Notices

Law Society special general meeting

Minutes of SGMMinutes of the special general meeting of the members of the Law Society held on Thursday, 31 January 2002, at 2.30 pm, in the Society's Hall, Chancery Lane, LondonThe vice-president, Carolyn Kirby, took the chair in the absence of the president, in accordance with by-law 26.

The vice-president said that more than 50 members of the Law Society were present and therefore declared a quorum.

A member challenged the right to chair the meeting of any Law Society Council member who had been a member of the council at the time the matter of Kamlesh Bahl had been dealt with in the Society.

Imran Khan endorsed these concerns, and said the vice-president had a conflict of interest.The vice-president said the by-laws provided that, in the absence of the president, the vice-president should take the chair, and she had received legal advice that no council member was conflicted out of participating in the meeting.

The position of the chairman of the meeting was in any event one of neutrality.The vice-president asked the meeting to confirm that it was content for her to preside, noting that if a new chairman had to be found, this would almost certainly mean the meeting would have to be adjourned so the new chairman could be prepared, and on a show of hands by 174 votes to 40, with eight abstentions, this was agreed.The notice of the meeting was taken as read.Minutes of previous SGMThe minutes of the SGM held on 13 December 2001 had been printed in the [2002] Gazette, 17 January, 29-31.

It was resolved that the vice-president be authorised to sign the minutes as correct.Business of the meetingDavid Colthorpe (Colchester) raised, as a point of order, the issue of whether the resolutions could be dealt with at that time since there were appeals pending in the Employment Appeal Tribunal and the matter was, therefore, sub judice.

He moved that the meeting be adjourned, without a date, until the appeals had been dealt with.

The vice-president ruled that the motion should be more properly put after the resolutions had been moved, rather than as a point of order.The vice-president explained the procedures which would apply during the debate.

She noted that appeals were pending and suggested that any comments made by members should be based on the facts, recognising the existence of these appeals.

Statements which were untrue or made with regard to the true position could lead the makers of the statements open to accusations of slander.

The Society could not be responsible for statements made from the floor.The vice-president announced that she proposed to direct postal votes, in accordance with by-law 29(1), on all the resolutions which were to be considered by the meeting, since she considered that the views of the membership as a whole should be sought on them.

She said she would make the formal direction for each resolution after the vote by show of hands had been taken.Resolutions for considerationThe vice-president said the purpose of the meeting was to consider six resolutions which had been lodged by 125 members of the Society who had requisitioned the SGM, and whose names were given in the appendix to the notice of the meeting.Resolution 1 read as follows: 'That the meeting requests the Council of the Law Society to procure the resignation of or to remove those officials and members of staff whose actions led to or contributed to the Law Society being found guilty of racial and sexual discrimination in the Kamlesh Bahl case and to instigate disciplinary action against them.'Resolution 2 read as follows: 'That the meeting requests the Council of the Law Society to set up an independent inquiry, chaired by Sylvia Denman (or, if she is unavailable, another suitably qualified person nominated by the Society of Black Lawyers) to report at the latest by 30 June 2002, with the findings to be published to members.

