Aaron v Law Society [2003] EWHC 2271 (Admin)

Case No CO4492/2002[2003] EWHC 2271 (Admin)IN THE SUPREME COURT OF JUDICATUREQUEEN’S BENCH DIVISIONADMINISTRATIVE COURTON APPEAL FROM THE SOLICITOR’S DISCIPLINARY TRIBUNALVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 th October 2003
Before
LORD JUSTICE AULDMR. JUSTICE GOLDRING
Between
JOSEPH AARONAppellantTHE LAW SOCIETYRespondent
Mr. Philip Engelman (instructed by Aaron & Co.) for AppellantMr. Gregory Treverton Jones QC (instructed by The Law Society) for RespondentHearing Hearing date: 9 th June 2003
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

The individual grounds of appeal

[1]This is an appeal, pursuant to section 49 of the Solicitors’ Act 1974, by Joseph Aaron, a solicitor, against the decision of the Solicitor’s Disciplinary Tribunal (“the Tribunal”) on 9th July 2002 finding him guilty of seven allegations, arising out of four main matters, of conduct unbefitting a solicitor, and ordering him to be suspended from practice as a solicitor for two years.

The facts

[2]The matters giving rise to the disciplinary proceedings and the proceedings themselves have a long history. At all material times Mr. Aaron carried on practice on his own account under the style of Joseph Aaron & Co. in Essex. I take the matters giving rise to this appeal in the order, not in which they allegedly occurred, but by the date of the making of the formal allegation under the Solicitors (Disciplinary Proceedings) Rules 1994.[3]In October 1996 there were allegations of Mr. Aaron’s failure to pay and/or of delays in paying the fees of a number of counsel, fees that had accrued from 1987 to 1991. There had been earlier similar proceedings before the Tribunal in February 1994. In those proceedings the solicitor advocate presenting the case on behalf of the Law Society had agreed to withdraw the allegations in respect of the claims of some of the counsel. However, the Law Society, by the October 1996 allegations, sought to re-institute the proceedings. In May 1998 a Tribunal began to consider them, including complaints of two counsel whom I shall call “B” and “G”. Mr. Aaron took the point that the complaints had been withdrawn at the February 1994 hearing, but on 24th June 1999 the Tribunal ruled that it was entitled to deal with them. Mr. Aaron challenged that decision by judicial review, claiming that the matter was res judicata and/or an abuse of process. On 15th May 2000 he succeeded in part before Burton J., who quashed the Tribunal’s ruling because it had not correctly approached the issue whether there had been a withdrawal or dismissal of the complaints before the 1994 Tribunal. However, he held that the allegations in respect of B and G should be remitted to a fresh Tribunal for determination.[4]In the meantime, associated allegations had been made in October 1998 and February 1999, respectively of Mr. Aaron’s failure between 1994 and 1998 to respond to communications from the Office for the Supervision of Solicitors (“the OSS”) about the late or delayed payment of the fees and of misleading the May 1998 Tribunal about the payment of G’s fees.[5]Before the hearing of all those allegations (“the counsel’s fees matter”) by the Tribunal, there were yet further allegations of professional misconduct against Mr. Aaron.[6]The first set of those allegations, which were made in April 2001, resulted from a reference by Cresswell J. to the OSS arising out of litigation tried by him in late 2000 to which Mr. Aaron had been a party about the assignment of a lease (“the conveyancing matter”). Two of those allegations were that in July 1988 he, as a proposed assignee of a lease, had dealt direct with the proposed assignors whom he knew were represented by a solicitor and without that solicitor’s consent, and had entered into possession of the property without having paid the balance of the completion monies, knowing that the landlord had not consented to the assignment. Because of the Law Society’s wish to consolidate the proceedings before the Tribunal on the counsel’s fees matter with these allegations, it secured the adjournment of a hearing for the former, which had been listed for 1st May 2001.[7]Then, in September 2001, there was an allegation of a failure by Mr. Aaron to comply with a direction of the Appeals Committee of the OSS on 20th June 2001 to compensate a former client, Mr. O’Callaghan, in respect of inadequate professional services (“the O’Callaghan matter”). Mr. Aaron had requested the OSS to re-open and review the direction, but they had refused to do so. He had then threatened to seek judicial review in respect of that refusal.[8]The Tribunal listed all three matters together for determination. The hearing was fixed for three days, commencing on 20th February 2002, but was adjourned part heard on 22nd February. The circumstances giving rise to that adjournment became the subject of the final two allegations which, together, were of failure to make full and frank disclosure to a High Court Judge in an application for permission to claim judicial review to prohibit the OSS from pursuing the O’Callaghan allegation and for an interim stay against the Tribunal from proceeding with the hearing of it. (“the judicial review matter”).[9]As part of the chronology, I should give a little more detail at this stage about the facts giving rise to the judicial review matter. On the first morning of the three-day hearing, counsel for Mr. Aaron applied for an adjournment of the conveyancing and O’Callaghan matters on the grounds that he had not instructed counsel to act for him in the former and that he intended to claim judicial review in respect of the latter. The Tribunal rejected the application and directed that the hearing of all three charges should proceed together, as listed. Counsel for the Law Society opened the case for the remainder of that day and for part of the morning of the second day. Counsel for Mr. Aaron opened his case in respect of the counsel’s fees and O’Callaghan matters and called him to give evidence in respect of them, evidence that he completed before the end of the day. His counsel then indicated to the Tribunal that he would seek to re-open his application for an adjournment of the proceedings on the following morning. The Chairman of the Tribunal indicated in turn that it would be most reluctant to grant any such application and that it intended and anticipated that the case would conclude on the following day.[10]On the next day, 22nd February 2003, when the Tribunal sat to continue the hearing, counsel for Mr. Aaron informed it that Silber J. had granted an interim stay against the Tribunal proceeding with the allegation in the O’Callaghan matter, pending the hearing of the application for permission to claim judicial review, which had been adjourned for hearing in March. He told the Tribunal that he, counsel, regarded the stay as preventing the Tribunal from continuing the hearing in respect of all three matters, and that he and Mr. Aaron proposed to leave the building. Counsel for the Law Society expressed concern to the Tribunal over whether the Judge had been informed that the disciplinary proceedings were actually being heard at the time he was asked to grant the stay. He submitted that it was for the Tribunal to decide whether it should, in any event, continue the hearing in respect of counsel's fees and the conveyancing matters. The Tribunal rose while the clerk to counsel for the Law Society attempted, without success, to contact Silber J. In the meantime, Mr. Aaron left the building. The Tribunal then declined to carry on with the counsel’s fees and Cresswell matters on their own, and adjourned the hearing of all three matters part heard.[11]Mr. Aaron did not proceed with his application for permission to claim judicial review. On 12th March 2002 Sir Richard Tucker dismissed it by consent and with costs, and, on the invitation of counsel for the Law Society, referred the manner in which the adjournment of the Tribunal’s proceedings on 22nd February 2002 had been obtained to the OSS. The OSS concluded that the matter should be the subject of two allegations of professional misconduct in misleading the Administrative Court. However, it considered that a differently constituted Tribunal from the original Tribunal should first decide as an interlocutory matter whether it should be referred to the original or to a fresh Tribunal. On 6th June 2002 a differently constituted Tribunal decided that the Tribunal as originally constituted should consider this matter along with the others, a decision that Mr. Aaron did not seek to challenge by way of judicial review.[12]In all, there were 14 allegations arising out of the four matters listed before the original Tribunal on its resumed hearing on 8th and 9th July 2002. At the opening of the hearing, counsel for Mr. Aaron applied for an adjournment of the allegations in the judicial review matter and/or for the Tribunal members to recuse themselves from hearing them, both of which applications the Tribunal refused.

