Virdi v Law Society

Hearing date: 26 January 2010

Introduction

This is an appeal from the decision of the Divisional Court (Scott Baker LJ and David Clarke J) dismissing the appeal of Amritpal Singh Virdi from the findings and order of the Solicitors Disciplinary Tribunal (“the Tribunal”) finding him guilty of serious professional misconduct and suspending him from practice for a period of 3 years. Following a 15-day hearing between May and October 2007, the Tribunal announced its decision, gave its findings in summary form, and made its order on the last day of the hearing, on 26 October 2007. Its written findings were not given until a year later, but that delay is not the subject of any issue in this appeal.

The appeal raises issues as to the lawfulness of the part played by the clerk to the Tribunal. The clerk is an employee of the Law Society. In the present case, she retired with the members of the Tribunal when they considered their decision. Following the announcement of the Tribunal's decision, she assisted in drafting their written findings. I shall set out more fully the part she played later in my judgment.

In summary, on behalf of the Appellant, Mr Beaumont submits:

(1) It was ultra vires the Tribunal for the clerk to retire with them or to assist in drafting their findings.

(2) The clerk's role led to the appearance of bias and an infringement of the Appellant's Convention right to a fair trial under Article 6.

On these grounds, the Appellant seeks an order quashing the decision of the Tribunal.

Since the conduct of the clerk in the present case was no different from the ordinary practice of the Tribunal, the issues are of general importance.

The statutory and regulatory framework

The Tribunal is constituted under section 46 of the Solicitors Act 1974. It consists of practising solicitors of not less than 10 years’ standing and lay members who are neither solicitors nor barristers. Subsection (9) confers power on the Tribunal to make rules “about the procedure and practice to be followed in relation to the making, hearing and determination of applications and complaints”. Subsection (11) provides that the Tribunal may administer oaths, and enables the issue of writs of subpoena ad testificandum and duces tecum; otherwise, the Act in its original form did not expressly confer any administrative or procedural powers. The Act was amended with effect from 30 June 2008 (i.e., after the decision of the Tribunal in this case) by the Legal Services Act 2007, and a new subsection (5A) inserted:

(5A) The Tribunal may do anything calculated to facilitate, or incidental or conducive to, the carrying out of any of its functions.

The procedural rules in force at the time of the Appellants’ hearing were the Solicitors (Disciplinary Proceedings) Rules 1994. They require the clerk to be a solicitor. The functions of the clerk under the Rules are principally administrative: to receive notice of applications (see rule 4(7)), to serve notice of the hearing on the parties (rule 6), to conduct a pre-hearing review to facilitate the hearing (rule 8), to receive the bundles of documents for the hearing, to be notified of applications for a hearing in private (rule 13) and to file and to keep the documents used at a hearing (rule 26). Rule 23 was as follows:

23. Upon the conclusion of the hearing or determination of any Application the Tribunal may announce its Order while still sitting in which case the Order may be filed immediately with the Society, and the Findings shall be filed later as if judgment had been reserved, or it may reserve judgment in which case it shall announce its Findings and Order in public at a later date notice whereof shall be given to the parties by the Clerk. The Clerk shall on the day of pronouncement file the Order, or the Findings, or both, with the Society. The Clerk shall supply a copy of the Findings and Order to each party to the proceedings and to any other person present at the pronouncement who requests one.

Rule 31(a) provided:

(a) Subject to the provisions of these Rules the Tribunal may regulate its own procedure.

The 1994 Rules were replaced by the Solicitors (Disciplinary Proceedings) Rules 2007 with effect from 14 January 2008. The 2007 Rules are more prescriptive of the functions of the clerk. Rule 3 includes the following paragraphs:

(6) The Tribunal may also appoint other clerks, including clerks appointed to deal with a particular case or cases.

(7) A clerk appointed by the Tribunal under this rule shall be a solicitor or barrister of not less than 10 years standing

(8) A clerk shall vacate his office if—

(a) in the Tribunal's opinion (with which the Master of the Rolls agrees) he is physically or mentally incapable of performing his duties; or

(b) he retires; or

(c) he is removed from office by a resolution of the Tribunal approved by the Master of the Rolls.

(9) The Clerk shall be responsible to the Tribunal for the administration of the Tribunal in an efficient manner and, for so long as he shall be remunerated by the Law Society, shall be regarded as seconded to the Tribunal.

(10) The services of a clerk may be provided to the Tribunal through a body independent of the Law Society and that body may employ him on such terms (including remuneration and pension provision) as the Tribunal shall think fit.

(11) The Tribunal may prescribe the duties to be performed by the clerks or for which they shall be responsible and those duties shall include arrangements for—

(a) the submission of applications for certification of a case to answer;

(b) making pre-listing arrangements including directions of an administrative nature;

(c) listing of and attendance at hearings;

(d) securing a record of hearings (by tape recording or other means);

(e) advising the Tribunal on matters of law or procedure as may be necessary or expedient;

(f) preparing summaries of allegations, evidence and submissions for inclusion in the Tribunal's detailed findings;

(g) drawing orders and findings and filing them with the Law Society;

(h) the general supervision of other clerks and the Tribunal's administration and staff; and

(i) maintaining records and collecting statistics required by the Tribunal.

Following Sir David Clementi's 2004 Report on his Review of the Regulatory Framework for Legal Services in England and Wales, the government made it clear that it considered that the regulatory functions of the Law Society should be separated from its representative role. In 2007, this division was reflected in the Legal Services Act. However, in anticipation of that legislation, the Law Society delegated its disciplinary functions to a Regulation Board, later to be called the Solicitors Regulation Authority Board, which administers the Solicitors Regulation Authority, universally referred to as the SRA. The Regulation Board was created by the Law Society's General Regulations January 2006, which came into force on 1 January 2006. Regulation 20(5) prescribed the membership of the Board:

a) a Chair, who shall be a solicitor but not a Council member, appointed by the Council following an open recruitment process taking into account Guidelines issued by the Commissioner for Public Appointments;

b) seven non-Council members who shall not be solicitors, appointed in the manner described in (a); and

c) eight non-Council members, who shall be solicitors, appointed in the manner described in (a).

The terms of office of the chairs and members of the Board were the subject of regulation 22:

22(1) Subject to (3), the chairs of the subsidiary boards serve for a single period of three years, and shall not be eligible for re-election at the end of that period.

(2) Subject to (3), the other members of subsidiary boards (including Council members) serve for three years, being eligible for re-election or re-appointment, as the case may be, for one further period of three years only.

(3) As a transitional provision, the members of subsidiary boards elected or appointed to serve for initial periods of four years shall serve for the period for which they were originally elected and shall thereafter be eligible to be re-elected or re-appointed for one further period of three years only.

(4) A member elected or appointed to fill a casual vacancy on a subsidiary board serves until the end of his or her predecessor's term, and shall thereafter be eligible for re-election or re-appointment for one further period of three years only.

(5) The terms of office of the chair and members of the Consumer Complaints Board shall be two years, running from the date of appointment, and they shall be eligible for re-appointment for two further terms of two years only.

(6) The terms of office of the chair and members of the Regulation Board shall be four years, running from the date of appointment, and they shall be eligible for...