Barnett v Solicitors Regulation Authority (Rev 1)

An appeal from the Solicitors Disciplinary Tribunal under section 49 of the Solicitors Act 1974 proceeds by way of review, not rehearing. The High Court gives appropriate weight to the specialist tribunal’s assessment of evidence and will intervene only where its decision is plainly wrong or affected by serious procedural or other irregularity. A judgment should be read as a whole; an imperfect structure or an imbalanced presentation of background matters does not itself establish procedural unfairness. In adversarial disciplinary proceedings, the tribunal is not generally required to obtain expert evidence on the parties’ behalf. A costs order cannot ordinarily be reversed before the section 49 appeal has been heard.

The Solicitors Disciplinary Tribunal found that Richard Anthony Barnett had acted improperly, dishonestly and without integrity in connection with funding received by his firm from the Axiom Fund. He appealed under section 49 of the Solicitors Act 1974, alleging bias, inadequate facilities to prepare his case, restrictions on evidence and cross-examination, failure to obtain expert evidence, inadequate disclosure, an unbalanced judgment and plainly wrong factual conclusions.

Before the appeal, he also sought repayment of part of an interim costs payment so that he could instruct counsel, and an adjournment. The central issue was whether the Tribunal’s decision disclosed a plainly wrong conclusion or a serious procedural irregularity warranting intervention.

1. Preliminary applications. The court refused the application for repayment of £30,000 from the interim costs payment. The payment had been agreed by consent after the Tribunal’s reasoned judgment, the proposed challenge was substantially out of time, and section 49 did not confer a power to make the requested order before hearing the appeal. The adjournment application was also refused. Lack of funds to instruct counsel did not justify an adjournment where the parties had long known the hearing date and the appeal was properly estimated to take one day.

2. Approach under section 49. The appeal was by way of review rather than rehearing. The court adopted the approach summarised from Shaw v Logue [2015] EWHC 5 and Benyu v Solicitors Regulation Authority [2015] EWHC 4085: appropriate weight must be given to the specialist Tribunal’s first-hand assessment of the evidence, and intervention is justified if its decision was plainly wrong or if there was a serious procedural or other irregularity.

3. There was no actual or apparent bias. Applying the test stated in Porter v McGill [2002] 2 AC 357, a fair-minded and informed observer would not conclude that there was a real possibility of bias. The parties had been able to call and cross-examine witnesses, make detailed submissions and present their cases.

4. The Tribunal’s description of disputed matters in its factual background, and its failure to provide a corresponding section setting out Mr Barnett’s factual case, were regrettable. They did not amount to a serious procedural irregularity. The judgment had to be read as a whole, including its later analysis of each allegation. Its conclusions showed that the Tribunal had considered the competing evidence and arguments.

5. The Tribunal was not required to call expert evidence in adversarial proceedings. The issue concerning variation of the funding agreement was one the Tribunal could determine itself and, in any event, the alleged variation was accepted in closing submissions and was not substantially in dispute. The disclosure complaint also failed because the Tribunal’s earlier disclosure ruling had not been appealed or challenged.

6. The Tribunal’s findings on the disputed allegations, including that Mr Barnett was on notice of a serious risk of breach of duty or fraud by the investment manager and failed to make proper enquiries, were conclusions open to it on the evidence. Mere disagreement with those conclusions did not establish that they were plainly wrong.

7. The appeal was dismissed. No ground justified interference with the Tribunal’s decision, and there was no serious procedural irregularity.

• High Court (Administrative Court): The appeal under section 49 of the Solicitors Act 1974 was dismissed. The court declined to interfere with the Solicitors Disciplinary Tribunal’s decision.