The allegations and the grounds of appeal

[13]The Tribunal dismissed seven, but, as I have said, found the remaining seven of the allegations proved, and concluded that, considered together, they amounted to conduct unbefitting a solicitor. For convenience of reference, I summarise the seven proved allegations in tabulated form: 1) The counsel’s fees matter – two offences: first, on an allegation made in October 1998, of unreasonable delay between 1994 and 1998 in replying to correspondence from the Bar Council, the Solicitors Complaints Bureau and the OSS about payment of counsel’s fees; and second, on a complaint made in February 1999 that in 1994 and 1998 he had deceived or misled the OSS and the Tribunal about the payment of G’s fees, contrary to Rule 1 of the Solicitors Practice Rules 1998 and Principle 21/07 of the Guide to the Professional Conduct of Solicitors. (The Tribunal dismissed the earliest of the three allegations in this matter, namely of non or late payment of counsel’s fees between 1987 and 1991) 2) The conveyancing matter – two offences: first, on a complaint made in April 2001, of his conduct in July 1988 as a proposed assignee of a lease in dealing direct with the proposed assignors knowing that they were represented by a solicitor and without his consent; and second, on a complaint made at the same time of his conduct in August 1988 of entering into possession of the premises the subject of the assignment without having paid the balance of the completion monies and without the landlord’s licence for the assignment. 3) The O’Callaghan matter – one offence, on a complaint made in September 2001, of his failure, between June and September 2001, to pay the compensation that the Appeal Committee of the OSS had directed him to pay to the dissatisfied former client, Mr. O’Callaghan; and 4) The judicial review matter – two offences, both on overlapping complaints made in May 2002 about his failure on 20th and 21st February 2002 to make full and frank disclosure in his application to the Administrative Court for judicial relief and stay of the O’Callaghan complaint and thereby obtaining the sought stay.[14]Mr. Aaron, by this appeal, challenges a number of findings of the Tribunal in relation to various of the seven allegations and/or its conclusion on the basis of those findings that he had been guilty of conduct unbefitting a solicitor and/or that his conduct merited suspension from practice as a solicitor for two years. Through Mr. Philip Engelman, counsel instructed on the appeal but not before the Tribunal, he crystallised his complaints under six headings: 1) unreasonable delay by the Tribunal in resolving the various proceedings from, at the latest, October 1998, the date of the earliest allegation, to the Tribunal hearing on 9th July 2002 or later, on appeal 2) bias on the part of the Tribunal in hearing the judicial review matter arising out of its earlier involvement in February 2002 in the events giving rise to it; 3) the Tribunal’s finding that he had misled the OSS and the Tribunal in 1998 about G’s fees; 4) the delay from July 1988 to April 2001 in making allegations in the conveyancing matter and thereafter by the Tribunal in its determination of them in July 2002 or later on appeal; 5) the Tribunal’s refusal to admit expert evidence tendered on his behalf in the conveyancing matter; and 6) the Tribunal’s finding that he was guilty of non-disclosure and, therefore, of misleading the Administrative Court, in the judicial review matter.[15]Before I turn to the individual grounds of appeal, I should mention two basic matters. The first is that disciplinary proceedings before the Solicitors Disciplinary Tribunal must be proved to the criminal standard, certainly where, as here, the allegations are serious and may result in suspension or disqualification; see In re A Solicitor [1993] QB 69, per Lord Lane CJ at 81A – 82C. The second is that an appeal against the findings of the Tribunal to this Court under section 49 of the 1974 Act is by way of rehearing and the Court may make such as order as it thinks fit; see In re A Solicitor [1945] 1 All ER 445, CA, per Scott LJ at 446A and 447 G_H. The individual grounds of appeal 1). Overall Delay[16]Mr. Aaron’s only complaint before the Tribunal of delay and/or abuse of process was in connection with the allegation made in October 1996 of non payment or delay in payment of counsel’ fees in 1987-1991, an allegation which, as I have said, the Tribunal dismissed. Mr. Engelman put the complaint of delay to this Court, principally by reference to the reasonable time requirement in Article 6 of the European Convention of Human Rights, on a more general basis as invalidating all the findings of which Mr. Aaron complained. He said that the accretion of allegations as time went on aggravated the original delay. He identified the delay as running from the earliest conduct the subject of a proved allegation, namely the conveyancing matter in 1988, to the disposal of the matter by the Tribunal on 9th July 2002 or by this appeal. He also prayed in aid the fact - only discovered since the Tribunal’s hearing - that, although the allegations about the conveyancing matter were made in April 2001, the assignors’ solicitor had written to the OSS nearly five years before, on 10th September 1996, making a “formal complaint” about the subject of them.[17]Mr. Engelman relied on four propositions of law in support of this wider complaint of delay. First, he submitted, in reliance on the guidance of the European Court of Justice in Konig v. Federal Republic of Germany (1978) 2EHRR 170, at para 99, that the reasonableness of the duration of proceedings must be assessed according to the circumstances of each case, including its complexity, the applicant’s conduct and the manner in which the administrative and judicial authorities dealt with the matters. Second, he said, drawing on Blackstone’s Human Rights Digest, p. 183, at para. 17.14, and Zimmerman & Steiner v. Switzerland 6 EHRR 17, at para. 24, that a further relevant circumstance is “what is at stake for the applicant”. Third, he referred to Lord Hope’s statement in Porter v. Magill [2002] 2 WLR 37, HL,at para. 107, that time for this purpose should run from the institution of proceedings until its final disposal. And, fourth, he drew on Strasbourg jurisprudence suggesting that where there are multiple complaints or charges, time should run from the earliest of them; see Guincho v. Portugal A81 (1984) 7 EHRR 223, ECHHR and Ewing v. United Kingdom [1988] 10 ECHRR 141, a Commission Decision.[18]Looking at the circumstances, Mr. Engelman submitted that the delay could not be accounted for by reason of the complexity of the proceedings, whether considered individually or collectively. As to Mr. Aaron’s own delaying conduct, he suggested that the only criticism made was in respect of the February 2002 hearing when he secured its adjournment for over four months by obtaining the stay from Silber J. Allowing for that late and relatively short period of delay, Mr. Engelman relied on the balance of over six years from the first allegation in October 1998 (re failure to correspond with the OSS over counsel’s fees) or, as he preferred, from the assignors’ solicitor’s formal complaint to the OSS in September 1996 in the conveyancing matter to the likely disposal of this appeal, a delay that he maintained, was attributable to unreasonable conduct of the OSS, the Law Society and the Tribunal.[19]Mr. Engelman pointed in particular to three aspects, which, he maintained, amounted to such unreasonable conduct. First, there was the accretion of complaints resulting in the 14 charges finally considered by the Tribunal in July 2002. Second, there was the adjournment sought by and granted by the Tribunal to the Law Society in May 2001 in respect of the (ultimately dismissed) allegations of non payment or delay in payment of counsel's fees. Third, there was the ruling of the Tribunal on 24th June 1999 in relation to the question of the withdrawal or dismissal of some of those allegations at its hearing in February 1994, the ruling quashed by Burton J. on 5th May 2000. And, he maintained, there was much at stake for Mr. Aaron, namely the loss of his professional reputation and future as a practising solicitor.[20]In all the circumstances, Mr. Engelman submitted, the only effective remedy for the delay of up to 14 or 15 years or so from start to finish of all the conduct complained of, that is, from the conveyancing matter in July 1988 to final determination of the disciplinary proceedings in 2003 is to quash the whole of the Tribunal’s findings.[21]Mr. Gregory Treverton Jones, QC, on behalf of the Law Society, urged the Court not to entertain this ground of appeal because it had not been canvassed in this general way or by reference to Article 6 before the Tribunal. He said that, if it had been, the Tribunal would have had to investigate the precise chronology and what, if any, prejudice had been suffered by Mr. Aaron in respect of each matter.[22]As to the law, in particular the applicability of the Article 6 reasonable time requirement, Mr. Treverton Jones prefaced his submissions by observing that there are two periods of alleged delay for consideration. The first is that from the date of the alleged professional misconduct to the commencement of the disciplinary proceedings and/or of the hearing of them. The second is that in the prosecution of the disciplinary proceedings following their institution. The distinction is, he submitted, important in this case for the following reasons. Whereas the proceedings could be stayed at common law for both forms of delay if it was such as to prejudice a fair trial, breach of Article 6 does not depend upon proof of prejudice to a fair trial. However, Article 6 is only engaged where there has been delay in the proceedings once instituted (see e.g.. Attorney General’s Reference (No. 2 of 2001 [2001] EWCA Crim 1568 [2001] 1 WLR, 1869).