Neutral Citation Number: [2018] EWHC 2879 (Admin)
Case no. CO/1723/2018
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice

Date: Tuesday, 16 October 2018

Before:

MR JUSTICE HOLMAN

B E T W E E N :
- - - - - - - - - - - - - - - -

	FRANCISCO XAVIER RODRIGUEZ-PURCET	Appellant

-  and  -

		SOLICITORS REGULATION AUTHORITY	Respondent

- - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - -

A P P E A R A N C E S

THE APPELLANT appeared in person.
MR A. TABACHNIK QC (instructed by Russell-Cooke LLP) appeared on behalf of the respondent.
- - - - - - - - - - - - - - - -
J U D G M E N T (As approved by the judge)
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.

MR JUSTICE HOLMAN: 

1	This is a statutory appeal from a decision of the Solicitors Disciplinary Tribunal, reached on 21 March 2018 and recorded in their formal written judgment of 6 April 2018.

2	The appellant is Francisco Xavier Rodriguez-Purcet, who was the respondent to the proceedings before the tribunal.  He is not someone who was ever trained or qualified as a solicitor, but he was working at the material time from 2011 to 2013 for a firm of solicitors known as Tandem Law.  Evidently, although not qualified as a solicitor, he was the head of marketing and business development for that firm at that time.  

3	It was alleged that in that capacity, working for a firm of solicitors, the appellant had dishonestly arranged corrupt payments for his own benefit (Allegation 1); and that he had recklessly arranged for confidential client information to be passed to third parties so that the third parties could be cold-called about re-mortgaging services (Allegation 2).

4	As I understand it, the appellant made clear at a relatively early stage in the proceedings that he was willing to admit both Allegation 1 and Allegation 2 on the express basis that he had acted recklessly.  But, from first to last, he has always denied, in relation to Allegation 1, that he acted with dishonesty.  

5	The proceedings sought an order under section 43 of the Solicitors Act 1974 prohibiting the appellant from working in a solicitors’ practice.  In the upshot, the tribunal found both allegations proved, including finding expressly that the appellant had acted with dishonesty; and an order was duly made, pursuant to section 43 of the Solicitors Act 1974, that no solicitor shall employ or remunerate the appellant in connection with his practice as a solicitor.  There are certain other consequential orders which do not need to be spelled out for the purposes of this part of this judgment.

6	On the first day of the hearing, namely Tuesday, 20 March 2018, a solicitor acting on behalf of the appellant participated by telephone and made an application that the hearing should be adjourned.  The tribunal declined to adjourn it and proceeded to hear the substantive matter the following day, Wednesday, 21 March 2018, at a hearing at which the appellant was neither present nor represented.  

7	The appellant now seeks to appeal from the ultimate findings and order of the tribunal, but the sole ground of the appeal is, in effect, that the tribunal were wrong not to accede to the application for an adjournment.  In the skeleton argument of the appellant for this hearing, his grounds of appeal are further subdivided but, in essence, the appeal all stands or falls on the single question: were the tribunal wrong, on the facts and in the circumstances as they were, not to adjourn the hearing?

8	It is important to stress that any decision whether or not to adjourn proceedings, whether taken by a court or a tribunal, is essentially a case management decision and one which necessarily involves a large area of judgment and discretion.  On an appeal to this court against a decision not to adjourn proceedings, this court can only interfere if it is satisfied that the decision not to adjourn must properly be characterised as wrong.  It is not at all sufficient that the appellate court considers that it might not itself have reached the same decision if it was sitting and acting in the position of the tribunal.  A very large measure of discretion or, as they say in Strasbourg, margin of appreciation is, and must be, afforded to the first instance court or tribunal, especially, as in this case, when the tribunal is a specialist tribunal.  So I can, and will, only interfere if I am myself judicially satisfied that the decision of the tribunal not to adjourn the hearing was wrong in the sense that no tribunal properly directing itself could have done other than adjourn the hearing.

9	The hearing had been fixed for about seven months, since 23 August 2017.  The Solicitors Disciplinary Tribunal is a very busy one with a very great volume of work.  Arrangements had obviously been made for a panel of the tribunal to set aside three days for the hearing in March, from Tuesday, 20 to Thursday, 22 March 2018.  A great deal of preparatory work had obviously been done by the Solicitors Regulation Authority, who were the applicants, and by specialist solicitors instructed on their behalf.  Mr Andrew Tabachnik QC, who appeared before the tribunal and appears before me today, will obviously have been booked and briefed an appreciable time in advance.  So a great deal of arrangements and effort had been focused upon the hearing that week and, indeed, considerable expense incurred or committed.

