Thompson, R (on the application of) v The Law Society

There are before the court two applications for judicial review, both by the claimant, Mr Wayne Thompson, who is a solicitor and who at the relevant time was practising as a sole practitioner in the name of Wayne Thompson & Co. Both applications arise out of decisions of the Office for the Supervision of Solicitors (“the OSS”), which is an establishment set up by the Law Society and has offices and staff at Leamington Spa. It is part of the Law Society and has no separate legal existence of its own. The claimant challenges two sets of decisions of the OSS, arising out of complaints to the Law Society by two of his former clients, a Mr Rattigan and a Mrs Anderson.

In the Rattigan case the claimant seeks judicial review of the following five decisions:

In the Anderson case the claimant seeks to review three decisions made by an OSS Adjudicator on 14 January 2002 and reviewed by an Adjudication Panel on 13 August 2002. The first two decisions related to allegations of IPS and were that he was guilty of IPS and that he pay £1,000 by way of compensation to Mrs Anderson for stress and inconvenience. The third decision related to complaints about his conduct as a solicitor and was that he be severely reprimanded. On review those decisions were upheld save that the compensation was reduced to £500 and the severe reprimand was substituted by a reprimand.

No oral hearing took place before any of those decisions was made, although in each case the claimant had ample opportunity to make written representations and did so. In Mr Rattigan’s case the claimant did not seek an oral or public hearing at any time. On 4 March 2002, which was five months after the decision of the review panel, he issued the present application for judicial review. He explained the delay both on the ground that he had taken time seeking a review by the Master of the Rolls, who unfortunately had no jurisdiction to conduct such a review, and on the ground that he was under severe mental and emotional pressure because of the severe illness of his mother.

Before the application was considered by the Administrative Court it appears that the claimant met Mr Rattigan and showed him some documents, following which Mr Rattigan agreed to accept £1,000 and “withdrew his complaint”. The claimant subsequently contacted the Law Society and asked it to withdraw the complaint but by a letter dated 20 September 2002 it declined to do so.

In Mrs Anderson’s case the claimant made no request for an oral or public hearing before the Adjudicator but did so before the review by the Adjudication Panel. However, he did not include a detailed statement with his notice of appeal in support of his application and on 18 April 2002 the panel decided that it could not determine the application for an oral hearing until it received the detailed statement which he had promised earlier. It accordingly stood the application over for 28 days to allow the claimant to produce further material in support of his application for an oral hearing. Subsequently, on 27 June, the claimant submitted a two and a half page document in support of an oral hearing and a further 78 page document in support of his appeal.

On 13 August the panel considered the application but rejected it on the ground that the matter was not one of such complexity as to warrant an oral hearing and that the written material was sufficiently detailed to enable it to reach a fair conclusion. As already indicated, it issued its decision on the same day. The claimant issued his application in the Anderson case on 26 September 2002.

Both applications were refused on paper and were renewed orally before Mackay J in the Administrative Court on 3 February 2003. In the Rattigan case the judge refused the application for an extension of time but he also considered the application on its merits and said that he would have refused it on the merits. In the Anderson case he refused the application on the merits.

The claimant renewed the applications to this court and they were heard by Mantell and Buxton LJJ on 13 June 2003. The applications were granted but on a very limited basis. This can be seen from the following extracts from the judgments. Mantell LJ said:

“2.

We grant permission to apply for judicial review in both cases - that is to say, the case involving Mrs Anderson and the case involving Mr Rattigan - on one ground only in each case; that is, the one to which reference has already been made, namely the complaint that Mr Thompson ought to have been allowed an opportunity to make oral representations before the bodies which dealt with their cases. We do so on the basis that it is possibly arguable that in denying Mr Thompson the opportunity to address them, there was a breach on the part of those bodies of Article 6 of the European Convention on Human Rights and/or possibly of the rules of natural justice as might be applied under the domestic law.

3.

We give permission to apply without enthusiasm or encouragement, but we think that the matter is of sufficient importance to require further argument before the court. We direct that the hearing be before a constitution of the Court of Appeal.”

Buxton LJ said:

“4.

I agree with the order that my Lord has made. I think it
would be wrong if I did not say that I share the lack of enthusiasm that he has expressed. It seems to me that authority, not shown to us but referred to by Miss Phelps, at least at the level of the European Commission, presents a considerable difficulty to Mr Thompson in pursuing this application. But, like my Lord, I consider this to be a matter of some significance, both for the legal profession generally and for
the Law Society, and I think it would be right for the matter to be fully pursued in front of this court. Mr Engelman will, however, have taken note of the observations made both about the limited nature of the permission and about the matters that it is going to be necessary for him to address when he reappears before this court.”

As appears from those extracts, the sole ground upon which the court granted the claimant permission to apply for judicial review was that he ought to have been afforded an oral hearing so as to enable him to make oral representations to those who dealt with the two cases. It is important to note that he was not granted permission to challenge the decisions on the ground that they were otherwise wrong in law or unreasonable or irrational in the extended Wednesbury (or any other)sense. This is important because I think that in the course of the oral argument Mr Engelman was inclined to trespass into those areas. I also note in passing that the claimant has not suggested that any of the committees or panels who took the decisions complained of were not independent. I therefore make no comment on that question.

Mantell LJ made it clear that the applications for judicial review were to be made to this court, so that we are not acting as an appellate court but as a court of first instance. I shall assume that the court intended to grant the claimant an extension of time in Mr Rattigan’s case. No such extension was or is necessary in Mrs Anderson’s case. Given the narrow basis on which permission was granted I shall focus only on the question whether the Law Society infringed either the claimant’s rights at common law or his rights under article 6(1) of the European Convention on Human Rights (“the Convention”) in not ensuring that he had an oral hearing.

As the court undoubtedly appreciated when granting permission to apply for judicial review, these questions are potentially important, not only from the point of view of the claimant (and indeed other solicitors who may become involved in the process), but also from the point of view of the Law Society. We were told that the outcome of this appeal might affect some 1,500 cases a year.

I propose to consider first whether an oral hearing was required in each case at common law, secondly whether, if not, article 6(1) applies and, thirdly, whether there is a breach of the claimant’s rights under article 6(1) if an oral hearing is not held before a decision is made. However, before considering those questions I shall briefly discuss two topics, each of which has an important bearing on the answer to each question. The first is the process adopted by the Law Society and the second is the facts.

In both cases the OSS was considering allegations of IPS. The power to consider such allegations was first introduced in 1985 when the Solicitors’ Act 1974 (“the Act”) was amended by the Administration of Justice Act 1985 to add a new section 47A. The purpose of the changes can perhaps be seen from the following extract from the 1985 Report of the Lay Observer (since replaced by the Legal Services Ombudsman):

“When [the IPS powers are] brought into force, they will provide a limited but important form of redress to clients for certain types of complaint and will fill a gap which exists at present in the Society’s power to deal effectively with complaints of bad work by solicitors and in the ability of the Society to encourage and demand a higher level of performance where this is inadequate”

The usual sanction was the payment of compensation to the client. In R v The Law Society ex p Singh and Choudry [1994] Admin LR 249 at page 253A-B the jurisdiction was described as disciplinary in nature, its intention being to maintain standards in the profession.

