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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Chong, R (on the application of) v The Law Society [2007] EWHC 641 (Admin) (06 March 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/641.html Cite as: [2007] EWHC 641 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		6 March 2007

MR JUSTICE SULLIVAN:

Introduction

1. In this application for judicial review, the claimant seeks a quashing order in respect of a decision on 14 September 2005 by an Adjudication Panel of the defendant to impose a severe reprimand upon the claimant in respect of his conduct. The adjudication process is a non-statutory procedure which has been established by the defendant to deal with matters of professional conduct which are not sufficiently serious to merit referral to the Solicitors' Disciplinary Tribunal.
2. Subject to certain exceptions which are not relevant for present purposes, the process has three stages following the making of a complaint. First, a caseworker investigates the matter by correspondence and telephone. The caseworker prepares a report (called an agenda note) for submission to an adjudicator. The parties are given an opportunity to comment on the agenda note.
3. The second stage of the process is the adjudicator's consideration of the agenda note in the light of the parties' written responses thereto. The adjudicator is an employee of the defendant.
4. The third stage of the process is a review of the adjudicator's decision by an Adjudication Panel, which normally consists of three members, two of them being solicitors and one a lay member.

Background facts

5. The relevant facts are not in dispute and are conveniently summarised in Mr Peacock's skeleton argument on behalf of the defendant as follows:

"a. At all relevant times, Mr Chong carried on practice as a solicitor and was one of the two partners in the firm of Hardcastles, Arch House, 2-4 High Street, Chalfont St Peter, Bucks ("the firm").

b. One of the employees of the firm was Mrs Evelyn Harrison, who worked as a Secretary. Her husband, Peter Harrison ("Mr Harrison"), was a building contractor.

c. Uprenda Patel ("Mr Patel") was a client of Mr Chong and, in 2001, wished to have an extension built to his home. Mr Chong put Mr Patel in touch with Mr Harrison and Mr Harrison provided a quotation for the work.

d. Having received the quotation, Mr Patel asked Mr Harrison for a reduction in the quote but was told by Mr Harrison that the quotation was non-negotiable. So Mr Patel asked Mr Chong to ask Mr Harrison for a reduction in the quotation which Mr Chong did - Mr Chong was also told by Mr Harrison that he was not prepared to reduce his quotation.

e. Mr Chong informed Mr Patel of Mr Harrison's rebuff. Mr Patel then suggested to Mr Chong that he, Mr Chong, might request from Mr Harrison payment of a commission/referral fee which he could then pay on to Mr Patel. By that route Mr Patel would get the discount that he wanted but which Mr Harrison was unwilling to give.

f. Mr Chong agreed to Mr Patel's proposal and asked Mr Harrison for a commission/referral fee. Mr Harrison paid such a fee (agreed to be in the sum of £1,9000) to Mr Chong in cash on 13 November 2001 (£1,500) and 13 December 2001 (£400), after he (Mr Harrison) had received stage payments from Mr Patel under the works contract. The cash payments were made by Mrs Harrison handing the cash personally to Mr Chong.

g. Mr Harrison made these payments believing them to be a fee to Mr Chong for having introduced Mr Patel. In fact, Mr Chong paid those sums back to Mr Patel immediately on their receipt. Mr Harrison was (as was intended by Mr Chong and Mr Patel) completely unaware of this at the time and remained in ignorance of the true position until it became apparent during the course of the Society's investigation."

6. In my judgment, the position is accurately summarised in the defendant's skeleton argument as follows:

"By means of this scheme, Mr Patel obtained the discount from Mr Harrison that Mr Harrison (to the knowledge of both Mr Patel and Mr Chong) had been unwilling to give despite having twice been asked ... This was a scheme cooked up by Mr Patel and Mr Chong that was never intended to give rise to any genuine commission payment from Mr Harrison to Mr Chong. Rather it was a scheme that was all along intended to wheedle out of Mr Harrison the discount that he was unwilling to give to Mr Patel."

