Gadd v The Law Society

A statutory scheme allowing a solicitor to challenge an intervention in the High Court within eight days is compatible with Convention rights where it provides a prompt judicial challenge. A solicitor cannot circumvent that procedure by recasting a challenge to the intervention, its decision-making process or its consequences as a human-rights, natural-justice or other collateral claim. A statutory intervention regime may be a self-contained and exhaustive code, excluding private-law duties owed by the regulator. Misfeasance in public office requires a properly arguable case of bad faith, including an improper purpose or knowledge of lack of power and probable injury.

The claimant, a solicitor, challenged an intervention by the Solicitors Regulation Authority into his practice. His original claim sought damages under section 8 of the Human Rights Act 1998 for alleged breaches of Convention rights arising from the eight-day period in paragraph 6(4) of Schedule 1 to the Solicitors Act 1974. Claims under section 28(3) of the Legal Services Act 2007 had previously been struck out.

The claimant sought permission to amend to plead natural justice, the rule of law, breach of statutory duty under the Legislative and Regulatory Reform Act 2006, and misfeasance in public office. The issues were whether the limitation challenge was arguable and whether the proposed amendments had a real prospect of success.

1. Limitation challenge. The claim that the eight-day statutory period was incompatible with Convention rights had no real prospect of success. The intervention scheme had been held compatible with the Convention in Holder v The Law Society [2003] 1 WLR 1059, supported by Sheikh v The Law Society [2006] EWCA (Civ) 1577 and Adams v The Law Society [2012] EWHC 980 (QB).
2. The claimant’s proposed distinctions between challenging the intervention and challenging the process leading to it or its consequences disclosed no material difference. Matters capable of being raised in a Part 8 challenge could not be pursued by a collateral route. The attempt was an abuse of process.
3. The intervention regime in Schedule 1 to the Solicitors Act 1974 was self-contained and exhaustive. The law of tort did not impose a private-law duty owed by the Law Society to a solicitor in relation to an intervention. Natural justice did not require a separate pre-intervention hearing because the statutory scheme deferred, rather than denied, an opportunity to challenge the case before the High Court.
4. The proposed claim under the Legislative and Regulatory Reform Act 2006 was misconceived. Its principles guided regulators and did not create an actionable private-law duty. A bare claim for breach of the rule of law was not a cause of action known to English law.
5. Misfeasance in public office requires bad faith. Targeted malice involves conduct specifically intended to injure; alternatively, liability may arise where a public officer knowingly acts without power and with probable injury, without an honest belief in the lawfulness of the act. The pleading identified no improper purpose and amounted at most to negligence.
6. Permission to amend was refused. The Law Society was granted summary judgment. Costs were summarily assessed at £40,000. Permission to appeal and a leapfrog certificate were refused.