England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/03/2015

Mr. Justice Edis:

1. This appeal under section 49 of the Solicitors Act 1974 arises out of a decision of the Solicitors Disciplinary Tribunal ("SDT") made on 27^th June 2014 in disciplinary proceedings against the appellant. In a reserved decision handed down on that date, following a hearing on 12^th and 13^th May 2014, the SDT found a number of allegations against him proved and ordered that he should be struck off the roll of solicitors and further ordered that he should pay the costs of and incidental to the application and enquiry to be assessed, with an order for payment of £60,000 on account of those costs. It is not necessary to set out the charges at length because their substance plays no part in the issues resolved by this judgment. In very short summary the SDT found that the appellant had breached the code of conduct of solicitors in various ways as a result of his involvement in very complex funding arrangements for bulk litigation whereby clients were encouraged to litigate about consumer credit agreements and other such arrangements. Their findings included a finding that the appellant had not been dishonest, but had lacked integrity and had preferred his own financial interests to the interests of his clients. The sole ground of appeal, as originally drafted, is that the SDT proceeded in the hearing which resulted in this order in the absence of the appellant and wrongly refused three applications for an adjournment made on 2^nd, 12^th and 13^th May 2014. It is submitted that the SDT ought to have adjourned the hearing on two grounds, first because the appellant was unable to afford representation and secondly because his health meant that he could not attend the hearing.
2. I have identified the issue above with some precision because the appellant's Detailed Statement of Grounds/Skeleton Argument which accompanied his Notice of Appeal is somewhat discursive and includes, among other things, a suggestion that these proceedings were brought maliciously in order to silence him for the benefit of the Solicitors Indemnity Fund. On the day before this hearing, the 16^th March 2015, the appellant lodged a document described as Supplementary Skeleton/Submissions/ Statement which acknowledges defects in the original document and seeks to correct them. That document argues the issue which I have identified, and does so by reference to a number of authorities which were also supplied to the court on the 16^th March 2015. It sensibly sets out the points which can be made in support of this appeal, and I have treated it as an amended Grounds of Appeal which wholly supersedes the original version which I shall not address again. It also seeks to extend the scope of this appeal by appealing the decisions on misconduct, sanction and costs, which it recognises will require an adjournment of this appeal. That application to adjourn has been made orally on 17^th March 2015 by Mr. Schools.

THE FACTS

3. The chronology is important, and I will set out the history of the proceedings so far as it is relevant.

The Proceedings before the first application to adjourn was heard

4. The investigation by the SRA started on 12^th January 2010, and a statement was served by that body on the appellant under Rule 5 of the Solicitors (Disciplinary Proceedings) Rules 2007 on the 5^th April 2012. The appellant was represented by solicitors and counsel at this stage and they prepared an "Answer" for him. This set out his case to some extent, but was largely directed to pointing out what were said to be defects in the way in which the case was presented on the documents. The contention was advanced that the case was not clearly put and the appellant contended that he could not understand what case he had to meet. In June of that year he was diagnosed with a deep vein thrombosis in his right leg. The appellant made an application to dismiss the charges against him saying that it was an abuse to proceed on charges which were so phrased that he could not understand them and therefore defend himself against them. That application was heard on two days, in April and May 2013 and substantially dismissed on the 29^th July 2013 in a reserved decision. This meant that over a year had passed since the Rule 5 statement and nothing of substance had been achieved in moving the matter forward to trial. While that decision was pending, a world wide freezing order was made against the appellant's assets up to a limit of £110m. The usual provisions appeared in it for ordinary living expenses and legal advice and representation. These required the appellant to tell the claimant's legal representatives where the money was coming from before spending any of it. Despite this, the appellant has not been represented in these disciplinary proceedings since then. He had lawyers in the civil action who, as at June 2014, had done work which they valued at around £450,000 without being paid.
5. The civil proceedings concern the same arrangements which are the subject of these disciplinary proceedings. They were brought by the receivers of funds which had made loans to the appellant's law firm and others to fund litigation. It was those arrangements which were said to involve conflicts of interest and other professional offences. I shall return to some of the detail of that below. It is enough to record here that the appellant swore an affidavit in the civil proceedings on 16^th June 2014 which sets out a great deal of detail and runs to 132 paragraphs. This was supplied to this court by the appellant 16^th March 2015.
6. A Case Management hearing was held on the 9^th October 2013 when directions were given by agreement. The appellant was directed to serve a witness statement by 31^st January 2014 and the substantive hearing was listed for 12^th May 2014 with an estimate of 5 days. The appellant was unrepresented at the time of this hearing and did not attend but expressed his agreement to the directions in writing.
7. On 30^th January 2014 the appellant wrote to the SRA's solicitors, now known as Blake Morgan. He said

"I am writing to advise you that I have been suffering from ill health this past few weeks which has prevented me working on the preparation and completion of my witness statement. Although I have not yet fully recovered my condition is improving. I therefore request that you agree to a 21 day extension of time to the deadline for my submission of a witness statement."

8. This was the first time the appellant suggested that his health was interfering with his ability to deal with this case. He did not specify what was wrong with him at that stage. After email correspondence about the proposed extension of time for the witness statement, the appellant wrote again on 6^th March 2014 saying:-

"I plan to write to the SDT office advising of my ongoing health problems and that I am unable to deal with this matter at all right now and to seek an adjournment of the hearing scheduled for May. I anticipate being able to produce medical evidence though for the time being I am unable to do so as my next medical appointment is not until 25^th March…"

9. This demonstrated that the appellant was, at that stage, aware of the need for medical evidence and this was over two months before the planned start of the hearing. On 23^rd March he complained of pain in his left leg (the earlier DVT had been in the right leg) but investigations did not reveal any abnormality. He did secure a letter from his GP, Dr. Hunt, on 26^th March 2014 which said

"Timothy has been consulting with me for the last 12 months. He is suffering symptoms akin to post traumatic stress disorder and is finding it very difficult to cope with the demands that he is being faced with. This is affecting his mood, sleep and principally his ability to concentrate…..He is not fit to face a tribunal without adequate representation."

10. On 5^th April 2014 the appellant applied in writing to adjourn the hearing, relying on Dr. Hunt's letter. He also relied on the freezing order and said that it was unjust that he should be unrepresented given that the SRA had instructed a very experienced leading counsel. He said that he had suffered from extreme periods of anxiety and stress due to the circumstances that he found himself in. The SRA decided to have the matter listed and a further hearing occurred on 14^th April 2014. The SDT had further representations from the appellant on that date by email in which he said

"My belief is that it is grossly unfair to proceed with the proposed 5 day hearing against me in May. I am unable to properly defend myself in May due to a combination of the dire financial constraints (wrongfully) imposed on me by the solicitors acting for the Axiom Receiver, and the resultant effect of my present circumstances upon my mental health and spiritual wellbeing."

11. The SDT directed that the appellant should be seen by a psychiatrist and an appointment was made with Dr. Lingam on 25^th April 2014. His consulting rooms are in Newcastle and the appellant lives in Cumbria. He drove to the appointment and for various reasons the journey took a long time and he was late. The doctor examined him and they spoke further on 29^th April 2014 by telephone and at least one email was sent. The report was distributed on 30^th April. By this time a firm of solicitors had agreed to assist the appellant pro bono and it is possible that the report was sent to them. The appellant says he did not see it until the following week. It is a long and careful report which diagnoses an adjustment disorder and prolonged depressive reaction. This is not a major mental disorder and the doctor said that the appellant was fit to attend and proceed with the hearing. He then said this (with my emphasis of two phrases which become important later in the narrative):-

"With regard to the vexing question of Mr. Schools being fit to represent himself at the Hearing, Mr. Schools told me that he does not intend to attend the hearing and in my view this is, in the main, because he does not think he is legally competent to present his case and anticipates that he would be overwhelmed by being confronted by the QCs…".

"I form the view that Mr. Schools feels "unjustly treated" and has retreated into a defensive state of mind, contributing to an exacerbation of his sense of isolation and vulnerability. I am also of the view that Mr. Schools reaction to the pending hearing, in particular his statement that he intends not to put himself through the hearing, are indirectly related to his mental health problems."

"I am of the view that Mr. Schools would be aided in the legal process as a whole and in particular with regard to the hearing were he to have access to legal representation in this matter."

12. On the day of the appointment Mr. Schools began to suffer pain in his left leg. He told Doctor Lingam about this on 29^th and the Doctor advised him to go to his GP at once, which he did. What followed is now fairly clear. The GP sent the appellant to the Hospital. A prescription for Enoxaparin was dispensed by the Hospital Pharmacy on that day, which would be consistent with a diagnosis of DVT having been made. Because of the way in which matters proceeded before the SDT it is necessary to explain how this event was evidenced before them at the two hearings which were to follow. On 30^th April 2014 Warrens, the solicitors who were assisting the appellant wrote to the SDT explaining among other things that he had now been diagnosed with this condition and enclosing a copy of the prescription. They said that he had been told that he would have to remain in bed with his leg raised for some weeks with the only permitted travel being to hospital on a daily basis. They said that because this had only just happened they could not produce any medical evidence and referred to the copy of the prescription. They said that this meant that the appellant would not be able to attend a hearing which had been arranged for the 2^nd May 2014 or the substantive hearing on the 12^th. They invited the SDT to adjourn that hearing date, which the Tribunal did not do. On the same date a Dr. Buckley wrote a letter "To whom it may concern" which refers to the new diagnosis and says

"He…has been advised by the hospital not to travel long distances for at least 6 weeks. We will review the situation after this time period and hopefully he will then be fit to travel."

