The Solicitors Regulation Authority v Solicitors Disciplinary Tribunal Huseyin Arslan (Interested party) The Law Society (Intervening Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt,Sir Brian Leveson P |
| Judgment Date | 10 November 2016 |
| Neutral Citation | [2016] EWHC 2862 (Admin) |
| Date | 10 November 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1808 & 1807/2016 |
[2016] EWHC 2862 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION, Sir Brian Leveson AND The Honourable Mr Justice Leggatt
Case No: CO/1808 & 1807/2016
-and-
-and-
Timothy Dutton QC and Heather Emmerson (instructed by Iain Miller of Bevan Brittan) for the Claimant
Mr Arslan in person
Gregory Treverton-Jones QC (instructed by Teresa Prince of the Law Society) for the Intervening Party
Hearing dates: 8 and 9 November 2016
Judgment Approved by the court
In these proceedings the Solicitors Regulation Authority ("SRA"), the independent body which discharges the regulatory functions of the Law Society, asks the court to quash two decisions of the Solicitors Disciplinary Tribunal (the "Tribunal") contained in a judgment dated 16 March 2016. The Tribunal is the respondent in these proceedings but, apart from providing some evidence about its practices, has adopted a neutral role and is not represented. Both of the decisions which are challenged relate to Mr Arslan who has appeared in person as an interested party. The Law Society in its representative capacity has intervened in the proceedings and has made submissions by counsel on an issue concerning the standard of proof applied by the Tribunal.
The decisions of the Tribunal which the SRA seeks to challenge are:
i) A decision to revoke an order made by the SRA under section 43 of the Solicitors Act 1974 restricting Mr Arslan from being employed by a solicitor's practice or recognised body except with the permission of the SRA; and
ii) A decision to allow an appeal by Mr Arslan against a decision by the SRA under section 44D of the Act to give Mr Arslan a written rebuke, direct him to pay a financial penalty or £500 and publish details of those actions.
The factual background
The factual background, in brief summary, is that Mr Arslan (who is not a qualified solicitor) worked at relevant times for a firm of solicitors, Duncan Lewis (Solicitors) Limited, doing immigration work. He was initially employed by the firm under a contract of employment; but from 2 September 2013 he became a consultant under an arrangement whereby a company of which Mr Arslan was the sole director entered into a contract with the firm to provide his services.
On or around 30 October 2012 Mr Arslan was instructed on behalf of Duncan Lewis to act for a 20 year old woman, whom I will refer to as "Ms K", in an immigration case. The case was later transferred to another firm, Fadiga & Co Ltd, following a request to transfer the file received on 24 June 2013. Shortly before that, although Mr Arslan did not know it at the time, the SRA had received a report from the Children's Society on behalf of Ms K making an allegation of sexual harassment against Mr Arslan. After a statement had been obtained from Ms K, the SRA sent an email to Mr Arslan on 24 December 2013 attaching a letter outlining her allegations and asking for his response within the (seemingly unreasonable) time frame of seven days. The email was sent to the email address which the SRA held for Mr Arslan.
On 26 December 2013 Mr Arslan replied from a different email address acknowledging receipt of the email and stating:
"I wonder whether you can send me your attachments to this email address as I cannot download by a mobile phone as I cannot log into my old email address via computer. This is the email address that I use."
On 30 December 2013 the SRA re-sent their email and its attachments to the new address. Mr Arslan responded that day asking for an extension of time, which was granted. On 10 January 2014 he provided a substantive response to the allegations, with supporting documentation.
On 14 February 2014 the SRA obtained access to the hard copy and electronic records of Duncan Lewis, which included a copy of the file sent to Fadiga & Co on 24 June 2013. They found discrepancies between documents which Mr Arslan had provided with his response to the SRA's letter and the records of Duncan Lewis. In particular:
i) The documents sent by Mr Arslan with his response included a typed attendance note dated 30 October 2012 of a meeting between Mr Arslan and Ms K (which has been referred to as document "A"). A copy of this attendance note was also in the file provided to Fadiga & Co on 24 June 2013. However, the version relied on by Mr Arslan contained an additional page of text which followed a list of action points with which the document had appeared to end.
