Ellis v Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Bidder |
| Judgment Date | 01 November 2016 |
| Neutral Citation | [2016] EWHC 2836 (Admin) |
| Docket Number | CO/1930/2016 |
| Date | 01 November 2016 |
| Court | Queen's Bench Division (Administrative Court) |
[2016] EWHC 2836 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Bidder
(Sitting as a Deputy Judge of the High Court)
CO/1930/2016
The Appellant appeared in person
Mr Philip Ahlquist (instructed by Solicitors Regulation Authority) appeared on behalf of the Respondent
This is an appeal against a decision of the Solicitors Disciplinary Tribunal dated 17 March of this year refusing the appellant's application for the lifting of an indefinite suspension. Mr Ellis, the appellant, appears before me and has acted throughout in person.
The background to this appeal is as follows. Mr Ellis, who is now I think 56 years old, was admitted as a solicitor in October 1987. As at the hearing of the Solicitors Disciplinary Tribunal, "SDT", of 29 September 2009 at which an indefinite suspension was imposed upon him, his name remained on the roll of solicitors.
In his application to terminate the suspension, he said that he started working as an in-house solicitor for PolyGram, which later became Universal Music. He negotiated contracts for acquiring rights in and licensing of recordings and did intellectual property law relating to the music industry. He was made redundant from Universal Music in 1992 or 1993, following which he did some legal consultancy work in the music business. Then, according to his application, and I do not think there is any great dispute about the contents of the application, he set up in practice as a solicitor, the name of his firm being Ellis Solicitors, specialising as an entertainment lawyer.
According to him, he negotiated recording services, music writing contracts and contracts for various services to do with the music entertainment business. He has never undertaken reserved work, that is, for example, work as a higher court advocate or conveyancing work which requires specific qualifications, or general high street solicitor work. The work that he was doing fell away. He got into debt. He had an unhappy divorce. His father became very ill and, sadly, died. It is reasonably clear, and he himself acknowledges this, that things got on top of him and he rather buried his head in the sand.
Eventually, the flat which was his practice address was repossessed and he was made bankrupt for debts that in total were in excess of £120,000. After his flat was repossessed, he moved to his current address in Hanwell. By a letter of 8 January 2008, he wrote to the Law Society records department stating that he had already informed them that he would not be seeking a practising certificate as his practice had ceased. The Law Society then emailed and wrote to him asking for information connected with the closer of his firm and the Solicitors Regulation Authority, "SRA", carried out, on notice to him, an inspection of his books of account.
He had not obtained run-off indemnity insurance. He was unable to file a final accountant's report, because of his financial difficulties. The report for the year ending 30 April 2006 remained outstanding. He was given notice to make representations to the SRA, but he failed to respond to correspondence. The matter was referred to an adjudicator and, thence, to the SDT. The appellant did not appear at the Tribunal, but he admitted five allegations against him:
i. "1. He closed his firm, Ellis Solicitors, in July 2006 without notifying the Solicitors Regulation Authority contrary to s.84(1) of the Solicitors Act 1974.
ii. 2. He failed to notify his insurers of the firm's closure and failed to obtain the requisite run-off insurance cover for the firm contrary to Rule 2.8 of the Solicitors Indemnity Insurance Rules 2006.
iii. 3. He failed to deliver certified accounts for the firm, Ellis Solicitors, for the year ending 30 April 2006 to The Law Society contrary to s.34 of the Solicitors Act 1974 and Rule 36(5) of the Solicitors Accounts Rules 1998.
iv. 4. He failed to deliver certified accounts for the firm, Ellis Solicitors, for the period 1 May 2006 to the date that he ceased to hold client monies to The Law Society contrary to s.34 of the Solicitors Act 1974 and Rule 37(5) of the Solicitors Accounts Rules 1998.
v. 5. He failed to respond to the correspondence from the Solicitors Regulation Authority promptly or at all."