10	In those circumstances, it is always deeply unsatisfactory, not to mention deeply frustrating, when there is a very late application for adjournment.  Nevertheless, sometimes very late applications do have to be made, particularly if they arise on medical grounds, and they have to be faced up to.

11	In the present case, the appellant had instructed a solicitor, John Hughes of John Hughes & Co. in Liverpool, to act for him in relation to this matter and these proceedings.  John Hughes had been corresponding for some months with Russell-Cooke LLP, the solicitors acting for the Solicitors Regulation Authority.  It is quite clear from the correspondence, which Mr Tabachnik took me to this morning, that over an appreciable time Mr Hughes had been striving to negotiate some agreed outcome on behalf of his client.  In effect, Mr Hughes was saying that his client would accept the making of an order under section 43, and would admit to the allegations made against him, provided that both allegations were based only upon his having acted recklessly and not dishonestly.  This is a theme to which Mr Hughes returned more than once in the correspondence.  

12	However, perfectly appropriately, the Solicitors Regulation Authority were not prepared to agree that, and Russell-Cooke made plain that they intended to proceed with the proceedings and seek to prove dishonesty.  But that is an important part of the background, and led Mr Tabachnik to suggest this morning that there had been “a degree of tactical manoeuvring” by and on behalf of the appellant to try to avoid a finding of dishonesty being made against him.  The suggestion is that it was only when that clearly failed that a new tactical approach of medical ill health began to surface in the correspondence.  The first reference to any ill health on the part of the appellant appears in a letter from John Hughes dated 15 February 2018, just over a month before the hearing, in which he said:

“I have seen the respondent today, whose health is poor and he is unable to go through and give me instructions on two bundles of documents disclosed by those who represent the SRA by letter of 6 February, received 9 February.”

	He continued a little further in the letter, saying:

“The respondent, as stated, is unwell.  He has asked me though to contact the SDT to see if they are prepared to consider, given his admissions and acceptance of the sanctions sought, that to have a hearing to declare him an unregulated individual dishonest is a proper use of SDT time and resources …”.

13	There is a further reference to ill health in a further letter from John Hughes, dated 26 February 2018, in which he said:

“My client has at this time only been able to give me limited instructions because of his state of health and I hope to speak to him later this week in respect of his state of health and the views of those who advise him medically on that health.  If medical evidence becomes available I will immediately forward it to the SDT.”

	Pausing there, that letter clearly indicates about three weeks before the hearing that there is a problem with the appellant’s health and appears to recognise the need for some medical evidence.

14	In a yet further letter, dated 5 March 2018, John Hughes wrote:

“I refer to previous correspondence and I write by way of update to my client’s medical condition.  I have spoken to him today and I understand he will have a medical opinion as to his capability to attend the forthcoming hearing.  He is at the time of this letter still unable to give me instructions in an effective manner and to deal with documents.”

	That was dated as relatively long before the hearing as 5 March and indicated that there would be “a medical opinion”.

15	In a further letter, dated 12 March 2018, John Hughes wrote:

“My client is dealing with matters I understand as expeditiously as his health allows.  As soon as I am in receipt of any written medical evidence that affects my client’s ability to participate in the forthcoming hearing, I will let the SDT know and then you.”

16	That evidence finally came on Friday, 16 March 2018, in the form of a medical report and a further letter from John Hughes which I am told was only received by the solicitors acting for the SRA at about 5.08 p.m. that day.  That was, in effect, the end of the working day, and there was only one intervening working day, namely the Monday, before the hearing itself.  In his letter of 16 March 2018 (quoting from the version which now appears at bundle Tab 12, page 141) Mr Hughes said:

“An application to postpone the hearing set for next week is also made in relation to the claimant’s [sic] inability to attend due to ill health, and in that regard please see the attached report which I have received today in support of that application.  I would respectfully refer the Tribunal to the section of Mr O’Donnell’s report headed ‘Concerns and recommendations’.  I would confirm that Mr Rodriguez-Purcet is unable to give me effective instructions.  He is unable to read the documents disclosed by the SRA’s representation and in my further respectful submission is therefore unable to defend himself properly nor give me instructions so to do.  In those circumstances I would seek a postponement of the hearing listed …”.

