Malik Mohammed Nazeer v Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lavender |
| Judgment Date | 14 January 2019 |
| Neutral Citation | [2019] EWHC 37 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/798/2018 |
| Date | 14 January 2019 |
[2019] EWHC 37 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Lavender
Case No: CO/798/2018
Geoffrey Williams QC (instructed by Malik & Malik) for the Appellant
Rory Dunlop (instructed by Capsticks Solicitors LLP) for the Respondent
Hearing date: 26 September 2018
(1) Introduction
This is an appeal against certain aspects of a decision of the Solicitors Disciplinary Tribunal dated 1 February 2018. The Appellant contends that the Tribunal was wrong:
(1) to find one of the allegations against him proved;
(2) to impose a fine of £20,000 on him; and
(3) to impose certain conditions on him. Those conditions were as follows:
“2.1 The First Respondent may not:
2.1.1 Practise as a sole practitioner or sole manager or sole owner of an authorised or recognised body;
2.1.2 Be a partner or member of a Limited Liability Partnership (LLP), Legal Disciplinary Practice (LDP) or Alternative Business Structure (ABS) or other authorised or recognised body;
2.1.3 Be a Compliance Officer for Legal Practice of a Compliance Office for Finance and Administration;
2.1.4 Work as a solicitor other than in employment approved by the Solicitors Regulation Authority.”
I heard this appeal on 26 September 2018, but invited written submissions thereafter on certain issues. The last of these was dated 8 October 2018. Mr Dunlop then drew my attention to the judgment of Butcher J in Nna v Health and Care Professions Council [2018] EWHC 2967 (Admin), which he contended was relevant to the present appeal. That judgment was given on 17 October 2018, but a full transcript was not immediately available. I invited submissions from the parties on that judgment. The last of these was dated 21 November 2018. This judgment was sent to the parties in draft on 21 December 2018.
CPR 52.21(3) provides that:
“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.”
This is an appeal from a specialist tribunal whose understanding of what the solicitors' profession expects of its members deserves respect.
(2) The Appellant and his Firm
The Appellant, who was born in October 1964, was admitted to the roll of solicitors on 2 April 1997. At all material times he practised with his brother, Malik Mohammed Saleem, in partnership under the firm name Malik & Malik Solicitors or, following incorporation, as directors of Malik & Malik Limited. I will refer to the firm or company as Malik & Malik or the firm.
By November 2017 Malik & Malik employed 18 people: 6 assistant solicitors, 2 prospective trainees, 2 unadmitted fee earners and 8 support staff. 80% of Malik & Malik's fee income came from immigration work. I am told that 16 of the firm's employees worked in the immigration department. The Appellant's brother was the head of the immigration department. One of the solicitors who worked for Malik & Malik in the immigration department has been referred to in this case as Person A. He was the individual at Malik & Malik who dealt with certain clients who have been referred to as client 8 and client 9. Person A worked under the supervision of the Appellant's brother.
The Appellant specialised in criminal law. He was responsible for the general management and administration of the firm. He was the Compliance Officer for Legal Practice and Compliance Officer for Finance and Administration. The duties of a Compliance Officer for Legal Affairs (also known as a “COLP”) are set out in rule 8.5(c) of the SRA Authorisation Rules 2011 as follows:
“The COLP of an authorised body must:
(i) take all reasonable steps to:
(A) ensure compliance with the terms of conditions of the authorised body's authorisation except any obligations imposed under the SRA Accounts Rules;
(B) ensure compliance with any statutory obligations of the body, its managers, employees or interest holders or the sole practitioner in relation to the body's carrying on of authorised activities; and
(C) record any failure so to comply and make such records available to the SRA on request; …”
Paragraph (vii) of the accompanying guidance notes states as follows:
“COLPs and COFAs are responsible for ensuring that the firm has systems and controls in place to enable the firm, as well as its managers and employees and anyone who owns any interest in the firm, to comply with the requirements on them. The firm and its managers are not absolved from any of their own obligations and remain fully responsible for compliance (see Rule 8.1).”
