Bryant v Solicitors Regulation Authority

An appeal against conditions on a practising certificate is by way of rehearing. Conditions must be necessary and proportionate to protect the public interest and the reputation of the profession. Their purpose is regulatory, not punitive, and may include supervision and rehabilitation after professional misconduct. Adverse consequences in the professional indemnity insurance market cannot displace those statutory criteria, although they reinforce the need to ensure that conditions are no more onerous than necessary. Where conditions are rationally directed to public protection, professional confidence and rehabilitation, the court should not replace them with undertakings merely because they may make employment more difficult.

The appellant, a solicitor, had been suspended for two years after a finding of professional misconduct. On the expiry of the suspension, the Solicitors Regulation Authority issued practising certificates subject to conditions concerning approved employment, management or ownership of a practice, money-laundering responsibilities and rehabilitation training.

An SRA Appeal Committee dismissed his challenge to the conditions. He appealed to the High Court under section 13 of the Solicitors Act 1974, as amended by Schedule 16 to the Legal Services Act 2007. The central issues were whether the conditions were necessary to protect the public and the reputation of the profession, and whether they were reasonable and proportionate.

1. Outcome. The appeal was dismissed. The five conditions imposed on the appellant’s practising certificate were upheld.
2. An appeal under section 13 of the Solicitors Act 1974 is by way of rehearing. The court must give appropriate weight to the judgment of the adjudicator and appeal panel, but must decide whether the conditions are necessary and proportionate.
3. The governing purpose of practising-certificate conditions is protection of the public interest and maintenance of confidence in the profession. The reference to professional reputation is an incident of that public-protection purpose. Conditions are not punitive. They may provide oversight while a solicitor demonstrates that supervision is no longer required and may assist rehabilitation after a period away from practice.
4. The practical fact that conditions may make employment difficult, because of professional indemnity insurance requirements, cannot determine the statutory exercise of the SRA’s powers. If conditions are appropriate and proportionate, they should not be removed for that reason. The insurance-market consequences may, however, make it especially important to scrutinise necessity and proportionality.
5. There was no established basis for accepting undertakings instead of conditions. Undertakings would either make no difference or be less effective in protecting the public and maintaining confidence in the profession. The challenged conditions were rational, logical, necessary and proportionate, having regard to the appellant’s prior misconduct, lengthy absence from practice, public protection and rehabilitation.

• Solicitors Regulation Authority Appeal Committee: dismissed the appellant’s appeal against the practising-certificate conditions on 30 March 2011.
• High Court (Administrative Court): dismissed the statutory appeal and upheld the conditions.