Thompson, R (on the application of) v The Law Society

A fair hearing does not invariably require an oral hearing. An oral hearing is required only where a disputed fact central to the decision cannot fairly be resolved without oral evidence. Fairness depends on the circumstances and on the adequacy of the written process.

For European Convention on Human Rights article 6(1), the procedure must be assessed as a whole. The availability of review by a court with jurisdiction appropriate to the nature of the decision may secure compliance. A reprimand, a reference for disciplinary determination, and a preliminary decision to consider practising-certificate conditions do not themselves determine a solicitor’s civil right to practise. A compensation direction under Solicitors Act 1974 Schedule 1A has no legal effect unless enforced by the disciplinary tribunal, which must be able to review it fully.

The claimant solicitor sought judicial review of decisions of bodies within the Law Society’s Office for the Supervision of Solicitors concerning complaints by two former clients. The decisions included findings of inadequate professional services, compensation and costs directions, a referral to the Solicitors’ Disciplinary Tribunal, the vesting of a discretion concerning renewal of a practising certificate, and a reprimand.

He had made extensive written submissions. He did not request an oral hearing in the first complaint. In the second, the Adjudication Panel refused his request because the issues were not sufficiently complex and the written material was detailed. The Administrative Court refused relief. The Court of Appeal granted permission only on whether the absence of an oral hearing breached common-law fairness or article 6(1) of the European Convention on Human Rights.

1. The applications for judicial review were refused unanimously. Lord Justice Clarke gave the judgment, with which Lord Justice Jacob and Lord Justice Kennedy agreed.

2. At common law, the decision-maker must act fairly. Applying Smith v The Parole Board [2003] EWCA Civ 1269, an oral hearing is required where a disputed issue of fact is central to the assessment and cannot fairly be resolved without oral evidence. The claimant’s failure to request a hearing in the Rattigan matter was fatal. In both matters, the documentary evidence and written representations enabled the complaints to be fairly determined. The Anderson panel had applied the correct approach in refusing a hearing.

3. Article 6(1) required assessment of the whole process, including review and judicial review. The question was whether courts had jurisdiction sufficient for the nature of the decision. An oral hearing at first instance is not invariably necessary. On these facts, neither the lack of oral evidence nor the lack of cross-examination made the procedure unfair.

4. A reprimand or severe reprimand did not directly determine the claimant’s civil right to practise as a solicitor. Its possible effect on professional indemnity insurance did not alter that conclusion. Nor did the decision to vest a discretion under Solicitors Act 1974 section 12(1)(e), which merely permitted later consideration of certificate conditions and was subject to a public appeal. A reference to the Solicitors’ Disciplinary Tribunal likewise determined no civil right.

5. A direction to pay compensation under Schedule 1A did not itself have legal effect. Under paragraph 5(1), enforcement required a complaint to the Solicitors’ Disciplinary Tribunal. The court construed that tribunal as having full power to review the direction on law and fact, and rejected the contrary view expressed in FitzPatrick.

6. A costs determination under Schedule 1A could have immediate legal effect. Even assuming it determined a possession or civil right, article 6(1) was satisfied by the written process, reconsideration by the Adjudication Panel, and public judicial review. No central factual dispute required oral evidence.

• Court of Appeal (Civil Division): acting as a court of first instance on the permitted judicial-review ground, it refused both applications.
• Court of Appeal (Civil Division): Mantell and Buxton LJJ granted permission on the limited issue whether the absence of an oral hearing breached common-law fairness or article 6(1) of the European Convention on Human Rights.
• Administrative Court: Mackay J refused the Rattigan application as out of time and on the merits, and refused the Anderson application on the merits. No citation was stated.