Before the introduction of a procedure for complaining about IPS the Law Society had long had disciplinary powers in relation to solicitors. Under section 47 of the Act the power to strike off, suspend or fine a solicitor was (and is) vested in the SDT. The SDT is independent of the Law Society: see Pine v Law Society [2002] 2 All ER 658. It hears cases in public in accordance with the provisions of the Solicitors (Disciplinary Proceedings) Rules 1994 (“the 1994 Rules”). It is not in dispute that the procedures adopted by the SDT (and the SDT itself) fully comply with article 6(1) of the Convention.

The arrangements relating to IPS were replaced and updated by section 37A and Schedule 1A of the Solicitors Act 1974 which were introduced into the Act by the Courts and Legal Services Act 1990. Section 37A provides:

“Schedule 1A shall have effect with respect to the provision by solicitors of services which are not of the quality which it is reasonable to expect of them.”

Schedule 1A provides, so far as relevant:

“1(1) The Council may take any of the steps mentioned in paragraph (2) (“the steps”) with respect to a solicitor where it appears to them that the professional services provided by them in connection with any matter in which he or his firm have been instructed by a client have, in any respect, not been of the quality which is reasonable to expect of him as a solicitor.

…

2(1) The steps are –

(a)

determining that the costs to which the solicitor is entitled in respect of his services (“the costs”) are to be limited to such amount as may be specified in the determination and directing him to comply, or to secure compliance, with such one or more of the permitted requirements as appear to the Council to be necessary in order for effect to be given to their determination;

(b)

directing him to secure the rectification, at his expense or that of his firm, of any such error, omission or other deficiency arising in connection with the matter in question as they may specify;

(c)

directing him to pay such compensation to the client as the Council sees fit to specify in the direction;

(d)

directing him to take, at his expense or that of his firm such other action in the interests of the client as they may specify.

(2)

The ‘permitted requirements’ are –

(a)

that the whole or part of any amount already paid by or on behalf of the client in respect of costs be refunded;

(b)

that the whole or part of the costs be remitted;

(c)

that the right to recover the costs be waived, whether wholly or to any specified extent.

(3)

The power of the Council to take such steps is not confined to the cases where the client may have a cause of action against the solicitor for negligence.

…

4(1) Where the Council have given a direction under paragraph 2(1)(a), then

(a)

for the purpose of any taxation of a bill covering the costs, the amount charged by the bill in respect of them shall be deemed to be limited to the amount specified in the determination; and

(b)

where a bill covering the costs has not been taxed, the client shall, for the purposes of their recovery (by whatever means and notwithstanding any statutory provision or agreement) be deemed to be liable to pay in respect of them only the amount specified in the determination.

(2)

Where a bill covering the costs has been taxed, the direction shall, so far as it relates to costs, cease to have effect.

5(1) If a solicitor fails to comply with a direction, given under this Schedule, any person may make a complaint in respect of that failure to the Tribunal [ie the SDT]; but no other proceedings whatever shall be brought in respect of it.

(2)

On the hearing of such a complaint the Tribunal may, if it thinks fit (and whether or not it makes any order under section 47(2), direct that the direction be treated, for the purposes of enforcement, as if it were contained in an order made by the High Court.”

The limit of compensation was £1,000 until 31 March 2000 when it was increased to £5,000, which was the relevant limit for the purposes of this case. In July 2003 the Council of the Law Society resolved to recommend an increase to £15,000.

The Law Society’s activities are governed by the Law Society General Regulations 1997 as amended in 2001 (“the General Regulations”). Under section 79 of the Act the Law Society has a general power to delegate its functions. In the case of its powers under section 37A and Schedule 1A those functions have been delegated to the “Compliance Board” pursuant to Regulation 22(B)(1) of the General Regulations. The Board has in turn resolved to delegate the Schedule 1A powers to adjudicators with an appeal lying to members of the Compliance Board.

Complaints of IPS are dealt with through the Client Relations Office (“the CRO”) within the OSS. In May 2001 the Compliance and Supervision Committee made and published a policy statement in the Law Society Gazette which began as follows:

“The system of redress for [IPS] is intended to be informal, accessible and understandable by clients and solicitors.”

In 2002 the CRO received 9,114 new complaints and there were 1,586 first instance decisions relating to IPS. The total of compensation awarded was £561,203, which was an average of £605 a case in which compensation was awarded. There were 473 appeals, 35 per cent of which were allowed in whole or in part. The Law Society, in my opinion correctly, regard the jurisdiction with regard to IPS as of considerable value and importance, not only in order to compensate clients but also in order to encourage higher standards among solicitors.

The OSS is concerned both with solicitors’ conduct and with allegations of IPS. Its internal procedures are broadly similar in both cases. On receipt of a complaint, if the client has not already contacted the solicitor, the OSS refers the complaint to the firm in the hope that it can resolve it direct and we understand that a large number of complaints are resolved in this way. If the complaint cannot be resolved, a caseworker is assigned to the case by the OSS. The caseworker investigates the matter in correspondence and by telephone and attempts conciliation. If, and only if, that fails that he prepares a report.

The report (or “agenda note”) is disclosed in full both to the solicitor and to the client. The report and any submissions made by the parties are provided to an Adjudicator or previously, as in Mr Rattigan’s case, to a Client Relations Sub-committee. The papers may (as in these cases) be voluminous. The OSS does not normally limit the length of the submissions that can be made and I would accept the submission that the purpose of the procedure is to give both parties, including of course the solicitor, a fair opportunity to comment on all relevant matters.

In the case of a complaint of IPS, the Adjudicator exercises the powers conferred on the Council by Schedule 1A of the Act which are set out above. The solicitor has a right of appeal to or review by an Adjudication Panel. However, as I understand it, at the end of the process neither the Adjudicator nor the Adjudication Panel has any powers in relation to a finding of IPS beyond those conferred on the Council by Schedule 1A.

I shall return to those powers below in the context of the facts of these applications but it is important to note that the Council’s powers are to take the steps mentioned in paragraph 2, which in each case (including paragraph 2(1)) involves giving the solicitor a direction. Such a direction is not itself enforceable in law. By paragraph 5(1), enforcement can only be effected by the making of a complaint to the SDT. Much of the debate between the parties centred on the effect of a direction given under the schedule, since it was submitted by Mr Engelman that in some respects it has immediate effect: see further below.

In addition to his powers in connection with complaints of IPS, when considering allegations relating to a solicitor’s conduct in other respects, the Adjudicator has a number of discrete powers under the Law Society’s procedures, including a power to refer a complaint to the SDT, which will be done in the more serious cases, especially of misconduct. He also has power (unless of course he dismisses the complaint) to express regret but take no further action, to express disapproval of the solicitor’s conduct, to reprimand the solicitor or severely to reprimand him. The power to refer the claimant to the SDT was exercised in the Rattigan case, as was a further power known as the vesting of a discretion to which I shall return below. The power to issue a severe reprimand and, subsequently, a reprimand was exercised in the Anderson case: again see further below. In each case there is a right of appeal to or review by an Adjudication Panel.

