Faniyi v Solicitors Regulation Authority [2012] EWHC 2965 (Admin)

[2012] EWHC 2965 (Admin)

Case No CO/13148/2010

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 26 October 2012

Before

LORD JUSTICE PITCHFORD AND MR JUSTICE FOSKETT

Between

Nathaniel Akindele FaniyiAppellant

Solicitors Regulation AuthorityRespondent

(Transcript of the Handed Down Judgment of

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Ivan Krolick (instructed by John & Co Solicitors) for Appellant

Michael McLaren QC (instructed by Russell Jones & Walker) for Respondent

Hearing Hearing dates: 12 October 2012

Judgment

Introduction and background

[1]The Appellant, Nathaniel Akindele Faniyi, is aged 62 and was admitted as a solicitor in 1997.

[2]For the purposes of the issues before the court all that it is necessary to state is that the Solicitors Regulation Authority (“the SRA”) had shown interest in the Appellant’s working arrangements in the firm of which he was senior partner during 2007. This culminated in certain allegations being formulated and advanced against him during 2009 that led to proceedings before the Solicitors Disciplinary Tribunal (“SDT”) in December 2010. In summary the allegations were that he provided misleading statements to prospective professional indemnity insurers in circumstances where he knew that such statements were incorrect and inaccurate, failed adequately to supervise fee earners, failed to provide client care letters and cost information to clients, failed to deliver clients’ papers promptly on termination of the retainer, misled certain clients, the Legal Complaints Service and the SRA and failed to comply with the Law Society’s Guidance on Property Fraud. These were reflected in nine separate allegations.

[3]The hearing at which these allegations were due to be considered was listed on Thursday, 2 December 2010. The procedure concerning such a hearing generally is governed by the Solicitors (Disciplinary Proceedings) Rules 2007 (hereafter “the Rules”). The Appellant did not appear and in circumstances to which I will refer shortly, the SDT proceeded to hear the case against him. The evidence advanced by the SRA was, of course, unchallenged by the Appellant or anyone on his behalf although the SDT had available, and indeed considered, a response to the first three allegations sent by him to the SRA dated 23 February 2009 and saw other explanations given by the Appellant in various letters to the SRA during its investigations. (I should, perhaps, observe that when Mr Ivan Krolick, who appeared for the Appellant before us but had not acted for him previously, prepared his Skeleton Argument in November 2011, his understanding was that on 18 December 2009 the Appellant had lodged his Rule 11 statement in response to the allegations then made, together with a defence in accordance with Rule 4(2), and that on 18 May 2010 he had lodged a further Rule 11 statement in response to the supplementary statement of Mr. Marriott dated 7 May 2010 (making new allegations), setting out his case in detail and exhibiting documents. His Skeleton Argument was critical of the fact, as he thought it to be, that these documents had not been drawn to the original Tribunal’s attention. His instructions on the day before the hearing before us was that this was not so. Very properly, he withdrew the suggestions previously made as soon as he became aware of the true position, though the question remains as to how it was that he had not been disabused of his understanding for very nearly a year.)

[4]The Tribunal (which I will call “the original Tribunal”) found the allegations proved (albeit only one of the allegations of dishonesty being established, others being established on the basis of recklessness), struck the Appellant off the Roll and ordered him to pay the SRA’s costs of a little over £28,000.

[5]This was the second occasion on which the hearing had been listed. The case had been due to be heard for one day on Thursday, 10 June 2010, but on 7 June a letter to the SRA’s solicitors from the Appellant’s firm, Nathaniel & Co, saying that they were “assisting” the Appellant in his matter before the SDT, indicated that he was unwell and would not be able to attend that hearing. A medical certificate was provided to the SDT covering a period of 14 days from 7 June indicating that he was unfit to work and to attend court because of “stress and chest pains under investigation”. At that stage there was no suggestion that a hearing lasting longer than one day would be required.

[6]It was what happened in the period thereafter and prior to the hearing fixed for 2 December that lies at the heart of the first issue before the court. I will return to those events below.

[7]On Monday, 6 December, and thus effectively one working day after the hearing on 2 December to which I have referred, the Appellant issued an application pursuant to Rule 19 of the Solicitors (Disciplinary Proceedings) Rules 2007, addressed to the Tribunal, inviting it to set aside its earlier decision and to grant a re-hearing, the basis of the application being that the Appellant believed that the hearing set for 2 December had been vacated. The application was supported by a witness statement from the Appellant dated 6 December.

[8]A differently constituted SDT (which I will call “the Second Tribunal”) considered that application on 16 December, rejected it and ordered him to pay £7500 costs. In summary, the Second Tribunal concluded that, contrary to his case, the Appellant was aware prior to the hearing on 2 December that his case had been fixed for that date, but that he had deliberately not attended. In those circumstances, the tribunal concluded that he had not been denied a fair hearing and it would not be “just” to order a rehearing. Rule 19(3) provides as follows:

“If satisfied that it is just so to do, the Tribunal may grant the application upon such terms, including as to costs, as it thinks fit….”

[9]The Appellant challenges that decision. If his appeal on that issue succeeds, the whole matter will have to be considered afresh by the SDT. If that appeal does not succeed, the Appellant seeks in any event to challenge certain findings of the original Tribunal. Issues arise about whether he is entitled to do so, but I will return to those issues if they arise.

