The Law Society of England and Wales v Mr Jakub Wojchiech Pawlak
| Jurisdiction | England & Wales |
| Judge | Cawson |
| Judgment Date | 17 November 2021 |
| Neutral Citation | [2021] EWHC 3076 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2021-MAN-000051 |
[2021] EWHC 3076 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
BUSINESS LIST (Ch)
Manchester Civil Justice Centre
1 Bridge Street West, Manchester M60 9DJ
His Honour Judge Cawson QC
Sitting as a Judge of the High Court
Case No: BL-2021-MAN-000051
Tom Longstaff (instructed by Stephensons Solicitors LLP) for the Claimant
Omololu Thomas (instructed on a direct access basis) for the Defendant
Hearing date: 4 November 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ Cawson QC
His Honour Judge Cawson QC:
| CONTENTS | Paragraph |
| A. Introduction | 1 |
| B Background | 6 |
| C. Absence of the Defendant | 72 |
| D. Principles to applied in determining a contempt application | 75 |
| E. The Claimant's case | 83 |
| F. The Defendant's case | 95 |
| G. The effect of the June Order | 108 |
| H. Should adverse inferences be drawn against the Defendant? | 112 |
| I. Conclusion as to merits of Amended Application to commit | 119 |
| J. Hand down and sentence | 126 |
F. Introduction
By an amended application dated 2 July 2021 (“ the Amended Application”), the Claimant, the Law Society of England and Wales, applies to commit the Defendant, Jakub Wojciech Pawlak, to prison for contempt of court.
The Claimant alleges that the Defendant acted in contempt of court by breaching the terms of:
a. Paragraphs 1 and 3 of an Order that I made in the present proceedings on 28 May 2021 (“ the May Order”); and
b. Paragraph 2 of an Order that I made in the present proceedings on 7 June 2021 (“ the June Order”).
The May Order and the June Order were made following the intervention by the Claimant into the Defendant's legal practice in March 2021. Amongst other things, these Orders required the Defendant to deliver up client files, and/or to provide a proper explanation as to any inability to do so in a witness statement. The substance of the case of contempt against the Defendant is that he acted in breach of the Orders by failing to either deliver up client files, or provide a proper explanation as to any inability to do so.
At the effective final hearing of the Amended Application on 4 November 2021, the Claimant was represented by Mr Tom Longstaff (“ Mr Longstaff”) of Counsel, and the Defendant by Mr Omololu Thomas (“ Mr Thomas”) of Counsel. I am grateful to them both for their helpful submissions.
In this judgment I determine whether or not the Defendant acted in contempt of court as alleged. At the conclusion of the hearing on 4 November 2021 I indicated that if I found that the Defendant was in contempt of court, then I proposed to deal with penalty or sentence at the hearing at which judgment was handed down. However, on reflection, and for the reasons referred to below, I have decided that if I should find the Defendant guilty of contempt, then I should adjourn the question of penalty or sentence to a subsequent hearing.
F. Background
It is necessary to set out the background to the Amended Application in some detail.
The Claimant is the statutory regulator of Solicitors in England and Wales, delegating its regulatory powers to the Solicitors Regulation Authority (“SRA”) for the purposes of regulating and supervising the conduct of Solicitors and certain other lawyers (including prior to the exit of the UK from the European Union, Registered European Lawyers, and Foreign Lawyers practising in this jurisdiction), and protecting members of the public who have cause to deal with Solicitors and firms conducting legal work on their behalf.
Under s. 35 of, and Schedule 1 to the Solicitors Act 1974 (as amended) (“ the 1974 Act”), the Claimant, in exercising such regulatory role, enjoys certain powers conferred by Part II of Schedule 1 to intervene in a practice in the circumstances therein set out. The powers exercisable on intervention as set out in Part II of Schedule 1 of the 1974 Act include the following powers under paragraph 9 of Part II, namely:
a. To require the production or delivery to any person appointed by the Claimant of documents relating to the practice;
b. To seek an order from the High Court requiring the production or delivery of documents; and
c. To seek from the High Court an order authorising a person appointed by the Claimant to enter premises to search for and take possession of documents, and other property which the Claimant reasonably requires for the purpose of accessing information contained in such documents.
