R (Dean & Dean) v Law Society & Their Agents
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PITCHFORD |
| Judgment Date | 06 November 2008 |
| Neutral Citation | [2008] EWHC 2980 (Admin) |
| Date | 06 November 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9641/2008 |
[2008] EWHC 2980 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
MR JUSTICE PITCHFORD
CO/9641/2008
Mr Ian Ridd and Mr Peter Herbert (instructed by Messrs Radcliffes Le Brasseur) appeared on behalf of the Claimant
Mr Hodge Malek QC and Mr Andrew Tabachnik (instructed by Messrs Russell-Cooke) appeared on behalf of the Defendant
The claimant Dean & Dean is a firm of solicitors. It is regulated by the Law Society, the defendant. This is an application for permission to apply for judicial review of the defendant's decision of 8th October 2008 to require the production of documents and information by the claimant firm. The claimant is represented by Mr Ian Ridd and the defendant by Mr Hodge Malek QC and Mr Andrew Tabachnik.
The information placed before me for hearing is contained in eight lever arch files, which I do not pretend to have read in full or anything like it. I was, at the outset of argument, reassured that it would be unnecessary to consider every single document and there is a good reason for that. I am in receipt of skeleton arguments from each side which draw my specific attention to those documents which need to be considered and the parties can rest assured that I have examined each of those documents together with several others.
The Law Society performs its monitoring, investigative and disciplinary functions through the Solicitors Regulation Authority. Dr Shahrokh Mireskandari is the senior partner of the claimant firm.
Complaints against solicitors are made to and investigated by the defendant's Legal Complaints Service. The LCS is primarily concerned with the quality of professional services provided by a solicitor and redress for a complainant where that is appropriate, following investigation. The Solicitors Regulation Authority (or SRA) is primarily concerned with investigation of alleged professional misconduct. While these functions are separated, investigation of professional misconduct may and often does arise from complaints received by LCS.
During the period 2003 to 2008 LCS received some 39 complaints about the firm and Dr Mireskandari. It is not suggested, and I have seen no evidence to the effect, that there is anything particularly unusual about a firm receiving complaints from disappointed clients. I mention the fact only to demonstrate that there were ongoing enquiries into such matters.
During the course of investigation of one or more complaints, the Casework Investigations and Operations Unit were led at first to focus upon Dr Mireskandari's qualification to practice as a solicitor in England and Wales.
On 3rd October 2008, Helen Stacey of the investigations unit wrote to Dr Mireskandari seeking a detailed response within 22 days to several specific questions relating to his background, his academic career and his applications for admission as a solicitor of the Supreme Court, for exemption from the Common Professional Examination Course and for a reduction in the period of the required training contract.
Three days later, on 6th October 2008, Investigation Officer Tracy Townsend presented a memorandum to Michael Calvert, head of forensic investigations at the SRA, seeking authority for the issue of notices under section 44B of the Solicitors Act 1974 and Rule 34 Solicitors Accounts Rules 1998. Ms Townsend was in overall supervision of ongoing investigation into complaints against the firm.
The power to issue a notice arises under section 44B and is described as follows:
“(1) Where the Council are satisfied that it is necessary to do so for the purpose of investigating:
a. whether there has been professional misconduct by a solicitor;
B. whether a solicitor has failed to comply with any requirement imposed by or by virtue of this Act or any rules made by the Council;
C. whether any professional services provided by a solicitor were not of the quality which it is reasonable to expect of him as a solicitor;
…
the Society may give notice to the solicitor or his firm requiring the production or delivery to any person appointed by the Society, at a time and place to be fixed by the Society, of all relevant documents in the possession of the solicitor or his firm.”
The solicitor's obligation to comply with a notice arises under Rule 34 of the Solicitors Accounts Rules 1998 which provides:
“(1) Any solicitor must at the time and place fixed by the Society produce to any person appointed by the Society any records, papers, client and controlled trust matter files, financial accounts and other documents, and any other information, necessary to enable preparation of a report on compliance with the rules.
