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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 147
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B e f o r e :
(THE MASTER OF THE ROLLS)
|IN THE MATTER OF THE SOLICITORS ACT 1974|
|RE A SOLICITOR|
|No. 25 of 2008
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr D Barton (instructed by The Law Society) appeared as a Solicitor Advocate on behalf of the Respondent.
Crown Copyright ©
Sir Anthony Clarke:
"1. He may act as a solicitor only in employment which has first been approved by the Solicitors Regulation Authority
2. He is not a member, office holder or shareowner of an incorporated solicitor's practice
3. He is not a sole principal, partner or salaried partner of any solicitor's practice
4. [Dr Malik] shall immediately inform any actual or prospective employer of these conditions and the reasons for their imposition."
"Dr Malik appeared before the Solicitors Disciplinary Tribunal in November 2007 where an allegation that he had provided to the Law Society an explanation that was false and misleading, was substantiated.
I have also noted the comments of the tribunal (paragraph 50 of the findings) that Dr Malik's evidence was "unconvincing and unreliable" and that "he did not display the frankness and transparency in dealing with his own professional body that was expected of a member of the solicitor's profession".
Accordingly, I am satisfied that Dr Malik should practise at the present time only in a position approved by his regulatory body, in order to protect the interests of the public and the profession, and maintain public confidence in the effective regulation of the profession by the Solicitors Regulation Authority".
Mr Saru's complaint.
"Re: Your Letter
We refer to your letter dated 04/06/03 addressed to M/s Malik Associates Immigration Consultants. Although we are not obliged to consider your complaint however out of courtesy we have decided to reply to you.
We have surprisingly noted the contents of your letter.
You are aware that you were a previous client of Malik Associates, the company that formerly traded at the same premises (albeit the two are unconnected). We understand that Malik Associates had been instructed to handle your application for leave to remain in the United Kingdom as a student. They had submitted your application to the Home Office on 22nd October 01 as you had overstayed in this country.
That application was successful and you were granted leave to remain in the United Kingdom until 31st October 03. The Home Office sent the papers relating to your matter directly to our address and we requested you to collect the same. In February 03 you had collected your entire file of papers from us.
We are surprised that you did not mention any of the concerns regarding your outstanding application when you collected the file and indeed you were happy. Nor did you complain after collecting the file. We note that you had four months to concoct a strange story. The purpose of your letter (to Malik Associates) is beyond our understanding.
We understand that you had instructed Malik Associates to make an application on your behalf for leave to remain in the UK as a student. It is our understanding that Malik Associates NEVER accepted any instructions form you to make any application for 'indefinite leave to remain in the UK'. You are fully aware that you do NOT qualify for indefinite leave to remain in the UK also it is not possible in your matter to make two different immigration applications at the same time.
We are extremely surprised that how and why you felt a need to contact the Home Office while you know that your immigration matter was decided in December 02. How Home Office could have any record for your 'application for indefinite leave to remain' while any such application has never been made?
We believe that at no time whatsoever did you instruct Malik Associates to handle and application regarding indefinite leave to remain. You only instructed them to handle your student application matter, which was successful.
We trust this clarifies the situation.
Malik Law Chambers"
"I wish to complain about the handling of my case by your firm.
I initially instructed your firm on O6/10/2001, after my application for indefinite leave to remain in the U.K. was refused by the Home Office and another practitioner had lodged an appeal against this decision on my behalf. There was delay in taking over my case papers, but eventually you received these and Dr Malik gave my file to a Mr Ali took conduct of my case at this time on behalf of your firm.
I made it clear to Mr Ali that I required assistance with my appeal, and to take steps to remain in the U.K. following my retirement from the British Army. I was not given advice as to the status of my appeal, but I was told that I should apply for indefinite leave and also make an application to extend my student visa. I was asked and did pay £600 -- £250 for dealing with the appeal, and £350 for the applications. Two forms were filled, and I signed both. One was a student visa application and one was an indefinite leave application. I paid the sum of £600 by cheque on 06/10/2001.
It became clear that Mr Ali was not able to deal with my case, and he passed the file to Dr Malik for attention …"
In the latter part of the letter, which I have not quoted, Mr Saru said that he had subsequently spoken to Dr Malik who had been abusive to him.