An Adjudication Panel usually consists of three members but sometimes only two. Adjudication Panel members are made up of members of the Council, non-Council solicitors and lay members appointed by the Master of the Rolls. The panel will have all the papers that were before the Adjudicator together with further submissions and often further evidence. The appeal consists of a full reconsideration of the case.

Both the Adjudicator and the Adjudication Panel have a discretion to hold an oral hearing. We were told, and I would accept, that an application for an oral hearing will be granted if the Adjudicator or the Adjudication Panel thinks that fairness requires one, although they are very rare. The Law Society says that it would place a great, and probably intolerable burden on the OSS if it were to have an oral hearing in every case. In 2003 the Law Society had 42 panel members. A panel of three sat on 140 occasions, each of which lasted about half a day and involved a considerable amount of reading in advance. We were also told that a large number of statutory responsibilities under the Act in addition to IPS and conduct have been delegated to the panel members under section 79.

For my part, I see the force of the difficulties which would be involved if an oral hearing were required in every case like the present but I accept the submission that if such a hearing is necessary, either at common law or to ensure a fair trial or hearing under article 6 of the Convention, the difficulties will have to be overcome.

I shall briefly refer to the facts of each case separately but, as I understand it, the claimant’s principal concern in each is that he was held to have misled the client and that he might be thought to have been held to have acted dishonestly. While I can understand the claimant’s sensitivity in this regard, his concern is not in my opinion well-founded. Mr Dutton made it clear in the course of his submissions on behalf of the Law Society that the Law Society had at no stage made an allegation of dishonesty against the claimant in either case and that there is no suggestion that any of the tribunals which considered either case has made findings of dishonesty against him. That concession (if concession it is) was in my view correctly made.

The claimant acted for a legally aided client, Mr Rattigan, for a number of years in a claim for an alleged wrongful arrest which had taken place in 1985. The claim was eventually struck out for want of prosecution in November 1997. Mr Rattigan complained to the Law Society. After considering an extensive amount of documentation and the submissions of both Mr Rattigan and the claimant a caseworker prepared a detailed report dated 6 June 2001 into both the ‘service’ and ‘conduct’ aspects of the complaint. He also prepared a supplemental report dated 16 June 2001. He recommended that a finding of IPS be made, that the claimant pay compensation to Mr Rattigan and that he reduce his fees to reflect the inadequacies in the service. He also recommended that there be a finding that the claimant had acted in breach of various professional rules and guidelines in his handling of the case and that he be severely reprimanded.

The report was referred to the two committees referred to above. The claimant made detailed written submissions to the committees on 21 June and 16 July 2001. The committees considered them together with the relevant documents and made their decisions on 16 August 2001 as set out above. The committee dealing with the complaint of IPS found that there was general delay on the part of the claimant, a delay in dealing with a lost court file, failure to reply to correspondence and non-compliance with rule 15 of the Solicitors’ Practice Rules, which deals with costs information and client care. It made the orders set out above.

The committee dealing with the conduct side of the complaint held that there had been serious delay in proceeding with the matter between 1987 and 1996, that the claimant had misled Mr Rattigan in relation to the court hearing date and that the claimant had failed to deal promptly with the correspondence. It made the orders set out above.

The claimant exercised his right of appeal and sent the Law Society both appeal notices and further written submissions in support of his appeal contained in two bundles under cover of letters dated 3 and 16 September 2001. Those documents were forwarded to Mr Rattigan for his comments. On 26 September the Adjudication Panel rejected both appeals. In each case the panel held that the findings reached at first instance were correct and that the claimant had not produced any or any sufficient evidence to overturn them.

The claimant has over a considerable period sought to challenge those conclusions in a number of respects. However, those challenges have for the most part focused, not on the failure to afford him an oral hearing or an opportunity to give evidence or to cross-examine Mr Rattigan, but on an alleged failure on the part of the relevant committee and panel to have regard to all the evidence. Reliance is placed in particular on a skeleton argument dated 30 January 2003 and on Mr Engelman’s skeleton argument prepared for this appeal.

Thus in the latter document it is submitted that the essential issue in the case was the allegation that the claimant misled Mr Rattigan about a crucial court hearing date. It is submitted that the documents, and notably a letter sent to Mr Rattigan dated 20 May 1994, an attendance note dated the same day, an order of the court dated 25 November and drawn on 30 November 1994 fixing a trial date and a letter dated 2 December 1994 from the claimant to Mr Rattigan confirming the order shows that the claimant did not mislead Mr Rattigan. The thrust of the complaint is that in these circumstances the committee should not have held that the claimant had “[not] taken any steps to explain to Mr Rattigan the details of the arrangement for dealing with setting down and getting a hearing date”.

The difficulty which the claimant faces in this regard is that (as stated earlier) the claimant does not have permission to challenge the decisions on the basis that they were irrational or unlawful but simply on the basis that he was not afforded an oral hearing. It is not therefore appropriate for us to express a view on points of detail of the kind set out above. Reading the documents with care, I have reached the clear conclusion that there was nothing unfair in either committee or the panel proceeding to consider Mr Rattigan’s case without suggesting an oral hearing.

I have no doubt that if the claimant had thought at the time that an oral hearing was desirable, or if he had wanted to give oral evidence or to cross-examine Mr Rattigan, he would have asked to be permitted to do so. It is clear from the many documents which he has put before the various tribunals, the Administrative Court and the Court of Appeal that he is an extremely articulate solicitor and well able to look after himself. I can entirely understand his decision not to ask for an oral hearing or to call oral evidence because the issues were all eminently capable of being determined by a perusal of the documents.

I shall return below to the suggestion that the claimant may have suffered an injustice arising out of the penalties imposed in Mr Rattigan’s case.

The claimant was instructed by Mrs Anderson in 1992 in connection with a medical negligence action against a local authority. At the time that the claimant took over the case Mrs Anderson’s claim had been dismissed for want of prosecution. The claimant successfully applied to have it reinstated but thereafter the action proceeded extremely slowly. Mrs Anderson complained to the Law Society. There were two principal areas of concern. The first related to what were said to be six years of delay after the action was reinstated in 1993 and the second arose out of letters written to Mrs Anderson indicating that the action had been set down for trial. It was alleged that the claimant never did set it down for trial despite positive assertions in the letters that he was doing so.

A caseworker prepared a report dated 27 September 2001 which took account of comments made by both Mrs Anderson and the claimant. The caseworker was of the opinion, on the ‘conduct’ aspect of the case, that the claimant had behaved unprofessionally and that he was in breach of Practice Rule 1 by misleading Mrs Anderson in respect of the progress of her case and recommended that he be reprimanded. On the ‘service’ aspect of the case, the caseworker concluded that that he was guilty of IPS and recommended that he pay Mrs Anderson compensation and that he should not be entitled to any fees.

The claimant was able to put whatever documents he wished and to make written submissions to the Adjudicator, which he did, but the Adjudicator concluded in his ‘hybrid’ decision dated 14 January that the claimant had misled Mrs Anderson by indicating to her that her case was ready for trial but accepted that this was not motivated by anything more serious than a desire to placate the client. He directed that the claimant should be given a severe reprimand for this breach of the Solicitors’ Practice Rules. He also found that there had been IPS as a result of unreasonable delay and failure to explain the lack of progress to the client. As already indicated, he fixed compensation at £1,000. The claimant had made no request for an oral hearing or that the Adjudicator should hear oral evidence.

