PINE v THE LAW SOCIETY [2001] EWCA Civ 1574

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
DIVISIONAL COURT
[2001] EWCA Civ 1574Case No Case No: C/2000/3561 & 3561AVenue Royal Courts of Justice, Strand,, London, WC2A 2LL, Thursday 25th October 2001
Between
PINEAppellantTHE LAW SOCIETYRespondent
Before
Lord Justice BuxtonLady Justice ArdenMr. Nicholas Blake, QC and Mr. Julian Knowles (instructed by Messrs Irwin Mitchell for the Appellant)Mr. Timothy Dutton QC, and Mr. Mark Hoskins and Mr. Geoffrey Williams (solicitor advocate) (instructed by Messrs Geoffrey Williams Christopher Green for the Respondents)Date 25 October 2001
[1]THE VICE-CHANCELLOR : Introduction The appellant, Mr Pine, was admitted as a solicitor in 1985. On 17th August 1999 allegations of conduct unbefitting a solicitor were preferred to the Solicitors' Disciplinary Tribunal ("the Tribunal") by Mr Geoffrey Williams on behalf of the Office for the Supervision of Solicitors ("OSS"). At the conclusion of the hearing of those allegations held on 8th February 2000, at which Mr Pine was neither present nor represented, the Tribunal found that all the allegations had been substantiated and ordered that Mr Pine be struck off the Roll of Solicitors.[2]Mr Pine appealed to the High Court pursuant to s.49 Solicitors Act 1974 on the grounds that on the evidence before the Tribunal no reasonable tribunal could have reached those conclusions. Shortly before the hearing of that appeal Mr Pine submitted a written argument in which he relied on Article 6 of the European Convention on Human Rights but not on the ground set out in his notice of appeal. He contended that the Tribunal was not independent or impartial and that the absence of any legal representation deprived him of a fair hearing.[3]The appeal came before Lord Woolf of Barnes LCJ, Crane and Rafferty JJ on 13th November 2000. Mr Pine appeared in person. The court understood that Mr Pine did not rely on his original ground of appeal and rejected both points made in relation to Article 6. Accordingly the appeal was dismissed and permission to appeal was refused. Mr Pine applied to the Court of Appeal for permission to appeal but only on the ground that the lack of any provision for legal advice or representation in connection with the proceedings of such disciplinary tribunals was a breach of Article 6. Permission was granted by Schiemann LJ on the ground that the point was of some importance and deserved the attention of the Court of Appeal.[4]Thus the issue for our determination is whether or not Mr Pine obtained a fair hearing before the Tribunal. Mr Pine contends that he did not. He makes three submissions:(1) In principle the absence of any provision for legal aid or representation for a solicitor who wants but cannot pay for it, because of the effect of the Law Society's actions, vitiates all hearings of the Tribunal which may lead to an order that the solicitor be struck off.(2) On the facts of this case the absence of legal advice or representation for Mr Pine rendered the proceedings before the Tribunal obviously unfair.(3) Mr Pine's inability, because he could not afford the fare to London, to attend the hearing in person also rendered the proceedings before the Tribunal obviously unfair. Before dealing with these arguments it is convenient to refer to the constitution and rules of the Tribunal, the terms of Article 6 and some of the associated case law and, in the case of the second and third submissions, to relate the facts in more detail. In addition I should note that Mr Pine applied for permission to adduce further evidence. We indicated that we thought that it contained argument or was irrelevant. In the circumstances the application was not pursued and I would formally dismiss it. The Solicitors' Disciplinary Tribunal[5]The Tribunal is constituted by s.46 Solicitors Act 1974 to deal with complaints made in accordance with the other provisions of that Act. Its members are appointed by the Master of the Rolls. By s.46(9) it is empowered with the concurrence of the Master of the Rolls to make rules regulating its practice and procedure. By s.47(1) it has jurisdiction to determine any application requiring a solicitor to answer allegations contained in an affidavit. By s.47(3) the Tribunal is empowered on any such application to strike off the roll any solicitor to whom the application relates. By s.49 an appeal from an order striking a solicitor off the roll lies to the High Court.[6]The power to make rules conferred by s.46(9) has been exercised by the promulgation of the Solicitors (Disciplinary Proceedings) Rules 1994 SI 288/1994. The rules are comprehensive and readily comprehensible. Amongst other matters they provide for adjournments (rule 9), the admission of evidence on affidavit (rule 18), proceeding in the absence of a party on whom notice of the hearing has been duly served (rule 20), power to rehear the matter on the application of a person who was not present or represented at the hearing (rule 25) and powers to waive the rules of evidence or any requirement of the rules where it appears to the Tribunal to be just to do so (rules 30(iii) and 31(b)). Article 6 and related case law[7]So far as relevant Article 6 ECHR provides that "1. In the determination of his civil rights and obligations...., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...." Paragraphs 2 and 3 deal with criminal offences. By Article 6.3(c) in the case of a criminal offence the person charged has the minimum right to "defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;"[8]It