[10]The challenges that the Appellant seeks to make, whether of the original Tribunal’s decision or that of the Second Tribunal, are considered by this court by way of review under CPR r 52.11(1): see Salsbury v Law Society

[2009] 1 WLR 1286

The events between 10 June and 2 December 2010

[11]As already foreshadowed, it seems to me that the principal focus, initially at any rate, is upon the events that occurred in the crucial period between 10 June and 2 December 2010 and the conclusions about them at which the Second Tribunal arrived. If those conclusions were flawed it would, of course, undermine the decision of that tribunal. I will turn to the sequence of events, some parts of which are uncontroversial.

[12]I should preface this narrative by saying that the Appellant had practised from two offices in Kingsland Road, Dalston, London, E8, namely, numbers 422 and 464, but from 1 April 2007 it is said that he practised solely from 422. The SRA’s investigations into matters concerning the Appellant’s practice commenced in 2007 and investigators visited both offices. It should also be noted that at some stage in 2009 Mr. George Marriott, then a solicitor-advocate and partner in Gorvins Solicitors, was appointed to act for the SRA. The first correspondence involving Mr Marriott appears to have been in November 2009. In the early part of 2010 Mr Marriott moved to Russell Jones & Walker and continued acting for the SRA through that firm until his unexpected death on 12 November 2010. He was in correspondence and communication with the Appellant, as was the SDT, during this period. Mr Marriott’s letters were mostly, if not indeed always, addressed to the 464 address although the SDT seemed to use the 422 address.

[13]Apart from one letter to which I will refer later, the Appellant has not suggested that he did not receive the material correspondence during the crucial period identified in paragraph 11 above that was addressed to 464. It is to be observed nonetheless that in a letter from the Appellant to Mr Marriott of 18 November 2009 (some 2½ years after it is said that he ceased practice at 464) he asked that all correspondence be sent to 422. However, despite that Mr Marriott seems to have persisted in addressing correspondence to 464.

[14]For present purposes I need refer only to the correspondence that took place at or about the time of the 10 June and then thereafter except to note that, in preparation for the scheduled hearing on 10 June, the Appellant (who by then was to represent himself at the hearing having at one stage instructed Mr Geoffrey Williams QC to act for him) had on 18 May 2009 sent a letter to Mr Marriott containing the following two paragraphs:

“In accordance with Rule 13(7) of the Solicitors Disciplinary Proceedings) Rules 2007 I hereby give NOTICE that I do not agree to the admission in evidence of any of the documents exhibited to your Supplementary Statement of 6 May 2010 with page numbers 1 to 230. I require the authenticity of each and every document be proved at the hearing of this matter. Further take notice that I dispute each and every statement of fact set out in your Rule 5 statement dated 21 August 2009 and your Rule 7 Supplementary Statement of 6 May 2009.”

[15]In other words, he was putting in issue each aspect of the SRA’s case against him.

[16]On 7 June, in a letter that presumably crossed with the letter from his own firm about his health to which I have already referred in paragraph 5 above, Mr Marriott said that he had traced most of the original documents and would take them to the hearing, but invited the Appellant to say why he was challenging the authenticity of every document.

[17]Following the decision to adjourn the hearing of 10 June (the decision having been made on 9 June) Mr Marriott wrote to the Appellant’s firm at 464 Kingsland Road, on 10 June 2010 as follows:

“We acknowledge receipt of your letter of the 7th June. The Tribunal forwarded to us a copy of your letter to them to which was attached the sick note dated the 7th June 2010 which stated that Mr Faniyi was neither fit for work nor must he attend a Court appearance. Accordingly, and as you will be aware from the Tribunal, they decided to adjourn the case to another date. That date has not yet been fixed, and we would be grateful if you would confirm that Mr Faniyi’s condition is now improving so that we can apply for a fresh listing of this case. We hope that Mr Faniyi makes a speedy and good recovery.”

We hope that Mr Faniyi makes a speedy and good recovery.”

[18]On 28 June 2010 the SDT wrote to the Appellant at 422 Kingsland Road in the following terms:

“The above matter has been listed for an all day Substantive Hearing on Thursday, 2nd December 2010. All matters are listed for 10am and the order of hearing is decided on the day.”

[19]On the same day, 28 June 2010, the Appellant had written to the SDT as follows:

“Thank you for your letter dated 9th June 2010. The matter involves two complicated cases with several documents. The authenticity of each and every document in the two bundles had been challenged and the Prosecutor has volunteered to provide the originals of the documents for the benefit of the trial. In view of the nature and complexity of the documents and allegations, it is reckoned that the hearing of the trial is likely to last five days. I will be available from November 2010 to March 2011.”

I will be available from November 2010 to March 2011.”

[20]On 30 June the SDT wrote to Mr Marriott enclosing the letter from the Appellant saying this:

“Please find enclosed a copy of a letter that I received today from Mr Faniyi. The last paragraph states that this case is likely to last five days. Could you clarify the situation for me as I will have to move quite quickly on getting the matter moved if this is in fact the case?”

[21]On the same date the SDT wrote to the Appellant as follows:

“I acknowledge receipt of your letter dated the 28th June 2010. Unfortunately, a letter was sent to you dated the same day informing you that your matter is listed for a one day hearing on the 2nd December 2010. In light of this, I will contact Mr Marriott and I will be in contact with (sic) shortly.”

[22]On 6 July Mr Marriott wrote a letter to the SDT, copied to the Appellant but again addressed to 464 Kingsland Road, which was in the following terms:

“I thank you for your two letters of the 28th and 30th June advising me in the first that the hearing is now listed for the 2nd December 2010, and in the second advising me that the Respondent believes the case will take five days. I do not accept it will take five days. It may upon reflection take a little more than one day and therefore the Tribunal on a prudent basis may decide to list it for two days; however, even this, I believe could be avoided as the Respondent makes reference to the authenticity of each and every document, and it does make sense for him therefore to visit our offices by appointment where we can show him the original documents that we have. I therefore encourage the Respondent to make the suitable appointment. I have sent a copy of this letter to Mr Faniyi. I trust this assists.”

