LEGAL PROFESSION
Dishonesty - intervention in solicitors' practice - Law Society - practising certificates - solicitors' accounts - test on application to withdraw intervention notices - round sum transfers from client account to office account - persistent and deliberate overcharging - history of complaints - risks of reinstatement
Anal Sheikh v Law Society: CA (Civ Div) (Lords Justice Chadwick, Tuckey, Moore-Bick): 23 November 2006
The Law Society appealed against the decision that intervention notices in respect of the practice of the respondent solicitor (S) should be withdrawn.
S had practised as a sole practitioner. The Law Society decided to investigate her practice and the investigators prepared a report identifying certain breaches of the Solicitors Accounts Rules. The report was referred to the Law Society's compliance directorate, which decided to intervene in S's practice on the basis of suspected dishonesty under paragraph 1(1)(a)(i) of schedule 1 to the Solicitors Act 1974 and failure to comply with the accounts rules under paragraph 1(1)(c).
S issued proceedings under paragraph 6(4) of schedule 1 for an order directing the Law Society to withdraw the intervention on the ground that, although the Society might have had reason to suspect dishonesty when the decision to intervene was made, there was no longer any reason to suspect dishonesty in light of her explanations. The judge found that S was not dishonest and directed withdrawal of the intervention. The Society had granted S a new practising certificate but subject to conditions. The judge subsequently removed those conditions.
The Law Society submitted that there remained grounds to suspect dishonesty on the part of S and that the judge had overlooked matters that objectively gave rise to real cause for concern because he had taken the subjective view, from observing S give evidence, that she was essentially honest.
Held, the Law Society had made out its complaint that the judge had not dealt adequately with particular alleged breaches of the rules that gave rise to a suspicion of dishonesty. He had accepted that a failure to account for interest had been made out on the facts but did not adequately address the concern that the failure to account was indicative of dishonesty.
The judge had erred if he had intended to suggest that the evidence of an expert costs draftsman, experienced in drawing bills of costs in relation to probate work, would be of little or no assistance as to what would be a usual time charge in relation to the administration of a small uncomplicated estate. The judge had been wrong to take the view that the availability to the client of the right to request a remuneration certificate in relation to non-contentious work was a sufficient safeguard, so that the Law Society's powers of intervention should not be used even in cases where there was evidence of persistent and deliberate overcharging. The judge had been wrong to hold that, if he was satisfied on the basis of the pre-intervention events that the notices should be withdrawn, he should not have altered that view in the light of post-intervention events; he should have looked at the matter as a whole. The judge had been wrong to conclude that an established history of complaints should carry little or no weight on the issue of intervention.
Where, as in the instant case, there was no challenge to the validity of the intervention notices, the single issue for the court on an application under paragraph 6(4) was whether the notices should be withdrawn on the information then known to the court (Giles v Law Society, The Times, 20 October (1995) approved). There was no freestanding requirement for the court to decide whether there were grounds for suspecting dishonesty or whether the solicitor was or had been dishonest (Dooley v Law Society, unreported, 15 September 2000, ChD, and Holder v Law Society [2003] EWCA Civ 39, [2003] 1 WLR 1059 considered). In the instant case, the judge's task had been to address the Law Society's concerns in the context of weighing the risks of reinstating S.
It had been inappropriate and unnecessary for the judge to make a finding of honesty. He had not adequately addressed the Law Society's concerns. The judge had been wrong to hold that the suspicion of dishonesty had been dispelled. In the circumstances, he should have concluded that the intervention should continue.
The court made the limited form of order sought by the Law Society, setting aside parts of the judge's order relating to the conditions that could be imposed on S's practising certificate.
Judgment accordingly.
Timothy Dutton QC, Andrew Peebles (instructed by Russell-Cooke) for the appellant; Gregory Treverton-Jones QC (instructed by RadcliffesLeBrasseur) for the respondent.
See [2006] Gazette, 30 November, 6.
FAMILY
Child support - contact orders - variation orders - reduction of staying contact with increased maintenance - approach of course to legislative anomalies - shared care discounts
Re B (a child): CA (Civ Div) (Lords Justice Mummery, Wilson): 23 November 2006
A father (F) appealed against the variation of the terms of an order made for contact with his 11-year-old daughter (D). The effect of the variation made by the recorder had been to reduce the number of nights of staying contact that D had with F from just above 104 to just below 104 per year, which affected F's liability to pay child support for D to the mother (M) under the Child Support Act 1991.