[23]As to the facts, Mr. Treverton Jones submitted that, in any event, it was hard to see upon what basis the Tribunal could, if it had been asked to consider this broader argument, have found that the conveyancing, O’Callaghan and judicial review matters had been infected by any earlier delay in relation to the counsel’s fees matter, in none of which had there been any delay in prosecution of the proceedings after the making of the allegations, all of which were made in 2001 or 2002. He added that, in two of them, the O’Callaghan and judicial review matters, the facts giving rise to them had not even occurred at the start of the period of delay now relied upon. It follows, he submitted that, as a matter of fact, Article 6, if it could have been prayed in aid at all in respect of the delay in the counsel’s fees matter, could not have assisted Mr. Aaron by “starting the clock running”, as, for example, in Ewing v. United Kingdom.[24]Regardless of the merits or otherwise of the procedural point taken by Mr. Treverton Jones that the Court should not entertain this argument because it was not taken in this form before the Tribunal, I consider it only fair to both parties to deal with it on its merits. The issue of delay was raised before the Tribunal by Mr. Aaron’s then counsel, who referred to “live” complaints from 1994 about non-payment of counsel’s fees in 1987-1991.[25]As to the law, it is established that Article 6 applies to professional disciplinary proceedings; see Albert & Le Compte v. Belgium [1983] 5 EHRR 533, at paras. 28 and 29; and Ginikanowa v. United Kingdom (1988) 55 DR 252, at 257-258. It is also established that failure to determine them within a reasonable time may violate Article 6 without proof of prejudice to the accused; see Porter v. Magill, per Lord Hope at paras. 106, 108 and 109, following Lord Steyn’s observations in Darmalingum v. The State [2000] 1 WLR 2303, PC, at 2307F-2308C and 2309H. But there is uncertainty as to whether courts may nevertheless, in their discretion, still refuse the relief of a stay where to proceed would not amount to an abuse of process, the traditional common law approach, as stated by Lord Lane CJ in Attorney General’s Reference (No. 1 of 1990) [1992] QB 630 at 643. In Attorney General’s Reference (No. 2 of 2001 [2001] EWCA Crim 1568 [2001] 1 WLR, 1869 the Court of Appeal has effectively kept to that approach in the Article 6 context as to the exercise of a court’s discretion in determining what, if any, relief to grant for its violation (a ruling now awaiting the decision on appeal of the House of Lords). See also Dyer v. Watson [2002] 3 WLR 1488, PC, per Lord Bingham of Cornhill at paras. 65-68; and HM Advocate v. R [2002] UKPC D3, [2003] 2 WLR 317.[26]For what it is worth, given the awaited House of Lords ruling on the point, my instinct is that, since section 8(1) of the Human Rights Act 1998 permits our courts a discretion as to what, if any, relief or remedy to grant in respect of breaches of the Convention, it may be, depending on the circumstances, in the public interest and fair to an accused not to stay proceedings for delay as an abuse of process where the delay has not prejudiced his right to a fair trial.[27]But first, it is for decision whether the Article 6 reasonable time requirement is engaged at all in the circumstances of this case, and, if so, whether it has been breached. The threshold, in terms of length of the candidate period of delay is high, and is, in any event, closely fact dependent. In Dyer v. Watson Lord Bingham identified, at para. 52, a two stage fact-finding process: “In any case in which it is said that the reasonable time requirement … has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives ground for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive.” .[28]The first circumstance here of which the Court should take practical note is that Mr. Aaron’s only complaint to the Tribunal about delay and/or abuse was in respect of the period between 1987-1991 and October 1996 in instituting disciplinary proceedings in respect of the first allegation in the counsel’s fees matter of non or late payment of fees. He did not suggest that that delay had prejudiced a fair hearing on the other matters. The nearest that his present case on delay gets to engaging Article 6 is in respect of the allegations made in October 1998 and February 1999 respectively of failure to reply to correspondence and of misleading the Tribunal in relation to the counsel’s fees matter. Whilst the period those allegations took to reach determination by the Tribunal in July 2002 – between three and a half and four years – is longer than is desirable in professional disciplinary cases of this sort, I do not consider that the delay reaches the high threshold in Article 6 delay cases of which Lord Bingham spoke in Dyer v. Watson. A significant distraction for both parties in the early part of that period was given over to resolving, by the judgment of Burton J. in May 2000, the procedural status of the non payment of fees allegation, on which the other two allegations in the counsel’s fees matter in part turned. In addition, some four and half months towards the end of that period, from February to July 2002 is accounted for by Mr. Aaron’s unjustified resort to the judicial review claim – which he abandoned shortly afterwards - to force an adjournment of the February 2002 Tribunal hearing. That is so, whether or not that matter should be regarded as a disciplinary offence. Second, the misconduct the subject of those allegations was fully documented, the first in the correspondence from the OSS and the lack of response to it from Mr. Aaron, and the second in the transcript of the May 1998 Tribunal hearings.[29]As to the allegations in the conveyancing matter, the ten month period between the formal allegation in April 2001 and the Tribunal hearing in February 2002 cannot have amounted to a breach of Article 6. It is true that the period is much longer – some five and a half years - if the starting date (for Article 6 purposes) is taken as the date of the assignors’ solicitor’s letter to the OSS of 10th September 1996. But that “re-allocation” of the period of Article 6 delay referable to the conveyancing matters cannot, as a matter of logic, assist Mr. Aaron under this ground, one of accretion of Article 6 delays, either in giving rise to them or by being aggravated by them in respect of the other allegations when made, namely the much shorter corresponding period of some five months (from September 2001 to February 2002) in respect of the O’Callaghan matter and the two months period from May to July 2002 in respect of the judicial review matter. If there is no Article 6 engagement or violation in respect of the earliest of the delays of which Mr. Engelman complained, and none relevant in respect of later matters, there is simply no factual basis for his “accretion” argument under that head. Even if there were, I would, for the reasons I have given, still not consider it right to grant relief in the form of substituting a stay of the proceedings for the Tribunal’s findings of disciplinary misconduct, since I can see no prejudice to Mr. Aaron under this head in the continuance of them to determination.[30]As to the alternative, common law basis, under which Mr. Engelman put his argument of general delay, the period of potentially relevant delay is wider than that under the reasonable time requirement in Article 6; it runs from the date of the alleged improper conduct to final determination of the matter. But, as I have said, there is still a strong common law tradition that, in order to secure a stay of the proceedings for delay amounting to abuse of process, it is necessary to show prejudice. And, but for his, now irrelevant, complaint before the Tribunal in respect of the non payment or delayed payment of counsel’s fees, Mr. Aaron has at no stage sought a stay of the Tribunal’s proceedings on the ground of prejudicial delay. He only raises the issue now as part of Mr. Engelman’s “accretion” argument.[31]The only questionable period of delay between the alleged improper conduct and the Law Society’s institution of disciplinary proceedings by making an allegation in respect of it is that from July/August 1988 to May 2001 in the conveyancing matter. Whilst I feel some unease, particularly on such serious allegations of professional misconduct, on the institution of proceedings so long after the event – 12 to 13 years, they were, as I have said, well documented. Moreover, Mr. Aaron had been able to give detailed evidence about them comparatively recently in November 2000 in the trial before Cresswell J. As I have said, he made no complaint about prejudicial delay when the matter was before the Tribunal, and he has not, as I mention again when I deal with his specific complaint about that matter (see paragraphs 51-57 below), established any before this Court. I should add that there is no evidential basis for a finding of overall prejudicial delay in respect of this or any of the other individual allegations under appeal, either in the length of the period between alleged misconduct and determination by the Tribunal or in any resultant prejudice to Mr. Aaron.[32]Accordingly, I would reject this ground of appeal. 2). Bias – judicial review matter[33]Mr. Engelman put at the centre of his argument on this ground the OSS’s characterisation of its allegations of Mr. Aaron’s non-disclosure in his application on 21st February 2002 to Silber J., as a dishonest device to secure the adjournment that the Tribunal had refused. His complaint was one of apparent bias of the Tribunal because of the close involvement of its members in the circumstances giving rise to that enforced adjournment and resultant allegations of non-disclosure. He submitted that the Tribunal, as constituted, should not have dealt with these allegations, tantamount to criminal offences and requiring the criminal standard of proof, since, adopting the test of the Court of Appeal in In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700, at paras. 