[23]I should emphasise that it was accepted at the hearing before the Second Tribunal that the Appellant had indeed received that letter even though it had been addressed to 464. This remains undisputed.

[24]On 8 July the SDT wrote to Mr Marriott saying this:

“I acknowledge receipt of your letter dated the 6th July 2010. I have, in fact, listed this matter for 1 day only, on the 2nd December 2010. The date was fixed so that the same Tribunal members could attend. I thank you for your assistance in this matter.”

I thank you for your assistance in this matter.”

[25]On 21 July Mr Marriott wrote to the Appellant at 464 Kingsland Road in the following terms: “I refer to my letter to the Tribunal dated the 6th July which was copied to you. Please would you make contact so as to convene a mutually convenient appointment at this office so as to inspect the original documentation. You will appreciate that the trial has only been listed for 1 day, and your indication that it would last rather longer was based upon, in the main, the fact that you had challenged the authenticity of each and every document. Please therefore contact this office with a view to scheduling a mutually convenient appointment”.

[26]No appointment was ever made and the Appellant’s case before the Second Tribunal was that he never received this letter. It is also to be observed that there was no further letter from the SDT to the Appellant after the letter of 30 June which had indicated that further contact would be made after Mr Marriott had been contacted. However, as I have said, he did receive Mr Marriott’s letter of 6 July whatever may have been the position concerning the letter of 21 July.

[27]There was no further contact between the SRA, the SDT and the Appellant until after 2 December.

[28]As I have indicated, sadly Mr Marriott died unexpectedly whilst on holiday in Nepal on 12 November 2010. Mr Robert Drury took over the file and on 25 November, a week before the hearing, instructed Mr Michael McLaren QC to prepare for the hearing on 2 December. Mr McLaren prepared an 18-page Outline Opening which was lodged with the SDT on the morning of the hearing on 2 December, and had not been sent to the Appellant. It will have taken a little while for Mr McLaren to familiarise himself with the facts and to prepare the document. He has confirmed that he was working on the Outline Opening until shortly before the hearing. Doubtless it would have been provided to the Appellant had he attended the hearing and he would have been afforded an opportunity to consider it - and even granted an adjournment had he been taken by surprise by its contents.

The SDT hearing on 2 December 2010

[29]At all events, the Appellant did not attend the hearing. There was obvious concern and, perhaps, surprise that he had not done so and the SDT invited attempts to be made to establish the position. Mr Drury telephoned the Appellant’s office and, after saying who he was and identifying the firm with which he was associated to the person answering the telephone, asked if he could speak to the Appellant. He was told that the Appellant was not in the office, could not be contacted (Mr Drury receiving a negative answer to the question “Can I get a message to him?”) and would not be in the office until the following Monday. That was, of course, Monday, 6 December.

[30]This was relayed to the Tribunal. They had already been told about the letters of 6 July and 21 July neither of which had been returned in the dead letter post. Mr Krolick now criticises the fact (though not Mr McLaren personally who was unaware of that fact) that the Tribunal’s attention was not drawn to the incorrect addressing of the letters. However, it is now known for certain that the letter of 6 July was received – and indeed, as I have said, that many other material letters sent to that address were also received. The Appellant has maintained that he did not receive the letter of 21 July but given the fact that, as is now known, this was the only letter between about November 2009 and the end of July 2010 that is said not to have been received, it might not have been difficult to draw the inference that, contrary to the Appellant’s account, it was indeed received. However, the Second Tribunal made no finding to that effect and I proceed on the basis that it was not received.

[31]Based on the information conveyed to the original Tribunal, it decided to proceed in the Appellant’s absence concluding that he was aware of the hearing date. If that Tribunal was wrong to do so, the remedy lay in seeking a re-hearing once the Appellant became aware that a decision had been made in his absence and within the time limits prescribed by the rules.

The application for a re-hearing on 16 December 2010

[32]As I have said, that application was made very quickly after 2 December and was heard by a different Tribunal on 16 December. The Appellant was represented by a solicitor, Mr da Rocha. I will deal with the way that hearing was conducted below, but I should deal with one point at the outset. Mr McLaren says, entirely accurately, that a number of the criticisms that Mr Krolick now seeks to make of what occurred on 2 December were not raised in the proceedings on 16 December. He argued in his Skeleton Argument that that precluded Mr Krolick from relying upon them now. Mr Krolick’s answer is that the application on 16 December was for a re-hearing and was not of itself an appeal. That seems to me to be right. Furthermore, for my part, I do not see non-reliance upon these matters at the hearing on 16 December as a reason for not permitting reliance upon them now if they can be shown to have occurred. The only evidence available on 16 December of what occurred on 2 December was contained in Mr Drury’s Attendance Note and what Mr McLaren could tell the Second Tribunal. There is absolutely no basis for suggesting that either source was inaccurate or misleading, but those sources could be no substitute for a full transcript of the hearing. There is now a 59-page transcript of the hearing, or at least a substantial part of the hearing, but that was not available for 16 December. I do not think it fair to criticise the Appellant or his solicitor for not taking points that might have been available to them if they had seen the transcript, or indeed to criticise Mr Krolick for seeking to take points based upon it now that he has seen it. Whether the points taken have any substance is a matter to which I will return if the need arises.

