COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
London, WC2A 2LL
Thursday 25th October 2001
B e f o r e :
LORD JUSTICE BUXTON
LADY JUSTICE ARDEN
|- and -
|THE LAW SOCIETY
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Timothy Dutton QC, and Mr. Mark Hoskins and Mr. Geoffrey Williams (solicitor advocate) (instructed by Messrs Geoffrey Williams Christopher Green for the Respondents)
Crown Copyright ©
THE VICE-CHANCELLOR :
(1) In principle the absence of any provision for legal aid or representation for a solicitor who wants but cannot pay for it, because of the effect of the Law Society's actions, vitiates all hearings of the Tribunal which may lead to an order that the solicitor be struck off.
(2) On the facts of this case the absence of legal advice or representation for Mr Pine rendered the proceedings before the Tribunal obviously unfair.
(3) Mr Pine's inability, because he could not afford the fare to London, to attend the hearing in person also rendered the proceedings before the Tribunal obviously unfair.
Before dealing with these arguments it is convenient to refer to the constitution and rules of the Tribunal, the terms of Article 6 and some of the associated case law and, in the case of the second and third submissions, to relate the facts in more detail. In addition I should note that Mr Pine applied for permission to adduce further evidence. We indicated that we thought that it contained argument or was irrelevant. In the circumstances the application was not pursued and I would formally dismiss it.
"1. In the determination of his civil rights and obligations...., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...."
Paragraphs 2 and 3 deal with criminal offences. By Article 6.3(c) in the case of a criminal offence the person charged has the minimum right to
"defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;"
"It would be erroneous to generalise the conclusion that the possibility to appear in person before the High Court does not provide Mrs. Airey with an effective right of access; that conclusion does not hold good for all cases concerning 'civil rights and obligations' or for everyone involved therein. In certain eventualities, the possibility of appearing before a court in person, even without a lawyer's assistance, will meet the requirements of Article 6(1); there may be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances.
In addition, whilst Article 6(1) guarantees to litigants an effective right of access to the courts for the determination of their 'civil rights and obligations', it leaves to the State a free choice of the means to be used towards this end. The institution of a legal aid scheme - which Ireland now envisages in family law matters (see para. 11 above) - constitutes one of those means but there are others such as, for example, a simplification of procedure. In any event, it is not the Court's function to indicate, let alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6(1).
The conclusion appearing at the end of paragraph 24 above does not therefore imply that the State must provide free legal aid for every dispute relating to a 'civil right'.
To hold that so far-reaching an obligation exists would, the Court agrees, sit ill with the fact that the Convention contains no provision on legal aid for those disputes, Article 6(3)(c) dealing only with criminal proceedings. However, despite the absence of a similar clause for civil litigation, Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case."
"3. The applicant in the present case does not allege that a court remedy by which he could assist his above claim of breach of contract by his employer did not exist in the English legal system. He only alleges that he was prevented from making effective use of such remedy as existed by being refused or practically unable to obtain legal aid for this purpose. In this respect the Commission recalls that unlike the situation concerning criminal proceedings (cf. Art 6(3)(c)) the convention does not guarantee as such a right to free legal aid in civil cases. Only in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of the proceedings, can such a right be invoked by virtue of Art 6(1) of the convention (cf Airey v Ireland 2, EHRR 305).
4. The Commission considers that in the present case there were no exceptional circumstances which would have required the applicant's legal representation by either his union or a solicitor in order to be effectively able to seize an Industrial Tribunal (or other court) with his case. If there was in fact a remedy in an Industrial Tribunal as he claims he could no doubt have brought his case himself, without any legal representation. Industrial Tribunal proceedings are designed to be conducted in a practical and straightforward manner without too much emphasis on formalities. Legal representation may be useful, but it is by no means a 'requirement' in such proceedings."
"only in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to obvious unfairness of the proceedings can such a right be invoked by virtue of Article 6(1) of the Convention."
This principle was applied by Burton J in R v Legal Services Commission, ex parte Jarrett  EWHC Admin 389. It is not disputed that we should do likewise.
(a) sworn affidavits which were false and misleading in material particulars.
(b) failed to disclose material information to the Court.
(c) failed to maintain properly written books of account contrary to Rule 11 of the Solicitors Accounts Rules 1991.