The Hearing of 2^nd May 2014

13. That was the state of the medical evidence at the hearing on 2^nd May 2014 when the SDT decided not to adjourn the hearing date fixed for the 12^th May 2014. There appear to have been three strands to this decision. First, they do not appear to have been convinced that the DVT diagnosis was genuine or that it restricted travel so that the appellant could not attend the hearing. Secondly, they relied on the report of Dr. Lingam as showing that there was no psychiatric reason why the hearing could not go ahead. Finally, they found that the appellant was voluntarily absenting himself because of what he had said to Dr. Lingam in the highlighted passages in the extracts at paragraph 11 above. They relied in support of this on their doubts that the SDT had been told the whole truth about the appellant's efforts to secure the release of funds for his legal representation. Although this reasoning was to be overtaken by events, it was referred to (and perhaps adopted) by the later Tribunal which considered a renewed application to adjourn on the 12^th and 13^th May and it is necessary briefly to rehearse certain parts of it.
14. I expect that the decision on 2^nd May 2014 was expressed orally and ex tempore. The Memorandum of the hearing is not a transcript and has no doubt been subject to checking. It is not, however, a reserved decision. Given the subject matter before the SDT, an application to adjourn an imminent hearing, it could not be. It is therefore important not to be too critical of the expression of the reasons for the decision. The SDT decided not to grant the adjournment. Mr. Carter, who appeared for the absent appellant, confirmed that the application was based solely on the recent DVT diagnosis and did not urge the lack of representation or psychiatric condition. This was because the opinion of Dr. Lingam did not support an adjournment on the ground of any mental disorder. It did, however, suggest that the desirability of legal representation should be reconsidered in the light of his diagnosis. That would require an adjournment because the appellant did not have access to his funds to pay for representation because of the freezing order. The SDT concluded that the real reason why the appellant was not planning to attend the hearing on 12^th May was that he had decided not to. From the remarks he made to Dr. Lingam at paragraph 11 above, it appeared that this decision was related to his lack of representation and, according, to the doctor, "indirectly related" to his mental state. The SDT approached the DVT with considerable scepticism and, in two respects, relied upon a policy of the SDT. The Policy/Practice Note of 4^th October 2002 on Adjournments ("the Policy") contains the following passages

"4) The following reasons will NOT generally be regarded as providing justification for an adjournment

(c) Ill Health

The claimed medical condition of the Applicant or Respondent unless this is supported by a reasoned opinion of an appropriate medical adviser. A doctor's certificate issued for social security and statutory sick pay purposes only or other certificate merely indicating that the person is unable to attend for work is unlikely to be sufficient.

(d) Inability to secure representation

The inability of the Respondent for financial or other reasons to secure the services of a representative at the hearing or financial reasons for the non attendance of the Respondent.

….

9) Every application for adjournment will be considered on its own merits and this practice note is made to provide assistance as to matters which the Tribunal will regard as relevant to any such application, and to identify matters which in the experience of the Tribunal are frequently relied upon in support of applications but which, save in exceptional circumstances, the Tribunal does not currently regard, and would in the future be similarly unlikely to regard as persuasive in themselves."

15. The DVT had only been diagnosed, if it was genuine, on 29^th April 2014. The SDT, sitting 3 days later, accepted at paragraph 53, a submission made on behalf of the SRA that the application should be treated with scepticism, reciting the history of the application to dismiss which caused delay, and then referring to the attempt to secure an adjournment relying on lack of representation, psychiatric problems and "within the last few days had raised the question of DVT". The SDT recorded some "difficulties with the letter of 30^th April 2014 from Dr. Buckley" which they described as follows in paragraphs 44 and 45 of the Memorandum

"44. ….The way the letter was phrased did not make it clear whether Dr. Buckley had heard that the Respondent should not travel from the hospital or from the Respondent. Further, it was not made clear whether Dr. Buckley is the Respondent's doctor; all the letter says is that the Respondent is registered with the practice.

45. In addition, the letter did not state what the issue may be with long distance travel. The Tribunal accepted that Cumbria to London is a long distance. The Tribunal was aware that air travel may present problems for those susceptible to DVT but, for example, there was nothing in the letter to suggest whether or not rail travel would be a problem for the Respondent."

16. The conclusion of the SDT is expressed in paragraphs 54 and 55, immediately after their expression of scepticism referred to above. These paragraphs read as follows:-

"54. The Tribunal was satisfied that the Respondent would well have known the requirements of this Tribunal for an application to adjourn the case and had not complied with them. The Tribunal did not consider that there was appropriate medical evidence to adjourn the hearing and refused the application.

