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You are here: BAILII >> Databases >> European Court of Human Rights >> Anal SHEIKH v the United Kingdom - 51144/07  ECHR 649 (23 April 2010)
Cite as:  ECHR 649
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23 April 2010
by Anal SHEIKH
against the United Kingdom
lodged on 20 November 2007
STATEMENT OF FACTS
The applicant, Miss Anal Sheikh, is a British national who was born in 1960 and lives in Middlesex. She is represented before the Court by Mr P. Engelman, a barrister practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Pre-hearing events
The applicant is a solicitor who joined the firm Ashley & Co. as an assistant solicitor in 1987. In 1993 she became the sole proprietor and practitioner in the practice. She is the holder of a conditional practising certificate but is not currently in practice. Between 1987 and 2005, the applicant was the subject of sixteen successful complaints to the Law Society, of which five related to overcharging.
In February 2004, the Law Society commenced an inspection of and investigation into Ashley & Co. On 16 February 2004 the head of forensic investigations at the Law Society wrote to the applicant stating that the books of Ashley & Co. were to be investigated and that officers of the Law Society would be attending her office for that purpose. The letter said that it was not the policy of the Law Society's Compliance Board to authorise staff to disclose the reasons for inspections. The applicant was therefore not advised of the reasons for the inspection.
Two different departments of the Compliance Board were involved in the investigation: forensic investigations, which dealt with concerns about compliance with the Solicitors' Accounts Rules; and multiple complaints investigation, which dealt with all other complaints. The inspection commenced with a visit to the applicant's office on 23 February 2004, which lasted around two or three days. Five further visits took place, the last on 21 July 2004. The Law Society's inspectors from the multiple complaints investigation department also wrote six lengthy letters to the applicant asking for further information in connection with the investigation. Although the applicant co-operated with the investigators in attendance at her offices, she did not reply in writing to any of the letters.
Following the final visit, the investigative officers compiled a report on the applicant's practice, intended for internal consideration within the Law Society, in order to determine whether any of the powers contained in the Solicitors Act 1974 (“the 1974 Act” – see “Relevant domestic law and practice”, below) should be exercised in relation to Ashley & Co. The report (“the FI Report”) was prepared in the form of a letter dated 22 November 2004 from the head of the forensic investigations department to the head of investigation and enforcement in the Law Society's Compliance Directorate. The FI Report was 33 pages long, with between 70 and 80 pages of appendices.
On 10 December 2004, a member of the multiple complaints investigation department wrote a 19-page letter to the applicant. She did not enclose a copy of the FI Report at that time. The letter set out allegations of professional failures made against the applicant and invited her to reply by 4 January 2005. The allegations related generally to alleged failures to comply with provisions of the Solicitors' Practice Rules (see “Relevant domestic law and practice”, below). The letter contained no reference to the Solicitors' Accounts Rules, nor did it refer to any allegation of actual dishonesty on the part of the applicant.
The applicant, despite being reminded in the letter that she had a professional obligation to reply to the Law Society, did not reply.
On 23 December 2004, the Law Society wrote to the applicant again, this time enclosing the FI Report. She was asked to comment on the report by 10 January 2005. A covering letter contained several allegations of breaches of the Solicitors' Accounts Rules and invited comments on these allegations. In addition, the letter stated that the investigators were satisfied that the applicant had failed to comply with provisions of those rules, and that therefore the power to intervene (essentially, to take control of the applicant's practice – see “Relevant domestic law and practice” below) was exercisable. The letter contained no allegation of dishonesty.
On the evening of 23 December 2004 the applicant received a telephone call from one of the investigators telling her that there would be a large and important parcel waiting for her at her office the next day and that she should collect it and read it in order to reply by 10 January 2005. The applicant told the investigator that she was going on holiday with her mother to India the following day and that she could not deal with a large communication from the Law Society by 10 January 2005. She accordingly asked for an extension of time. No extension was granted. The applicant went on holiday without collecting the parcel. Upon her return, the parcel was waiting for her. However, she did not open it. She subsequently explained that the reason she did not open it was “because she could not deal with it”.
On an unknown date, the FI Report was forwarded to the Adjudication Panel of the Compliance Board (“the Panel”). It was accompanied by a recommendation that stringent and immediate conditions imposed on the applicant's practising certificate would be sufficient to protect the public and the conclusion that intervention was not necessary, although the matter was “finely balanced”.
On 17 February 2005, the applicant received funds in the sum of GBP 254,000 in respect of a mortgage on her own home. As she intended to invest the funds in a client's business, she instructed her secretary to pay the funds into the firm's client account, intending to deal with the necessary paperwork later. However, her secretary instead credited the firm's office account. The applicant was not made aware of the error.
The Panel met on 17 February 2005. Following a consideration of the FI Report, the Panel decided that there should be an intervention in the applicant's practice. It adopted several resolutions, the most significant of which being:
“1. The Panel were satisfied that grounds for intervention existed under paragraph 1(1)(a)(i) of Part I of Schedule 1 Solicitors Act 1974 (as amended), namely that the Panel were satisfied that they had reason to suspect dishonesty on the part of Ms Anal Sheikh practising as Ashley & Co ... in connection with her practice as a solicitor.
2. The Panel were also satisfied that grounds for intervention existed under paragraph 1(1)(c) of Part I of Schedule 1 Solicitors Act 1974 (as amended) namely that Ms Anal Sheikh failed to comply with the Solicitors' Accounts Rules.
3. The Panel balanced the need to exercise powers of intervention in order to protect the public and the serious consequences of intervention for a solicitor. The Panel were satisfied that it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in the Forensic Investigations Report dated 22 November 2004.
4. The Panel were further satisfied that it was necessary to exercise powers of intervention in order to protect the public.
5. The Panel RESOLVED to intervene into Anal Sheikh's practice at Ashley & Co ...”
No particulars were given of why the Panel suspected dishonesty on the part or the applicant or why it concluded that she had breached the Solicitors' Accounts Rules.
The Council of the Law Society also passed resolutions providing that the applicant's practice monies vest in the Law Society and that the applicant be required to deliver practice documents to its nominated agent. In accordance with the applicable legislation, the applicant's practising certificate was automatically suspended.
The intervention was initiated later that day and a copy of the resolution was faxed to the applicant at her office. The applicant was given notice that an intervention had been ordered as a result of breaches of the Solicitors' Accounts Rules. The notice referred to paragraphs 6 and 9 of Schedule 1 to the 1974 Act (provisions on the Law Society's powers on intervention – see “Relevant domestic law and practice”, below). It made no reference to breaches of the Solicitors' Practice Rules. The applicant was out of the office at the time and did not receive notice of the intervention until the morning of 18 February 2005.