"Re: Complaint by Mr T B Saru.
Thank you for your letter of 08th April 2005, the contents of which have been noted.
I have previously explained to you that I was neither a partner of the firm nor did Malik Law Chambers ever take instructions from Mr Saru.
In any event I confirm again that this firm received no instructions from Mr Saru to act for him, save to the extent that this firm passed on one letter received from the Home Office, as the Home Office sent the papers relating to Mr Saru's matter to the address where this firm operates from. Mr Saru was contacted and he was requested to collect the documents and in February 2003, Mr Saru collected his entire file of papers.
Also please note again this firm has no connection to the Immigration Consultancy, Malik Associates. That consultancy was trading from 233 Bethnal Green Road. It has since closed down. We moved into the same premises in the last week of April/1st week of May.
The Records Department of the Law Society were also informed accordingly on 02nd April 2002. Clearly, Malik Associates and Malik Law Chambers Solicitors have no connection, but are separate entities.
Please also note that when the previous consultancy dissolved and to avoid confusion, Malik Associates kept their web page to let clients and other 3rd parties know that Malik Law Chambers Solicitors were now operating from the same premises.
[The] Malik Law Chambers web host provider was contacted over two years ago to locate Malik Associates web page and remove it. This was removed accordingly. Copies of the web page references you provided for Malik Associates are dated 18th March 2003. We are now into April 2005 and you will note there is no Malik Associates Immigration Consultancy web page live anywhere.
We hope that the information provided in this letter substantively answers any outstanding queries you had. However, should you have any queries please do not hesitate to contact us."
"a) He gave an explanation to the society during an investigation into a complaint that was false and misleading b) he unreasonably delayed in answering correspondence from the Society."
The SDT proceedings
"I hereby give you notice to admit the documents exhibited to my Statement to the Tribunal. The consequences of a notice to admit is that in the absence of an appropriate counter notice you are taken to admit that the documents are true copies of genuine originals, and in the case of letters, that they were duly sent upon the date upon which they purport so to have been to the named addressees.
I also give you notice of my intention to rely, under the terms of the Civil Evidence Acts, upon statements made within documents, and by this means the documents become admissible to prove the facts stated in them..
All the documents are of course already in your possession.
It follows that in the absence of an appropriate counter notice from you requiring me to strictly prove documents or produce witnesses, the Tribunal can proceed upon the documents alone.
You should understand that the onus is now upon you to respond to this letter by serving an appropriate counter notice if there is any issue of fact. If you fail to do so you will be in difficulty in putting before the Tribunal any version of the facts which is inconsistent with the documents upon which I rely."
"I have not had a response from you to my Civil Evidence Act Notice and it will be plainly helpful for you to indicate that the documents are agreed as documents. If that is not the case, you must tell me specifically which documents you challenge either as to authenticity or content. That will enable me to judge which witnesses I need to call."
Unfortunately for him Dr Malik did not at any time serve a counter-notice requiring the SRA to call Mr Saru to give evidence. It was not until shortly before the hearing that Dr Malik addressed his role in a statement dated 7 November 2007. He said this in paragraph 15 of that statement:
"Apparently, Mr Saru instructed MAIC in relation to his immigration application in October 2001. Mr Saru's file was one of those left with MLC however the application had been submitted and there was no work to be done by MLC. When notification of the (favourable) decision was received by MLC, MLC forwarded the same to Mr Saru and finalised matters by arranging for Mr Saru to collect his file. At no time did I or MLC undertake any substantive work on Mr Saru's file. All work was carried out by MAIC. I am not in a position to definitively comment on who Mr Saru may have dealt with at MAIC however it may have been Mr Imdad Mallick or a caseworker, Asif Ali Malik of MAIC. I believe that Mr Saru's reference to me in the complaint may have arisen as a result of mistaken identity, particularly because my name featured prominently on websites for MLC and for MAIC at the time of the complaint."
The hearing before the SDT.
