Solicitor “failed to notice” client’s judicial review had been struck out

SDT: Solicitor made a mistake

A solicitor who admitted “not having noticed” that his client’s judicial review had been struck out and not working on the case for almost two years has been fined £12,500 by the Solicitors Disciplinary Tribunal (SDT).

It said that, although Tapfumanei Nyawanza’s incompetence was “repeated and continued over time”, his failings were not “sufficiently serious” to mean that he was not competent to be a solicitor and should be struck off.

In an unusual move, the tribunal dismissed allegations from the Solicitors Regulation Authority (SRA) that Mr Nyawanza had acted with a lack of integrity, even though the solicitor had admitted them.

The SDT said this was because it was the SRA’s case that he “had made a mistake, not that he had knowingly written misleading letters”.

The tribunal also dismissed an allegation that Mr Nyawanza had asked his client, a student referred to as ‘GR’, to pay over £3,000 to the landlord of his firm’s offices in Birmingham rather than fees to him as her solicitor.

The tribunal heard that Mr Nyawanza, admitted in 2009, was director of Genesis Law Associates from October 2013 and its sole director from November 2014 to December 2019, as well as the COLP and COFA.

GR received a letter from the Home Office in September 2014, stating that she had cheated on her English language test by using a substitute to sit it for her, and it was going to terminate her student visa.

GR denied using a substitute. She was introduced to Mr Nyawanza by the landlord of his offices, RS, who was a friend of her uncle. The solicitor launched a judicial review against the Home Office at the Upper Tribunal (UT) in March 2015.

However, the UT stayed the proceedings in June, pending the outcome of two Court of Appeal cases. After the Court of Appeal rulings in October 2015, the UT gave GR seven days to serve amended grounds for the JR or it would be automatically struck out. Mr Nyawanza failed to do so.

In February 2016, he told GR saying he was waiting for a letter from the UT following the outcome of the Court of Appeal cases.

The SDT said there then were “no records on GR’s file” for two years, at which point the solicitor wrote to HM Courts & Tribunals Service (HMCTS) to restart the case in light of the appeal court ruling.

However, HMCTS replied that the case was closed and he would have to make a formal application to reinstate it.

It was not until April 2018 that he told GR her claim had been struck out and she paid him £255 to apply for reinstatement. But it was not clear whether he did so, and Mr Nyawanza said he could not recall whether he had paid the fee.

In the absence of any update from her solicitor, GR called the UT, which said it had not received an application or payment of the fee. She then complained to the SRA.

Mr Nyawanza admitted that he “drafted letters confirming the action was proceeding, not having noticed that the claim was struck out”.

He also admitted failing to carry out GR’s instructions by not complying with court directions and not working on the case for almost two years.

The solicitor admitted breaching a number of SRA principles, including principle 2 (lack of integrity), and the SDT found them all proved, apart from principle 2.

The tribunal also rejected the allegation that his misconduct was “manifestly incompetent”.

Although Mr Nyawanza’s failings were serious and amounted to professional misconduct, the SDT “did not find that the failings were sufficiently serious to mean that the respondent was not competent to be a solicitor and should be struck off the roll”.

The SDT said Mr Nyawanza was an “experienced and specialist” immigration solicitor and the service he provided fell “well below the standard” which GR and third parties relying on the misleading letters were entitled to expect.

His misconduct had caused GR “very significant stress”. However, he had admitted all the matters found proved and co-operated with the SRA investigation.

He was fined £12,500 and ordered to pay £3,000 in costs.

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