Before her arrival at the office on 18 February 2005, and therefore before receiving notice of the intervention, the applicant instructed her secretary to transfer the GBP 254,000 from the client account to her personal bank account. The secretary effected the applicant's instructions, with the result that the client account was debited in the sum of GBP 254,000, leaving it heavily overdrawn.
On 25 February 2005, the applicant issued an application to the High Court to request the withdrawal of the intervention under paragraphs 6(4) and 9(8) of Schedule 1 to the 1974 Act (see “Relevant domestic law and practice” below). Realising that it could be some weeks, if not months, before the matter was heard by the High Court, the applicant's solicitor wrote two letters to the Law Society proposing measures to allow the applicant to continue to have conduct of a limited number of specific matters on conditions intended to protect clients against the risk perceived by the Law Society to exist. One of the conditions was that she would not issue any bills to clients. The Law Society refused to accommodate the requests; no reasons were provided for the refusal.
On or about 7 March 2005, the applicant sought case management directions. In particular, she sought directions for a speedy trial. She also sought, by way of interim relief, an order for the restoration of her practising certificate. The Law Society did not oppose the request for a speedy trial, but did object to the application for the restoration of the applicant's practising certificate.
On 9 March 2005, the application for case management directions came before the court, which made an order for an expedited trial. No order was made regarding restoration of the practising certificate. Instead, the applicant applied to the Law Society under section 16(3) of the 1974 Act to have her practising certificate restored. The outcome of the application was that the Law Society granted the applicant a new practising certificate for 2004/2005, but imposed conditions which made it impossible for her to resume the Ashley & Co. practice. The conditions required that she did not act as sole principal, as a partner or as a salaried partner.
2. The proceedings before the High Court
The application for withdrawal of the intervention came before the High Court on 4 May 2005 and the trial lasted eight days. On 9 June 2005, Park J directed that the intervention be withdrawn, reserving his full judgment until 1 July 2005. In his subsequent written judgment, Park J explained (at paragraph 3):
“Because Miss Sheikh had been excluded from her practice from 18 February, because the trial did not begin until May, because the matter was one in which I felt that I would need to reflect and to reread much of the documentation and of the evidence before I could finally make my mind up, and because every day which passed was potentially damaging to Miss Sheikh even if her application succeeded in the end (because clients would progressively melt away and take their business to other firms), there was discussion in the hearing of the possibility of my announcing my decision first, as soon as I was confident of what it was, but preparing my judgment and delivering it or handing it down later. I decided to take that course ...”
In short, Park J's reasons for ordering the withdrawal of the intervention were (at paragraph 4):
“First, on the basis of the evidence and arguments before me (which it is right for me to take fully into account, not limiting myself to what the Panel had before it), I do not think that there is reason to suspect Miss Sheikh of dishonesty in relation to the practice of Ashley & Co. Second, I accept that there have been some breaches of the Solicitors Accounts Rules, but I do not think that they were serious enough to merit the drastic and (in practice) terminal step of intervention. Third I do not say that everything about Ashley & Co was entirely satisfactory. On the contrary there were (as well as breaches of the Solicitors Accounts Rules) some other aspects of the firm's practice about which the Law Society could legitimately feel concern, but in my view they were not remotely as bad or unacceptable as has been contended before me on behalf of the Society.”
As to the severity of an intervention, Park J noted (at paragraph 9):
“In a case where those three consequences of an intervention [vesting of practice monies in the Law Society, delivery up of practice documents and suspension of the solicitor's practising certificate] arise (which effectively means in the case of virtually all interventions) the consequences are very severe indeed for the solicitor. At least in the case of a sole practitioner, like Miss Sheikh, it effectively means the total destruction of the practice. Mr Penson of the Law Society agreed with [counsel for the applicant] that, for sole practitioners, intervention invariably brings a practice to an end ...”
Regarding the aim of intervention, Park J noted (at paragraph 12):
“... I do not for a moment question the value and desirability of the power of intervention which the Law Society possesses under the Act. It is essential that the public should feel confidence in the honesty of solicitors. If there are grounds to suspect dishonesty on the part of a solicitor the governing body of the profession must be able to do something about it, and to do it quickly and effectively. Further, while it is obviously right that an intervened upon solicitor should be able to bring the matter before the courts, I accept that any judicial process must come after the intervention and not before it. The law reports give information about a significant number of cases in which the power of intervention has been exercised. In so far as the reports disclose the factual backgrounds of past cases it seems to me that the Law Society was fully justified in intervening, and that it was highly desirable for it to do so. Most of the cases have been ones where it was clear that a solicitor was improperly and knowingly using money which belonged to clients for his or her own purposes, and doing that on a substantial scale ...”
In respect of the applicant's case, he continued (at paragraph 13):
“It is possible that the intervention action which the Law Society has already taken, and which has been in place for several months before my decision, may already have done substantial damage to the practice of Miss Sheikh's firm. I am sorry if that is so, but a consequence like that may be a risk which must be accepted in the wider interests of preserving the confidence of the public in the solicitors' profession as a whole.”
Park J referred to the request from the applicant's solicitor that she be allowed to continue some limited practice under conditions, noting:
“The letters were detailed, moderate in tone, and seemed to me to put forward entirely reasonable proposals. The Law Society turned them down in one sentence. I am prepared to believe that there may have been good reasons for the attitude which the Society took, although it is not apparent to me what they can have been, but it is remarkable that [the applicant's solicitor] did not receive the courtesy of a reasoned reply to his carefully formulated and explained proposals.”
Concerning the scope of the court's review under paragraphs 6(4) and 9(8), Park J considered that the jurisdiction of the court was not to be exercised on grounds analogous to judicial review. Accordingly, he was not required to limit his consideration of the application to the question whether the notice was one which no reasonable body in the position of the Law Society could have decided to serve but was able to decide himself whether the notice of intervention should be allowed to stand. In this respect, the Law Society's own view that the circumstances merited intervention was a relevant factor for consideration. Park J also emphasised that the relevant legislation referred to a “suspicion” of dishonesty and it was therefore not necessary for a positive finding of dishonesty to be made. Finally, the court was not limited to reviewing the evidence before the Law Society at the time when the decision was made to intervene but could consider the whole of the evidence, including incidents or discoveries post-intervention, in deciding whether to withdraw the intervention.
The judgment of Park J records an apparent concession by counsel for the Law Society to the effect that an intervention would not be justified if there were merely breaches of the Solicitors' Accounts Rules and no suspicion of dishonesty. Park J stated (at paragraph 25):
“I agree with that. The Law Society has other disciplinary sanctions and procedures available to it, and it would be disproportionate to impose the drastic sanction of intervention (amounting to confiscation of the practice) on a solicitor who commits honest breaches of the Solicitors' Accounts Rules. There is a general point here. It identifies a difference between cases within paragraph 1(1)(a) of Schedule I to the  Act (reason to suspect dishonesty) and cases within paragraph 1(1)( c) (breaches of the Solicitors' Accounts Rules). If there is reason to suspect a solicitor of dishonesty in connection with his or her practice, although an intervention does not automatically follow and the Panel or (on a case like this one) the judge still has a second stage question to consider of whether the solicitor should be intervened upon ..., an intervention is likely. If, on the other hand, there are breaches of the Solicitors' Accounts Rules, but not dishonest breaches, an intervention ought, I suggest, to be unusual. I would expect the Law Society to look to other regulatory or disciplinary powers (of which it has several) for other methods of improving the solicitor's compliance with the Rules.”