The claimant appealed to the Adjudication Panel and requested an oral hearing. In his two and a half page document dated 27 June 2002 in support of his application for an oral hearing he relied upon article 6(1) and 6(3)(d) of the Convention and a number of decisions of the European Court of Human Rights (“ECHR”) to which I shall refer below. The thrust of his submission was that his right to practise his profession as a solicitor was at stake. His case on the facts was that it was only as a result of Mrs Anderson’s refusal to submit to further medical examinations that no progress was made with her action and that Mrs Anderson had withheld certain documents from the OSS with the result that a false picture of the advice and explanations that she received was created. The claimant emphatically denied that Mrs Anderson was misled in any way.

As already indicated, in addition to the above, the claimant submitted a long document in support of his case on the facts. The Adjudication Panel considered both and decided that it was not necessary to hold an oral hearing or to permit oral evidence on the grounds that the matter was not one of such complexity as to warrant an oral hearing and that the written evidence was sufficiently detailed. It was indeed very detailed and, as I understand it, the claimant submitted all the documents which he said that Mrs Anderson had previously withheld. Since his allegation that Mrs Anderson misled the OSS was essentially that she had failed to include and draw their attention to all the relevant documents, it seems to me that the Adjudication Panel was able to evaluate that submission by considering all the documents and arriving at a conclusion as to whether or not the conclusions reached by the Adjudicator were or were not justified on the basis of all the documents now put before it by the claimant. I do not for my part see that an oral hearing or oral evidence was required in order fairly to determine the issues between the parties. However, I will briefly consider this point further below.

It is plain from the panel’s decision that they considered all the material and, as already indicated, they allowed the appeal in part. In the skeleton argument prepared by Mr Engelman for this application (and indeed in his helpful oral submissions) he highlights a number of factual aspects of the case. He complains that the first allegation was that Mrs Anderson believed that she had been misled by the claimant and that that allegation was accepted at first instance, whereas the Adjudication Panel put the conclusion differently in terms that were not put to him. Moreover it is submitted that if they had been, the claimant would have been able to show that the conclusion reached by the panel was wrong by reference to the documents. In short, his case is that the letters relied upon against him do not tell the whole story and that it was made clear to Mrs Anderson both in correspondence and at meetings evidenced by attendance notes that without further medical evidence or the confidence that such evidence be available or the advice of counsel that it was not required it would not be possible to set the matter down for trial.

In support of the claimant’s case on the facts Mr Engelman drew our attention to a number of documents, both in his skeleton argument and orally. As I understand it, they were all before the Adjudication Panel, as were very many other documents relied upon by the claimant. In so far as the claimant seeks to impugn the decision of the panel on grounds other than the failure of the panel to afford him an oral hearing, it is not open to him to do so. His application for judicial review was refused by Mackay J and, as I have already indicated, this court only gave him permission to rely on the absence of an oral hearing and, in Mrs Anderson’s case, on the panel’s refusal to grant his application for such a hearing.

In these circumstances it is not appropriate for us to consider the other proposed grounds of challenge to the decisions and I turn to consider the question whether the claimant has made good his case that he ought to have been afforded an oral hearing or an opportunity to give oral evidence and to cross-examine his clients, either at common law or by reason of article 6(1) of the Convention.

The question under this head is whether the claimant was entitled to an oral hearing in either case either before the Adjudicator (or equivalent) at first instance or before the Adjudication Panel on appeal. The duty of each was to act fairly. What is fair depends upon the circumstances of the particular case. I can imagine circumstances in which an adjudicator or appeal panel might think it appropriate to hold an oral hearing and there may even be cases in which the court would intervene to quash a decision refusing to do so.

The relevant principles have recently been considered by this court in Smith v The Parole Board [2003] EWCA Civ 1269, where this court considered and rejected a submission that the Parole Board should have held an oral hearing. In that context, in paragraph 37 Kennedy LJ approved the following test proposed by counsel. An oral hearing should be ordered where there is a disputed issue of fact which is central to the Board’s assessment and which cannot fairly be resolved without hearing oral evidence. In the present context it is to my mind difficult to think of such an issue, but nothing is impossible.

I cannot at the moment think of a circumstance in which a solicitor who did not ask for an oral hearing before the adjudicator or appeal panel could complain that no oral hearing was held. In my judgment, the claimant’s failure to ask for an oral hearing in Mr Rattigan’s case is fatal to his argument at common law.

Mrs Anderson’s case is somewhat different because, of course, the claimant did ask for an oral hearing before the Adjudication Panel. However, the Law Society was in my judgment entitled to leave it to the panel to decide whether to accede to an application for an oral hearing. In reaching its conclusion the panel or (in a case where an application is made to the adjudicator) the adjudicator must of course act fairly. However, the documents show that the Adjudication Panel gave careful consideration to the application for an oral hearing and gave reasons for its refusal of it. It seems to me to be clear that, although its decision was made long before the decision in Smith v The Parole Board, the Adjudication Panel essentially applied the test approved there. As stated above, it decided that a hearing was not necessary because the matter was not one of such complexity as to warrant an oral hearing and the written evidence was sufficiently detailed. It plainly considered that fairness did not require an oral hearing and that the issues could fairly be resolved on the documents.

In Smith v The Parole Board the court emphasised in that context the principles applied by the House of Lords in R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 per Lord Mustill at pages 560D-561A, which was concerned with the case where an Act of Parliament has conferred an administrative power. It seems to me that similar principles apply here. In particular, for present purposes I should I think refer to an important principle in Lord Mustill’s speech which was followed in Smith. He expressed it thus:

“ …. The respondents acknowledge that it is not enough to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament had entrusted not only the making of the decision but also the choice as to how the decision is made”.

In my opinion, that approach applies equally to the challenge in this case. To succeed the claimant would have to show that the procedure adopted was unfair. In this case, the only question before this court at common law is, as I see it, whether he can show, in the case of each decision impugned, that it was unfair to make it on the documents without any form of oral hearing.

I have reached the clear conclusion that he cannot. In Mr Rattigan’s case, where no request was made for an oral hearing or for oral evidence to be heard, I can see no sensible basis for such a decision. As already stated, my conclusion is that each of the complaints could be fairly determined on the documents. The same is in my opinion true in Mrs Anderson’s case. As explained earlier, whatever view the claimant may hold (or have held), he was not being accused of dishonesty. It was to my mind an entirely sensible decision to determine the complaints on the documents, of which there were many. There was no need for an oral hearing or oral evidence. Moreover, the Adjudication Panel applied the correct test in refusing the claimant’s application and in any event the decision cannot be impugned as unfair or unlawful by whatever test is adopted. That is for the simple reason (as I see it) that there was no disputed issue of fact which was central to the Adjudication Panel’s assessment in her case and which could not fairly be resolved without hearing oral evidence and without an oral hearing (my emphasis).

It follows that I would refuse the application for judicial review in so far as it depends upon the principles of the common law. I therefore turn to the remaining two questions, namely whether article 6(1) applies and, if so, whether there has been any infringement of the claimant’s rights under it.