55. The Tribunal observed that the Respondent's apparent worry that he would face several QCs was unfounded. The Tribunal was assured that Mr. Cunningham alone was briefed to appear for the Applicant. The Tribunal was well accustomed to hearing cases where the Respondent was self-represented, and went to considerable lengths to ensure that there was a level playing field, so that its hearings are fair to all who appear before it."

17. The decision therefore was based on the inadequacy of the medical evidence which did not support the proposition that the appellant could not travel to the hearing on 12^th May 2014. They had plainly decided that Mr. Schools could come if he wanted to, because otherwise he would not be a "self-represented Respondent" as postulated in paragraph 55. They do not appear to have approached the matter taking into account the risk that he would not be "self-represented" at the hearing, but entirely absent. The SDT on that occasion did review the issue of whether the DVT made any difference because the appellant had decided not to attend the hearing on 12^th May before it happened at its paragraphs 48-51. During the hearing it had, of its own motion, asked questions about the real reason why funds for representation had not been released from the freezing order. The SDT suggested that the appellant would have been entitled to the release of funds and cited Halifax v. Chandler [2001] EWCA Civ 1750. The conclusion of the SDT on this point was dealt with in paragraphs 50 and 51 of the decision.

"50. In that regard, the Tribunal established that the Respondent needed to make application to the High Court to release the funds to pay for representation before the Tribunal. The Respondent had some £6.5 million in frozen accounts. The solicitors representing the Claimants in the High Court action which he faces have not agreed to the release of funds for this matter. Mr. Carter told us that the Respondent had made an application to Court, and that application was refused on the basis that he had failed to make adequate disclosure to the Claimants. The Tribunal was informed that the Respondent intends to make a further application, having made further disclosure."

"51. The Tribunal noted that these issues were not strictly relevant to its decision, but it underlined the fact, as reported by Dr. Lingam, that the Respondent had formed an intention to not attend prior to being diagnosed with DVT, for reasons unconnected with his health."

18. The reasoning of the SDT on the medical issue appears to me to be seriously flawed and fails to address the fairness of requiring the hearing to proceed in the involuntary absence of the appellant when that might be the consequence of the decision. The SDT was dealing with a case where the appellant's funds were frozen and he had no money to pay doctors to produce urgent reasoned opinions. Even if he had, it might easily not be possible in the space of 3 days to achieve it. The best he could do was to produce his prescription from the Hospital, which proved the diagnosis, and a letter from a GP which said that he understood that there had been a diagnosis and that the appellant had been advised not to travel. This did not answer all relevant questions, but there was no basis for rejecting the evidence that he had been diagnosed with a DVT in the left leg on 29^th April 2014. The consequences of that diagnosis for the hearing on 12^th May required further exploration but that is not what the SDT decided. The decision was that that hearing would go on without any further consideration of the position. If the reason why he had only raised the DVT "within the last few days" was that it had only happened then, it would be irrational to include that in a list of suggested delaying tactics at paragraph 53 of the decision. The Policy was the essence of this decision as paragraph 54 makes clear. Its application on the basis of an unjustified scepticism about the existence of a DVT having first occurred on 29^th April 2014 was in truth a breach of it. Paragraph 9 of the Policy requires applications to be considered on their merits. Finally, the rational response to the suspicion expressed in paragraph 51 that the appellant may be able to travel by rail was either to adjourn the application for a medical opinion on the question, or to discount the suspicion as being merely that and therefore irrelevant.
19. The alternative basis on which the application might have been refused, namely the pre-DVT decision by the appellant not to attend the hearing, was available to the SDT on the 2^nd May but they did not actually decide the application on that basis. It is not clear from their decision what weight they gave to that question. They appear to have decided that the appellant had made such a decision, but that it was irrelevant, see paragraph 51 quoted above. Paragraphs 50 and 51 must be read as a finding of fact that the appellant had deliberately decided not to obtain the funds because he was never planning to attend the hearing or, presumably, to be represented at it. Paragraph 50 is somewhat opaque as such a finding, but paragraph 51 makes no sense unless that is what it was.

Between the 2^nd and 12^th May 2014

20. A letter from the Hospital was typed on the 2^nd May but not available to the SDT on that day. This was from Dr. Helen Foster, Clinical Assistant to Dr. Chadwick who is a consultant at the Westmorland General Hospital It was addressed to the appellant and said

"Following your diagnosis of a recurrent DVT in your left leg, I have discussed your symptoms with colleagues and we have requested a scan of your chest called a CTPA. We briefly mentioned this when I saw you in clinic and it can be discussed again when your next week [sic]."