17	Despite the shortness of time, the manner in which the SRA, and/or the very diligent lawyers acting for them, reacted was to send the report of Mr O’Donnell to a consultant psychiatrist, Dr Andrew Mogg based at the Maudsley Hospital here in London.  Dr Mogg prepared a report dated 19 March 2018 which was by now the Monday.  I am not sure when that first came into the hands of the SRA or those acting for them, but I understand that it was first supplied to Mr Hughes (who remained in Liverpool) at 10.18am on the first  morning of the hearing itself, on Tuesday, 20 March 2018.

18	The appellant lives in Lancaster and, as I understand it, throughout the week of the hearing remained in Lancaster.  Mr Hughes is based and practises in Liverpool and he remained in Liverpool.  The tribunal themselves were based for this hearing in Central London, near St Paul’s Cathedral.  

19	On Tuesday, 20 March 2018 the tribunal agreed that they would adjourn until that afternoon in order to give to Mr Hughes an opportunity properly to consider the report of Dr Mogg and also to take any instructions that he may wish.  As a result, the hearing effectively commenced, I am told, at 1.30 p.m. on Tuesday, 20 March 2018.  During the course of that afternoon the tribunal heard submissions from Mr Hughes by telephone and from Mr Tabachnik, physically present before them.  Having heard submissions and argument, they broke off to deliberate.  They announced at about 5.15 p.m. that they refused to adjourn the hearing and that it would proceed the following morning, Wednesday 21 March 2018.

20	Mr Tabachnik had found out that there was an early train from Lancaster which would enable the appellant to be present at the hearing venue by about 11.00 a.m. the following morning.  The tribunal accordingly made clear that the proceedings would formally begin at the fixed time of 10.00 a.m. but that if they were informed at, or shortly after, 10.00 a.m. that the appellant was on his way by train, they would wait until he arrived.  He never did set out to travel to London that day.  There was accordingly no such message. The tribunal accordingly began the substantive hearing soon after 10.00 a.m. on Wednesday 21 March 2018.  The appellant was neither present nor represented.  In those circumstances, of course, they heard no oral evidence from him.  They concluded the whole hearing by the end of that day and announced that they would make an order under section 43 of the Act, which they duly did.

21	It is, I think, clear, not least from passages in the letters of Mr Hughes from which I have quoted, that there were two distinct limbs to his application for an adjournment.  The context of the whole application and, indeed, the limb in the forefront, was a submission based on the report of Mr O’Donnell that the appellant simply was not mentally fit enough to attend the hearing and to give any evidence in his own defence.  But there is also the discrete limb that, because of the appellant’s ill health he, Mr Hughes, had simply been unable to obtain any instructions from his client and, therefore, was unable to represent him on the substantive hearing, although he felt able to represent him to the extent of applying for the adjournment.  All this, however, is firmly rooted in the medical report from Mr O’Donnell to which I will now turn.

22	In his report dated 15 March 2018, Mr O’Donnell describes that he is a registered mental health nurse and an accredited cognitive behavioural therapist.  He states that he has been a practising clinician within mental health since 1998 and held a variety of positions within both the NHS and the private sector over this time.  His formal qualifications were all listed at the end of the report, although, quite frankly, a number of the acronyms mean nothing to me.  There is not, and cannot really be, any issue in this case as to the sufficiency of the qualifications of Mr O’Donnell to express an opinion about the mental health and wellbeing of this appellant.  

23	Mr O’Donnell then describes that the appellant has had a long history of mental ill health, having been diagnosed when he was aged 20 (he is now aged 46) as suffering from bi-polar disorder which, since then, has been “reasonably well maintained” on prescribed lithium and other treatments.  Mr O’Donnell then describes how the appellant underwent a period of therapy with him between April and August 2017, when it is implicit that his mood was less good and required treatment by way of therapy.  There the involvement with Mr O’Donnell appears to have ended until March 2018 when, Mr O’Donnell says, the appellant contacted him and had two “booster sessions” on 8 and 15 March 2018.  It is presumably following the second of those sessions, on 15 March, that Mr O’Donnell then wrote his report.