(d) paid clients' money into office accounts contrary to Rule 3 of the Solicitors Accounts Rules 1991.
(e) drawn monies out of a client account otherwise than as permitted by Rule 7 of the Solicitors Accounts Rules 1991 contrary to Rule 8 of the said Rules.
(f) failed adequately to account to clients.
(g) given false information to clients, former clients and solicitors acting on their behalf.
(h) unreasonably delayed in delivering up papers when properly called upon to do so.
(i) issued civil proceedings on behalf of a former client subsequent to the termination of his retainer by that client.
(j) rendered a fee note to a client which he knew or should have known could not be justified.
"Office for the Supervision of Solicitors ("OSS") - v - Simon Pine
Solicitors Disciplinary Tribunal on 8th February 2000
I write with regard to the above disciplinary proceeding.
May I first of all apologise for my non appearance before the Disciplinary Tribunal tomorrow. No disrespect whatsoever is intended; I am simply not in a financial position to travel to London. I confirm that I have already notified the applicant Geoffrey Williams of the same and sent him a copy of this letter.
As you are already aware on Friday 26th March 1999 my Solicitors practice ceased to trade due to a Law Society intervention. I was suspended from practising as a solicitor with immediate effect and thereby rendered unemployed. I have subsequently found it impossible to find alternative employment whilst this case is pending and have been forced to apply for Job Seekers Allowance (formerly social security) which I currently receive.
I have no transport as the motor vehicles which both my wife and myself had have been repossessed by the finance companies concerned due to an inability to continue making the requisite monthly payments. My home is fully mortgaged and the mortgage is, in fact, currently in arrears due to my inability to meet the monthly mortgage commitment.
Accordingly, I now not only have had no income for almost 12 months but also have no assets and have suffered and am suffering severe financial hardship.
I confirm that I have had the opportunity of considering the statement of the applicant, the exhibit thereto and the paginated bundle of documents and I have written to the applicant in that regard.I have confirmed to the applicant that the following facts set out in the applicant's statement are in dispute, namely:"
Mr Pine then set out the paragraphs containing six of the ten charges and most of the paragraphs in the statement dealing with them. He contended that some matters had not previously been put to him or been the subject of a complaint by a client.
"My position in relation to the matters that are before the Tribunal tomorrow has already been set out in detail in extensive correspondence between my solicitors Messrs Robert Buckley and the OSS and between myself and the OSS respectively. I do not think that any further repetition in this letter would be of assistance to the Tribunal.
Whilst I am sure that the applicant will draw the Tribunal's attention to this correspondence and the explanations proffered therein I do refer the Tribunal specifically to the following documents.."
Mr Pine then set out references to pages in the bundle of documents and continued
"I do not have anything more to add to that which has already been put forward upon my behalf save to say that the OSS has already made decisions in the three matters before the Tribunal which constitute client complaints."
Mr Pine gave the names of the clients and forwarded to the Tribunal copies of the OSS decisions. He stated that it was extremely important that the Tribunal understood what was happening in the background in the period April 1997 to April 1998 and proceeded to describe it in some detail.
"Whilst I understand that the OSS has a duty to act to protect the public interest it now seems from all the available evidence, the lack of any claims of dishonesty against me from clients either at the time or subsequently and the fact that no clients have actually suffered any financial loss that the decision to intervene taken on 25th March 1999 was an overreaction.
Be that as it may, the decision was taken and the quite devastating consequences for me have been twelve months of sheer hell and severe financial hardship, not to mention the considerable damage to my professional reputation which I fear is now irredeemable.
However, over the last twelve months I have had considerable opportunity to reflect and have come, to what I think, is the inevitable conclusion that practising, as a sole practitioner is not for me. I have discovered, at some considerable cost to myself that particularly on the accounts side I have, quite simply, been badly advised and let down at every turn by both professionals (a fact recorded by the Tribunal in its decision of 18th November 1997) and dishonest employees alike.
I think that any reasonable person would consider that I have now suffered and am suffering enough for the mistakes that I have made and that it must be in everybody's interest that I find employment as a solicitor doing what I was trained to do at the earliest opportunity.
I have now served, effectively, a twelve-month suspension and my only income is Job Seekers Allowance which means I am currently in no financial position to meet any financial penalty the Tribunal might consider imposing or indeed any order for costs whether by instalments or otherwise.
