Practice and Procedure

DAVID HERMAN HOLDER v LAW SOCIETY (2003)

PUBLISHED January 24, 2003
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Although intervention by the Law Society in a solicitor's practice involved an interference with the claimant's peaceful enjoyment of his possessions it was justified in the public interest.Appeal by the Law Society from a decision of Peter Smith J allowing an appeal from the Master's order dismissing the claimant's application for an order directing the Law Society to withdraw a notice of intervention in the claimant solicitor's practice. In 2001 an investigation compliance officer from the Office of Supervision of Solicitors began an inspection of the claimant's books and accounts. The inspection revealed that the claimant ('H') was in breach of his obligation to maintain client account records, there was a shortfall on client account and he was massively in debt to fringe moneylenders. The Law Society resolved to intervene in the claimant's practice and did so by notice under Sch.1 Solicitors Act 1974 on grounds of suspected dishonesty and failure to comply with the accounts rules. H applied to the High Court for an order directing the Law Society to withdraw the notice of intervention. The Law Society applied for and obtained summary judgment from the Master dismissing that claim. The judge allowed an appeal. He held that there should be a trial to consider whether intervention had infringed H's rights to peaceful enjoyment of his possessions under Protocol 1 Art.1 European Convention on Human Rights since the appointment of a receiver or manager of the practice might have been a sufficient remedy in the circumstances. The Law Society appealed. The issue was whether the intervention procedure raised any issue under the Human Rights Act 1998.HELD: (1) H's argument that his right of access to the court was effectively denied by his lack of means once his accounts had been frozen by the intervention was rejected (Pine v Law Society (2001) EWCA Civ 1574 applied). (2) There was no breach of Art.6(1) European Convention on Human Rights since in the circumstances of this case his ability to put forward his case was not rendered practically impossible. (3) Although the intervention involved an interference with H's peaceful enjoyment of his possessions it was justified in the public interest. (4) The judge's conclusion that the draconian effects of intervention were not necessary ignored the all important factor of the "margin of discretion" allowed to the legislator in establishing the statutory regime of intervention and to the Law Society, as decision-maker, in implementing it. The power to intervene involved a balancing exercise which was the same as the fair balance which Protocol 1 Art.1 required. There were no arguable grounds for thinking that the margin allowed to the legislature had been crossed. The statutory scheme complied with the Convention. (5) The Law Society's intervention as a matter of the exercise of its discretion was entirely justified (as the judge held apart from the human rights point).Appeal allowed.

[2003] EWCA Civ 39

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