Approved Judgment

2

Lord Justice Arnold:

1. This is an appeal by Ms Soophia Khan from an order of Leech J dated 12 January 2022 finding Ms Khan guilty of contempt of court and imposing a sentence of six months in prison. The appeal is only against the sentence imposed by the judge, not against the finding of contempt.

2. The background is fully set out in the judge's comprehensive judgment also dated 12 January 2022, [2022] EWHC 45 (Ch), to which reference should be made. For present purposes a brief summary will suffice.

3. Ms Khan is a solicitor who was admitted on 1 November 2006. Prior to 19 August 2021, she was the sole principal and director of Sophie Khan & Co Ltd, a firm of solicitors. On 19 August 2021 Solicitors Regulation Authority Ltd (“the SRA”), which exercises the regulatory functions and powers conferred on the Law Society under the Solicitors Act 1974 (“the 1974 Act”) decided to intervene in Ms Khan's practice. On the same date, the SRA wrote to Ms Khan requiring her to provide all documents in the possession or control of herself or her firm relating to her practice to the SRA's approved intervention agent. In doing so, the SRA was exercising the power conferred under paragraph 9(1) of Schedule 1 to the 1974 Act.

4. Ms Khan did not comply with that requirement. Accordingly, an application was made to the court by the SRA. On 7 September 2021 Adam Johnson J made an order, among other things, requiring delivery up by Ms Khan of all the practice documents. Again, Ms Khan did not comply with that order. There was an application by the SRA for further relief. On 21 September 2021 Miles J made a second order, among other things, for delivery up of the practice documents. Again, Ms Khan did not comply.

5. On 16 September 2021 Ms Khan applied to set aside the first of those orders, that is to say, the order made by Adam Johnson J. On 1 October 2021 the SRA applied to commit Ms Khan to prison for her breach of the orders made by Adam Johnson J and Miles J. Towards the end of the pendency of that application, on 9 December 2021 Ms Khan's solicitors wrote to the SRA's solicitors informing them that Ms Khan 3accepted that there had been non-compliance with the orders of 7 September 2021 and 21 September 2021 and informing them also that she did not intend to offer any evidence in her defence of the application for committal.

6. On 16 December 2021 a letter was written by Dr Khalid Choudhry of the Al-Waqas Medical Centre in Leicester which was made available to the parties and the court. The content of that letter was accurately summarised by the judge at paragraph 36 of his judgment as follows:

7. The committal application was heard before the judge on the following day, 17 December 2021. At that hearing counsel acting for Ms Khan applied for the hearing to be adjourned in order that Ms Khan should be able to obtain expert psychiatric evidence as to her condition. The judge refused that application and there is no appeal against his refusal of the adjournment application. The judge reserved judgment at the end of the hearing. In the event, judgment was delivered slightly later than had been originally intended due to intervening events. It was eventually handed down on 12 January 2021.

8. In the meantime, on 31 December 2021 Ms Khan issued a further application, this time to set aside the second of the two orders to which I have referred, the order made by Miles J on 21 September 2021. On 11 January 2021, that is to say the day before he ultimately handed down his judgment on the committal application, the judge heard and 4dismissed both of Ms Khan's set aside applications. Again, there is no appeal against his dismissal of those applications.

9. In his judgment on the committal application of 12 January 2021 the judge found that Ms Khan was indeed guilty of contempt of court as alleged by the SRA. As I have already indicated, there is no appeal against the finding of contempt.

10. Having reached that conclusion, the judge turned to the question of sanction. There was no dispute before him as to the applicable legal principles, which he summarised at paragraph 52 of his judgment in terms derived from the skeleton argument prepared by counsel then appearing for Ms Khan.

11. He also set out at paragraph 53 a list of criteria for the assessment of the seriousness of contempt, most of which derives ultimately from the judgment of Lawrence Collins J (as he then was) in the case of Crystal Mews Ltd v Metterick [2006] EWHC 3087 (Ch) at paragraph 13. Those criteria are worth setting out again. They are as follows:

5

Then a point added by Popplewell J in Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd [2015] EWHC 3748 (Comm):

12. Having set those criteria out and having reminded himself that this Court has re-emphasised that a sentence of imprisonment should only be imposed if nothing less than a custodial sentence is justified (see Financial Conduct Authority v McKendrick [2019] EWCA Civ 524), the judge went on to work his way systematically through each of the criteria that I have mentioned.

