Casson v The Law Society for England & Wales
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maddison,Lord Justice Richards |
| Judgment Date | 20 October 2009 |
| Neutral Citation | [2009] EWHC 1943 (Admin) |
| Docket Number | Case Nos: CO/188/2009 & CO/815/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 October 2009 |
[2009] EWHC 1943 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE SOLICITORS'
DISCIPLINARY TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Mr Justice Maddison
Case Nos: CO/188/2009 & CO/815/2009
The Appellants in Person
Mr Michael McLaren QC (instructed by Townshends LLP) &
Ms Jayne Willetts (Solicitor Advocate, Townshends LLP) for the Respondent
Hearing date: 7 July 2009
Mr Justice Maddison:
This is the appeal of Michael Casson and Melvin Wales pursuant to section 49 of the Solicitors' Act 1974 (“the 1974 Act”) against the decision of the Solicitors' Disciplinary Tribunal (“SDT”) dated 21 October 2008, by which each of them was reprimanded and ordered to pay the costs of and incidental to the proceedings. The SDT also made an enforcement order to which I will refer in more detail later.
The appellants were formerly partners in the solicitors' firm of Lee Davies & Co at premises in Harlow Essex. The clients of that firm included two to whom I will refer as Mr D and Ms S. Mr D instructed the firm in 2001 in relation to ancillary relief proceedings. Ms S instructed the firm in 2003 in relation to the sale of property.
On 25 May 2004 Lee Davies & Co ceased to practice, and the appellants became partners in the firm of Lee Davies LLP which practised from the same premises in Harlow.
On 16 February 2005 both appellants were adjudged bankrupt and Lee Davies LLP ceased to practise.
On 22 March 2005 Mr D made a complaint to the Legal Complaints Service (“LCS”), alleging inadequate professional services on the part of the appellant Mr Casson. The complaint was disputed by Mr Casson and investigated by the LCS. Whilst that investigation was proceeding, both appellants were discharged from their bankruptcies on 16 February 2006.
On the completion of its investigation into Mr D's complaint, the LCS prepared a report which was submitted for his consideration to an adjudicator, Mr Ray Lawley. On 20 October 2006 Mr Lawley ruled that Mr Casson had indeed provided inadequate professional services for Mr D, and directed Mr Casson to pay compensation of £1945.56 within 7 days. Mr Casson did not comply with that direction.
On 6 December 2006 Ms S complained to the LCS, alleging inadequate professional services on the part of both appellants. This complaint too was contested and was investigated by the LCS. A report was submitted to an adjudicator, in this case Mr Stuart Waterworth.
On 22 May 2007 Mr Waterworth ruled that the appellants had indeed provided inadequate professional services for Ms S, and directed them to pay her compensation of £3587.20 within 7 days. Neither appellant complied with that direction.
Disciplinary proceedings were then brought by the Law Society in the SDT arising out of the failure of the appellants to observe the adjudicators' directions to pay the sum of compensation to which I have referred. First, on 26 October 2007, the Law Society applied for Mr Casson to answer an allegation that he had been guilty of conduct unbefitting a solicitor in relation to Mr D. Then, on 14 January 2008, the Law Society applied for both appellants to answer an allegation that they had been guilty of professional misconduct in relation to Ms S. The Law Society also sought an order pursuant to paragraph 5(2) of Schedule 1A to the 1974 Act that the direction of the adjudicator Mr Waterworth in relation to Ms S's complaint be treated for the purposes of enforcement as if it were contained in an order made by the High Court.
On 1 May 2008 the SDT determined a preliminary issue raised by both appellants. The appellants' principal argument was that because the complaints of Mr D and Ms S both related to services provided by the appellants before they were adjudged bankrupt, any debts or liabilities arising in that connection were “bankruptcy debts” from which, by virtue of sections 281(1) and 382(1) of the Insolvency Act, 1986 (“the 1986 Act”) they had been released when their bankruptcies were discharged. Thus their failure to pay the sums awarded by the adjudicators should not have resulted in disciplinary procedures. The Law Society countered that the making of an award by an adjudicator involved the exercise of a discretion; that a debt or liability arose only if and when the discretion was exercised to make an award; that such a discretion in the instant case was exercised by each of the adjudicators concerned after the commencement of the appellants' bankruptcies; and that the debts or liabilities arising from the adjudicators' awards were therefore not “bankruptcy debts”.