Park J noted the absence of any details as to why the Panel had reached its conclusions and ordered the intervention, saying (at paragraphs 43 to 44):
“... In this particular case I consider that the absence of particulars causes considerable difficulty, especially as regards the finding of suspected dishonesty. What precisely was the dishonesty, and what precisely were the grounds which raised a suspicion of it? The Panel does not say. This is, I understand, in line with standard practice for Law Society Panels. In normal cases (which in my opinion this case is not) the absence of particulars in a Panel's finding of grounds to suspect dishonesty may not particularly matter, because the nature of the dishonesty and of the grounds of suspicion is perfectly obvious to anyone ... In all the earlier cases of interventions which I was shown the alleged dishonesty was clear for all to see. Similarly, in so far as the intervention may also have been founded on breaches of the Solicitors Accounts Rules, the breaches were equally obvious, and almost always consisted of solicitors either not having client accounts at all ... or taking money off client account and using it for private purposes or for their own professional purposes (like reducing the office overdraft or paying the office rent) in circumstances where the taking of the money was prohibited ... Furthermore as far as I can ascertain, although the members of the Panel in Miss Sheikh's case presumably did know what sort of dishonesty they suspected and what their grounds for suspecting it were, nobody else in the Law Society knew. The Law Society officers [involved in the investigation and preparation of the FI Report] who gave evidence before me ... did not know ...
This has caused substantial difficulties in the case, and in my view has had an unfortunate effect on the nature of the proceedings. Miss Sheikh did not know any detail of what sort of dishonesty was being alleged against her, and in her first witness statement could do little more on this aspect of the case than to say that she utterly refuted any suggestion that there was reason to suspect dishonesty on her part. She has always accepted that she failed to reply to correspondence and that there have been some technical infringements of the Solicitors' Accounts Rules, but she denies any kind of dishonesty. Since she does not know what specific kind of dishonesty the Panel suspected, she has great difficulty in doing more than making a general denial. Her legal team in this case ... could only speculate as to the case which they had to meet. In a criminal case an indictment which merely charged that there was reason to suspect dishonesty would never survive. The same would apply to a pleading in a civil claim.”
He noted that even the Law Society's legal team were unaware of the reasons for the Panel's suspicion of dishonesty and concluded (at paragraph 46):
“In the circumstances it seems to me that [counsel for the Law Society] have had to do the best they can to find in the extensive documentation in the case any features which, as it seems to them, might have given rise to a suspicion of dishonesty, to present them to me as giving rise to such a suspicion, and to cross-examine Miss Sheikh and Mr Sampat [an Ashley & Co. staff member] in a way which entails alleging dishonesty in numerous different respects.”
He noted that the applicant's case:
“... did not come before the court quickly, and it did not proceed at all speedily. The intervention began on 18 February. Miss Sheikh has been unable to carry on her practice since then. The moneys held on client account and the practice documents (which include the files relating to current matters) are with Russell-Cooke. Russell-Cooke are not, of course, carrying on with legal work on matters which were in progress at the time of the intervention. Clients were informed of the intervention, and several of them have already transferred to other firms. All delay before Miss Sheikh can have her applications decided is potentially damaging. Despite that, the trial did not begin until 4 May. I may be wrong, but I think that it was primarily the Law Society which had problems with an earlier commencement.
[Counsel for the applicant] (who, as I have already said, has considerable experience in cases of this nature, usually representing the Law Society) observed in relation to this case: 'It is submitted that it was never the intention of Parliament in enacting the Solicitors Act 1974 that an application to set aside the intervention would give rise to proceedings of such length and complexity. The Act envisaged a swift procedure'. I do not have comparable experience in cases of this nature, but on the admittedly limited basis of this case I find myself very much in sympathy with what [he] says.”
As to the breaches of the Solicitors' Accounts Rules, Park J noted (at paragraphs 53 to 54):
“Perhaps the most important general observation is that in this case, unlike in virtually all other cases of interventions of which I am aware ... there is no evidence that any client's money has gone missing. Surely the overarching reason which lies behind the extensive regulatory and disciplinary powers which Parliament has conferred on the Law Society is that solicitors are regularly in possession of other persons' money, and that strong powers need to be held by the governing body of the profession in order to protect clients of unscrupulous or unconscientious solicitors from the risk that the solicitor may in some way make away with their money. An allegation along those lines was not directly put forward against Ashley & Co in the FI Report (on which the Panel resolved that the Society should intervene into Ashley & Co), but it was not disavowed either, and I would not be in the least surprised if the panel had in mind that there just might have been some misappropriation of clients' money somewhere in this case. Of course (at the risk of labouring a point which I have made already and may well make again) I cannot be sure about whether the Panel had something like that in mind because the Panel has not stated what its reasons were and no-one involved in the Law Society's preparation of this case knows what they were.
With reference to the proposition that no client's money is missing, or at least that there is no evidence to that effect and surely there would be by now if it was the case, I add that Mr Weaver of Russell-Cooke said that the accountant within his firm had established that the client account balances in the books of Ashley & Co 'balanced'. I think that he meant by that that the money in the client bank was the amount which it should have been on the basis of the client ledgers of the firm ... Mr Weaver's evidence comes close to specifically confirming that no client's money has gone missing. This is an important point. The Law Society might have been expected to volunteer the outcome of the accountant's investigation. In fact the point only came out in Mr Weaver's cross-examination.”
As to the allegation of dishonesty against the applicant, Park J noted (at paragraphs 55 to 56):
“Perhaps the second most important general observation is that I observed Miss Sheikh being searchingly cross-examined for a little more than two days. On the critical question of whether I consider that there is reason to suspect dishonesty on her part in connection with her practice I believe that I can and should ask myself: what impression did she make upon me? The answer is that she made a very good impression. She did not remotely strike me as the dishonest, grasping, incompetent implied by the Law Society's multiple attacks upon her. She answered all questions put to her directly. She was in no way evasive. Listening to her she never struck me as someone who was dissembling or seeking to mislead the court. When I say that she answered all questions put to her I do not mean that she was always able to give a detailed answer to every question which was put ... She made realistic and sensible admissions. In several respects she readily acknowledged that there was room for improvement. I do not myself see that sort of thing as giving rise to a suspicion of dishonesty. If anything the contrary is the case. She is a sole practitioner with a busy practice, and it would be surprising indeed if she got everything right all of the time. It is a sign of basic honesty on her part that she admitted that some matters put to her in cross-examination were not ones which she could satisfactorily deal with, and certainly not there and then.
