out its statutory duty under section 3 of the 1974 Act . He held that the adjudicator’s prior decision did not preclude the Law Society from carrying out its duty which as he put it was “imposed in the public interest”. It seems to me clear that this statement of principle is applicable to the present situation.

14. Dr Heather’s submission here is analogous to that put on behalf of the appellant in Malik v The Law Society to which I have referred, namely that the SRA adjudicator is precluded from carrying out its duty imposed in the public interest to assess whether it is necessary to impose practicing certificate conditions, in this case due to a conciliation agreement. In both cases the point is essentially that there is an estoppel but there cannot be an estoppel which prevents somebody from carrying out his public duty when that duty is imposed for the public interest. The fourth point which, as I have mentioned, is the one that Dr Heather has, I think, correctly and helpfully concentrated on in his written submissions, is that it was unnecessary to impose a condition on the practicing certificate in this case. As his prompt attendance on the course demonstrates, he would have been prepared to comply with, as it were, a quiet word suggesting that he goes on the course rather than having the embarrassment and disadvantage of the matter recorded on is practicing certificate. He puts it this way: that imposing the condition was making a mountain out of a molehill and has led to other present proceedings. I accept that if a quiet word had been had then the present proceedings would not have happened and to that extent Dr Heather is right. The imposition of the condition, rather than the quiet word, has resulted in these proceedings.

15. But I think the Law Society and the SDT can say with equal force -- and indeed I am bound to say, as a matter of common sense, with more force -- that it is not so much the imposition of the condition that has led to these proceedings but Dr Heather’s objection to the imposition of the conditions. The imposition of a condition on a certificate is a serious matter. I can see that, but I do not accept that it is a severely embarrassing matter for a solicitor. Common sense and general experience suggests to me that a solicitor is rarely asked to produce his certificate and rarely has to show it. I am told that if you examine the Law Society’s website and look for a solicitor you will find all the solicitors listed. It does not recorded whether any particular solicitor has a qualified practicing certificate. It is true that if you look on the SRA website you could see which solicitors have been subject to a condition. I would have thought it rare in the extreme, and Dr Heather has not suggested it has happened to him, that a solicitor is asked by a client for his certificate. I suspect that if he is asked for a certificate the relations are already bad enough for the solicitor’s reputation not to be affected and his client advised by a qualification anyway. The only occasion Dr Heather can point to when he has been asked for his certificate was when he appeared in court for somebody on an informal basis and the judge wished to be satisfied that he was a solicitor. I can see that it would have been mildly embarrassing if his certificate had been qualified, but no more than that.

16. So I think, with due respect, it is he who is making a mountain out of a molehill. But there is a wider point here. The requirement was not imposed on Dr Heather simply for his benefit. It was imposed on Dr Heather for the public benefit and I can see a powerful argument. I do not say it is an argument which would apply in every case, but I do see a powerful argument for saying that that sort of thing should be recorded on the practicing certificate. We live in a society where freedom of information is at a premium, and quite rightly at a premium, in a way it has not been before, when people are entitled to know (if they want to know) details which might affect them of a person in whom they are entrusting their affairs or seeking advice.

17. It seems to me entirely proper that consideration should be given to any requirement imposed on a solicitor when deciding whether to record it on his certificate. In the present case, of course, given that this is a rehearing, I can properly take into account the SDT’s decision in the proceedings against Dr Heather. It is plain that the nature of the matters referred to the SDT -- which were in all but two respects found proved after a contested hearing -- were serious, as is most e asily demonstrated by the sad fact that Dr Heather was suspended from practice for a year.

18. I think it is impossible, with all due respect to Dr Heather, in light of that seriously to suggest that the imposition of the condition was not something which was appropriate in this case. Fifthly, and connected with that, is the question of whether the condition, bearing in mind what it provided, was reasonable and proportionate. The first point to make is that the condition was not as strong as that which had been proposed by the case worker. As Mr Marriott, who appears for the Law Society and with whose assistance I am grateful, points out, that tends to support the proposition that this was a considered and moderate reaction by the adjudicator. It can be said, I suppose, that the condition was so moderate, namely simply requiring Dr Heather to attend a course which he properly did, that it was not worth recording on his certificate. That is almost criticising the Law Society and the regulatory bodies for being too moderate, but in my view one of the reasons that you could justify being rather moderate in the condition imposed was that there was the added factor that it was being recorded on the certificate. I certainly cannot see any basis for suggesting that the imposition of the requirement and the recording it by way of condition was either unreasonable or disproportionate.