13. His starting point before considering the individual criteria was that, as he explained at paragraph 55, he considered that the contempt of court was a serious one. Ms Khan had admitted breaches of two orders which were clear on their face. He had found that Ms Khan knew she was acting in breach of them and understood the consequences of the failure to comply with them. Moreover, it was necessary for the SRA to obtain those orders to compel Ms Khan to comply with her obligations to her regulator. Her failure to comply with the orders involved not only an attack on the administration of justice, but also defiance of her regulator. The powers of the SRA to intervene in a solicitor's practice were intended to protect both members of the public and public confidence in the profession, and there was a strong public interest in ensuring that solicitors co-operated promptly with the SRA. Finally, Ms Khan was a solicitor and should be held to a higher standard than an unqualified defendant.

14. Against that general background, he proceeded to consider the individual criteria. In paragraph 56 he considered the question of prejudice or harm. He noted that the SRA was unable to point to any prejudice or harm which the clients of Ms Khan's firm had suffered because of a failure to co-operate or to comply with the orders. It had been pointed out by counsel for the SRA that the SRA was unable to assess the prejudice or harm which clients might have suffered until Ms Khan had delivered up the practice documents. He accepted that submission up to a point, but he noted that there was no evidence of any complaints having been made to the SRA by clients as a result, for 6example, of time limits having been missed. He therefore accepted the submission of counsel for Ms Khan that some discount should be made for the absence of harm or prejudice.

15. At paragraph 57 he found that Ms Khan had not acted under pressure from third parties to commit the breaches of either order, and therefore he could give her no discount for that reason.

16. At paragraph 58 he reiterated that the breaches of the orders were deliberate, they had continued for some time and on any view they were serious breaches.

17. At paragraph 59 he concluded that, for those reasons, the degree of culpability was high. Even if Ms Khan had arguable grounds for challenging either order, she was required to comply with them until they were set aside. The nature and length of the breaches and the degree of culpability suggested that an immediate custodial sentence was justified in the absence of any other mitigating factors.

18. At paragraph 60 he found that Ms Khan was not placed in breach of either order by the conduct of third parties. Again, therefore, he could give her no discount for that reason either.

19. At paragraph 61 he noted that there had been no acceptance of the breaches prior to the letter of 9 December 2021. Moreover, until he had dismissed the application for an adjournment on 17 December 2021, Ms Khan had given no indication that she intended to comply with either order. Even then, she did not accept that she had committed the breaches deliberately or that she was in contempt of court. He therefore concluded that her failure to accept that she was in contempt or to recognize the seriousness of those breaches merited no discount.

20. At paragraph 62 he noted that there had been no offer to co-operate prior to the refusal of the adjournment; and that, although at the conclusion of the hearing on 17 December 2021 Ms Khan had offered through her counsel to deliver up the relevant 7documents, she had not done so, but instead had issued the second set aside application on 31 December 2021. He therefore gave her no discount for cooperation.

21. In paragraph 63 he noted the admission that Ms Khan had acted in breach of the orders, which admission had been repeated by her counsel both in his skeleton argument and orally at the hearing on 17 December 2021. He pointed out, however, that Ms Khan had not admitted that she was in contempt, nor had she expressed any remorse or put forward any reasonable excuse for her conduct. He therefore said that he would make no discount for the limited admissions made on Ms Khan's behalf because they had led to no saving in time or costs. Indeed, having made the admission that she was in breach of the second order, Ms Khan had immediately applied to set it aside.

22. At paragraphs 64 and 65 he turned to consider the question of personal mitigation. He accepted that Ms Khan had no criminal record and no disciplinary findings against her. He also accepted that she had suffered a serious hand injury which had impeded her. Finally, he said that he gave full weight to Dr Choudhry's assessment of Ms Khan's mental condition. He said that that could not excuse Ms Khan's conduct, but it went some way to explain why she had adopted such a wrong-headed attitude to the intervention and the subsequent court orders. He went on to take into account the effect of the litigation on Ms Khan's personal and professional life as he recognised that intervention is very intrusive and can effectively destroy a solicitor's practice. Ms Khan had no current source of income and was living with family. He also took into account the fact that Ms Khan had no experience of prison and that a period of imprisonment would be extremely hard for her given her psychological condition and the current pandemic.