There were some overriding matters, however, on which she was constantly firm, and as respects which her evidence had to me the ring of total conviction and sincerity. One was that she was never dishonest in the conduct of her profession ...”
Park J expressed doubt at the proposition by counsel for the Law Society that, once intervention had been commenced by the Law Society, the subsequent review by the High Court of whether to withdraw the intervention could take into consideration all matters relating to the solicitor's conduct, even those which, under the 1974 Act, did not justify intervention. He concluded (at paragraph 60):
“... I accept that I should look at the evidence as it exists when the case is presented to me, and that I am not limited to considering only the materials which were before the Panel when, some months previously, it resolved to intervene ... Thus, if there is new evidence of the existence of reasons to suspect dishonesty or of breaches of the Solicitors' Accounts Rules, I can certainly take account of it. It is far from clear, however, that I should take account of new evidence (or for that matter old evidence) of alleged shortcomings on the part of Miss Sheikh which do not bear on any suspicion of dishonesty or on breaches of the Solicitors' Accounts Rules ... [A] Panel cannot resolve that a practice be intervened upon on the basis of a general opinion that the practice is unsatisfactory, and that it will be in the public interest for the Law Society to intervene. That being so, I am unconvinced that a general opinion of that nature should carry any substantial weight when it comes to deciding whether the court should order an intervention to be withdrawn. Suppose that it had appeared to the Panel that there was no reason to suspect dishonesty and that, although there had been breaches of the Solicitors' Accounts Rules, they were not themselves of the sort which could justify the drastic step of intervention. Could the Panel nevertheless have decided that the Law Society should intervene in Ashley & Co because there were other aspects of the firm's practice which the Panel considered to be unacceptable? I think not. Is it, therefore, any different at the stage when the court is considering whether an intervention should be withdrawn? Again, I think not ...”
Park J considered in some detail the matters raised in the FI Report. He concluded in relation to each that they were insufficiently serious to merit intervention. He further considered the matters raised by the Law Society as regards the applicant's alleged dishonesty and concluded that the evidence before him supported no such suspicion. He noted that some of the matters to which the Law Society referred might be relevant to any disciplinary proceedings which could be taken against the applicant, but were not relevant to the question of intervention.
As to the failure of the applicant to respond to the Law Society's letters, Park J noted (at paragraphs 125 to 127):
“... It strikes me that this is one of those intractable issues which arise occasionally where each of two parties has an entirely reasonable position, but where there is no way of giving practical effect to both positions. I have looked at [the] letters, and they are very demanding. For example, the first of the letters related to the Burrows Estate. It is eight and a half pages long, and on my quick count it asks 34 detailed questions. Most of [the] other letters were not significantly shorter or less demanding. I remind myself that Miss Sheikh was a busy sole practitioner with clients to look after and without much in the way of high grade supporting staff in her office, and I say to myself that there was just no way that she could have dealt with the letters in the detail which [the Law Society officer] was calling for without neglecting her current clients and risking failing in her duty to them.
Perhaps Miss Sheikh should have written letters (which, however, would have been unlikely to satisfy the Law Society) saying that she simply could not reply in detail without sacrificing the interests of her current clients, but she would attempt to give some general answers to the main strands of the questions. Perhaps [the Law Society officer] might have given more recognition than she did to the realities of Miss Sheikh's practice, and substantially moderated the detail and intensity of her questions.
I do not think that I can or should say any more than that on this particular issue.”
In relation to the pre-intervention material put before him, Park J concluded (at paragraph 128):
“On the basis of matters as they stood before the intervention (and taking account of evidence which I had of such matters, whether the Panel had it or not), I believe that the intervention should be set aside.”
In respect of post-intervention issues, the only matter considered to be of significance by Park J was the transfer, on the morning of the imposition of the intervention, of GBP 254,000 from the client account to the applicant's personal bank account. On this, Park J found that the applicant was not aware, at the time when she instructed the transfer, that there had been an intervention, and concluded (at paragraphs 139 to 141):
“I should, however, say that I do believe that Miss Sheikh was impelled to give the instructions to [her secretary] because of a generalised feeling that she just did not want the money to be in the client account when the Law Society arrived ...
The more general point is that I cannot find it in me to condemn Miss Sheikh for wanting to get the money out of an Ashley & Co bank account before the Law Society arrived. She did not (in my view) know that the Law Society was coming to effect an intervention into her practice, but after the second telephone call from [her secretary] she apprehended that something of a serious nature was quite likely to happen, and she must have felt deep concern about what might happen to this large sum of money which she had borrowed personally only the day before. It must have been a desperate anxiety to her that, because the money had gone into an Ashley & Co bank account, it might become entangled with the problems which it seemed that she was going to have with the Law Society. Feelings of that nature would surely have been enhanced by the reflection that the money might be regarded as still really being hers and not as belonging to a client yet. She was of course under the erroneous impression that the money was being held in the firm's client account ... She did not realise that the money was in fact in the firm's office account, but I comment that it was not appropriately held there. The £254,000, if (as I suspect was correct) it did not yet belong to Red River but still belonged to Miss Sheikh , did not belong to her in her capacity as the sole proprietor of the practice. On 18 February the £254,000 did not really have anything to do with the practice. She had just borrowed it on a mortgage of her private house, and it was intended to be invested in a commercial project in which she ... would be participating as an investor and not in her solicitor capacity.
In retrospect Miss Sheikh might have been better advised just to leave the money alone and wait fatalistically to find out what was going to happen to it, but I can well understand that it did not seem that way to her at the time. I repeat that I cannot find it in me to say that wanting to remove the money from (as she thought) the Ashley & Co client account was so objectionable a thing that I should leave in place an intervention upon her practice which otherwise I would direct to be withdrawn.”
Following Park J's notification of his decision on 9 June 2005, the intervention was ordered to be withdrawn by order of the same date. By order of 16 June 2005, all the conditions, apart from one preventing the applicant from seeking the payment of fees for probate work without the prior approval of the Law Society, were lifted from the applicant's practising certificate as from 16 June 2005. By the time it was withdrawn, the intervention had been in place for nearly four months.
3. The proceedings before the Court of Appeal
On 5 April 2006 the Law Society was given permission to appeal to the Court of Appeal on three grounds: first, that Park J had inappropriately assessed whether the applicant had in fact been dishonest, rather than addressing whether the statutory test of suspicion of dishonesty had been met; second, that Park J had applied too high a threshold as regards whether the breaches of the Solicitors' Accounts Rules could justify an intervention; and third, that, in exercising his discretion as to whether to withdraw the intervention, Park J had wrongly failed to take into account other matters relating to the applicant's conduct which were not directly related to her alleged dishonesty and breaches of the Solicitors' Accounts Rules. The judgment granting leave noted that the Law Society was not minded to re-intervene in the applicant's practice at that time but was considering disciplinary proceedings against her. The appeal was heard between 3 and 5 July 2006.
