Roberts v Hook & Anor

An appeal under section 49 of the Solicitors Act 1974 is not subject to an implied permission requirement or a limited appellate jurisdiction. The High Court may make such order as it considers fit, applying the overriding objective and the requirements of justice. Nevertheless, an appeal from a disciplinary screening decision may properly be dismissed where the allegations are inadequately particularised, the available evidence cannot fairly establish the necessary dishonest state of mind, the delay makes a fair hearing impossible, and the proceedings amount to a re-run of an earlier complaint. These considerations may be assessed holistically. A tribunal’s failure to give reasons is undesirable and should ordinarily be remedied by brief reasons, but it does not require an appeal to succeed where the material before the High Court establishes that there is no case to answer.

Brian Roberts appealed under section 49 of the Solicitors Act 1974 against a determination of the Solicitors Disciplinary Tribunal promulgated on 30 January 2012. The Tribunal had dismissed, without reasons, his complaint against David John Hook and Jacqueline Ann Gross, solicitors and partners in a firm that had acted for Mr and Mrs Roberts in 1999.

The complaint alleged serious dishonesty concerning attendance notes and related professional misconduct. It was the second disciplinary complaint based substantially on the same allegations. An earlier complaint had also been dismissed by the Tribunal, and an appeal from that decision had been dismissed on paper by Calvert-Smith J. The central issues were the scope of the statutory appeal, the fairness of allowing the complaint to proceed, and whether the Tribunal had correctly concluded that there was no case to answer.

1. Statutory appeal. Section 49 conferred an apparently unlimited right of appeal to the High Court. Section 49(4), read with the overriding objective applicable through CPR Part 52, required the court to make the order that justice demanded, having regard to economy, speed and the proper use of court resources. The court could not impose an additional appellate limitation or permission filter not found in the statute, although the absence of such safeguards might properly be reconsidered by the rule-making authorities.
2. Reasons and procedure. It was undesirable for a disciplinary panel deciding that there was no case to answer to give no reasons. Brief reasons should ordinarily be provided, particularly where fairness or Article 6 may be engaged. The absence of reasons did not, however, require the High Court to remit the matter where the evidence and circumstances demonstrated that continuation would be unjust.
3. No case to answer. The allegations were too vague to permit a fair trial, given the serious professional consequences of a finding of dishonesty. The evidence did not presently provide a basis for establishing that either respondent possessed a dishonest state of mind. The court would not permit procedural devices, including notices relating to civil evidence or notices to admit facts, to be used as an inquisition designed to generate a case through cross-examination.
4. Delay and re-litigation. Allegations concerning events 14 or 15 years earlier were too stale for a full hearing absent exceptional justification. The second complaint was sufficiently connected with the first to constitute a re-run, even though the allegations were not identical. A litigant could not reopen a substantially resolved case to repair evidential or pleading deficiencies.
5. Taking the four factors together, the Tribunal had correctly concluded that there was no case to answer. The appeal was dismissed. The respondents were entitled to costs, subject to detailed assessment if not agreed, with an interim payment of £5,000. The claim was certified as totally without merit.

• Solicitors Disciplinary Tribunal: dismissed the complaint without reasons in an order promulgated on 30 January 2012, finding no case to answer.
• High Court (Administrative Court): dismissed the statutory appeal under section 49 of the Solicitors Act 1974. Costs were awarded subject to detailed assessment, with an interim payment order of £5,000, and the claim was certified as totally without merit.