[33]One matter that I need to mention before turning to the hearing of 16 December is that two gentlemen were observed as watching the proceedings on 2 December and it seems that it occurred to the Tribunal and to Mr McLaren and Mr Drury that they might be connected with the Appellant. The transcript that the court now has demonstrates that at a reasonably early stage in the proceedings the chairman of that Tribunal did ask one of those gentlemen to identify himself. The gentleman said that he was just a “public observer”, as he put it, and had nothing to do with the trial. As will emerge in due course, it does seem that these gentlemen did have some connection with the community from which the Appellant came because they were, it was acknowledged subsequently (see paragraph 37 below and paragraph 113 of the Tribunal’s reasons), the source of the information to the Appellant of the result of the proceedings that had taken place that day.

[34]The basis for the Appellant’s application for a re-hearing was that he reasonably believed that the hearing of 2 December had been vacated, or would be vacated, because of the correspondence to which I have referred. He did not give evidence to that effect before the Second Tribunal and it seems that those proceedings continued with Mr da Rocha taking instructions if matters of contention or uncertainty arose. This, of course, had the result that he was not cross-examined about his account of relevant matters and no findings of fact were made on the basis of the Second Tribunal’s assessment of the Appellant as a witness. Mr Krolick also complains now that the contrary suggestions were never put to the Appellant so that he had an opportunity of dealing with them and that it was incumbent on the tribunal to give him that opportunity. On that issue, for my part it seems to me that a deliberate decision was made that the Appellant would not give evidence and I do not see any basis for complaining now about the consequences of that decision. The Appellant was himself a solicitor of some years experience and he must have appreciated the significance of ensuring that the Second Tribunal accepted his account of the preceding events and the truth of his assertion that he believed that the earlier hearing date had been vacated. Indeed it would have been open to him at any time during the hearing before the Second Tribunal, when it became plain that his account was being challenged, to invite that tribunal to hear his evidence. The transcript demonstrates that he intervened personally on a number of occasions during the hearing to deal with issues that were raised.

[35]He had submitted the witness statement of 6 December to which I have referred. In that statement he referred to the letter from the SDT of 30 June with its promise to contact him shortly. He said that he had heard nothing and, given the fact that he had raised the suggestion that five days would be needed for the hearing, he was “of the opinion that the hearing of 2 December 2010 had been vacated and a new date will be fixed which would include at least two days that the [SRA] had notified the SDT.” He also asserted that “around July 2010 Mr Marriot and I agreed that the matter should be listed for a minimum of two days in February 2011.”

[36]The first of those assertions was challenged before the Second Tribunal by Mr McLaren as unfounded on the basis if the correspondence to which I have referred and the second was challenged, also on the basis of the correspondence as it existed and upon the basis that there was no contemporaneous documentation in the late Mr Marriott’s file which evidenced any such agreement. It was also submitted on behalf of the SRA that this second assertion by the Appellant was inconsistent with the substance of a conversation he had on the telephone with Mr Drury on 8 December (and thus a few days after the hearing on 2 December) to which I will refer shortly when setting out the Second Tribunal’s conclusions.

[37]As I have already indicated (see paragraph 30 above), the Second Tribunal did not, as it might have done on the evidence, make a finding that the Appellant had, despite his denial, received the letter of 21 July. What it did conclude was that the rest of the correspondence at the time did not give the Appellant a reasonable basis for forming the opinion that the hearing on 2 December had been, or would be, vacated. I will set out the full reasoning of the Second Tribunal on this whole topic below, but I should indicate before doing so that it did emerge during this hearing (and not in any way prompted by anything said or done by or on behalf of the SRA) that the two gentlemen who had been present at the hearing on 2 December had a closer association with the Appellant than had been conceded by the one who was spoken to by the Chairman of the original Tribunal. The conclusions reached about that aspect of the background is revealed by the Tribunal’s reasoning which I set out in full, altering to “Appellant” the word “Respondent” used in that reasoning to refer to the Appellant in the present appeal:

“108. …The test to be applied to the issue of whether it was “just” to grant the application was the balance of probabilities test and the particular issue to consider was whether the [Appellant] had “deliberately absented himself” from the hearing … or “voluntarily chosen not to attend” …. 109. It was very clear to the Tribunal that the [Appellant] had been informed by the Tribunal office on 28 June 2010 of the hearing date of 2 December 2010. The [Appellant] had never been told by the Tribunal office, or by the Applicant or his office, that the hearing date had been adjourned, vacated or re-listed. The [Appellant] had sought to rely on a letter from the tribunal dated 30 June 2012. That letter neither said nor implied that the hearing on 2 December was being vacated. The [Appellant] could not reasonably have interpreted that letter as notification that the date had or would be changed. The [Appellant] had acknowledged that he had received the Applicant’s letter of 6 July 2012 which referred to a second day possibly being needed for the hearing, but only if the Applicant did not inspect the documents as offered by the Applicant. Again, this letter did not say or imply that the hearing date of 2 December would not be effective. 110. The [Appellant] had sought to rely in an alleged agreement with the Applicant, the late Mr Marriott, which was referred to in the [Appellant’s] statement of 6 December at paragraph 8 where the [Appellant] says, “Around July 2012, Mr Marriott and I agreed that the matter should be listed for a minimum of 2 days in February 2011.”

