Brandon, Re the Solicitors Act 1974

Practising-certificate conditions imposed under the Solicitors Act 1974 are regulatory, not punitive. They may be imposed to protect the public and the reputation of the profession, but must be necessary, reasonable and proportionate.

An annual practising certificate does not impose conditions indefinitely. On each renewal the regulator must reconsider whether conditions remain appropriate and must issue an unconditional certificate once supervision is no longer necessary or proportionate. The Master of the Rolls’ statutory jurisdiction is confined to an appeal concerning the imposition of conditions. It does not extend to directing how the regulator operates them or restraining future regulatory action.

Mr Brandon appealed against the SRA’s decision to impose conditions on his 2007/2008 practising certificate. The conditions prevented him from acting as a sole principal and required him to practise in an approved employment, partnership, or incorporated practice, with reporting and disclosure requirements.

His earlier disciplinary and financial history had led to conditions on previous certificates. He had resumed practice through an LLP in 2006, but his designated member left in 2007. An SRA adjudication panel upheld the conditions on 26 March 2008 and refused approval for the LLP arrangement without that member. A further panel rejected an appeal concerning that approval on 13 May 2008.

The central issue was whether the SRA could properly retain the practising-certificate conditions, and whether the Master of the Rolls had jurisdiction to review the LLP approval decision or restrain prospective SRA intervention.

1. Appeal dismissed. The conditions imposed on the 2007/2008 practising certificate were lawful and proportionate. The appeal against refusal to approve the LLP arrangement could not be entertained because the jurisdiction under section 13 of the Solicitors Act 1974 was confined to decisions imposing practising-certificate conditions.

2. The Master of the Rolls had no inherent regulatory or disciplinary jurisdiction permitting an injunction against the SRA. The relevant jurisdiction was statutory and appellate or supervisory in character. Section 50 did not provide a wider power to prevent regulatory action. Any challenge to a future unlawful intervention would have to be brought in the ordinary courts.

3. Practising-certificate conditions are regulatory safeguards rather than disciplinary punishment. Following the principle discussed in Camacho v The Law Society [2004] EWHC 1675, and applied in Awan v The Law Society [2003] EWCA Civ 1969, their purpose is to secure appropriate oversight until a solicitor has shown that supervision is no longer needed to protect the public. They must be necessary, reasonable and proportionate.

4. Camacho and Taylor v The Law Society [2005] EWCA Civ 1473 did not establish that the SRA could not impose conditions for an indefinite period. The SDT’s disciplinary powers and the SRA’s regulatory power to impose practising-certificate conditions are distinct. Moreover, each certificate is granted annually. The SRA must make a fresh assessment at each renewal and, once supervision is no longer necessary or proportionate, must issue an unconditional certificate.

5. The SRA had made no error of principle or fact. Mr Brandon’s previous disciplinary history, lengthy absence from practice and comparatively recent return to practice justified continued supervision. The adjudicator had not relied on disputed allegations. The Court expressed no view on whether future intervention was appropriate, but noted that no evidence showed that the LLP had operated unsatisfactorily.

• Court of Appeal (Civil Division). The Master of the Rolls dismissed the appeal against the practising-certificate conditions and held that he lacked jurisdiction to review the refusal to approve the LLP arrangement.
• SRA adjudication panel, 13 May 2008. Rejected Mr Brandon’s appeal concerning the refusal to approve his proposed LLP membership arrangement.
• SRA adjudication panel, 26 March 2008. Dismissed the review of the adjudicator’s decision imposing conditions and, at first instance, refused approval of the LLP arrangement.
• SRA adjudicator, 22 January 2008. Imposed conditions on Mr Brandon’s 2007/2008 practising certificate.