The terms of reference of the inquiry to be to look at the conduct and handling of all matters between October 1999 and May 2000 leading to the resignation of Kamlesh Bahl and the cancellation of the SGM in April 2000, including but not restricted to:'(a) The role played by Robert Sayer (ex-President of the Law Society), Jane Betts (ex-Secretary-General of the Law Society);'(b) The role played by David McIntosh (current President of the Law Society), who as head of high profile litigation had the care and conduct of the whole of this matter on behalf of the Law Society;'(c) The role played by other council members and staff who were involved in the handling of this matter;'(d) The terms of any agreement entered into between the Law Society and Robert Sayer and Jane Betts to pay their legal costs in those proceedings and to report on the appropriateness of this;'(e) The terms of any agreement reached between Jane Betts and the Law Society on her departure, including any financial settlement reached with her and to comment on the appropriateness of this.'Resolution 3 read as follows: 'That the meeting requests that the Council of the Law Society resolves, pending the outcome of the independent inquiry, to cease paying any further costs on behalf of Robert Sayer and Jane Betts as they were both found to be personally liable for race and sex discrimination by the tribunal.'Resolution 4 read as follows: 'That the meeting requests the Council of the Law Society to resolve that the total costs incurred by the Law Society on the case of Kamlesh Bahl commencing from October 1999 to date be published and made available to all members with a full breakdown.'Resolution 5 read as follows: 'That the meeting requests that the Council of the Law Society resolve to publicise to all members the steps the Law Society has taken to address the issues of race and sex discrimination since the Employment Tribunal decision and, to ensure compliance with their duty under the Race Relations Amendment Act 2000, including, but not limited to, disclosing the period, capacity and terms of appointment of Lord Herman Ouseley and the sum agreed to be paid to him.'Resolution 6 read as follows: 'That the meeting requests the Council of the Law Society to resolve that the decision of the Employment Tribunal be circulated or made available to all members.'Imran Khan (London), who was to propose the resolutions, suggested that it might be convenient for the six resolutions to be presented and debated together, although voted on separately.

The vice-president said this course would be helpful and invited the meeting to confirm that this procedure was acceptable, and on a show of hands the meeting confirmed that this was the case.Mark Sheldon, a past president, asked how Mr Colthorpe's proposal for an adjournment would be dealt with under the procedure which had just been agreed.

The vice-president indicated that she would invite Mr Khan to present the resolutions and then ask the deputy vice-president to respond on behalf of the council, before ruling on Mr Colthorpe's proposal.Mr Khan moved all the resolutions en bloc.

He said the Law Society's approach to the Kamlesh Bahl case echoed the approach of the police in the Stephen Lawrence case.

There had been first a denial of the problem, then there was an attack on critics and finally a belated acceptance that there was a problem to be addressed.

For many in the profession the case had been a cause of embarrassment and shame.

Leading members of the legal profession had effectively broken the law and yet they still enjoyed the support of the Law Society.

What message did this send to the rest of society, which already held the profession in low esteem? Mr Khan explained the purpose Continued on page 40Continued from page 39of the resolutions.

Resolution 1 recognised the twin pillars of transparency and accountability which should exist in all organisations.

Those found guilty should be held accountable.

Furthermore, in almost all cases, a person suspected of wrongdoing would be suspended until judgment was delivered.

Here, there was the judgment of the Employment Tribunal.

The treatment of Kamlesh Bahl, who was suspended by the council without any right of appeal, could be contrasted with that of Robert Sayer and Jane Betts.

The disparity on the face of it appeared to be based on discrimination.Mr Khan said that resolution 2 was designed to find out what had gone wrong in the Kamlesh Bahl case, so that lessons could be learned, and similar problems would not arise in the future.

Mr Khan referred to the findings of the inquiry held by Lord Griffiths into Kamlesh Bahl's conduct, on which the Society relied.

In the light of the Employment Tribunal findings, the Griffiths report appeared redundant.

It was also artificial and incomplete in that it looked at the staff complaints in isolation without any analysis of process or procedure or the motivations of those actions which were found to be unlawful and discriminatory.With regard to resolution 3, Mr Khan said it would surprise or even shock the meeting to learn that the Society had spent 2,049,779 so far on the Kamlesh Bahl affair, of which 1.3 million had been spent on the litigation and almost 665,000 on the Griffiths inquiry.

This money came from practising certificate fees.

The Society also seemed to have given a blank cheque to fund the appeals and the cost of compensation.

He said it was offensive for the members to be funding the costs of those found guilty of racism and funding the compensation which would have to be paid.

It would be relevant, he said, to the Employment Tribunal's consideration of remedies for Kamlesh Bahl that the Society had not taken steps to apologise and put its house in order.

Mr Khan said he had already dealt with the substance of resolution 4, on the publication of the costs of the Kamlesh Bahl affair, but he noted that although the council had stated that the costs were published in the annual report for 2000, this information could only be accessed through the Society's Web site with some difficulty, since the full report was no longer sent to all members.On resolution 5, which called on the Society to publicise to members the steps it was taking to address sex and race discrimination issues, Mr Khan said he had concerns about the equality and diversity framework which had been drawn up.

