The Law Society of England & Wales v The Secretary of State for Justice & Anothers
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 26 February 2010 |
| Neutral Citation | [2010] EWHC 352 (QB) |
| Docket Number | Case No: HQ09X05648 |
| Court | Queen's Bench Division |
| Date | 26 February 2010 |
[2010] EWHC 352 (QB)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Before: Mr Justice Akenhead
Case No: HQ09X05648
Andrew Stafford QC and Matthew Sheridan (instructed by Hill Dickinson LLP) for the Claimant
Paul Rose QC and Paul Nicholls (instructed by the Treasury Solicitor) for the First Defendant
Christopher Jeans QC and Holly Stout (instructed by Lawrence Graham LLP) for the Second Defendant
Hearing dates: 14, 15 and 16 February 2010
Mr Justice Akenhead:
Introduction
1. The Legal Services Act 2007 (the “2007 Act”) introduced wide ranging changes, amongst other things, in relation to the way in which complaints made against members of the different legal professions and institutions are to be brought by the consumers of their different services. Whilst disciplinary matters will broadly be left to the individual constituent elements of the different bodies which regulate the members of those professions and institutions, a new Office for Legal Complaints (“OLC”), the Second Defendant in these proceedings, has been set up to deal with such complaints, albeit that it is not yet functioning in its capacity of receiving and addressing complaints. Once OLC is dealing with complaints, the bodies set up historically by the different legal professions and institutions will cease to function other than for purposes of dealing with complaints which had already been lodged with them before a cut-off date which has not yet been fixed but which is expected to be later in 2010. The Legal Complaints Service (“LCS”) was the final successor body set up by the Law Society of England and Wales (“the Law Society”), the Claimant, to deal with complaints about the quality of professional services. As the largest legal profession in England and Wales, with independent and employed solicitors currently over 130,000, solicitors in numerical terms attract the largest number of complaints (whether those complaints are justified or not) and it is likely that OLC, when it is up and running, will numerically be dealing largely with such complaints; it is estimated that 90% approximately of the complaints will relate to solicitors.
2. The Transfer of Undertakings (Protection of Employment) Regulations 2006 (the “TUPE” Regulations) are the latest version of statutory requirements which govern provisions for the protection of employees in undertakings or businesses which are transferred elsewhere. They reflect to a large extent European Community law and practice.
3. This claim, brought by the Law Society against the Secretary of State for Justice representing the Ministry of Justice (“MoJ”), the First Defendant, and OLC, seeks clarification in relation to the employment position of its employees within LCS and in particular whether their employment is to be or is to be considered to be transferred or transferable to OLC. The Law Society, apart from any contentions relating to the specific applicability of the TUPE Regulations, seeks also to argue that the effect of a Cabinet Office paper entitled “Staff Transfers in the Public Sector Statement of Practice” (“COSOP”) materially impacts upon LCS staff and MoJ.
The TUPE Regulations
4. The most relevant provision is Regulation 3, the material parts of which are:
“3. (1) These Regulations apply to—
(a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity;…
(2) In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary…
(4) Subject to paragraph (1), these Regulations apply to
(a) public and private undertakings engaged in economic activities whether or not they are operating for gain;…
(5) An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a relevant transfer.(6) A relevant transfer—
(a) may be effected by a series of two or more transactions; and(b) may take place whether or not any property is transferred to the transferee by the transferor.”
5. Regulation 4 addresses the effect of any applicable transfer:
4. (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer—
(a) all the transferor's rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and(b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee…
(4) Subject to regulation 9, in respect of a contract of employment that is, or will be, transferred by paragraph (1), any purported variation of the contract shall be void if the sole or principal reason for the variation is—
(a) the transfer itself; or(b) a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce…
(5) Paragraph (4) shall not prevent the employer and his employee, whose contract of employment is, or will be, transferred by paragraph (1), from agreeing a variation of that contract if the sole or principal reason for the variation is—
(a) a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workforce; or(b) a reason unconnected with the transfer.
(7) Paragraphs (1) and (2) shall not operate to transfer the contract of employment and the rights, powers, duties and liabilities under or in connection with it of an employee who informs the transferor or the transferee that he objects to becoming employed by the transferee.(8) Subject to paragraphs (9) and (11), where an employee so objects, the relevant transfer shall operate so as to terminate his contract of employment with the transferor but he shall not be treated, for any purpose, as having been dismissed by the transferor.(9) Subject to regulation 9, where a relevant transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose contract of employment is or would be transferred under paragraph (1), such an employee may treat the contract of employment as having been terminated, and the employee shall be treated for any purpose as having been dismissed by the employer.(10) No damages shall be payable by an employer as a result of a dismissal falling within paragraph (9) in respect of any failure by the employer to pay wages to an employee in respect of a notice period which the employee has failed to work. (11) Paragraphs (1), (7), (8) and (9) are without prejudice to any right of an employee arising apart from these Regulations to terminate his contract of employment without notice in acceptance of a repudiatory breach of contract by his employer.”
The Law Society
6. The Law Society came into being by way of Royal Charter in 1845 and is essentially responsible for the regulation of solicitors. It derives its powers and duties under a number of Acts of Parliament including the Solicitors Act 1974 (the “1974 Act”), the Courts and Legal Services Act 1990, the Access to Justice Act 1999 and the 2007 Act. So far as is material to this case, the Law Society's duties and powers are:
(a) keeping the Solicitors’ roll and striking off and suspending solicitors;
(b) attending to the registration of applications for practising certificates;
(c) making rules which affect and bind solicitors;
(d) intervening, as necessary, in solicitors’ practices;
(d) allowing payments from the compensation fund;
(e) making rules about indemnity;
(f) making applications to the Solicitor's Disciplinary Tribunal;
(g) affording redress for professional services “which are not of the quality which it is reasonable to expect of them” as solicitors;
(h) examining solicitors files, for instance when investigating professional misconduct by a solicitor or whether any professional services are not of the quality reasonable to expect of solicitors;
(i) requiring a solicitor to attend to explain information or documents provided within such files;
(j) ordering a solicitor to pay costs of investigation.
7. It can thus be seen that, within the Law Society's regulatory functions, there is a distinction between those involved with disciplining solicitors in effect for various types of misconduct and those providing redress with regard to professional services “which are not of the quality which it is reasonable to expect of them”; this quotation is taken from Paragraph 1(1) of Schedule 1A of the 1974 Act as amended. It is this latter function which is, broadly, exercised by LCS.
The LCS
8. LCS essentially deals with consumer complaints made against solicitors or solicitors’ firms. It is to be contrasted with what is now called the Solicitors Regulation Authority...
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