83-85, the circumstances looked at objectively would have given rise to a legitimate fear that the Tribunal might not have been impartial. He relied also on the way in which the European Court of Justice articulated the same principle in Demicola v. Malta (1991) 14 EHRR 47, at paras. 40-42, namely whether the Tribunal presented “an appearance of independence”.[34]Mr. Treverton Jones submitted: 1) that, as Mr. Aaron had not sought to challenge by way of judicial review the interlocutory direction of the Tribunal of 6th June 2002 that the “original” Tribunal should deal with these allegations, it was not appropriate for him to seek, as he had done, to re-open the matter before the Tribunal on 8th July 2002; 2) that there had been no basis for the original Tribunal on the latter date to depart from that interlocutory decision; and 3) that the original Tribunal correctly decided that it need not recuse itself on the ground of bias since courts and tribunals frequently sit in judgment on matters in which they have been closely involved.[35]I should make plain, as Mr. Engelman did, that there is no suggestion of bias or apparent bias in the conduct or decision of the Tribunal, as constituted on 6th June 2002, in directing that the judicial review matter should be heard by the original Tribunal. And, as to the merits of that interlocutory decision itself, there were, as Mr. Treverton Jones observed, practical advantages in the same Tribunal dealing with the judicial review matter as had been dealing with the other three matters. It was well acquainted with the background giving rise to the judicial review matter; the conduct fell to be considered both as a matter of culpability and potentially as to penalty, along with those matters; and it was desirable that one Tribunal should be able to form an overall view of such unbefitting conduct as it found proved.[36]The question for the Court is whether the independence of the Tribunal at the July 2002 hearing was compromised by the appearance of bias. That is the test of Lord Hope, with whom the other Law Lords agreed, in Porter v. Magill [2002] 2 WLR 37, HL, at para. 103 (approving with a minor modification the judgment of the Court given by Lord Phillips of Worth Matravers in the Medicaments case, at para. 85:
“… whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility … that the tribunal was biased. ”
[37]In my view, there was no reason for the Tribunal to recuse itself from hearing these allegations. As Mr. Treverton Jones observed, courts and tribunals frequently have to deal with matters in which they have been closely involved without any question of apparent bias arising.[38]One example is contempt in the face of the court. In that context, I do not consider Demicola v. Malta, given its special facts, to be of assistance. It was a case in which an editor had been accused of contempt of by Parliament, two of whose members, who were victims of his satirical writing, sat on the parliamentary hearing trying him. Although the European Court found, at paras. 40-43 of its judgment, a breach of Article 6 on both the subjective basis - personal interest - and the objective basis, the subjective breach was so egregious as to render unnecessary any recourse to the notion of apparent bias. It is, in any event, far removed from the responsibility of a normal court or tribunal in maintaining and, if necessary, policing the forensic propriety of those appearing before it. It is true that this is not a contempt case, since the allegations are not, in form at any rate, of misconduct towards the Tribunal, but to the Administrative Court. But the underlying complaint was one of misconduct towards the Tribunal in using a dishonest device to prevent it from continuing with at least one of the disciplinary matters before it.[39]Another example of permissible involvement by courts bearing on their subsequent conduct of cases may be the making adverse interlocutory rulings in matters on which they subsequently hold substantive hearings, a feature acknowledged in the Strasbourg jurisprudence; Hauschildt v. Denmark [1989] 12 EHRR 266, per the Court at paras. 49 and 50.[40]In my view, applying the Porter v. Magill test, there is nothing in the circumstances of the case, in particular, not in anything done or said by the Tribunal at the February or July 2002 hearings that would lead a fair-minded and informed observer to conclude that there was a real possibility that it was biased. As to the February 2002 hearing, when faced with the threat of Mr. Aaron and his counsel to leave, the Tribunal behaved with commendable restraint and fairness, and did not decide to adjourn all three matters before it until after Mr. Aaron had made good his threat. Mr. Engelman drew attention to certain remarks of the Chairman the time suggesting a measure of irritation at the enforced adjournment. But irritation with those appearing before them is, sadly, the common lot of most courts and tribunals from time to time, and is not of itself a basis, subjectively or objectively, for requiring them to recuse themselves on account of bias from further proceedings between the same parties.[41]At the adjourned hearing on 8th and 9th July 2002, the Tribunal demonstrated its fair treatment in its dismissal of seven of the fourteen allegations that Mr. Aaron faced, and also by its modification of its initial oral decision of deliberate deception of the Tribunal in the counsel’s fees matter. As to the two judicial review allegations, which were among the seven that the Tribunal found proved, I can see no basis for impugning their findings on this ground, though, as will appear in paragraphs 67-78 below, I would not uphold them on the evidence.[42]It is important to remember in claims of objective or apparent bias, that, although an accused’s fear of bias is important, it is not decisive. What is decisive is whether his fear can be objectively justified; see Hauschildt v. Denmark, at para.48 of the Court’s judgment. Nor is it the test which Mr. Engelman, in closing his submissions, described as “the long and short of the point”, that “[t]here is no good reason why this matter could not have been dealt with by a differently constituted Tribunal”. No doubt another Tribunal could have dealt with it, notwithstanding the general desirability of considering a number of allegations of professional misconduct together when its overall seriousness or lack of it goes both to whether there should be a finding of conduct unbefitting, and, if so, what, if any, penalty should be imposed. However, whether the matter could have been dealt with by another Tribunal, or whether this Tribunal, if differently constituted might, in the circumstances, have decided to recuse itself, is not the test. The test is whether in the circumstances a fair-minded observer would have considered that there was a real possibility of bias. I do not consider that the circumstances judged in that objective way were such as to require the Tribunal to recuse itself from hearing the judicial review matter along with the other matters.[43]Accordingly, I also reject this ground of appeal. 3). Misleading the Tribunal - the counsel’s fees matter[44]This allegation, which the Tribunal found proved, at paragraph 203 of its Findings, was that Mr. Aaron, in the course of cross-examination of a witness at the May 1998 Tribunal hearing considering the allegation of non or late payment of counsel’s fees, “deceived or alternatively misled” the Tribunal by asserting untruthfully that all of G’s fees had been paid. When the Chairman of the Tribunal announced its decision on this matter at the end of the hearing on 9th July 2002, he acknowledged, in an exchange with Mr. Aaron’s counsel, that there had been a “deliberate misleading” of the Tribunal. However, the Tribunal, in its later written findings, at paragraphs 192 and 203, acquitted him of deliberate deception. This is how it then described his conduct:
“192. … the allegation related to the complaint made about the Respondent by Mr. and Mrs. M. The Respondent had very clearly stated that he had paid all the fees due to Mr. G out of an ex gratia payment made by the Lord Chancellor’s Department which had been paid to the Respondent. It was clear that the Respondent had not made full payment, the Tribunal accept the Respondent’s explanation that he had believed that he had settled all outstanding fees at the material time.” “203. … the Respondent when asked the question by Mr. M (who at the time was in the witness box) whether or not the fees of Mr. G had been settled, replied that they had. That had not been right. There was still money owing to Mr. G. Whatever the circumstances it was wrong of the Respondent to assert a fact which he believed to be true without being absolutely sure that it was actually true. Again the Tribunal accept that the question of Mr. G’s fees was one of considerable muddle and as before accepts that it was the Respondent’s belief that the matter had been closed however the answer was inaccurate and did have the effect of misleading the Tribunal. The Tribunal is able to accept that the Respondent did not seek deliberately to mislead the Tribunal but the fault on his part lay in the fact that he had not carried out a full and detailed check so that he could be sure that the answer that he gave was wholly accurate. The Tribunal does consider that the Respondent’s behaviour with regard to [the] allegation … does amount to conduct unbefitting a solicitor.”