The Tribunal concluded that there was no such agreement. If there had been any agreement between the Applicant and [Appellant] to this effect, it would have been noted on the Applicant’s file. The Tribunal had heard that there was nothing on the Applicant’s file which indicated any such agreement nor was there anything in writing produced by the [Appellant] to corroborate the purported agreement. In any event, even if there had been an agreement between the parties about the matter being listed for 2 days in February 2011, that could not have operated automatically to vacate the 2 December hearing. 111. The Tribunal further noted and accepted the evidence of Mr Drury in his attendance note of a conversation with the [Appellant] on 8 December, after this application had been made, in which the [Appellant] had said that, “..., he had been in discussions with GM as he wanted 5 days for the hearing. NF (The [Appellant]) said that GM told him to apply SDT for the hearing he wanted”. The [Appellant’s] statement there was inconsistent with what the Tribunal had been told today. 112. The [Appellant] had made no contact with the Tribunal office, the SRA or the Applicant in the period from July 2010 about the hearing date or, indeed, arrangements to inspect the Applicant’s documents. The Tribunal noted that the [Appellant] had failed to take any steps to clarify the position if the correspondence had created in the [Appellant’s] mind any doubt about the listing of the matter. 113. The Tribunal took into account what it had been told by the [Appellant’s] solicitor about how the [Appellant] had learned the outcome of the hearing on 2 December. The [Appellant] had not said that the first indication he had of the outcome was receipt of the Order, as would usually be the case where a [Appellant] did not attend the hearing. The Tribunal found it unbelievable that two members of the [Appellant’s] close-knit community, whom he said he did not know, had by chance attended the Tribunal on 2 December and had reported to him the outcome of the hearing without there being some connection between the [Appellant] and those gentlemen. A reasonable inference to be drawn was that the [Appellant] had been aware that the hearing would go ahead and had arranged for someone to observe the proceedings. The Tribunal was a public forum but it was unusual for members of the public to attend without having some prior knowledge of or interest in a case. The [Appellant] had sought to explain his method of learning the outcome of the hearing as a coincidence, but that was too remote a possibility for the Tribunal to consider this proposition. 114. The Tribunal found that the [Appellant] had not been open and frank in his statement and submissions, between which there were some inconsistencies. The [Appellant] had not been honest about his alleged agreement with the Applicant about re-listing the hearing for 2 days in February 2011 and the attendance of two gentlemen as observers at the 2 December hearing. If the [Appellant] had believed that the 2 December date had been vacated he had had no reasonable basis for that belief. The Tribunal found, rather, that the [Appellant] had known about the hearing and that it had not been vacated, adjourned or re-listed. 115. The Tribunal found that the submissions of the Applicant, as set out in the outline submissions and noted above, were more credible than those of the [Appellant]. 116. In the light of all of the matters noted above, it was clear to the tribunal that the [Appellant] knew the hearing was due to take place on 2 December, having been fully informed of the date, but had deliberately absented himself. In these circumstances the [Appellant] had not been denied a fair hearing. The [Appellant] had not discharged the burden of proof and the Tribunal was not satisfied that it would be just to order a re-hearing. The application for a re-hearing was therefore dismissed.”

Was the decision to refuse a re-hearing wrong?

[38]To the extent that it is of relevance, I agree with Mr McLaren, and contrary to Mr Krolick’s submission, that the burden of establishing the justice of ordering a re-hearing does lie on the party seeking it, in particular where, as in this case, there was clearly credible evidence before the original Tribunal that the Appellant had deliberately chosen not to attend. However, at the end of the day, a tribunal must look at the material presented to it in the round to see where it leads and it would be surprising if the burden or standard of proof played a particularly significant part in the ultimate conclusion. For my part, I do not read the Second Tribunal’s reasoning as having been over-influenced by this feature. However, the evidence that the Appellant had known about the first hearing and had been running shy of the whole process, hoping to delay it for as long as possible, was, to my mind, overwhelming.

[39]In my judgment, the conclusion of the Second Tribunal is unassailable and, whilst this is an issue of review for the court, it would have been the conclusion to which I would have come given the material available. The tribunal plainly had a very good “feel” for the truth in this case and I can see no grounds for this court coming to a different conclusion.

[40]I had formed that view of the Second Tribunal’s decision before Mr McLaren drew our attention to a document (an application for insurance cover for the firm) disclosed by the Appellant very shortly before the hearing before this court, signed by him on 30 August 2010 (in other words, at least a month or so after the exchanges of correspondence in June and July), in which it was stated expressly that the SDT hearing into the allegations arising from the inspection in 2007 would be on 2 December 2010. Whilst not strictly relevant to this court’s appraisal of the Second Tribunal’s decision, it offers some comfort that the appraisal is correct.

Criticism’s of the original SDT hearing of 2 December 2010

[41]I will turn now to the challenges that Mr Krolick (who, of course, played no part in either of the hearings before the SDT) seeks to advance by way of appeal against the procedure adopted at, and some of the findings of, the original tribunal. For the reasons I have given above (see paragraph 32), I do not consider that, in principle, he is precluded from doing so.

[42]No witnesses were called at this hearing and Mr McLaren invited the Tribunal to consider the allegations against the Appellant on the basis of the documentary evidence, an invitation that the Tribunal accepted for reasons to which I will return below. Mr Krolick submits that this approach constituted a fundamental procedural irregularity that undermined the fairness of the hearing. It is necessary, in the first instance, to re-wind the chronology somewhat to put this submission into context.

[43]In the first place, as would have been apparent from paragraph 3 above, the allegations against the Appellant were made in two tranches: the original Rule 5(1) statement supporting allegations 1-6 was dated 21 August 2009 and the supplementary Rule 7 statement, supporting allegations 7-9, was dated 6 May 2010. Each statement was accompanied by an exhibit which contained copies of the documents on which the SRA relied.

