Vay Sui IP v Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | Irwin LJ,Mr Justice Lane |
| Judgment Date | 26 April 2018 |
| Neutral Citation | [2018] EWHC 957 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5451/2017 |
| Date | 26 April 2018 |
[2018] EWHC 957 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mr Justice Lane
Case No: CO/5451/2017
Dr A Van Dellen ( Direct Access) for the appellant
Mr B Tankel (instructed by Capsticks Solicitors) for the respondent
Hearing date: 15 March 2018
Judgment Approved by the court for handing down
See SUMMARY at bottom of this judgment.
A. Introduction
The appellant appeals against the decision of the Solicitors Disciplinary Tribunal (SDT), taken on 4 October 2017, to strike him off the Roll of Solicitors and to order him to pay the costs of and incidental to the SDT proceedings, fixed in the sum of £10,000. Permission to appeal out-of-time was granted at the hearing on 15 March 2018, in response to the appellant's application, which was not opposed by the respondent. The breach of time limit was relatively minor and the Court was satisfied that the appellant had posted the application from Manchester on 3 November 2017.
From 3 November 2011 to 31 December 2015, the appellant was a partner at Sandbrook Solicitors in Manchester. He specialised in immigration work. On 6 May 2015, following a review of five of Sandbrook's cases by Swift J, the Upper Tribunal (Immigration and Asylum Chamber) wrote to Sandbrook, requiring the appellant and his partner, Mr Javid, to appear before the Tribunal in Manchester on Monday 18 May 2015. The purpose of the hearing was to decide whether any action required to be taken, in the light of Swift J's concerns.
In R (Hamid v Secretary of State for the Home Department) [2012] EWHC 3070 (Admin), Sir John Thomas, President of the Queen's Bench Division gave judgment in a case involving an application for judicial review brought by an individual who faced removal by the Secretary of State under the Immigration Acts. His judgment ended as follows:-
“10. These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.
11. That is a warning for the future. We hope it will be unnecessary to have any further hearings of this kind or to refer anyone to the Solicitors Regulation Authority, but we will not hesitate to do so where there is a failure to comply with the court's requirements.”
The hope expressed in paragraph 11 of Hamid has proved forlorn. Not only have there been subsequent “Hamid” hearings but, in a number of instances, they have resulted in solicitors being referred to the Solicitors Regulation Authority (SRA).
B. The Upper Tribunal hearing on 18 May 2015
At the hearing on 18 May 2015, the Upper Tribunal (Green J and HHJ Raynor QC) was addressed by Counsel on behalf of the appellant. Giving the Tribunal's judgment, Green J set the scene as follows:-
“A. Introduction
1. There is before the Tribunal an issue which has arisen out of a concern that the firm of Sandbrook Solicitors (“Sandbrook”) has engaged in a systematic course of conduct designed to undermine the immigration system which amounts to a persistent abuse of process of the Court. In particular, the cases which are before us exhibit a pattern whereby injunctions to restrain imminent removal, invariably upon a without-notice basis, are being sought in immigration cases but, when granted, are not pursued by the service of proceedings. The pattern emerging suggests that a strategy or tactic is being deployed whereby without-notice injunctions are sought and then when granted the case is permitted to fade away from sight with the consequence that the failed asylum seeker or immigrant remains in the United Kingdom below the radar. It is typical of such case that the person subject to removal is in detention pending removal but that once interim relief is granted the individual is released from detention. In many such cases the individual then absconds. In some cases, where the Secretary of State for the Home Department (“SSHD”) has finally caught up with the applicant and seeks, yet again, to remove the person from the UK, further without-notice applications for injunctive relief are then sought and obtained without informing the Judge hearing the application of the prior history to the case. The stratagem is also facilitated by the legal representative simply refusing to respond to requests from Court officials or the Home Office or Treasury Solicitors.
2. In a recent judgment of the Divisional Court, The Queen on the application of Adil Akram & Amir Akram v SSHD (20 th April 2015) the President of the Queen's Bench Division stated, also in a case in which the conduct of solicitors acting on behalf of asylum seekers was in issue:
“It is not surprising that those who seek asylum or to regulate their immigration status in order to remain in this country take whatever steps are open to them in order to do so. To that extent, they are vulnerable and those who practise in this area of the law must always be acutely conscious of the need for a thorough understanding of the law, fully appreciating that pursuing litigation without arguable grounds is potentially unprofessional. This Court has demonstrated its intention to take a proactive approach to such cases in order to enforce standards and to ensure that the time of the Court (not to say public and private funding of such litigation) is not wasted. That much is clear from the principles set out in the earlier decisions of the Court in Hamid [2012] EWCH 3070 (Admin) and Butt [2014] EWHC 264 (Admin). Similar statements of principle and concern have been made in the context of appeals and jurisdiction conducted before the Upper Tribunal (Immigration and Asylum Chamber) (“UTIAC”): See Okundu & Abdussalam v Secretary of State for the Home Department [2014] UKUT 377 (IAC)”
3. In that case the Court emphasised that there was a pressing need for all legal representatives in judicial review proceedings to act in a professional manner both towards their clients but also, and critically, towards the Court, bearing in mind that their paramount duty was to the Court itself and that this took precedence over the duty they owed to their clients. The need for the warning to be taken seriously increases as the resources available to the Courts and Tribunals to act efficiently and fairly decrease. If the time of the Courts and Tribunals and their resources are absorbed dealing with utterly hopeless and/or unprofessionally prepared and conducted cases, then other cases, that are properly advanced and properly prepared, risk not having devoted to them the resources they deserve.