is common ground that the allegations made against Mr Pine were not charges of a criminal offence. Thus paragraphs 2 and 3 of Article 6 have no direct application, though they may be said to reflect aspects of a fair trial under Article 6(1) (see Airey v Ireland [1979] 2 EHRR 305, below). I observe that even in the case of a charge of a criminal offence the right to free representation is not absolute but arises only when the interests of justice so require. It was also common ground that both the Law Society and the Tribunal are public authorities for the purposes of s.6 Human Rights Act 1998 so that, by virtue of s.22(4), Mr Pine is entitled to rely on Article 6 notwithstanding that the hearing by the Tribunal and the order occurred before Human Rights Act 1998 came into force. Preiss v General Dental Council (Privy Council: 17th July 2001 para 21).[9]The question whether and when legal aid and assistance should be provided in civil proceedings has been raised in a number of reported cases to which we were referred. The first is Airey v Ireland [1979] 2 EHRR 305. In that case the applicant, Mrs Airey, wished to petition for judicial separation in the High Court of the Republic of Ireland. She lacked the means to employ a lawyer and legal aid for such proceedings was not available. She alleged that these facts constituted a breach of Article 6 on the ground that her right of access to a court was effectively denied. The court concluded in paragraph 24 that the complexity of the law and procedure in judicial separation cases in the High Court was such that the ability to appear in person did not constitute an effective right of access to the court. In paragraph 26 the Court added "It would be erroneous to generalise the conclusion that the possibility to appear in person before the High Court does not provide Mrs. Airey with an effective right of access; that conclusion does not hold good for all cases concerning 'civil rights and obligations' or for everyone involved therein. In certain eventualities, the possibility of appearing before a court in person, even without a lawyer's assistance, will meet the requirements of Article 6(1); there may be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances. In addition, whilst Article 6(1) guarantees to litigants an effective right of access to the courts for the determination of their 'civil rights and obligations', it leaves to the State a free choice of the means to be used towards this end. The institution of a legal aid scheme - which Ireland now envisages in family law matters (see para. 11 above) - constitutes one of those means but there are others such as, for example, a simplification of procedure. In any event, it is not the Court's function to indicate, let alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6(1). The conclusion appearing at the end of paragraph 24 above does not therefore imply that the State must provide free legal aid for every dispute relating to a 'civil right'. To hold that so far-reaching an obligation exists would, the Court agrees, sit ill with the fact that the Convention contains no provision on legal aid for those disputes, Article 6(3)(c) dealing only with criminal proceedings. However, despite the absence of a similar clause for civil litigation, Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case."[10]In X v United Kingdom (App. No. 9444/81) (1984) 6 EHRR 136 an engine driver, employed by British Rail for thirty years was required to take up a different kind of work. He complained to an Industrial Tribunal but his union refused to provide him with legal assistance or representation. He complained to the Commission on the ground that he was unable to obtain a fair hearing of his allegations by a judicial body. The Commission rejected his complaint. The Commission held that "3. The applicant in the present case does not allege that a court remedy by which he could assist his above claim of breach of contract by his employer did not exist in the English legal system. He only alleges that he was prevented from making effective use of such remedy as existed by being refused or practically unable to obtain legal aid for this purpose. In this respect the Commission recalls that unlike the situation concerning criminal proceedings (cf. Art 6(3)(c)) the convention does not guarantee as such a right to free legal aid in civil cases. Only in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of the proceedings, can such a right be invoked by virtue of Art 6(1) of the convention (cf Airey v Ireland 2, EHRR 305). 4. The Commission considers that in the present case there were no exceptional circumstances which would have required the applicant's legal representation by either his union or a solicitor in order to be effectively able to seize an Industrial Tribunal (or other court) with his case. If there was in fact a remedy in an Industrial Tribunal as he claims he could no doubt have brought his case himself, without any legal representation. Industrial Tribunal proceedings are designed to be conducted in a practical and straightforward manner without too much emphasis on formalities. Legal representation may be useful, but it is by no means a 'requirement' in such proceedings."[11]Thus the principle distilled by the Commission from the decision of the Court in Airey was that:
"only in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to obvious unfairness of the proceedings can such a right be invoked by virtue of Article 6(1) of the Convention."
