Solicitors Regulation Authority v Naqvi [2019] EWHC 1420 (Admin)

In Solicitors Regulation Authority v Naqvi [2019] EWHC 1420 (Admin), the High Court set aside four witness summonses issued by a solicitor facing Solicitors Disciplinary Tribunal proceedings, finding that the proposed witnesses could give no relevant evidence and that the summonses were speculative and oppressive.

The SRA had brought four allegations before the SDT that Mr Naqvi, a sole practitioner, had breached the SRA Principles 2011 in the course of an immigration consultation. The allegations related to advice he gave during a consultation on 27 March 2015 with an undercover reporter posing as a client who was considering a visa application based on a marriage that might not be genuine. The interview was covertly recorded as part of an ITV documentary entitled “ITV Exposure UK: The Sham Marriage” and broadcast in July 2015. The SRA contended that Mr Naqvi had failed to advise the purported client that such an application would be unlawful, advised the client not to disclose any lack of genuineness to him, indicated a willingness to assist and advised on steps to increase the prospects of success. Dishonesty was alleged in relation to three of the four matters.

Mr Naqvi denied the allegations and raised two defences. First, he contended that he had not in fact advised the putative client to proceed with a sham marriage but had instead explained that he could not know whether any marriage was genuine and that he assumed genuineness unless evidence indicated otherwise. He submitted that he had been trying to extricate himself from an uncomfortable conversation. Second, he argued that the proceedings amounted to an abuse of process because the evidence relied upon had been obtained through entrapment by an undercover agent, relying upon the principles in R v Loosely [2001] UKHL 53. He contended that it was seriously improper for the SRA to rely on evidence so obtained and that it brought the administration of justice into disrepute.

There had been a series of procedural applications before the SDT. On 31 October 2018 Mr Naqvi applied for “quashment” of the proceedings, alleging among other things that the SRA witnesses had conspired to employ a false document and committed fraud. That application was dismissed on 4 December 2018 after being treated as an application to strike out for abuse of process. A renewed attempt to reopen that application and an application to adjourn were both refused by the SDT on 29 March 2019. The SDT noted that the entrapment argument would be available at the substantive hearing and held that on the evidence then available a fair trial remained possible. It emphasised that if evidence at the hearing raised any reasonable possibility of entrapment or other abuse, the Tribunal could make appropriate directions and hear a renewed application at that stage.

On 1 April 2019 Mr Naqvi made a further application to strike out for abuse of process. On 4 April 2019 he obtained six witness summonses from the High Court in aid of the SDT proceedings, which were due to begin on 15 April 2019. Four of those summonses were challenged by the present applications: summonses directed to Mr Mandeep Sandhu, an SRA investigation officer; Ms Jennifer Dunlop, an authorised officer of the SRA; Ms Hanna Lane, a solicitor with Capsticks who had filed the Rule 5 statement; and Ms Daveena Ogene, the Head of Case Management at the SDT.

Mr Justice Freedman summarised the roles of each witness. Ms Sandhu had undertaken the initial investigation and prepared a memorandum referring to and relying on the evidence, which was exhibited in the Rule 5 statement. Ms Dunlop had reviewed that memorandum in April 2018 to assess whether the evidential and public interest tests for referral to the SDT were met and signed the decision that they were. Ms Lane had day-to-day conduct of the SDT proceedings under supervision and signed the Rule 5 statement; she was not a witness of fact in relation to the underlying allegations. Ms Ogene managed SDT cases, dealt with correspondence and identified appropriate case management steps prior to hearings.

