High Court rejects bid to replace “kiss of death” practising certificate conditions with undertakings

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By Legal Futures

7 June 2012


High Court: undertakings would either make no difference or be less effective

The High Court has rejected a bid to replace conditions on a solicitor’s practising certificate (PC) with undertakings despite claims that the current state of the professional indemnity insurance market made them the “kiss of death” to a continuing career.

Mr Justice Eady said it would be “quite inappropriate” to let this influence the exercise of the statutory jurisdiction in relation to granting PCs.

The case related to Hugh Bryant, who had an unblemished 20-year career as a solicitor before facing disciplinary action that arose from a protected disclosure he had made under the money laundering regulations. He was initially struck off by the Solicitors Disciplinary Tribunal in 2006 for dishonesty, but this was quashed by the High Court and replaced by a two-year suspension. The court held that the finding of dishonesty was legally flawed and concluded instead that Mr Bryant should have appreciated that the transactions were “dubious”.

When his suspension ended in 2008, Mr Bryant was granted a series of PCs subject to conditions, such as having to work in approved employment. A Solicitors Regulation Authority (SRA) appeal committee dismissed Mr Bryant’s appeal against the most recent conditions, leading to the High Court hearing.

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It was argued that in the past the imposition of PC conditions was compatible with a continuing professional life and an opportunity to show, over a period, that such supervision was no longer needed for the protection of the public.

“According to the evidence before me, the position has fundamentally changed,” said Mr Justice Eady. “The imposition of conditions is now in practical terms recognised to be ‘the kiss of death’. To all intents and purposes, they render the prospect of further practice impossible. In a sense, therefore, it may be said that what were originally intended to be temporary and precautionary measures have, in reality, become permanent and punitive.”

Mr Bryant presented evidence that there were solicitors who would employ him but for the impact on their insurance premiums. However, the judge noted that even if the conditions were removed, it was likely that Mr Bryant’s disciplinary record would still cause a problem as insurers routinely ask if any fee-earner has faced a disciplinary sanction in the previous 10 years.

In any case, Mr Justice Eady said that “if the SRA considers that the imposition of a condition or conditions is appropriate in the case of any solicitor’s practising certificate, and those conditions are proportionate, it would be inappropriate not to impose them (or alternatively to lift them) simply because there is now a harsher climate in the insurance marketplace…

“It would be quite inappropriate to be influenced in the exercise of the statutory jurisdiction in relation to the grant of practising certificates for reasons of that kind, rather than prioritising the relevant criteria of what is required to protect the public interest and the reputation of the profession.”

He upheld the “sensible” conditions, adding: “I see no reason for by-passing the well-established statutory regime and seeking to address these legitimate concerns by way of undertakings. Either they would make no difference or they would be less effective in serving the SRA purposes of protecting the public and maintaining confidence in the profession.”

 

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