Mr Harrison's complaint

7. The background to Mr Harrison's complaint is briefly as follows. In early December 2003 he was asked to provide a quotation for building works to shop premises owned by Mr Patel. He provided a quotation in a letter dated 9 December 2003 and Mr Patel accepted that quotation. Later in that month, as a result of a request made to Mrs Harrison by Mr Chong's secretary, Mr Harrison provided to Mr Chong a copy of his public liability insurance policy. There was an issue in relation to insurance because Mr Patel was insistent that the building work should be carried on at the shop premises while the shop remained open and trading. Mr Harrison was advised by his insurance broker not to carry out the work and he so informed Mr Patel. Mr Patel's response, contained in a letter dated 19 January 2004, was to require Mr Harrison to carry out the building works in accordance with his accepted quote or to face a claim from Mr Patel for any additional costs and expenses that might be incurred as a result of appointing another builder.
8. The letter closed by stating that Mr Chong, on behalf of Mr Patel, was waiting to hear from Mr Harrison. Mr Harrison replied by letter dated 23 January 2004, saying in effect that there was not an agreement and Mr Patel should simply take his business elsewhere. Mr Patel replied to that in a letter dated 29 January 2004, contending that Mr Harrison was contractually bound to carry out the works in accordance with the quotation, and the letter further stated that Mr Patel had obtained independent legal advice but not from Mr Chong, who had informed Mr Patel that he could not act in relation the matter. The letter ended up by asking Mr Harrison to nominate solicitors to accept service of proceedings for recovery of any additional costs that Mr Patel might incur.
9. Mr Harrison believed that both of Mr Patel's letters (dated 19 and 29 January) had in fact been drafted by Mr Chong, and that, contrary to the statement in the second letter, it was for Mr Chong that Mr Patel was receiving legal advice. He said that he thought that the statement to the contrary was "a bare-faced lie". Mr Harrison requested an apology from Mr Chong, but that request was declined, and so by letter dated 18 February 2004, Mr Harrison complained to the defendant about Mr Chong's conduct. The last two paragraphs of his letter said this:

"I do not consider it befitting professional conduct of a Solicitor to act in the way Mr Chong has done. When I carried out the work at Mr Patel's home Mr Chong contacted me as he believed he was entitled to an introductory commission, which I paid him in cash in two stages, and I have proof in my books of when those payments were made.

It therefore begs the question whether Mr Chong's real concern over this matter is that he will miss out on a commission this time."

10. The defendant wrote to Mr Harrison on 26 February 2004 telling him that a file had been opened. On 14 October 2004 the defendant wrote to the claimant setting out the complaint. The allegations were summarised as follows under the sub-heading "Professional Conduct":

"It is believed that there are two allegations in this complaint.

Whilst this office believes that there is no issue in a solicitor writing letters to go out in their client(s) name the solicitor must note that in doing so they are qualifying the content of the letter(s).

It is therefore alleged that:-

1. The content of the letter dated 29 January 2004 is misleading as the same suggests that you have not been advised of Mr Patel's situation.

2. That you have taken an introductory fee from a third party."

11. The claimant was asked to provide his "full answer" and "a detailed response" to the complaint. The manner in which the claimant chose to respond to the complaint does him no credit whatsoever. It is unnecessary to set out the correspondence in detail. The claimant's replies are, in my judgment, accurately described in the defendant's skeleton argument as, variously, an obvious attempt to avoid the issues, unhelpful, obtuse and/or bombastic. Thus, on 8 November 2004, the claimant told the defendant:

"As to the allegation of a breach of Practice Rule 10 (receipt of commission from the Third Parties) again, it states that the solicitor 'shall' account to 'their clients' for any commission received of more than £20. Again, in relation to this allegation, Mr Patel is not 'my client' to which the rule applies.

Accordingly, unless you can satisfy yourself that there is a breach of a 'client/solicitor' relationship between myself and Mr Patel in relation to the complaint made by Mr Harrison, I have been advised that I have no case to answer and respectfully suggest that the investigation be withdrawn."

12. On 23 November 2004 the claimant told the defendant:

"Therefore, I am able to provide you with the confirmation which you require as follows:-

1. I did not receive the sum of £1,500 from Mr Harrison on 13 November 2001. Mr Patel did.

2. I did not receive the sum of £400 from Mr Harrison on 13 November 2001. Mr Patel did."

13. On 16 December 2004 the claimant responded to the defendant's invitation to set out his version of events. His letter said, in part:

"Mr Patel had tried to ask Mr Harrison for a discount on the contract price in relation to a single storey building extension work to Mr Patel's private residence (which took place some three years ago). Mr Harrison was not prepared to offer any discount on the basis that the price that he had quoted Mr Patel was sufficiently competitive. Mr Patel then asked me if I could speak to Mr Harrison with a view to obtaining a discount for the works to be carried out.