23. Taking all of those factors into account, he concluded at paragraph 66 that Ms Khan's conduct amounted to serious contumacious flouting of orders of the court meriting an immediate custodial sentence of a significant length. He concluded that the minimum sentence he could impose was six months. He divided that into two parts. The first three months was imposed by way of punishment for past breaches and a further three months to secure compliance with the orders in question, which was capable of being remitted upon an application by Ms Khan to purge her contempt.

8

24. I turn then to the appeal. There is no dispute that the correct approach to an appeal of this nature is that stated in the leading authority, which is the decision of this court in the FCA v McKendrick case which I mentioned earlier. In that case Hamblen LJ as he then was and Holroyde LJ gave a joint judgment in which they said:

25. As they went on to state in paragraph 47, “it is the sentence actually imposed which must be outside the range reasonably open to the judge if an appeal is to succeed,” rather than, for example, any starting point from which the judge may have been working.

26. In Hussain v Vaswani [2020] EWCA Civ 1216, it was submitted, as recorded in my judgment at paragraph 50, that the sentence that had been imposed was outside the range of decisions reasonably open to the judge, and accepted that that test was essentially the same test as the “manifestly excessive” test applied by the Court of Appeal Criminal Division to criminal sentences. Counsel for Ms Khan has accepted that that is indeed the correct test to be applied in the present case, given that, as in that case, it is not suggested that there was any error of principle on the part of the judge or 9that he took into account immaterial factors or failed to take into account material factors.

27. In support of the submission that the sentence of six months is manifestly excessive, a number of points are advanced on behalf of Ms Khan which I will take in turn. The first point that is relied upon is the evidence of Dr Choudhry in the letter of 16 December 2021, to which I have already referred. The submission made on behalf of Ms Khan is that, although the judge stated in paragraph 37 of his judgment that he would give what he described as “full weight to that evidence”, when it came to the assessment of sanction it is said that the judge did not give proper weight to that evidence. Counsel argued that the evidence of Dr Choudhry was evidence that was directly relevant to the culpability of Ms Khan for the breaches found by the judge, and indeed was relevant to no less than five of the eight criteria considered by the judge and worked through by him in his judgment.

28. I do not accept that the judge failed to give proper weight to the evidence of Dr Choudhry. The evidence of Dr Choudhry was undoubtedly evidence that the judge was right to take into account, but it was limited in its extent. As the judge's summary correctly indicates, the evidence is expressed in the present tense. It deposes to the view of Ms Khan's general practitioner that the litigation was having a profound effect on Ms Khan's mental and psychological well-being and was affecting her comprehension and understanding of recent issues in recent litigation matters brought against her. The date of this evidence is, as I have already indicated, 16 December 2021, that is to say, the very day before the hearing of the committal application. It is unsurprising that any respondent to a committal application would be feeling very stressed the day before a hearing of an application for them to be committed to prison. What Dr Choudhry does not do in his letter is to identify the date when the symptoms of which he speaks first manifested themselves, nor does he express any opinion as to the effect of those symptoms, if manifested at an earlier date, upon Ms Khan's ability to comply with the orders of the court or even to understand what the consequences of non-compliance would be.

10

29. In those circumstances, it seems to me that the judge was plainly correct to say, as he did in paragraph 64, that Dr Choudhry's assessment of Ms Khan's mental condition could not excuse Ms Khan's conduct, although it went some way to explaining why she had adopted such a wrong-headed attitude to the intervention and the subsequent court orders. Indeed, in taking that course, it could be said that the judge took a generous view towards the evidence.

30. The next point that is relied upon is that it is said that the judge was wrong in not giving Ms Khan credit for the admissions that were made in the letter of 9 December 2021. It is pointed out in that regard that it was held in FCA v McKendrick that it was an important point if a contemnor had admitted his or her wrongdoing and saved court time. The general practice in criminal cases is that, if a prompt admission is made, a discount of one third of the sentence that would otherwise be imposed will be applied with a sliding scale of discount down to 10 per cent if there is an admission at trial. Accordingly, it is submitted on behalf of Ms Khan that the judge was wrong in the present case to give Ms Khan no credit for the admissions contained in the letter of 9 December 2021.

31. As this Court held in Su v Lakatamia Shipping Co Ltd [2021] EWCA Civ 1355, however, there is no absolute rule that, in cases where an admission of contempt is made, some credit has to be given to the contemnor. In that case, this Court upheld a sanction of two years' imprisonment, being the maximum that is possible under statute, in circumstances where there had been a belated admission by the contemnor.