21. On 7^th May the SRA's solicitors communicated with the appellant to ask him whether he was intending to attend because they needed to know in order that the case could be properly timetabled and prepared. He, in his oral submissions to me, argued that this obviously meant that they knew he had no settled intention not to attend the substantive hearing. In response the appellant emailed the SDT on 8^th May attaching a letter which renewed his application to adjourn. This was not on the one ground which had been argued on his behalf of 2^nd May, but on the grounds of his DVT, the psychiatric problem and the unfairness of proceeding without legal representation for him. He also pointed out that he had no means to pay for travel and accommodation for a 5 day hearing in London. He attached again a copy of the letter from Dr. Buckley, the letter from Dr. Foster, and a further letter from his GP practice, this time signed by Dr. Armer who described himself as a GP Locum to the two doctors named on the practice stationery. This was dated 8^th May 2014 and said:-

"I attach a letter received from the hospital confirming the recurrence of a deep vein thrombosis as outlined in my colleague's letter to you dated 30^th April. He reports hospital advice not to travel long distances at this time. If you require further information please contact us."

22. The letter of 8^th May from the appellant pointed out that the assets required to fund legal representation existed, but were temporarily unavailable. He said that he would not expect the SDT to postpone a hearing indefinitely but asked for an adjournment of 6 months. He said he considered it grossly unfair that he was being deprived of the opportunity to participate in a fair disciplinary hearing, and confirmed that he could not attend that week. This material was before the division of the SDT which conducted the substantive hearing on 12^th May and they treated it as a renewed application to adjourn. On the day before the hearing before me, the appellant lodged two bundles, as well as his new Grounds referred to above. There was a bundle of authorities containing 56 pages and a bundle of exhibits containing 82 pages. The first document in the latter bundle is a letter from Dr. Chadwick dated the 16^th February 2014 (in error, it should read the 16^th February 2015). This confirms the diagnosis of April 2014 and says

"It is recorded that the venous thrombosis had occurred after driving a long journey although it is not recorded that he should avoid any further travel, it is likely that this would have been advised at would be done in normal practice….my advice would have been to Mr. Schools that he should not have travelled anywhere outside the locality over the next three to four weeks after the diagnosis… because of difficulties monitoring the situation both the clinical condition and its treatment. There would be a risk of worsening leg swelling…and pulmonary embolism if he was seated in a position where he could not elevate his leg…several hours in a seated position would be very uncomfortable and distracting. There would almost certainly be increased swelling in this situation which I would not have advised."

23. The Chadwick letter was not before the SDT but its relevance is that it enables this court to have an insight into what advice the appellant was given. The letter from Dr. Foster had ended the scope for any scepticism about the existence of the DVT and that letter was before the 12^th May SDT. It appears that he was told not to travel for 3-4 weeks, but no doubt this may have been 6 weeks, as Dr. Buckley had understood. This would mean he could attend a hearing at any time from the start of July at the latest. It also means that he genuinely could not be expected to attend the hearing on 12^th May. The appellant, however, applied for an adjournment of 6 months, not 6 weeks. This was because he wanted to have the best chance of having his funds free so he could instruct lawyers. He still did not want to attend the hearing when fit to do so, unless he had legal representation. In other words his approach was still that which he explained to Dr. Lingam, see paragraph 11 above. Importantly, he did not say to the SDT that he had changed his mind and would attend on his own if required as soon as he was fit. He says that this was because he had not realised the importance which was being attached to that approach by the SRA and the SDT. He did not see the Memorandum of the hearing of the 2^nd May until the 9^th. There is no reason to suppose that this is not true. However, he did see it on that Friday and spent time over the weekend preparing an answer to it which he emailed to the SDT at 09:06am on Monday 12^th May 2014 and which the SDT had before it when it reached its decision about the application to adjourn. This document is also included in the late bundle lodged yesterday. He had clearly been through the Memorandum with great care. I have an insight into his functioning at that time from this document. It is the result of a clear and thorough analysis of the Memorandum of the hearing on 2^nd May, and contains a detailed rebuttal of the conclusions. In some respects it accords with my own reservations about the reasoning of the SDT on that day. He rightly argues that their treatment of the DVT was flawed and makes a submission about paragraph 23 of the Memorandum in the following terms:-

"Para 23 of the Memorandum refers to extracts from Dr. Lingam's report and suggests that in his view I am fit and able to attend the substantive hearing. He does, however, go on to say that he believes that I would be aided in this process if I were to be represented. He therefore explicitly draws a distinction between my (then, prior to the DVT) fitness to travel and be present as against my travelling and also having to represent myself in proceedings where the complexity is such that the Applicant considers it necessary to instruct leading counsel. This accords with the view expressed by my own GP. There is a marked distinction between being fit enough to attend and give evidence and being fit enough to attend and represent myself. Events have obviously now taken over with the development of the DVT which prevents my attendance in any event."