As far as he knew, the group which had drawn up this document contained no ethnic minority members, although Lord Ouseley had made some input as an adviser to the president, on terms which the Society would not disclose.

There appeared to have been no proper consultation with any relevant representative bodies, or the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Commission.

He also doubted the usefulness of a survey of ethnic minority solicitors which had been carried out, during which only 15% of such solicitors had been consulted, and on the basis of which an extra ethnic minorities seat on the council had been awarded.In conclusion, Mr Khan said none of the reasons advanced by the Society for opposing the resolutions stood up.

The first argument was that a line should be drawn under the Kamlesh Bahl affair, yet this was contradicted by the fact that the Society was appealing and would not apologise.

The second argument was that the new equality and diversity framework would deal with all problems, but this was not so, for the reasons he had already stated.

Finally, there was the argument that the matter was sub judice, but this did not seem to be borne out by the practice of the Employment Appeal Tribunal, which did not reopen any question of fact decided by the tribunal below and would not hear any new evidence.

It would surely be wrong for the Society to continue discriminating until an appeal was heard.Peter Williamson (Holborn), the deputy vice-president, responded on behalf of the council.

Mr Williamson said he would not deal in detail with matters which were still the subject of litigation but would set out some of the background for the information of members.

In 1998 the council had, like a number of other bodies, adopted a dignity at work policy designed to provide a clear framework for dealing with allegations of bullying.

The policy had been drawn up in consultation with the Equal Opportunities Commission.

The policy covered allegations of bullying and other misconduct by council members.In December 1999, Mr Williamson said formal complaints had been made under the policy against the then vice-president, Kamlesh Bahl.

The Society had no option but to investigate these complaints and since those who would normally have dealt with such complaints were potentially involved, an independent inquiry was launched, with Kamlesh Bahl's agreement.

A tribunal was set up, chaired by Lord Griffiths, the retired Law Lord, with two assessors, one of whom was a woman and the other being a member of an ethnic minority group.

Both assessors were experienced members of the Employment Appeal Tribunal.

The tribunal investigated the complaints, hearing a number of witnesses including Kamlesh Bahl, and upheld them all.In the light of these findings, the council concluded that it was necessary for Kamlesh Bahl to be removed from the council, and convened the SGM which was required for this purpose.

The SGM was in the event not held, since Kamlesh Bahl resigned.

Litigation had, of course, followed and the Society was confident, on legal advice, that its position would be vindicated on appeal.

Mr Williamson suggested that whatever the outcome of the litigation, the core facts of the case could hardly be disputed, and these fully justified Kamlesh Bahl's removal from office.Mr Williamson said resolution 1 was being opposed by the council since it would be unjust to take action against any person criticised by the Employment Tribunal until the appeals had been concluded.

Resolution 2 was being opposed because it called for an inquiry into circumstances which were the basis of the appeals.

However, the council would consider the question of an inquiry when the litigation was finished.

Mr Williamson stressed that Mr McIntosh, the current president, had never been primarily responsible for the conduct of the matters which were the subject of the litigation, although he had been a member of the special group convened for the purpose.

Mr Williamson deplored the way in which the resolution sought to attach blame to the president.In relation to resolution 3, and the question of the Society paying the costs of Mr Sayer's and Ms Betts's appeals, Mr Williamson said that since the actions they had taken had been on behalf of the council, it was incumbent on the council to stand behind them in the legal proceedings, although this did not mean a blank cheque.

The funding of the appeals had been decided only in the light of legal advice as to the prospects of success.

Resolution 4, on publication of the costs of the Kamlesh Bahl affair, was pushing at an open door.

The Society had never sought to conceal these costs, which were now running at more than 2 million, and excluded the cost of staff time and the cost of the SGM itself.

The situation was regrettable, but the council did not initiate the events leading to these costs, and had no alternative but to investigate properly the complaints made against Kamlesh Bahl.

