In the Matter of the Solicitor's Act 1974: Re A Solicitor (No 5 of 2001)

Eligibility under the Qualified Lawyers Transfer Regulations 1990 depends on satisfying their defined requirements. The Law Society has no free discretion to admit applicants who fall outside those requirements. An applicant relying on the overseas-lawyer route must belong to a profession listed in the Schedule and must have passed the qualifying examinations required for admission in that jurisdiction. Passing the Californian Bar examination, without completing the legal ethics examination and admission process, did not make the applicant an overseas lawyer. Academic qualifications and practical experience could not substitute for the statutory conditions. The Master of the Rolls’ jurisdiction under Regulation 17 was confined to determining eligibility under the Regulations.

Dr Driver appealed against Law Society decisions dated 20 June and 27 July 2000. The Society decided that he was not eligible under the Qualified Lawyers Transfer Regulations 1990 to obtain a certificate permitting him to sit the Qualified Lawyers Transfer Test, because he had not been admitted as an attorney in California.

The appeal proceeded under Regulation 17 after the Law Society accepted the Master of the Rolls’ jurisdiction and waived the prior-review requirement. The central issue was whether passing the Californian Bar examination, without completing the further ethics examination and admission process, satisfied the regulatory definition of an overseas lawyer.

The appeal was dismissed.

1. The jurisdiction conferred by Regulation 17 was limited to deciding whether Dr Driver was eligible under the Qualified Lawyers Transfer Regulations 1990 to apply to take the Qualified Lawyers Transfer Test. It did not confer a general discretion to admit a person outside the regulatory scheme.
2. Regulation 5 required an applicant to provide evidence that the applicant fell within one of the relevant regulatory categories and was suitable for admission. The Society was required to issue a certificate only where those conditions were satisfied. It also had to identify the test subjects and any further requirements.
3. Regulation 11 applied to an overseas lawyer who had qualified in a profession listed in the Schedule by passing the qualifying examinations required for a person not previously qualified in another jurisdiction. Regulation 2 defined an overseas lawyer as a member of one of those listed professions. The Schedule included California Attorney at Law.
4. Dr Driver had passed the Californian Bar examination, but had not completed the ethics examination or been admitted to practise as a Californian attorney. He therefore had not qualified as an overseas lawyer within the Regulations.
5. His academic qualifications, legal experience and views about the comparative rigour of United States qualification could not overcome the express eligibility requirements. Those matters might assist an application through another route or a future application after qualification in California, but they did not establish present eligibility under the QLTT route.

1. Court of Appeal (Civil Division): On appeal from the Law Society’s decisions dated 20 June and 27 July 2000, the court dismissed the appeal. The decision is reported at [2001] EWCA Civ 372.