I duly spoke to Mr Harrison about this and he remains adamant that he is not prepared to offer any discount on his contract price. I informed Mr Patel about this and Mr Patel in turn had asked me if I could secure from Mr Harrison a referral fee for the works and if I am able to do so, to account to him for any such fees that Mr Harrison may be prepared to give which will then reflect the discount which Mr Patel was looking for. I told Mr Patel that I will do so, but offered no guarantee that I would be successful ...

Any such sums which he [Mr Harrison] claims that he has made has been properly accounted to Mr Patel direct."

14. In a letter dated 6 January 2005 the defendant's caseworker pointed out that this explanation of the events in 2001 "suggests that you took action to mislead Mr Harrison into believing that you required a referral fee/commission for the introduction of himself to Mr Patel. However, the actual reason for the fee was for the benefit of Mr Patel, who had already requested a deduction from Mr Harrison, but had been advised that he would not receive the same".
15. In his reply dated 14 January 2005, the claimant said:

"It seems to me that before I can properly deal with those matters you have raised in your letter of 6 January, I would require an extension of time simply because it would seem that you have unilaterally raised a new allegation that I had obtained a 'discount in disguise' when in fact, I do not believe that Mr Harrison has made this allegation in the first instance. What Mr Harrison has alleged was that he was paid the sums mentioned in your letter by way of a referral fee.

Therefore, in the interest of fair play, I would ask that Mr Harrison be asked to comment on this new allegation which you have made on your own motion as it were, before I can provide you with my full response to the issue which you wish to seek clarification from me."

16. Mr Harrison replied to the defendant, and the claimant's full response is contained in a letter dated 26 January 2005. In that letter the claimant said:

"Mr Harrison's complaint to your office on 18 February 2004 relates principally to issues between Mr Harrison and Mr Patel and for which you have already confirmed in your letter of 6 January that your office is unable to become involved in the same.

It is of course correct for you to say in your letter under reply, that within his letter of complaint, he stated he has made payments to me during the time when he 'initially' worked for Mr Patel at his private residence. It is significant to note that firstly, he has also raised this outside the limitation period and secondly and more importantly, he has raised by way of a 'side comment' contained in the last paragraph of his letter, a 'suspicion' as to whether or not my real concern is whether 'he will miss out on a commission this time'.

I do not know the basis on which Mr Harrison makes this assertion since he has not at any time been approached by me, nor have I been requested by Mr Patel on this occasion to seek any referral fee or commission, and therefore his comment imputes an ulterior motive on my part which was non-existent.

I can therefore only reiterate that notwithstanding your assertions, Mr Patel is not a client of the firm for the purpose of any referral fee on a project which was completed by Mr Harrison some three years ago and for which Mr Harrison knew well that he has no contractual obligation or any obligation at all to pay any commission or referral should he choose not to do so.

As to Principle 17.01, it is clear that I have not acted fraudulently. I was under no obligation to account to Mr Patel for the monies received from Mr Harrison and the fact that I have done so means that I have not obtained or derived any secret profit from anyone. I certainly had no intention to act deceitfully. My main motive was to help Mr Patel to get a discount on the contract price. Mr Harrison was under no obligation to agree to any referral fee or commission since by this time he had already secured the contract, the works were already implemented and, as you say in your letter, Mr Harrison was already in receipt of stage payments.

If Mr Harrison felt he had been deceived then I of course apologise, but it seems odd that he has taken almost three years to raise this as a complaint and only after he felt aggrieved that I had helped Mr Patel to write the two letters of complaint in respect of a totally separate project for which I have no involvement and contrary to Mr Harrison's unfounded 'suspicions' I was not after any commission.

The entire discussion that took place over the question of a referral fee was made informally. They were both friends of mine at that time. I was certainly not acting as 'a solicitor or in any professional capacity or otherwise' for the purpose of Principle 1.01 and Principle 17.01. Therefore no file was opened as such. The referral fee was not paid into my firm's office client account and as I have already previously stated, any payments which Mr Harrison made were accounted to Mr Patel, either immediately or soon thereafter."

