Adams v The Law Society of England and Wales & Ors

Summary judgment is appropriate where the factual basis of a claim is fanciful or entirely without substance, although the court must not conduct a mini-trial.

A solicitor challenging an intervention faces a two-stage inquiry: whether the statutory grounds exist and, if so, whether the intervention should continue after balancing public protection against its serious consequences. Misfeasance in public office is an intentional tort requiring a high evidential threshold. Repeated accounting irregularities and use of client money may provide a proper basis for suspecting dishonesty, even without theft or an intention permanently to deprive clients of their money.

The statutory intervention regime is not, of itself, incompatible with Convention rights. Claims against individual employees under the Human Rights Act require the defendant to be a public authority.

The claimant, a solicitor, challenged applications arising from proposed proceedings against the Law Society and employees involved in an intervention into his practice in 2004. He sought an extension of time to serve the claim form and proposed amended particulars, or permission to appeal an order refusing further time.

The proposed claims alleged misfeasance in public office and breaches of Convention rights, based principally on alleged inaccuracies, omissions and bad faith in a forensic investigation report and case note used to support the intervention. The defendants sought strike-out and summary judgment.

The central issues were whether the procedural orders should be disturbed, whether the claims were abusive or time-barred, whether the pleaded facts had a real prospect of establishing liability, and whether the relevant documents attracted immunity.

1. Applications dismissed. The claimant was refused permission to appeal the order refusing further time. The defendants’ separate application for summary judgment was not formally determined, although the court held that summary judgment would have been granted if the proposed amended particulars had been served.
2. The court applied the approach to summary judgment stated in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, ED and F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 and Swain v Hillman [2001] 1 All ER 91. The court could not conduct a mini-trial, but it was not required to accept factual assertions lacking real substance, particularly where contradicted by contemporary documents.
3. The investigation report and case note, viewed in context, appeared factual and balanced. The accounting matters, especially the temporary use of client money to support the office account, provided ample reason to suspect dishonesty. Dishonesty in this context was not confined to theft or permanent deprivation. The proposed allegations of deliberate manipulation, targeted malice and misfeasance therefore had no real prospect of success.
4. The court accepted the two-stage approach to an intervention identified in Dooley v Law Society: first, whether the statutory grounds were made out; secondly, whether continuation of the intervention was justified after balancing public protection against the serious consequences for the solicitor. The statutory regime itself was not incompatible with Convention rights, although an individual solicitor could in principle bring a Convention claim in an individual case.
5. The Human Rights Act claims against the individual defendants were misconceived because employees of the Law Society were not themselves public authorities within section 6(3)(b). The claim against the Law Society failed on the same factual basis as the misfeasance claim.
6. The court declined to decide conclusively whether the forensic investigation report and case note were protected by absolute privilege or immunity. It also declined to strike out on causation, since causation was essentially factual, but the merits independently required dismissal of the applications.
7. The claimant’s earlier summary intervention proceedings did not, in principle, preclude properly constituted later compensation proceedings, because the statutory procedure principally addressed withdrawal of the intervention rather than compensation. That observation was immaterial to the result.

First-instance decision. The judgment records earlier proceedings concerning the same intervention, including [2006] EWHC 1053 (Ch) and the refusal of permission to appeal in [2006] EWCA Civ 1857, but those decisions were not under appeal in this judgment.