Without Notice, Without Merit: How far would you go for your client?

Introduction

On 26^th April 2018, the Administrative Court handed down judgment in Vay Sui Ip v Solicitors Regulation Authority [2018] EWHC 957 (Admin). The Administrative Court refused Mr Ip’s appeal against the SRA’s orders for strike off and costs (£10,000) for, essentially, ‘gaming the system’ in immigration proceedings, and for making ‘totally without merit’ applications.

Irwin LJ. agreed with Lane J.’s “full and compelling” judgment, adding that it “carries particular authority from his long experience and his Presidency of the Upper Tribunal (Asylum and Immigration Chamber)”.

Findings of misconduct

A series of cases before the Upper Tribunal raised concerns in relation to Sandbrook Solicitors’ (‘Sandbrook’) conduct of litigation. The Upper Tribunal found that “[t]he pattern emerging suggests that a strategy or tactic is being deployed whereby without-notice injunctions are sought and then when granted the case is permitted to fade away from sight with the consequence that the failed asylum seeker or immigrant remains in the United Kingdom below the radar”. It referred the matter to the Solicitors Regulatory Authority (“SRA”).

After an investigation, the SRA referred the case to the Solicitors Disciplinary Tribunal (‘SDT’), which found Sandbrook had:

• brought judicial review applications which were totally without merit and an abuse of process, contrary to Principles 1, 2 and 6 of the SRA Principles 2011
• engaged in a systematic course of conduct designed to undermine the immigration system, amounting to a persistent abuse of the process of the Court, in breach of Principles 1, 2, 3, 6 and 8 of the SRA Principles 2011
• failed to act in accordance with the duty of candour owed by legal representatives upon a without notice application for interim relief and failing to place the full facts before the Court, contrary to Principles 1, 2 and 6 of the SRA Principles 2011
• acted in a manner which lacked integrity, although was not dishonest.

On 4^th October 2017, the SDT struck Mr Ip off the Roll of Solicitors.

The Judgment of the Administrative Court

Lane J rejected the contention that a striking off order was disproportionate. He noted Sandbrook’s actions:

“impeded the Upper Tribunal’s ability to realise that untrue and/or significantly incomplete statements made about applicants for judicial review in cases that were lacking in merit were the work of a solicitor, acting in breach of his obligations under the SRA’s Principles and Code of Conduct…

Spurious, or merely hopeless, applications to courts and tribunals add greatly to the burden on the system of justice, and to the costs of government. However, it should not be forgotten that such applications also cost the applicants, both financially and in engendering prolonged and unjustified expectations. In addition, poor, and where it arises unscrupulous, representation must, to some degree at least, overshadow careful and expert immigration lawyers.”

He considered the SDT was right to include deterrence as part of its consideration of sanction:

“In so doing, the SDT was not making any generalised criticism of those who practise in the difficult and demanding area of immigration law. On the contrary, it is only by the maintenance of high professional standards that solicitors who are discharging their professional responsibilities can safely enjoy the recognition they deserve”

 Analysis

Although no new point of law was established, the clear and forceful tone of the judgment is an important development in the line of authority including R (Hamid v Secretary of State for the Home Department) [2012] EWHC 3070 (Admin) and Okundu & Abdussalam v Secretary of State for the Home Department [2014] UKUT 377, condemning meritless applications.

This decision will serve as an encouragement to regulators to consider professional conduct issues in relation to what is properly arguable and what is not, and indeed any perceived manipulation or abuse of the procedure rules. It highlights the care that all litigation practitioners – on both sides of the profession – must take in advising clients who are, often, desperate to continue to challenge the state by any means available.

Indeed, it may be that there is a convergence of approach being taken across the senior appellate courts towards without merit applications. Anecdotal evidence from criminal practitioners suggests that the Court of Appeal is reassessing its underutilised approach to loss of time orders in criminal appeals as a means of discouraging meritless appeals.

 For other, recent cases in which the courts have analysed the conduct of lawyers who ‘went too far’ in attempting to assist their clients, see:

• R v Nolan (Terrence) [2017] EWCA Crim 2449
• Bernard Sports Surfaces Ltd v Astrosoccer4u Ltd [2017] EWHC 2425 (TCC)
• R (ex p Gopinath Sathivel) v Secretary of State for the Home Dept and other cases [2018] EWHC 913 (Admin)
• The Queen (on the application of Martin Kay and Scan-Thors (UK) Limitted) v Leeds Magistrates’ Court and Marek Karwan [2018] EWHC 1233 (Admin)
• Wingate and Another v Solicitors Regulation Authority; Solicitors Regulation Authority v Malins [2018] EWCA Civ 366

Gavin Irwin