Andrew Lindsay v Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 25 May 2018 |
| Neutral Citation | [2018] EWHC 1275 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 May 2018 |
| Docket Number | Case No: CO/516/2018 |
[2018] EWHC 1275 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/516/2018
Henry Mainwaring (under the Direct Access Scheme) for the Appellant
Andrew Tabachnik QC (instructed by Russell-Cooke LLP) for the Respondent
Hearing date: 26 April 2018
Judgment Approved
The Appellant appeals against the decision of the Solicitors Disciplinary Tribunal (“the Tribunal”), dated 9 January 2018, in which it found allegations of misconduct and dishonesty proved, and struck him off the Roll. He was ordered to pay costs in the sum of £108,371.65.
The Appellant was admitted to the Roll on 1 September 1989. At all material times, he was Managing-Director and 95% shareholder of the firm Tandem XJA Limited (trading as Tandem Law). The essence of the allegations against him was that Tandem obtained funding totalling £5,920,225 from an investment fund (the Axiom Fund), in circumstances where it was improper to do so, leading to substantial financial losses. The Tribunal found these allegations proved, together with allegations that he failed to co-operate with the Respondent's investigation and gave the Respondent false and misleading responses. His co-director, Ms Marina Frankel, was the Second Respondent at the Appellant's disciplinary hearing. The Tribunal also found the allegations against her proved, and she was suspended indefinitely.
The Appellant appealed against the Tribunal's findings of guilt, and the sanction and costs order made against him, on the ground that the proceedings were procedurally unfair, because the Tribunal:
i) refused to adjourn the hearing of the renewed application to stay the hearing, on 16 November 2017;
ii) refused his application to stay the proceedings, on grounds of ill-health, on 20 November 2017;
iii) proceeded with the hearing in the Appellant's absence, on 20 to 29 November 2017.
At the outset of the appeal hearing, I granted an application by the Appellant to adduce further medical evidence, namely, notes from his General Practitioner, dated 20 November 2017 and notes from the Accident and Emergency Department at Blackpool Teaching Hospitals NHS Trust, dated 20 November 2017. This was fresh evidence, relevant to the issues in the appeal, which was not available at the date of the Tribunal's decisions.
Legal framework
The Appellant has a statutory right of appeal to the High Court against the order of the Tribunal, pursuant to section 49 of the Solicitors Act 1974. The High Court, on such an appeal, can make such order “as it may think fit” (section 49(4)).
The appeal is governed by CPR Pt 52 and PD 52D. Under CPR 52.21(3), the question for the Court is whether the decision of the Tribunal is “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.
The appeal proceeds by way of review unless the Court considers that it would be in the interests of justice to hold a rehearing: see CPR 52.21(1), and Salsbury v Law Society [2009] 1 WLR 1286, at [30]. The scope of the court's powers on a review in most cases renders it unnecessary to hold a re-hearing: Adesemowo v Solicitors Regulation Authority [2013] EWHC 2020 (Admin), at [9]–[12].
Interference with the findings of a specialist tribunal, especially one which heard the case over many days, “will not be made lightly”: Solicitors Regulation Authority v Barnett [2016] EWHC 1160 at [17], and Williams v Solicitors Regulation Authority [2017] EWHC 1478 at [55].
An application for a stay or adjournment on medical grounds must be supported by proper medical evidence: see the decision of Vos J in The Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 734 at [48–50], and the Tribunal's Practice Note on Adjournments.
An appeal against a refusal to stay or adjourn on medical grounds is an appeal against a case management decision, in respect of which a tribunal enjoys a wide discretion: see Jaffery at [48] and Andreou v Lord Chancellor [2002] EWCA Civ 1192 at [35]. In Andreou, Gibson LJ said at [35] – [38]:
“35. There is no doubt but that the exercise of discretion by a tribunal, particularly in relation to a case management matter such as whether there should be an adjournment, is one with which the EAT should be slow to interfere, and then only on limited grounds. There is no dispute but that such grounds include perversity. It is also clear that where the consequences of the refusal of the adjournment are severe, such as when it will lead to the dismissal of the proceedings, the Tribunal must be particularly careful not to cause an injustice to the litigant seeking an adjournment: see my remarks in Teinaz v London Borough of Wandsworth (unreported) 16th July 2002 at paragraph 20. In that judgment I made some general observations on adjournments:
“21. A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.
22. If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved.”
36. Similarly, Arden LJ said at paragraph 37:
37. 37. It is to be noted that the standard of review as respects the exercise of discretion involves the grant of considerable deference to the inferior tribunal. In particular, where several factors going either way have to be balanced by the inferior tribunal, the appellate tribunal does not interfere with the balancing exercise performed by the inferior tribunal unless its conclusion was clearly wrong.”
38. She also said in paragraph 39:
“While any tribunal will naturally want to be satisfied as to the basis of any last minute application for an adjournment and will be anxious not to waste costs and scarce tribunal time or to cause inconvenience to the parties and their witnesses, it may be that in future cases like this a tribunal or advocates for either party could suggest the making of further enquiries and a very short adjournment for this purpose.””
In Brabazon-Drenning v UKCC [2001] HRLR 6, a refusal to adjourn disciplinary proceedings in the Nursing and Midwifery Council, was successfully appealed. Giving the leading judgment of the Divisional Court, with which Rose LJ agreed, Elias J. held at [18]:
“… Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process.”
Applying those principles to the facts of the case, Elias J. continued at [19]:
“…She clearly was unable to attend this hearing because she was too ill to do so. In those circumstances, I do not think there were any overriding public interest considerations which should have deprived her of her basic rights to be present when the case was put against her, and to be in a position where she could either of course examine herself, or have a representative with whom she could communicate cross examine on her behalf. It was a breach both of the principles of natural justice and Article 6.”
Whether to proceed in the absence of a respondent to disciplinary proceedings should be assessed in line with the decision of the House of Lords in R v Jones [2002] UKHL 5, as applied to the disciplinary context in General Medical Council v Adeogba [2016] EWCA Civ 162, by the President of the Queen's Bench Division:
“18 It goes without saying that fairness fully encompasses fairness to the affected medical practitioner (a feature of prime importance) but it also involves fairness to the GMC (described in this context as the prosecution in Hayward at [22(5)]). In that regard, it is important that the analogy between criminal prosecution and regulatory proceedings is not taken too far. Steps can be taken to enforce attendance by a defendant; he can be arrested and brought to court. No such remedy is available to a regulator.
19 There are other differences too. First, the GMC represent the public interest in relation to standards of healthcare. It...
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