R (Thompson) v The Law Society
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,Lord Justice Jacob,Lord Justice Kennedy |
| Judgment Date | 20 February 2004 |
| Neutral Citation | [2004] EWCA Civ 167 |
| Docket Number | Case No: C1/2003/0312/0313 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 2004 |
[2004] EWCA Civ 167
Lord Justice Kennedy
Lord Justice Clarke and
Lord Justice Jacob
Case No: C1/2003/0312/0313
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Philip Engelman represented the Claimant
Mr Timothy Dutton QC and Miss Rosalind Phelps (instructed by Wright Son & Pepper) represented the Defendant
There are before the court two applications for judicial review, both by the claimant, Mr Wayne Thompson, who is a solicitor and who at the relevant time was practising as a sole practitioner in the name of Wayne Thompson & Co. Both applications arise out of decisions of the Office for the Supervision of Solicitors ("the OSS"), which is an establishment set up by the Law Society and has offices and staff at Leamington Spa. It is part of the Law Society and has no separate legal existence of its own. The claimant challenges two sets of decisions of the OSS, arising out of complaints to the Law Society by two of his former clients, a Mr Rattigan and a Mrs Anderson.
In the Rattigan case the claimant seeks judicial review of the following five decisions:
i) three decisions of Ms Dhanjal and Mr Venables, sitting as a Client Relations Sub-committee of the OSS and considering a complaint of inadequate professional services ("IPS"), which decisions were upheld on review by an OSS Adjudication Panel on 16 August 2001:
a) that the claimant was guilty of IPS;
b) that he pay £500 by way of compensation to Mr Rattigan for stress and inconvenience and
c) that he should not be entitled to any costs but should refund any costs he had received from the Legal Aid Board to the Legal Services Commission; and
ii) two further decisions of Ms Dhanjal and Mr Venables, this time sitting as the OSS Professional Regulation Casework Committee (and considering the claimant's conduct as a solicitor) on 16 August 2001, also upheld on review by the same OSS Adjudication Panel on 26 September 2001:
a) that he be referred to the Solicitors' Disciplinary Tribunal ("SDT") and
b) that a discretion should vest in the renewal of his practising certificate.
In the Anderson case the claimant seeks to review three decisions made by an OSS Adjudicator on 14 January 2002 and reviewed by an Adjudication Panel on 13 August 2002. The first two decisions related to allegations of IPS and were that he was guilty of IPS and that he pay £1,000 by way of compensation to Mrs Anderson for stress and inconvenience. The third decision related to complaints about his conduct as a solicitor and was that he be severely reprimanded. On review those decisions were upheld save that the compensation was reduced to £500 and the severe reprimand was substituted by a reprimand.
No oral hearing took place before any of those decisions was made, although in each case the claimant had ample opportunity to make written representations and did so. In Mr Rattigan's case the claimant did not seek an oral or public hearing at any time. On 4 March 2002, which was five months after the decision of the review panel, he issued the present application for judicial review. He explained the delay both on the ground that he had taken time seeking a review by the Master of the Rolls, who unfortunately had no jurisdiction to conduct such a review, and on the ground that he was under severe mental and emotional pressure because of the severe illness of his mother.
Before the application was considered by the Administrative Court it appears that the claimant met Mr Rattigan and showed him some documents, following which Mr Rattigan agreed to accept £1,000 and "withdrew his complaint". The claimant subsequently contacted the Law Society and asked it to withdraw the complaint but by a letter dated 20 September 2002 it declined to do so.
In Mrs Anderson's case the claimant made no request for an oral or public hearing before the Adjudicator but did so before the review by the Adjudication Panel. However, he did not include a detailed statement with his notice of appeal in support of his application and on 18 April 2002 the panel decided that it could not determine the application for an oral hearing until it received the detailed statement which he had promised earlier. It accordingly stood the application over for 28 days to allow the claimant to produce further material in support of his application for an oral hearing. Subsequently, on 27 June, the claimant submitted a two and a half page document in support of an oral hearing and a further 78 page document in support of his appeal.