"50. The Tribunal found allegation (a) to have been substantiated. The Tribunal found the Respondent's evidence to be unconvincing and unreliable. He had exhibited an inability to be open and frank as to his position as was demonstrated in his signing of a form making application for registration to the OISC stating that he was both an advisor and a principal with a firm that he, on his evidence today, never did join. His bold assertion to The Law Society that there had been no connection between Malik Associates and Malik Law Chambers did not display the frankness and transparency in dealing with his own professional body that was expected of a member of the solicitors profession. The Tribunal takes a very serious view of the Respondent's behaviour in this connection.
51. With regard to allegation (b) the Respondent's evidence was unconvincing, in particular it was very surprising that no mention had been made of the letters which he had said he had written to The Law Society until he had produced copies in these proceedings. He had produced corroborative evidence in the form of certificates of posting. It was surprising and no proper reason had been given why he did not produce the evidence which he had placed before the Tribunal to The Law Society's Adjudicator or why he had not produced it in the disciplinary proceedings at an earlier stage. However The Law Society was not able to prove to the requisite very high standard of proof that it had not received the letters which the Respondent said he had sent and for this reason the Tribunal has found allegation (b) not to have been substantiated."
I understand that the reason for the SDT's comments in part of paragraph 51 is that the relevant correspondence which Dr Malik relied upon was only produced at the hearing. However, that correspondence led to the SDT dismissing allegation (b).
" The thrust of the [SRA's] case before the [SDT] … was encapsulated in paragraphs 18 and 19 of its Rule 4 (2) statement:
'18. On 18 April 2005 the Respondent [Dr Malik] wrote in answer … He stated that '… this firm [Malik Law Chambers] has no connection to the Immigration Consultancy, Malik Associates. That consultancy was trading from 233 Bethnal Green Road. It has since closed down. We moved into the same premises in the last week of April/1st week of May .
19. There are two false and misleading statements in this letter. The first is that Malik Law Chambers had no connection with Malik Associates. The second is that Malik Law Chambers moved into the same premises as previously occupied by Malik Associates. There was and is a connection between the two businesses, and they both operated out of the same premises at all material times. There was therefore no movement.'
This is said repeatedly:
'this is all consistent with the two businesses operating out of the same premises with [Dr Malik] participating in various ways in both of them at the same time' …
'Any notion of separation is a fiction'
 From [Dr Malik's] Chronology it can be seen that
(1) the actual order of events was:-
1995-2000 Malik Law Associates Solicitors… occupies 233
2000-April 2002 MA occupies 233
May 2002 – onwards MLC occupies 233.
(2) Throughout the time that MA was at 233, MLC was at 239.
Every letter, bill or other document in any of the Bundles confirms this. In particular, any letter from MLC dated pre-May 2002 will be seen to have come from 239, and every letter from MLC after then will be seen to have come from 233.
 There was accordingly never a time when the two entities occupied the same premises.
 More particularly, it has not even been suggested by the [SRA] that [Dr Malik] was ever a director or member of MA; nor was he.
 Not only were MA and MLC different entities, but being on the same street they were competing in the same market, namely immigration. MA and MRC were at all material times separate entities, and in the context of Mr Saru's complaint, that fact was central and fundamental. It needed to be got clearly across to the [SRA].
 It is submitted that that fundamental fact is not altered.
(1) by the fact, as [Dr Malik] told the [SDT] and the [SDT] accepted, that MA had invited [Dr Malik] to join them and he had accepted but subsequently changed his mind. [See SDT Findings Paras 42 and 43]
(2) by the fact, as [Dr Malik] freely admits, he foolishly signed [an] OISC application form in anticipation of joining MA…
(3) By the fact that MA in its April 2000 website advertised [Dr Malik's] books…
 It is clear as a pikestaff that [Dr Malik] had no involvement whatsoever in any advice that Mr Saru received from MA … Nor did the [SDT] find that he had.
 It is conceded that, after MLC moved into 233 following the collapse of MA, MLC dealt with correspondence that subsequently arrived from Mr Saru. Had MLC simply ignored such correspondence as it was fully entitled to do, [Dr Malik's] downfall would never have ensued
 It is accordingly submitted that, read in the light of the above, [Dr Malik's] fatal letter dated April 2005… although 'bold' was in all essentials true.
 The [SDT's] sanction was in the circumstances totally unjustified. At best, it was punitive out of all proportion to the perceived crime.
