Faniyi v Solicitors Regulation Authority

A disciplinary tribunal may proceed in a solicitor’s absence where it is satisfied that notice of the hearing was properly served. A party who deliberately fails to attend cannot generally require a rehearing merely because they lost the opportunity to challenge evidence or make submissions in mitigation. The tribunal may rely on statements and exhibited documents under the Solicitors (Disciplinary Proceedings) Rules 2007 where the party’s procedural objections are being used to hinder or delay the proceedings. A premature notice to admit is not invalid for all purposes, although the time for responding may not begin until the relevant material has been served.

The appellant, a solicitor, was struck off by the Solicitors Disciplinary Tribunal after it determined allegations of dishonesty, recklessness and professional misconduct in his absence. A differently constituted tribunal refused his application under rule 19 of the Solicitors (Disciplinary Proceedings) Rules 2007 for a rehearing, finding that he knew of the hearing date and had deliberately failed to attend.

He appealed against the refusal of a rehearing and challenged the original tribunal’s use of documentary evidence, its substantive findings and its failure to invite mitigation submissions. The Divisional Court considered the challenges by way of review under CPR r 52.11(1), applying the approach in Salsbury v Law Society [2009] 1 WLR 1286.

1. Appeal dismissed. The Second Tribunal’s refusal to order a rehearing was unassailable. The burden of establishing that a rehearing would be just lay on the applicant, although the tribunal had to assess the material in the round.

2. The correspondence and surrounding circumstances showed that the appellant knew that the hearing was listed for 2 December 2010 and had deliberately absented himself. He had no reasonable basis for believing that the hearing had been vacated or relisted. The court’s review jurisdiction did not justify substituting a different conclusion.

3. The original tribunal was entitled under rule 14(1) to proceed on statements and treat the exhibited documents as authentic. Although a valid counter-notice could require strict proof where there was good reason for it, the appellant had used blanket challenges without engaging constructively, had not required witnesses to attend and had deliberately failed to appear. Rule 21 also provided a wider power to dispense with procedural requirements where just.

4. A tribunal may hear and determine proceedings in the respondent’s absence under rule 16(2) where notice of the hearing was served. Proceeding in absence does not remove the duty to consider the case fairly; that duty was fulfilled here.

5. The tribunal was entitled to find recklessness although dishonesty was not proved. Both findings were reached on the same evidential standard, and the reasoning did not show any misunderstanding of the burden of proof.

6. A solicitor who deliberately fails to attend cannot complain that they were not invited to make mitigation submissions after adverse findings. As explained in Elliott (R on the application of) v Solicitors Disciplinary Tribunal & another [2004] EWHC 1176 (Admin), those who fail to attend lose the opportunity to participate and explain, at their peril.

• Solicitors Disciplinary Tribunal: The original Tribunal found the allegations proved, struck the appellant off the Roll and ordered costs. The Second Tribunal refused an application for a rehearing under rule 19 and ordered further costs.
• High Court (Administrative Court): The appeal against the Second Tribunal’s decision and the challenges to the original hearing were dismissed.