24	He sets out in his report the scores on certain “baseline psychometrics” which he describes.  He interprets one of the scores as indicating “moderately severe depression”, another as indicating “severe anxiety”, and a third as indicating “high stress rating”.  Mr O’Donnell continues:

“The psychometric scores listed above show that the client at present is suffering from both a severe anxiety and depression.  These two diagnoses are further compounded by stress which has resulted in the client experiencing symptoms which may be indicative of early warning signs of a potential relapse with his bi-polar disorder.”

	Mr O’Donnell then sets out, under a series of bullet points, symptoms reported to him by the client.  These are too lengthy for me to read out in full into this judgment, but they include “erratic fluctuations in his mood …”, “lack of ability to concentrate …”, “difficulties in getting to sleep …”, “sudden peaks in anger and irritability …”, “lack of perceived ability to cope …”.  
 
25	It is within that section of his report that Mr O’Donnell does include two phrases which may have considerably influenced the later report of Dr Mogg.  Mr O’Donnell said:

“…this will then have an impact on his working day …”.

	And:

			“… anger and irritability … towards colleagues and family.”

26	Mr O’Donnell’s report then has a heading “Concerns and recommendations”.  Within that he said:

“Firstly, the client has reported that he is having great difficulties in concentrating on reading, retaining and recalling information related to the case, which would mean that he would be unable to discuss and articulate past decisions and actions in fullest of terms, which could potentially lead to biased interpretations by others.  Secondly, the client has reported that he is unable to concentrate due to the presence of intrusive thoughts, rumination and racing thoughts …  This may again lead to the case against him being upheld on this basis rather than the facts or evidence. Thirdly, although I appreciate that for anyone hearing a highly stressful event, at present Mr Rodriguez appears to be showing soft signs which could be indicative of a relapse in his major mental health condition.  If this did occur, based on probability, historical behaviour patterns and evidence I would argue that the stress of the hearing would have been the main triggering factor.”

27	Mr O’Donnell then concluded with certain “recommendations”, namely that:

“The recommendations which I would make at present would be that the hearing be adjourned until (1) a full assessment can take place in relation to Mr Rodriguez’s mental health needs, (2) that his medication is reviewed to ensure that the levels within his system are at an effective therapeutic level, (3) that Mr Rodriguez remains in therapy so that we can bolster his stress management techniques, revisit his bi-polar management plan and reduce his secondary presentations of anxiety and depression.”

	It is to be noticed that within those “recommendations” Mr O’Donnell himself was clearly recommending that there should be “a full assessment … in relation to Mr Rodriguez’s mental health needs”.

28	Mr Tabachnik rather suggests that that indicates a weakness in the report of Mr O’Donnell in that it does not purport itself to be “a full assessment”.  To my mind, it could equally be regarded as a strength of the report of Mr O’Donnell that he does not assert that he is himself equipped to make, or is currently making, “a full assessment”, but is, rather, indicating that a full assessment requires to be made and that meantime the hearing ought to be adjourned until the results of that assessment are known.

29	That report was sent to Dr Mogg.  So far as I am aware, he did not have any other medical records or indeed any other information or material in relation to the mental health and wellbeing of the appellant than what is contained in the report of Mr O’Donnell.  He certainly did not examine the appellant.  Interestingly, at paragraph 5.2 of his report, Dr Mogg said:

“The report [viz Mr O’Donnell’s report] sets out Mr Rodriguez’s reported symptoms on its third page.  In my opinion these symptoms are commensurate with a bi-polar relapse.  The symptoms recorded, such as mood fluctuation, racing thoughts, poor concentration, sleep difficulties and irritability, are typical of a bi-polar relapse into a mixed affective state (where there are a mixture of rapid automations of depressive and hypomanic symptoms).  Most of these symptoms (bullet points 2, 3, 4, 5 and 7 on the report’s third page) can equally occur in people without bi-polar disorder who are facing a particularly stressful situation.  However, in my opinion the symptoms of the first bullet point (for example erratic fluctuations in mood, racing thoughts and irrational/illogical thinking styles) are more characteristic of bi-polar disorder (and specifically a mixed affective state) than a normal stress reaction.”

