CO/5727/2004

Neutral Citation Number: [2005] EWHC 560 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2

Wednesday, 16th March 2005

B E F O R E:

LORD JUSTICE ROSE

MR JUSTICE HOLLAND

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THE QUEEN ON THE APPLICATION OF

NASEEM YOUSEF
(APPELLANT)

-v-

(1) THE LAW SOCIETY OF ENGLAND AND WALES

(2) THE SOLICITORS' DISCIPLINARY TRIBUNAL
(RESPONDENTS)
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The APPELLANT appeared in person

MR GEORGE MARRIOTT appeared on behalf of the RESPONDENT
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 J U D G M E N TWednesday, 16th March 2005

1. LORD JUSTICE ROSE: Mrs Yousef, who appears before us today in person, appeals

against the decision of a solicitors' disciplinary tribunal on 14th September 2004,

reasons for which were given on 21st October, that she should be struck off the Roll of

Solicitors. The crucial question raised by the appeal is whether the Tribunal, having, in

circumstances to which I shall come, found that Mrs Yousef was dishonest, they ought

to have struck her off the Roll of Solicitors or imposed, as Mrs Yousef submits, some

much less Draconian penalty.

2. The allegations which the Tribunal found proved against her were that she had acted as

a solicitor in breach of a condition imposed on her practising certificate for the year

2001 to 2002, that she had sought and obtained a position with a firm or solicitors

without obtaining approval from the Law Society, contrary to the conditions on her

practising certificate, and that she failed to inform the firm of solicitors for whom she

worked of the conditions imposed on her practising certificate, contrary to rule 1(d) of

the Solicitors' Practice Rules 1990.

3. The appellant, Mrs Yousef, denied these allegations before the Tribunal. She gave

unsworn evidence and made submissions. The conditions, so far as is presently

material, related to her being in employment as a solicitor only with the prior approval

of the Office for the Supervision of Solicitors. There was, in connection with those

conditions, a hearing before the Master of the Rolls on 8th July 2003 in which he varied

the conditions so that the her practising certificate became subject to a condition that

she practise either in partnership or in employment. It will be apparent that the

allegations found to be proved by the Tribunal whose decisions is appealed related to

 the period prior to the variation of conditions by the Master of the Rolls, in particular to

the period when, as became apparent because of her attendance at an immigration

appeal hearing before a special adjudicator, she was working on behalf of a firm called

Malik & Malik and one of their clients. On 31st October 2003 the Law Society wrote

to Mrs Yousef, seeking her explanation for working in that way in apparent breach of

the conditions of her certificate at that time. She replied by letter dated 15th November

2003 that, in effect, she had, both in March 2002 and again in November 2002,

informed Malik & Malik of the conditions, and it was in that context that she had been

so working.

4. However, on 9th December 2003, in a telephone call, which Mrs Yousef accepts was a

sign of her behaving wrongly and foolishly, she told the Law Society that she had not,

contrary to the terms of her letter of 15th November, informed the partners in Malik &

Malik of the conditions on her certificate. It was that telephone call which was at the

heart of the finding of dishonesty made by the Tribunal.

5. Mrs Yousef made submissions to the Tribunal in relation to her appearance before the

Master of the Rolls and the variation of the conditions on her certificate which then

occurred. But, she submitted, there was no question of dishonesty on her behalf. So far

as her clients were concerned, she had always worked honestly on their part. She did

not handle clients' funds and there was no question of her misappropriating clients'

funds.

6. The background to the conditions being imposed on Mrs Yousef's certificate needs to be

briefly identified because of certain of the submissions made by Mrs Yousef, both in

writing and orally to us today. She had been involved, to put it in a neutral way, in a

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 non-dishonest fashion with another, undoubtedly fraudulent, solicitor who had made off

with a very large amount of clients' money, much of which left the jurisdiction of this

court. The association with that other solicitor, the Tribunal had concluded, was when

she was inexperienced and she had herself, to some extent, been the victim of the

nefarious activities of that solicitor, a man called Shah, and the Brandons Group. It was

in consequence of that earlier Tribunal decision that conditions were imposed upon Mrs

Yousef's practising certificate, which, it is apparent, she did not agree with and was

dismayed by. The Tribunal presently the subject of appeal recognised, in its reasons for

decision, the difficult situation in which Mrs Yousef found herself. She was not able to

earn in an unrestricted way. But they concluded that her employment by Malik &

Malik had not been approved by the OSS, as was required by the conditions, and also

concluded that Malik & Malik had not been informed of the conditions on her

certificate.