19. Finally, there is the submission made by Dr Heather that the SRA was wrong to publicise its decision. The first point is, of course, that that has no bearing on this appeal. The question of publicising it was a matter for the SRA and I suppose could have been, in theory, judicially reviewable. I am bound to say in light of the conclusions I have expressed as to the reasonableness of including the matter as a condition on his certificate rather than having a friendly word, it is namely freedom of information and the right of the public to know. I find it impossible to accept that Dr Heather has any grounds for complaining about the SRA’s publication of the decision. In all these circumstances, with gratitude for the economic way in which Dr Heather made his submissions and with gratitude also to Mr Marriott in his reply submissions which were equally concise, I would dismiss this appeal. Order: Appeal dismissed; costs summarily assessed at £4,500 to be paid within 4 weeks ……………………………………. LORD NEUGERGER THE MASTER OF THE ROLLS MR MARRIOTT : My Lord, there is an application for costs of the SRA against Dr Heather. LORD NEUBERGER : So I see. MR MARRIOTT : There is a schedule which you have seen. LORD NEUBERGER : Yes, I have looked at it. MR MARRIOTT : I have … LORD NEUBERGER : I have not immediately got it to hand. Yes I have now, thank you. It is about £4,600 … £4,800? MR MARRIOTT : Yes. I should make it plain my Lord that, those sitting behind me, there is no claim for their attendance today. LORD NEUBERGER : Well what do you say, Dr Heather, to that? DR HEATHER : As you said my Lord, if there had been a quiet word there would never have been any costs. LORD NEUBERGER : Well it seems to me that unfortunately for you, you have lost and the normal rule is that you have to pay the costs if you lose. DR HEATHER : Yes. LORD NEUBERGER : There are two questions. Have you got any special reason for not paying costs, and secondly, if you have not, what do you say about the sum being claimed? DR HEATHER : Well as I have already said about this, all the excessive work in all these procedures which are certainly, as Mr Marriott was conducting in the hearing before the tribunal … I cannot really see it needed very much work at all. But also as an officer of the court I think … I mean, doing what I … these are costs which have arisen in my employment. And I don’t see that they should fall personally on officers of the court and this is like going into … talking to the boss about some grievance at work. LORD NEUBERGER : Uh huh. DR HEATHER : So the … the review to the … the appeal to the Master of the Rolls should be as you said a domestic matter and should not be subject to a normal costs reward. Particularly here where none of it would have arisen with that quiet word. LORD NEUBERGER : I have dismissed Dr Heather’s appeal. In those circumstances, not unsurprisingly, Mr Marriott asks for the costs. I can see no good reason for acceding to Dr Heather’s suggestion, which is making no order for costs. I have some sympathy for Dr Heather. I can see how he feels that this is, as he put it, taking the matter further up the line in terms of talking to I think he said the boss. But I am afraid these are legal proceedings. Of all people a lawyer is somebody who should appreciate that if he takes an appeal to a court -- and with masses of previous cases where costs have been ordered Dr Heather must have been aware, and if he was not he only has himself to blame -- that he was at risk on costs. While there is an element in my mind, I have to say, of kicking a man when he is down, I think it would be wrong in principle for me not to award costs. The question then is how much? The matter has taken an hour in court but Mr Marriott can say that, bearing in mind the issues that were raised, if they had all been pursued it would have been more work for him. I would like to, from Dr Heather’s point of view, cut down the costs of claim, which are £4,829.31. But I do think that when the court receives what it regards in all fairness as an entirely reasonable claim for costs, going through it, looking at the number of hours spent and the rates and the charges, I am bound to say that I think it would simply be unfair on the Law Society if I was to cut these costs significantly. I will run them down to £4,500 but I certainly do not think I should go further than that to assist Dr Heather. But I do appreciate that if this matter were to go to assessment in the normal way the chances are there would be some reduction, but doing the best I can it simply would be unfair to reduce it below £4,500. So I will award £4,500. MR MARRIOTT : Thank you my Lord. LORD NEUBERGER : Thank you both very much. How long do you want to pay the costs, Mr … Dr Heather? DR HEATHER : Just the normal … LORD NEUBERGER : Four weeks? DR HEATHER : 28 days, yes. LORD NEUBERGER : Alright? MR MARRIOTT : I am content with that my Lord. LORD NEUBERGER : Good. Thank you very much and thank you very much for letting me have the book. I’ll make sure you get it back. Thank you.