No 4 of 2006 v Davis & McGlinchey

Conditions on a solicitor’s practising certificate are regulatory safeguards, not necessarily punishment. The Law Society may restrict practice where this is necessary to protect the public and maintain confidence in the profession. Dishonesty is not required. A restriction preventing practice as a partner or principal is not inherently disproportionate. Proportionality depends on the circumstances, including the solicitor’s history of professional failures, regulatory non-cooperation and the effectiveness of supervision. Adverse consequences for the solicitor do not by themselves invalidate the restriction. Subsequent events may be considered on appeal, but later improvements must justify interference with a decision that was reasonable and proportionate when made.

Mr Davis and Ms McGlinchey appealed under section 13A of the Solicitors Act 1974 against conditions imposed by the Law Society on their practising certificates for 2004/2005 and 2005/2006. The conditions initially allowed their partnership to continue temporarily, but from 1 July 2006 restricted each solicitor to approved employment and prohibited practice as a principal, partner or salaried partner.

The restrictions followed a substantial history of client complaints, inadequate services, failures to respond to the Law Society and clients, adverse costs and judgment debts, and pending disciplinary proceedings. The appellants argued that the restrictions were disproportionate, oppressive, irrational and inconsistent with legitimate expectations. The central issue was whether the Law Society was entitled to conclude that they should no longer practise as principals or partners.

1. Appeal dismissed. The conditions imposed on the practising certificates were reasonable, proportionate and within the discretion afforded to the regulator. They were regulatory safeguards directed to protecting the public and maintaining public confidence, rather than punishment.
2. The Law Society’s regulatory role was not confined to dishonesty. Solicitors were required to maintain high professional standards, and repeated failures in client care, case progression, complaint handling and cooperation with the regulator could justify intervention without any allegation of dishonesty. The appellants’ admitted conduct unbefitting a solicitor and continuing failures supported the conclusion that neither was able satisfactorily to discharge professional duties or regulatory responsibilities.
3. The adverse effect on the appellants did not make the decision wrong in principle. A restriction preventing practice in partnership or as a principal was not inherently disproportionate. Its validity depended on the circumstances, including the evidence of professional and regulatory failures and whether proposed supervision had been effective.
4. The court considered events after the panel’s decision. Further delays, failures to respond, unpaid or delayed costs and continuing complaints did not provide sufficient grounds to alter the conclusion. The later appointment of a practice manager did not overcome the fact that the appellants remained in control of the partnership.
5. Although the appeal was dismissed, immediate enforcement which effectively closed the partnership would not serve the public interest. The operative conditions were therefore postponed until 1 April 2007.

• Court of Appeal (Civil Division): [2006] EWCA Civ 1869 — appeal dismissed. The operative conditions were postponed until 1 April 2007.
• Law Society panel: conditions imposed on the 2004/2005 and 2005/2006 practising certificates, restricting practice as a principal, partner or salaried partner from 1 July 2006. The appellants’ appeals were dismissed or substantially dismissed.
• Law Society adjudicator: conditions imposed on 11 October 2005, permitting the partnership to continue subject to supervision and further conditions.