Elliott, R (on the application of) v Solicitors Disciplanary Tribunal & Anor

For the purposes of Rule 25 of the Solicitors Disciplinary Proceedings Rules 1994, a respondent attends the hearing when present at the sitting at which the disciplinary application is commenced. The hearing does not become a separate hearing merely because an application to adjourn is dealt with first. A respondent who deliberately leaves after the adjournment application fails cannot rely on that absence to obtain a re-hearing.

Rule 25 is not an alternative to the statutory appeal. Alleged errors in the tribunal’s factual findings should ordinarily be challenged under section 49 of the Solicitors Act 1974. A re-hearing may be justified where the case was presented on allegations materially beyond those previously notified, but not merely because an absent respondent disputes the tribunal’s conclusions.

The claimant had been struck off the Roll after the Solicitors Disciplinary Tribunal determined disciplinary allegations in his absence. He attended on the first day of the substantive hearing and applied for an adjournment. When that application was refused, he deliberately left despite being invited to remain and assist, and the tribunal proceeded.

He later applied under Rule 25 of the Solicitors Disciplinary Proceedings Rules 1994 for a re-hearing, contending that he had neither attended nor been represented at the hearing. The tribunal rejected the application, holding that he had attended. The central issues were the meaning of “attended ... at the hearing” and whether the circumstances justified the discretionary remedy of a re-hearing.

1. Application dismissed. The claimant did not fall within Rule 25 of the Solicitors Disciplinary Proceedings Rules 1994.
2. The hearing listed for 3 December 2001 was the Law Society’s disciplinary application. When the tribunal sat and called on the case, that hearing had commenced. The fact that the claimant’s application to adjourn was heard first did not create a separate hearing. The two applications were heard consecutively during the same sitting.
3. The words “the hearing” in Rule 25 did not mean only the stage at which the substantive allegations were investigated. The claimant attended the sitting and knew that, if the adjournment application failed, the substantive hearing would proceed immediately. His subsequent departure did not satisfy the rule.
4. In any event, the claimant could not rely on his own deliberate and informed decision not to participate as a basis for the discretionary remedy of a re-hearing. Rule 25 was not intended to encourage a respondent to absent himself in the hope of obtaining a more convenient hearing.
5. The claimant’s complaints that the tribunal reached unjustified factual conclusions did not establish unfairness. Where the case had been presented consistently with the charges, summary, evidence and opening note, alleged errors in the tribunal’s conclusions were matters for an appeal under section 49 of the Solicitors Act 1974, not a re-hearing under Rule 25.
6. A different conclusion might arise if the case were presented on allegations materially beyond those previously notified. The court nevertheless found that the Law Society’s presentation had essentially followed the material served and rejected the allegation of over-prosecution.

This was a first-instance judicial review of the Solicitors Disciplinary Tribunal’s refusal of a Rule 25 re-hearing application. The court dismissed the claim and upheld the tribunal’s decision.