R (Toth) v Solicitors Disciplinary Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON |
| Judgment Date | 28 March 2001 |
| Neutral Citation | [2001] EWHC 240 (Admin) |
| Docket Number | Case No: CO/2054/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 March 2001 |
[2001] EWHC 240 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Stanley Burnton
Case No: CO/2054/2000
Patricia Robertson (instructed by Wright Son & Pepper for the Respondent)
Philip Coppel (instructed by Russell-Cooke solicitors for the Applicant)
Introduction
1. In 1993 Wilfred Toth, the son of the Applicant, Mr Arpad Toth, died in tragic circumstances. Mr Toth believed that his son's death was due to the negligence of his general practitioner and the doctor who was deputising for her. In 1995 he brought proceedings under the Fatal Accidents Act 1976 against the doctors. They were represented by a solicitor from the Medical Defence Union. In 1996, Mr Toth in his personal capacity issued proceedings against the same doctors to claim damages for personal injury he alleged he had suffered as a result of his son's death. The same solicitor acted for the doctors in those proceedings. In 1997 Mr Toth made a complaint to the General Medical Council concerning his son's treatment. Again, the same solicitor represented the doctors in relation to that complaint. The Fatal Accidents Act proceedings were settled in 1998 when Mr Toth accepted the defendants' payment into court. The defendants applied to strike out Mr Toth's personal proceedings against the doctors, but their application was ultimately unsuccessful.
2. Mr Toth considered that in the course of the strike out application the doctors' solicitor had misled the Court and had otherwise acted improperly. On 22 February 2000 he made a complaint to the Solicitors' Disciplinary Tribunal (“the Tribunal”) pursuant to rule 4 of the Solicitors (Disciplinary Proceedings) Rules 1994 (“the Rules”).
3. The Tribunal is established under section 46 of the Solicitors Act 1974 (“the Act”). Its jurisdiction includes cases of professional misconduct and failures to comply with rules made by the Law Society under sections 31 (professional practice, conduct and discipline of solicitors and clerks), 32 (accounts rules), 34 (failure to provide accountants' reports) and 37 (professional indemnity rules).
4. Section 46(6), (7) and (8) are as follows:
(6) Subject to subsection (7) and (8), the Tribunal shall be deemed to be properly constituted if –
(a) at least three members are present; and
(b) at least one lay member is present; and
(c) the number of solicitor members present exceed the number of lay members present.
(7) For the purpose of hearing and determining applications and complaints the Tribunal shall consist of not more than three members.
(8) A decision of the Tribunal on an application or complaint may be announced by a single member.
(9) Subject to subsections (6) to (8), the Tribunal, with the concurrence of the Master of the Rolls, may make rules –
(a) empowering the Tribunal to elect a solicitor member to be its president; and
(b) about the procedure and practice to be followed in relation to the making, hearing and determination of applications and complaints.
(10) Without prejudice to the generality of subsection (9)(b), rules made by virtue of that paragraph may in particular –
(a) empower the president of the Tribunal to appoint a chairman for the hearing and determination of any application or complaint;
(b) provide that, if the president does not appoint a chairman, a solicitor member shall act as chairman; and
(c) provide, in relation to any application or complaint relating to a solicitor, that, where in the opinion of the Tribunal no prima facie case in favour of the applicant or complainant is shown in the application or complaint, the Tribunal may make an order refusing the application or dismissing the complaint without requiring the solicitor to whom it relates to answer the allegations and without hearing the applicant or complainant.
5. The jurisdiction and powers of the Tribunal are set out in section 47:
(1) Any application –
(a) to strike the name of a solicitor off the roll;
(b) to require a solicitor to answer allegations contained in an affidavit;
(c) to require a former solicitor whose name has been removed from or struck off the roll to answer allegations contained in an affidavit relating to a time when he was a solicitor;
(d) by a solicitor who has been suspended from practise for an unspecified period, by order of the Tribunal, for the termination of that suspension;
(e) by a former solicitor whose name has been struck off the roll to have his name restored to the roll;
(f) by a former solicitor in respect of whom a direction has been given under subsection (2)(g) to have his name restored to the roll,
shall be made to the Tribunal; but nothing in this subsection shall affect any jurisdiction over solicitors exercisable by the Master of the Rolls, or by any judge of the High Court, by virtue of section 50.