7. In paragraph 44 the Tribunal said this:

"To a large extent it was [Mrs Yousef's] case that she had been the victim
of others' wrongdoing and the Tribunal has some sympathy for that view.
But any solicitor has to remember that one of the burdens to be borne by a
solicitor is the fact that he remains liable for his own actions and his own
decision making and whatever disadvantages might stem from behaving
entirely appropriately, a solicitor must nevertheless adopt such an
appropriate stand.
45. The Tribunal concludes that in her desperation to obtain paid work
the Respondent skated over the conditions on her Practising Certificate
and justified that action to herself by her view that she was a victim in the
whole matter and not a perpetrator of nefarious activities. In not being
open and frank about her position and the conditions on her Practising
Certificate with her employers the Respondent behaved dishonestly."

8. The Tribunal went on that it had sympathy for Mrs Yousef for what had happened to her

in the past, but:

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 " ... the Tribunal, in the interests of the protection of the public and the
good reputation of the solicitors' profession, is not able to overlook the
dishonest approach adopted by the Respondent."

9. The Tribunal went on to conclude that Mrs Yousef knew exactly what she was doing

and, although they understood her reasons, they concluded that she made a conscious

decision to do things her own way. The dishonesty test in the well-known authority of

Twinsectra v Yardley had been met. In all the circumstances, they concluded that

striking-off was appropriate.

10. Mrs Yousef in her written grounds, amended grounds, skeleton submissions and reply

dated 15th March to submissions made in writing by the Law Society for the purposes

of this appeal, tells the court, and we accept, that, at the relevant time in 2002, she felt

very vulnerable. She had many domestic and other problems, including divorce

proceedings. She never thought that she was doing something dishonest. The Master

of the Rolls had relaxed the conditions. She made a number of a complaints to us about

the way in which she was deceived by the partners in Malik & Malik, and says that she

was duped by them into accepting what they said. This included them writing a letter

on 1st October 2003 outlining the terms on which she was engaged by them. She has

been left to take all the blame. She also made criticism of the way in which Mr Shah,

to whom earlier I referred, was permitted to remove very large amounts of clients'

money from this country without, apparently, hinderance by the Office for the

Supervision of Solicitors. She told us that, in view of the Master of the Rolls' decision,

she thought that she would not be in any trouble in relation to the pre-existing

conditions on her certificate. She stresses, rightly, that she was not involved in any

misappropriation of funds. She had been stupid and naive but not, she said, dishonest

and she should not have been struck off. She invites this court to treat her case

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 sympathetically, bearing in mind that she is a single mother and has had no job for

many months.

11. To all of those written and oral submissions I pay careful regard. As it seems to me, the

difficulty with Mrs Yousef's case is that the Tribunal were entitled to find, on

unimpeachable grounds having regard to her own admissions as to the terms of the

December telephone call, that she was dishonest. It is right that her dishonesty was of a

different character to the dishonesty of a solicitor who puts his hand in the till, absconds

with clients' money or otherwise misappropriates funds. But the Solicitors' Disciplinary

Tribunal, as it seems to me, having regard to the requirements of the profession, were

fully entitled to conclude that the public interest could only properly be served by Mrs

Yousef being struck off the Roll. Accordingly, for my part, despite my sympathy with

Mrs Yousef in many respects, I would dismiss this appeal.

12. MR JUSTICE HOLLAND: I agree.

13. MR MARRIOTT: My Lord, there is just one application which is for the Law Society's

costs. It is just over £5,000.

14. LORD JUSTICE ROSE: Well, Mr Marriott, it is not realistic, is it, to seek an order for

costs against Mrs Yousef, leaving aside the question of quantum, on which we are

certainly not going to embark.

15. MR MARRIOTT: Leaving aside that the principle should be adhered to. It is a matter

for the Law Society as to whether they should actually, as it were, take instalment from

her or not.

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16. LORD JUSTICE ROSE: It may be that it is appropriate that an order for costs should

be made, not to be enforced without leave of the court.

17. MR MARRIOTT: May I take instructions, my Lord?

18. LORD JUSTICE ROSE: Yes. (Pause).

19. MR MARRIOTT: The Law Society would be content with such an order.

20. LORD JUSTICE ROSE: Then we make that order, but not in any particular sum.

21. MR MARRIOTT: Presumably to be assessed?

22. LORD JUSTICE ROSE: To be assessed if not agreed, yes. Thank you.

23. MRS YOUSEF: I would request that costs should not be allowed because I am not

working and there are other costs already imposed when the previous decision was

made and I think that the sum of £10,000 is already outstanding.

24. LORD JUSTICE ROSE: Mrs Yousef, the fact that you have lost makes you vulnerable

to an order for costs. We have made the order not to be enforced without leave of the

court because we recognise your dire financial circumstances. Thank you.

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