[45]It is common ground, given the “disparity” between the Tribunal’s pronouncements, that if any finding is to survive, it should only be the written one. However, Mr. Engelman submitted: first, that it was not appropriate for the Tribunal, in seeking to uphold the standards of the profession, to find Mr. Aaron guilty of conduct unbefitting a solicitor on the basis of an “inconsistent” decision; and second, that, if the Tribunal was entitled to find him “guilty” of non-deliberate deception, such deception, unless grossly negligent, could not amount to conduct unbefitting a solicitor – mere negligence or inadvertence would not do. He suggested, by reference to the discussion of the Court of Appeal in Ridehalgh v. Horsefield [1994] Ch. 205, at 232, as to the respective meanings of the words “improper”, “unreasonable” and “negligent” in the definition of wasted costs in section 51(7) of the Supreme Court Act 1981, that, if the Tribunal concluded that Mr. Aaron did not deliberately mislead the Tribunal, his conduct can only be described as negligent, not improper.[46]Mr. Treverton Jones advanced three arguments in reply to those complaints. First, he said that the Tribunal’s written findings should stand and prevail over its Chairman’s oral observations at the conclusion of the hearing on 9th July 2002. Second, he submitted that the Tribunal, after further consideration, had been entitled to modify its earlier view and find Mr. Aaron’s conduct to be non-deliberate deception. And third, he maintained that the Tribunal, on its finding of negligence or carelessness, was still entitled to regard it as a disciplinary offence. He maintained that a solicitor may mislead his regulatory professional body deliberately, recklessly or carelessly, and may merit a disciplinary sanction, albeit of differing severity, in any of such cases. Consistently with that submission, he conceded on behalf of the Law Society that Mr. Aaron’s professional misconduct as found by the Tribunal falls at the bottom end of the scale of seriousness and would not, on its own, merit the period of suspension imposed.[47]In my view, Mr. Treverton Jones is correct in the first and second of his three submissions.[48]As to the first, the Tribunal was entitled to modify its view of where in the scale of seriousness of deception Mr. Aaron’s conduct had fallen. Its written finding should prevail over the Chairman’s earlier oral statement of its view. And, considered on its own, as it should be, there is nothing inconsistent or lacking in clarity about the written finding, namely as one of negligent or careless deception.[49]As to the second, the Tribunal was entitled, as a matter of principle, to consider negligent, as distinct from deliberate deception as a disciplinary offence. The distinction of Mr. Engelman between “improper” and “negligent” conduct drawn from the wasted costs order regime (see e.g. Medcalf v. Mardell [2002] 3 WLR 172, HL, per Lord Hobhouse of Woodborough at 192) is not necessarily apt for a Tribunal’s determination of whether a solicitor’s conduct is unbefitting a solicitor. It depends on the circumstances. A deception in this context may amount to conduct unbefitting a solicitor even when it is not deliberate. There is clearly a descending scale of culpability in non-deliberate deception from that amounting to professional misconduct to that which does not. As stated in Cordery on Solicitors, 9th Edition, at paragraphs 1430-1440 and 1407, solicitors are not liable in conduct for simple mistakes or errors of judgment, but negligence may, depending on the circumstances amount to professional misconduct. It may be helpful for me to set in full the latter paragraph, which draws on passages from the judgments of Sir Thomas Bingham MR, as he then was, in Ridehalgh v. Horsefield [1994] Ch 205, CA, At 232D, and of Lord Denning MR in Re a Solicitor [1972] 2 All ER 811, at 815l:
“Professional misconduct is simply conduct which the Solicitors’ Disciplinary Tribunal and the Judges from time to time regard it to be. ’Conduct which would be regarded as improper according [to] the consensus of professional, including judicial, opinion could be fairly stigmatised as such whether it violated the letter of a professional code or not.’ Conduct does not have to be ‘regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’ to amount to professional misconduct as even negligence may be misconduct if it is sufficiently reprehensible or ‘inexcusable and such as to be regarded as deplorable by his fellows in the profession’. It will be noted that these quotations preserve the assessment of professional conduct, as to whether or not it amounts to professional misconduct, to the profession itself and to the judges.”
[50]As to the third, it is plain that the Tribunal was well aware that negligent conduct may, depending on the circumstances, amount to conduct unbefitting a solicitor, but that it does not necessarily do so. At paragraphs 217 and 218 of its Findings, it dismissed two other allegations against Mr. Aaron, observing that, though they demonstrated “a high degree of negligence”, “[s]tupid and negligent conduct of [the sort in question] did not necessarily amount to conduct unbefitting a solicitor”. However, despite the nature of the allegation in issue before the May 1998 Tribunal, namely of non-payment of counsel’s fees, I am uneasy about the Tribunal’s finding on the facts that Mr. Aaron’s negligent slip in wrongly asserting, without checking but honestly believing, when cross-examining a witness, that all Mr. G’s fees had been paid, was sufficiently high in the scale of negligence to amount to professional misconduct. In the circumstances, I consider that Mr. Treverton Jones rightly conceded that his conduct in this respect falls at the bottom of the scale of seriousness. But I also consider, in the circumstances in which it occurred, that it fell below the threshold of professional misconduct. At the very least, it was of such a borderline nature that I could not find that the Law Society had discharged the criminal burden of proof of showing that it amounted to conduct unbefitting a solicitor. Accordingly, I would quash the Tribunal’s finding of professional misconduct and allow Mr. Aaron’s appeal in this respect. 4). Delay – the conveyancing matter[51]Mr. Aaron complains about the lapse of time - some 14 years - from his conduct in the conveyancing matter in June and July 1988 giving rise to Cresswell J’s reference of it in December 2000 to the OSS and to the Tribunal’s hearing and decision in July 2002. He maintains that overall it amounted to unreasonable delay. As I have said, it was not a point that he took before the Tribunal.[52]In order to consider the potential or otherwise for prejudice to Mr. Aaron arising out of the undoubtedly long period between the alleged misconduct and the Tribunal’s consideration of it, I should set out the detail of what was alleged against him and the Tribunal’s findings. The matter consisted of two well documented allegations that the Tribunal found proved, namely:
“He, as a proposed assignee of an underlease of office premises, did exchange contracts direct with the proposed assignors, whom he knew to be represented by solicitors, without the knowledge of those solicitors. “In the same matter having inserted a date for completion in the contract … entered into occupation on or about that date without the knowledge of the proposed assignor’s solicitors without payment of the completion monies and at a time when no licence to assign to him had been granted by the lessors.”