Mr Williamson said several offers had been made to Kamlesh Bahl's advisers to mediate, but these had produced no responses whatsoever.In relation to resolution 5, Mr Williamson said the Society was committed as both a regulatory and representative body as well as an employer to giving the highest priority to promoting equality of opportunity.

The equality and diversity framework was a detailed plan for meeting these responsibilities and becoming a leading example of good practice.

Lord Ouseley had givenconsiderable help in the preparation of the framework.

It would not be right, without Lord Ouseley's consent, to disclose the terms on which he was acting as a consultant, but the council would consult him on this matter.Mr Williamson said the framework had been approved by the council at its meeting on the previous day and that it would now be the subject of detailed consultation with relevant interest groups within the profession, with local law societies and with a wide range of stakeholders.

Mr Williamson referred to a number of staff posts which were being created to carry forward action on diversity issues in all parts of the Society's activities.

Mr Williamson said, finally, in relation to the question of publishing the decision of the Employment Tribunal, that the cost of sending it to all members would be disproportionate, and there were in any case issues of copyright.

However, a copy would be sent to any member on request subject to any conditions required by the Employment Tribunal service, which holds the copyright.

It had been suggested that the council was acting unfairly by not circulating the tribunal decision, whereas the Griffiths report had been sent to all members.

The answer to that point was that the Griffiths report contained the basis on which the earlier SGM would have been asked to consider Kamlesh Bahl's removal from office, and so it was obviously appropriate for it to be circulated.

Mr Colthorpe indicated that he no longer wished to pursue the question of an adjournment.Michael Neo (London W12) said there was discrimination in the profession and he had suffered from it himself, but it was important to approach these matters with fairness and wisdom and attempt to reach an amicable solution.John Franks (West London), a former council member, discussed the background of the Kamlesh Bahl affair and urged that the meeting be adjourned to allow for mediation between the council and Kamlesh Bahl, in line with what had recently been said by the Lord Chief Justice in the context of litigation.The vice-president explained at this point that because a motion for an adjournment was effectively a closure motion it could only be proposed by a member who had not spoken in the debate.Tony Burton (Kent) said it was accepted that the Law Society had major structural problems, and it needed someone with courage and conviction to deal with them.

Kamlesh Bahl had been responsible for most of the success which had been achieved.

Pressure and stress were part of most solicitors' professional lives.

The Society had overreacted to the complaints which had been received.

He said he could not support resolution 1, since it seemed to demand the same sort of treatment for others as had been meted out to Kamlesh Bahl, but he would support the other resolutions.Stephen Hall (East Sussex) said that the Society should respond fairly and openly to what had gone wrong.

He said resolutions 1, 2 and 3 were premature pending the outcome of the appeals, but was satisfied with the answers given by Mr Williamson on resolutions 4 and 5.

As regards resolution 6, Mr Hall said he did not accept Mr Williamson's explanation of why the tribunal decision had not been circulated when the Griffiths report had been circulated, and said the decision should be circulated to each and every member.John Hayes (West Sussex) said it would have been wrong for the council to inquire into the conduct of Kamlesh Bahl while appeals were pending, and by the same token it was wrong for the first three resolutions to be proceeded with while the present appeals had not been concluded.

It was unusual for someone in professional life to escape some sort of complaint, and it was important that complaints be dealt with fairly.

One should not have to answer in several directions at once when the main complaint was before the courts.

Mr Sayer, as an elected member of the council, would have to face re-election in his constituency and clearly the question of his conduct was a matter for the members in that constituency.

Generally, the by-laws provided only limited opportunities for a council member to be removed.

Any proceedings against Mr Sayer would have to be properly conducted with legal representation afforded to him.

The events which had occurred were a tragedy for all concerned.

The council should consider giving more information to the profession, perhaps supervised by the lay council members.Manish Raja (London) stressed the importance of some form of 'dispute resolution' in the Kamlesh Bahl affair.

Change within the Law Society was extremely difficult to achieve, as Lord Griffiths had recognised in his report, and only a tough character could push changes through.