[44]By letter dated 13 November 2009, Mr Marriott on behalf of the SRA gave the Appellant notice to admit the documents exhibited to the Rule 5 statement - in other words, to admit their authenticity. This letter was addressed to 464 Kingsland Road and, whilst at one stage (and indeed until the day before the hearing) Mr Krolick was under the impression that the Appellant denied receiving this letter, that position is no longer maintained.

[45]The context in which such notice is given is to be derived from Rule 13 of the Rules which is as follows: 13. —(1) Subject to the following provisions of this rule, the Civil Evidence Act 1968, and the Civil Evidence Act 1995 shall apply in relation to proceedings before the Tribunal in the same manner as they apply in relation to civil proceedings. (2) Any notice given under the provisions of the Acts mentioned in paragraph (1) shall be given no later than 21 days before the date fixed for the hearing of an application. (3) Any counter-notice shall be given no later than 10 days before the date fixed for the hearing. (4) No later than 28 days before the date fixed for the hearing of an application, the applicant may, by written notice, require any other party to the application to indicate to him, no later thanthe date on which the period of 14 days from the date of the giving of the notice expires, which of any facts set out in the Statement submitted in support of the application are in dispute. (5) Failure to reply to such a notice shall be material only in relation to the question of costs. (6) Any party to an application may, by written notice, not later than nine days before the date fixed for the hearing, request any other party to agree that any document may be admitted as evidence. (7) If any other party desires to challenge the authenticity of a document which is the subject of paragraph (6), he shall no later than the date on which the period of six days beginning with the date on which the notice was served, give notice that he does not agree to the admission of the document and that he requires that its authenticity be proved at the hearing. (8) If the recipient of a notice given under paragraph (6) does not give a notice in response within the period mentioned in paragraph (7), he shall be deemed to have admitted the document unless otherwise ordered by the Tribunal. (9) A party to an application may, pursuant to Section 46(11) of the Act, require the attendance at the hearing of any person or the production of any document relevant to the proceedings and any summons for that purpose shall be in the form of Form 5 in the Schedule to these Rules. (10) At the discretion of the Tribunal, the strict rules of evidence shall not apply at a hearing before the Tribunal.

[46]Sub-paragraphs (6)-(8) are relevant to a notice to admit the authenticity of a document. In essence if the recipient of the notice does not himself give notice that he does not agree to the admission of the document within six days of receiving the notice, he will be deemed to have admitted the document “unless otherwise ordered by the Tribunal”.

[47]In the normal scheme prescribed by the Rules, the SRA’s “application” to the Tribunal in respect of any allegation made against a solicitor is supported by the Rule 5 statement and the documents attached which is then served on the solicitor by the SDT before the notice to admit (whether facts or documents) is given by the SRA. In fact what happened in this case was that the application and supporting statement and documents were not served in accordance with Rule 10 because they were sent in the first instance to 464, Kingsland Road. It appears that the Appellant had not received them by the time he received Mr Marriott’s letter of 13 November. The Rule 5 statement and supporting documents were re-sent by the SDT to the correct address on 23 November and the Appellant received them (and confirmed in writing that he had done so) on 24 November. The notice to admit the documents (and indeed a notice to admit facts under Rule 13(4) also sent under a separate letter dated 13 November) were not re-sent to him after the Rule 5 statement and supporting material had been served properly upon him.

[48]Mr Krolick contends that this invalidates any reliance by the SRA at the substantive hearing upon the failure of the Appellant to serve a counter-notice within 6 days of the letter of 13 November because that letter was, in effect, an invalid notice to admit.

[49]I will refer to the way that the original Tribunal dealt with the overall issue of reliance upon documentation below, but the significance of Mr Krolick’s point, if it is valid, is that, given that Mr McLaren told the Tribunal (entirely accurately as a matter of fact) that there had been no counter-notice within 6 days of the letter of 13 November and, accordingly, the Tribunal could proceed on the basis that the authenticity of the documents was admitted, if there was no valid notice to admit the documents there could be no operative failure to serve a counter-notice.

[50]It is only necessary to state the proposition as I have stated it to see just how technical the argument is. For my part, I can discern nothing within the Rules that would operate to invalidate a notice to admit documents under Rule 13(6) simply because the Rule 5 statement and other material had not been served. I can, of course, see the argument that the 6-day period would not begin to run until the Rule 5 material has been served (and I think Mr McLaren effectively conceded that), but there is, in my view, no legitimate basis for suggesting that a “premature” notice to admit (whether of facts or documents) is invalid for all purposes.

[51]In the letter from the Appellant referred to in paragraph 14 above, he did purport to serve a counter-notice in relation to the facts set out in the Rule 5 statement dated 21 August 2009 and the Rule 7 statement of 6 May 2010. Mr McLaren drew the attention of the Tribunal to that letter and the Tribunal was thus made aware that the Appellant was disputing all the facts relied upon and that he did not admit the authenticity of any of the documents attached to the Rule 7 statement.

[52]That letter was a response to Mr Marriott’s letter of 17 May and was, therefore, in time to constitute a counter-notice in relation to both facts and documents so far as the Rule 7 statement was concerned.