ii) The documents relied on by Mr Arslan also included a handwritten attendance note (which has been referred to as document "B"). The note is dated October 2013 but appeared to be a note of a meeting at the end of October 2012. This note was also not in the file provided to Fadiga & Co.
iii) A third document provided by Mr Arslan to the SRA was a typed telephone attendance note dated October 2012 (which has been referred to as document "C"). Again, there was no copy of this document in the file transferred to Fadiga & Co.
iv) The SRA also noticed that documents B and C had been uploaded to the Duncan Lewis system on 27 December 2013. 1
The SRA concluded that there was insufficient evidence to support the allegation made by Ms K and the Children's Society against Mr Arslan and that matter was discontinued. However, the SRA wrote to Mr Arslan on 3 March 2014 referring to the documents and discrepancies that I have mentioned, asking for his explanation of the discrepancies and inviting him to comment on the allegation that he had dishonestly created documents to provide evidence to support his response.
Mr Arslan provided his response to the SRA's letter on 20 March 2014. He denied that any of documents A, B and C had been created or added to after he received the SRA's letter and said that they were all created in October 2012. He explained the fact that documents B and C had been uploaded to the Duncan Lewis system on 27 December 2013 on the basis that he was doing routine
administration in the office that day. He said he could not comment on why the documents had not been included in the file sent to Fadiga & Co as the file had been taken away from him by his head of department before 24 June 2014 and he had no involvement in the transfer of the file.The SRA obtained comments from Duncan Lewis on matters raised by Mr Arslan's response and prepared a draft report, which was sent to Mr Arslan together with relevant documents including the comments from Duncan Lewis. Mr Arslan made detailed submissions on the draft report. A second draft report was prepared and sent to Mr Arslan on 27 July 2014 and again he sent detailed submissions in response.
All the material including Mr Arslan's submissions was then sent to an adjudicator who produced his decision on 16 January 2015. The issue for the adjudicator was whether Mr Arslan had provided false and misleading information to the SRA during the course of its investigation of Ms K's allegations.
The adjudicator's decision
The adjudicator concluded that, on the balance of probabilities, Mr Arslan had received and read the SRA's email of 24 December 2013, including its attachments, within two days after it was sent and had then created an additional page for document A and (the whole of) documents B and C in an attempt to mislead the SRA. In relation to two other documents both dated 15 April 2013, referred to as documents D and E, the adjudicator found that a similar allegation of attempting to mislead the SRA had not been proved.
On the basis of his factual findings, the adjudicator considered whether it was appropriate to make, and decided that he should make, orders under each of sections 43 and 44D of the Solicitors Act.
Section 43 of the Act provides as follows:
" Control of solicitors' employees and consultants
(1) Where a person who is or was involved in a legal practice but is not a solicitor—
…
(b) has, in the opinion of the Society, occasioned or been a party to, with or without the connivance of a solicitor, an act or default in relation to a legal practice which involved conduct on his part of such a nature that in the opinion of the Society it would be undesirable for him to be involved in a legal practice in one or more of the ways mentioned in subsection (1A),
the Society may either make, or make an application to the Tribunal for it to make, an order under subsection (2) with respect to that person.
(1A) A person is involved in a legal practice for the purposes of this section if the person—
(a) is employed or remunerated by a solicitor in connection with the solicitor's practice;
(b) is undertaking work in the name of, or under the direction or supervision of, a solicitor;
…
(3) Where an order has been made under subsection (2) with respect to a person by the Society or the Tribunal—
(a) that person or the Society may make an application to the Tribunal for it to be reviewed, and
(b) whichever of the Society and the Tribunal made it may at any time revoke it.
(3A) On the review of an order under subsection (3) the Tribunal may order—
(a) the quashing of the order;
(b) the variation of the order; or
(c) the confirmation of the order;
and where in the opinion of the Tribunal no prima facie case for quashing or varying the order is shown, the Tribunal may order its confirmation without hearing the applicant.
…"
The adjudicator concluded that Mr Arslan was a person involved in a legal practice as defined in subsection (1)(a), that the condition set out in subsection (1)(b) was satisfied, and that it was appropriate to make an order under...
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