Article 6 provides, so far as potentially relevant:

1.

In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ….

3.

Everyone charged with a criminal offence has the following minimum rights:

(d)

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

It is important to note that this application is not concerned with a person charged with a criminal offence so that the claimant does not have the rights conferred on such a person by article 6, including those in article 6(3)(d). For that reason decisions in criminal cases are not in my opinion of any real assistance.

The claimant’s case under this head is that the decisions in both the Rattigan and the Anderson cases involved the determination of his civil rights and obligations and that it follows that he was entitled to a fair and public hearing of the complaints at each stage. The Law Society’s case is that none of the decisions at first instance or on appeal to the Adjudication Panel involved the determination of the claimant’s civil rights or obligations but in any event that the authorities show that the procedures must be considered as a whole and, so considered, there has been no infringement of the claimant’s rights under article 6 in any of the respects alleged.

In these circumstances I shall first consider the correct approach to article 6(1) in the light of the authorities and of the Strasbourg jurisprudence and shall then consider each of the respects in which it is said that there has been an infringement of the claimant’s rights under the article. Since different considerations may apply to the different decisions made it is necessary to consider them one by one. For example, it is not I think said that the finding that a solicitor is guilty of IPS is itself a determination of his civil rights or obligations. The argument has focused on each of the penalties imposed by the Committees, the Adjudicator or the Adjudication Panel as the case might be. It is convenient to consider them under these headings: reprimand and severe reprimand, vesting of a discretion, reference to the SDT, compensation and costs.

Logic might suggest that the question whether there has been a breach of article 6(1) should be approached by asking first whether there has been a determination of the claimant’s civil rights and obligations and then by asking whether, if there has, there has been a breach of them. It is of course relevant to consider those questions but both the English authorities and the Strasbourg jurisprudence show that those questions cannot be treated entirely separately and that the question whether there has been a breach of article 6(1) should be answered by considering all the circumstances of the case and having regard to all the legal processes available to the claimant. Those processes include any avenues of appeal or review available to the claimant and are not limited to the process at first instance.

The courts have considered the application of article 6(1) in many different contexts and the correct approach in any particular case is likely to vary depending on the context. Thus in some cases compliance with it will require a full public and oral hearing at first instance with a full opportunity to cross-examine the relevant witnesses. In other cases, there will be compliance even though there was no public or oral hearing and no cross-examination of witnesses at first instance, provided that, when the process is considered as a whole there has been a fair and public hearing.

The general principle was stated thus by Lord Bingham in Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 WLR 388 at paragraph 5:

“The importance of this case is that it exposes, perhaps more clearly than any earlier case has done, the interrelation between the article 6(1) concept of “civil rights” on the one hand and the article 6(1) requirement of “an independent and impartial tribunal” on the other. The narrower the interpretation given to “civil rights”, the greater the need to insist on review by a tribunal exercising full powers. Conversely, the more elastic the interpretation given to “civil rights”, the more flexible must be the approach to the requirement of independent and impartial review if the emasculation (by over-judicialisation) of administrative welfare schemes is to be avoided. Once it is accepted that “full jurisdiction” means “full jurisdiction to deal with the case as the nature of the decision requires” (per Lord Hoffmann, R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, 1416, para 87), it must also be accepted that the decisions whether a right recognised in domestic law is also a “civil right” and whether the procedure provided to determine that right meets the requirements of article 6 are very closely bound up with each other. It is not entirely easy to apply clear rules derived from the Strasbourg case law since, in a way that any common lawyer would recognise and respect, the case law has developed and evolved as new cases have fallen for decision, testing the bounds set by those already decided.”

There have now been a series of cases in which the courts have endorsed the proposition that, where article 6(1) is in principle applicable or, as it is sometimes put, engaged, there is no infringement of the right to a fair and public trial so long as the procedures, viewed as a whole, provide full jurisdiction to deal with the case as the nature of the decision requires. An important example of this principle can be seen in R (Adlard) v The Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 735, [2002] 1 WLR 2515, in the context of the requirement in article 6(1) of a fair and public hearing, albeit in a case about planning permission. This court asked itself whether the appellants’ entitlement to “a fair and public hearing” by “an independent and impartial tribunal” was satisfied by the English planning system which, in the case of objectors, allows the local planning authority to grant planning permission without having afforded them any opportunity of an oral hearing subject only and always to this court’s supervisory jurisdiction on a judicial review application.

It was a case in which it was not in dispute that the appellants’ civil rights had been determined and that the local planning authority was not itself to be regarded as an independent and impartial tribunal for the purposes of article 6. Yet the court answered the above question in the affirmative. It held that the rights of objectors to planning applications are not violated if a planning authority refuses to accord them a public hearing, or indeed any form of oral hearing because, as Dyson LJ put it in paragraph 46,

“a combination of the authority’s decision-making process and judicial review by the High Court is sufficient to ensure compliance with article 6.”

In his judgment in that case Simon Brown LJ, with whom Mummery and Dyson LJJ agreed, approved the following statement of Sullivan J in R (Vetterlein) v Hampshire County Council [2001] EWHC Admin 1736, albeit again in the context of a planning application:

“The special meeting was held in public. The agenda was available to members and to the public beforehand. In deciding whether there has been a breach of article 6(1) the procedures have to be looked at in their entirety, including the earlier opportunities to make representations during the consultative process and the subsequent right to seek relief by way of judicial review if the council errs in law. A ‘fair’ hearing does not necessarily require an oral hearing, much less does it require that there should be an opportunity to cross-examine. Whether a particular procedure is ‘fair’ will depend upon all the circumstances, including the nature of the claimant’s interest, the seriousness of the matter for him and the nature of any matters in dispute.”

Those principles seem to me to accord entirely with the approach of the common law set out above.

In the course of his judgment Simon Brown LJ considered a number of English cases involving administrative decisions and two decisions of the ECHR, namely Fredin v Sweden (No 2) A 283-A (1994) and Jacobsson v Sweden (No 2) (1998) 32 EHRR 463. He noted in paragraph 28 that in Fredin’s case the court clearly stated under its existing case law that “in proceedings before a court of first and only instance” the right to “a public hearing” entailed an entitlement to an “oral hearing”. As Simon Brown LJ put it, the critical question in that case was whether the fact that the applicant was denied an opportunity to present oral argument before the Supreme Administrative Court, which was the first and only tribunal seised of the applicant’s challenge to the underlying administrative decision, breached article 6(1). The court held that it did because he had been guaranteed a right to an oral hearing and had had none.

In paragraph 29 Simon Brown LJ contrasted the decision in Jacobsson’s case, where the ECHR applied the same principles but held on the facts that, although it acted as the first and only judicial instance, given the limited nature of the issues before it, the Supreme Administrative Court was dispensed from its normal obligation to hold an oral hearing. To my mind those decisions of the ECHR illustrate the importance of the circumstances of the case and show that the resolution of questions of this kind is very fact sensitive.

