In the Matter of the Solicitors Act 1974; Re A Solicitor (No 6 of 2001)

On an appeal concerning conditions on a solicitor’s practising certificate, the court must assess the position at the hearing, including later disciplinary findings and recommendations. The regulatory objective is to secure proper supervision and protect the public and profession while selecting an appropriate condition. A condition may require full-time employment of a suitably qualified solicitor or a genuine partnership on satisfactory terms. The court should consider the adverse consequences of putting a viable practice out of business where effective supervision can be achieved by a less restrictive condition. The appeal was allowed and the more restrictive condition was replaced, subject to a 60-day compliance period.

A solicitor with a lengthy disciplinary history appealed against decisions concerning the conditions on her practising certificate. An OSS adjudicator refused approval of a proposed consultant solicitor and required her to employ an experienced solicitor. The OSS Appeals Committee dismissed her appeal. After further disciplinary proceedings, the OSS imposed a later condition permitting practice only in approved employment and prohibiting officeholding or shareholding in an incorporated practice. The solicitor challenged that condition, relying on the age of the matters, the absence of recent complaints and the viability of her practice. The central issue was the appropriate condition in light of the complete disciplinary and procedural history.

1. Disposition and approach. The appeal was allowed. On an appeal under section 13(2)(b) of the Solicitors Act 1974, the court had to consider the position as it stood at the hearing. That included subsequent disciplinary proceedings, compliance with disciplinary requirements and the later recommendation of the Disciplinary Tribunal. The earlier appeal concerning the refusal to approve Mr Ved had been overtaken by events.
2. Effect of disciplinary findings. The Disciplinary Tribunal’s conclusions had not been appealed. Lord Phillips therefore could not reopen or review those conclusions in the practising-certificate appeal. The age of the matters and absence of recent complaints were relevant, but did not remove the need for proper supervision. The employment of three recently qualified solicitors reinforced that need.
3. Appropriate regulatory condition. The condition had to protect the public and profession by securing effective supervision and support. The court also took account of the adverse consequences of closing a thriving practice, including the effect on the solicitor’s ability to pay fines, costs and outstanding liabilities. The Law Society accepted that its supervisory requirements could be met by requiring either full-time employment of a solicitor whose qualifications were satisfactory to it or a partnership on terms satisfactory to it. Any partnership would have to be genuine and give the partner full responsibility, together with the solicitor, for the practice.
4. Order. The condition imposed on 18 February 2001 was substituted with that alternative condition. The solicitor was given 60 days to comply, unless the OSS extended time. If she failed to comply, the original condition would apply. There was no order as to costs.

• Court of Appeal (Civil Division): allowed the appeal and substituted a condition requiring full-time employment of a satisfactory solicitor or an approved partnership, with 60 days for compliance.
• OSS Appeals Committee: dismissed the solicitor’s appeal against the adjudicator’s decision on 28 November 2000.
• OSS adjudicator: on 1 October 2000, refused approval of the proposed consultant solicitor and required employment of a solicitor of experience acceptable to the OSS.