David Anthony Hinkel v Erin Gheissari & Anor

In an appeal from a decision of the Solicitors Disciplinary Tribunal, the court must identify the true basis of the tribunal’s decision. An alternative issue expressly left unresolved and described as obiter dicta cannot undermine the decision. A finding that later allegations were materially the same as allegations previously refused certification may independently support revocation for fundamental mistake, without depending on res judicata. Under section 49 of the Solicitors Act 1974, an appeal from the Tribunal does not acquire a general right to oral renewal merely because the challenged order was made on the papers. A second appeal requires a real prospect of success and an important point of principle or practice, or another compelling reason.

Mr Hinkel sought permission for a second appeal against Henshaw J’s dismissal of his appeal under section 49 of the Solicitors Act 1974 from the Solicitors Disciplinary Tribunal’s decision revoking certification of allegations against the respondents. The 2023 Tribunal decision revoked certification because the 2022 certifying panel had not known that materially the same allegations had previously been refused certification. The Tribunal also observed that the allegations were res judicata, but expressly described those observations as obiter dicta.

The proposed appeal concerned whether an attempted appeal from an earlier order of Robin Knowles J was valid and pending, and whether that affected the Tribunal’s decision. The central issues were the statutory appeal procedure, the true basis of the Tribunal’s decision, and the second appeals test.

1. Permission refused. The proposed appeal on Ground 4 had no real prospect of success. In any event, it failed the second appeals test because it raised no important point of principle or practice and there was no other compelling reason for the Court of Appeal to hear it.
2. The appellant had sent documents purporting to challenge Robin Knowles J’s order, but no valid appellant’s notice had been issued. The Court of Appeal had later advised him to seek an oral hearing in the Administrative Court. That advice was incorrect.
3. The general rule in MD (Afghanistan) v SSHD [2012] EWCA Civ 194, [2012] 1 WLR 2422—that refusal on the papers normally permits oral renewal—did not apply. Sections 49 and 46(10)(c) of the Solicitors Act 1974 create a different statutory structure: an appeal from the Tribunal lies to the High Court without permission, and the court need not hear an appellant where the relevant order was made without hearing the applicant or complainant. It would be inconsistent with that structure to reintroduce a general oral-renewal right.
4. The Tribunal’s 2023 decision rested on fundamental mistake, not res judicata. The mistake was its ignorance that the later application substantially repeated the earlier allegations and that the earlier application had been investigated and refused certification. The Tribunal expressly said that its res judicata observations were unnecessary and obiter dicta. The finding of substantial identity was independently material to the fundamental-mistake decision.
5. Even if an appeal against Robin Knowles J’s order had been pending, the order would still have been final for res judicata purposes: Scott v Pilkington (1862) 2 B&S 11 and Huntly (Marchioness) v Gaskell [1905] 2 Ch 656 were cited on that point. No further action was directed on the unissued notices. The extended civil restraint order was not renewed. The appellant was ordered to pay the respondents’ costs on the standard basis, excluding the costs of opposing renewal of that order.

• Court of Appeal (Civil Division): Permission to bring a second appeal on Ground 4 was refused. The court held that no valid appeal against Robin Knowles J’s order had been issued or remained pending, and that the proposed appeal would fail in any event.
• High Court of Justice, King’s Bench Division, Administrative Court: Henshaw J dismissed Mr Hinkel’s appeal under section 49 of the Solicitors Act 1974 from the Tribunal’s 2023 decision: [2024] EWHC 393 (Admin).
• Solicitors Disciplinary Tribunal: The Tribunal revoked its earlier certification that there was a case to answer and dismissed the 2021 application, principally because the certifying panel had acted under a fundamental mistake of fact.