Solicitors Regulation Autority v Naqvi
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 12 April 2019 |
| Neutral Citation | [2019] EWHC 1420 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/1462/2019 |
| Date | 12 April 2019 |
[2019] EWHC 1420 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Freedman
No. CO/1462/2019
Mr S. Paul (instructed by Capsticks Solicitors) appeared on behalf of the First Applicant.
Mr Y. Bheeroo (instructed by Russell-Cooke LLP) appeared on behalf of the Second Applicant.
Mr Naqvi appeared in Person.
This an (“Application”) to set aside four witness summonses which have been issued by Mr Naqvi in the Administrative Court in readiness for disciplinary proceedings brought against him by the Solicitors Regulation Authority (“the SRA”) and which are due to be heard for three days commencing on Monday, 15 April 2019.
It will be apparent from that that this is a matter of urgency which has to be determined today. Accordingly, this judgment is delivered after hearing argument between 9.30 am and 2.30 pm with an abbreviated luncheon adjournment. It is essentially an ex tempore judgment in I reserve to myself the right to edited the judgment if it is to be typed up.
The Application arises following the issue of six witness summonses by Mr Naqvi. He obtained summonses on 4 April 2019 against Mr Ali Cheema who worked for and/or provided services for Hard Cash Productions. He has not been served. He is apparently not currently residing in the United Kingdom, according to a Hard Cash letter dated 11 April 2019 and his whereabouts are unknown. Second, against Ms Joanna Potts of Hard Cash, the producer of an ITV documentary, to which I will refer. She is in fact going to attend and give evidence, as I understand it, for the SRA. Thirdly, against Mr Mandeep Sandhu, an investigation officer within the SRA. Fourth, Ms Jennifer Dunlop, the authorised officer of the SRA. Fifth, Ms Hanna Lane, a solicitor with Capsticks who filed the Rule 5 statement, to which I shall refer below, and, sixth, Ms Daveena Ogenie, the Head of Case Management at the Solicitors Disciplinary Tribunal (“the SDT”).
Following service of the witness summonses on the last four people that I have named, which took place on 5 April 2019, informal service was given of the application to set aside the witness summonses on 9 April 2019 and the Application was formally served on 10 April 2019. Having regard to the proximity between the date of issue of the Application of the summonses and the date of the hearing before the Solicitors Disciplinary Tribunal and having regard also to the need to consider the position of the witnesses, I am satisfied that reasonable expedition was exercised by the Applicants in the making of this application. I am also satisfied that there is no undue prejudice to Mr Naqvi arising out of the timing of the issue and service of the Application and, in the circumstances, I abridge time for the making of the Application.
Before me today there has appeared for the Applicants Mr Bheeroo, Counsel for Ms Ogene of the SDT, and Mr Paul, Counsel for the SRA. Mr Paul represents the SRA who in turn make the application for the benefit of their three employees; Mr Mandeep Sandhu, Ms Dunlop and Ms Lane. Mr Naqvi has appeared in person. He has had some benefit from Mr Riza QC, who will appear for him at the Solicitors Disciplinary Tribunal and he has placed before the court some documents of Mr Riza, but he himself has appeared in person in today's hearing.
The background to this matter is as follows. Mr Naqvi is a sole practitioner solicitor practising in immigration law, criminal law, employment law, and litigation and wills and probate. The allegations against Mr Naqvi in the SDT proceedings which are due to be heard next week, the week commencing 16 April 2019, are set out in a Rule 5 statement dated 18 September 2018. In summary, the SRA alleges that:
(1) Mr Naqvi failed to advise the client that applying for a visa as a spouse or partner on the basis of a non-genuine relationship was unlawful and, in doing so, breached Principles 2, 4, and 6 of the SRA Principles 2011.
(2) Mr Naqvi advised the client that in the event that the client wished to apply for a visa as a spouse or partner on the basis of relationship that was not genuine, the client should not disclose this fact to him, and in doing so breached Principles 1, 2, 3 and 6 of the SRA Principles 2011.
