Awan v Law Society

A court or tribunal may refuse an adjournment sought on medical grounds unless the applicant proves a genuine inability to attend. A medical certificate does not suffice merely because it exists. Its contents must adequately support the asserted inability.

Article 6 does not ordinarily require public funding for representation in civil disciplinary proceedings. A right arises only exceptionally, where withholding legal aid makes the claim practically impossible or causes obvious unfairness.

Restrictions imposed on a solicitor’s practising certificate pending disciplinary proceedings protect the public and profession. They are regulatory measures, not punishment, and do not preclude a later disciplinary sanction for the same conduct.

Persistent evasion, prevarication, obstruction and breach of professional obligations may demonstrate a lack of integrity and fitness to practise. Striking off does not require a separately pleaded and proved allegation of dishonesty.

The Solicitors’ Disciplinary Tribunal found ten charges of conduct unbefitting a solicitor proved against the appellant and struck him from the Roll. The charges concerned failures to honour an undertaking, pay professional fees, comply with regulatory directions and a county court judgment, produce accounting records, and deliver accountants’ reports. The hearing proceeded in his absence after he failed to provide the medical report and prognosis requested in support of an adjournment.

The Administrative Court dismissed his appeal. He appealed with permission, alleging procedural unfairness, breach of Article 6 through the refusal of an adjournment and legal aid, double punishment arising from earlier restrictions on his practising certificate, errors concerning individual charges, and disproportionality of the sanction.

The central issues were whether the disciplinary proceedings were fair, whether the regulatory restrictions constituted prior punishment, and whether the findings and striking-off order could stand.

1. Appeal dismissed unanimously. The Master of the Rolls delivered the principal judgment. May LJ agreed and gave additional reasons concerning the adjournment; Carnwath LJ agreed with both judgments.

2. The Tribunal was entitled to refuse an adjournment and proceed in the solicitor’s absence. An applicant relying on ill health bears the burden of proving a genuine inability to attend. The Tribunal had repeatedly requested a medical report and prognosis. The certificate supplied was prepared for social security and statutory sick pay purposes, did not address fitness to attend, and contained no prognosis. Applying Teinaz v London Borough of Wandsworth [2002] IRLR 721, the evidence did not establish a need for an adjournment.

3. There was no infringement of Article 6. Legal aid in civil proceedings is required only exceptionally, where its absence makes assertion of a claim practically impossible or produces obvious unfairness. The allegations were straightforward and did not require legal representation. Moreover, the Administrative Court and the Court of Appeal examined the merits in detail, and the appellant was represented by Queen’s Counsel in the Court of Appeal. The proceedings viewed as a whole were fair.

4. Conditions placed on a practising certificate under sections 12 and 13(a) of the Solicitors Act 1974 were protective regulatory measures, not convictions or punishment. They did not prejudge the disciplinary proceedings. The later striking-off order therefore involved neither double punishment nor an abuse of process.

5. The evidence established a prolonged pattern of evasion, prevarication and obstruction concerning professional financial and regulatory obligations. The undertaking covered the transcriber’s proper charges. The belated objections to several debts were afterthoughts or incredible. Although one accounts charge contained incorrect dates, the underlying failure to produce accounts remained established and removing that charge would not materially alter the overall picture.

6. A separately pleaded and proved allegation of dishonesty was not necessary before striking off. The ten related charges over six years clearly alleged conduct demonstrating a lack of integrity, probity and trustworthiness and unfitness to remain a solicitor. A very strong case is required before a court interferes with the Tribunal’s discretion as to sanction. Whether the appeal was approached as a review or rehearing, striking off was justified.

7. The appeal was dismissed with costs. Permission to appeal was refused.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The striking-off order was upheld, costs were awarded, and permission to appeal was refused.
2. Administrative Court: On 12 December 2001, the court dismissed the solicitor’s appeal from the disciplinary tribunal.
3. Solicitors’ Disciplinary Tribunal: On 7 August 2001, the tribunal found all ten charges proved and struck the solicitor from the Roll.