Tribunal: All but one aspect of solicitor’s claim struck out
A solicitor trying to challenge disciplinary action taken against him by the Law Society 15 years ago has failed in a bid to have an employment tribunal intervene on the grounds of discrimination.
Michael Casson brought his action against the Solicitors Regulation Authority (SRA), as successor to the Law Society’s Legal Complaints Service, which found him guilty of inadequate professional service in 2006.
Employment Judge McCluggage said the solicitor was “at least in part” initially seeking to use the tribunal as a court of appeal from both the Solicitors Disciplinary Tribunal (SDT) and also the High Court, which would be “hopeless”.
Mr Casson, a White male who was 54 in 2006, alleges that the SRA’s treatment of him in the years since amounts to unlawful discrimination on the grounds of race, sex, religion and age.
A probate and property solicitor who is still in practice, the judge said “there is no suggestion that he is other than a competent and well-regarded solicitor despite the historic problems in his practice”.
Two clients complained to the Law Society in 2004 and 2005 over the service provided by Mr Casson and his then partner in the law firm Lee Davies.
An adjudicator in 2006 ordered him to pay nearly £2,000 in compensation for inadequate professional service to one client and, in May 2007, £3,600 to the other.
Mr Casson viewed the decisions as unfair and did not pay the money, which led the Law Society to refer him to the SDT. It reprimanded him for conduct unbefitting a solicitor and professional misconduct.
Judge McCluggage noted that, on the face of the tribunal’s decision, Mr Casson had not made any claim that the adjudicators or Law Society had been influenced by his race, sex or age in their actions.
The solicitor had been made bankrupt in February 2005 and the SDT also rejected the argument that the adjudication awards constituted bankruptcy debts and were therefore no longer payable.
In 2009, the Administrative Court rejected his challenge to the decision and permission to appeal to the Court of Appeal was refused.
Costs were awarded against Mr Casson and there were more skirmishes over this, but the SRA was also responsible for a five-year delay before moving ahead with detailed assessment proceedings in 2018.
The following year, Mr Casson failed in an attempt to re-open the 2009 High Court appeal on a point of bankruptcy law and the detailed assessment finally took place last year.
The SRA has never been his employer but Mr Casson sought to bring his action under section 53 of the Equality Act 2010.
This says a qualifications body must not discriminate against a person upon whom it has conferred a relevant qualification by subjecting them to a detriment.
It was accepted that the SRA was a qualifications body and the judge said subjecting a solicitor to a professional disciplinary or regulatory sanction “is apt to constitute a ‘detriment’”.
Section 120 of Act gives the employment tribunal jurisdiction over a claim under section 53 unless “the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal”.
Though it was clear that Mr Casson had a right of appeal from the tribunal to the High Court, it was not clear – due to an absence of information about how the complaints system worked at the time – whether he had a right of appeal from an adjudicator to the SDT.
However, Judge McCluggage said that, as the Law Society at the time took the case to the SDT anyway, that meant the solicitor had the right to appeal to the High Court, which he used.
“While on one hand I am troubled by the fact that an employment tribunal jurisdiction may depend on whether the issue reaches on the SDT, on the other I recognise that the adjudication has no legal effect unless the SDT makes an enforcement order and so it would be rare (though possible) for a non-legally enforceable decision to constitute a ‘detriment’ for the purposes of s.53 EQA. In short, the asymmetry is fairly theoretical.
“Of course, if there was some sort of internal review from an adjudicator’s decision which was [sic] not been found by the time of the hearing in the present case, all such concerns fall away.”
As a result, Mr Casson’s discrimination complaints relating to the adjudicators’ decisions, prosecution before the SDT and the Law Society’s opposition to his High Court appeal, among others, all fell foul of the section 120 exception and were struck out.
Judge McCluggage added that, were he wrong on this, he would have ruled that the various complaints had either no or little prospects of success.
The only complaint not caught concerned the SRA pursuing the costs order arising out of the High Court appeal. The judge ordered Mr Casson to pay a deposit of £500 if he wanted to pursue this.
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