32. Turning to the present case, it seems to me that the judge was entirely justified in giving Ms Khan no credit for the admissions made. In the first place, as the judge pointed out, the admissions made were simply of non-compliance with the orders of the court. There was no admission of contempt of court. The judge's assessment was that as a result there had been no saving in time or costs. That is an assessment with which this Court cannot possibly interfere, seeing as how the judge had the benefit of knowing exactly how proceedings had proceeded before him. Moreover, it is an assessment which on its face makes good sense: in effect, all that Ms Khan did was to admit that which could not be denied. Given that she did not admit contempt, it was still 11necessary for the court to receive submissions as to whether, in particular, the mental element required for a finding of contempt of court was present and for the court to make a decision on liability.

33. Furthermore, although he did not refer to it in paragraph 63 of his judgment, the judge would have been entitled to take into account the fact that the purpose of committal applications in a case of this nature is not purely to sanction the contemnor for past breaches of the court's orders, but also to attempt to secure future compliance. That is, as I have explained, the reason why in this case the judge split the sentence he ultimately imposed into two parts: the first part being stipulated to be punishment for the past and the second part directed to compliance in the future. As at the date of the hearing, and indeed as at the date of the judgment, there have been no compliance by Ms Khan with either order of the court. In those circumstances, it seems to me that she could not realistically expect any discount on the sentence that would otherwise be imposed. It would be quite different if she had belatedly made steps towards compliance. Even now, as of the date of the hearing before this Court, there is no evidence that Ms Khan has either complied with either order or indeed made any attempt to do so.

34. The next point that is taken on behalf of Ms Khan is that the judge failed to give sufficient weight to the absence of any specific evidence of prejudice or harm which the clients of Ms Khan's firm had suffered as a result of her non-compliance with the orders. So far as that is concerned, however, the judge stated that he accepted the submission that some discount should be made for the absence of harm or prejudice. The extent of the discount to be applied was a matter for the evaluation of the judge. This Court is in no position to interfere with the judge's assessment. Indeed, it might again be said that the judge's assessment was a generous one: as my Lord, Nugee LJ pointed out during the court of argument, part of the point behind the powers conferred on the SRA by paragraph 9 of Schedule 1 of the 1974 Act is to enable the SRA's intervention agent, once the firm's files have been secured, to contact the clients of the firm to ensure that, apart from anything else, they are not without legal representation and advice. In circumstances where there has been an intervention, the former solicitor will no longer be able to act for the clients. Accordingly, they will need to instruct 12fresh solicitors. They may choose to instruct the intervention agent, they may choose to instruct a different firm, but they will not be able to continue to instruct the solicitor in question and they need to know that as soon as possible. Therefore, it is inherently likely that, if the solicitor refuses to deliver up the firm's files, clients will be prejudiced.

35. The next point that is made is that the judge found that Ms Khan had not acted under pressure from third parties to commit the breaches of either order. It is accepted on her behalf that that was correct so far as the evidence that was available before the judge was concerned. However, an application is made to this Court to adduce fresh evidence showing, it is said, that Ms Khan was in fact acting under pressure from her clients. In that regard, reliance is placed upon an affidavit of her solicitor, Mr Livingston, of 26 January 2022 which exhibits two unsolicited emails received by his firm, the first of which was sent by a client on 15 January 2022 at 14.02 and the second of which was sent by a different client on the same date at 14.32. The two emails are in very similar terms, to the extent that they share certain spelling mistakes. Both emails say that the clients are making a complaint against the SRA for having demanded their files from Ms Khan without the individual's consent. Both emails state that they have instructed Ms Khan not to share their files with the SRA and express in strong terms their concern at the prospect of the SRA having access to their files.

36. There is no evidence before the Court to explain the genesis of these two emails. It is to be inferred that they have come into existence as a consequence of the judge's judgment and order given that they post-date them and given that they have been sent to the solicitors acting for Ms Khan in December 2021 and January 2022. Other than that, the precise genesis of the communications is a mystery. It is obvious, however, that the two individuals in question have been in contact with each other given the proximity of their communications in point of time and given the similarity in terms of content.

37. There is no evidence from Ms Khan herself to say that she was placed under pressure, either by these two clients or indeed any other clients. Nor is there even any evidence from Ms Khan to corroborate the points made by the individuals in question or to provide any kind of context.