…
(8) Without prejudice to paragraph (1) above, any solicitor must produce documents relating to any account kept by the solicitor at a bank or with a building society:
(a) in connection with the solicitor's practice; or
(b) in connection with any trust of which the solicitor is or formerly was a trustee,
For inspection by a person appointed by the Society for the purpose of preparing a report on compliance with the rules or on whether the account has been used for or in connection with a breach or any other rules, codes or guidance made or issued by the Council of the Society.”
Further obligations upon a solicitor receiving such a notice are imposed by Rule 20 of the Solicitors Code of Conduct 2007.
Michael Calvert was the individual responsible for making the judgment whether the issue of a without notice notice should proceed.
Tracey Townsend's memorandum summarised the investigations in respect of which she required access to documents in the firm's possession.
(1) Angel Airlines
The claimant firm was in dispute with the former client, Mr Azad about a solicitor and own client costs bill exceeding £400,000. In the course of his evidence before the costs judge, Dr Mireskandari made claims about his qualifications which the defendant was in the process of investigating.
The costs judge commented during his judgment on 26th September 2005 that the firm had allowed the office account to be used for unusual purposes, namely the transfer of money between Mr Azad, Dr Mireskandari and Dr Mireskandari's brother.
Thirdly, the costs judge made adverse findings about the authenticity of attendance notes and other documents produced and supported by Dr Mireskandari during his evidence.
However, the proceedings involving Angel Airlines did not terminate in September 2005. They continued, as I shall describe in a moment, until 30th June 2008.
(2) Brabners Chaffe Street LLB
Complaint was received on 3rd June 2008 by LCS from the complainant Brabners Chaffe concerning the professional conduct of Dr Mireskandari while acting for the Tower Group of companies or at least some of them. One of those complaints concerned the alleged placement of clients' money not in the firm's account but in Dr Mireskandari's personal account and Dr Mireskandari's alleged use of his professional position to secure substantial loans from his clients for personal advantage.
(3) Natela Grinina
On 7th May 2008, Jack J gave judgment in the action Dean & Dean v Natela Grinina (claim 08/1470). The firm was seeking to recover solicitor and own client costs. It obtained a without notice freezing order against their former client without disclosing to the judge three significant facts which the solicitor's obligation to the court required. The affidavit sworn in support of the application was made by Dr Mireskandari.
Tracey Townsend brought to Mr Calvert's attention factors which in her view required urgent action to preserve relevant documents. She concluded her memorandum as follows:
“The reason for urgency is that there now appears to be evidence of dishonesty towards the Law Society by Dr Mireskandari as referred to in the EWW. Secondly, the press reports in the Daily Mail have alerted Dr Mireskandari and hence there may be a risk that material evidence may be interfered with and/or of flight. Thirdly, you will note that in some of the complaints there are suggestions that documents have been backdated or created for the purposes of litigation. Fourthly, clients reading the articles in the Daily Mail may be concerned to transfer their cases to other firms, in which case records may be removed. Fifthly, there is the suggestion that some files are already being removed, albeit this can be for entirely legitimate reasons, or to remove documents out of reach of persons investigating the conduct of Dr Mireskandari.
You are aware that I am awaiting your decision to inspect the firm pursuant to Rule 34 Solicitors Accounts Rules 1992.
Many thanks. If you have any queries, please speak to me.”
It was apparent that the press was aware from sources at present not known that Dr Mireskandari was indeed under investigation. The Law Society had received intelligence about the removal of files although, as I have just read from Ms Townsend's memorandum, she acknowledged that there might have been a purely legitimate purpose.
There was provided for Mr Calvert two bundles of documents called the Decision Makers bundle and the Inspection Bundle against which he was able to measure the merits of the application for authority to issue a notice which was being sought from him. Those bundles are largely contained in the eight lever arch files which have been presented for the purposes of this hearing.
Mr Calvert was particularly...
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...to take possession of them on behalf of the Society." 22 These powers came before the court in the case of Dean & Dean, R (on the application of) v The Law Society and Their Agents [2008] EWHC 2980 (Admin) before Pitchford J. The case was an application by Dean & Dean for a judicial review ......