He made various points to the SDT in mitigation by a letter dated 28 September 2009. The Tribunal undoubtedly took that letter into account, but regarded the allegations, which they found to be proved, he not contesting those allegations, to be serious and ordered him to be suspended from practice as a solicitor for an indefinite period beginning on 29 September 2009. They also ordered him to pay costs in the sum of £4,085.92. It is one of the facts that he relies on to show that he has rehabilitated himself that he has paid something over half of that and continues to make payments to those costs and the costs of the hearing below, when he is financially able to do so.
The SDT's judgment at tab 2 contains their finding not only that the breaches were proved, as admitted by the appellant, but that the appellant at that time was not fit to practise. He did not appeal against that order. By an application dated 2 March 2015, which can be found at tab 1 in the hearing bundle, he made formal application for an order to bring the suspension to an end. The SDT had jurisdiction to deal with that under section 47(2)(e) of the Solicitors Act 1974. It had power on such an application to make such order as it might think fit and, in particular, had the power to terminate the suspension.
Before the hearing, that application was opposed by a Mr Johal for the SRA whose written representations to the SDT are at divider 3. Mr Johal maintained, given the previous finding of unfitness to practise, that Mr Ellis had produced insufficient evidence of rehabilitation, of his future intentions and of continuous professional development since the suspension for the Tribunal to be satisfied that they could lift the suspension. Mr Ellis also made detailed written representations. They are at divider 4. To those representations, he annexed two letters of reference. One was from a current client of his, a Ms Vanderbilt, who he was assisting as a McKenzie friend in a trademark dispute, and also from a Professor Grower, a qualified solicitor, who had had dealings with him as a fellow media lawyer. The hearing took place on 5 February 2016 with the appellant appearing in person and Mr Johal representing the SRA. The Tribunal's judgment is behind divider 6 in the hearing's bundle.
To summarise the finding of the Tribunal, without going into detail, they considered that they were unable to grant the application as they could not be confident that doing so would not adversely affect the reputation of the legal profession or be contrary to the interests of the public. It concluded that the appellant had not provided sufficient evidence of a change in his circumstances since the suspension was ordered, particularly given the finding of unfitness to practise, and it encouraged the applicant to try and obtain and keep employment within the legal profession for what they thought would be a period of a year to 18 months to show through testimonials from employers, particularly from legally-qualified employers, a change in his approach and his circumstances. They also considered that there was inadequate evidence of continuous professional development.
There were two preliminary matters for me to consider at the outset of this hearing. I simply record that I have done so here. First of all, the respondent initially contended that the appellant had filed his notice of appeal out of time. That he accepted was the case. He therefore needed relief from sanctions as a result. The Solicitors Act 1974 does not provide any specific time for filing a notice of appeal. Therefore, clearly the time limit that was applicable was that imposed by CPR 52.12(2). That is the new rule, formerly 52.4 as modified by Practice Direction 52D. Section 3 in that Practice Direction deals with statutory appeals and 3.3A states:
i. "Where a statement of reasons for a decision is given later than the notice of that decision [as was the case in this particular case] the period for filing the appellant's notices is calculated from the date on which the statement is sent to the appellant."
Mr Ellis relied on what was an inaccurate statement in a textbook, whose editors' blushes I will spare by not naming them, dealing with appeals from the SDT, which said the time ran from the date on which reasons were received. That was inaccurate. He was therefore, in relying on that, a few days late. No prejudice has been suffered by the respondents. They did not resist the application to extend time. It was, in my judgment, not a serious breach. The reasons for the breach were wholly understandable and the circumstances were such that I gave an extension of time to allow the appeal to be heard.
The second matter was an application by the appellant to introduce and to rely on before me new evidence not before the Tribunal in the form of two further testimonials, which I read in order to understand what the application was. One was from a former client, Mr John, a recording artist and performer, who Mr Ellis represented from about 2009 and one from a media producer and writer who would like to instruct Mr Ellis to act for him and has known him in a professional capacity since 2002....
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