Fordham: Alternative remedy available
A non-solicitor has failed in his attempt to judicially review a control order imposed on him by the Solicitors Regulation Authority (SRA) six years ago.
Mr Justice Fordham also rejected Craig Garrett’s application for judicial review against the Legal Aid Agency’s (LAA) refusal to grant him exceptional case funding to review the order at the Solicitors Disciplinary Tribunal (SDT) – which has anyway since become academic.
In March 2016, Mr Garrett was dismissed by Newport law firm Louise Stephens & Co, which reported him to the SRA and led two months later to an adjudicator imposing an order under section 43(2) of the Solicitors Act 1974.
This meant he could not work for a law firm without the regulator’s permission.
It was only in September 2020 that Mr Garrett applied for the SDT to review the order and sought funding from the LAA to do so.
The agency refused the application on the grounds that Mr Garrett’s prospects were poor. On the papers, Mrs Justice Steyn refused permission to judicially review that decision.
She separately refused permission for a judicial review of the adjudicator’s decision, £600 costs order and act of publishing the order.
Steyn J concluded that the claim was very substantially out of time with no good reason to extend time; a statutory review of the order by the SDT stood as an alternative remedy; the act of publication was unimpeachable; and the costs order was lawful.
Deciding the renewed applications for leave, Fordham J acknowledged the confusion until only recently at both the SRA and SDT about the latter’s powers in relation to the section 43 orders.
It decided in March that the SDT could only review whether the order should have been made in the first place; it was up to the SRA to decide whether to revoke an order for no longer being necessary. There is also a ‘hybrid’ route where the SDT can review an SRA decision not to revoke.
The judge ruled that this was a case “in which permission for judicial review is clearly inappropriate, on the straightforward basis that the claimant has adequate alternative remedies” at the SDT.
It was also “a clear case of a lack of promptness”, he went on, with Mr Garrett’s reason for delaying – relating to one element of the allegations against him – not a good reason.
Fordham J found “no arguable ground for judicial review in relation to publication or costs” as well.
“The publication by the SRA of the adjudicator’s decision in May 2016 was not, even arguably, unlawful unreasonable or unfair nor in breach of Convention rights. The judicial review court would not grant a remedy relating to that act of publication.
“The same is true of the costs order which the adjudicator made. This was on the face of it lawful reasonable and fair, in light of the applicable 2011 Costs of Investigations Regulations, given the reasoned decision which the adjudicator had made.”
The LAA’s decision to refuse funding was “plainly reasonable” as well, Fordham J said.
The assessment of the poor prospects of success was based on two particular features: the primary purpose of the order was not punitive but to protect the public, and that it was made after Mr Garrett had failed to respond to evidenced allegations which had been raised with the SRA, specifically as to the firm’s office account.
In May 2021, criminal proceedings against Mr Garrett were discontinued when the Crown offered no evidence and he was formally certified as being acquitted of the 29 counts of theft and fraud with which he had been charged in December 2018.
He then reapplied to the LAA and it agreed to provide funding for advice and assistance from solicitors.
Fordham J upheld Steyn J’s order that Mr Garrett pay the LAA costs of £300 but reduced the amount he has to pay the SRA from £2,650 to £2,200.
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