David Hinkel v Simmons & Simmons LLP & Anor

A statutory appeal from a Solicitors Disciplinary Tribunal decision under section 49 of the Solicitors Act 1974 is ordinarily a review, not a rehearing. The court must decide whether the Tribunal was wrong, on the material before it, to conclude that no prima facie case existed. An evaluative decision will not be disturbed unless it falls outside the bounds of what the expert Tribunal could properly and reasonably decide. The appeal may fairly be determined on paper where the documentary record answers the issues and oral evidence would introduce material not considered by the Tribunal. An inadvertent incorrect legal submission, promptly corrected, does not establish knowing dishonesty without cogent evidence that the maker knew it was false.

Mr Hinkel appealed under section 49 of the Solicitors Act 1974 against the SDT’s decision dated 1 August 2023 that his allegations against Simmons & Simmons LLP and Matthew Hooton disclosed no prima facie case. The allegations concerned two written submissions asserting that applications made by Mr Hinkel were subject to an extended civil restraint order.

One submission was properly arguable and partly upheld by the relevant judge. The other incorrectly stated that permission was required for an application to the Court of Appeal, but the error was promptly corrected and apologised for. The central issues were whether the SDT had wrongly assessed the allegations, whether procedural unfairness or bias affected its decision, and whether the appeal required an oral hearing.

1. Disposition and procedure. The appeal was dismissed. Under section 49 of the Solicitors Act 1974, the appeal was by way of review rather than rehearing. The court’s task was to determine, with due weight to the SDT’s professional expertise, whether the SDT was wrong on the material placed before it to conclude that no prima facie case existed.
2. The appeal was properly determined on the papers. The issues could be resolved from the documentary record. Oral evidence not before the SDT would undermine the statutory scheme by turning a review of a decision not to require a disciplinary hearing into a full evidential hearing. A hearing would also impose disproportionate cost and resources.
3. The SDT’s evaluative decision would not be disturbed unless it fell outside the bounds of what the expert Tribunal could properly and reasonably decide: SRA v Leigh Day [2018] EWHC 2726 (Admin). The SDT had given cogent reasons for finding no arguable case that the Respondents knowingly made false statements.
4. In relation to the first submission, the Respondents’ position was properly arguable, and the judge subsequently upheld one of the three relevant applications as requiring permission under the extended civil restraint order. An unsuccessful legal submission was not, without cogent evidence, evidence of dishonesty or professional misconduct.
5. In relation to the second submission, the assertion that permission was required from the Court of Appeal was wrong. However, the error was described as inadvertent, promptly withdrawn and corrected, and there was no evidence that the Respondents knew it was false when made. The SDT was therefore entitled to find no prima facie case.
6. The complaints of procedural failure and bias were unsupported. The SDT had considered the relevant material, its rules did not require disclosure of the identity of the initial reviewing member, and the previous judicial decisions of a panel chair did not, without more, establish apparent bias: Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at [25].

• Solicitors Disciplinary Tribunal: On 1 August 2023, the SDT decided that no prima facie case had been shown and dismissed Mr Hinkel’s application.
• High Court (Administrative Court): The statutory appeal was dismissed. The SDT’s decision was held to be correct.