Heather, Re A Solicitor

An appeal against conditions on a solicitor’s practising certificate is a rehearing, although the appellate court should have regard to the regulator’s reasoning. Conditions are regulatory rather than punitive. They must be necessary to protect the public or the profession’s reputation and proportionate.

A training condition, recorded on the certificate, may be justified while serious disciplinary allegations are pending. Subsequent disciplinary findings may be considered on the rehearing. A prior agreement cannot prevent performance of a statutory public-interest duty. The appeal was dismissed.

Dr Michael Heather appealed against an SRA adjudicator’s decision of 30 September 2008 imposing a condition on his practising certificate requiring him to attend an accredited course on the Solicitors’ Code of Conduct 2007. The SRA appeals panel dismissed his internal appeal.

The appeal was stayed while disciplinary proceedings proceeded. The Solicitors Disciplinary Tribunal later found 11 of 13 allegations proved and suspended Dr Heather from practice for one year. The issues included jurisdiction after expiry of the certificate, the meaning of a case to answer, the proper appellate approach, the alleged effect of a conciliation agreement, natural justice, necessity and proportionality, and publication of the condition.

Lord Neuberger dismissed the appeal and ordered Dr Heather to pay the SRA’s costs, summarily assessed at £4,500 within four weeks.

1. Jurisdiction and rehearing. Although the practising certificate had expired, the court accepted that it retained jurisdiction under section 13(4) of the Solicitors Act 1974. An appeal of this kind is by way of rehearing, but the court should have regard to the adjudicator’s and appeal panel’s reasoning. The court could also consider the later SDT decision. In the absence of a legal challenge or fresh material casting doubt on it, the court proceeded on the basis that the suspension decision stood.
2. Case to answer. Under the Solicitors’ Disciplinary Proceedings Rules 2007, a case to answer means a case for the solicitor alleged to be in breach to answer. It means an arguable or prima facie case identified from the papers. If no such case exists, the matter ends; if it exists, the matter proceeds.
3. Regulatory discretion and procedural fairness. The court’s appellate jurisdiction concerned the imposition of conditions, not the earlier decision under section 12(1)(e) of the Solicitors Act 1974 to vest the discretion in the regulator. A challenge to that decision would ordinarily be by judicial review. The statutory appeal, viewed as part of the overall process, provided an ordinary hearing consistent with Article 6, applying the reasoning in Lebow, Re a Solicitor No 13 of 2007 [2008] EWCA Civ 411.
4. Necessity and proportionality. Conditions on a practising certificate are regulatory, not disciplinary or punitive. They must be necessary to protect the public or the reputation of the profession and proportionate. The seriousness of the allegations, the later findings that most allegations were proved, and the resulting suspension made the condition appropriate. Requiring attendance at a course and recording that requirement was neither unreasonable nor disproportionate. The regulator was not required to use an informal warning instead.
5. Estoppel and publication. Any alleged conciliation agreement could not prevent the regulator from performing a statutory duty imposed in the public interest. The court applied Malik v The Law Society No 2 of 2002 [2002] EWCA Civ 490. Publication was not material to the appeal and, in any event, the court found no basis for complaint about it.

1. Court of Appeal (Civil Division): Appeal dismissed. Costs summarily assessed at £4,500, payable within four weeks.
2. Solicitors Regulation Authority appeals panel: Internal appeal against the adjudicator’s decision dismissed.
3. SRA adjudicator: Condition imposed on the 2007/2008 practising certificate requiring attendance at an accredited course on the Solicitors’ Code of Conduct 2007.
4. Solicitors Disciplinary Tribunal: In related disciplinary proceedings, 11 of 13 allegations were found proved and Dr Heather was suspended from practice for one year. The Court of Appeal considered that decision on the rehearing.