Finally, Simon Brown LJ noted in paragraph 30 that an applicant for judicial review is entitled to an oral hearing of his application for judicial review and added this in paragraph 32:

“The remedy of judicial review, in my judgment, amply enables the court to correct any injustice it perceives in an individual case. If, in short, the court were satisfied that exceptionally on the facts of a particular case, the local planning authority had acted unfairly or unreasonably in denying an objector any or any sufficient oral hearing, the court would quash the decision and require such a hearing to be given. This presents no difficulties: [Counsel] disputes neither the authority’s power to conduct such a hearing nor the court’s power to order it.”

A striking exercise of the court’s powers on an application for judicial review is the decision of this court, comprising Simon Brown, Brooke and Hale LJJ, in R (Wilkinson) v Broadmoor Special Hospital [2001] EWCA Civ 1545, [2002] 1 WLR 419, which was indeed relied upon by Mr Engelman. In that case the court held that on an application for judicial review of a decision to administer medical treatment to a mental patient without his consent the court was entitled to reach its own view as to whether the treatment infringed the patient’s human rights. The court further held that what was or would be required on a substantive challenge would be a full merits review of the propriety of the treatment proposed and, for that purpose, cross-examination of the specialists.

That was undoubtedly an exceptional case but it shows that the court has wide powers on an application for judicial review to correct any perceived injustice, which include (if necessary) the cross-examination of witnesses. More conventionally, as Simon Brown LJ observed in paragraph 32 of Adlard quoted above, it has a power which it regularly exercises to quash the decision complained of and to order an appropriate rehearing, if necessary an oral hearing in public with cross-examination of witnesses. Whether it is appropriate for it to exercise it in any particular case of course depends upon the circumstances of the case.

I recognise that many of the recent cases have involved administrative decisions including determination of planning applications but it seems to me that the same underlying principles apply to a case which involves findings of fact. It may be that on particular facts it would be necessary for a first instance tribunal itself to hold a public hearing and to allow oral representations and indeed cross-examination of witnesses and that, if it did not, the court would so order on an application for judicial review. I will return below to the question whether this is such a case.

The key point as a matter of principle is that the question whether the procedure satisfies article 6(1), where there is a determination of civil rights and obligations, must be answered by reference to the whole process. The question in each case is whether the process involves a court or courts having “full jurisdiction to deal with the case as the nature of the decision requires”. There may be cases in which a public and oral hearing is required at first instance and other cases where it is not, just as there may be cases in which the potential availability of judicial review will not be sufficient to avoid a breach of article 6(1).

That is to my mind demonstrated not only by the English authorities but also by the Strasbourg jurisprudence. I have already referred to the cases of Fredin and Jacobsson. The same approach was adopted in Bryan v United Kingdom (1996) EHRR 342, which was another planning case, and indeed in X v Austria App No 5362/72, relied upon by the claimant. In that case the applicant’s goods had been seized by way of execution and he sought to stop the execution process. To that end he wanted to call some witnesses and have an oral hearing. The Commission recalled that it had previously held that the refusal of a court to allow a party in a civil action to call a witness or to cross-examine a witness might be an infringement of his right to a fair hearing but then said this:

“The Commission observes that the Regional Court carefully considered the benefit of complying with the applicant’s request to call Dr A and to arrange a confrontation with the parties. The Court reached the conclusion that the evidence which Dr A could give would not be relevant and also that the desired confrontation would be of no assistance in determining any of the matters in dispute in the case. The Commission notes the Regional Court’s reasons for refusing the applicant’s requests and, for the same reasons, it does not find that in the circumstances the refusal to call the witness concerned was inconsistent with the provisions of Art. 6(1) of the Convention.”

For those reasons the Commission declared the application inadmissible. It had approached a similar problem in much the same way in X v The Federal Republic of Germany App N 852/60, a case also referred to by Mr Engelman.

On the other hand there have been cases where the ECHR has held that neither the tribunal of first instance nor the reviewing court has provided a fair and public hearing within the meaning of article 6(1): see eg W v The United Kingdom (1988) 10 EHRR 29 at paragraph 82, Obermeier v Austria (1991) 13 EHRR 290 at paragraphs 34 and 35 and Diennet v France (1996) 21 EHRR 54.

In the context of a case like the present, the position was well put by Lord Mackay of Drumadoon in the Court of Session in Tehrani v United Kingdom v Central Council for Nursing Midwifery and Health Visiting [2001] IRLR 208, which is discussed in more detail below. He summarised the position referable to disciplinary tribunals in this way in paragraph 55:

“In my opinion, cases such as Le Compte, Van Leuven and De Meyere, Albert and Le Compte and Bryan establish that, as far such tribunals are concerned, no breach of the Convention arises if the tribunal is subject to control by a court that has full jurisdiction and itself complies with the requirements of Article 6(1). In other words, when dealing with a disciplinary tribunal, such as the PCC, a right of appeal to a court of full jurisdiction does not purge a breach of the Convention. It prevents such a breach from occurring in the first place.”

I entirely agree. I shall refer to the Le Compte cases below.

We were also referred to statements in some textbooks but to my mind none of them carries the matter any further. In short, all depends upon the circumstances.

Finally, I should refer back to Smith v The Parole Board, where this court held that there had been no determination of the applicant’s civil rights and obligations but, if there had been, article 6(1) did not confer a right to an oral hearing. Kennedy LJ said in paragraph 30 that even if the Parole Board was determining the applicant’s civil rights and obligations,

“ … I would not, in this case, say that the claimant was entitled to an oral hearing. He did not request it. He did not raise any issue which seemed to call for it. The importantprimary facts were not in dispute. The points which he wished to make were clearly made for him in writing, and all that remained was for the Parole Board to make its evaluation.”

That approach seems to me to be entirely consistent with the principles discussed above, although it should perhaps be noted that the question in Smith was whether there should have been an oral hearing, not whether there should have been a public hearing. Counsel for the applicant had indicated that he was not saying that there should have been public hearing, which is not of course quite the same thing as an oral hearing. The same is, I think, true here because the thrust of the claimant’s case is not so much that there should have been a public hearing but that there should have been an oral hearing at which oral evidence could be given. It seems to me that that is essentially a feature of the fairness of the process.

I turn to consider each of the decisions made in the light of the approach just discussed. In each case it is appropriate to consider whether there was a determination of the claimant’s civil rights and, if so, where there was any breach of his rights under article 6(1). That involves in each case a consideration of the whole process.

It is convenient to consider this question first because it highlights the different approaches of the claimant on the one hand and the Law Society on the other. The civil right which the claimant identifies is the right to practise his profession as a solicitor. The Law Society, on the other hand submits that the claimant’s right to practise has not been determined or interfered with in any way by any of the decisions made by the committees, adjudicator or adjudication panel in either case. Both parties rely in this regard on two decisions of the ECHR involving the same person, a Monsieur Le Compte. They are Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 and Albert and Le Compte v Belgium (1984) 6 EHRR 583.

