Solicitors Regulation Authority Ltd v Soophia Khan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Arnold,Lord Justice Nugee |
| Judgment Date | 17 February 2022 |
| Neutral Citation | [2022] EWCA Civ 287 |
| Docket Number | Case No: CA-2022-000106 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 287
Lord Justice Arnold
-and-
Lord Justice Nugee
Case No: CA-2022-000106
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
MR JUSTICE LEECH
The Royal Courts of Justice
Strand, London, WC2A 2LL
Alistair MacDonald QC (instructed by Janes Solicitors) appeared on behalf of the Appellant
Rupert Allen (instructed by Capsticks LLP) appeared on behalf of the Respondent
Approved Judgment
This is an appeal by Ms Soophia Khan from an order of Leech J dated 12 January 2022 finding Ms Khan guilty of contempt of court and imposing a sentence of six months in prison. The appeal is only against the sentence imposed by the judge, not against the finding of contempt.
The background is fully set out in the judge's comprehensive judgment also dated 12 January 2022, [2022] EWHC 45 (Ch), to which reference should be made. For present purposes a brief summary will suffice.
Ms Khan is a solicitor who was admitted on 1 November 2006. Prior to 19 August 2021, she was the sole principal and director of Sophie Khan & Co Ltd, a firm of solicitors. On 19 August 2021 Solicitors Regulation Authority Ltd (“the SRA”), which exercises the regulatory functions and powers conferred on the Law Society under the Solicitors Act 1974 (“the 1974 Act”) decided to intervene in Ms Khan's practice. On the same date, the SRA wrote to Ms Khan requiring her to provide all documents in the possession or control of herself or her firm relating to her practice to the SRA's approved intervention agent. In doing so, the SRA was exercising the power conferred under paragraph 9(1) of Schedule 1 to the 1974 Act.
Ms Khan did not comply with that requirement. Accordingly, an application was made to the court by the SRA. On 7 September 2021 Adam Johnson J made an order, among other things, requiring delivery up by Ms Khan of all the practice documents. Again, Ms Khan did not comply with that order. There was an application by the SRA for further relief. On 21 September 2021 Miles J made a second order, among other things, for delivery up of the practice documents. Again, Ms Khan did not comply.
On 16 September 2021 Ms Khan applied to set aside the first of those orders, that is to say, the order made by Adam Johnson J. On 1 October 2021 the SRA applied to commit Ms Khan to prison for her breach of the orders made by Adam Johnson J and Miles J. Towards the end of the pendency of that application, on 9 December 2021 Ms Khan's solicitors wrote to the SRA's solicitors informing them that Ms Khan accepted that there had been non-compliance with the orders of 7 September 2021 and 21 September 2021 and informing them also that she did not intend to offer any evidence in her defence of the application for committal.
On 16 December 2021 a letter was written by Dr Khalid Choudhry of the Al-Waqas Medical Centre in Leicester which was made available to the parties and the court. The content of that letter was accurately summarised by the judge at paragraph 36 of his judgment as follows:
“In the letter he confirmed that Ms Khan was a patient of the practice, that she was suffering from work related stress and anxiety due to the ongoing litigation with the SRA and that it was continuing to have a profound effect on her mental and psychological well-being and affecting her comprehension and understanding of that litigation. He also stated that she was unlikely to be in a mental state to be able to fully evaluate and comprehend the issues before the court in relation to the contempt applications. Finally, he stated that she was being referred to a private psychiatrist in view of her current mental health condition.”
The committal application was heard before the judge on the following day, 17 December 2021. At that hearing counsel acting for Ms Khan applied for the hearing to be adjourned in order that Ms Khan should be able to obtain expert psychiatric evidence as to her condition. The judge refused that application and there is no appeal against his refusal of the adjournment application. The judge reserved judgment at the end of the hearing. In the event, judgment was delivered slightly later than had been originally intended due to intervening events. It was eventually handed down on 12 January 2021.
In the meantime, on 31 December 2021 Ms Khan issued a further application, this time to set aside the second of the two orders to which I have referred, the order made by Miles J on 21 September 2021. On 11 January 2021, that is to say the day before he ultimately handed down his judgment on the committal application, the judge heard and dismissed both of Ms Khan's set aside applications. Again, there is no appeal against his dismissal of those applications.
In his judgment on the committal application of 12 January 2021 the judge found that Ms Khan was indeed guilty of contempt of court as alleged by the SRA. As I have already indicated, there is no appeal against the finding of contempt.
Having reached that conclusion, the judge turned to the question of sanction. There was no dispute before him as to the applicable legal principles, which he summarised at paragraph 52 of his judgment in terms derived from the skeleton argument prepared by counsel then appearing for Ms Khan.
He also set out at paragraph 53 a list of criteria for the assessment of the seriousness of contempt, most of which derives ultimately from the judgment of Lawrence Collins J (as he then was) in the case of Crystal Mews Ltd v Metterick [2006] EWHC 3087 (Ch) at paragraph 13. Those criteria are worth setting out again. They are as follows:
“(a) whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy;
(b) the extent to which the contemnor has acted under pressure;
(c) whether the breach of the order was deliberate or unintentional;
(d) the degree of culpability; (e) whether the contemnor has been placed in breach of the order by reason of the conduct of others;
(f) whether the contemnor appreciates the seriousness of the deliberate breach;
(g) whether the contemnor has co-operated.”
Then a point added by Popplewell J in Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd [2015] EWHC 3748 (Comm):
“(h) whether there has been any acceptance of responsibility, any apology, any remorse or any reasonable excuse put forward.”
Having set those criteria out and having reminded himself that this Court has re-emphasised that a sentence of imprisonment should only be imposed if nothing less than a custodial sentence is justified (see Financial Conduct Authority v McKendrick [2019] EWCA Civ 524), the judge went on to work his way systematically through each of the criteria that I have mentioned.
His starting point before considering the individual criteria was that, as he explained at paragraph 55, he considered that the contempt of court was a serious one. Ms Khan had admitted breaches of two orders which were clear on their face. He had found that Ms Khan knew she was acting in breach of them and understood the consequences of the failure to comply with them. Moreover, it was necessary for the SRA to obtain those orders to compel Ms Khan to comply with her obligations to her regulator. Her failure to comply with the orders involved not only an attack on the administration of justice, but also defiance of her regulator. The powers of the SRA to intervene in a solicitor's practice were intended to protect both members of the public and public confidence in the profession, and there was a strong public interest in ensuring that solicitors co-operated promptly with the SRA. Finally, Ms Khan was a solicitor and should be held to a higher standard than an unqualified defendant.
Against that general background, he proceeded to consider the individual criteria. In paragraph 56 he considered the question of prejudice or harm. He noted that the SRA was unable to point to any prejudice or harm which the clients of Ms Khan's firm had suffered because of a failure to co-operate or to comply with the orders. It had been pointed out by counsel for the SRA that the SRA was unable to assess the prejudice or harm which clients might have suffered until Ms Khan had delivered up the practice documents. He accepted that submission up to a point, but he noted that there was no evidence of any complaints having been made to the SRA by...
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...Division to criminal sentences: see Hussain v Vaswani [2020] EWCA Civ 1216 at [50] and Solicitors Regulation Authority Ltd v Khan [2022] EWCA Civ 287 at 127 Mr Hussain appealed against the sentence imposed by the judge on three grounds. The first ground was that the judge had erred in pri......