(3) Mr Naqvi indicated that he was willing to advise and/or assist the client in the process of applying for a visa as a spouse or partner after the client made clear that he intended or was likely to make the application based on a relationship that was not genuine and, in doing so, breached Principles 1, 2, 3 and 6 of the SRA Principles 2011.
(4) Mr Naqvi advised the client on the steps that could be taken by the client to increase the prospects of an application for a visa as a spouse or partner being successful when he knew, or ought to have known, that the relationship upon which the purported application would rely was not genuine and in doing so breached Principles 1, 2 and 6 of the SRA Principles 2011.
Although it is not necessary for the SRA to establish dishonesty for the allegations of breaches of the Principles, the SRA contends that Mr Naqvi acted dishonestly in relation to three of the matters alleged against him.
Mr Naqvi defends the SDT proceedings. He denies each of the allegations in the Rule 5 application. He denies that he acted dishonestly. In summary, he says that the allegations arise out of a covert recording made by an undercover reporter as part of an ITV documentary entitled “ITV Exposure UK — The Sham Marriage”, produced by Hard Cash Productions Limited (“Hard Cash”) and which was broadcast in July 2015. The video of the interview was an interview between Mr Naqvi and a fictitious client (“Mr Ali”) who was the undercover reporter, who is now believed to be out of the country and whose whereabouts are unknown. That interview took place on 27 March 2015.
It is not necessary to set out the exchanges in that interview. It suffices to say the following. The case of the SRA is to the effect that Mr Naqvi was deliberately turning a blind eye to the fact that the putative client was not in a genuine relationship. However, in his skeleton argument for the hearing on behalf of Mr Naqvi, Mr Riza QC has undertaken a textual analysis of the transcript from the video to the effect of the following argument. It is that Mr Naqvi was not advising Mr Ali to go down the marriage route. He was not assisting in relation to immigration through a sham marriage route. He points to various responses and statements of Mr Naqvi to this effect and he says this at para.1(h):
“ When looked at in context, what he is advising is that he cannot and does not know whether any particular marriage is genuine or not, because it is not knowable except to the persons involved. He advises people on the basis that they wish to embark on a genuine marriage and the evidence required to satisfy the Home Office of genuineness — which is normally evidence that a couple are living together as man and wife for a long time.
(i) He assumes people are genuine because he cannot know if they are not, but, so long as there is proof of joint lives — in other words that they are living and will live together he will be prepared to act- “joint living” as he puts it.
(j) There is no evidence of complicit dishonesty whereby Mr Naqvi knew or intended to assist Mr Ali in his pretend attempt to embark on a sham marriage.”
In addition to this, Mr Riza submits that:
“2. There is clear evidence that the undercover agent is trying to entrap the Respondent to advise him regarding applying to stay here on the basis of a sham marriage, but there is also clear evidence that he does not succeed.”
It is then submitted:
“4. When the transcript is considered in the context of the whole conversation and it is appreciated that he is a solicitor who is being manipulated by an undercover agent in a direction he does not wish to go, Mr Naqvi kept well within the ethical standards of his profession.”
A submission is made as to why this entrapment amounts to an abuse of process which is seriously improper and, therefore, forms the basis of an attempt to strike out the SRA's application for abuse of process and/or fairness. This is on the ground that the evidence of the undercover agent falls foul of principles developed, in particular in the House of Lords case of R v Loosely [2011] UKHL 53 per Lord Nicholls para.1 and para.25 and following. Mr Riza QC submits that those of general application in all areas of governance, but particularly those proposals are concerned with an officer of the Court and the administration of justice. It is therefore submitted from para 8 onwards that it is an abuse of process of the Court for the SRA to rely on the evidence of someone who was guilty of entrapment. In particular at para.10(c) it is submitted that “the SRA is...
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...issued under this rule”. He submits, on the authority of Freedman J's decision in Solicitors Regulation Authority, Ogene v. Naqvi [2019] EWHC 1420 (Admin) at [26], that the defendant has standing to make the application. He says that the lateness of the summonses and the circumstances in w......