[53]Within the Rules there is no specific requirement upon the recipient of a notice to admit that he or she should give any particulars of the issues in dispute or why the authenticity of a document is not admitted. However, anyone who simply issues a blanket counter-notice and shows no willingness to engage constructively with the process may well be the subject of the comment that he or she is simply being obstructive and is setting out to delay or frustrate that process. That is what Mr McLaren invited the original Tribunal to conclude when asking it to receive the evidence in the form of the Rule 5 and Rule 7 statements. He also drew attention to the fact that the Appellant had made no attempt to require the attendance of the maker of the two statements as he would be entitled to do under Rule 14(3). Sadly, of course, Mr Marriott would not have been available, but there is no reason to think that the Appellant would have known that to be so and the point being made was that he had not sought to require Mr Marriott’s attendance.

[54]The Tribunal agreed to receive the Rule 5 and Rule 7 statements as evidence and to treat the documents exhibited to each of them as authentic. In its formal record of its “Findings and Decision” dated 8 February 2011, the Tribunal recorded that it made the decision to do so having considered Rules 14(1) and (2). Those provisions, together with sub-paragraph 3 of rule 14, are as follows: 14. —(1) The Tribunal may in its discretion, in respect of a whole case or of any particular fact or facts, proceed and act upon evidence given by Statement. (2) Every Statement upon which any party proposes to rely shall be filed with the Clerk and served on all other parties to the application in question no later than 21 days before the date fixed for the hearing of the application together with a notice in the form of Form 6 in the Schedule to these Rules. (3) Any party on whom a notice has been served under paragraph (2) and who requires the attendance, at the hearing, of the witness in question shall, no later than 9 days before the date of the hearing require, in writing, the other party to produce the witness at the hearing ….

[55]Rule 14(1) gives a discretionary jurisdiction to a tribunal to proceed on the basis of evidence given by statement and I can see no difficulty with the Tribunal having placed reliance upon that jurisdiction in the circumstances of this case. Although it might be said (see paragraph 52 above) that the Appellant had issued a technically valid counter-notice within the relevant time limit in relation to the Rule 7 statement (though not in relation to the Rule 5 statement) and, to that extent, he was entitled to have the facts and documents proved strictly, the clear conclusion was that this was being done simply to hinder or frustrate the process. He did not attend the hearing (deliberately) and make submissions as to why it was necessary for various witnesses to be called and documents to be proved and, as I have said, did not engage constructively in the process at all. Where, of course, a party has issued a valid counter-notice and can demonstrate good reason for having done so, a tribunal would be slow to utilise the jurisdiction of Rule 14(1) to proceed without relevant witnesses being called or documents being evidenced properly, but in a situation such as that which was presented in this case I can see no principled basis for not invoking that jurisdiction.

[56]There is a wider discretionary jurisdiction to dispense with certain requirements of the Rules in Rule 21, the relevant parts of which are as follows: 21. —(1) Subject to the provisions of these Rules, the Tribunal may regulate its own procedure. (2) The Tribunal may dispense with any requirements of these Rules in respect of notices, Statements, witnesses, service or time in any case where it appears to the Tribunal to be just so to do ….

[57]That would be a provision upon which a tribunal could draw the power to override the requirements of the Rules where it is just (and, conversely, not unjust) in the circumstances to do so. That power was not apparently invoked in this case though it would be possible to see an argument for having done so. But, irrespective of that, I have no doubt that the original Tribunal was entirely justified in dispensing with the technical requirements of the Rules given its finding that the Appellant had not attended the hearing despite having notice that it was to take place on that day and its obvious acceptance of the proposition that he was merely trying to hinder, frustrate or delay the whole process.

[58]That deals with the decision of the Tribunal to permit reliance on the Rule 5 and Rule 7 statements as evidence and to treat the documents exhibited to each of them as authentic. The Tribunal went on to consider separately the issue of whether it was right to proceed in the Appellant’s absence. The power to do so is conferred by Rule 16(2) which is in the following terms:

“If the Tribunal is satisfied that notice of the hearing was served on the respondent in accordance with these Rules, the Tribunal shall have power to hear and determine an application notwithstanding that the Respondent fails to attend in person or is not represented at the hearing.”

[59]In considering that issue the Tribunal was invited by Mr McLaren to bear in mind that the first hearing had been adjourned on health grounds and, in effect, that the Appellant may be trying to thwart the proceedings. It decided to proceed and, for the reasons I have already given, I can see no possible grounds for criticising that decision.

[60]Deciding to proceed in this way did not, of course, absolve the Tribunal from its responsibility to consider the case advanced before it fairly. It is plain from the transcript that that is precisely what the Tribunal did. It examined the evidence with care, asked questions about it and was only prepared to find established that which the evidence did establish. As evidence of this, the Tribunal rejected some of the allegations of dishonesty, as I have already observed.

[61]I will turn now to deal with two matters raised by Mr Krolick concerning the substantive findings made against the Appellant and one further procedural matter.

[62]He attacks the finding under Allegation 1, namely, that the Appellant failed to disclose to prospective Professional Indemnity Insurers that in 2003 he had been reprimanded by the SDT and ordered to pay costs. His criticism is that no evidence was adduced from any of the Professional Indemnity Insurers concerning what they had actually received from the Appellant. He referred to the Appellant’s belief that the documents exhibited by the SRA were drafts and copies extracted from the files of his firm and that in the bundle of exhibits to the Rule 5 Statement the pages said to be the written decision of the SDT dated 4 March 2003 were left blank, with the result that the original Tribunal was misled concerning the decision made by the earlier tribunal.

[63]Mr McLaren says in response that there was no need to adduce evidence from Professional Indemnity insurers, since the documents spoke for themselves and that any suggestion that the documents relied upon (which were indeed taken from the firm’s files) were merely “drafts”, or that the “drafts” differed from the final versions, was implausible given that the documents relied upon before the SDT were signed and dated.