Mr Naqvi submitted that he required the evidence of these four witnesses in order to pursue an abuse of process argument at the hearing. In addition to the entrapment argument advanced by Mr Riza QC, he intended to develop credibility issues and serious criticisms of those involved in the SRA’s case preparation. He contended that the Rule 5 statement had exhibited a letter from the Home Office which falsely stated that he had been arrested and was on bail, and that this had contaminated the proceedings. He posited that those responsible had either knowingly used a false document or had negligently failed to investigate it, and maintained that the case had become “infructuous” as a result. He wished to cross-examine Ms Lane on how the inaccurate passage came to be included, and argued that subsequent redaction of that passage did not answer his abuse argument. He also criticised Ms Ogene’s correspondence concerning the redaction, contending that there had been no formal direction authorising it.

Mr Naqvi further relied on the late disclosure of an audio recording of an earlier visit by the undercover reporter. A memorandum dated 18 April 2018 by Ms Sandhu stated that an audio recording of the first visit was available, yet that recording was not provided until 15 March 2019. On 26 March 2019 Capsticks wrote that the SRA’s legal department first became aware of the recording’s existence when a witness statement was sought from the documentary producer, but on 9 April 2019 Capsticks accepted that the wording had been confusing, explained the chronology of their enquiries and admitted that the recording should have been located earlier. Mr Naqvi submitted that this evidenced suppression of evidence and false information and that he required cross-examination to explore the issue. He also emphasised his inability to cross-examine the undercover reporter, whose whereabouts remained unknown, and argued that the court should be particularly accommodating as a result. Finally, he contended that because the Rule 5 statement included a statement of truth, Ms Lane should be available for cross-examination in the same manner as a witness.

The SRA, supported by the SDT, submitted that the witness summonses should be set aside because none of the four respondents could give material or relevant evidence, the summonses had not been obtained in good faith for the purpose of obtaining relevant evidence, and they were speculative and oppressive. Mr Paul for the SRA emphasised that the central issues before the SDT concerned the meaning of Mr Naqvi’s words during the covert interview and his state of mind at the time. The SRA further relied on policy reasons why compelling these witnesses to give evidence would be inappropriate, and noted in Ms Lane’s case that she was medically unwell.

Mr Justice Freedman set out the relevant legal principles. Under CPR 34.4 the court may issue and set aside witness summonses in aid of inferior courts and tribunals. The burden on an application to set aside lies on the issuing party to justify the summons. The court is concerned to prevent abuse of the power to summon witnesses. A witness summons will be set aside if the court is satisfied that it was not issued in good faith for the purpose of obtaining relevant evidence and the witness is unable to give relevant evidence, or if the summons is oppressive, for example where it relates to documents disclosure of which has been refused or which are subject to public interest immunity. A witness summons may be set aside where it appears the request is irrelevant, fishing, speculative or oppressive. In R (Baker) v Hossack [2009] EWHC 2463 (Admin), Silber J held that evidence as to the reasons for making complaints was of no relevance to the task of the SDT to ascertain whether the respondent acted professionally and in breach of the rules. In Morris v Hatch [2017] EWHC 1448, Judge Paul Matthews held that the burden lies on the issuing party to justify the summons, that the court must balance the interests of justice in fair disposal against competing interests, and that the mere fact that an issuing party has motives beyond the particular action does not by itself make the summons oppressive.

The judge was satisfied that the SRA had standing to make the application. Although the SRA itself was not the subject of any of the witness summonses, authority in Marcel v Commissioner of Police established that it is not a barrier to an application to set aside that the applicant is not the witness summoned, and the position was a fortiori where the applicant was already a party to the proceedings and its conduct of the action would be affected by whether the summons stood.

Mr Justice Freedman concluded that Mr Naqvi had failed to identify any evidence which the four witnesses could usefully give. The starting point was that the case concerned the covert video evidence obtained on 27 March 2015, the meaning and effect of what was said, and the nature of the entrapment. Mr Naqvi did not suggest that any of the four witnesses had anything to say about those matters. They had no involvement in the transaction itself and could say nothing about what was said, the meaning of what was said or the circumstances of the entrapment. The four allegations before the SDT related entirely to the events of 27 March 2015, and the job descriptions of the four witnesses made clear they could give no relevant evidence on those allegations.

