Malik, Re Solicitors Act 1974

Regulatory conditions on a solicitor’s practising certificate must be necessary, reasonable and proportionate in the interests of the public and the reputation of the profession. An appeal against those conditions cannot be used as a collateral attack on unappealed findings of the Solicitors Disciplinary Tribunal. The appellate decision-maker must ordinarily proceed from those findings, particularly where they depend on oral evidence heard by the Tribunal. New material may be considered, but only material that has become available since the Tribunal’s decision can justify departing from it. Conditions may remain justified by serious findings of misleading conduct even where there was no finding that the solicitor provided unsatisfactory services to the complainant.

A solicitor appealed against conditions imposed by a Solicitors Regulation Authority adjudicator when his suspended practising certificate was restored. The conditions restricted him to SRA-approved employment, prohibited him from holding specified positions in a solicitor’s practice, and required disclosure of the conditions and their reasons.

The conditions followed an unappealed Solicitors Disciplinary Tribunal finding that he had given the Law Society a false and misleading explanation during its investigation of a complaint. An SRA Appeals Panel dismissed his appeal and endorsed the same, incorrect formulation of the regulatory test. The central issues were whether the Tribunal’s findings could be challenged collaterally and whether, on the facts as they stood when the conditions were imposed, the conditions were necessary, reasonable and proportionate.

1. Appeal dismissed. The correct test, accepted by both parties, was whether conditions were necessary in the interests of the public and the reputation of the profession, and whether they were also reasonable and proportionate. The adjudicator and Appeals Panel had applied the wrong formulation, but the error did not require the conditions to be set aside.
2. The solicitor had not appealed to the High Court under Solicitors Act 1974, section 49, against the Tribunal’s decision. His challenge to the Tribunal’s factual and legal conclusions was therefore an impermissible collateral attack. The starting point for the SRA and the Master of the Rolls was the Tribunal’s decision. New material arising since that decision could be considered, but there was no significant new material.
3. The Tribunal had heard the solicitor and another witness. The appellate court had not heard that oral evidence and could not properly contradict the Tribunal’s assessment that the solicitor’s evidence was unconvincing and unreliable. The Tribunal was entitled to find that his assertion that the two businesses had no connection misleadingly omitted relevant history.
4. Approached as at the time of the adjudicator’s and Appeals Panel’s decisions, the conditions were necessary, reasonable and proportionate in the interests of the public and the reputation of the profession. Later difficulty in obtaining compliant employment, favourable references, the absence of a finding of inadequate service to the complainant, and alleged inconsistency with the treatment of others did not justify allowing the appeal.
5. The SRA was required to reconsider the position afresh for the later practising-certificate year. Any future assessment remained a matter for the SRA, not the Court of Appeal.

• Court of Appeal (Civil Division): [2009] EWCA Civ 147. Appeal from the SRA adjudicator’s decision and the SRA Appeals Panel’s dismissal was dismissed. The conditions on the practising certificate were upheld.
• SRA Appeals Panel: dismissed the solicitor’s appeal on 17 September 2008 and considered the disciplinary finding sufficiently serious to warrant regulatory conditions.
• SRA Adjudicator: terminated the suspension of the practising certificate on 23 July 2008, subject to conditions.
• Solicitors Disciplinary Tribunal: found the allegation of a false and misleading explanation substantiated, imposed a six-month suspension and ordered costs. No appeal was brought to the High Court under section 49 of the Solicitors Act 1974.