Kaberry v Law Society

An appellate court should not interfere with a discretionary refusal to extend time where the lower court considered the relevant evidence, the explanation for delay and the underlying prospects, and no error of principle is shown. Medical evidence may reduce personal responsibility, but it does not create a special rule for solicitors. Professionals remain responsible for conducting their affairs in a way that maintains public confidence. A law society acting regulatorily owes the relevant duty to the public at large, rather than a private duty of care to the solicitor. Public accountability does not itself establish abuse of public office. Permission to appeal was therefore refused.

Simon Kaberry sought permission to appeal two decisions. The Divisional Court had refused, on 11 April 2000, to extend time for a challenge concerning a 1995 Solicitors Disciplinary Tribunal decision striking him off the roll. Burnton J had struck out two damages claims against the Law Society on 4 October 2000.

The claims alleged negligent supervision, defamation, abuse of public office and related wrongdoing. Kaberry relied on his acquittal of criminal charges and medical evidence concerning prescribed drugs and alcohol. The central questions were whether the disciplinary challenge had any realistic prospect after the substantial delay and whether the pleaded civil claims disclosed viable grounds for appeal.

Lord Justice Tuckey refused permission to appeal in both matters.

1. The Divisional Court’s refusal to extend the 14-day time limit was discretionary. It had considered the proposed medical evidence, the criminal acquittal, the conduct of the disciplinary proceedings and the explanations for the delay of nearly four years. There was no real prospect that the Court of Appeal would interfere with that exercise of discretion. Kaberry remained free to apply to the Law Society for restoration to the roll on the evidence relied upon.
2. Medical evidence capable of reducing responsibility did not require a solicitor to be judged by a different standard from any other professional. A professional remains responsible for conducting his affairs in a way that maintains public confidence. That confidence was a matter the disciplinary tribunal was required to take into account.
3. Burnton J was right to conclude that, when exercising its regulatory jurisdiction, the Law Society owed the relevant duty to the public at large. It did not owe Kaberry a private duty of care in relation to supervision and regulation.
4. Public accountability did not convert Kaberry’s allegations into a viable claim for abuse of public office. On the facts pleaded, no proper case was disclosed. The claim was also vulnerable because it was partly statute-barred, constituted a collateral attack on the tribunal’s decision and, if such a cause of action existed, belonged to the trustee in bankruptcy unless assigned.
5. The Court did not determine the merits of a later statement which might support defamation. The earlier statements considered by Burnton J were statute-barred and in any event protected by absolute privilege. The Law Society had the right to claim Kaberry’s assets, including compensation recovered directly or indirectly for alleged medical negligence, to reimburse Compensation Fund payments to former clients.
6. The costs order was within Burnton J’s discretion. Kaberry had chosen to bring proceedings containing serious allegations which were found unsustainable and struck out. There was no error of principle. Permission to appeal in both cases was refused.

• Court of Appeal (Civil Division) — refused permission to appeal in both matters on 29 January 2001.
• High Court of Justice, Divisional Court — refused on 11 April 2000 to extend time for an application concerning the Solicitors Disciplinary Tribunal’s order of 27 July 1995 striking Kaberry off the roll.
• High Court of Justice — Burnton J struck out two damages claims against the Law Society on 4 October 2000 and ordered Kaberry to pay costs.