This principle was applied by Burton J in R v Legal Services Commission, ex parte Jarrett [2001] EWHC Admin 389 . It is not disputed that we should do likewise. The absence of any provision for legal advice or representation[12]It is common ground that (save as mentioned below) at the time of the Tribunal proceedings involving Mr Pine there was no provision whereby, if he wished it, he could have obtained legal advice or representation otherwise than at his own expense. Legal aid was not available in tribunals, there was then no insurance scheme which could pay for it and there was no body such as a trade union which could provide it. There was a free solicitors assistance scheme, but this would only have provided a one-hour consultation at the pre-listing stage; the scheme did not extend to providing representation before the Tribunal. Counsel for Mr Pine pointed to the consequences to a solicitor in the position of Mr Pine. The commencement of the disciplinary proceedings may coincide with the suspension of his practising certificate pursuant to s.15(1A) Solicitors Act 1974. At the conclusion of the disciplinary proceedings the solicitor may be struck off.[13]Counsel for Mr Pine did not dispute that the disciplinary proceedings are civil for the purposes of Article 6. He suggested that some of the charges could also amount to criminal offences. He contended that the possible consequences were so serious for the solicitor that disciplinary proceedings should be placed towards the criminal end of the spectrum of civil proceedings in deciding what is and is not fair. He contended that it was obviously unfair to take and pursue disciplinary proceedings with such immediate and future consequences for the livelihood of a solicitor, particularly where his lack of means stems from the Law Society's own acts in connection with those proceedings, unless at the same time provision is made for the impecunious solicitor to receive legal advice and representation if he wanted it at no expense to himself.[14]I do not accept this submission. It is clear from the passage I have quoted from Airey in paragraph 9 above that, at least in proceedings in which a party may appear in person, the requirements of Article 6 with respect to legal advice and representation depend on the facts of any given case. Thus if Mr Pine can show on the facts of his case that legal advice and representation for the purpose of the disciplinary proceedings before the Tribunal was required by Article 6 then he does not need to rely on any more abstract principle. Accordingly it is unnecessary to decide that point. In my view it is also undesirable. As is frequently observed, the application of the European Convention on Human Rights depends on the facts of the particular case. A decision divorced from those facts is at best hypothetical and at worst misleading. The Facts[15]As I have indicated already Mr Pine was admitted as a solicitor in 1985. He was then aged 24. He set up in practice on his own, under the name "Pine Solicitors", on 1st September 1994. Previously he had been head partner in charge of litigation at Davies Arnold Cooper in Manchester. He told the Investment and Compliance Officer of OSS that his practice as a sole practitioner was in commercial litigation and that he was assisted by an unqualified staff of three.[16]Mr Pine's clients included a company called Contract Consulting (UK) Ltd ("CCL"). CCL offered to members of the public assistance in the resolution of disputes. A member of the public would retain CCL, doubtless for a fee, on terms that if litigation proved to be necessary CCL would instruct solicitors and would indemnify the client against liability for the costs of those solicitors. Such clients included a Mr and Mrs Swales to whom I shall refer later.[17]In August 1998 Mr Fletcher of the Monitoring and Investigation Unit of OSS started an inspection of the books of Mr Pine. The result of the inspection was reported to OSS by the Head of Accounts Inspection, Mr Calvert, on 12th March 1999. Having considered that report and Mr Pine's response thereto dated 23rd March 1999 The Law Society intervened into Mr Pine's practice on 26th March 1999 pursuant to s.35 and Schedule 1 Solicitors Act 1974. One consequence of such intervention was the automatic suspension of Mr Pine's practising certificate under s.15(1A) Solicitors Act 1974.