On 23 November 2006, the Court of Appeal handed down its judgment. The judgment noted (at paragraph 31) that the Law Society had made it clear that, whatever the outcome of the appeal, it did not intend to re-intervene in the applicant's practice on the basis of the notices served in February 2005.
Chadwick LJ, giving judgment for the court, considered the various matters relied upon by the Law Society before the High Court as evidence that continued intervention was justified. As regards the allegations of breaches of the Solicitors' Accounts Rules, he reached different conclusions from Park J as to the honesty of the applicant in her dealings with the client account. In particular, he commented on the failure of Park J to deal with certain anomalies as regards the applicant's charging practice as follows (at paragraph 47):
“For my part, I find it surprising that the judge was able to attribute [certain aspects] of the Society's complaint in respect of the Thirkettle matter to 'mistakes' and 'an error of judgment' without a more rigorous analysis of the material which had led the Society to take the view that those matters gave rise to suspicion of dishonesty. It is, I think, difficult to avoid the conclusion that he did so because he had already persuaded himself, from his observation of Miss Sheikh and [her employee] as witnesses, that they were not dishonest; so that matters which, objectively, were capable of giving rise to suspicion of dishonesty had to be explained in a way which avoided a finding of dishonesty ...”
He further highlighted (at paragraph 51) the failure of Park J to explain why, in relation to one particular matter, he rejected the Law Society's submission that client funds had indeed gone missing contrary to his general finding that the applicant's case did not involve missing client funds. He pointed to various other aspects of the Law Society's complaints concerning the applicant's conduct in respect of client funds and charging which, in his view, had not been fully addressed by Park J. He referred to Park J's observation that a client benefits from clear protections, notably the possibility of requiring the solicitor to obtain a remuneration certificate from the Law Society where he considers that he is being overcharged by his solicitor, and that intervention was therefore not required in such circumstance. He concluded (at paragraph 65):
“The Law Society submits that that is too narrow a view of the circumstances in which it may be appropriate to use its intervention powers. It points out that an honest solicitor should be endeavouring to charge no more than he (or she) believes is due ... I agree: a fortiori where the solicitor, as sole executor, is himself (or herself) the client [as in a number of the examples in the applicant's case], it seems to me that evidence of persistent and deliberate overcharging in probate matters of that nature might well justify intervention on the basis of suspected dishonesty.”
As to the transfer of the GBP 254,000, Chadwick LJ considered that at the time she ordered the transfer, the applicant did not know of the intervention. However, he agreed with Park J that she had, nonetheless, realised that the impending visit of Law Society officials was more serious that just another inspection. He concluded that in the circumstances, the applicant must have known that intervention was a real possibility, and she had for that reason transferred the money. He further considered that there was no evidence to allow Park J to conclude whether beneficial ownership of the money remained with the applicant. In light of the instructions that she had given to her secretary, Chadwick LJ considered that she could not claim that she thought it was still her money. That the applicant had requested her secretary to sign the CHAPS transfer on her behalf was a clear attempt to deceive the bank. He concluded (at paragraphs 70 to 71):
“As I have said, it is not difficult to understand why the Law Society takes the view that the circumstances in which this post-intervention transfer took place give rise to particular concern as to Miss Sheikh's fitness to carry on her practice. For my part, I would find it astonishing if the Society did not take that view. It must be a matter of concern that a solicitor is party to a deception. It must be open to question whether a solicitor who is party to a deception is fit to carry on a sole (or any) practice ...
... It is, I think, important to keep in mind that it was necessary, in order to comply with the Solicitors Accounts Rules, that the CHAPS transfer be signed by Miss Sheikh and not by a secretary on her behalf. Miss Sheikh clearly thought that it was necessary that the bank did receive a CHAPS transfer which was signed in her name, rather than by an agent 'per pro'. And it was important to her that the bank received, and acted upon, a transfer in that form before the Law Society's representatives reached her offices: that was why the transfer had to be signed by Mrs Taylor. She intended that the bank should be deceived. That was her reaction to what she must have seen as a real possibility of intervention (even if she did not know, at the time, that intervention notices had been served). I find it impossible to dismiss what took place – even on the judge's hypothesis – as 'no more than an irregularity'. What took place is a significant demonstration of the way in which this solicitor was prepared to act in the face of what she must have seen as an impending (if not actual) crisis in her practice. She was prepared to act in a way which – as she must have appreciated and intended – involved a deception.”
Considering Park J's conclusion that it would be harsh, disproportionate and unreasonable for him to be swayed by post-intervention events, Chadwick LJ concluded (at paragraph 72):
“I think that the judge was wrong to approach the question which he had to decide – should the intervention notices be withdrawn – in that way. The correct approach, as it seems to me, was to look at the matter as a whole. The conduct of the solicitor at the time of, and immediately following, intervention may well affect the way in which pre-intervention conduct should be viewed. In the present case, Miss Sheikh's conduct in relation to the £254,000 demonstrated that she was willing to deceive: she was capable of acting dishonestly. The judge should have asked himself whether his impression of her as a witness – 'She did not remotely strike me as the dishonest, grasping incompetent implied by the Law Society's multiple attacks upon her' ... – which, plainly, had coloured his view of pre-intervention defaults, needed re-evaluation in the light of her willingness to deceive in relation to the £254,000 transfer.”
Chadwick LJ referred to the distinction between an application to the court to withdraw the intervention (as in the present case) and a challenge to the use by the Law Society of its intervention powers. He noted (at paragraphs 85 to 87):
“Plainly, if there is a challenge to the exercise of the intervention powers, the court will need to ask itself whether the grounds under Part I of schedule 1 to the 1974 Act upon which the Society relied at the time of the resolution to intervene were made out on the basis of the information available (or, perhaps, reasonably available) to the Society at that time. If that question is answered in the negative, then (as it seems to me) the resolution under paragraph 6(1) is of no effect and notices served under paragraph 6(3) or 9(1) are 'fundamentally flawed' ... That is because the powers under Part II of schedule 1 are exercisable only in circumstances within Part I. So, if the Society is to exercise intervention powers in reliance on paragraph 1(1)(a), the Council must have reason to suspect dishonesty at the time when it passes the resolution under paragraph 6(1) or serves the notice under paragraph 9(1).
