Murugesu Kanapathipillai Sritharan v Law Society (2005)
When deciding whether to dismiss an application under the Solicitors Act 1974 Sch.1 para.6(4), in circumstances where the Law Society's decision to exercise its statutory powers of intervention was not flawed, a court was not required to ask itself whether it should fashion an alternative remedy.
The appellant solicitor (K) appealed against an order dismissing his application for withdrawal of an intervention notice served by the Law Society on the grounds of suspected dishonesty. There was a substantial cash shortage in K's firm's client account which had arisen due to transfers of sums from the client account to the office account over a long period of time. K's practising certificate was suspended. On an application by K, the judge refused to direct the withdrawal of the intervention notices, refused to restore K's practising certificate, refused to direct that K be given access to the files and refused to discharge a freezing injunction in respect of K's assets. The judge found that the choice of remedy was limited to allowing the intervention to continue or wholly reversing it and that the balance lay in favour of allowing it to continue. However he expressed regret that there was not a remedy which more satisfactorily addressed the problem. There was no challenge to the judge's finding that there were reasons to suspect K of dishonesty but K submitted that the judge should not have allowed the intervention to continue as the Law Society and the court's powers under the Solicitors Act 1974 Sch.1 were not so circumscribed.
The judge was correct to find that the choice was between the intervention continuing or being wholly reversed. Some form of supervision and control was required and, if that could not be provided by the exercise of powers short of full intervention, there was no alternative to the intervention continuing. The statutory regime under which powers of intervention were conferred on the Law Society was not of itself inconsistent with the European Convention on Human Rights 1950 Protocol 1 Art.1 and the Law Society was not to be criticised for taking the view that it should act in accordance with the statutory regime, rather than seek to adopt some alternative procedure, Holder v Law Society (2003) EWCA Civ 39 , (2003) 1 WLR 1059 applied. When deciding whether to dismiss an application under Sch.1 para.6(4) of the 1974 Act, in circumstances where the Law Society's decision to exercise its statutory powers of intervention was not flawed, a court was not required to ask itself whether it should fashion an alternative remedy. Parliament had prescribed the form that intervention should take and it was not for the Law Society to seek some other remedy from the court and it was not for the court to substitute a remedy of its own. The judge was right to allow the intervention to continue. K's appeals against the judge's further orders were also dismissed.