Summary

There was no blanket rule that, when considering a litigant's ability to participate effectively in proceedings, judges had to ignore what they saw and heard in court and be guided only by medical evidence. Judges were entitled to form their own views and were not bound by expert evidence, even if it was agreed.

Facts

A solicitor appealed against findings of serious misconduct and dishonesty by the Solicitors Disciplinary Tribunal, pursuant to which he had been struck off the roll.

The basis of the appeal was procedural unfairness: the solicitor, a litigant in person, maintained that he had been substantially impaired in his ability to defend himself at the hearing because of mental health problems and that, despite expert psychiatric evidence from both sides to that effect, the tribunal had refused to his applications to dismiss, stay or adjourn the proceedings. A key aspect of his case was that the tribunal members had fallen into what has been described as the "appearance trap" in Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101, by reaching a view about his ability to participate effectively in the proceedings based on their own observations rather than on medical evidence, which had, in turn, affected his right to a fair trial. The tribunal had delivered a lengthy judgment, clearly referencing communications from the solicitor's GP and several consultant psychiatrists at various stages of the proceedings. It acknowledged the medical consensus that the solicitor's symptoms were impacting his performance, but concluded that nowhere was it stated that he was unable to attend the hearing or present his case. The tribunal observed that he had had representation until just before the start of the hearing and had made coherent and detailed submissions on complex areas of law at the hearing, such that it could see no justification for granting an adjournment. After 13 days, when the solicitor became absent from the proceedings owing to admission to hospital, the tribunal considered that it was in the public interest to continue and that although the solicitor was no longer capable of representing himself, he remained fit to instruct counsel. It granted a short adjournment to enable him to do so.

Held

Right to fair trial - The ability of a respondent to participate effectively in regulatory proceedings was a fundamental element of the right to a fair trial. It was to be assessed in the context of the particular proceedings, Solicitors Regulation Authority v Day [2018] EWHC 2726 (Admin) applied. The question whether to grant an adjournment on health grounds was a discretionary matter for the trial judge and an appeal court would have to be satisfied that a high hurdle had been surmounted before intervening. The emphasis might be on fairness, particularly where ECHR art.6 was at stake. Authorities indicated a potential tension between discretion and fairness. However, in practical terms, it would be a rare case where the approaches to be applied by reference to a test of fairness or Wednesbury reasonableness would result in competing outcomes, Berezovsky v Russian Television and Radio Broadcasting Co [2010] EWCA Civ 1345, General Medical Council v Hayat [2018] EWCA Civ 2796 and Teinaz v Wandsworth LBC [2002] EWCA Civ 1040 followed (see paras 74-80, 98-101 of judgment).

The alleged "appearance trap" in Solanki - In Solanki, the judge essentially completely disregarded the medical evidence without giving reasons and substituted it with his own opinion. The key assertion in the instant case was that the perception of a judicial audience as to the extent of a health impairment on a litigant's ability was no substitute for the opinion of a medical expert, and that a court's own assessment would have to be run past experts before it could be acted on. That was a misconceived notion and an unacceptable proposition as a matter of general principle. There was no blanket rule that courts or tribunals had to ignore what they saw and heard in court. It was perfectly legitimate for them, when performing an overall assessment of the evidence, to take account of their own view of a litigant's capacity to participate effectively. They were not bound to accept the expert evidence, even if that evidence was agreed. Obviously they had to exercise caution before departing from an expert conclusion and, where mental health was concerned, bear in mind that litigants might mask their problems or not understand that it might not be in their best interests to continue, Hayat followed, Solanki explained. The judge's failure to do that in Solanki was central to the Court of Appeal's criticism of him. Solanki was a very extreme case on its facts and did not appear to have featured in Hayat (paras 82-86).

The tribunal's approach to the applications for dismissal and adjournment - The tribunal's conduct could not be impugned as unjust or wrong and its findings did not fall to be set aside for procedural unfairness. Fairness and the solicitor's ability to participate effectively in representing himself had been uppermost in the tribunal's mind throughout. Having concluded that the medical evidence did not suggest that the solicitor was unable effectively to participate, the tribunal had performed a perfectly legitimate, if not necessary, cross-check by reference to his actual performance in the proceedings (paras 97, 102-104, 115, 119, 125)

Appeal dismissed