[18]On 17th August 1999 proceedings were commenced by OSS whereby Mr Pine was required to answer the allegations made in a statement of Mr Williams. The statement set out (paragraph 2) ten allegations of alleged conduct said to be unbefitting a solicitor, each of which was cross-referenced to the subsequent paragraphs of the statement and to the pages in a bundle of documents relevant to that allegation. The allegations were that Mr Pine had:(a) sworn affidavits which were false and misleading in material particulars.(b) failed to disclose material information to the Court.(c) failed to maintain properly written books of account contrary to Rule 11 of the Solicitors Accounts Rules 1991.(d) paid clients' money into office accounts contrary to Rule 3 of the Solicitors Accounts Rules 1991.(e) drawn monies out of a client account otherwise than as permitted by Rule 7 of the Solicitors Accounts Rules 1991 contrary to Rule 8 of the said Rules.(f) failed adequately to account to clients.(g) given false information to clients, former clients and solicitors acting on their behalf.(h) unreasonably delayed in delivering up papers when properly called upon to do so.(i) issued civil proceedings on behalf of a former client subsequent to the termination of his retainer by that client.(j) rendered a fee note to a client which he knew or should have known could not be justified.[19]The statement and other relevant documents were duly served on Mr Pine on 25th August 1999; further documents were served on him on 10th January 2000. The hearing took place in London on 8th February 2000, a date originally chosen with regard to Mr Pine's availability. Mr Pine was not present nor was he represented. The previous day Mr Pine had faxed a letter dated 7th February to the Tribunal. It is necessary to quote substantial passages from it.[20]At the outset Mr Pine wrote:
"Office for the Supervision of Solicitors ("
OSS") - v - Simon Pine No. 7961/1999 Solicitors Disciplinary Tribunal on 8th February 2000 I write with regard to the above disciplinary proceeding. May I first of all apologise for my non appearance before the Disciplinary Tribunal tomorrow. No disrespect whatsoever is intended; I am simply not in a financial position to travel to London. I confirm that I have already notified the applicant Geoffrey Williams of the same and sent him a copy of this letter. As you are already aware on Friday 26th March 1999 my Solicitors practice ceased to trade due to a Law Society intervention. I was suspended from practising as a solicitor with immediate effect and thereby rendered unemployed. I have subsequently found it impossible to find alternative employment whilst this case is pending and have been forced to apply for Job Seekers Allowance (formerly social security) which I currently receive. I have no transport as the motor vehicles which both my wife and myself had have been repossessed by the finance companies concerned due to an inability to continue making the requisite monthly payments. My home is fully mortgaged and the mortgage is, in fact, currently in arrears due to my inability to meet the monthly mortgage commitment. Accordingly, I now not only have had no income for almost 12 months but also have no assets and have suffered and am suffering severe financial hardship. I confirm that I have had the opportunity of considering the statement of the applicant, the exhibit thereto and the paginated bundle of documents and I have written to the applicant in that regard.I have confirmed to the applicant that the following facts set out in the applicant's statement are in dispute, namely:" Mr Pine then set out the paragraphs containing six of the ten charges and most of the paragraphs in the statement dealing with them. He contended that some matters had not previously been put to him or been the subject of a complaint by a client.[21]Mr Pine then continued:
"My position in relation to the matters that are before the Tribunal tomorrow has already been set out in detail in extensive correspondence between my solicitors Messrs Robert Buckley and the OSS and between myself and the OSS respectively. I do not think that any further repetition in this letter would be of assistance to the Tribunal. Whilst I am sure that the applicant will draw the Tribunal's attention to this correspondence and the explanations proffered therein I do refer the Tribunal specifically to the following documents.."