24. The appellant went on in his Note to address a number of other paragraphs in the Memorandum. He does not, however, comment on paragraphs 28 or 49. These record the submission of the SRA that the report of Dr. Lingam showed that the appellant did not intend to attend the hearing whenever it was held, and the SDT's apparent acceptance of that submission. They also say that the relevant comments (paragraph 11 above) were not challenged. It is significant that in his Note emailed on 12^th May before the hearing, the appellant did not challenge the record of Dr. Lingam or seek to explain those comments. In particular, he did not say that he had changed his mind and wished an adjournment until July when he would be well enough to travel. His application continued to be for an adjournment for 6 months by which time he hoped to have access to his funds so that he could instruct lawyers. That application was always based on a hope. Neither the appellant not the SRA nor the SDT could know whether his application to free funds would succeed, or when it might succeed. An adjournment for 6 months might therefore be entirely pointless if Mr. Schools' attitude was, as it appeared to be, that he was not going to attend unless he was represented. In fact, I know that the application did not succeed. The proceedings have now settled but Mr. Schools cannot access his assets until 28^th March 2015 and then only if he fulfils some conditions. This means that if his application had succeeded he would have been in the same position in November 2014 except that he would have been physically fit to attend the hearing. That change would be irrelevant if he did not intend to attend in any event.
25. There is another document which was not before the SDT but which was produced to me on the day before the hearing which is relevant to the appellant's attitude at the time of the hearing to defending the disciplinary charges. This is an affidavit sworn on 16^th June 2014 in the civil proceedings, a month after the hearing before the SDT in which the appellant claimed to be unable to address the charges without the assistance of lawyers. This was prepared with the assistance of solicitors and deals with some matters which are not relevant to the subject matter of the disciplinary charges, but it also covers in very great detail the transactions which were the subject of the charges. The work of putting the document together was done by solicitors but the information must largely have come from Mr. Schools himself. He was plainly capable at that time of explaining, and justifying, these highly complex arrangements to his lawyers. It is apparent from the jurat that it was prepared for swearing in May, although in fact that happened in June. It must have been drafted over a considerable period of time. It shows in my judgment that Dr. Lingam was right in concluding that Mr. Schools was capable of attending a hearing and giving evidence in his own defence. It would not have been impossible to use a draft of this affidavit as a starting point for the preparation of the witness statement the appellant had been ordered to serve in January 2014, but which he never, in fact, produced. The contrast between that failure and the June affidavit reveals the appellant's approach to the disciplinary proceedings. He had lawyers prepared to work without being paid in the civil proceedings and the overlap in subject matter between the two sets of proceedings was such that their work could be used by the appellant in his defence of these proceedings. He is, or was, a solicitor. This means that he has the necessary skills to prepare a witness statement. He was in the police for 10 years and then qualified as a solicitor. In the first part of his career he worked for a firm doing litigation. Then he set up his own firm, which also did litigation. The medical evidence of Dr. Lingam does not support the opinion of Dr. Hunt in her letter of 25^th March 2014, and does not support the claimed justification for the failure to produce a witness statement in January, see paragraphs 7, 8 and 9 above. If, as I find, he was able to produce a witness statement as required, but chose not to do so, that can only be because he did not intend to give evidence in his own defence.
26. After sending his Note on 12^th May 2015, the appellant went to his GP. He emailed to the SDT after that at 11:16am. This informed the Tribunal that his GP, Dr. Hunt, had been away the previous week and that he only now been able to speak to her. She was busy in her surgery and could not write a note for the Tribunal but had said that her opinion was that he could not safely travel by air, car, train or any other form of transport linked to causing DVTs. She had said it was a "no brainer". She was recording this in the medical notes which could be produced later if required. I have not seen them, but I have no reason to think that the contents of this email are untrue.

The Decision of 12^th May 2014

27. On this occasion, the submissions made by the SRA were somewhat different. Mr. Cunningham QC is recorded as saying that "he could not say whether the Respondent was right about the DVT, probably he was, but that was not the point as he had already stated his intention not to attend the hearing". He, in other words, invited the SDT to reject the renewed application on the ground that it would be pointless because the appellant had decided not to attend the hearing and the DVT was an irrelevant supervening event.
28. The SDT considered the application to adjourn because of the financial restraint which prevented the appellant from being represented. This was rejected in reliance on the Policy. The appellant made the point then in his documents, and makes it now orally before me, that his was a case which ought to have been treated as exceptional because his inability to obtain representation was temporary and would end with the freezing order. The SDT does not say how it approached this submission, merely saying

"The Respondent's submissions about his inability to secure representation for financial reasons were not in view of the Tribunal such as to cause it to depart from its policy on adjournments."

