Virdi v The Law Society of England and Wales & Anor

A statutory tribunal has implied powers to regulate its procedure and make administrative arrangements incidental to its functions, unless legislation provides otherwise. Those powers may permit a legally qualified clerk to retire with the tribunal and assist with its written findings.

Apparent bias is assessed using all relevant circumstances ascertained by the court. The fair-minded and informed observer is not confined to publicly available information. That observer informs themselves about both sides and considers the full context before deciding whether there is a real possibility of bias.

After a disciplinary tribunal announces its decisions, it cannot reconsider them. It may nevertheless retain the power and duty to provide adequate written findings.

A solicitor appealed against the Divisional Court’s dismissal of his challenge to findings of serious professional misconduct and a three-year suspension imposed by the Solicitors Disciplinary Tribunal. The Divisional Court’s decision was reported as [2009] EWHC 918 (Admin).

The Tribunal’s clerk, who was employed by the Law Society and seconded to the Tribunal, retired with its members during their deliberations. She subsequently prepared an initial draft of their written findings. The decisions and reasons remained those of the Tribunal members.

The appeal concerned whether the clerk’s involvement exceeded the Tribunal’s powers and whether her relationship with the Law Society created apparent bias or infringed article 6 of the European Convention on Human Rights.

1. The appeal was dismissed unanimously. The Tribunal acted lawfully when its clerk retired with its members and assisted in preparing the written findings. Its procedure included its private consideration of the decision and the subsequent production of formal findings. Alternatively, a statutory tribunal has implied powers to make arrangements incidental to the discharge of its functions. The Solicitors Act 1974 later made that incidental power express, but it had previously existed by implication.
2. The decisive issue was fairness rather than vires. A tribunal’s invitation to its clerk to advise it or remind it of evidence ordinarily involves a liberty rather than the exercise of a power producing direct legal effects. The clerk’s participation could make proceedings unlawful if it caused unfairness, apparent bias or uncertainty about whether the tribunal had made the decision. None of those consequences arose here.
3. Once the Tribunal announced its decisions on misconduct and sanction, it was functus officio and could not reconsider or alter them. It nevertheless retained the power and duty to provide adequate written findings. The clerk’s later drafting assistance could not generally provide a ground of appeal against a decision already given and made effective. The evidence established that the findings and reasons were those of the Tribunal members.
4. The fair-minded and informed observer considers all circumstances relevant to the alleged bias which the court ascertains on investigation. The observer is not limited to information already in the public domain. Being fair-minded, the observer reserves judgment until both sides and the relevant context have been understood. Restricting the inquiry to information on a website or otherwise publicly available would be inconsistent with the test approved in Porter v Magill [2001] UKHL 67.
5. On the full facts, the Tribunal was independent and impartial and appeared to be so. The clerk’s Law Society employment was technical and concerned remuneration; she was seconded to the independent Tribunal and had no prosecutorial role. The Solicitors Regulation Authority possessed effective operational independence from the Law Society. There was therefore no real possibility of bias, inequality of arms or breach of article 6.

1. Court of Appeal (Civil Division): By [2010] EWCA Civ 100, unanimously dismissed the appeal and affirmed the Divisional Court’s decision.
2. Divisional Court: By [2009] EWHC 918 (Admin), dismissed the solicitor’s appeal from the Tribunal. It held that the clerk’s participation was authorised by the Tribunal’s procedural power and created no apparent bias.
3. Solicitors Disciplinary Tribunal: Found the solicitor guilty of serious professional misconduct and suspended him from practice for three years.