You could not make an omelette without breaking a few eggs.

The fact that new posts in the field of diversity were being advertised was a tacit acceptance that change was overdue.

He questioned the prospect of the Society succeeding in the appeal.

If the Society was going to support one side financially, then why was it not supporting Kamlesh Bahl?Vivien Stern (West London) opposed resolution 6 because of the extra expense that circulation of the whole Employment Tribunal decision would impose on the profession.

The decision was in the public domain and could be easily accessed or obtained.Ladi Lapice (Essex) opposed resolution 1 because it was premature, but supported the other resolutions before the meeting.

It seemed that battle-lines were being drawn, when there was in fact a need for mediation or conciliation.

He questioned the legal advice that the Law Society would win its appeal.

Reasonableness was what was required, and resolutions 2-6 should proceed if the Society was not going to consider mediation.Christopher Digby-Bell (City of London), a council member, said the meeting was a low point in the history of the Society, which had been accused of institutional racism and found guilty of discrimination.

He disagreed with the argument that nothing could be done by the meeting to pre-empt the appeal process.

The case was spiralling out of control and costs were now exceeding 2 million.

The Society's response to the tribunal decision had been unsatisfactory.The international reputation of the Society had been harmed and this had impinged on City solicitors.

Mr Digby-Bell asked where the profession's fundamental principles of honour and integrity had been in the differential treatment of Kamlesh Bahl and Robert Sayer.

In a PLC, those responsible would have been made to resign.Helen Shay supported Mr Raja's call for some form of alternative dispute resolution in this matter.

Martin Mears (Great Yarmouth), a council member and past president, said that initially he had been a supporter of Kamlesh Bahl, and he would not oppose mediation or conciliation, but it was important to note what Mr Khan and his colleagues were actually seeking.

Resolution 1 presupposed the guilt of those concerned.

Resolution 2 effectively proposed a witch-hunt with the witch-finder appointed by Mr Khan.

Robert Sayer would have to withdraw his appeal if the Society ceased to fund it, and could find himself before the Solicitors Disciplinary Tribunal.

In essence what was sought was a complete capitulation to Kamlesh Bahl.Mr Mears said that Mr Khan had based his arguments on the Employment Tribunal decision, and quoted from the finding by the tribunal: 'In our judgment Kamlesh Bahl was not a witness of truth.

Where her evidence was independently corroborated we accepted it.

Where it was contradicted by other witnesses we rejected it.

Where there was neither corroboration nor contradiction we tested it carefully against the surrounding facts...'Mr Mears said that at no stage in the tribunal proceedings had it been put to either Robert Sayer or Jane Betts that they had been actuated on grounds of race or sex.

Kamlesh Bahl had offered no apology for behaving to the complainants in what Lord Griffiths had described as an appalling way.

The Society was where it was due to the actions of Kamlesh Bahl and had no option but to continue with the appeal.Nwabueze Nwokolo (Solihull) Continued on page 42Continued from page 41said the legal profession was a culture of hostility and bullying.

Change had to take place.

She supported resolutions 4, 5 and 6.

The cost of circulating the tribunal decision should be met.T R Johal (Leicester) said the profession had not been consulted over the question of an appeal.

Those with findings against them by the tribunal should appeal at their own expense.

He supported all the resolutions, on the basis that this would oblige the Society to take action for the benefit of the profession rather than against it.Mark Sheldon (City of London), a past president, moved that the meeting be adjourned to Thursday, 16 May 2002, in order that mediation between Kamlesh Bahl and the Society might take place.

The motion was seconded.

The vice-president said the motion to adjourn interrupted the proceedings and had to be put to the vote without a debate.Mr Khan asked whether postal votes would now take place on the resolutions, and the vice-president said postal votes could only be directed once the resolutions had been voted on at the meeting.

The vice-president thereupon put the adjournment motion to the meeting and, on a show of hands by 99 votes to 64, with seven abstentions, this was agreed.AdjournmentThe meeting was accordingly adjourned at 4.42 pm to Thursday, 16 May 2002, at 2.30 pm.

