Baker, R (on the application of) v Hossack

Witness summonses in disciplinary proceedings should be set aside where the proposed witnesses cannot give material or relevant evidence on the allegations being determined. The tribunal’s task is to decide whether the respondent acted unprofessionally or breached applicable rules. The motives or reasoning of persons who authorised a complaint are ordinarily irrelevant to that task, particularly where they were not involved in the underlying conduct and have no direct knowledge of it. A party cannot justify calling such witnesses merely by asserting that there are gaps in the opposing case. The position may be reconsidered if the allegations or evidence materially change.

The claimant, a local-government portfolio holder, and the defendant, a corporate director of social care, applied to set aside witness summonses issued by the defendant, a solicitor facing disciplinary proceedings before the Solicitors Disciplinary Tribunal. The summonses sought evidence about the applicants’ involvement in authorising complaints to the regulatory authorities. At the hearing, the applicants relied solely on the contention that neither could give material or relevant evidence to the disciplinary allegations. The central issue was whether their evidence concerning the reasons for making the complaints, and their involvement in authorising them, could assist the tribunal in determining the solicitor’s professional conduct.

1. The witness summonses were set aside. The applicants were not shown to have material or relevant evidence concerning the allegations against the solicitor.
2. The Solicitors Disciplinary Tribunal’s task was to determine whether the solicitor had acted unprofessionally or in breach of the applicable rules. The reasons why the councils decided to complain were not relevant to that determination.
3. The applicants had not been involved in the underlying litigation forming the subject matter of the complaints. Their knowledge of that litigation was derived from information supplied by others, so they could not give evidence about the truth of the allegations or the solicitor’s conduct.
4. The fact that the applicants had participated in, or been involved in authorising, the complaints did not make their evidence material. Motives and reasoning in the chain of authorisation would not assist the tribunal in resolving the factual allegations.
5. The assertion that there were gaps in the case did not justify issuing the summonses. Any such gaps would be to the solicitor’s advantage. The conclusion was based on the evidence and allegations as they then stood; a materially different case might produce a different result, although the court gave no encouragement to changing the allegations for that purpose.