It is by now well known that the process of this court is open to abuse in immigration cases if applications for judicial review are made which have no merit, but which are brought solely for the purpose of delaying the removal of an individual from the United Kingdom. The courts have repeatedly warned solicitors of their responsibilities in this regard. For instance, in Madan v Secretary of State for the Home Department [2007] EWCA Civ 770, a case concerning judicial review proceedings brought just before the proposed removal of the Claimants, Buxton LJ said as follows in paragraph 8:
“We mention now one unsatisfactory feature of both of these cases, which is that serial applications were made for reconsideration on the basis of changed circumstances. Before making such an application, which is very demanding on public resources, advisers need to consider very carefully whether the application is justified. It will amount to professional misconduct to make an unjustified application with a view to postponing the implementation of a previous decision.”
The Claimants' solicitors in that case were Malik & Malik. Buxton LJ said as follows about their conduct of the matter, in paragraph 14:
“We have seen that the process with which Mitting J was concerned was initiated, and brought before the judge, on the very day on which removal was to take place, despite the solicitors having known, in the case of Mr Kapoor for several months, that deportation had been ordered. Mitting J concluded that the delay was deliberate, in order to make it impossible for proper judicial consideration to be given to the underlying merits. He was quite right to say that proper consideration could not be given to the merits: hence, in part, this court being obliged, reluctantly, to remit the matter to the Administrative Court. It is also wholly understandable that on the material and submissions made to him the judge thought that the applications were an abuse. We have now received from the solicitors a 120 paragraph witness statement which, although revealing a most unsatisfactory state of affairs, denies any deliberate misleading of the court. We accept that denial at face value, but set out how in other ways these matters were conducted unsatisfactorily.”
That was in 2007. Between then and 2014 Malik & Malik had to appear on three occasions before the court pursuant to the procedure set out in R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 Admin. The third of those appearances was in 2014 in R (Butt) v Secretary of State for the Home Department [2014] EWHC 264 Admin, when the President of the Queen's Bench Division, Sir Brian Leveson, said as follows in paragraphs 16 to 18 of his judgment:
“16. The final case before the court is slightly different. In one sense in R (Patel) v Secretary of State for the Home Department, the solicitors, Messrs Malik & Malik, present a particularly serious problem given that they have twice before appeared in Hamid courts. However, the explanation for what is conceded to have been an abusive application in this case is based upon the dishonesty of an employee who felt pressured to make the application and to deceive the senior partner into signing the appropriate cheque to pay the court fee.
17. It is not necessary to enter into the merits of the particular case. The relevant employee has undergone disciplinary proceedings and been dismissed. He himself has signed a statement for the court apologising fully and unreservedly and with the highest degree of shame and embarrassment, not blaming anyone but himself for his actions. The senior partner of the firm of solicitors also expressed his mortification in having to appear before the court in these circumstances. We recognise that the unauthorised actions of a trusted individual are difficult to stop. The firm will have to reflect upon what the senior partner needs to see before signing cheques on the firm's behalf, and will doubtless have learnt a salutary lesson in relation to this particular problem.
18. In the circumstances, although reading the papers before seeing this explanation we were minded to refer this firm to the Solicitors Regulation Authority, we have decided not to take that step but to accept the apology. Again, the firm will write to the Administrative Court Office identifying what steps it has taken to improve its procedures to ensure that this will not happen again. It is almost inconceivable that Malik & Malik will survive a further referral to a Hamid court.”
As Mr Dunlop submitted, it is hard to think of a starker warning from the judiciary than that delivered to Malik & Malik in the case of Patel. Moreover, the judgments in Madan and Patel mean that there is no substance in Mr Williams' submission that the Appellant “had no reason not to trust [his brother] to supervise [immigration] work efficiently.” On the contrary, the Appellant had every reason to believe that the immigration department, as supervised by his brother, was behaving improperly and that it was his duty as COLP to do...
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