17. The terms of this letter are truly extraordinary. In the letter dated 16 December 2004, the claimant was saying that Mr Patel had asked him if he could secure a commission/referral fee, and if he was able to do so, to pass it on to him (Mr Patel), which would then reflect the discount which Mr Patel was seeking and the claimant had said that he would endeavour to obtain such a payment. Yet on 26 January 2005, the claimant is saying "nor have I been requested by Mr Patel on this occasion to seek any referral fee or commission". Moreover, the letter contends that the claimant was under no obligation to account to Mr Patel for the monies received -- this, despite the fact that he had earlier said that he had agreed with Mr Patel that he would ask for a commission, and that if he was paid a commission, he would pay it on to Mr Patel.
18. The letter says that there was no intention to act deceitfully and yet the immediately following sentence makes it clear that the claimant's "main motive was to help Mr Patel to get a discount on the contract price". Mr Harrison, it is plain, thought that he was paying the claimant a referral fee or commission. In reality, he was giving Mr Patel a discount via the claimant. The claimant is at pains in the letter dated 26 January 2005 to emphasise the fact that the monies which were paid to him were not paid into his office account, but were paid immediately or soon thereafter to Mr Patel. In short, he was simply acting as the conduit for the concealed discount payment to Mr Patel. It is quite impossible in these circumstances to understand how the claimant managed to persuade himself that he was not behaving deceitfully, and it is very worrying that, even now, it appears that he does not accept that his actions were indeed deceitful.
19. If one asks why the claimant did not tell the truth to Mr Harrison, as he was obliged to do as a solicitor, the answer is not far to seek. He could not tell Mr Harrison that in reality he was not seeking a commission but a discount for Mr Patel because he knew that if Mr Harrison was told the truth, he would refuse to pay the money. There can be no doubt whatsoever that the claimant, even on his own account of events, deliberately deceived Mr Harrison. It is not surprising therefore that the defendant's caseworker wrote to the claimant on 3 February 2005, saying:

"Please be advised that this office can choose to investigate an allegation at its own discretion, where we feel that more information and detail is required relating to an event or circumstance. We are required to obtain as much information as possible in order to form an impartial decision. We are required to give the parties to the complaint adequate opportunity to support their comments so that we can be satisfied the correct outcome can be achieved.

As previously explained and re-confirmed to you in my letter of 6 January 2005, a complaint has been brought to our attention by Mr Harrison. Whilst Mr Harrison stated that he was concerned about letters prepared within your offices, I confirm that I am satisfied that this office need take no further action with regard to this point.

However, Mr Harrison had advised that payments were made to you in respect of referral fees. This matter has been brought to your attention and you have duly responded to this office by advising that you requested referral fees from Mr Harrison and the monies received were used to assist Mr Patel in obtaining a form of deposit. Mr Harrison had previously confirmed he was not prepared to agree to any reduction of his costs.

You have advised that your motive in obtaining monies from Mr Harrison was to aid Mr Patel, however Mr Harrison was under no obligation to pay any referral fee to you. You advise that discussion over the question of referral fees was made informally. And whilst payments were made, they were not paid into your firm's office nor client accounts but accounted to Mr Patel either immediately or soon after receipt by yourself from Mr Harrison."

20. The letter then set out Principle 1.08 - Behaviour Outside Legal Practice, which is in these terms (accompanied by two notes):

"'Solicitors are officers of the Court, and must conduct themselves so as not to bring the profession into disrepute.

1. Solicitors, whether practising or not, are officers of the Supreme Court. Certain standards of behaviour are required of solicitors, as officers of the Court and as members of the profession, in their business activities outside legal practice and even in their private lives. Disciplinary sanctions may be imposed if, for instance, a solicitor's behaviour tends to bring the profession into disrepute.

2. When solicitors are acting on their own behalf, whether in conveyancing, litigation or any other legal matter, they are expected to observe the same standards of conduct as are required in the course of practice ...'

Whilst I appreciate you have already substantively responded to this office, I must advise you that the allegation still stands that you took action to mislead Mr Harrison into believing that you required a referral fee/commission for the introduction of himself to Mr Patel, however, the actual reason for the fee was for the benefit of Mr Patel who had already requested a reduction from Mr Harrison but had been advised that he would not receive the same.

In the light of the above Principle, I would be grateful if you could provide me with any further comments you may have within the next 14 days."

21. After further correspondence, the matter went before the adjudicator, Mr Lymbury. In a decision dated 18 May 2005, he concluded that there had been no professional misconduct: specifically that there had been no breach of Principle 17.01 of the Guide to the Professional Conduct of Solicitors 1999 and no breach of Rules 1(a) and (d) of the Solicitors' Practice Rules 1990. At this point it is convenient to set out Principle 17.01, which is as follows:

"Solicitors must not act whether in their professional capacity or otherwise, towards anyone in a way which is fraudulent, deceitful or otherwise contrary to their position as solicitors. Nor must solicitors use their position as solicitors to take unfair advantage either for themselves or another person."