On 13 August the panel considered the application but rejected it on the ground that the matter was not one of such complexity as to warrant an oral hearing and that the written material was sufficiently detailed to enable it to reach a fair conclusion. As already indicated, it issued its decision on the same day. The claimant issued his application in the Anderson case on 26 September 2002.
Both applications were refused on paper and were renewed orally before Mackay J in the Administrative Court on 3 February 2003. In the Rattigan case the judge refused the application for an extension of time but he also considered the application on its merits and said that he would have refused it on the merits. In the Anderson case he refused the application on the merits.
The claimant renewed the applications to this court and they were heard by Mantell and Buxton LJJ on 13 June 2003. The applications were granted but on a very limited basis. This can be seen from the following extracts from the judgments. Mantell LJ said:
"2. We grant permission to apply for judicial review in both cases—that is to say, the case involving Mrs Anderson and the case involving Mr Rattigan—on one ground only in each case; that is, the one to which reference has already been made, namely the complaint that Mr Thompson ought to have been allowed an opportunity to make oral representations before the bodies which dealt with their cases. We do so on the basis that it is possibly arguable that in denying Mr Thompson the opportunity to address them, there was a breach on the part of those bodies of Article 6 of the European Convention on Human Rights and/or possibly of the rules of natural justice as might be applied under the domestic law.
3. We give permission to apply without enthusiasm or encouragement, but we think that the matter is of sufficient importance to require further argument before the court. We direct that the hearing be before a constitution of the Court of Appeal."
Buxton LJ said:
"4. I agree with the order that my Lord has made. I think it would be wrong if I did not say that I share the lack of enthusiasm that he has expressed. It seems to me that authority, not shown to us but referred to by Miss Phelps, at least at the level of the European Commission, presents a considerable difficulty to Mr Thompson in pursuing this application. But, like my Lord, I consider this to be a matter of some significance, both for the legal profession generally and for the Law Society, and I think it would be right for the matter to be fully pursued in front of this court. Mr Engelman will, however, have taken note of the observations made both about the limited nature of the permission and about the matters that it is going to be necessary for him to address when he reappears before this court."
As appears from those extracts, the sole ground upon which the court granted the claimant permission to apply for judicial review was that he ought to have been afforded an oral hearing so as to enable him to make oral representations to those who dealt with the two cases. It is important to note that he was not granted permission to challenge the decisions on the ground that they were otherwise wrong in law or unreasonable or irrational in the extended Wednesbury (or any other) sense. This is important because I think that in the course of the oral argument Mr Engelman was inclined to trespass into those areas. I also note in passing that the claimant has not suggested that any of the committees or panels who took the decisions complained of were not independent. I therefore make no comment on that question.
Mantell LJ made it clear that the applications for judicial review were to be made to this court, so that we are not acting as an appellate court but as a court of first instance. I shall assume that the court intended to grant the claimant an extension of time in Mr Rattigan's case. No such extension was or is necessary in Mrs Anderson's case. Given the narrow basis on which permission was granted I shall focus only on the question whether the Law Society infringed either the claimant's rights at common law or his rights under article 6(1) of the European Convention on Human Rights ("the Convention") in not ensuring that he had an oral hearing.
As the court undoubtedly appreciated when granting permission to apply for judicial review, these questions are potentially important, not only from the point of view of the claimant (and indeed other solicitors who may become involved in the process), but also from the point of view of the Law Society. We were told that the outcome of this appeal might affect some 1,500 cases a year.
I propose to consider first whether an oral hearing was required in each case at common law, secondly whether, if not, article 6(1) applies and, thirdly, whether there is a breach of the claimant's rights under article 6(1) if an oral hearing is not held before a decision is made. However, before considering those questions I shall briefly...
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