[1]Intervention: forensic report should be made available at once
There may be circumstances in which the eight-day period solicitors have to challenge interventions into their practices should be extended, the Court of Appeal has suggested.
In Gadd v Solicitors Regulation Authority [2013] EWCA Civ 837, the court was critical of the SRA’s failure to provide the solicitor involved with the forensic investigation report on which the intervention was founded until more than a month after his firm was closed down.
Nonetheless, the Court of Appeal firmly rejected Christopher Gadd’s appeal against the earlier summary judgment issued in favour of the SRA by Sharp J.
The eight-day limit is set by paragraph 6(4) of schedule 1 to the Solicitors Act 1974, and in this case Mr Gadd did not begin his challenge to the intervention for a year.
However, he argued before the court that this was due to impecuniosity and also the SRA’s failure to give him sight of the forensic report.
Lord Justice Elias said: “Even if we assume – and we are prepared to do so in favour of the applicant – that there may be exceptional cases where one could read down paragraph 6(4) so as to allow for applications out of time… nonetheless we are not satisfied that impecuniosity was a justification for applying that principle here.”
The judge said Mr Gadd could have represented himself – “it was not arguably necessary, it seems to us, that he should be allowed legal representation”.
Elias LJ said it was “difficult to understand” why the forensic report was not made available to Mr Gadd at the time of intervention, and said “I can see some merit in the contention that it may be difficult for Mr Gadd to pursue proceedings until he receives that report”.
However, in these circumstances, he could have done, the judge concluded.
“I do recognise that there may certainly be some circumstances where an applicant is prejudiced without seeing the basis on which the intervention is allowed. But even allowing for the possibility that this would justify under [European Convention on Human Rights] principles, and in particular article 6, some departure from the eight-day period, it was plainly critical for Mr Gadd to act very speedily thereafter.”
Twelve months was too long, he concluded. “There is no reasonable prospect for saying that paragraph 6(4) could be read down so as to allow a challenge so much later than the period specific in that rule.”
Lord Justice Beatson agreed, adding only that he too was concerned about “the delay in the transmission of the forensic investigation report”.
Mr Gadd, who began his campaign [2] against the SRA in 2011, said that the case had established an important point by opening up the possibility of challenging interventions beyond the eight-day limit.
He added: “To impose a Draconian regime [like intervention] on a solicitor without serving the evidence is Kafkaeque and an outrageous affront to the rules of natural justice. This particular breach of my right to a fair trial is something I will now, with the supportive words of Elias LJ ringing in my ears, be pursuing in the European Court of Human Rights.”
David Middleton, SRA executive director for legal and enforcement, said: “While the hearing was dealing with an application for permission to appeal at which the SRA was not present, we do not consider the decision to affect the law. The court clearly did not decide that it had power to extend the eight-day period.
“It is notable that the judgment does not refer to the main authority on this issue, Bradford v Law Society (1995), which expressly decided there is no power to extend this time limit, which is provided for in primary legislation.”