The SDT was referred to a number of statutory provisions and to a number of authorities to which it will be convenient to refer at this stage.
I begin with the provisions of the 1974 Act governing the procedure by which dissatisfied clients of solicitors may complain to the LCS about inadequate professional services. This system, a creature of statute, is entirely distinct from the right of solicitors' clients to commence actions in the courts alleging tort and/or breach of contract. There is a degree of overlap, to the extent that a particular failing on the part of a solicitor might prompt either a complaint to the LCS or a court action. But there are many differences between the two procedures. For example, a complaint might be made to the LCS about a solicitor's failure to answer correspondence which could not found a court action for tort or breach of contract. On the other hand, the LCS will not usually investigate cases where a solicitor's judgment is in question. A successful court action based on breach of contract or tort will result in an award of damages, whereas a successful complaint to the LCS will not necessarily result in any award of compensation at all.
In relation to complaints to the LCS, section 37A of the 1974 Act provides:
“Schedule 1A shall have effect with respect to the provision by solicitors of services which are not of the quality which it is reasonable to expect of them.”
Schedule 1A is entitled “Inadequate Professional Services”. Its provisions which are relevant to these appeals are as follows:
“1(1) The Council may take any of the steps mentioned in paragraph 2 (“the steps”) with respect to a solicitor where it appears to them that the professional services provided by him in connection with any matter in which he or his firm have been instructed by a client have, in any respect, not been of the quality which it is reasonable to expect of him as a solicitor.”
“1(2) The Council shall not take any of the steps unless they are satisfied that in all the circumstances of the case it is appropriate to do so.”
“1(3) In determining in any case whether it is appropriate to take any of the steps, the Council may –”
(a) have regard to the existence of any remedy which it is reasonable to expect to be available to the client in civil proceedings; and
(b) where proceedings seeking any such remedy have not been begun by him, have regard to whether it is reasonable to expect him to begin them.
“2(1) The steps are –”
a) determining that the costs to which the solicitor is entitled in respect of his services (“the costs”) are to be limited to such amount as may be specified in the determination and directing him to comply, or to secure compliance, with such one or more of the permitted requirements as appear to the Council to be necessary in order for effect to be given to their determination;
(b) directing him to secure the rectification, at his expense or that of his firm, of any such error, omission or other deficiency arising in connection with the matter in question as they may specify;
(c) directing him to pay such compensation to the client as the Council sees fit to specify in the direction;
(d) directing him to take, at his expense or at that of his firm, such other action in the interests of the client as they may specify.
“2(3) The power of the Council to take any such steps is not confined to cases where the client may have a cause of action against the solicitor for negligence.”
“3(1) The amounts specified in a direction by virtue of paragraph 2(1)(c) shall not exceed £15,000.”
“5(1) If a solicitor fails to comply with a direction given under this Schedule, any person may make a complaint in respect of that failure to the Tribunal; but no other proceedings whatever shall be brought in respect of it.”
“5(2) On the hearing of such a complaint the Tribunal may, if it thinks fit …. direct that the direction be treated, for the purpose of enforcement, as if it were contained in an order by the High Court.”
The Council referred to in these provisions is the Council of the Law Society. In practice its functions under Schedule 1A are delegated to adjudicators such as Mr Lawley and Mr Waterworth. The Tribunal referred to in paragraphs 5(1) and 5(2) is the SDT.
I turn to the Insolvency Act 1986 (“the 1986 Act”).
By section 281(1):
“…. where a bankrupt is discharged, the discharge releases him from all bankruptcy debts….”.
Section 382(1) provides:
“'Bankruptcy debt' in relation to a bankrupt, means ….any of the following:
a) any debt or liability to which he is subject at the commencement of the bankruptcy;
b) any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commencement of the bankruptcy”.
Section 382(3) provides:
“For the...
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