The applicants were found guilty of professional misconduct and suspended from practising medicine by a disciplinary tribunal in Belgium. One of the questions before the ECHR in the earlier case was whether their rights under article 6(1) had been infringed. The conclusions reached by the court may be summarised as follows:

In Albert and Le Compte v Belgium the court followed its decision in the first Le Compte case. So did the Commission in A v The United Kingdom App No 10331/83, where a barrister was reprimanded by the Disciplinary Tribunal of the Senate of the Bar in England for professional misconduct. The Commission rejected the complaint as manifestly unfounded, saying that it was the imposition of sanctions such as preventing a doctor from running a clinic or suspending a doctor from practising his profession which “extended the normal realms of disciplinary proceedings into that of determination of civil rights.” It followed that the reprimand of a barrister “did not overstep the bounds of disciplinary matters and did not determine any of his civil rights and obligations”. Tucker J followed that decision in R (Kypros Nicolaides) v General Medical Council [2001] EWHC Admin 625 in the case of a consultant in obstetrics who had been given what was described as the severest of reprimands for serious professional misconduct.

Some reliance was placed on the decision of the ECHR in Gautrin v France (1999) EHRR 221, where 99 doctors were suspended for a breach of their code of conduct and the remaining six were reprimanded. It was conceded that there had been a determination of the doctors’ civil rights, no doubt because the vast majority had been suspended, and the court said in paragraph 33 that what was “at stake” was the right to continue to practise medicine. As I see it, that is the distinction between the kind of case in which there is, say, a reprimand and the kind of case in which there is a suspension of the right to practise. It is only in the latter class of case that it can be said that the right to continue practise is at stake so as to cross the line between a disciplinary process and a process which determines civil rights and obligations.

The court held that the applicants’ rights were infringed because the proceedings were not in public and, as it put it in paragraph 42, the holding of court hearings in public constitutes a fundamental principle enshrined in article 6(1). It was argued that there was no infringement because a hearing before the Conseil d’État would have been in public. That argument was rejected, although it is to my mind clear from paragraph 42 that the court held that the fact that the applicants would have had a hearing in public if they had appealed to the Conseil d’État was irrelevant only for the reasons set out in paragraph 38 as follows:

“… it was the Conseil d’État’s settled case law that the provisions of Article 6(1) of the Convention were inapplicable to proceedings before those bodies. In those circumstances an appeal on points of law based on that complaint would not have been and “adequate” or “effective” remedy.”

There are two decisions of the ECHR which applied the above principles to lawyers. They are H v Belgium (1987) 10 EHRR and WR V Austria, unreported, 21 December 1999. In the latter case the court recalled its earlier case law to the effect that disciplinary proceedings give rise to disputes over civil rights if what is a stake is the right to continue to exercise a profession.

There is a valuable contribution to this debate by Lord Mackay of Drumadoon in the Court of Session in Tehrani v United Kingdom v Central Council for Nursing Midwifery and Health Visiting [2001] IRLR 208, where a nurse sought an injunction (or interdict) to restrain the respondents from proceeding with a disciplinary charge against her by their Professional Conduct Committee (“PCC”) on the ground that the PCC was not an independent and impartial tribunal. Unusually in this case, unlike the others, relief was sought in advance. Lord Mackay held in paragraph 33 that, if the petitioner could establish that the disciplinary proceedings could result in a finding that would constitute a determination of her civil rights and obligations, the decision to initiate those disciplinary proceedings was open to challenge as being incompatible with her Convention rights. Lord Mackay then considered the Strasbourg jurisprudence in some detail and held that in paragraphs 42 to 44 that if the petitioner were to have her name removed from the register following a finding of misconduct against her, such a determination would exclude her from certain nursing posts as a matter of law and would amount to a determination of her civil rights.

Those conclusions are entirely consistent with the decisions of the ECHR to which I have referred. It is true that Lord Mackay left open the question what the position would be if the PCC simply cautioned the petitioner as to her future conduct. However, in my opinion the decisions of the ECHR are clear on the point. At any rate in a case where the court is considering the position after the tribunal had made its decision, as in the instant case, a decision to reprimand or severely to reprimand the person concerned (here the claimant) does not amount to a determination of his civil rights because the right to continue to practise his profession is not at stake.

It follows from the above analysis that, subject to a particular point taken by Mr Engelman on the facts of this case, neither the decision severely to reprimand the claimant nor the decision to reprimand him was a determination of his civil rights. The particular point is that it is said that the effect of the reprimand is likely to make it difficult or impossible for the claimant to obtain professional indemnity insurance and thus to continue to practise as a solicitor. It is said, as is no doubt the case, that pursuant to his duty to disclose all material facts to prospective insurers he would have to inform them of the reprimand and indeed the other penalties imposed upon him.

There are however to my mind two particular problems which this argument faces before us. The first is that it is difficult to see that this is the kind of decision which is directly decisive of his right to practise identified in the Strasbourg jurisprudence to which I have referred. There is no hint in that jurisprudence that this is the kind of consequence which the ECHR had in mind as crossing the line between a disciplinary process and a process which determines civil rights.

The second problem is related to the first and arises from the nature of the evidence which has been put before us. It is necessary to refer to only one piece of evidence in this regard. In a letter from Mr White of Keith H White Associates Ltd, who provide specialist insurance consultancy services dated 27 January 2004, he says that he has no doubt that the reprimand is a material fact but that he has no reason to suppose that the insurance market in which cover would potentially be placed would be restricted as a result. He assumes (so far as I am aware correctly) that previous insurers were not called on to provide an indemnity and concludes that some insurers might construe the claimant’s record as clean whereas others might apply a “modest load” for between three and five years.

In these circumstances the highest that it could be put is that the effect of the reprimand might well be to increase the cost of professional indemnity insurance. In my opinion, a penalty which has that effect cannot fairly be said to put the claimant’s right to continue to practise his profession as a solicitor at stake. It follows that I would hold that neither the decision severely to reprimand the claimant nor the substituted decision to reprimand him amounted to a determination of his civil rights or obligations within article 6(1) of the Convention.

As I understand it, a solicitor who wishes to practise as a solicitor must have a practising certificate which he has to renew in November each year by application to the Law Society. One of the methods by which the Law Society regulates solicitors is to impose conditions on a solicitor’s practising certificate. Examples would be to require a solicitor to work in employment approved by the Law Society or to restrict the solicitor from holding client funds.

Section 12 of the Act confers a discretion on the Law Society to impose such conditions in certain defined circumstances. One of those circumstances is defined in section 12(1)(e) as follows:

“(e)

after he has been invited by the Society to give an explanation in respect of any matter [relating to] his conduct and has failed to give an explanation in respect of that matter which the Council regard as sufficient and satisfactory, and has been notified in writing that he has so failed;”

The expression ‘vesting a discretion’ simply means that the solicitor has been notified as provided in section 12(1)(e) which permits the Law Society to consider whether to impose a condition at the next renewal of the practising certificate.

The decision to ‘vest the discretion’ does not therefore itself determine any of the solicitor’s legal rights. Moreover, if the Law Society should subsequently impose a condition on the certificate, the solicitor has a right of appeal to the Master of the Rolls under section 13A(6) of the Act. The Master of the Rolls conducts such appeals under the Master of the Rolls (Applications and Appeals) Regulations 2001, which provide (subject to very limited exceptions) that the hearings of such appeals shall be in public. So far as I can see, those rules are entirely compatible with Article 6(1) of the Convention.

In these circumstances it is to my mind clear that the decision to ‘vest a discretion’ was not a determination of the claimant’s civil rights and, in any event, viewed as a whole, the process does not infringe his Convention rights in this regard.