Cases in which there is a challenge to the validity of the resolution under paragraph 6(1) or to the service of intervention notices are rare. Where the Society relies on paragraph 1(1)(a) of schedule 1, the solicitor may well find it impossible to contend that, on the material available to the Society at the time when the resolution was passed and the intervention notices served, the Society did not have reason to suspect dishonesty. That was the position in the present case. And it is pertinent to keep in mind that, in many cases (as in the present case), the Society will rely, in addition, on paragraph 1(1)(c) (breaches of the accounts rules) and will have given a notice under paragraph 1(2) – thereby providing an opportunity for challenge in advance of intervention. In such cases a challenge to the validity of the resolution under paragraph 1(1) or to the service of intervention notices on the grounds that the condition in sub-paragraph (a) was not met will serve little purpose: the Society will be able to rely (in relation to validity) on sub-paragraph (c). In such cases the solicitor will usually focus his (or her) submissions on seeking to persuade the court that, whether or not the Society had reason to suspect dishonesty on the material available to it at the time, the court should hold, on the basis of additional material deployed at the hearing of the application under paragraph 6(4), that suspicion of dishonesty has been dispelled. That, again, was the position in the present case.
What is not open to doubt is that, absent a challenge to the validity of the resolution under paragraph 6(1) of schedule 1 or to the service of intervention notices, the single issue for the court on an application under paragraphs 6(4) or 9(8) is whether the notices should be withdrawn ...”
The sole issue for the court, therefore, in the present case being whether the intervention notices should be withdrawn, Chadwick LJ noted (at paragraph 90):
“In addressing that question ... the court must, indeed, weigh the risks of re-instating the solicitor in his (or her) practice against the potentially catastrophic consequences to the solicitor (and the inconvenience, and perhaps real harm, to his or her existing clients) if the intervention continues. In weighing the risks of re-instatement the court must have regard to the views of the Law Society as the professional body charged by statute with the regulation of solicitors ... and as the body whose members are obliged, through the compensation fund, to underwrite those ... In a case where the Society has taken, and continues to take, the view that there are reasons to suspect dishonesty on the part of the solicitor, the court may well need to address those reasons in the context of weighing the risks of re-instatement; although ... that will not always be the case. It is important to keep in mind that (in cases where there is no challenge to the validity of the resolution or to the service of the notices) there is no free-standing requirement for the court to decide whether there are grounds for suspecting dishonesty; a fortiori, no requirement for the court to decide whether the solicitor is or has been dishonest. The issue arises (if at all) in the context of deciding whether the intervention needs to continue.”
Accordingly, all matters could be taken into account in reaching the decision whether to withdraw the intervention, including conduct falling outside the statutory grounds for its original imposition, such as the applicant's poor regulatory history and her failure to respond to proper requests for information from the Law Society. Chadwick LJ considered that Park J had erred in seeking to determine whether or not the applicant was dishonest as the question to be decided was simply whether the suspicion of dishonesty had been dispelled, and Chadwick LJ was satisfied (at paragraph 97) that it had not:
“In my view [Park J] was wrong to conclude – on the basis of Miss Sheikh's demeanour as a witness – that [the suspicion of dishonesty had been dispelled]. He was wrong because he did not address adequately the serious inconsistencies between her oral evidence at the trial on the one hand and the answers which she had given at interview, the explanations in her witness statements and the documentary material on the other hand.”
As to the alleged breaches of the Solicitors' Accounts Rules, Chadwick LJ noted that the Law Society did not accept that counsel had conceded, before Park J, that breaches of the Solicitors' Accounts Rules, absent any dishonesty, were sufficient to justify intervention. Chadwick LJ considered it clear that any such concession would have been erroneous, in light of the clear wording of the statute. He noted (at paragraph 101):
“...But, as it seems to me, on that question the court must give proper respect to the view of the Society. If, after consideration, the Society has taken the view that, in the particular case, compliance with the account rules cannot be achieved by the exercise of powers short of intervention, the court should be slow to substitute its own view on a question which is peculiarly within the experience and expertise of the Society, as the regulatory authority.”
However, in the present case he considered the point to be of little materiality, in light of his conclusion that Park J was wrong to hold that the suspicion of dishonesty had been dispelled.
Finally, as regards the Law Society's criticism of Park J's approach to whether intervention should continue, Chadwick LJ found (at paragraphs 104 to 106):
“... First, as it seems to me, past regulatory history is plainly relevant to a consideration whether it is realistic to think that future compliance can be enforced by regulatory powers short of intervention. The Society was entitled to take the view that the history of successful complaints in relation to Miss Sheikh's conduct of probate matters demonstrated that there could be no basis for confidence that (absent intervention) her practice in relation to such matters could be altered by tighter regulation.
Second, on an application under paragraph 6(4) of schedule 1, the court is required to have regard to all matters before it: it is not confined to the grounds which led to the exercise of the intervention powers ... As I have sought to explain, the court's task on an application under paragraph 6(4) of schedule 1 is not constrained by the statutory grounds on which the Society can exercise intervention powers.
Third, on an application under paragraph 6(4) which does not include a challenge to the validity of the resolution under paragraph 6(1) of schedule 1 to the 1974 Act or to the service of intervention notices, past 'misconduct' is relevant if, and only in so far as, it informs an assessment of future risk ... The question, in each particular case, is whether the experience of past conduct should lead to the conclusion that the risks of reinstatement are, or are not, acceptable.”
The court made the limited orders sought by the Law Society regarding the lifting of limitations on its ability to impose conditions on the applicant's practising certificate.
Chadwick LJ also commented on the intervention procedure and the possibility to challenge an intervention. He noted (at paragraphs 110 to 114):
“It is not in doubt that intervention in a solicitor's practice, without advance notice, is likely to have the most serious consequences for the solicitor. Parliament has provided the solicitor with a summary process by which he (or she) can bring the matter before the court; but has imposed short time limits within which that process must be commenced. In Holder v Law Society  EWCA Civ 39,  1 WLR 1059, this Court considered – and rejected – an argument that the procedure for which Parliament had made provision was incompatible with the solicitor's Convention rights. It rejected that argument (inter alia) on the basis that the court's power to consider whether a fair balance has been struck between the demands of the general interest of the community and the protection of the individual's fundamental rights met the requirements of article 1 of the First Protocol. But it is clear that, unless the matter can be determined by the court within a short time of the intervention, the solicitor is likely to be denied an effective remedy. That is because the consequences of intervention – if the intervention continues for more than a short time – are likely to be irreversible. The solicitor's clients will have to take their affairs elsewhere; the staff will have found other employment; and the practice will be destroyed in any event.
There is an obvious tension between the need to have an application to the court determined speedily and the need for the court to give full and fair consideration to the task which it has been set under the 1974 Act and, now, the Human Rights Act 1998. This case illustrates the need for the Society to give thought as to how that tension can be resolved. There is force in the judge's observation ... that the way in which the Society's case was advanced before him had contributed to an over-lengthy trial and to the complexity of the issues which he had to address in his judgment.
