Pine v Law Society

Article 6(1) does not confer a general right to publicly funded legal representation in civil disciplinary proceedings. Such assistance is required only in exceptional circumstances, where its absence makes the effective presentation of the case practically impossible or produces obvious unfairness.

The assessment is fact-sensitive. Relevant matters include the complexity of the case and procedure, the party’s ability and experience, the opportunities available to present a defence, and any procedural means of overcoming absence from the hearing. Serious professional consequences and emotional involvement do not themselves establish unfairness. A party who was unable to attend but could have sought an adjournment, submitted evidence or requested a rehearing may nevertheless have received a fair hearing.

A solicitor was struck off by the Solicitors’ Disciplinary Tribunal after ten allegations of conduct unbefitting a solicitor were proved at a hearing which he neither attended nor had legal representation. He said that intervention in his practice had left him unable to afford representation or the fare to London.

The Divisional Court dismissed his statutory appeal. The Court of Appeal granted permission to appeal on the question whether the absence of provision for legal advice or representation breached Article 6 of the European Convention on Human Rights.

The appeal raised three related issues: whether such disciplinary hearings were inherently unfair without publicly funded representation; whether the circumstances of this case made representation indispensable; and whether the solicitor’s inability to attend made the hearing unfair.

1. Appeal dismissed unanimously. The Vice-Chancellor delivered the judgment, with which Buxton and Arden LJJ agreed. The disciplinary proceedings, their prosecution by the Law Society and the Tribunal hearing complied with Article 6.

2. Article 6(1) did not create a general entitlement to free legal representation in civil proceedings. Applying Airey v Ireland [1979] 2 EHRR 305, X v United Kingdom (1984) 6 EHRR 136 and R v Legal Services Commission, ex parte Jarrett [2001] EWHC Admin 389, assistance was required only in exceptional circumstances. The question was whether withholding it made presentation of the case practically impossible or caused obvious unfairness. That assessment depended on the particular facts.

3. The court declined to determine the abstract submission that every potentially striking-off disciplinary hearing required free legal advice and representation. The Convention issue could be resolved by examining whether representation was required in this case. A fact-free ruling would be hypothetical and potentially misleading.

4. The absence of representation caused no unfairness. The procedure and allegations were detailed but not complex. The relevant facts were within the solicitor’s knowledge, and he was an experienced commercial litigator. He had ample time to identify any defence. The documentary evidence concerning the affidavit selected as the strongest example of unfairness was overwhelming, and neither the solicitor nor his former representatives had supplied an explanation. The gravity of the possible sanction and his emotional involvement did not alter that conclusion.

5. A party’s combined absence and lack of representation may, in some circumstances, deny effective access to a court. Here, however, the solicitor could have requested an adjournment under rule 9, asked to give evidence by affidavit or informally under rules 18 and 30, sought a hearing in Manchester, or requested a rehearing under rule 25. He did none of those things, and his final letter showed that he was content for the Tribunal to proceed. His absence therefore prevented neither the presentation of a defence nor a fair hearing.

6. The application to adduce further evidence was also dismissed. The appeal was dismissed with costs, subject to any application under section 11 of the Access to Justice Act 1999.

1. Court of Appeal (Civil Division): The appeal in Pine v Law Society [2001] EWCA Civ 1574 was dismissed unanimously. The court held that the disciplinary proceedings complied with Article 6.
2. High Court, Divisional Court: Lord Woolf of Barnes LCJ, Crane and Rafferty JJ dismissed the solicitor’s appeal under section 49 of the Solicitors Act 1974 and refused permission to appeal. No citation is stated.
3. Solicitors’ Disciplinary Tribunal: The Tribunal found all ten allegations substantiated, struck the solicitor off the Roll and ordered him to pay costs.