Solicitors Regulation Authority v Khan [2024] EWCA Civ 531
ICLR
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Court of Appeal
Solicitors Regulation Authority Ltd v Khan and others
Solicitors Regulation Authority Ltd v Khan and others
2024 27, 28, 29 Feb ; May 23
Newey, Arnold, Nugee LJJ
Contempt of court— Committal application— Fitness to plead— Committal application made in civil court against former solicitor for civil contempt— Judge finding solicitor fit to conduct proceedings— Whether test of fitness to plead in criminal cases applicable to committal application
Practice— Appeal— Extension of time— Judge on papers refusing extension of time— Judge reconsidering decision on papers and confirming decision— Whether rule allowing for reconsideration of judge’s reconsideration decision — Whether rule permitting order to be set aside— CPR rr 3.3(5), 28.8(c), 52.24(6)
The claimant Solicitors Regulation Authority Ltd intervened in the practice of the defendant former solicitor requiring her to provide all documents in her possession to their approved intervention agent. The defendant failed to comply with court orders to comply and the claimant brought proceedings for contempt of court against the defendant and two companies through which she practised. She was committed to prison for contempt on two occasions. She appealed against the second committal on the grounds that the judge was wrong to find that she had capacity; that the judge should have applied the criminal fitness to plead test; and that the judge failed to warn her that adverse inferences could be drawn from her exercising her right not to give evidence. The companies sought permission to appeal on the additional ground that the judge was wrong to include the companies as respondents to the committal order when the claimant had expressly told him in open court that they were not. The defendant subsequently filed an appeal notice out of time seeking to appeal against the first committal. The single judge of the Court of Appeal refused an extension of time on the papers and on an application for reconsideration the single judge confirmed his decision on the papers. The defendant applied under CPR r 28.8(c) to set aside or vary that order under rule 3.3(5).
On the appeals and application—
Held, appeal against the second committal dismissed. The common law test of fitness to plead in criminal proceedings, and the Pritchard criteria (identified as (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising a right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of the proceedings; (6) giving evidence in ones own defence), were not directly applicable to contempt proceedings, where the test for capacity to conduct proceedings was that in the Mental Capacity Act 2005 Act. But the Pritchard criteria might nevertheless assist the court in assessing whether a defendant to contempt proceedings lacked capacity under the 2005 Act as illustrations of the sort of decisions that such a defendant was likely to have to take in order to be able to defend the proceedings (paras 45, 47, 49–50, 51–57).
R v Pritchard (1836) 7 C & P 303, 304-5 considered.
Application to reconsider/set aside refusal of extension of time dismissed. The procedure for ancillary applications in the Court of Appeal was regulated by CPR r 52.24. That provided that the default position was that the reconsideration would be dealt with on paper, although the judge might direct an oral hearing. Here the single judge of the Court of Appeal’s order was made on paper. It was therefore a “decision of a single judge made without a hearing” within the meaning of rule 52.24(6). Rule 52.24(6) did not provide for a second reconsideration of the decision, even if the first reconsideration was itself made, as it would usually be, without a hearing. If the court could be asked to have a third look at the same question, then logically it could be asked to have a fourth look at it, and so on without limit until there had been a decision at a hearing. That was not said expressly in rule 52.24(6) and would be so impractical that it was not what the framers of the rule intended. Rule 52.24(6) distinguished between a “decision” and a “reconsideration” of a decision, and it only provided for the former to be reconsidered. It did not provide for a reconsideration of a reconsideration. A judge determining a reconsideration under CPR r 52.24(6) on paper was not within CPR r 23.8(c) at all. Such a judge was not determining the application without a hearing because he considered that a hearing would not be appropriate; he was determining it on paper because that was what the rules provided as the normal method of determining an application for reconsideration. Accordingly, the defendant did not have a right to have the judge’s decision on reconsideration either itself reconsidered under CPR r 52.24(6), or varied or set aside under CPR r 3.3(5)( paras 139–141,145, 149,150, 153–154, 155, 156).
Per Nugee LJ. I consider that the note in Civil Procedure, 2024 ed, vol 1, para 23.8.1 is not entirely accurate, and, for the reasons I have given, should read “having dealt with it without a hearing and without giving the parties an opportunity to make representations…” ( para 147).
Decisions of Leech J [2023] EWHC 302 (Ch)B, [2023] EWHC 525 (Ch)B and [2022] EWHC 45 (Ch)B affirmed.
James Bogle (instructed by Janes Solicitors) for the defendant in the appeal.
James Bogle (instructed by Just for Public Ltd) for the first and second company in the appeal and for the defendant in the application.
Philip Ahlquist (instructed by Capsticks Solicitors LLP) for the Solicitors Regulation Authority Ltd.
Alison Sylvester, Barrister.
Referenced Legislation
CPR rr 3.3(5), 28.8(c), 52.24(6)