30	So, pausing there, there appears to be some agreement or consensus between Mr O’Donnell and Dr Mogg that the symptoms, albeit perhaps self-reported by the appellant, are “commensurate with” or “typical of” a bi-polar relapse, albeit that they can equally occur in people without bi-polar disorder who are facing a particularly stressful situation.  There is, however, no reason why the tribunal could have doubted that this particular person does have a long history of bi-polar disorder as clearly stated by Mr O’Donnell.

31	Dr Mogg continued:

“The current degree of Mr Rodriguez’s symptoms is not entirely clear. The report suggests his symptoms are not full-blown symptoms of bi-polar disorder … and goes on to imply that Mr Rodriguez was working at the time of the report …”.

	Reference is then made to the two phrases amongst the bullet points of Mr O’Donnell to which Mr Tabachnik drew my attention.  

32	Further on, at paragraph 5.6 of his report, Dr Mogg referred to the baseline psychometric tests that Mr O’Donnell had performed and opined that “they are not diagnostic tests”.  He also states that two of the tests should be scored out of slightly lower maximum scores than those cited by Mr O’Donnell.  He concludes:

“In my opinion the scores stated in the report would not be out of the ordinary for any individual who is highly stressed in the prospect of facing disciplinary proceedings.  The scores are not highly specific to diagnoses of anxiety disorder and depressive disorder when someone is faced with a stressful situation.”

	So at that point there is some divergence of professional view between Mr O’Donnell and Dr Mogg as to the correct use and interpretation of the psychometric tests which, as it seems to me, is not an area of dispute into which the tribunal, nor indeed I myself, are in the least equipped to enter without, as a minimum, hearing back what Mr O’Donnell might have to say.

33	Dr Mogg was then asked whether there were reasonable adjustments which the tribunal could implement, such as taking breaks during cross-examination, which would facilitate the appellant’s attendance.  He said at paragraph 5.7:

“If, as is suggested by the report, Mr Rodriguez has continued to be able to work, in my opinion any relapse of a bi-polar condition is not currently severe.  In my opinion adjustments may [I stress the word ‘may’] facilitate Mr Rodriguez’s attendance at the tribunal …”.

	He then suggests the taking of regular breaks during cross-examination and directing Mr Rodriguez to the relevant material to act as a memory prompt.

34	Pausing there, it is important to note and stress that the whole of the opinion of Dr Mogg as to reasonable adjustments is predicated on the proposition that Mr Rodriguez has continued to be able to work.  Dr Mogg concludes his report, at paragraph 5.8, by saying:

“If the respondent’s mental state has deteriorated in recent weeks, possibly as a result of increased stress as the impending tribunal has drawn closer, in my opinion it is plausible that the respondent was able to take earlier steps but is now unable to participate in the proceedings.  However, in my experience an individual has to be quite severely impaired to be unable to participate in proceedings, including instructing solicitors.  In my opinion this degree of impairment is unlikely to be the case if the respondent is still able to work as is implied in the report.”

35	Pausing there, one sees there that Dr Mogg expressly considers that “it is plausible” that the appellant is now unable to participate in the proceedings, but his view as to that is then much affected by the proposition that he “is still able to work as is implied in the report”.  

36	So that is the state of the medical evidence that was placed before the tribunal on that Tuesday.  After hearing argument, they rejected the application for an adjournment and the chairman gave an ex tempore oral ruling on the day.  I have been shown a transcript of that ruling.  It does clearly begin with the words:

“This is an ex tempore judgment … Anything that goes into the written judgment will take precedence or supersede the ex tempore judgment …”.

	In those circumstances, it seems to me only fair and respectful of the tribunal that I should consider only what they said in their later, considered, written reasons.

37	At paragraph 3, under a heading “Preliminary matters”, the tribunal adverted to the position of Mr Hughes.  They clearly state there:

“Mr Hughes explained that he had been instructed to act by the Respondent in 2017.  For several weeks the Respondent had been unable to provide him with instructions as regard the substantive matter.  Given the lack of instructions, he was unable to represent him at any substantive hearing, however as regards the preliminary applications it was professionally proper for him to represent the respondent’s interest.  As an officer of the Supreme Court, it was his duty to ensure that the respondent’s interests were protected.  His professional difficulty did not arise from his not being instructed, but from his inability to take instructions; he was able to make submissions as regards the preliminary applications.”

	So at that point there was clearly recognition and understanding by the tribunal of the position of Mr Hughes and his clear assertion that he had been unable to take instructions from his client and was accordingly unable to represent him at any substantive hearing that day or the next day.

