R (on the application of Ogun) v Solicitors Regulation Authority [2019] EWHC 1792 (Admin)

R (on the application of Ogun) v Solicitors Regulation Authority [2019] EWHC 1792 (Admin) concerned a judicial review brought by Mr Akindele Ogun challenging the Solicitors Regulation Authority’s decision that he was not entitled to exercise higher rights of audience in the civil courts; Mr Justice Mostyn dismissed the claim.

Mr Ogun was called to the Bar by Lincoln’s Inn in 1985 and to the Nigerian Bar in 1986, but did not practise at either Bar. He joined the corporate tax team at Lovell White Durrant in 1987 and was admitted as a solicitor in 1995. In 1997 he established his own law firm. In early 2005 he applied to the Law Society for the Higher Courts (Civil Proceedings) qualification, which would entitle him to exercise rights of audience in all civil proceedings in the higher courts. His application was governed by the Higher Courts Qualification Regulations 2000, which set out requirements including at least three years’ appropriate experience of litigation in the higher courts, the provision of at least one reference, attendance for interview if required, and successful completion of an advocacy assessment. Regulation 6(3) stipulated that applications under that regulation must be received by the Society before 1 November 2005, though this deadline was subsequently amended by the Council of the Law Society with the Lord Chancellor’s approval to 31 December 2006 on 28 October 2005.

Following submission of his initial application accompanied by two references, Mr Ogun received a certificate of eligibility to attempt advocacy assessment for the higher courts qualification, subject to certain conditions including that the assessment had to be undertaken within two years, giving him until 5 May 2007 to complete it. He completed the advocacy assessment successfully on 25 August 2006. The assessment was undertaken by an external contractor, BPP, which issued a certificate stating that Mr Ogun had achieved the required standard in advocacy assessment for civil proceedings. Following receipt of that certificate, Mr Ogun concluded that he had been awarded the qualification by an agent of the Law Society. He did not apply to the Law Society for a certificate to that effect and had no further communication with the Law Society about the matter whatsoever. He thereafter regularly appeared for clients in the higher courts for over 12 years.

In July 2018, during an arbitration appeal under the Arbitration Act 1996 heard in the Commercial Court by Sir Jeremy Cooke, the respondent questioned Mr Ogun’s right to appear for his client and raised the matter with the SRA. This led to an investigation. On 19 October 2018, the SRA wrote to Mr Ogun stating that while he had completed the necessary advocacy assessment in 2006, he had failed to notify and apply to the SRA for the higher rights of audience qualification and was therefore not entitled to exercise civil higher rights of audience. On the same date, the SRA sent a letter to the solicitors for the respondents to the arbitration appeal. Mr Ogun issued judicial review proceedings on 17 December 2018, arguing that the decision was irrational and not compatible with the terms of the 2000 regulations. He also contended that the decision violated his rights under Article 1 of Protocol 1 to the European Convention on Human Rights and that the letter of 19 October 2018 was defamatory. Chowdhury J refused interim relief and opined that the claim was unarguable, but Laing J granted permission on 28 January 2019, holding that the grounds were arguable.

Mr Ogun’s central argument was that the reference to “application” in regulation 6(3) referred only to the initial application and not to any later application for the actual grant of the qualification following successful completion of the advocacy assessment. He contended that in circumstances where he completed the assessment on 25 August 2006, any application for the grant of the qualification made after that date would fall foul of regulation 6(3) as it stood before amendment. He argued that the regulations could only make sense if the reference to an application was to the initial application alone. He further argued that the certificate of eligibility which gave him until 5 May 2007 to complete the advocacy assessment, a date well after 1 November 2005, showed that the only relevant application for the purposes of the 2000 regulations was the initial application.

