Law Report: Appeal on solicitor's reinstatement: Regina v Master of the Rolls, ex parte McKinnell - Queen's Bench Divisional Court (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Simon Brown and Mr Justice Roch) 24 July 1992

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The Law Society was entitled, pursuant to section 49(1)(a) of the Solicitors Act 1974, to appeal to the Master of the Rolls against a decision by the disciplinary tribunal, under section 47(a)(b), to restore to the Roll a solicitor who had previously been struck off.

The Queen's Bench Divisional Court dismissed an application by Albert George McKinnell for judicial review of the decision to this effect by Lord Donaldson of Lymington, Master of the Rolls, on 18 December, 1990.

The applicant's case was that, although the Law Society was the complainant in the proceedings when he was originally struck off, it need not have been, and that his application for restoration to the Roll constituted fresh proceedings in which the Law Society was the respondent. Since section 49(2) did not give a respondent a right of appeal, the Law Society had no locus standi before the Master of the Rolls. Section 49 of the 1974 Act provides: '(1) An appeal from the tribunal shall lie (a) in the case of an order on an application under section 43(3) or 47(1)(b) or the refusal of any such application to the High Court. (2) Subject to subsection (3) an appeal shall lie at the instance of the applicant or complainant or of the person with respect to whom the application or complaint was made. (3) An appeal against an order under section 43(2) shall lie only at the instance of the person with respect to whom the application was made.'

Ian Croxford (Colain Watson & Co, Warrington) for the applicant; Michael Briggs (Michale Hoyle, Kendal) for the Solicitors Complaints Bureau.

LORD TAYLOR LCJ, giving the judgment of the court, said the 1974 Act was a consolidating statute which, in the absence of a clear contrary intention, must be presumed not to be intended to remove the right of appeal the Law Society had under the Solicitors Act 1954. No such intention was shown. The wording of section 49(2), read against the wording of subsection (3) made it clear that appeals from the tribunal other than appeals against orders made under section 43(2) were to lie at the instance of either side to the application or complaint.

That Parliament so intended was also clear from the wording of section 49(1) which expressly allowed for an appeal equally from the restoration of a solicitor's name to the Roll as from the refusal of such an application.