The judge criticised the Panel resolution of 17 February 2005 on the basis that it failed to disclose the reasons which had led the Panel to decide that intervention notices should be served. The true vice, in my view, is that the reasons which were disclosed – 'it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in the Forensic Investigations Report dated 22 November 2004' – were stated in so general and unspecific terms. Disclosure of reasons in those terms is calculated to make it difficult for the solicitor to know and address the real concerns which had led to the exercise of intervention powers. The Society should, I think, give thought to the need for Panel resolutions to identify, with much more specificity than in this case, the reasons which (in the Panel's view) make intervention necessary. If those reasons are not identified at an early stage, there is a danger that the solicitor will be denied the effective protection which Parliament plainly intended a summary process to provide.
There will, of course, be many cases in which the solicitor who has suffered intervention will be in no doubt as to the Society's concerns. And, as I have said, there will be cases where the solicitor wishes to challenge the validity of the resolution on public law grounds. But, in cases where, although the solicitor knows what material was before the Panel, there is genuine doubt as to the matters which the Society regards as sufficiently serious to justify intervention, it seems to me that the court should be ready to assist – on an early application for directions following the issue of an application under the schedule 1 procedure – by requiring the Society to state the grounds upon which (on the material then known to it) the application will be resisted. Such a statement would enable the solicitor to address the Society's concerns in a focussed response. And, in the light of that response, the Society can explain to the court why it takes the view (if it does) that the concerns have not been met.
I appreciate that the process suggested in the previous paragraph may require the court to adopt a more pro-active role on applications under schedule 1 to the 1974 Act than hitherto; and that the need for an early determination of such applications will place demands on the court's resources which it may be difficult to meet. But, as it seems to me, the court will be ready to meet those demands in order to ensure that the solicitor does obtain the effective protection which the Convention requires and which the 1974 Act was plainly intended to provide.”
The House of Lords refused the applicant's request for leave to appeal on 22 May 2007.
B. Relevant domestic law and practice
1. The power of intervention
The Law Society is the governing body of the solicitors' profession. It has a regulatory function and regulatory powers under the Solicitors Act 1974. Under section 35 of the 1974 Act, the Law Society is given the power to intervene in a solicitor's practice in circumstances specified in Part I of Schedule 1 to the Act by exercising any or all of the powers set out in Part II of Schedule 1 to the Act.
Paragraph 1(1) of Part I to Schedule 1 of the Act provides that the Law Society may exercise its right of intervention inter alia where:
“(a) the Council [of the Law Society] have reason to suspect dishonesty on the part of—
(i) a solicitor ...
in connection with that solicitor's practice or in connection with any trust of which that solicitor is or formerly was a trustee;
(c) the Council are satisfied that a solicitor has failed to comply with rules made by virtue of section 31 [the Solicitors' Practice Rules], 32 [the Solicitors' Accounts Rules] or 37(2)(c) [rules requiring solicitors to hold professional indemnity insurance];
Paragraph 1(2) provides that
“The powers conferred by Part II of this Schedule shall only be exercisable under sub–paragraph (1)(c) if the Society has given the solicitor notice in writing that the Council are satisfied that he has failed to comply with rules specified in the notice and also (at the same or any later time) notice that the powers conferred by Part II of this Schedule are accordingly exercisable in his case.”
Part II of Schedule 1 sets out the powers available to the Law Society upon intervention. Under paragraph 6, the Law Society has the power to take control of the practice's accounts:
“(1) Without prejudice to paragraph 5, if the Council pass a resolution to the effect that any sums of money to which this paragraph applies, and the right to recover or receive them, shall vest in the Society, all such sums shall vest accordingly (whether they were received by the person holding them before or after the Council's resolution) and shall be held by the Society on trust to exercise in relation to them the powers conferred by this Part of this Schedule and subject thereto upon trust for the persons beneficially entitled to them.
(2)This paragraph applies—
(a) ... to all sums of money held by or on behalf of the solicitor or his firm in connection with his practice or with any trust of which he is or formerly was a trustee;
Under paragraph 9, the Law Society is given the power to take possession and control of the firm's documents:
“(1) The Society may give notice to the solicitor or his firm requiring the production or delivery to any person appointed by the Society at a time and place to be fixed by the Society–
(a)... of all documents in the possession of the solicitor or his firm in connection with his practice or with any controlled trust; and
(2) The person appointed by the Society may take possession of any such documents on behalf of the Society.
(6) On making an order under this paragraph, or at any later time, the court, on the application of the Society, may authorise a person appointed by the Society to enter any premises (using such force as is reasonably necessary) to search for and take possession of any documents to which the order relates.
(10) Without prejudice to the foregoing provisions of this Schedule, the Society may apply to the High Court for an order as to the disposal or destruction of any documents in its possession by virtue of this paragraph or paragraph 10.”
Paragraph 10 allows the Law Society to intercept the firm's mail:
“10(1) The High Court, on the application of the Society, may from time to time order that for such time not exceeding 18 months as the court thinks fit postal packets ... addressed to the solicitor or his firm at any place or places mentioned in the order shall be directed to the Society or any person appointed by the Society at any other address there mentioned; and the Society, or that person on its behalf, may take possession of any such packets received at that address.”
Finally, section 15 of the 1974 Act provides for the suspension of the solicitor's practice certificate in the event of an intervention:
“(1A) Where the power conferred by paragraph 6(1) or 9(1) of Schedule 1 has been exercised in relation to a solicitor by virtue of paragraph 1(1)(a)(i), (c) (so far as it applies to rules made by virtue of section 32) or (e) of that Schedule, the exercise of that power shall operate immediately to suspend any practising certificate of that solicitor for the time being in force.
(1B) Subsection (1A) does not apply if, at the time when the power referred to there is exercised, the Society directs that subsection (1A) is not to apply in relation to the solicitor concerned.
(1C) If, at the time when the power referred to in subsection (1A) is exercised, the Society gives a direction to that effect, the solicitor concerned may continue to act in relation to any matter specified in the direction as if his practising certificate had not been suspended by virtue of subsection (1A), but subject to such conditions (if any) as the Society sees fit to impose.”
Paragraph 13 of Schedule 1 provides that costs incurred by the Law Society in respect of the intervention are payable by the intervened-upon solicitor and shall be recoverable from her as a debt owing to the Law Society.
2. The right to apply to the High Court
The Act allows an intervened-upon solicitor to apply to the High Court to request the withdrawal of an intervention:
It further allows a solicitor to challenge any of the individual acts associated with intervention. Under paragraph 6(4), a decision to take possession of the practice monies can be challenged within eight days of the service of the notice by application to the High Court for an order directing the Law Society to withdraw the notice, with not less than 48 hours' notice to the Law Society. Paragraph 6(5) provides that upon an application under paragraph 6(4), the Court may make such order as it thinks fit.
