Ayre v The Law Society

Under the Qualified Lawyers Transfer Regulations 1990, the regulator may require an overseas lawyer to complete up to two years’ practical experience, but must assess the applicant’s existing experience and qualifications. Guidance cannot convert that discretion into a mandatory two-year requirement or impose an absolute five-year recency limit where the Regulations contain none. Experience gained outside England and Wales may remain relevant, although the absence of experience of the English civil justice system may justify supplementary training. A short litigation course can satisfy the remaining requirement where, on the particular facts, it supplies the missing domestic experience. The assessment is fact-sensitive.

Mr Ayre, an Australian-qualified solicitor, applied for transfer to the roll under the QLTR after working in Australia and Germany. He passed the required parts of the transfer test but was required to obtain practical contentious experience. The SRA progressively reduced the requirement from eight months to six months and finally three months. The appeal concerned whether his earlier Australian contentious experience had to be considered and whether a two-week litigation course could satisfy the remaining requirement.

The appeal was allowed. The Master of the Rolls exercised the power under regulation 17(1)(b)(ii) to determine the appropriate requirement himself rather than remit the matter.

1. Regulation 11(2), read with regulation 5(3), confers a discretion. The Society may require an overseas lawyer to complete up to two years’ practical legal experience, but two years is not automatically required. Regulation 5(3) requires the Society to have regard to the nature and extent of the applicant’s practical experience and other qualifications.

2. The SRA guidance was not part of the Regulations. It was inconsistent with regulation 11(2) to state that certain applicants were required to complete two years’ experience, because the regulation says that an applicant may be required to do so. The guidance also unlawfully fettered the discretion by treating experience gained within the previous five years as mandatory. The five-year period could be treated only as a relevant factor, with appropriate weight depending on how long ago the experience was obtained.

3. The chief adjudicator therefore erred in principle by treating the five-year period as an absolute limit and by failing properly to consider Mr Ayre’s Australian contentious experience. He had spent fifteen months, first as a trainee and then as a qualified solicitor, doing predominantly contentious work. That experience was only shortly outside the period in the guidance and was significant enough to require consideration.

4. The Australian experience did not provide experience of the English civil justice system, including the operation of the Civil Procedure Rules. However, Mr Ayre had acquired practical litigation experience. In the particular circumstances, attendance at both the theoretical and practical components of the College of Law’s two-week litigation course would provide the necessary additional experience. The conclusion was at the borderline and each application depended on its own facts.

5. The requirement was substituted accordingly: Mr Ayre was required to attend the two-week litigation course before applying for admission. There was no order as to costs.

• Court of Appeal (Civil Division): The appeal from the SRA chief adjudicator’s decision of 9 April 2008 was allowed. The requirement was substituted with attendance at a two-week litigation course: [2008] EWCA Civ 1379.
• SRA review panel: The review panel varied the original eight-month requirement to six months on 9 October 2007.
• SRA adjudicator: On 29 May 2007, the adjudicator required eight months’ contentious experience.