Mr Pine then set out references to pages in the bundle of documents and continued "I do not have anything more to add to that which has already been put forward upon my behalf save to say that the OSS has already made decisions in the three matters before the Tribunal which constitute client complaints." Mr Pine gave the names of the clients and forwarded to the Tribunal copies of the OSS decisions. He stated that it was extremely important that the Tribunal understood what was happening in the background in the period April 1997 to April 1998 and proceeded to describe it in some detail.[22]Mr Pine concluded:
"Whilst I understand that the OSS has a duty to act to protect the public interest it now seems from all the available evidence, the lack of any claims of dishonesty against me from clients either at the time or subsequently and the fact that no clients have actually suffered any financial loss that the decision to intervene taken on 25th March 1999 was an overreaction. Be that as it may, the decision was taken and the quite devastating consequences for me have been twelve months of sheer hell and severe financial hardship, not to mention the considerable damage to my professional reputation which I fear is now irredeemable. However, over the last twelve months I have had considerable opportunity to reflect and have come, to what I think, is the inevitable conclusion that practising, as a sole practitioner is not for me. I have discovered, at some considerable cost to myself that particularly on the accounts side I have, quite simply, been badly advised and let down at every turn by both professionals (a fact recorded by the Tribunal in its decision of 18th November 1997) and dishonest employees alike. I think that any reasonable person would consider that I have now suffered and am suffering enough for the mistakes that I have made and that it must be in everybody's interest that I find employment as a solicitor doing what I was trained to do at the earliest opportunity. I have now served, effectively, a twelve-month suspension and my only income is Job Seekers Allowance which means I am currently in no financial position to meet any financial penalty the Tribunal might consider imposing or indeed any order for costs whether by instalments or otherwise. I trust that I have set out my position, both financial and otherwise, as clearly and concisely as can and I hope that the Tribunal will deal with this matter in a fair and reasonable way."
[23]It is clear from the transcript that at the hearing before the Tribunal Mr Williams, who was acting for OSS, went through the charges one by one making them good by reference to the evidence including the various written observations made by Mr Pine or his solicitors in the course of the inspection or, subsequently, in response to the report of the Head of Accounts Inspection. At the conclusion of the hearing the Tribunal announced that they found all the charges proved and ordered that Mr Pine be struck off the roll of solicitors.[24]The written findings of the Tribunal were handed out on 3rd April 2000 and duly filed with the Law Society on 6th April 2000. After recording the charges and details with regard to the hearing, the facts as found by the Tribunal were set out in paragraphs 1 to 72. In paragraphs 73 – 92 the Tribunal recorded the submissions made on behalf of OSS. In paragraph 93 the Tribunal recorded that Mr Pine had not attended the hearing but had sent his letter of 7th February 2000 to which "the Tribunal gave careful consideration". The Tribunal then quoted the whole of the letter.[25]The Tribunal found all the allegations to have been substantiated. They referred to an earlier finding of the Tribunal of conduct of Mr Pine unbefitting a solicitor and continued:
"In the current application the Tribunal was dismayed to learn of the respondent's behaviour in the matters before them. Despite what the respondent indicated in his letter the Tribunal was entirely satisfied that the gravity of the allegations made against the respondent had clearly been communicated to the respondent and indeed underlined by the applicant. The Tribunal have before it a catalogue of dishonest behaviour on the part of the respondent. A solicitor is not only a member of an honourable profession but also is an officer of the Court. It is dishonest and consistently professional misconduct at the highest end of the scale for a solicitor to depose to affidavits which are false and misleading. Further the respondent had given false and misleading information to clients. This is totally unacceptable. He had also been guilty of a number of serious breaches of the Solicitors Accounts Rules. The respondent had been consistently putting money into his office account and thus assisting his firm's cash flow position, which money should have been paid into client account. The Tribunal does not accept that the respondent was unaware of the very clear rule and obligations with regard to this. The Tribunal noted that the respondent had appeared before them in November 1997 when it was clear that his books of account were then in a deplorable state. He had been treated very leniently by the Tribunal on that occasion and clearly had not heeded the warning inherent in the Tribunal's previous order. The Tribunal has no doubt that the respondent's behaviour was dishonest. Such behaviour can not be tolerated by the solicitors' profession and a solicitor who is guilty of such conduct is not fit to remain on the Roll of solicitors. Accordingly, it was right that the ultimate sanction should be imposed upon the respondent and that he be struck off the Roll and ordered to pay the costs of the application and enquiry to include the costs of the Investigation Accountant of the Monitoring & Investigation Unit of the Office. The Tribunal fixed those costs in the sum of £9,438.00."
