Sheikh v Law Society
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Tuckey,Lord Justice Moore-Bick |
| Judgment Date | 23 November 2006 |
| Neutral Citation | [2006] EWCA Civ 1577 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos A3/2005/2073 HC05C00441 |
| Date | 23 November 2006 |
[2006] EWCA Civ 1577
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE PARK)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Tuckey
Lord Justice Moore-Bick
Case Nos A3/2005/2073
A3/2006/1497
HC05C00441
Mr Timothy Dutton QC and Mr Andrew Peebles (instructed by Russell-Cooke Solicitors of 2 Putney Hill, London SW15 6AB) for the Appellant
Mr Gregory Treverton-Jones QC (instructed byRadcliffes Le Brasseur of 5 Great College Street, London SW1P 3SJ)) for the Respondent
These two appeals are from orders made by Mr Justice Park in proceedings brought against by Miss Anal Sheikh, a solicitor, against the appellant, The Law Society of England and Wales ("the Law Society" or "the Society") , following the intervention in her practice under Part II of schedule 1 to the Solicitors Act 1974.
The underlying facts
From 1993 or thereabouts Miss Sheikh carried on practice as a sole practitioner under the name Ashley & Co. The judge described her practice, at paragraph [27] of his judgment, [2004] EWHC 1409 (Ch), in these terms:
". . . The office is in Willesden. Miss Sheikh describes herself as a general practitioner. The largest part of the practice is litigation, and she has done a lot of work where her clients have been legally aided or, since the Access to Justice Act 1999, supported by community funding from the Legal Services Commission. She has also undertaken probate and administration of estates work, sometimes herself being an executrix or administratrix of an estate where the legal work is done by Ashley & Co."
She had no qualified assistant; but she employed a part time bookkeeper, Mr Sampat, and two part time secretaries.
In February 2004 the Law Society decided to exercise its powers of investigation into Miss Sheikh's practice. The reason for that decision has not been disclosed. The judge was prepared to speculate that it may have been prompted by a number of complaints which the Society had received "most of which had been upheld". An inspection was carried out by, amongst others, Mr Shaw, an accountant and a senior investigator with Forensic Investigations, a department within the Society's Compliance Directorate concerned, in particular, with matters arising in connection with the Solicitors Accounts Rules. In the course of the investigation detailed questions were put to Miss Sheikh in six lengthy letters. The writer of those letters was Miss Kirsten Patrick, an officer in Multiple Complaints Investigation, another department within the Compliance Directorate. Miss Sheikh did not reply to any of those letters.
Following investigation Mr Shaw and Miss Patrick prepared a report, to which the judge referred as "the FI Report". Appendix II to the FI Report was a report to the Society from Mr Shelley, a Fellow of the Association of Law Costs Draftsmen, on the level of charges made by Ashley & Co in six probate matters. In accordance with what the judge was told was normal Law Society practice, the FI Report took the form of a letter from Mr Calvert, Head of Forensic Investigations, to Mr Middleton, Head of Investigation and Enforcement in the Compliance Directorate. The letter is dated 22 November 2004. No copy of the report was, at that stage, sent to Miss Sheikh.
On 10 December 2004 Miss Patrick wrote to Miss Sheikh. She set out – at length and in detail over 19 pages – allegations of professional failure which were made against Miss Sheikh; and she requested her comments by 4 January 2005. Miss Sheikh did not reply to that letter by the date specified or at all.
On 23 December 2004 the Society wrote again to Miss Sheikh. That letter enclosed a copy of the FI Report. It informed her that the Society was satisfied that she was in breach of certain of the Solicitors' Accounts Rules (specifying the rules of which she was said to be in breach) and that intervention powers under Part II of schedule 1 to the 1974 Act had become exercisable. Miss Sheikh was invited to comment on the report by 10 January 2005. She did not do so.