The effective date of maintenance assessment on F meant that his liability fell to be assessed pursuant to the 1991 Act prior to amendments made to it by the Child Support, Pensions and Social Security Act 2000. It was unclear whether F, like other parents assessed before the amendments, would ever be migrated to the new, amended regime. Just over two-sevenths of F's income had formerly been exempt from assessment under the combined effect of regulations 1(2) and 20 of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992.
Under the varied order, exemption was reduced so that F would pay £1,445 extra for a reduction of 12 nights' contact with D. F submitted that the recorder should have mitigated the injustice of F's position by migrating him into the new scheme under which F would pay only six-sevenths of what he would otherwise have had to pay, and relieving him from the partial loss of discount by declining any reduction in the number of nights.
Furthermore, the extra costs incurred by the additional nights D spent with M could not amount to the extra sum F had to pay and the recorder should have avoided making an order with that result. F also contended that the consequent reduction in his disposable income meant that he could not make direct payment for D's benefit during contact at the level he desired, so that the order did not serve D's welfare as required under section 1(1) of the Children Act 1989, and that the recorder was required by section 1(3)(f) of the 1989 Act to have regard to the capacity of each parent to meet D's needs.
Held, most of F's arguments were based on anomalies in the current child support legislation that could properly be said to result in substantial injustice, but they were irrelevant to the determination of the optimum level of a parent's contact with a child.
It was inappropriate to exercise the jurisdiction to make an order for contact with a view to reversing or mitigating the consequences of statutory provisions (Phillips v Peace [1996] 2 FLR 230 approved). It would be positively unlawful to do so because it would introduce a consideration unrelated to the child's welfare.
Regarding F's argument touching on D's welfare and the checklist set by section 1(3) of the 1989 Act, it would be impracticable by reason of the complexity of the inquiry for a court hearing a contact or shared residence issue to discern the effect on the child of the consequences under the 1991 Act of alternative possible orders.
It would also be wrong in principle to attempt it, because it would be putting matters the wrong way around, as one did not conceive the optimum arrangements for the child without reference to child support, and then get Parliament to set the amount of liability for child support.
Appeal dismissed.
Both the appellant and the respondent appeared in person.
NEGLIGENCE
Employment - mental health - personal injury - duty of care - mental hospitals - mental patients - nurses - risk assessment - vicarious liability - high security hospitals - patient presenting high risk of harming others
Buck & Ors v Nottinghamshire Healthcare NHS Trust: CA (Civ Div) (Lords Justice Waller (V-P), Carnwath, Maurice Kay): 23 November 2006
The NHS trust (N) appealed against a decision that it had been liable for injuries sustained by the respondent nurses (B) inflicted by a patient (R) held under the Mental Health Act 1983 at the high-security hospital where they were employed by N.
Over a number of years, R had displayed violent and unpredictable behaviour. In the hospital, she self-harmed, made threats and committed many assaults.
N had failed to introduce a policy in accordance with the Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000, which recommended that each hospital should have a policy on the circumstances in which a patient, considered to be at high risk following a risk assessment, could be locked up in his room at night.
R had at times been subject to seclusion, whereby she had been placed in specially prepared rooms accompanied by a member of staff, but she had not been confined to her room.
B were injured in an incident that occurred during a nightshift. As R was not confined, she was able to move from her room during the night to the ward office. There was evidence that if N had complied with the directions, there would have been a risk assessment, which would have assessed R as presenting a high risk of seriously assaulting others, and that it would have been unreasonable not to confine her in her room at night.
The judge found that R was an exceptional patient who posed an exceptional risk and that, had a policy relating to the confinement of patients in their rooms at night been in place, R would have been confined and the incident would not have occurred.