13

38. Against that background, the first question is whether the new evidence should be admitted. It is accepted that the traditional Ladd v Marshall criteria form the basic framework for the assessment of an application to admit new evidence in this court. It is submitted that the Ladd v Marshall criteria are satisfied because the evidence post-dates not only the hearing, but also the judgment, and it is said that it is credible evidence which would have a material impact on the outcome.

39. I do not accept that the Ladd v Marshall criteria are satisfied in the present case. This evidence is evidence of a nature which could plainly have been put before the judge if the point that Ms Khan was being put under pressure by her clients was one that was to be taken. If that was the case, she herself could have given first hand evidence of that fact, but she did not do so. Equally, she could have produced supporting evidence from clients to support that proposition. It is of note in that regard, as counsel for the SRA points out in its skeleton argument on this appeal, that Ms Khan did produce witness statements from clients in support of her set aside applications. Accordingly, this is evidence which could have been obtained with reasonable diligence prior to the hearing below.

40. Moreover, given the absence of evidence even now from Ms Khan, this is evidence that cannot be given any weight. Even taking what the individuals in question say entirely at face value, they have clearly not understood that the consequence of the SRA's intervention into Ms Khan's practice is that Ms Khan is unable to continue to act for them and that they need to obtain alternative representation from different solicitors. Nor has it apparently been explained to them that they need have no concerns as to the privacy and confidentiality of the documents in question because the SRA and its intervention agent are obliged to respect those important considerations. Indeed, it could be said that the evidence contained in these emails is in fact evidence of the kind that was missing before the judge showing how clients have been prejudiced by Ms Khan's failure to comply with the orders of the court. Even if the evidence were to be admitted, it seems to me that the judge's assessment would remain unimpeachable for the reasons that I have given.

14

41. The final point that is advanced on behalf of Ms Khan, at least in writing although not repeated in counsel's oral submissions, is that the judge had failed to give proper weight to the aspects of personal mitigation relied upon by Ms Khan before him. That is a point which counsel was correct not to pursue orally. It is a hopeless point given that the judge expressly considered the personal mitigating factors and stated that he was taking them into account.

42. As this Court made clear, both in FCA v McKendrick and in Hussain v Vaswani, the key question is that of the ultimate sentence imposed by the judge below and whether it can be said to be manifestly excessive. During the course of argument, a point that was raised in that regard by counsel for Ms Khan is that the judge had not in the present case proceeded by stating a starting point for his sentence and then applying an articulated discount to that starting point. That is an approach which has sometimes been adopted in the case of civil contempt's, as can be seen, for example, from the Hussain v Vaswani case where the judge stated that he was taking as his starting point a sentence of 18 months and then applied various discounts to arrive at his final sentence of 12 months. In the present case, however, the judge did not adopt that approach.

43. Counsel for Ms Khan did not suggest that there was any error of principle in not adopting that approach. He suggested, however, that it would have been helpful if he had adopted that approach. Furthermore, he suggested that this was something that would be beneficial if judges were to do it in future.

44. I do not accept that there can be any uniform approach when it comes to civil committal applications. Unlike criminal sentencing, sentencing in cases of civil contempt of court is not subject to any statutory provisions save as to the limit on the sentence that can be applied and as to the degree of remission that is to be applied. There are no guidelines from the Sentencing Council. Moreover, the case law shows that the correct sentence to be imposed is highly fact-specific. Yet further, as I have already discussed, a key factor in this jurisdiction is that of attempting to secure compliance, even if belatedly, with the court's orders. That is not a feature of criminal sentencing in most cases.

15

45. While there will be cases in which it can be useful for the court to take a starting point and then apply a discount, I do not think that it can be said that that will always be helpful. It is particularly in a case of the present kind, where there has been no real admission and no evidence either of compliance or of any intent to comply in future, that an approach of that kind is least likely to be helpful. In short, not only do I see no error in the judge's approach, but also I am not convinced that it would have been a helpful exercise for him to have attempted to articulate a starting point and a discount for the factors that he did take into account.

46. Standing back, at the end of the day, the question for this court is whether the sentence of six months which the judge imposed can be said to be manifestly excessive. In my judgment, it is plain that the sentence was not manifestly excessive. For those reasons, I will dismiss this appeal.

Lord Justice Nugee:

47. I entirely agree with the judgment that has just been delivered by my Lord. Like him, at the end of the day one stands back and asks whether this sentence is manifestly excessive. I have not been persuaded, despite Mr MacDonald's best efforts, that there was here a case in which the sentence can be characterized in that way.

16 17

This transcript has been approved by the Judge