The business to be transacted at the adjourned meeting is to continue consideration of resolutions 1-6 as set out above and as printed in the notice of the original meeting.

Law Society notices

Planning Inspectorate change - standing at inquiriesThe Planning Inspectorate has issued guidance to inspectors on the practice of advocates standing at planning inquiries.

At all inquiries beginning on or after Tuesday, 5 March 2002, inspectors will explain that advocates are to remain seated when questioning and cross-examining witnesses.

Advocates will continue to stand when addressing the inspector to make opening or closing submissions, making applications for rulings or costs and intervening during another party's case.The practice of advocates standing at planning inquiries is a convention - there is no legal requirement.

All participants remain seated at planning inquiries in Scotland and Ireland.

The Planning Inspectorate has responded to representations from bodies such as the Planning Officers' Society, the Royal Institute of British Architects and the Advisory Panel on Standards for the Planning Inspectorate in support of the change and ministers are committed to reducing the legalistic and court-like process at planning inquiries.The Law Society and the Planning and Environment Bar Association were consulted by the inspectorate before guidance was issued to inspectors and have agreed not to oppose the change.

There is an element of discretion in the guidance to allow inspectors to have regard to the layout of the inquiry room should it place an advocate at a disadvantage to remain seated and, the new practice will be reviewed in due course.

The views of solicitors would be welcome once the new guidelines have come into force so that the Law Society can provide feedback to the inspectorate.

E-mail views to: steven.durno@lawsociety.org.uk

Bursary committee - student applications for financial assistanceEach year the Law Society's bursary committee meets to decide which students will be granted awards from the various business and charitable bequests.

The courses which qualify for bursary awards are the common professional examination, the post-graduate diploma in law, and the legal practice course.Applicants must demonstrate that the need for financial help is greater than that experienced by most students.

They will also have to show evidence of academic ability or achievement.

Of particular importance is a record of service to the community and any legal experience, paid or unpaid.Publicity material has been sent to teaching institutions and details are also available on the Law Careers Advice Network Web site (www.lcan.csu.ac.uk).

Application forms are available from the Law Society's information services at: info.services@lawsociety.org.uk or tel: 01527 504450.The closing date for applications is 3 May 2002.

Applications submitted after this date will not be considered.

Land Registry notice

Adverse possession and easements by prescription - new guidanceThe Land Registry has recently published a practice advice leaflet (PAL 15) on adverse possession and in the final week of March 2002 intends to publish a practice leaflet (PL 36) on register entries made in respect of prescriptive easements.

Both leaflets are intended for use by solicitors and other legal advisers of potential applicants.

Copies can be obtained from customer information centres at all Land Registry offices and from the registry's Web site.Adverse possessionThe practice advice leaflet sets out the Land Registry's approach to applications for registration of title based on adverse possession.

It summarises the relevant provisions from the Limitation Act 1980 and the essentials of adverse possession as confirmed recently by the Court of Appeal.

It explains how to make the application - the form to use, what the supporting statutory declarations should cover, what searches to send in, etcetera.

There is a description of how the application is then handled by the Land Registry, including the notices served, the inspection by the Land Registry surveyors, and the class of title and entries made on registration.

There are sections on protecting a squatter's title by a caution against first registration and the handling of disputes.Easements by prescriptionThe practice leaflet clarifies Land Registry practice in dealing with applications for register entries in respect of easements claimed by prescription.

In particular, it covers Land Registry requirements, both substantive and procedural, before any entry can be made.

It then explains the factors that determine the particular form of the register entry or entries.

Application form PR has been introduced, although its use is not prescribed.

The leaflet concludes by dealing with the effect of an objection to an application for a register entry.

Comments arising from this should be addressed to Patrick Milne at: Land Registry Headquarters, Lincoln's Inn Fields, London WC2A 3PH; DX: 1098 London/Chancery Lane WC2; fax: 020 7955 0110; e-mail: patrick.milne@landreg.gsi.gov.ukLINKS: www.landreg.gov.uk