Mr Justice Mostyn rejected Mr Ogun’s case entirely. The judge held that the amendment to regulation 6(3) made on 28 October 2005, which changed the date to 31 December 2006, fatally undermined Mr Ogun’s argument regarding the deadline. The terms of the regulations clearly presupposed that following successful completion of the advocacy course there would be an application to, and a full grant by the Law Society of, the qualification. It was to this application that regulation 6(3) referred. Following successful completion of the advocacy course on 25 May 2006, it was incumbent on Mr Ogun to have applied to the Society for the formal grant or award of the qualification. Version 2 of the guidance notes for solicitors wishing to apply for rights of audience in the higher courts, published in March 2005, stated at paragraph 3.13 that the advocacy assessment was mandatory and the qualification could not be awarded until confirmation had been received that the applicant had successfully completed this part. Paragraph 3.14 provided that individuals would submit an application with a certificate of successfully passing the assessment and evidence of having satisfied any other conditions prescribed by the Society. These notes clearly confirmed that the application was in two parts: first, the initial application seeking the certificate of eligibility; then, after the advocacy course had been successfully completed, the second part seeking the formal grant or award of the qualification.

Although Mr Ogun accepted that version 2 of the guidance notes clearly mandated this two-stage process, he argued there was no evidence that version 1, which would have been in force if his initial application predated version 2, said the same thing. He formally called on the SRA to produce version 1. The SRA was unable to find version 1, but produced a document published in June 2004 entitled “Higher Rights of Audience: Introduction to Gaining Higher Rights of Audience”. Mr Ogun objected to the admission of this document, saying its production at a late stage violated the directions as to evidence. The judge rejected what he described as this black-letter approach, observing that it was not acceptable for Mr Ogun to call for the production of version 1 but then object to the admission of the next best thing, and admitted the document. This stated on page 2 that applicants would receive a certificate of eligibility from the Law Society to attempt an advocacy assessment, success at which would ultimately allow them to apply for an award.

The judge was satisfied on the strong balance of probabilities that version 1 would have said the same thing as version 2 and that Mr Ogun, who surely would have read the notes at the relevant time, would have been well aware of the necessity to apply formally to the Law Society following completion of the advocacy course for the grant of the qualification. Had he done so, he would have received a certificate stating that he had been granted the relevant qualification and was entitled to exercise rights of audience in all the higher civil courts. Mr Ogun never made such an application and it followed that he had, by virtue of an administrative error on his part which was accepted to be an innocent mistake, been exercising rights of audience in the higher courts for over 12 years without having the formal qualification to do so. He now needed to put his house in order by attending a two-day advocacy course at a cost of about £600 including VAT, filling in a form, paying a fee of £75, and paying postage to the SRA. The judge had no doubt that the grant of the qualification would be a formality. Mr Ogun’s primary claim was therefore dismissed. Mr Ogun accepted that if he failed on his first ground, he must fail on the second and third, which were both consequentially dismissed.

The judge observed that the litigation appeared completely disproportionate when rectifying the imperfect situation required only the straightforward steps outlined above. The case had caused the SRA to incur costs of £18,000. Mr Ogun had put in a costs schedule of over £36,000, asserting he had spent over 60 hours on the matter at his normal hourly charging rate of £350. Mr Ogun sought permission to appeal, which was refused. The judge was not satisfied that an appeal would have any real prospect of success or that there was some other good reason for an appeal to be heard. The judge made an order for costs in favour of the SRA, rejecting Mr Ogun’s arguments that costs should not follow the event because the decision was demonstrably wrong or because it would disrespect the grant of permission by Laing J. The judge awarded costs in the sum of £18,000 including VAT, noting that the solicitors and counsel instructed by the SRA had agreed to do the matter on a fixed fee of £15,000 plus VAT, which was commendable and compared favourably with Mr Ogun’s hourly charging rate cost of over £36,000.

In short, Mr Ogun’s failure formally to apply to the Law Society for the grant of the Higher Courts qualification following successful completion of the advocacy assessment meant he had been exercising rights of audience without proper entitlement, and his judicial review challenging the SRA’s decision to that effect was rightly dismissed.