N argued that the standard of reasonable care was that which was reasonably to be demanded in the circumstances, one of which in this case was the nature and extent of the duty of care owed by N to R and its responsibility in treating R's mental illness. In relation to that responsibility, there should only be a finding of negligence if there had been a failure to act in accordance with practice deemed proper by a body of persons of the same profession; since the failure to adhere to the directions and the policy that they advised was not a breach for which N could be liable to B, the question of whether it was negligent or not had to be viewed in the context of a hospital without such a policy.
Held, N's submission was looking at matters from the wrong angle. The duty owed by N to R was of relevance in considering the duty that N owed to its employees, but it did not follow that the duty owed to employees could be tested simply by the question of whether what had occurred did or did not amount to a breach of duty to the patient (Bolam v Friern Hospital Management Committee (1957) 101 SJ 357 considered).
If N could take precautions so as not to expose its employees to needless risks and still not be in breach of its duty to a patient, then it may well be in breach of duty if it failed to take those precautions. The question of whether N was in breach of duty was to be tested by reference to the principles applicable as between employer and employee, not as between a doctor and his patient.
The directions, which at the date of the incident had not been adhered to by N, did have relevance to the issue of whether N was in breach of duty to its employees. The directions demonstrated that, if they had been implemented, there were methods whereby N could have protected other patients and staff from needless risks where high-risk patients were concerned without being in breach of any duty to the patient. Ultimately it was for the court to decide the content of the duty and whether there had been a breach, but it was in that sense that the existence of the directions and the failure to implement them could inform as to the content of the duty owed to B.
If there had been a policy related to confining patients in their rooms at night at the time of the incident, if any patient was to be confined R must have been that patient. If she had been confined, the incident would not have taken place.
In concluding that there should have been a rigorous risk assessment as the directions contemplated, and in taking the view that following such an assessment N should have had a policy contemplating the confinement of R in her room at night, the judge was imposing the appropriate standard of care on N in relation to its employees. In holding that there was not a rigorous assessment, which would have contemplated confining R to her room at night, and in finding that if there had been R would have been confined in her room, the judge's decision could not be criticised.
Appeal dismissed.
Douglas Herbert (instructed by Beachcroft Wansbroughs) for the appellant; Barry Cotter QC, Jonathan Clarke (instructed by Lees Lloyd Whitley) for the respondents.Human
HUMAN RIGHTS
Torts - assault - bias - detention - false imprisonment - firearms - juries - malice - right to liberty and security - search warrants - trespass to the person - power to detain occupants of house in course of execution of search warrant - unlawful detention
Connor & Ors v Chief Constable of Merseyside: CA (Civ Div) (Lords Justice Waller (V-P), Hallett, Leveson): 22 November 2006
C appealed against the dismissal of their claims for damages, including aggravated and exemplary damages, for trespass, assault, unlawful imprisonment and breach of their human rights.
The police had received intelligence, which they considered reliable, that firearms were to be found at C's address in Liverpool. The police had accordingly obtained a search warrant under section 46 of the Firearms Act 1968, which had been executed by armed police.
The search had been conducted in two parts: first, the removal of all occupants of the house and the making of the house secure; second, a more detailed specialist firearms search.
After leaving the house, C had been put in police cars for less than an hour. No firearms had been found. C alleged that the police had had no reasonable cause for seeking the warrant and had acted out of malice; that the police had acted unlawfully and disproportionately in the manner of its execution by pointing guns at them, handcuffing them and detaining them while the search was conducted; and the second appellant claimed she had been assaulted.
The jury found against C on all the questions put to them, namely whether or not guns had been pointed at them and, if so, whether it was reasonable to do so; whether the handcuffing was reasonable; and whether the second appellant had been assaulted by a police officer.
C submitted that in dismissing C's claims for false imprisonment, the judge had erred in law because there was no power under section 46 to use force or to detain people; the judge had displayed bias towards the first appellant which amounted to an irregularity and rendered the decision of the lower court unjust.
Held, there was, in principle, a power to take reasonable and necessary steps to detain the occupants of the house in the course of the execution of the search warrant (DPP v Meaden [2003] EWHC 3005 (Admin), [2004] 1 WLR 945 applied, Chief Constable of Thames Valley v Hepburn [2002] EWCA Civ 1841 distinguished). That conclusion was consistent with the principles of common law relating to the use of reasonable force and the principles embodied in section 3 of the Criminal Law Act 1967 and section 117 of the Police and Criminal Evidence Act 1984.