I trust that I have set out my position, both financial and otherwise, as clearly and concisely as can and I hope that the Tribunal will deal with this matter in a fair and reasonable way."
"In the current application the Tribunal was dismayed to learn of the respondent's behaviour in the matters before them. Despite what the respondent indicated in his letter the Tribunal was entirely satisfied that the gravity of the allegations made against the respondent had clearly been communicated to the respondent and indeed underlined by the applicant.
The Tribunal have before it a catalogue of dishonest behaviour on the part of the respondent. A solicitor is not only a member of an honourable profession but also is an officer of the Court. It is dishonest and consistently professional misconduct at the highest end of the scale for a solicitor to depose to affidavits which are false and misleading. Further the respondent had given false and misleading information to clients. This is totally unacceptable. He had also been guilty of a number of serious breaches of the Solicitors Accounts Rules. The respondent had been consistently putting money into his office account and thus assisting his firm's cash flow position, which money should have been paid into client account. The Tribunal does not accept that the respondent was unaware of the very clear rule and obligations with regard to this.
The Tribunal noted that the respondent had appeared before them in November 1997 when it was clear that his books of account were then in a deplorable state. He had been treated very leniently by the Tribunal on that occasion and clearly had not heeded the warning inherent in the Tribunal's previous order.
The Tribunal has no doubt that the respondent's behaviour was dishonest. Such behaviour can not be tolerated by the solicitors' profession and a solicitor who is guilty of such conduct is not fit to remain on the Roll of solicitors. Accordingly, it was right that the ultimate sanction should be imposed upon the respondent and that he be struck off the Roll and ordered to pay the costs of the application and enquiry to include the costs of the Investigation Accountant of the Monitoring & Investigation Unit of the Office. The Tribunal fixed those costs in the sum of £9,438.00."
"29. It is not necessary for present purposes, in my view, to decide whether proceedings before the Tribunal could ever be so complex that representation was indispensable. It is sufficient for the present case to consider the facts as they arose here. In my judgment, this hearing cannot properly be described as complex. The allegations were detailed, but they were not in fact complex. They all related to matters which the appellant had himself handled and which went back no further than some three years. The appellant's own letter to the Tribunal did not suggest that he had any difficulty in understanding or dealing with the issues. He was himself a qualified solicitor. At the hearing on the other side was the present respondent, Mr. Geoffrey Williams, a solicitor advocate. Whilst it is clear that Mr. Williams had more experience of such hearings, there is in my view nothing to suggest that the appellant would have been unable adequately to present his case. The hearing was, judging by the transcript insofar as we have one, relatively informal. No doubt legal representation should always be regarded as an advantage. It does not follow that the absence of legal representation denies a party a fair hearing. In my view, the hearing in that respect here was a fair one. That submission, namely the requirement of legal representation for this particular appellant, is not made out.
"13. I have no complaint whatsoever in the Plaintiff deciding to instruct another firm of solicitors to act upon her behalf, but it seems to me that in the light of the Plaintiff's agent being unable to pay my outstanding legal fees to date, the Plaintiff must be contractually bound to discharge those fees.
14. I confirm that I have no objection whatsoever to my fees being taxed by this honourable Court, and the Plaintiff then being obliged to pay the taxed costs as opposed to paying my bill in full, as it now stands, but I do not consider that the Plaintiff has any entitlement to the transfer of my complete file of papers without making any payment whatsoever in respect of unpaid fees, particularly when she is legally bound to discharge those fees as principal.
15. Finally, there is now produced and shown to me marked "SJP3" a copy of an Order of his Honour Judge Malcolm Lee QC dated 21st July 1997 in a similar case to this in which he made an Order that the client do pay this firm's costs, to be taxed if not agreed, and did not make an Order that the client was not liable for this firm's fees as principal."
The exhibit was not a copy of any order of the court as drawn up in the proceedings indicated in the heading. It correctly contained orders that Mr Pine deliver up the clients papers on the undertaking of that party's new solicitors to pay Mr Pine's costs and an order for the taxation of those costs; but it omitted paragraph 3 of the order as made which provided that "the costs of the application should be paid by Pine Solicitors forthwith".
LORD JUSTICE BUXTON:
LORD JUSTICE ARDEN: