Terrence Ballard v Solicitors' Regulation Authority

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Beatson,Mr Justice Nicol
Judgment Date09 February 2017
Neutral Citation[2017] EWHC 164 (Admin)
Date09 February 2017
Docket NumberCase No: CO/3503/2016 & CO/3845/2016

[2017] EWHC 164 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Beatson

Mr Justice Nicol

and

Case No: CO/3503/2016 & CO/3845/2016

Between:
Terrence Ballard
Appellant
and
Solicitors' Regulation Authority
Respondent

The Appellant in person

Geoffrey Williams QC (instructed by Solicitors Regulation Authority) for the Respondent

Hearing date: 27 January 2017

Approved Judgment

Lord Justice Beatson

I. Overview:

1

The two appeals before this court pursuant to section 49(1) of the Solicitors Act 1974 concern the decision of the Solicitor's Disciplinary Tribunal ("the Tribunal") dated 21 June 2016 in proceedings by the Solicitors Regulation Authority ("the SRA") against Mr Terrence Ballard, a solicitor on the roll. The disciplinary proceedings concerned Mr Ballard's conduct, described at [12] – [16] below, when acting for a Mr DE in relation to criminal proceedings and Mr Ballard's subsequent non-compliance with the directions of the Legal Ombudsman and the County Court at Eastbourne. It was alleged that Mr Ballard had breached a condition in his practising certificate, and the principles in the SRA Code of Conduct 2011. After a two-day hearing, the tribunal found that three of four allegations had been proved. It imposed a fine of £2,500 on him, and ordered that he pay £18,000 in costs.

2

Mr Ballard appeals against the findings and the penalty. The SRA has raised a cross-appeal, contending that the amount of the fine was, in the words of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 518 an insufficient sanction "to maintain the reputation of the solicitors' profession as one in which every member … may be trusted to the ends of the earth" and thus to maintain public confidence in the solicitors' profession.

3

Mr Ballard's practising certificate for 2012/2013 was granted and approved by the SRA subject to the condition that he was "not a sole practitioner or sole director of a recognised body". The main issue in his appeal is whether the tribunal erred in finding that he was at all material times in relation to the conduct which formed the charges a "sole practitioner" and therefore in breach of the condition. Mr Ballard argued that, in order to be a "sole practitioner", he had to be employed in connection with the provision of legal services by one of the entities listed in section 1A of the Solicitors Act 1974 and that, in relation to the conduct charged he had not been practising as a solicitor for the purposes of the Solicitors Act 1974 and the Legal Services Act 2007, but had acted as a McKenzie Friend or an authorised exempt person. This "entity" or "other entity" point is at the core of his case, which he regards as having important implications for solicitors who seek to promote and use "new vehicles" for the delivery of legal services in order to improve competition and access to justice. The SRA regards the case as a simple one in which a solicitor, whose practising certificate is subject to a restriction limiting the work he can do, has acted in a way which breaches that restriction and also refused to comply with directions by the Legal Ombudsman to pay money to Mr DE.

II. The Legal and Regulatory Framework:

(i) Practising requirements

4

The material provisions for these appeals are sections 1 and 1A of the Solicitors Act 1974, section 12 of the Legal Services Act 2007 and schedule 3 to that Act, and rule 1.1 of the SRA's Practice Framework Rules 2011.

(a) Solicitors Act 1974

"1. Qualifications for practising as solicitor

No person shall be qualified to act as a solicitor unless—

(a) he has been admitted as a solicitor, and

(b) his name is on the roll, and

(c) he has in force a certificate issued by the Society in accordance with the provisions of this Part authorising him to practise as a solicitor (in this Act referred to as a "practising certificate").

1A Practising certificates: employed solicitors

A person who has been admitted as a solicitor and whose name is on the roll shall, if he would not otherwise be taken to be acting as a solicitor, be taken for the purposes of this Act to be so acting if he is employed in connection with the provision of any legal services—

(a) by any person who is qualified to act as a solicitor;

(b) by any partnership at least one member of which is so qualified; …

(c) by a body recognised … under section 9 of the Administration of Justice Act 1985 (incorporated practices) or

(d) by any other person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which is a reserved legal activity (within the meaning of that Act).

(b) Legal Services Act 2007

Section 12(1) of the 2007 Act provides that "reserved legal activity" means inter alia "the exercise of a right of audience". Section 13 is concerned with entitlement to carry out a reserved legal activity. Section 13(2) provides that person is entitled to do so where he or she is an authorised person in relation to the relevant activity, or is an exempt person in relation to that activity. Authorised person" in relation to a reserved legal activity (referred to as "the relevant activity") is defined by section 18 "as inter alia: "(1)(a) a person who is authorised to carry on the relevant activity by a relevant approved regulator in relation to the relevant activity (other than by virtue of a licence under Part 5)". It is clear that a solicitor is an "authorised person" within this provision. The question whether a person is an exempt person for the purpose of exercising a right of audience is dealt with in section 19 and Schedule 3 to that Act. Schedule 3 defines "exempt person" as follows:

"(1) This paragraph applies to determine whether a person is an exempt person for the purpose of exercising a right of audience before a Court in relation to any proceedings (subject to paragraph 7).

(2) The person is exempt if the person—

(a) is not an authorised person in relation to that activity, but

(b) has a right of audience granted by that Court in relation to those proceedings.

(3) The person is exempt if the person—

(a) is not an authorised person in relation to that activity, but

(b) has a right of audience before that Court in relation to those proceedings granted by or under any enactment.

(6) The person is exempt if the person—

(a) is a party to those proceedings, and

(b) would have a right of audience, in the person's capacity as such a party, if this Act had not been passed."

(c) SRA's Practice Framework Rules 2011

Rule 1.1 provides:

"You may practise as a solicitor from an office in England and Wales in the following ways only:

(a) as a recognised sole practitioner or the employee of a recognised sole practitioner; …"

(ii) Legal complaints and the Ombudsman Scheme

5

The material provisions for these appeals are sections 125, 128(1) 132 of the Legal Services Act 2007. Section 125 is entitled "Jurisdiction and operation of the Ombudsman Scheme" and provides:

"(1) A complaint which relates to an act or omission of a person ("the respondent") in carrying on an activity is within the jurisdiction of the ombudsman scheme if—

(a) the complaint is not excluded from the jurisdiction of the scheme by section 126, or by scheme rules made under section 127,

(b) the respondent is within section 128, and

(c) the complainant is within section 128 and wishes to have the complaint dealt with under the scheme.

(2) In subsection (1) references to an act or omission include an act or omission which occurs before the coming into force of this section.

(3) The right of a person to make a complaint under the ombudsman scheme, and the jurisdiction of an ombudsman to investigate, consider and determine a complaint, may not be limited or excluded by any contract term or by notice."

6

Section 128(1) of the 2007 Act provides that the respondent to a complaint "is within this section if, at the relevant time, the respondent was an authorised person in relation to an activity which was a reserved legal activity (whether or not the act or omission relates to a reserved legal activity)".

7

Section 132 of the 2007 Act makes provision for continuity of complaints. It provides:

"(1) The ability of a person to make a complaint about an act or omission of a partnership or other unincorporated body is not affected by any change in the membership of the partnership or body.

Subsections (2) – (4) require scheme rules to make provision determining the circumstances in which an act or omission of one person who ceases to exist and another person succeeds to the business of the first person to be treated as an act or omission of the second person, complaints against the first person which are outstanding when he or she ceases to exist, and where the complainant has died or is unable to act.

(iii) McKenzie Friends

8

In July 2010 the then Master of the Rolls and President of the Family Division published a Practice Guidance Note on McKenzie Friends. Substantial parts of this are set out at §§49.2 – 4 of the tribunal's decision and it is not necessary to set them out here. It suffices to state that paragraph 2 states that litigants have the right to have reasonable assistance from a layperson and that the document does not refer to solicitors, let alone the possibility that a solicitor would act as a McKenzie Friend. The Law Society issued a Guidance Note on Unbundling Civil Legal Services, dated 4 April 2016. This states at paragraph 6.2:

"As an alternative to traditional advocacy you may wish to consider providing your client with a professional McKenzie Friend service in appropriate cases. The role of a McKenzie Friend is to provide advice and support to a litigant in person during the course of a hearing, but a McKenzie Friend has no right to...

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