[53]The Tribunal, at paragraphs 204 to 213 of its Findings, indicated the evidence before it on both sides and the detail and care with which it considered these allegations, and voiced its “considerable disquiet” at what it found the evidence showed:
“205. The Respondent, on the face of it to further his own ends but also in his view to further the wishes of the assignors, dealt with the matter in such a way that he simply cut out the input of the assignors’ solicitors. 206. There was no evidence before the Tribunal indicating that the assignors’ solicitors were aware of the Respondent’s intention before he carried it out. 207. The Tribunal accepts that a letter explaining what had happened had been written after the event. The Tribunal further accepts that the Respondent had not been able to make telephone contact with the solicitors on the material date. It was clear that those solicitors considered themselves not to be in a position to discuss exchange of contracts as a licence to assign had not been obtained. 208. The Respondent’s submission that the solicitors had been disinstructed on the day when they refused to undertake work on behalf of their client was in the Tribunal’s view an ex post facto attempt at explaining the Respondent’s extraordinary conduct. 209. It was accepted that the assignors wished the matter to proceed with all due expedition as did the Respondent. The Respondent is a solicitor and must have realised that there were constraints on his being able to enter possession and that he could not do so on the date he required, the initial legal work and formalities not having been completed. 210. A solicitor acting on his own behalf has an even higher duty to behave with the utmost propriety than he would if he were representing clients in a similar transaction. 211. The Respondent had deprived … [the assignors] of the protection that having their own solicitor would have afforded them. 212. By entering into possession of the premises without due completion of the formalities, the Respondent had put the assignors at substantial risk. 213. The Tribunal considers the Respondent’s behaviour to have been heavy handed, overbearing, contrary to his position as a solicitor and altogether wholly unacceptable. The Tribunal find [the] allegations ….both to have been substantiated. His conduct was unbefitting a solicitor.”
It is plain from those observations that the Tribunal, having considered the evidence and representations on both sides, did not regard this as a border-line case.[54]On the issue of delay, Mr. Engelman placed particular reliance on the letter from the assignors’ solicitor to the OSS of 10th September 1996 making formal complaint of his conduct in dealing directly with the assignors and in the absence of licence to assign. That letter - itself over eight years after the event - led to a further period of delay of over seven years in disposing of that matter, both of which periods, Mr. Engelman submitted, were individually and collectively unreasonable, and violated Article 6. He added that, even if and to the extent that they did not amount to an Article 6 delay, and fall to be considered solely at common law, Mr. Aaron had suffered prejudice; if the matter had been raised and considered earlier, he would have been able to give evidence more authoritatively on the issue whether the assignors’ solicitor had given him permission to deal directly with the assignors.[55]Mr. Treverton Jones submitted that the lapse of time was not such as could have prejudiced Mr. Aaron’s right to a fair hearing of the charges. The eight or 13 year period to institution of the proceedings (depending on whether the complaint of the assignors’ solicitor on 10th September 1996 or the formal allegation in April 2001 is the relevant date) could not engage Article 6. The corresponding seven years or 14 months period from institution of the proceedings to determination by the Tribunal did not in either case constitute an Article 6 violation. And, the 14 years period looked at as a whole, and to the extent that it was arguably abusive delay at common law, did not in fact prejudice Mr. Aaron. The subject matter of the allegations was well documented, and he had been able to give detailed evidence about it in the trial before Cresswell J. in late 2000 and again before the Tribunal itself.[56]In my view, there is no substance in this complaint, either under Article 6 or at common law. Notwithstanding the assignors’ solicitor’s letter to the OSS of 10th September 1996, the date of institution of the proceedings should be taken as the date of the formal allegation made by the OSS in April 2001. It should be remembered that the matter only became the subject of disciplinary proceedings as a result of Cresswell J’s reference of it to the OSS shortly after his attention had been drawn to it at the trial before him in late 2000. The trial had generated a considerable body of information and evidence not previously available to the OSS, amounting to some 5 lever arch files and a transcript of the four and half day High Court hearing. That left only a fourteen months period – or 10 months period if the delay caused by Mr. Aaron’s forced adjournment of the proceedings in February 2002 is discounted - from institution to determination of the proceedings. That clearly would not approach the threshold necessary to engage Article 6 identified by Lord Bingham in Dyer v. Watson (see paragraph 27 above).[57]As to the undoubtedly lengthy period of time of 13 years between the conveyancing matter and the institution of proceedings arising out of it, or 14 or so years overall, the well documented circumstances of the transaction itself and the detailed evidence by reference to such documentation that Mr. Aaron was able to give before Cresswell J. within two years before the Tribunal hearing and again before the Tribunal, demonstrate that the fairness of the hearing was not prejudiced in any way by the delay. As I have already indicated, the balanced and detailed way in which the Tribunal dealt with the matter is a testament to that. Moreover, this was not, on the evidence, in any sense a borderline case in which the passage of time and/or dimming of memories might just have made the difference between a finding of culpable and non-culpable behaviour. It was, on any showing, a serious breach of Mr. Aaron’s professional duties, as the Tribunal plainly considered. It follows, that, in my view, there was no possible basis upon which the Tribunal could have found, had it been asked to consider the issue of delay in this context, that the lapse of time from the events giving rise to the allegation to the hearing before it prejudiced or might have prejudiced the fairness of the hearing.[58]Accordingly, I would dismiss this ground of appeal. 5). Non-admission of evidence – the conveyancing matter[59]Associated with Mr. Aaron’s complaint about delay in relation to the conveyancing matter is his fifth complaint, namely about the refusal of the Tribunal to allow him to adduce the evidence of two solicitors, Messrs. Hammett and Marsh, as expert witnesses on the propriety in 1988 of his dealing direct with the proposed assignors of the lease without their solicitor’s consent. The Tribunal, which consisted of two practising solicitors and one lay member, clearly considered that it had sufficient collegiate experience as to the propriety of a solicitor’s behaviour in conveyancing matters such as this at the material time not to need expert assistance on the matter and, in particular, not such assistance in the form of venturing the very value judgment that it was itself required to make.[60]The circumstances of the Tribunal’s refusal to admit the evidence and its aftermath in the proceedings were that Mr. Treverton Jones, on behalf of the Law Society, had indicated to the Tribunal that if, contrary to his contention, the evidence was to be admitted, he did not require the two solicitors to attend for cross-examination. In the event, although the Tribunal did not formally admit their evidence, their written statements were read in full to it and relied upon by counsel for Mr. Aaron in his submissions to it.[61]Mr. Engelman submitted that, although the Tribunal is a specialist Tribunal, its principal expertise is in the professional conduct of solicitors, not in conveyancing practice. He maintained too that, although the Tribunal had accepted the statements of the two solicitors as part of the submissions on behalf of Mr. Aaron, it should have formally admitted them as evidence. He said that the content of the witness statements was relevant and important in that it went to the practice of the profession in conveyancing matters at the material time and should not have been “watered down” by treating it merely as part of counsel’s submissions.