 It is submitted that the [SDT's] still unexplained failure to serve [Dr Malik] with its findings until 5 March 2008 only added insult to injury: by that time it was pointless to appeal.
 It is clear that the [SRA's] decision to impose conditions on [Dr Malik's] practising certificate simply follows the [SDT's] unappealed findings."
It is plain from those submissions and indeed from the principal submissions made by Mr Marten yesterday that the essential basis of this appeal is that the SDT's findings were wrong.
"42. [Dr Malik] and Ms Mallik had given a full explanation to the Tribunal of the relationship that existed between Malik Associates and Malik Law Chambers and how it came about that from letter headings it appeared that they operated from either the same premises or premises that enjoyed close proximity. Malik Associates had been trading before [Dr Malik] was invited to join that firm. He had initially accepted that invitation, postponing his joining until he had finished writing a book. The Tribunal noted that Malik Associates offered books by [Dr Malik] for sale on its Website.
43. When [Dr Malik] finished his book, he changed his mind. He did not join Malik Associates but set up a solicitor's practice. That practice prospered to the detriment of Malik Associates, which subsequently closed.
44. Malik Law Chambers in due course employed staff from the former firm of Malik Associates. Ms Mallik, a director of the company trading as Malik Associates, and the co-author with [Dr Malik] of a book had become a caseworker, then a trainee and later a solicitor at Malik Law Chambers. [Dr Malik's] letter to The Law Society dated 18th April 2005 stated that Malik Law Chambers had no connection with Malik Associates. In view of the history of these two firms which had been placed before the Tribunal, [Dr Malik's] relationship with Ms Mallik and other members of staff of Malik Associates, and his acceptance of a job with Malik Associates, the Tribunal found that [Dr Malik] clearly misled The Law Society by making that bold assertion without making sure that The Law Society was fully apprised of all the relevant facts. The Tribunal found allegation (a) to have been substantiated."
(3) The SDT expressed its conclusion at paragraph 50, which I have already quoted.
(4) The SDT heard the witnesses, namely Dr Malik and Ms Malik, and was entitled to reach those conclusions.
5) Neither the SRA nor I as Master of the Rolls on appeal from the SRA is in any position to contradict the SDT's conclusions on that evidence since I have not heard the evidence whereas the SDT did.
6) In these circumstances there is no basis upon which the SRA or I could do other than accept the reasoning and conclusions of the SDT.
1) In the letter of 23 June 2003 Mr Saru made it clear that, whether he had strictly instructed MA or MLC, the file had been passed to Dr Malik for his attention and that he was dealing with it.
2) Although MLC made it clear in correspondence that it was not it but MA which had been instructed, Dr Malik did not respond to the allegation that it was he that had been entrusted with the file until his statement made shortly before the hearing.
3) Dr Malik did not serve a counter-notice which would require Mr Saru to give oral evidence.
4) Dr Malik and Miss Malik gave evidence which the SDT was bound to evaluate.
5) Its evaluation was that set out in paragraph 50 and in paragraphs 42 to 44. It is right to say, as Mr Marten submitted, that in paragraphs 42 and 43 and the beginning of 44, the tribunal accepted some parts of the explanation given by Dr Malik, but in the remaining part of paragraph 44 and paragraph 50 the SDT concluded that the evidence of Dr Malik and Ms Malik was unconvincing and unreliable in the particular respects there set out. In particular it focussed on the letter of 18 April in the latter part of paragraph 44.
(5) In all these circumstances I could not possibly reach a different conclusion given that I have not heard any of the oral evidence.
(1) Whatever the rights and wrongs of the SDT approach and conclusions, enough is enough.
(2) Dr Malik has many references testifying to his expertise and to his conduct as an immigration expert, lawyer and solicitor.
(3) Mr Saru's substantive complaints were not justified. It was not held that Dr Malik did not give him proper service or he or indeed any of the firms failed to carry out Mr Saru's instructions.
(4) The evidence shows that Dr Malik has been unable to find a role which complies with the conditions on his certificate.
(5) In these circumstances the conditions were not and in particular are not necessary, reasonable or proportionate in the interests of the public and of the profession.
Order: Appeal dismissed
SIR ANTHONY CLARKE
THE MASTER OF THE ROLLS