Furthermore, a power could be implied that was necessary to ensure the safe and effective exercise of an express power (Murray v Ministry of Defence [1998] 1 WLR 692, [1998] 2 All ER 521 applied). A detainee was not entitled to a decision from a jury as to the reasonableness and, therefore, lawfulness of his detention, which was a matter of law for the judge (Dallison v Caffery [1965] 1 QB 348 applied, Pollard v Chief Constable of West Yorkshire [1999] PIQR P219 distinguished).
The judge had not been wrong to rule that the first appellant's detention had been reasonable and necessary in the circumstances. If there was any detention of the other appellants, it was necessary and proportionate. If article 5 of the European Convention on Human Rights was engaged, there was no breach of C's rights.
The judge had made an inappropriate and inadvisable comment suggesting that the first appellant had been guilty of a criminal offence, but that was only one comment in a lengthy trial and it had no adverse impact on the fairness of the trial. The judge had not displayed any bias in making his rulings on the law, which were right, or in the presence of the jury, which was the finder of fact.
Appeal dismissed.
Mr Thacker (instructed by Jackson & Canter) for the appellant; Mr Wells (instructed by Weightmans) for the respondent.
ASYLUM
Human rights - asylum seekers - delay - member states - prejudice - removal - right to respect for private and family life - Wednesbury unreasonableness - Dublin Convention claim
R (on the application of AA (Afghanistan)) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice May, Laws, Gage): 22 November 2006
The secretary of state appealed against the judge's decision ([2006] EWHC 318 (Admin), [2006] ACD 44) to grant the application of the respondent asylum seeker (X) for judicial review of the secretary of state's decision to issue directions for his removal to Austria.
X had arrived in Austria in November 2002 and claimed asylum there. Before his application had been determined, he left Austria and arrived in the UK, claiming asylum in December 2002.
On 2 April 2003, the UK requested Austria, pursuant to the Dublin Convention 1990, to accept responsibility for dealing with X's asylum claim. Austria did so the following day, and
on 3 June 2003, the secretary of state certified X's asylum claim under section 25 of the Immigration and Asylum Act 1999.
However, X was not served with notice that directions had been issued for his removal until 8 June 2005. He asserted before the judge that after an unexplained delay of two years, it was Wednesbury unreasonable of the secretary of state to transfer him to Austria rather than deal with his asylum claim in the UK. He also maintained that he would suffer some prejudice in attempting to establish an asylum claim in Austria without the support network of his British girlfriend, other friends he had made in the UK and the lawyers who had been acting for him.
The judge concluded that the unexplained delay was some 25 times that permitted by article 11(5) of the convention; that the prejudice that X would suffer if transferred to Austria, though by no means exceptional, would be significant; and that it would be wholly unreasonable, after the lapse of more than two years, for X to be transferred against his wishes to Austria.
The secretary of state argued that the judge had erred in, among other things, finding relevant prejudice. X argued that he would suffer prejudice, in that the passage of time occasioned by the secretary of state's delay had given rise to the basis of a claim under article 8 of the European Convention on Human Rights.
Held, the real question was whether the judge's finding of Wednesbury unreasonableness or perversity could be sustained. Any article 8 point should have been canvassed on its merits before the judge; it had not been.
In those circumstances, it was not open to X to urge article 8 issues in support of a submission that his removal to Austria for a determination of his asylum claim would be perverse or unreasonable. In any event, given that 'truly exceptional' circumstances would have to be shown if a claimant's removal to another state were to be condemned on article 8 grounds, it was in the highest degree unlikely that X could, if the matter were gone into, sustain an article 8 case (Huang v Secretary of State for the Home Department [2005] EWCA Civ 105, [2006] QB 1 applied).
If article 8 were taken out of the equation, there was nothing left in the perversity case. While the secretary of state's delay had been deplorable and unexplained, the court could not quash the removal directions to punish or discipline the Home Office. In the circumstances, the judge had been wrong to find that X's transfer to Austria would be unreasonable.
Appeal allowed.
Angus McCullough (instructed by the Treasury Solicitor) for the appellant; Christopher Jacobs (instructed by White Ryland) for the respondent.
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