[26]As I have already indicated, in his notice of appeal to the High Court Mr Pine contended that the findings of the Tribunal were not those which a reasonable tribunal could reach on the evidence. The Court understood those contentions to have been abandoned in favour of the new points under Article 6 ECHR. Before us counsel for Mr Pine explained that this was not so; he sought an order setting aside the findings of the Tribunal and directing another tribunal to rehear the allegations on the grounds that the first hearing had not been fair so that the conclusions were invalidated by Article 6.[27]With regard to the alleged unfairness arising from the lack of legal advice and representation Crane J, with whom the Lord Chief Justice and Rafferty J agreed said: "29. It is not necessary for present purposes, in my view, to decide whether proceedings before the Tribunal could ever be so complex that representation was indispensable. It is sufficient for the present case to consider the facts as they arose here. In my judgment, this hearing cannot properly be described as complex. The allegations were detailed, but they were not in fact complex. They all related to matters which the appellant had himself handled and which went back no further than some three years. The appellant's own letter to the Tribunal did not suggest that he had any difficulty in understanding or dealing with the issues. He was himself a qualified solicitor. At the hearing on the other side was the present respondent, Mr. Geoffrey Williams, a solicitor advocate. Whilst it is clear that Mr. Williams had more experience of such hearings, there is in my view nothing to suggest that the appellant would have been unable adequately to present his case. The hearing was, judging by the transcript insofar as we have one, relatively informal. No doubt legal representation should always be regarded as an advantage. It does not follow that the absence of legal representation denies a party a fair hearing. In my view, the hearing in that respect here was a fair one. That submission, namely the requirement of legal representation for this particular appellant, is not made out.[28]Counsel for Mr Pine accepted that the relevant principle was that extracted by the Commission in X v United Kingdom from the judgment of the Court in Airey and applied by Burton J in Jarrett, namely whether "the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to obvious unfairness of the proceedings".[29]Counsel for Mr Pine did not claim that the withholding of legal aid made his defence to the allegations practically impossible. He contended that it led to obvious unfairness, not because of any complexity in the procedure or the facts of the case but because of the nature of the charges, the severity of the possible consequences for Mr Pine and the inhibiting effect on the prosecution of his defence of Mr Pine's emotional involvement. He used as an example of the benefit to be derived from legal advice and representation the circumstances of the first matter with which Mr Pine was charged. Accordingly I should refer to it in some detail.[30]The charge was that Mr Pine had sworn affidavits which were false and misleading in material particulars. The particular affidavit on which counsel for Mr Pine relied was sworn by Mr Pine on 31st October 1997 in proceedings brought by Mrs Swales against Mr Pine relating to the taxation of costs.[31]As I indicated earlier Mrs Swales was a client of CCL. CCL instructed Mr Pine to commence proceedings in the High Court on behalf Mr and Mrs Swales against C plc. On 3rd June 1997 Mr Pine wrote to Mr Swales advising him that CCL had run out of money so that its indemnity as to costs was worthless. Mr Pine asked Mr Swales to pay his bill of costs of £2,337 for work done to date and for a further £352.50 on account of future costs. Mr and Mrs Swales instructed other solicitors to act on their behalf and issues arose whether Mr Pine was entitled to look to the Swales for payment of his costs, whether the amounts thereof were reasonable and whether he was entitled to a lien over the Swales' papers until they were paid. The solicitors for Mr and Mrs Swales issued an application in the Lincoln District Registry designed to resolve these issues. The relief sought included a declaration that there was no retainer of Mr Pine by Mr or Mrs Swales so that there could be no liability or lien. It was in response to that application that Mr Pine swore the affidavit of which complaint was made.[32]After setting out the circumstances in which the dispute arose Mr Pine continued:
"13. I have no complaint whatsoever in the Plaintiff deciding to instruct another firm of solicitors to act upon her behalf, but it seems to me that in the light of the Plaintiff's agent being unable to pay my outstanding legal fees to date, the Plaintiff must be contractually bound to discharge those fees. 14. I confirm that I have no objection whatsoever to my fees being taxed by this honourable Court, and the Plaintiff then being obliged to pay the taxed costs as opposed to paying my bill in full, as it now stands, but I do not consider that the Plaintiff has any entitlement to the transfer of my complete file of papers without making any payment whatsoever in respect of unpaid fees, particularly when she is legally bound to discharge those fees as principal. 15. Finally, there is now produced and shown to me marked "
SJP3" a copy of an Order of his Honour Judge Malcolm Lee QC dated 21st July 1997 in a similar case to this in which he made an Order that the client do pay this firm's costs, to be taxed if not agreed, and did not make an Order that the client was not liable for this firm's fees as principal." The exhibit was not a copy of any order of the court as drawn up in the proceedings indicated in the heading. It correctly contained orders that Mr Pine deliver up the clients papers on the undertaking of that party's new solicitors to pay Mr Pine's costs and an order for the taxation of those costs; but it omitted paragraph 3 of the order as made which provided that "the costs of the application should be paid by Pine Solicitors forthwith".[33]Counsel for Mr Pine submitted that had Mr Pine been represented it could have been pointed out to the Tribunal that the exhibit did not portray a seal of the court, thereby suggesting that it was only a draft. He also suggested that a competent advocate would have realised that it had to be proved that Mr Pine knew of the falsity of the exhibit so that, at the least, he should give oral evidence. Thus instead of the allegation being substantiated sufficient doubt in Mr Pine's guilt might have been engendered as to procure a dismissal of the charge. So, it was argued, the circumstances surrounding the allegation and its acceptance by the Tribunal demonstrated that the absence of legal aid and representation gave rise to obvious unfairness in the proceedings before the Tribunal.[34]Counsel for The Law Society took us through all the correspondence to show the circumstances in which the allegation had been made, the opportunities afforded to Mr Pine and his solicitor to refute it and the overwhelming evidence in support of it. It is necessary for me to repeat the process to some extent to explain why I regard the submission made on behalf of Mr Pine as wholly unacceptable.[35]The correspondence shows that on 22nd August 1997 Mr Pine had sent to the solicitors for Mr and Mrs Swales a copy of the order which he maintained in his covering letter demonstrated that the application for a declaration that Mr and Mrs Swales were not liable to pay Mr Pine's fees was doomed to failure because the court would be bound to apply the principle exemplified by the order. He threatened them with an application for indemnity costs if they persisted in their application. The copy was the same as that subsequently exhibited to Mr Pine's affidavit. On 29th August 1997 the solicitors for Mr and Mrs Swales replied. They indicated that they had checked with the District Registry in which the order purported to be made and with the solicitors who had obtained it. They pointed out that in that case there had been no application for a declaration of non liability – so that it was not a parallel with the application of Mr and Mrs Swales - and omitted the costs order made against Mr Pine. They described Mr Pine's letter as completely misleading and confirmed that they had sent a copy to OSS for their investigation. Thus over two months before Mr Pine swore the affidavit of which complaint is made he had been told by the solicitors acting for Mr and Mrs Swales that the copy of the order in his possession was incorrect and inapplicable.[36]In the affidavit in response to that of Mr Pine, sworn on 3rd November 1997, the solicitor for Mr and Mrs Swales pointed out that the statements of Mr Pine were incorrect and exhibited her correspondence with the solicitors involved in the other case. On 28th January 1998 the solicitors for Mr and Mrs Swales pressed their complaint on OSS as indicating serious misconduct on the part of Mr Pine. In a letter dated 20th May 1998 the Law Society asked Mr Pine for his comments on the allegations that he had sworn a misleading affidavit annexing a misleading exhibit. By a long letter dated 21st May 1998 Mr Pine responded. In a further letter dated 18th August 1998 Roberts Buckley, solicitors then acting for Mr Pine, it was submitted that the exhibit was a draft of the order as made "save for the omission of paragraph 3". The writer contended that to describe the exhibit as a forgery was quite improper.