29. The SDT went on to address the medical issue and repeated the section of the Policy which requires "a reasoned opinion" from an appropriate medical adviser, as opposed to a certificate for social security or statutory sick pay purposes, or one which addresses only fitness for work. They concluded that "there was nothing substantively new or exceptional before it which had not been considered by the earlier division of the Tribunal on 2 May 2014". This was not right. There was now a letter from the Hospital which put the existence of the new DVT beyond doubt. Mr. Cunningham had conceded this and no longer invited the SDT to be sceptical about it. The application was now resisted on a narrower basis. The SDT went on to say that even with the new letter, there was still no reasoned opinion which addressed the ability or otherwise of the appellant to travel. They referred to, but did not comment upon, the opinion of the GP as communicated to them by the appellant in his email that day. They did not express any conclusion about the relevance of this to their ultimate decision which is set out below.
30. The decision of the SDT on 12^th May 2014 was expressed in the following terms, after the recitation of the state of the medical evidence.

"The Tribunal also had the benefit of Dr. Lingam's report …with its telling information about the Respondent's intentions. [They then set out that material which is recited above at paragraph 11] The Tribunal had in mind the various authorities relating to proceeding with a disciplinary hearing in the absence of the practitioner including R. v. Hayward, Jones and Purvis [2001] QB 862 CA^[1]. It was very aware that the discretion to proceed in absence was one which had to be exercised with the utmost care. Given the Respondent's clear indications to Dr. Lingam that he did not intend to attend the hearing (which indications he had not addressed or resiled from in any of the documents before the Tribunal) the Tribunal considered that the Respondent had voluntarily absented himself from the hearing and that even if it had adjourned the matter for say sic months there was a serious question that the Respondent would not attend in any event. The allegations brought against the Respondent were serious and the Tribunal considered that in the interests of justice it needed to consider them as planned. "

31. The hearing then started. It took the form of a trial, with the SRA being required to explain and prove its case. The SDT had the Answer document prepared by lawyers for the appellant and raised the points made there and considered them. It did not have a witness statement from the appellant because he had decided not to lodge one despite the directions. However, the written decision which was later produced shows that they did consider each allegation on its merits. They found them all proved except for one allegation which formed part of the 6^th charge which alleged that the appellant had failed to act with integrity. Other aspects of that charge were proved. This was the way in which the SDT sought to put into effect the need for a fair trial even if the Respondent has voluntarily absented himself. The appellant now applies for an adjournment to enable him to criticise these findings (and the sanction) in this appeal. He has never previously suggested that they were wrong and has not produced draft amended grounds explaining what his complaints are.
32. While this process was going on, on the second day of the hearing, the SDT saw a letter from Warrens, solicitors who had acted for the appellant on the 2^nd May and who now said that they were supporting him but not representing him. This made further submissions in support of an adjournment and said that they intended to appeal the order of the 2^nd May which necessitated the adjournment of the present hearing. They also dealt with costs in case their application was unsuccessful, and they rightly feared it might be. They do not appear to have been aware of the order made on the previous day or the different way in which the reasons for it were expressed. It was now a refusal based on the voluntary absence of the appellant, rather than an application of the part of the Policy which deals with ill-health adjournments. The Policy continued to be referred to by the SDT, but does not appear to have been the real basis for this decision. The SDT dealt with this letter as a renewed application for an adjournment and explained their reasons in very similar terms to those set out above. Once again they mentioned a failure to comply with the Policy, but did not say why that was relevant to their decision. They repeated that they were treating the appellant as voluntarily absent and refused the renewed adjournment application.

DISCUSSION AND DECISION

33. The application to adjourn this appeal. The first question for decision is whether this appeal should be adjourned so that the appellant can formulate some new grounds to criticise the findings of misconduct and the sanctions and costs order. I conclude that there should be no such adjournment. It is far too late. The appellant is a former solicitor and drafted his own grounds of appeal. On the day before the appeal he served a new Skeleton and substantial documentation. He now seeks to advance Grounds which he has not formulated. These procedural failures are now part of a pattern evidenced by the history which I have set out above. The Notice of Appeal is dated the 21^st July 2014 and the Detailed Statement of the Grounds the 17^th June, the day after he swore his affidavit in the civil proceedings which addresses the merits of the conduct which gave rise to these charges at great length. It was also 10 days before the judgment of the SDT was signed by the Chair. He was aware of the outcome, however. He has failed to identify any arguable basis for his entirely new appeal which he has had months to set out. During that time he has been involved in a lengthy mediation which has resulted in a settlement of the civil proceedings, so he has been working and working effectively. I have no doubt he has been busy, but it is not acceptable or in accordance with the overriding objective to suggest immediately before and during a substantive appeal hearing that there are wholly new grounds which require an adjournment.