38	The tribunal then set out at some length a precis of what Mr O’Donnell had said in his report and of the submissions of Mr Hughes.  They then set out what Dr Mogg had said in his report and summarised the submissions of Mr Tabachnik, including within them a citation of the very well-known passage in the judgment of Norris J at paragraph 36 of Mark Levy (Trustee in Bankruptcy of Ellis-Carr) v Ellis-Carr [2012] EWHC 63 (Ch).  That particular passage is very well known to me and I incorporate it by reference into this judgment also, without setting it out verbatim.  It is, however, before me as I speak these words.

39	The tribunal then give their reasons for refusing the adjournment at paragraphs 15 and 16 of their judgment.  Those paragraphs read as follows:

“15. The tribunal carefully considered the submissions made by the parties and their respective medical reports.  The tribunal determined that it was appropriate to rely on the report of Mr Mogg.  Whilst he had not seen the respondent, his report was a commentary on the findings of Mr O’Donnell and the process by which those findings had been reached.  The tribunal accepted the shortcomings in the reports in the report of Mr O’Donnell identified by Dr Mogg.  The tribunal noted that Mr O’Donnell’s report was highly caveated with lots of ‘mays’ and ‘could be’s’.  There had been no consideration by him of any measures that could be taken such as to enable the respondent to take part in the proceedings.  There was no prognosis of when it was anticipated that the respondent may be well enough to take part in any hearing, nor did the report state that the respondent lacked litigation capacity.  The tribunal accepted that Mr O’Donnell was mistaken in the ‘out of’ scores that he detailed in the report. The tribunal also accepted that the majority of the symptoms that the respondent was described as suffering from, were not specifically related to his condition and the psychometric scores were not out of the ordinary for a well person facing a stressful situation.

16.  The tribunal considered and applied the comments of Norris J, whose decision the tribunal was bound to take into account.  The tribunal found that with suitable adjustments, the respondent could take part in the proceedings and notwithstanding his medical condition, the respondent would have a fair trial.  The tribunal was an experienced and expert body, and was accustomed to dealing with matters where reasonable adjustments were required.  Given it determination that the respondent could have a fair hearing with reasonable adjustments to take account of his health, the tribunal refused the application to adjourn the substantive hearing.”

40	It seems to me that there are, in fact, two glaring omissions from that passage and reasoning. The first is that the tribunal clearly say:

“The tribunal determined that it was appropriate to rely on the report of Dr Mogg.”

	Maybe it was, but the report of Dr Mogg is itself very clearly predicated, in several places, as I have indicated, on an assumption he was making that the appellant was currently able to work and was working.  That is apparent both at the beginning of paragraph 5.7 of the report and again at the end of paragraph 5.8.  I perfectly accept that it was a reasonable assumption for Dr Mogg to make, having regard to the references in the report of Mr O’Donnell to “an impact on his working day” and to “colleagues”.  However, it is the fact that at the material time, and for at least a month prior to that date, the appellant had not been working and was not able to work. I have been told by Mr Tabachnik that Mr Hughes had told the tribunal that fact.  It seems to me, therefore, that a great deal of what Dr Mogg said was predicated on a justifiable but mistaken assumption of fact.  When the tribunal “determined that it was appropriate to rely on the report of Dr Mogg” they simply failed to address the point that that report itself was based on the assumption that he was working.  If there is fed into the report of Dr Mogg the true fact that the appellant was not working, then the balance and effect of the report of Dr Mogg is very different.

41	The second glaring omission is that although at paragraph 3, at the outset of their judgment, the tribunal had adverted to the point that Mr Hughes was making, that he had been unable to get instructions and was unable to represent his client, this aspect simply does not feature at all in the discussion and reasoning of the tribunal at paragraphs 15 and 16.