22. Rule 1, so far as material, is as follows:

"A solicitor shall not do anything in the course of practising as a solicitor, or permit another person to do anything on his or her behalf, which compromises or impairs, or is likely to compromise or impair any of the following:

(a) the solicitor's independence or integrity;

...

(d) the good repute of the solicitor or the solicitor's profession."

23. In respect of the critical question, whether the claimant had acted in a manner which was deceitful, the adjudicator said this in paragraphs 12 to 15 of his decision:

"12. In this case, Mr Chong was not acting as a solicitor for Mr Patel and therefore the second limb of Principle 17.01 does not, in my considered view, apply. Equally, I am not satisfied that Mr Chong behaved in a deceitful way. What he said to Mr Harrison was in effect 'I have introduced this work to you and can I have a commission or finders's fee'. Mr Harrison, who was clearly pleased to have the work in 2001, said 'Yes you can' and a sum was agreed and paid.

13. I accept absolutely that earlier approaches had been made by Mr Patel to Mr Harrison for a reduction in the price which had been turned down. That was a purely commercial matter in which I have no concern. Mr Chong however, acted honourably and rather than make any secret profit, handed the money to his friend, Mr Patel. If Mr Chong had given the money to charity, or had chosen to spend it in some other way, however rashly, he could not have been accused of being deceitful. The fact is he gave it to his friend as he was entitled to do because Mr Harrison had paid the money willingly and without condition as to who should retain it or for what purpose.

14. In those circumstances I do not consider Mr Chong has acting deceitfully or dishonestly. He asked for some money, was given the money and chose to do what he wished with it. While Mr Harrison may have been put out by the matter, he does not seem to have been so at the time. I accept that he may not have known about it at the time but it also appears from the caseworker's summary that when he was told about it, he chose not to make a complaint anyway.

15. As a result, I am not satisfied that there has been any misconduct in this case. Commission paid in 2001 by the builder was paid willingly at a time when Mr Chong was not professionally involved with either party ..."

24. Pausing there, on the admitted facts of this case, that conclusion is fairly described as Wednesbury perverse. It fails to grapple with the gravamen of the complaint, namely that the claimant deliberately deceived Mr Harrison into believing that he (Mr Harrison) was paying him (the claimant) a referral fee when, in reality, as the claimant well knew, he was secretly acting as a conduit for payment of a discount to Mr Patel. He was doing so secretly because he knew that had he told Mr Harrison the truth, Mr Harrison would not have paid him the money.
25. The adjudicator's decision concluded with this paragraph:

"RIGHTS OF REVIEW

• Mr Peter A Harrison has the right to appeal against my decision to make no finding of misconduct in this case, such right to be exercised within 14 days of his receipt of notification of my decision."

26. Mr Harrison appealed within 14 days to the Adjudication Panel. In a letter dated 15 September 2005, the Panel set out the reasons for its decision the previous day:

"On 14 September 2005 our Adjudication Panel considered an appeal by Mr Harrison against the adjudicator's decision dated 18 May 2005 and decided:

'RESOLVED

1 The Panel carefully considered the grounds of the appeal submitted by Mr Peter A Harrison in his letter of 13 June 2005 and RESOLVED to allow the appeal. The Panel find that Peter Kay Tong Chong has acted in breach of Principle 17.01 of the Guide to the Professional Conduct of Solicitors and further Rule 1(a) and (d) of Solicitors Practice Rules 1990. The REASONS were that the Panel considered that, while there is no evidence of any overt misrepresentation by Mr Chong there is in the circumstances a misrepresentation by omission. The Panel consider the solicitor's course of conduct fell precisely within the note to Principle 1.08 and the wording of Principle 17.01.

2 The Panel resolved to substitute a SEVERE REPRIMAND.'"

The letter then went on to deal with the issue of costs.