Under paragraph 9(8) and (9), a solicitor can, within eight days of receiving the notice that the Law Society has taken possession of the firm's documents and on not less than 48 hours' notice to the Law Society, apply to the High Court for an order directing that the documents be delivered to such person as the applicant may require. Paragraph 9(10) provides that upon an application, the Court may make such order as it thinks fit.
3. The right to apply for the reinstatement of the practising certificate
Under section 16(3), a solicitor may, at any time before the expiry of the certificate, apply to the Law Society to have the suspension of her practising certificate terminated. Under section 16(4), upon receipt of an application:
“... the Society may in its discretion—
(a) by order terminate the suspension either unconditionally or subject to such conditions as the Society may think fit; or
(b) refuse the application.”
If the Law Society refuses the application or terminates the suspension subject to conditions, the solicitor may appeal against the decision of the Society to the Master of the Rolls, who may, under section 16(5):
“(a) affirm the decision; or
(b) terminate the suspension either unconditionally or subject to such conditions as he may think fit.”
4. The Solicitors' Rules
The Solicitors' Accounts Rules govern the treatment of client and practice monies by solicitors. They set out a number of general principles, including that a solicitor must keep client money separate from money belonging to the solicitor or the practice; keep client money safe in a bank or building society account identifiable as a client account; establish and maintain proper accounting systems, and proper internal controls over those systems, to ensure compliance with the rules; keep proper accounting records to show accurately the position with regard to the money held for each client and each controlled trust; and account for interest on other people's money in accordance with the rules.
The rules themselves set out detailed rules concerning bank accounts and in particular require solicitors to keep at least one client account for the holding of money belonging to clients. They define the circumstances in which transfers can be made from the client account to cover payment of the solicitors' fees. The rules also provide that the client account must not be overdrawn and that interest must be allocated to monies held in client accounts. Finally, the rules impose strict accounting obligations on solicitors.
The Solicitors' Practice Rules are the principal set of rules governing the practice of a solicitor in England and Wales.
5. Intervention and human rights
In the case of Holder v. Law Society ( EWCA Civ 39) the Court of Appeal considered an appeal by the Law Society against the grant of permission by the High Court for an application for withdrawal of an intervention to go to trial on the basis that the intervention violated the claimant's rights under Article 1 of Protocol No. 1. In overturning the decision of the High Court and restoring the order of the Master to dismiss the claim, Carnwath LJ explained:
“17. Before the judge it was submitted by Mr Engelman (appearing then as now for Mr Holder) that the intervention power, either generally or as applied in this case, infringed Mr Holder's right to 'peaceful enjoyment of his possessions' under article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, as applied by the Human Rights Act 1998 ...
“29. Mr Engelman referred to the principles laid down by the Strasbourg court for the application of the public interest test: 'the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights' (Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35 , 52, para 69); 'There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions': Holy Monasteries v Greece (1994) 20 EHRR 1 , 48, para 70. He submitted that if, as the judge found, the more draconian features of the intervention procedure were not 'necessary', the requirement of 'proportionality' was not satisfied.”
30. With respect to the submission, and to the judge, this approach ignores the 'all important' factor, when considering issues of proportionality, of the 'margin of appreciation or discretion' or 'area of judgment' allowed to the legislator and the decision-maker ... This aspect was not mentioned by the judge, although it was referred to in Mr Engelman's written submissions to him. [The judge] appears to have approached the matter on the basis that it was for the court to determine what was 'necessary' in the public interest, and in doing so to compare other possible procedures devised by the court. In my view, this was fundamentally wrong.
He concluded that the legislation itself and the approach taken by the Law Society and the courts in carrying out a balancing exercise was no different from the requirement in Article 1 of Protocol No. 1 that a fair balance be struck, noting:
31. In the present case, the 'margin' arises at two stages: first, the discretion allowed to the legislature in establishing the statutory regime, and, secondly, the discretion of the Law Society as the body entrusted with the decision in an individual case. (In the former case, the only remedy for exceeding the 'margin' may be a 'declaration of incompatibility' under the 1998 Act.) The intervention procedure, now contained in the Solicitors Act 1974, is long-established (dating back to 1941, in its earliest form), and has been reviewed by the court on many occasions. As appears from the cases to which I have referred, it has been recognised as 'draconian' in some respects, but necessary for the protection of the public interest; and the courts have repeatedly emphasised the 'balancing exercise' which it involves. I see no material difference between this and the 'fair balance' which article 1 requires. Nor do I see any reason why the Human Rights Act 1998 should be thought to have changed anything. There has long been a right of individual petition to the Strasbourg court for breaches of the Convention, but we have not been referred to any questioning of the intervention procedure under article 1. I see no arguable grounds for thinking that the margin allowed to the legislature has been crossed, particularly having regard to the deference which is properly paid to an Act of Parliament, as compared to an administrative decision ...
32. Having reached that point, the Law Society's actions must be judged by reference to the procedure laid down by Parliament, not to some hypothetical alternative procedure ...
33. The Law Society also has a 'margin of discretion', but the court has a separate duty to consider the merits of the case, in accordance with the principles I have discussed, while paying due regard, as Sedley LJ said (see Giles v Law Society 8 Admin LR 105), to the views of the Law Society, as the relevant professional body. As I have said, this meets any 'fair balance' requirement. The judge found that, viewed by reference to the Solicitors Act itself, the society's intervention was 'entirely justified'. I agree. In my view, that should have led him to have upheld the society's view as to where the balance lay on the facts of this case.”
Sir Christopher Staughton agreed that the appeal should be allowed, adding:
“38. In the exercise of its powers of intervention the Law Society must of course comply with the Human Rights Convention. I can imagine circumstances where the Law Society might be found not to have complied with the Convention, or with the Human Rights Act 1998. After all, a solicitor whose practice is the object of an intervention loses his practising certificate, and in all probability his livelihood as well. The provisions for bringing an intervention to an end are very unlikely to restore the solicitor's goodwill and his prosperity. If it comes about that the intervention was mistaken or unjustified, there is a risk that the solicitor will suffer a substantial loss without recourse to any remedy. In practice this may never happen; but it is a cause for concern. However, not in this case.”
The applicant complained under Article 1 of Protocol No. 1 of the Convention that there had been an unjustifiable interference with her right to the peaceful enjoyment of her possessions.
She also complained under Article 6 § 1 of the Convention that she did not receive a fair hearing in that: (i) she was not given the opportunity to respond to the allegations against her before a decision to intervene was taken; and (ii) she was not advised of the Law Society's reasons for intervention. She further contended that the proceedings were subject to unreasonable delay.
Finally, the applicant complained of a violation of Article 13 of the Convention on the ground that, as a result of the delay, she was deprived of an effective remedy in respect of the intervention by the Law Society into her practice.
QUESTIONS TO THE PARTIES