42	I regret to have to say that, although I pay great respect to the discretionary decision of an expert tribunal, I myself am absolutely clear that they reached a decision which, on the facts and information that was available to them that day, was unjust and is wrong.  They had medical evidence from a sufficiently qualified practitioner who had very recently examined the appellant.  That evidence was clearly describing a significantly worsening situation in his very long diagnosed mental ill health.  It clearly describes that his ability to participate properly in the hearing was impacted and impaired.  It clearly states that having to participate in the hearing might indeed trigger a relapse in his major mental health condition, and clearly advises and recommends that a proper full assessment should take place to establish reliably what the situation was.  I perfectly understand the pressures on a tribunal, who have themselves been booked for the hearing, to continue with it.  I perfectly understand that there is inevitable delay, expenditure and a knock-on effect on other cases if an adjournment is granted for medical reasons.  But we are all human beings.  We are all to a greater or lesser extent vulnerable to medical problems.  These can sometimes arise inconveniently before a hearing and have to be faced up to.  In my view, this was a decision that was unjust, and is wrong.  They should not have heard this case the following day.  They should not have put themselves in a situation where, very predictably, the appellant was going to be neither present nor represented.  This was particularly the case when the issue was one of dishonesty which, as Mr Tabachnik had himself submitted to them (see paragraph 18 of their later written judgment), was a serious matter.

43	That is my ruling on that issue.  Mr Tabachnik, however, now wishes to make submissions as to what the impact of that ruling is on the overall outcome of this appeal.

LATER

44	The short ex tempore judgment which I now give is in continuation of the judgment which I gave earlier this afternoon.  Following my decision and ruling that the tribunal were wrong not to grant an adjournment of the hearing last March, I now have to consider how to exercise my powers upon this statutory appeal.  The powers themselves are contained and described in Part 52.20 of the CPR.  That provides, at 52.20(2):

“The appeal court has power to –
(a) affirm, set aside or vary any order or judgment made or given by the lower court;
(b)  refer any claim or issue for determination by the lower court;
(c)  order a new trial or hearing …”.

	Clearly, under those provisions I have a considerable and wide-ranging discretion although, of course, it is one which I must exercise judicially.

45	The appellant urges that, having concluded that the tribunal were wrong not to grant an adjournment, I should now simply set aside the whole of their order and judgment and order a new hearing of this whole matter.  Mr Tabachnik submits that it is not necessary for me to do that and, accordingly, that I should not do that.

46	Earlier today Mr Tabachnik mentioned in passing some analogy with the position of the court when considering an application to set aside a judgment made in default of appearance or defence.  In those circumstances, even if it is demonstrated that there was a good reason or explanation for the default, the court may not set aside the resulting judgment if it considers that the inevitable, or likely, result of the proceedings, even if the judgment is set aside, is that a fresh judgment will ultimately be made in the same, or substantially the same, terms.

47	It does not seem to me, however, that that approach carries over by analogy into proceedings of this kind, which involve an appeal from a disciplinary tribunal which has made findings of dishonesty against a person.  So I do not apply any sort of analogy with proceedings to set aside a judgment in default.

48	Nevertheless, Mr Tabachnik submits that, on even a short consideration of some of the key documents in this case, the finding of dishonesty was inevitable, and will inevitably be found again, even if I do order a new hearing.  In support of that submission he has drawn my attention to certain invoices and also emails passing between the appellant and a man called Richard Harrington, who was operating a company called Legal Apps Limited.  A combination of the invoices and emails appears to indicate a share of profit made by Legal Apps Limited, from funds originally derived from Axiom, being paid onwards to each of the appellant and Mr Andrew Lindsay, who was a senior partner of the firm called Tandem by which the appellant was employed.  Mr Tabachnik submits that there simply can be no other explanation for these payments, half of which went into a private account of the appellant, than that they were “kick-backs” for corrupt activities.  Mr Tabachnik further draws my attention to some passages in the interviews held by investigators of the SRA with the appellant in July 2014, in which he seems to be unable to offer any explanation for the payments in question.  

49	So the essential submission of Mr Tabachnik is that it is so open and shut here that the appellant was acting dishonestly when he arranged to receive, and did receive, those payments, that the current finding of dishonesty was inevitable and a new hearing is little more than a waste of time and money.

50	The appellant, however, continues resolutely to deny that he acted in any way dishonestly.  That was his pleaded position in these proceedings in which he categorically denied any dishonestly.  Broadly, the account given in his pleading, now at bundle Tab 3, page 21, is that a company owned by him did provide services to which the payments related; that he was acting generally with the approval and authority of Mr Lindsay, by whom he was employed and who was the long-established solicitor and senior partner of the firm; and, accordingly, that he himself did not act dishonestly.