27. In his submissions on behalf of the claimant, Mr Bailey challenged the decision of the Adjudication Panel on two grounds: firstly, the Panel had no power to consider the appeal because Mr Harrison had no right to appeal; secondly, the Panel's conclusions were irrational and/or inadequately reasoned and/or unfair because the Panel had not explained why it had disagreed with the adjudicator.
28. I can deal with the second ground quite shortly. So far as the suggestion that the Panel's conclusion was irrational is concerned, on the contrary the Panel's conclusion was the only rational conclusion that could be drawn in the light of the facts which by that stage were not in issue. For the reasons set out above, the claimant's conduct was plainly deceitful, in breach of Principle 17.01 and fell precisely within the note to Principle 1.08. Whether practising or not, solicitors must behave so as not to bring the profession into disrepute.
29. So far as the complaint about inadequate reasons and/or unfairness is concerned, it has to be remembered that the Adjudication Panel's decisions are not judgments addressed to the public at large. As I understand it, the defendant is considering whether or not Panel decisions should be made public. If and when that happens, then consideration will need to be given as to whether the reasons are set out in somewhat more detail so as to be intelligible to those who will not know the background of the case. However, that does not arise in this case. The decision was addressed simply to the parties, who would be well aware of all of the background material, including the agenda note, the parties' responses thereto and the adjudicator's conclusions. In these circumstances there is no need for an Adjudication Panel to rehearse the background in any detail, and in the present case, this applies with particular force because the Panel was plainly not disagreeing with the adjudicator on any matter of fact. It was simply a question of what conclusion could properly be drawn from the facts, which by that stage were not in dispute.
30. The question, in summary, was: had the claimant's conduct in deliberately deceiving Mr Harrison as to the true purpose of the "commission" payment been deceitful? To that question, there was only one possible answer. It was.
31. I turn therefore to ground 1. It was put in a number of different ways, but boiled down to this: Mr Harrison's letter of complaint dated 18 February 2004 had not complained that he had been misled about the true character of the "commission" payment. That is not surprising since the claimant and Mr Patel had been at pains to keep the true purpose concealed from Mr Harrison. The complaint that was eventually accepted by the Adjudication Panel, although it had been foreshadowed in earlier correspondence, was formally made for the first time in the defendant's letter dated 3 February 2005. There is no doubt that when Mr Harrison made his complaint on 18 February 2004 and the defendant wrote to him on 26 February saying that a file had been opened, Mr Harrison, as the complainant, would have had a right to ask for a review by an Adjudication Panel of an adjudicator's conclusion that there had been no professional misconduct by the claimant. That much is clear from a report dated April 2004 by the defendant's Director of Regulation Compliance. The report explained that it had been agreed in March 2003 that rights of review in cases of inadequate professional services (IPS) should be abolished. The report suggested that rights of review in conduct cases should be brought into line with the position that had been agreed in respect of IPS cases. Thus, the report said this:

"1. At its meeting on 2 March 2003 the Compliance Board agreed to abolish automatic rights of review for both complainants and solicitors in IPS cases. This reflected previous decisions of the Board and recommendations of the Independent Commissioner. Rights of review in conduct cases were not affected by this decision.

2. The current position is therefore as follows ...

• A complainant [Mr Harrison] has a right of review of a finding that there is no misconduct (there has never been a right of review by a complainant as to level of sanction) ...

• A solicitor [the claimant] has a right of review in relation to a finding of misconduct, or as to level of sanction imposed."

32. The report went on to say:

"4. The preservation of such rights of review in conduct cases is thus at variance with decisions already made for IPS. It is also at odds with the principle that whilst the individual complainant has an active role to play in a complaint of poor service, issues of conduct must be dealt with by the Society on the basis of an assessment of the risk to the interests of the public and consumers of legal services as a whole ...

6. ... In the case of a conduct issue, the information may have come from a client or from a third party, or have been secured on the Society's own initiative. Whatever the source of the information, it is the Society's responsibility to determine the course of the investigation and to make the final decision on discharge of its role as a regulator. The rationale for allowing a right of review to someone who is subject to disciplinary action as a result is stronger than that for allowing a similar right to the supplier of the information."

33. The report made certain recommendations; among them were:

"(1) Rights of review of a client or any other person or body making a complaint, or lodging a report of professional misconduct or regulatory breach with the Society.

• There will be no automatic right of review against a finding that there is has been no misconduct or regulatory breach ... "

34. The recommendations were adopted in a booklet entitled "Changes to Rights to Reviews in IPS Conduct and Regulation Matters", published in July 2004. The booklet contained a summary which identified the critical dates as being 2 August 2004 for conduct cases, and said:

"No right to review for complainants in conduct cases in matters received on or after 2 August 2004."