[37]In paragraphs 11 to 16 of his statement in the disciplinary proceedings Mr Williams set out the allegation in relation to this affidavit and exhibit with crystal clarity and exhibited and itemised all the relevant documents. Mr Pine had from 25th August 1999 to 8th February 2000 in which to challenge the facts underlying the allegation or to adduce evidence to explain what would appear to be an obvious falsehood. He did not do so. In his letter of 7th February 2000 he confirmed that this allegation, contained in paragraph 2a, was disputed but not the contents of paragraphs 11 to 16 of Mr Williams statement which set out the facts and documents in support of it. At no stage did Mr Pine or his solicitor provide any explanation or excuse for what the documents plainly showed.[38]In my view it is fanciful to suggest that it was obviously unfair to Mr Pine not to provide him with legal advice or representation. His counsel chose the allegation relating to the affidavit sworn by Mr Pine in the Swales proceedings as the best example of obvious unfairness. But the documents show that the affidavit and exhibit were false, as alleged, that Mr Pine had been told by the solicitors for the Swales before he swore the affidavit that the document in his possession was not a true copy of the order and that Mr Pine had ample opportunity between 20th May 1998, when the Law Society first asked for his comments, and 8th February 2000 to indicate the nature of any defence he might wish to pursue. Neither he nor his solicitor ever suggested that he had one. Mr Pine did not, in his letter of 7th February 2000 or otherwise, indicate that he wished to give oral evidence in respect of this or any other allegation, nor did he dispute the material facts set out in paragraphs 11 to 16 of Mr Williams statement.[39]The procedure was not complex. The relevant facts were within the knowledge of Mr Pine. Mr Pine was a solicitor experienced in commercial litigation. Mr Pine had ample opportunity to indicate any defences he might wish to advance. In my judgment neither the seriousness of the likely consequences nor the emotional involvement of Mr Pine, which is not apparent from his letters to have been a debilitating factor anyway, when considered in the light of the absence of legal advice or representation, gave rise to any unfairness. Absence from the hearing[40]It was also submitted, albeit more faintly, that the fact that Mr Pine was not only unrepresented but not present in person, because he could not afford the fare to London, itself gave rise to a breach of Article 6.[41]I am prepared to accept that there may be circumstances in which the fact that a party is both unrepresented and absent from the hearing will amount to a denial of effective access to the court and, therefore, a breach of Article 6. But it will depend on the facts of the case.[42]In this case Mr Pine had ample opportunity to outline any defence to the allegations he might have. When he found that he could not afford the fare to London he might have sought an adjournment (Rule 9), the admission of his evidence by affidavit or some more informal means (Rules 18 and 30) or a hearing in Manchester. He did none of these things. Nor, after the event, did he invite the Tribunal to reopen the hearing (Rule 25). It is quite clear from his letter dated 7th February 2000 that he recognized that he had had ample opportunity to advance any defence he wished and was content that the Tribunal should proceed in his absence, as they did.[43]In these circumstances the fact that he was neither present nor represented at the hearing did not prevent him advancing any defence he wished or give rise to any unfairness. Conclusion[44]As I have already indicated I would dismiss the application for permission to adduce further evidence on the hearing of this appeal. In addition, I am satisfied that the commencement of the disciplinary proceedings against Mr Pine on 17th August 1999, their subsequent prosecution by the Law Society and the hearing of them by the Tribunal on 8th February 2000 all complied with Article 6 ECHR. There is no merit in this appeal and I would dismiss it.

LORD JUSTICE BUXTON:

[45]I agree and have nothing to add.

LORD JUSTICE ARDEN:

[46]I also agree

Order

Appeal dismissed with costs; subject to any application under section 11 of the Access to Justice Act 1999; detailed assessment. (Order does not form part of the approved judgment)

Cited in 6 later judgments