4. The facts that are set out below reflect what has become an all too familiar and depressing pattern in which legal representatives demonstrate a lack of care and concern for the substantive and procedural rules governing claims for judicial review. They suggest, in our view, a deliberate disregard for the professional duties that all legal representatives owe to the Court, and in the present case to the Tribunal.
5. As has now been made very clear in a growing body of case law the Courts and Tribunal have the power and right to refer to relevant authorities, including the Solicitors Regulation Authority (“SRA”), the conduct of legal representatives who seem to the Court or Tribunal to fall below the standards required of professionals appearing on behalf of immigrants and asylum seekers.”
Having set out the facts of the five cases and its observations on them, the Tribunal had:-
“…serious concerns that the conduct of the legal representatives has fallen materially below the bare minimum standard that we consider it proper for a solicitor to adopt in relation to its duty to the Court and the Tribunal.” (paragraph 43)
The Tribunal concluded as follows:-
“51. For all the above reasons, we entertain serious concerns as to the conduct of Sandbrook in the conduct of its immigration practice. We reiterate that we make no formal findings of fact against either Sandbrook or any individual solicitor employed therein. However, we refer the conduct of Sandbrook, and its solicitors, to the SRA for investigation. We will send to the SRA the Court files on the cases which are of concern to us together with a copy of this judgment.”
C. The SRA's response
The SRA began investigating Sandbrook on 8 July 2015. On 27 October 2015, the SRA sent its report to the appellant, together with a letter informing him that it was opening a formal investigation into his conduct.
Following exchanges between the SRA and the appellant, on 23 February 2017 the SRA issued a statement pursuant to rule 5(2) of the Solicitors (Disciplinary Proceedings) Rules 2007. Four of the allegations related to the appellant's conduct of the matters in the five cases that had concerned Swift J. The remaining two allegations related to the hearing before Green J and HHJ Raynor QC on 18 May 2015.
The allegations were as follows (the appellant for this purpose being the respondent and the Upper Tribunal being referred to as the Court):-
“ Allegation 1.1
The Respondent brought judicial review applications which were totally without merit and an abuse of process. This was contrary to Principles 1, 2 and 6 of the SRA Principles 2011 and failed to achieve Outcomes 5.1, 5.2, 5.3 and 5.6 of the SRA Code of Conduct 2011.
Allegation 1.2
The Respondent engaged in a systematic course of conduct...
To continue reading
Request your trial
-
Malik Mohammed Nazeer v Solicitors Regulation Authority
...of an omission rather than a positive act. 83 Mr Dunlop drew my attention to paragraph 181 of the judgment of Irwin LJ in Ip v SRA [2018] EWHC 957 (Admin): “180. The Courts well understand the vulnerability of many of those at risk of removal or deportation from the country. They can be de......
-
R Deepa Adhikari Shrestha & Others v The Secretary of State for the Home Department
...fees, as well as the fees payable to the Tribunal. In such cases, the only real beneficiary is the solicitor. 4 In Vay Sui Ip v Solicitors Regulation Authority [2018] EWHC 957 (Admin) Irwin LJ said:- “180. The Courts well understand the vulnerability of many of those at risk of removal or ......
-
Upper Tribunal (Immigration and asylum chamber), 2019-03-04, [2019] UKUT 124 (IAC) (R (on the application of Hoxha and Others) v Secretary of State for the Home Department (representatives: professional duties))
...& Ors v Secretary of State for the Home Department [2018] EWHC 913 (Admin) and Vay Sui Ip v Solicitors Regulation Authority [2018] EWHC 957 (Admin). The purpose of the present hearing is to decide whether it would be appropriate to refer Mr Salman Shaheen Zafar, director and owner of Zafar ......
-
Upper Tribunal (Immigration and asylum chamber), 2018-06-20, [2018] UKUT 242 (IAC) (R (on the application of Shrestha and others) v Secretary of State for the Home Department (Hamid jurisdiction: nature and purposes))
...payable to the Tribunal. In such cases, the only real beneficiary is the solicitor. In Vay Sui Ip v Solicitors Regulation Authority [2018] EWHC 957 (Admin) Irwin LJ “180. The Courts well understand the vulnerability of many of those at risk of removal or deportation from the country. They c......