Adeorike Martina Nicki Adesemowo (First Appellant) Tayo Alafe-Aluko (Second Appellant) v Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 14 June 2013 |
| Neutral Citation | [2013] EWHC 2020 (Admin) |
| Date | 14 June 2013 |
| Docket Number | CO/8642/2012 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 2020 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Lang
CO/8642/2012
The First Appellant did not appear and was not represented
The Second Appellant appeared in person
Mr A Solomon (instructed by Bevan Brittan LLP) appeared on behalf of the Respondent
The Second Appellant appeals against the decision of the Solicitors Disciplinary Tribunal (hereinafter "the Tribunal") dated 12 July 2012.
The First Appellant's appeal was formally dismissed by the High Court on 15 January 2013, after she informed the court that she did not wish to pursue it.
The First and Second Appellants were partners in the firm of Adesemowo & Co. The First Appellant was the senior partner from the firm's inception in April 2000. The Second Appellant was a salaried partner from January 2008 until the firm's closure on 29 June 2010.
The allegation against them was that they failed to pay: (1) the premium due for indemnity insurance for the indemnity year 2008/2009 within the prescribed period; and (2) the premium due for indemnity insurance for the indemnity year 2009/2010 within the prescribed period. Therefore they were in "policy default", in breach of rule 16(2) of the Solicitors' Indemnity Insurance Rules 2008 and 2009.
The allegation was admitted by the Appellants, and the Tribunal found it substantiated beyond reasonable doubt.
The First Appellant was ordered to pay a fine of £7,500 and costs in the sum of £1,500. The Second Appellant was ordered to pay a fine of £5,000 and costs in the sum of £3,879.08.
The scope of the appeal
Section 49(1) of the Solicitors Act 1974 confers a statutory right of appeal from decisions of the Tribunal to the High Court. The Respondent submitted that the hearing should be by way of review; the Second Appellant submitted it should be by way of rehearing.
CPR rule 52.11 provides, so far as is material:
"Hearing of appeals
52.11
(1) Every appeal will be limited to a review of the decision of the lower court unless –
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
…
(3) The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence."
Neither the Solicitors Act 1974, nor the Practice Direction to part 52 specify whether this appeal is to be by way of rehearing or review. PD 52 paragraph 22.3(3) lists statutory appeals from other professional regulatory bodies which are to be heard by way of rehearing, but appeals from the Law Society are not included in the list. Therefore, by virtue of rule 52.11(1), the starting point is that the appeal is by way of review.
2. In the past, appeals against the Tribunal have been conducted as reviews, not as rehearings. In Law Society v Salsbury [2008] EWCA Civ 1285, [2009] 2 All ER 487, Jackson LJ said at 498 [30]:
"It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review; see CPR rule 52.11(1)."
4. I do not consider that it is in the interests of justice in this case to depart from the usual practice and to hold a rehearing instead of a review. The nature of a review is flexible, as explained by Aldous LJ in EI Du Pont De Nemours & Company v ST Dupont [2003] EWCA Civ 1368, [2006] 1 WLR 2793, at paragraphs 92 to 94 and 96:
"92. Rule 52 of the Civil Procedure Rules draws together a very wide range of possible appeals … It encompasses, not only appeals where the lower court was itself a court, but also statutory appeals from decisions of tribunals, ministers or other bodies or persons. Within the court system, it applies to an appeal from a district judge to a circuit judge, just as it applies to an appeal from a High Court Judge to the Court of Appeal. Subject to rule 52.1(4) and paragraph 17.1(2) of the practice direction, it applies to a wide variety of statutory appeals where the nature of the decision appealed against and the procedure by which it is reached may differ substantially. It does not apply (other than on an appeal) to judicial review, which is the subject of Part 54.
93. It is accordingly evident that rule 52.11 requires, and in my view contains, a degree of flexibility necessary to enable the court to achieve the overriding objective of dealing with individual cases justly …
94. As the terms of rule 52.11(1) make clear, subject to exceptions, every appeal is limited to a review of the decision of the lower court. A review here is not to be equated with judicial review. It is closely akin to, although not conceptually identical with, the scope of an appeal to the Court of Appeal under the former Rules of the Supreme Court. The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material. Rule 52.11(4) expressly empowers the court to draw inferences …
…
96. Submissions to the effect that an appeal hearing should be a rehearing are often motivated by the belief that only thus can sufficient reconsideration be given to elements of the decision of the lower court. In my judgment, this is largely unnecessary given the scope of a hearing by way of review under rule 52.11(1) …"
I respectfully agree with these observations and I am satisfied that the scope of the review which the court can carry out in an appeal of this nature means it is unnecessary to hold a rehearing.
Referral to the Tribunal
5. The Second Appellant's primary ground of appeal was that the Tribunal erred in rejecting his submission that his case should not have been referred to the Tribunal by the Solicitors Regulation Authority ("the SRA").
6. The SRA is the independent regulatory body of the Law Society. It exercises monitoring, regulatory, investigative, adjudication, disciplinary, intervention, prosecution and enforcement powers vested in the Law Society. Among its other responsibilities, the SRA carries out investigations in relation to the conduct of solicitors and their employees. In the light of the outcome of any such investigation, it decides what, if any, further regulatory or disciplinary action to take. In order to decide whether to refer a matter to the Solicitors Disciplinary Tribunal ("the SDT"), the SRA applies its published Code for Referral. Under the Code, the conduct of a solicitor will only be referred to the Tribunal by the SRA if both an evidential test and a public interest test are met.
7. The Code for Referral to the Tribunal reads as follows:
"1. The conduct of a solicitor will only be referred to the Solicitors Disciplinary Tribunal if two tests are passed:
1) The evidential test
2) The public interest test
The evidential test
2. The SRA must be satisfied that there is enough evidence to provide a 'realistic prospect' that the regulated person will be found guilty of misconduct, taking into account what the regulated person's case in response may be and how that is likely to affect the SRA's case. A realistic prospect of a finding of misconduct is an objective test. It means that the SDT, properly directed in accordance with the law, is more likely than not to make a finding of misconduct against the regulated person.
3. In deciding whether there is enough evidence to proceed, the SRA must consider whether the evidence can be used and is reliable.
The public interest test
4. the public interest must be considered in each case when the evidential test has been fulfilled. A case will normally be referred to the SDT if a finding of misconduct there is likely to lead to a fine exceeding the maximum that can be imposed from time to time by the SRA (currently £2,000), a suspension, a strike off, or the imposition of any other order that the SRA is not empowered to make, unless there are public interest factors tending against that course of action which clearly outweigh those tending in favour.
5. The factors for and against pursuing the case to the SDT should be balanced carefully and fairly. Public interest factors that can affect a decision to pursue the case usually depend on the seriousness of the misconduct or the circumstances of the regulated person."
The Code then sets out a list of public interest factors for and against prosecution, although these are not intended to be exhaustive.
8. Following an investigation, on 23 June 2011 the SRA decided that the evidential and public interest tests were met in this case. A solicitor was then appointed by the SRA to review the case and formulate allegations for referral to the...
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