35. The practical consequences of the change were summarised in a table. The table was in two parts: the first dealing with matters received between 19 April 2004 and the 1 August 2004 inclusive; and the second dealing with matters received on or after 2 August 2004. In the first half of the table, under the heading "Conduct", the column in respect of the customer said "Right of review of finding of no misconduct". In the second table, under the "Customer" heading, there was this: "No right of review of finding of no misconduct". It is helpful also to note that the booklet dealt with the issue of files which had been closed and then reopened. In answer to the question "What about reopened matters received before 19 April 2004"? (the notes were concerned with IPS decisions but the same principles would apply to conduct decisions) the answer was: "If the matter was inappropriately closed then there will be a right of review on the basis that it should never have been closed at all". Similarly, in respect of temporary closures: "If the temporary closure was inappropriate then, when the file is reopened, there will be a right of review on the basis that it should never have been closed at all". Thus it can be seen that the critical questions are: when was the matter received and/or when was a file opened by the defendant?
36. Pausing there, the essence of the claimant's contention is that, since the complaint against him was first formulated by the defendant in February 2005 and did not feature in Mr Harrison's letter of 18 February 2004, Mr Harrison had no right of appeal because he should not be regarded as being the true complainant. This argument, although it was valiantly put by Mr Bailey on behalf of the claimant, is hopeless. For the reasons set out above, Mr Harrison was plainly "the complainant" also had a right to seek a review. Absent the changes to the policy, he would undoubtedly have been entitled to ask for a review of the adjudicator's decision. The only question is whether the changes to the review process were such as to remove that entitlement.
37. In this context, two points should be made, neither of which is reflected in the claimant's submissions. Firstly, the process of adjudication must be fair to both parties -- the complainant and the solicitor complained against. The former will not usually be a lawyer. As in the present case, the complainant will often not know the full facts, and the full facts will only emerge after careful investigation by the defendant's caseworker. Almost certainly the complainant will not be familiar with the details of the Guide to Professional Conduct and/or the Solicitors' Rules. Thus, as is explained in the April 2004 document, in practice in respect of conduct issues, although the complaint will be initiated by a client or a third party -- or indeed by information that is brought to the defendant's attention -- once the file has been opened, the defendant will take over the investigation, and having ascertained the facts, will then formulate the "charges". This did not alter the position that, prior to the changes to the ability to seek review, Mr Harrison was the complainant and was entitled to seek a review of an adjudicator's decision if the adjudicator concluded that there had been no professional misconduct.
38. The second point is this. Given that persons in the position of Mr Harrison had a right to seek a review, that right could not be retrospectively removed. In deciding how to effect the change in policy, the defendant had to act fairly. It therefore made provision for those cases which were still in the pipeline as at 2 August 2004. Against this background, the reference to "matters received on or after 2 August 2004" plainly does not refer to the date when the precise "charge" was formulated by a Law Society caseworker after the conclusion of investigations, but to the date when the complainant wrote to the defendant and/or when the file was opened by the Law Society. The distinction between these two dates is of no consequence for present purposes.
39. As the circumstances of the present case demonstrate, if the solicitor responding to the complaint is not co-operative and procrastinates or evades answering the questions or gives contradictory or unsatisfactory answers, then it may take the defendant's caseworker some considerable time before it is possible to ascertain the relevant facts and to identify the precise "charge", if any. But such events are wholly outside the complainant's control. The solicitor's response may be a prompt and frank admission; alternatively there may be delay, procrastination and evasion. Clearly it would not be right for a complainant in the latter kind of case to be prejudiced by a cut-off date such as 2 August 2004.
40. If there was any doubt about the matter, it is laid to rest by the policy statement dated 25 April 2005, "Appeals and Reconsiderations of Adjudication Decisions". As I understand it, this policy statement sets out in somewhat more detail the policy which was contained in the July 2004 document. Paragraph 4 of the April 2005 Policy Document says this:

"This policy statement applies to all decisions or adjudications made on or after 3 May 2005 except that any rights of review enjoyed as a result of previous policy decisions made by the Board and relating to open service cases (received prior to 19 April 2004) or open conduct cases (received prior to 2 August 2004) will be preserved." (emphasis as in the original)