51	Any finding of dishonesty against a person, whether a professional person such as a qualified solicitor, or somebody acting in a semi-professional capacity as a senior employee of a firm of solicitors, is obviously a serious matter.  The judgment of the tribunal is publicly available on the website of the tribunal and will remain there for a very long time for anyone who is interested to do so to see and read.  I have already held that the tribunal were wrong not to grant an adjournment.  It is a very serious matter to reach a conclusion of dishonesty without affording to the person concerned a sufficient opportunity to explain and defend himself, however damning the documents, to which Mr Tabachnik refers, may seem at first blush.  

52	It seems to me that the appellant must now have the opportunity, which should not have been denied to him in March, properly to defend himself and give his own account of matters.  No doubt if a new hearing does take place he will be most vigorously cross-examined by Mr Tabachnik on the documents in question, and others.

53	Mr Tabachnik then has what he calls his “backstop” submission and argument.  This is based on some letters that Mr Hughes wrote in January and February of this year, in which, apparently acting on instructions and with the authority of the appellant, Mr Hughes suggested that this whole matter could be disposed of on the basis of admissions by the appellant that he had acted recklessly, and a consent by him to orders being made under section 43 of the 1974 Act.  Indeed, it is right to say that on Tuesday 20 March 2018, when Mr Hughes was valiantly seeking an adjournment, he made an alternative submission that the tribunal should exercise a discretion not to consider the question of dishonesty since, Mr Hughes said, his client had already offered in open correspondence to be subject to a section 43 order based on recklessness.  This submission is described by the tribunal at paragraph 17 of their judgment, but was roundly opposed by Mr Tabachnik, who submitted that there was no justification for withdrawing or staying the allegation of dishonesty.  

54	So Mr Tabachnik submits that there was an offer, if not an admission, made as long ago as January and effectively repeated by Mr Hughes on Tuesday 20 March, for this whole matter to be resolved on the basis of recklessness and the appellant consenting to a section 43 order being made against him.  Mr Tabachnik submits that as Allegation 2 is itself only based on recklessness,  I ought at least to leave the findings on Allegation 2 in place and a consequential section 43 order, and only remit for reconsideration the question of dishonesty in relation to Allegation 1.

55	The appellant, however, submits very strongly that when, as he agrees, Mr Hughes was putting forward in correspondence the suggestion that this case might be resolved on the basis of recklessness and consent to a section 43 order, that was all part of a suggested “deal”, in effect a form of plea-bargaining, in order to bring the proceedings to an early and economical end.  It was never accepted by the SRA, who remain resolutely determined to prove and establish dishonesty.  So, submits the appellant, all that Mr Hughes was doing was suggesting the terms of a possible consensual outcome, or “deal”.  Those terms were not accepted by the SRA, and accordingly anything that was offered remains unaccepted and of no consequence.

56	Insofar as Mr Hughes was saying to the tribunal, on Tuesday 20 March, that they should still proceed on that basis, the appellant says that as Mr Hughes had already said that for several weeks he had been unable to obtain any instructions from him, anything that Mr Hughes said in that regard was said without his authority and he should not be bound by it.

57	Of particular concern to the SRA is protection of the public.  The tribunal has no power under section 43 to make an interim order, nor, indeed, do I have any such power.  However, today the appellant has readily offered to give, and has given to me, solemn undertakings mirroring the language of the existing order made under section 43.  The effect of that is that until the conclusion of any new hearing he will in any event not be employed by, or in any way work with, or for, any firm of solicitors or other regulated body.  It is, in any event, his case that he has no intention to be further involved in the practice of the law at all. I accept those undertakings, which, provided they are not breached, will afford to the public exactly the same protection as the existing order.

58	In all those circumstances, and given my overall view that the tribunal were wrong not to adjourn this whole matter, it seems to me that the only correct and fair decision now is that I set aside the whole of the order and the judgment made on 21 March 2018, as expressed in the written judgment of 6 April 2018, and I order a new hearing.

CERTIFICATE

Opus 2 International Ltd. Hereby certifies that the above is an accurate and complete record of the judgment or part thereof.

Transcribed by Opus 2 International Ltd.
(Incorporating Beverley F. Nunnery & Co.)
Official Court Reporters and Audio Transcribers
5 New Street Square, London EC4A 3BF
Tel:  020 7831 5627     Fax:  020 7831 7737
admin@opus2.digital

This transcript is subject to Judge’s approval