Miss Sheikh did not respond to the Society's letter of 23 December 2004, or comment on the FI Report, because she did not read them. The circumstances are described by the judge at paragraph [37] of his judgment:
"Miss Sheikh's evidence was that on the evening of 23 December 2004 . . . she received at home a telephone call from a caseworker at the Law Society . . . . Sarah Bartlett informed Miss Sheikh that the next day there would be a large and important parcel waiting for her at the office; she should be sure to collect it and read it in order to reply by 10 January. Miss Sheikh was going away on holiday with her mother to India on 24 December, the next day . . . She . . . asked for an extension of time. She was told that no extension could be given. She went to India with her mother without collecting the parcel. . . . When she returned to this country the Law Society parcel was waiting for her, but she admitted that she could never bring herself round to opening it. 'The package was obviously there waiting for me. I am ashamed to say that I did not look at it. Ihad a lot of mail there. Idid not deal with it for one reason: Iknew I could not deal with it'. She did not know what was in it, but expected that it would be full of detailed accounting materials as respects which she would need to engage someone else to deal with them because she could not deal with them herself. She was concerned about her ability to look after her current clients. 'I knew, had I attended to this, other clients would be in very serious problems.' She admitted that she had not even opened the parcel by the time of the intervention on 17 and 18 February. 'I am ashamed to say that I was on the point of instructing a solicitor, but I had not. It was there. Iknew I had to deal with it, but I had not. Ihad not … I believed that I knew what was in them, which was a lot of accounting stuff, but I am sorry to say I had not'"
The question whether any, and if so what, steps should be taken by the Society under its statutory powers in the light of the FI Report was referred to an Adjudication Panel of the Compliance Directorate. The panel were to meet on 17 February 2005. In advance of that meeting the caseworker, Miss Sarah Bartlett, prepared notes for their assistance. Those included the following recommendation:
"The office's recommendation, as at the date of preparation of this Report, is that it is not necessary to intervene, on the basis that the public will be adequately protected by the imposition of stringent immediate conditions on Miss Sheikh's practising certificate. However, the matter is finely balanced . . ."
The panel did not accept that recommendation. On 17 February 2005 they expressed themselves satisfied that grounds for intervention existed under Part I of schedule 1 to the Solicitors Act 1974 and resolved that intervention powers under Part II of that schedule should be exercised. The panel reached that conclusion for reasons which are set out, succinctly, in the following terms:
"3. The Panel balanced the need to exercise powers of intervention in order to protect the public and the serious consequences of intervention for a solicitor. The Panel were satisfied that it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in the Forensic Investigations Report dated 22 November 2004.
4. The Panel were further satisfied that it was necessary to exercise powers of intervention in order to protect the public."
A copy of the resolution to intervene was sent to Miss Sheikh, by fax, on the afternoon of 17 February 2005. The Society, through its agents, Russell-Cooke, took control of her practice on the following day. The effect of the intervention was to suspend Miss Sheikh's practising certificate.
The Law Society's powers to intervene in a solicitor's practice
Section 35 of the Solicitors Act 1974 provides that the powers conferred by Part II of schedule 1 to that Act are exercisable in the circumstances specified in Part I of that schedule. Paragraph 1(1) (a) enables the powers to be exercised where "the Council have reason to suspect dishonesty on the part of – (i) a solicitor . . ." Paragraph 1(1) (c) enables the powers to be exercised where "the Council are satisfied that a solicitor has failed to comply with rules made by virtue of section 31, 32 or 37(2) [of the Act]". Those rules include the Solicitors Accounts Rules 1998, made under section 32 of the Act. In the latter case (but not in the former) the powers are not to be exercised unless the Society has given to the solicitor notice that it is satisfied that he has failed to comply with the Accounts Rules (specifying the rules in breach) and that the Part II powers have become exercisable. As I have said, that notice had been given on 23 December 2004. In taking its decision to intervene on 17 February 2005, the panel relied upon both paragraph 1(1) (a) (i) and paragraph 1(1) (c) of Part I, schedule 1.
Paragraph 6, in Part II of schedule 1 to the 1974 Act, is in these terms, so far as material:
"(1) . . . if the Council pass a resolution to the effect that any sums of money to which this paragraph applies, and the right to recover or receive them, shall vest in the Society, all such sums shall vest accordingly . . . and shall be held by the Society on trust to exercise in relation to them the powers...
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