41. There cannot be any doubt that "open service cases" and "open conduct cases" refer to those cases where files had been opened by the defendant in response to complaints (see the July 2004 document in relation to files which had been inappropriately closed or temporarily closed) and which were not closed. The present conduct case falls squarely into that category. The file was opened in February 2004 and remains open pending the outcome of these judicial review proceedings. Therefore, the policy statement which sets out the new policy relating to reviews, on which the claimant placed much reliance, is simply not relevant for present purposes and it is unnecessary to consider its details.
42. In summary, when Mr Harrison made his complaint in February 2004, he had a right to request a review of an adjudicator's decision if the adjudicator concluded that there had not been professional misconduct. That right was expressly preserved by the policy changes. Thus, the Adjudication Panel was entitled to consider the appeal, and having done so, they reached the only conclusion that was reasonably open to them on the evidence. The conclusion that there should be a severe reprimand was wholly justified.
43. For these reasons, the application must be dismissed.
44. MR PEACOCK: My Lord, I think that just leaves the question of costs.
45. MR JUSTICE SULLIVAN: Yes.
46. MR PEACOCK: I would ask your Lordship to assess the costs today, if you would be willing to do that. I do not know if you have had at any stage cost schedules.
47. MR JUSTICE SULLIVAN: I think the answer is, no, I have not.
48. MR PEACOCK: In my experience, even if my solicitors in other cases think they have been filed, generally they do not make it. That is our costs schedule, and, my Lord, over the medium term adjournment since we finished this morning I have seen the applicant's costs schedule. Our total costs are £17,900. The applicant's are £17,800. They are almost like long lost twins if one compares the various captions, one against the other, and subject to anything my learned friend might say as to particular issues, we would ask that you would assess on the basis of that amount.
49. MR JUSTICE SULLIVAN: Yes, Mr Bailey?
50. MR BAILEY: My Lord, I accept the principle that Mr Chong will have to pay the costs of the defendant, but I would ask that there be an assessment of these costs firstly, and secondly an inquiry as to his ability to pay them.
51. MR JUSTICE SULLIVAN: The latter would not be relevant --
52. MR BAILEY: Not today.
53. MR JUSTICE SULLIVAN: But it would not be relevant on affecting the quantum of costs. It might be relevant as to whether the Society will ever get them back, but that is a separate point. But on detailed assessment, and given that the two figures that are put in are within £100 of each other, it seems almost impossible, on the basis that your costs are properly incurred -- the defendant has had a fair bit to do in terms of preparing documents and so forth as well -- it is quite difficult to think that their costs are significantly -- there may be something in terms, I do not know whether we have taken a shorter time than we thought we would -- probably not really.
54. MR BAILEY: What I would say is that a lot of the argument has been around documents -- a lot of the unsuccessful argument brought on behalf of the claimant -- has been around policy documents that were disclosed by the defendant, and so, much of his costs relate to the analysing of those documents to see how they fitted in with his case. From the Society's point of view, these were documents that they were well aware of and were able to justify. So not much analysis on their part, it seems to me, in relation to the meaning of those documents, although from the claimant's point of view, he was unaware of those documents and those documents kept coming as you can see from the correspondence. They were not all sent in one go. So, in my submission, there is a distinction to be drawn there in terms of costs.
55. The only other matter that immediately springs to mind is the issue of the amount that has been spent effectively in correspondence. I am not particularly in a position to comment on that in any detail on the face of the applicant's schedule of costs. It seems to me there has been an awful lot of correspondence in this case, some of which was concerned around the question of disclosure which resulted in those policy documents being forwarded.
56. MR JUSTICE SULLIVAN: I do not know if I have seen your summary costs. Are they £17,800-odd? What is the grand total rather than the detail?
57. MR BAILEY: The grand total is £17,868. That is inclusive of VAT.
58. MR JUSTICE SULLIVAN: Yes, thank you. I do not think I need trouble you, Mr Peacock.
59. First of all, there is no dispute that the claimant has to pay the defendant's costs as a matter of principle. So far as quantum, I am satisfied that the right thing to do would be to summarily assess them -- this is a one day case and one ought to if one possibly can. Given the fact that the costs are almost identical, the overall sum being £17,910 and £17,868 respectively, I am satisfied that I have a realistic basis for assessing the costs. In the particular circumstances of this case, there is no reason to believe that the burden on the defendant was materially less than the burden on the claimant in terms of preparation. It seems to me, therefore, that if I summarily assess the costs in the round sum including VAT of £17,500, I am as close to the mark as I am likely to get. So that is what I do.
60. The claimant is to pay the defendant's costs, summarily assessed in the sum of £17,500 including VAT. Thank you both.