The Defendant is a Polish citizen, and a Registered Foreign Lawyer, registered with the SRA under s. 89 of the Courts and Legal Services Act 1990. He was previously, as from 23 February 2018, a Registered European Lawyer registered with the SRA under reg. 17 of the European Communities (Lawyer's Practice) Regulations 2000. In the latter capacity, the Defendant practised as sole proprietor of the law firm “JP Legal Law” (“ JP Legal”), which was regulated by the SRA and traded from 85 Wellington Road South, Stockport (“ 85 Wellington Road South”).
The Defendant commenced to practice as JP Legal on 26 June 2018. Pursuant to his SRA authorisation, he was appointed as the Compliance Officer for Legal Practice, Compliance Officer for Finance and Administration, and Money Laundering Reporting Officer. He had sole access to the bank account of JP Legal, which held client money.
Following the end, on 31 December 2020, of the transitional period that took effect following the exit of the United Kingdom from the European Union on 1 January 2020, the Defendant was no longer able to occupy a regulated position within JP Legal, and became a Registered Foreign Lawyer. As such he was no longer authorised to operate a law firm in England and Wales as he no longer met the eligibility requirements to practice as a recognised sole practitioner within the meaning of rules 1.1(c), 8.2(d), 9.1 and 9.4 of the SRA Authorisation of Firms Rules 2018.
Although the Defendant, in correspondence with the SRA in February 2021, said that he was in negotiation with a UK Solicitor to take over the Compliance Officer roles within his practice so as to enable him to apply for authorisation to practice, in paragraph 3 of a witness statement dated 4 June 2021 and paragraph 5 of a witness statement dated 18 June 2021, the Defendant has maintained that he ceased carrying out any legal activities, and closed the practice from 1 January 2021. It is, however, the Claimant's case that the Defendant has continued to provide legal services through JP Legal after 1 January 2021,
On 2 March 2021, a “Notice Recommending Intervention” was issued by an Investigating Officer for the SRA, Mr Jonathan Atherton (“ Mr Atherton”), following an investigation that had commenced well prior to 1 January 2021, on 22 July 2020.
On the basis of the information reported by Mr Atherton, and having considered the Defendant's representations in respect of the Notice Recommending Intervention, on 18 March 2021 the SRA's Adjudication Panel took the decision to intervene in the Defendant's practice, on the following grounds set out in the Decision of the Adjudication Panel dated 18 March 2021 (“ the Decision”), namely:
“a) There is reason to suspect dishonesty by [the Defendant] in connection with his practice which is or was a business carried on by him as a sole trader (paragraph 5(3)(ba)(ii) Schedule 14 Part II Courts and Legal Services Act 1990).
b) The Defendant has failed to comply with the SRA Accounts Rules made under section 32 of the Solicitors Act 1974 (paragraph 5(3)(c) Schedule 14 Part II Courts in Legal Services Act 1990)
c) It is necessary to intervene to protect the interests of clients (or former or potential clients) of [the Defendant] (Paragraph 5(3)(j) Part II Schedule 14 Courts and Legal Services Act 1990).”
The Decision itself set out the reasons for deciding to intervene in considerable detail. The reasons included concerns as to whether the Defendant had, in fact, as he maintained that he had, closed his practice in an orderly way on 1 January 2021.
It is the Claimant's case that the decision to intervene having been made, the Defendant failed to cooperate with the intervention process, necessitating the making of an application for orders pursuant to paragraphs 9(5), (5A), and (6) and 10 of Part II of Schedule 1 the 1974 Act. The detail of the Claimant's case in respect thereof was set in the witness statement of Sean Joyce (“ Mr Joyce”) dated 14 May 2021 made in support of the Claimant's application for the above relief, that first came before me on a without notice basis on 28 May 2021. Mr Joyce is a member of Stephensons Solicitors LLP (“ Stephensons”), the firm of Solicitors acting for the Claimant in relation to the intervention and in respect of the present proceedings. He is identified as “Agent” in the May Order to whose address delivery up as provided for by the May Order was to be made.
Mr Joyce, in this witness statement, referred, amongst other things, to:
a. The fact that the Claimant had experienced significant difficulties in persuading the Defendant to cooperate with the intervention into JP Law, that started with an unsuccessful attempt by Ms Heather Andersen (“ Ms Andersen”), a solicitor and intervention officer for the SRA, on 22 March 2021, to obtain the Defendant's practice files;
b. An unsuccessful attendance at the Defendant's offices at 85 Wellington Road South on 23 March 2021, followed by a series of email exchanges between the Claimant and the Defendant during the course of which the Defendant accused the Claimant trying to break into his property, and also claimed that...
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