[64]It seems to me that, in the absence of any explanation of the documents from the Appellant, the Tribunal was entirely justified in making the finding it did.

[65]Mr Krolick did not press one or two other areas of criticism that had appeared in his Skeleton Argument, but he did pursue a submission he had made about Allegations 7 and 8 (based upon the Rule 7 statement) of(i) attempting to mislead his Regulator and

(ii) attempting to mislead a “Mr. and Mrs T” who were involved in a conveyancing transaction in which the Appellant had acted for one of the parties.

[66]Mr Krolick contended that these allegations involved the issue of whether a particular sale contract had been agreed by way of exchange of contracts on 5 July 2007. The allegation against the Appellant was that no contracts had been exchanged on that date, but that, in supplying documentation to the Regulator, and to the third parties, he had “fabricated his file and fabricated a contract in an attempt to mislead the SRA and third parties into believing that contracts were exchanged on 5th July 2007 when in fact this was not the case”. The case against him was advanced on the basis that he was acting dishonestly.

[67]The findings of the Tribunal, as expressed in its formal record of its “Findings and Decision” (see paragraph 54 above), were contained in paragraphs 38 and 39 which were as follows:

“38. The Tribunal considered allegation 7 and found the chronology provided by the Applicant most helpful. As to facts, the Tribunal was satisfied on the evidence, particularly the chronology of correspondence that contracts had not been exchanged with Mr OL on 5 July 2007. It was satisfied that this had been proved to the higher standard. The Tribunal was not, however, satisfied that the allegation in the Rule 7 statement that the Respondent had “fabricated his file and fabricated a contract in an attempt to mislead the SRA and third parties into believing that contracts were exchanged on 5 July 2007 when in fact this was not the case…” had been proved to the required higher standard. It was satisfied that contracts had not exchanged on that day and it was satisfied that the Respondent had taken a selective approach in submitting papers to the SRA in response to the Section 44B notice. It did not consider however that evidence of his intent linking these two facts was established. The Tribunal did however consider that in respect of his approach to the Regulator he had been reckless and that allegation 7 had been proved but that dishonestly had not. 39. In respect of allegation 8 the Tribunal was satisfied that the Respondent had attempted to mislead Mr & Mrs T and in so doing failed to act with integrity, contrary to Rule 1.02 of the SCC. It had made this finding to the higher standard on the same facts as in respect of allegation 7 and again foundthat he had acted recklessly but did not find that dishonesty had been proved. The Tribunal did not have evidence of the Respondent’s intentions.”

[68]Mr Krolick’s submission is that the nature of the allegation (fabricating documentation in order to mislead) disentitled the SDT from finding that the Appellant was reckless: either he fabricated documentation with a consequential finding of dishonesty or he did not in which case, Mr Krolick submits, the allegation should have been dismissed. He submits that the Tribunal was unable to find the SRA’s case on dishonesty proved to the requisite standard of proof, but found recklessness established on the basis of a lower standard of proof.

[69]I am unable to accept that the reasoning of the Tribunal shows that it misled itself in any way as to the standard of proof. All the Tribunal said was that it had not found dishonesty established to the high standard necessary. It did, however, find recklessness established - and, plainly, in my view, to that same standard. In one sense, it might be said that this was a benevolent finding, but nonetheless the Tribunal examined the evidence with care and reached a decision that was consistent with that evidence. I can see no grounds upon which this finding can be impugned.

[70]The final argument advanced by Mr Krolick is that the Tribunal acted unreasonably in not affording the Appellant an opportunity to make submissions by way of mitigation after it had made the adverse findings against him. He draws attention to Rule 16(3) and (4) which are as follows: (3) At the conclusion of the hearing, the Tribunal shall make a finding as to whether any or all of the allegations in the application have been substantiated whereupon a clerk shall inform the Tribunal whether in any previous disciplinary proceedings before the Tribunal allegations were found to have been substantiated against the Respondent. (4) The Respondent shall be entitled to make submissions by way of mitigation in respect of any sanction (including any order for costs) which the Tribunal may impose.

[71]Again, I am unable to accept that the Tribunal was either obliged to afford the Appellant such an opportunity in the circumstances with which it was confronted or acted unreasonably in not doing so. The Appellant chose to stay away. By doing so he must be taken to have appreciated that, if adverse findings were made against him, he would not be present to make submissions about his personal circumstances, the facts as found or other matters of mitigation. It is wholly inappropriate in circumstances such as these to criticise a tribunal for proceeding to deal with the whole case. A tribunal can, of course, adjourn to give such an opportunity if it considers it appropriate to do so, but it is not obliged to do so. The submission of Mr Krolick, if it succeeded, would mean that a solicitor who deliberately failed to attend a hearing before the SDT could readily obtain a re-hearing of that part of the proceedings relating to sanction. That, in my judgement, cannot possibly be right. Leveson J, as he then was, put the matter pithily in Elliott (R on the application of) v Solicitors Disciplinary Tribunal & another

[2004] EWHC 1176 (Admin)

when he said this:

“… Those who fail to attend lose the right to participate and explain, and they do so at their peril. As [was] conceded, if, without more, a solicitor deliberately absented himself it would not be feasible to argue that he was entitled to a re-hearing.”

[72]I respectfully agree with that approach. In my judgment, there is nothing in this point. No appeal against the penalty imposed has, in the event, been advanced.

[73]I would dismiss the appeal.

Pitchford LJ:

[74]I agree.