Conclusions about the decision of 2^nd May 2014

34. I have set out my reservations about the approach of the SDT on this occasion above. This decision, on its own, could not stand. The SDT wrongly rejected the medical evidence it had on the basis that it was not a "reasoned opinion" which answered all relevant questions. Given the fact that the DVT developed on the Tuesday before the Friday of this hearing it was unreasonable to expect any more than was provided. The most important part of the Policy is the last paragraph which requires the SDT to examine each case on its merits. A failure to bear that in mind is likely to lead to inflexible applications of the Policy without regard to the justice of the case. I well understand why the SDT was frustrated by the history of the case, when the appellant had been making unmeritorious applications to adjourn the case on psychiatric grounds and had failed to comply with directions relying on the same grounds. However, that is exactly the kind of situation where a tribunal must carefully guard against rushing to a judgment which disregards the overall justice of the case. I consider that the decision, however, was right although the basis for it was wrong. The best course was to leave the case in the list and to direct the appellant to produce better medical evidence so that he could renew his application on 12^th if he wished to. This would also allow him an opportunity properly to respond to the account of his conversation with Dr. Lingam which was plainly a matter of great importance to the outcome of this application.
35. Properly construed, the Policy is not being prescriptive about the need for any particular form of medical evidence. It is making the point that medical opinions expressed in documents which were not produced for the purposes of the application, but for some other purpose such as fitness to work, would generally be of no weight. The SDT did have evidence which was tailored to the purpose, although it did not emanate from the Hospital. The diagnosis was put beyond doubt by the prescription. It was also corroborated by Dr. Lingam who was able to record the circumstances in which the appellant first complained of pain his leg in April 2014 and the advice which he had given to go to his GP. This body of evidence could not rationally be ignored because it did not comply with some ideal template for medical evidence which was required for applications of this kind.
36. However, the DVT did not stand alone. There was a track record of attempts to avoid the hearing taking place in May 2014, which began in January when the issue of ill-health was first raised and a 21 day extension of time for the witness statement was requested. It appears to me that the evidence did justify the SDT taking the view that the appellant decided that he would only attend on his own terms, that is when he could instruct his lawyers to represent him. It followed that he formed an intention, probably by early April when he first applied for an adjournment on the baseless ground of his mental state and when he was in very serious breach of the direction requiring a witness statement, that he would not attend the hearing. This is what he told Dr, Lingam on 29^th April and he never sought to retract it, even in his careful document emailed to the SDT on 12^th May 2014 at 0906am.
37. It is not suggested that the Policy is unlawful, either in its treatment of medical based applications or of applications based on lack of funds for representation. In this latter case, it seems to me that providing that each case is properly considered on its merits it is entirely reasonable for the SDT (which is dealing with professionally qualified solicitors) to refuse to postpone cases where the respondent cannot afford representation. Otherwise, indigent solicitors would be immune from regulation by the Tribunal. Where the lack of funds is temporary and they will certainly become available within a certain time, then it may well be in the interests of justice to adjourn. This was not such a case. It was not certain that funds would ever become available, or, if so, when that would be. The information before the SDT about the civil proceedings was significantly less complete than that before me. It was certainly open to them to proceed, as they did on 12^th May, on the basis that an adjournment for 6 months would achieve nothing. As events were to prove, it was not only open to them to proceed on this basis they were actually right to do so. They would have had to adjourn for 12 months to give the appellant the chance to get his funds, instruct lawyers and prepare with them for a hearing. In May 2014 that would have been a very speculative basis on which to fix a hearing date.
38. The appellant's answer to this before me was to say that he was entitled to change his mind. He accepted that he did say the things which Dr. Lingam recorded, but did not expect to be held to that intention. If he had any intention of changing his mind at or before 12^th May, he would have said to the Tribunal that he would attend as soon as he was fit, that is to say in July 2014. If he had said this on 2^nd May, 12^th May or 13^th May then the Tribunal would have had to approach the case differently. In fact his timetable was not dictated by his health but by his attitude to the SDT proceedings themselves. That is why he applied for a 6 month adjournment when his medical condition, had it been the factor which governed his decision to attend the hearing, would have justified only a 6 week adjournment.
39. The fresh evidence before me does not change the position. In reality that is the affidavit of 16^th June 2014 and the letter from Dr. Chadwick dated 16^th February 2015. The affidavit supports the proposition that the applicant could have put in a witness statement had he chosen to do so. His decision not to do this supports the finding of the SDT that he had decided voluntarily to desist from defending himself in the discipline proceedings. The letter from Dr. Chadwick confirms that he became unfit to attend the hearing on the 29^th April 2014. It is however irrelevant to the basis on which the SDT decided to proceed on the 12^th May 2014, namely voluntary absence from the hearing. That is because the decision not to attend the hearing pre-dated the DVT which rendered him unfit to attend.
40. For these reasons I conclude that the SDT on 12^th May 2014 exercised its discretion properly on the material available to it in refusing to adjourn the hearing. For this reason this appeal is dismissed

Note 1   This is a criminal case which went on appeal to the House of Lords see [2003] 1 AC 1. The result and the principle were unaffected.    [Back]