[62]Mr. Treverton Jones submitted that the Tribunal was entitled to take the course it did. It was itself sufficiently expert on the subject matter in issue, one of straightforward conveyancing practice and of the propriety of solicitors in its conduct. He added that, in any event, the Tribunal had had the benefit of the views of the two solicitors through Mr. Aaron’s counsel’s medium of reading and adopting them as part of his submissions. In short, such grievance, if any, that Mr. Aaron had was merely technical.[63]In my view, this complaint has no substance, either as a matter of principle or of practicality.[64]As to principle, the Tribunal is itself an expert body in matters going to the propriety of solicitors’ conduct of their various professional duties, not least in matters of straightforward conveyancing practice. It is for it to consider whether, on any particular issue, it would be assisted by expert evidence whether from within or outside the solicitors’ profession. Having read the two witness statements in question, I am of the view that the Tribunal was entitled to rule that it did not need the evidence of their authors, the thrust of which would have largely consisted of value judgements of the very sort that the Tribunal had to consider for itself; cf., in the context of professional negligence, Midland Bank v. Hett Stubbs & Kemp [1979] Ch 384, per Oliver J. at 402B-D. Even if, as Mr. Engleman maintained, the treatment of such evidence in professional negligence is not necessarily a good guide in cases of professional misconduct, the reality here is that the Tribunal, given its professional make-up and experience, was unlikely to gain anything of evidential value from such statements. In any event, the question of admissibility of the proposed evidence, whatever its status, was, as Mr. Treverton Jones submitted, barely even a matter of technicality. Rule 30(iii) of the 1994 Rules provides that “[a]t the discretion of the Tribunal the strict rules of evidence shall not apply at any hearing” before it.[65]As to practicality, the Tribunal heard the contents of the statements, which is all that it would have heard had it formally admitted them into evidence without the attendance of their authors for cross-examination. To suggest that it would have given them any more weight if they had been before this experienced body as formal evidence rather than part of counsel’s submissions is fanciful.[66]Accordingly, I would dismiss this ground of appeal. 6). The judicial review matter[67]The essence of the case against Mr. Aaron was that he had forced the adjournment of the proceedings before the Tribunal by obtaining without notice a stay from Silber J. on 21st February 2002 without informing him of three matters - the first and third of which were much the same: 1) that the disciplinary proceedings in relation to the O’Callaghan matter had commenced on 20th February 2002; 2) that there had been an application for and refusal of an adjournment of the hearing of the matter at the beginning of the Tribunal hearing on 20th February 2002; and 3) that, at the time of the application for the stay, the proceedings before the Tribunal were part heard and due to continue.[68]The Tribunal found, at paragraph 223 of its Findings, that Mr. Aaron had misled Silber J in two respects: first, in his failure to inform the Administrative Court that the O’Callaghan matter had been referred to the Tribunal; and, second, that at the time of the application to the Court the Tribunal was conducting a disciplinary hearing in respect of it. Mr. Aaron’s first and main point in this challenge to the Tribunal’s findings is that he disclosed both those matters to the Administrative Court. He relies on the following facts, not disputed before this Court and all of which were in evidence before the Tribunal.[69]On 20th February 2002, the first day of the Tribunal hearing, Mr. Aaron caused a legal executive of his firm to lodge with the Administrative Court an application, settled by counsel, for permission to claim judicial review in respect of the OSS’s reference of the O’Callaghan matter to the Tribunal, including a claim for a stay of execution of that reference. He also caused the legal executive to lodge with the application a request for its urgent consideration giving as the reason for the application that the “Law Society are at this moment seeking to enforce” the OSS Appeals Committee’s direction that he pay compensation to Mr. O’Callaghan.[70]On the following day, 21st February, Mr. Aaron caused his legal executive to fax a letter to the Administrative Court just after midday, which read as follows:
“Following your telephone call to us yesterday, and our reply call to you of this morning, we confirm:- a. At present the complaint by the interested party Mr. Kevin J O’Callaghan is being heard, against our Mr. Aaron, by the Solicitors’ Disciplinary Tribunal; b. Accordingly, we will be glad if you will place our papers before a Judge as soon as possible, so that he or she may consider urgently granting an Interim Order staying execution in respect of the reference to the Solicitors’ Disciplinary Tribunal. We did send you a copy of our proposed draft Order by fax yesterday. A further copy of the proposed draft is attached to this letter.”
The point is taken against him that the letter contained no request that it should be placed before the Judge or, in particular, that the content of paragraph a. should be drawn to his attention. But there was enclosed with it a further copy of the draft of the proposed order that it sought from him. It is not known whether the letter reached the Administrative Court before Silber J. dealt with the matter on the papers. The Tribunal, in its written findings, at paragraph 199, expressed the view that it was unlikely that the letter would have been placed before him. Mr. Treverton Jones maintained that that view is supported by enquiries made by the Law Society of the Administrative Court shortly before the start of the adjourned hearing before the Tribunal on 8th July 2002, which revealed that, although the Mr. Aaron had undoubtedly faxed the letter to the Court on that day, it did not have the letter on its file.[71]On the same day, 21st February, Silber J., having read the papers, directed that the matter be dealt with on oral application in early March and, in the meantime, stayed the OSS’s enforcement proceedings before the Tribunal of its direction that Mr. Aaron should pay compensation to Mr. O’Callaghan.[72]The Tribunal’s conclusions on this matter, at paragraphs 199, 223 and 224 of its Findings, were in the following terms:
“199. The Tribunal finds that some reference was made to the disciplinary proceedings in letters addressed to the Administrative Court. However, such letters would be unlikely to be placed before the judge considering the application and would be likely to be regarded only as administrative in nature. The learned judge would have before him the formal application in respect of which there was a clear duty on the Respondent to make full and frank disclosure of all relevant facts. It was incumbent on him to tell the judge that at the time the application was made proceedings before the Disciplinary Tribunal were in train and, indeed, the oral hearing had commenced. He did not make the appropriate full frank and proper disclosure required of him.” “223. … There was no doubt that it was incumbent upon the Respondent in making the ex parte application to make full and frank disclosure. He was therefore required to make it very clear indeed to the Court that his failure to comply with the Direction relating to Mr. O’C[allaghan] had been referred to his professional Disciplinary Tribunal and that at that time of making the application to the Court a disciplinary hearing was currently being heard by the Tribunal. It followed that the Order made by Mr. Justice Silber had been made when he had been deprived of knowledge of the full material facts surrounding the matter. There was no doubt that the omission of the material facts from the Respondent’s application served to mislead the Court and Mr. Justice Silber in particular. 224. The Tribunal can only repeat what it said before. Namely, that a solicitor acting on his own behalf with the utmost propriety and in this matter the Respondent had fallen very short of compliance with that duty. The Tribunal found … the allegation[s] to have been substantiated and find that there was serious conduct unbefitting a solicitor on the part of the Respondent.”