The judge held that the way in which the case had been conducted and the particular criticisms made of that conduct were irrelevant to the allegations concerning 27 March and whether the case was established. Insofar as the abuse of process argument related to entrapment and the matters relied on by Mr Riza QC, the four witnesses would be unable to assist. To the extent that there were other abuse arguments, there was concern that this risked going over old ground, particularly given the SDT decisions of 4 December 2018 and 29 March 2019.

In relation to the conduct criticisms and allegations of dishonest and fraudulent conduct against the witnesses, the judge found that these were not set out with the particularity required to make out a prima facie case of fraud. There was nothing in the papers indicating any case of fraudulent conduct, and in any event that was not the case before the Tribunal. The case before the Tribunal was about the events of 27 March 2015. The other matters raised did not require cross-examination of the witnesses but could be established by reference to the documents. It was doubtful there was benefit in revisiting the question of Ms Ogene’s view on redaction; although the judge considered her understanding about the effect of the 4 December 2018 decision appeared justified, the SDT was better positioned to opine on what had occurred, and in any event no material required relevant cross-examination of these witnesses on that aspect.

As to the late production of the audio recording, Mr Justice Freedman held that the documents were what they were and cross-examination was not necessary. If any prejudice arose from the late disclosure, that was a matter Mr Naqvi could rely on before the Tribunal. The matter had been addressed in part by the 4 December 2018 decision, which had dealt with selectivity in the use of video footage by requiring a complete un-redacted transcript, and had found on that basis that the matter could be investigated fully and a fair trial could take place. Although the Tribunal did not then know of the audio recording, submissions could be made about that without requiring collateral enquiry into whether it could have been obtained earlier. Capsticks had in effect admitted on behalf of the SRA that with reasonable diligence it could have been.

The judge rejected the submission that Ms Lane should be available for cross-examination merely because she had signed the Rule 5 statement with a statement of truth. The Rule 5 statement was the process through which the case was stated and functioned as statements of case in High Court proceedings. Separate witness statements of those to be called had been provided. It was wholly exceptional for the maker of a pleading to be required to give evidence simply because they had provided a statement of truth, and the same applied to the maker of a Rule 5 statement.

Mr Justice Freedman further held that the applications were speculative and oppressive. Mr Naqvi had alleged fraud without any prima facie basis and hoped to develop his case through cross-examination. The judge gave some weight to policy reasons for exercising caution before making a tribunal case manager or regulatory lawyers submit to cross-examination, though that did not form the primary basis of the decision. He declined to find, as the SRA suggested, that the summonses formed part of a pattern of aggressive tactics to avoid consideration of the substantive allegations. Mr Naqvi was entitled to defend himself and to pursue all available arguments through Leading Counsel, and that was not a basis for setting aside the summonses. As to Ms Lane’s medical unavailability, the judge placed no weight on that, noting that the nature of her illness and indisposition had been redacted and insufficient information provided, though he was satisfied in any event that she had no relevant evidence to give.

Having considered all the material and submissions, Mr Justice Freedman set aside all four witness summonses. He reserved the question of costs, indicating that he would determine costs in writing after the SDT decision was handed down, and expressed the hope that Mr Naqvi would push the application behind him and concentrate on the substantive hearing.

In short, the High Court set aside witness summonses directed to four SRA and tribunal employees on the ground that they could give no relevant evidence on the allegations concerning a covert interview, that their evidence was sought for speculative purposes related to collateral abuse arguments, and that the summonses were oppressive.

R v Loosely [2011] UKHL 53
Morris v Hatch [2017] EWHC 1448
Baines [1909] 1 KB 258
Senior v Holdsworth Ex p. Independent Television News Ltd [1987] Q B 433
R (Baker) v Hossack [2009] EWHC 2463
South Tyneside Borough Council v Wickes Building Supplies Ltd [2004] EWHC 2428