Lavender: Solicitor showed no insight into misconduct
The High Court has rejected an appeal by a solicitor who “facilitated” immigration claims which were an abuse of process and “effectively ignored” judges’ warnings to change his behaviour.
Mr Justice Lavender said Malik Mohammed Nazeer had shown no insight into the misconduct which resulted in him being fined £20,000 by the Solicitors Disciplinary Tribunal (SDT) and having conditions imposed on his practising certificate.
Lavender J said this was not a case in which a solicitor had been found guilty of misconduct “merely because he is a partner in a firm where misconduct has taken place”.
He went on: “The appellant was not only a director of Malik & Malik, he was the COLP, with the duties imposed on a COLP, and the firm had received repeated warnings from the court which required him to act, but which he effectively ignored.
“The tribunal was entitled to conclude that his failure to do anything in those circumstances facilitated claims which were an abuse of the process of the court.”
Lavender J said: “It is by now well known that the process of this court is open to abuse in immigration cases if applications for judicial review are made which have no merit, but which are brought solely for the purpose of delaying the removal of an individual from the United Kingdom.
“The courts have repeatedly warned solicitors of their responsibilities in this regard.”
The court heard in Nazeer v SRA [2019] EWHC 37 (Admin) that Mr Nazeer – born in 1964 and admitted in 1997 – practised with his brother, Malik Mohammed Saleem, as partners and later directors of Malik & Malik.
Lavender J said Malik & Malik was first criticised by a judge, Lord Justice Buxton, for the conduct of an immigration case in 2007.
It then appeared before the court three times in the next seven years under the Hamid procedure, in which solicitors who make “totally without merit” applications are required to attend court.
On the third occasion, Sir Brian Leveson, president of the Queen’s Bench Division, said: “It is almost inconceivable that Malik & Malik will survive a further referral to a Hamid court.”
Lavender J said the Home Office informed the Solicitors Regulation Authority (SRA) that, between April 2014 and July 2015, Malik & Malik submitted 35 cases certified as “totally without merit”.
At a tribunal hearing in February this year, Mr Nazeer and his brother Mr Saleem faced six common allegations.
The SDT upheld the first allegation, that both brothers “facilitated judicial review claims” where they knew or should have known that they were not properly arguable and the “true purpose was to thwart and/or delay lawful removal and/or procure release from lawful detention”.
A further allegation that the pair had failed to protect client files during the SRA investigation, some of which were “lost”, was also upheld. This was not challenged by Mr Nazeer.
The other four allegations involving Mr Nazeer were dismissed by the tribunal.
Mr Nazeer argued that he was “not an expert in immigration law” and could not judge which claims were totally without merit or an abuse of process.
He did not prepare the claims or supervise the solicitor who did; this was done by his brother and he “had not perceived there to be a risk that they were facilitating an abuse of litigation”.
Lavender J ruled that the tribunal was “entitled to take a very dim view” of the solicitor’s conduct.
“Not only had the firm facilitated the abuse of litigation, or abuse of process as it is more commonly known, but the appellant himself had failed to do anything to stop it, despite his responsibilities as director and as COLP and despite the warnings given [by the courts].”
Lavender J rejected Mr Nazeer’s challenge to the SDT finding, saying the solicitor was wrong to argue that it had to be proved that he had the state of mind alleged.
Instead, the judge accepted the submission of the SRA’s counsel that the basis on which the tribunal found that the solicitor had facilitated the abuse was effectively through his inadequate management of the firm.
In the alternative, Lavender J said that – despite the wording of the charge – the tribunal did not need to find that Mr Nazeer either knew or ought to have known that particular claims were totally without merit as it was not necessary in order to establish the rule breaches.
The judge also rejected challenges to the amount of the fine and the imposition of conditions on the solicitor’s practice that prevent him from working as a sole practitioner, partner in a law firm or from being a COLP or COFA.
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