[73]Mr. Engelman submitted that, given the terms of the request for urgent consideration of the application and the letter of 21st February, the Tribunal had no evidential basis for its findings of non-disclosure to Silber J. In addition, he challenged the Tribunal’s assertion that it was unlikely that the letter of 21st February 2002 had been put before Silber J. He added that, even it was unlikely and the letter did not reach the Judge, that was irrelevant to the question whether Mr. Aaron, in causing it to be sent, had or had not made full and frank disclosure to the court.[74]Mr. Treverton Jones submitted that Silber J. could not conceivably have ordered the stay of the proceedings before the Tribunal in the O’Callaghan matter had he known the true position, namely that there were part-heard disciplinary proceedings on a number of matters of which the O’Callaghan matter was only part and that the Tribunal had rejected Mr. Aaron’s application to it to adjourn that O’Callaghan matter. He added that, at the very least, Silber J. would have wanted to know more before granting a stay, something that could have been speedily and easily arranged as the Tribunal’s venue was close to the Royal Courts of Justice.[75]In my view, and paying full regard to the heavy duty of full and frank disclosure on such applications to a High Court Judge, the evidence before the Tribunal simply did not warrant its conclusion that Mr. Aaron had not made full and frand disclosure because he had not included these matters in the application itself and/or because he had not ensured that the contents of his firm’s urgent request for consideration of the application and of its letter of 21st February were in fact placed before the Judge. In the case of urgent paper applications of this sort and associated communications relevant to their consideration by the Judge, an applicant must, and is entitled to, depend upon their transmission by court staff to the Judge. The two additional documents, by their very nature, should have alerted any reasonably experienced and diligent court officer responsible for the file of the need for their inclusion in the papers placed before the Judge, and Mr. Aaron and/or his legal executive responsible for communicating them to Administrative Court were entitled so to expect. And, even if the Tribunal was correct, which I doubt, in inferring that it was unlikely that the two documents would have been placed before the Judge, that probability (or possibility) could not be a logical basis for finding Mr. Aaron guilty of non-disclosure in the absence of some evidence that he caused his legal executive to disclose material to the Administrative Court with the intention and in the expectation that it would not in fact reach the Judge.[76]As to the adequacy of disclosure given by the application and the associated documents, I have mentioned that the first and third of the three allegations were essentially the same, namely that disciplinary proceedings in respect of the O’Callaghan matter were currently being heard by the Tribunal. The request for urgent consideration and para a. of the letter of 21st February could not have made that more plain.[77]As to the second allegation, namely the Tribunal’s refusal of the application for an adjournment, it is true that there is no express reference to that fact in any of the papers sent to the Administrative Court. But the application for and refusal of an adjournment did not occur until 20th February, the very day of the issue of the application, settled by counsel, for permission to claim judicial review. So that information would not have been available for disclosure in the application itself. True, it could have been mentioned in the 21st February letter. But the fact that such an application would have been made and had been rejected was by then implicit in the urgent application for permission to claim judicial review, coupled, as it was, with the information that the disciplinary proceedings were continuing and a request for a stay. If an adjournment had been granted, there would have been no need for a stay. I do not consider that the strict obligation to make full and frank disclosure in such an application means that failure by Mr. Aaron and/or his firm’s legal executive to state expressly in this respect what was obvious from and implicit in the application documents, considered together, could, in the circumstances, justify a finding of professional misconduct.[78]In any event, I doubt whether it would have made any difference to Silber J’s decision even if he had known, as distinct from having inferred, that there had been such a rejected application. Mr. Aaron, in the heat of the disciplinary proceedings under way at the time, and heavily dependent on his firm’s legal executive to deal with the urgent aspects of the application for judicial review, may be forgiven for not appreciating a need to spell out what would have been obvious from the very nature of the application and its two supporting documents.[79]Accordingly I would allow this ground of appeal and quash the Tribunal’s findings of conduct unbefitting in respect of the two allegations arising out of the judicial review matter.

Penalty

[80]The Tribunal, having looked, as it said, at Mr. Aaron’s behaviour “in the round” and having taken account of a previous Tribunal’s finding against him in 1998 of conduct unbefitting, suspended him from practice for two years. In doing so, it expressed the view that he was stubborn in maintaining his own corner, right or wrong, and insensitive to the effect of his professional misconduct on others. In paragraph 230 of its findings, it singled out for special mention, as a “serious allegation”, its finding of his guilt of non-deliberate misleading of the Tribunal – a finding which, as I have said, I would quash. In paragraph 231 of its Findings, the Tribunal continued:
“Bearing in mind that this was not the first appearance of the Respondent before the Tribunal, it gave very serious thought to the imposition of the ultimate sanction. The Tribunal concluded that the allegations substantiated against the Respondent were far too serious to be marked by the imposition of a financial penalty and concluded that in order to demonstrate to the Respondent that his behaviour would not be tolerated and further in order to protect the good reputation of the solicitors’ profession, it was right that the Respondent be suspended from practice for a period of two years. His behaviour would be regarded as disgraceful by like minded members of the public and the profession.”
[81]As, in my view, the overall culpability of Mr. Aaron is less than that considered by the Tribunal, the penalty of two years’ suspension needs reconsideration. On that view, the Court would have to consider the appropriate penalty in respect of four, not seven offences: one of unreasonable delay between 1994 and 1998 in replying to correspondence about non or late payment of counsel’s fees; the two offences in 1988 in the conveyancing matter; and his failure in 2001 to pay, as directed by the OSS, compensation to his former client, Mr. O’Callaghan, for inadequate professional service. In my view, these matters, when considered together, still reveal conduct well below that expected of a solicitor, both in the persistent disregard with which he treated his professional regulatory bodies and in the sharp practice and abuse of his position in dealing with third parties. It is true that the instances of misconduct are spread over a long period and that the conveyancing matter offences in particular are very old. Nevertheless, they cannot be disregarded as isolated incidents of professional misconduct or as ones for which there was any significant mitigation. Moreover, as the Tribunal observed, his appearance before the Tribunal on other matters in 1998 show that these were not the only instances in which the Tribunal has found him guilty of professional misconduct.[82]Having regard to all those matters, and to those in mitigation urged by Mr. Engelman in the course of and, in writing, after the hearing of this appeal, I am of the view that the overall culpability disclosed by the remaining four offences still requires to be marked by a period of suspension from practice. However, I consider that a period of one year’s suspension would suffice both as a punishment for his misconduct and as a mark of the interest of the public in demonstrating the high standards that it rightly expects of the solicitors’ profession.[83]Accordingly, I would allow Mr. Aaron’s appeal as to penalty to the extent of substituting one year’s suspension from practice for the period of two years imposed by the Tribunal.[84]Before leaving this matter, I should add that those responsible administratively and judicially for regulation of the solicitors’ profession should now have the reasonable time requirement of Article 6 in the forefront of their minds in any disciplinary process for which they are responsible. There may be good reasons of public policy, including efficiency, consistency and, indeed, fairness to an accused solicitor, for one Tribunal to deal with a number of allegations in the same proceeding. Even where the allegations are unrelated both in nature and in time, as in this case, it may be sensible and fair, particularly at the stage of sentence, to consider in one hearing the overall culpability of the offending solicitor. But, where there are significant intervals of time between the subject matters of various allegations and/or in the making of allegations, the regulatory bodies and the Tribunal should not wait to gather them together for one hearing in the interests of administrative and judicial efficiency and convenience, without also keeping an eye on their Article 6 obligation to bring each individual allegation to determination within a reasonable time. Disciplinary proceedings before the Solicitors’ Disciplinary Tribunal are analogous to criminal proceedings. The uncertainty that springs from and festers with unnecessary and unreasonable delay can, in itself, cause great injustice to practising solicitors, whose livelihood and professional reputations are at stake. Nor does such delay serve the solicitors’ profession as a whole. It is in their interest and that of the members of public whom they serve that their regulatory body and the Tribunal should be prompt, as well as otherwise effective, in the enforcement of the high standards of their profession.[85]I agree. _____________________

Cited in 4 later judgments