(2) Subject to subsection (3) and to section 54, on the hearing of any application or complaint made to the Tribunal under this Act, other than an application under section 43, the Tribunal shall have power to make such order as it may think fit, and any such order may in particular include provision for any of the following matters-
(a) the striking off the roll of the name of the solicitor to whom the application or complaint relates;
(b) the suspension of that solicitor from practice indefinitely or for a specified period;
(c) the payment by that solicitor or former solicitor of a penalty not exceeding £5,000, which shall be forfeit to Her Majesty;
(d) in circumstances referred to in subsection (2A), the exclusion of that solicitor from legal aid work (either permanently or for a specified period);
(e) the termination of that solicitor's unspecified period of suspension from practise;
(f) the restoration to the roll of the name of a former solicitor whose name has been struck off the roll and to whom the application relates;
(g) in the case of a former solicitor whose name has been removed from the roll, a direction prohibiting the restoration of his name to the roll except by order of the Tribunal;
(h) in the case of an application under subsection (1)(f), the restoration of the applicant's name to the roll;
(i) the payment by any party of costs or a contribution towards costs of such amounts as the Tribunal may consider reasonable.]
(2A)….
(2B)…. .
(2C)….
(2D)….
(3) On proof of the commission of an offence with respect to which express provision is made by any section of this Act, the Tribunal shall, without prejudice to its power of making an order as to costs, impose the punishment, or one of the punishments, specified in that section.
(3A) Where, on the hearing of any application of complaint under this Act, the Tribunal is satisfied that more than one allegation is proved against the person to whom the application or complaint relates it may impose a separate penalty (by virtue of subsection (2)(c)) with respect each such allegation.
6. The Rules, which govern the procedure of the Tribunal, are contained in a statutory instrument made pursuant to the power contained in section 46 of the Act.
7. Rule 4(1) is as follows:
Applications and Forms
(a) An Application to the Tribunal:
(i) To strike the name of a solicitor off the Rolls of Solicitors, or
(ii) To strike the name of a registered foreign lawyer off the Register of Foreign Lawyers maintained by the Society, or
(iii) Making allegations against a solicitor, a former solicitor, or a registered foreign lawyer, or
(iv) Making an allegation against a Recognised Body shall be in Form 1.
(b) An Application to the Tribunal to make an order under Section 43(2) of the Act with respect to a solicitor's clerk shall be in Form 2.
(c) An Application to the Tribunal seeking restoration to the Roll or for the revocation of an order made pursuant to Section 43(2) of the Act or by a former registered foreign lawyer seeking to be restored to the Register of Foreign Lawyers shall be by affidavit in Form 3.
(d) An Application to the Tribunal by a solicitor who has been suspended from practice or a registered foreign lawyer suspended from the Register of Foreign Lawyers to have that period of suspension terminated shall be by affidavit in Form 4.
(e) An Application that a direction be made by the Tribunal that a direction made by the Society in respect of a solicitor in respect of inadequate professional services be treated for the purposes of enforcement as if it were contained in an order of the High Court shall be in Form 1.
8. Mr Toth's complaint fell within Rule 4(1)(a)(iii) and was duly made by way of an application in Form 1 contained in the First Schedule to the Rules. Rule 4(4) is as follows:
4 Preliminary Consideration of Application
(i) An application under Rule 4(1)(a)(i)(ii)(iii)(iv) and (b) shall be considered by a solicitor member of the Tribunal who shall certify whether a prima facie case is established in which event the procedure set out in Part III shall apply.
(ii) Where in the opinion of the solicitor member no prima facie case is established the Application shall be considered by another solicitor member and a lay member of the Tribunal and where in their opinion no prima facie case is established, the Tribunal may dismiss the Application without requiring the respondent to answer the allegations and without hearing the applicant. If required so to do by either party, the Tribunal shall make a formal order dismissing the Application.
(iii) If in the opinion of the solicitor member of the Tribunal the respondent should be given the opportunity...
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