The same is plainly true of the decision in the Rattigan case to refer the claimant to the SDT. I do not see how that could possibly be a determination of any of the claimant’s civil rights. On the contrary it was a reference to the SDT for it to determine those rights and, as indicated earlier, it is not in dispute that the processes of the SDT are compatible with the Convention.

On the face of it, it might be thought that a direction to pay compensation, which is the form in which the reports of the committees, adjudicators and adjudication panels are written, is a determination of the solicitor’s civil obligations, namely to pay compensation to the client. However, it is submitted by Mr Dutton on behalf of the Law Society that that is not so because of the structure of Schedule 1A of the Act which is set out above.

His submissions may be summarised in this way. The power set out in section 37A and paragraph 1(1) of Schedule 1A of the Act is to take certain steps which are identified in paragraph 2(1) of the schedule. The steps involve certain specific “directions”, one of which is a direction to pay “such compensation as the Council sees fit to specify in the direction”. The crucial provision is paragraph 5(1), which contains two parts. The first is that, if a solicitor fails to comply with a direction, any person may make a complaint in respect of that failure to the SDT and the second is that no other proceedings whatever shall be brought in respect of the failure. The effect of the paragraph is thus that the direction to pay compensation has no legal effect until the SDT has determined the complaint and made such order as it thinks appropriate in respect of it. Since by paragraph 5(1) the only proceedings which can be brought to enforce the direction are by way of complaint before the SDT, it follows that the direction cannot itself have legal effect and cannot therefore amount to a determination of the civil rights or obligations of the solicitor concerned.

Mr Engelman submits in response that that is to approach the problem in too technical a way and is contrary to the approach of the ECHR, which focuses on the substantial merits of the matter untrammelled by legal technicalities. He further submits that the directions in practice have effect because they require the solicitor to pay compensation as a matter of professional obligation, even if not in law. Moreover, he says that paragraph 5(1) empowers the SDT only to determine a complaint that the solicitor has not complied with the direction and not to permit the solicitor to reopen the merits of the direction. This last submission is supported by a decision of the SDT as recently as 5 February 2004 which has properly been brought to our attention by Mr Dutton. In a case called FitzPatrick the SDT held that it had no jurisdiction to look into the reasonableness of the direction, although they did state that they considered the decision in question to be fair.

The provisions of Schedule 1A are in some respects somewhat curious and might perhaps be reconsidered in the light of the argument in this case but, on balance, I have reached the conclusion that the Law Society’s submissions are to be preferred. The cases before the ECHR show that the court will only hold that there has been a determination of a professional person’s civil rights and obligations where the line has been crossed between a disciplinary process and such a determination, since the court’s basic approach is that disciplinary proceedings do not normally lead to a contestation (or dispute) over ‘civil rights and obligations’.

Despite that general approach, if it were not for paragraph 5(1) of Schedule 1A, I would hold that the direction does determine the solicitor’s civil obligations but as I see it the purpose of that paragraph is to avoid that effect. It is intended that only once the SDT has determined that the direction is to be enforced is it to have legal effect. The only order with legal effect would then be the order of the SDT and not the direction of the Law Society or (if different) of the adjudicator or the adjudication panel. Until the complaint is made to the SDT and an order made, the effect of the second part of paragraph 5(1) seems to me to be that the direction has no legal effect because no proceedings can be taken for its enforcement. I can see no other sensible explanation for the second part of paragraph 5(1).

I reach this conclusion on the basis that the decision of the SDT in the recent FitzPatrick case is wrong. It would make no sense to construe the paragraph as set out above if it were the case that, on a complaint to the SDT, the Tribunal had no jurisdiction to review the direction made by the adjudicator or the panel. In the course of the oral argument Mr Dutton submitted that it is the view of the Law Society that the SDT has full powers to review the direction both as to the law and as to the facts. I would so construe the paragraph, if necessary in the light of section 3 of the Human Rights Act 1998.

For these reasons I would hold that the direction that the claimant pay compensation did not determine his civil rights or obligations. However, if that were held to be wrong, it appears to me that, given the provisions of paragraph 5(1) and the powers of the SDT (as construed above), the whole process complies with the claimant’s rights under article 6(1). On that basis, the obligation to pay compensation has no legal effect until confirmed by the SDT on a complaint, the SDT has full powers of review and itself sits in public, has oral hearings and hears oral evidence. In addition the decisions of the adjudicator, the adjudication panel and the SDT itself are susceptible to judicial review.

Finally Mr Engelman submitted in this regard that we should either hear evidence, as was contemplated in the Wilkinson case, or quash the decisions and remit them for oral hearing and, indeed, oral evidence. However, I do not think that it is appropriate to do so in either case. It appears to me that the requirement of a public hearing is amply met by the fact that both the SDT (if a complaint is made) and this court sit in public. As indicated earlier, no-one suggested that there should be a public, as opposed to an oral hearing. The question whether there should be an oral hearing is essentially a question of fairness and depends upon all the circumstances of the case: see eg Smith v The Parole Board above. I have already expressed my view that, especially given the fact the Law Society had made and makes no allegations of dishonesty against the claimant, there was no need for oral evidence or an oral hearing and nothing unfair about a determination on the documents.

The position on costs is somewhat different from that with regard to compensation because of the scheme of Schedule 1A of the Act. By paragraph 2(1)(a) the schedule describes “the steps” as determining that the costs are to be limited and directing the solicitor to comply with the “permitted requirements”, which are that costs paid be refunded or that the whole or part of the costs be remitted or that the right to recover costs be waived. By paragraph 4, where the Law Society has given a direction under paragraph 2(1)(a), the direction appears to have immediate legal effect in a number of respects. It is on this basis that Mr Engelman submits that, whatever may be the position in respect of other directions given under the schedule, a determination as to costs under paragraph 2(1)(a) has immediate effect and thus involves a determination of the rights and obligations of the solicitor because it has immediate legal effect as between the solicitor and his client.

There is undoubted force in that submission. Since the end of the oral argument we have received further written submissions from both sides analysing the costs position so far as the claimant is concerned. As ever in this regard, the position is undeniably complicated (or at least seems so to me).

The claimant relies upon article 1 of the First Protocol, which provides:

“Every natural or legal person shall be entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the provisions provided for by law and by the general principles of international law.”

The claimant’s case is that he had an accrued right to the payment of fees of which he was deprived in the Rattigan case by the determination that he should not be entitled to any costs but should refund any costs he had received from the Legal Aid Board to the Legal Services Commission.

The claimant says that that accrued right is a possession within the meaning of article 1 of the First Protocol and that the determination of the relevant committee and the Adjudication Panel, which had immediate effect by reason of paragraph 4 of Schedule 1, deprived him of that possession which he says has been unlawfully interfered with. The position on the facts seems to me to be somewhat obscure. However, if the claimant had an accrued right to recover costs from the Legal Aid Board (or indeed his client) at the time of the relevant determination, I would for my part hold that that was a possession within the meaning of article 1 of the First Protocol. That seems to me to be consistent with the decisions in Ambruosi v Italy App No 31227/96 and GŐÇ v Turkey App No 36590/97.

I am far from satisfied on the evidence that the claimant had any accrued right against the Legal Aid Board or the Legal Services Commission for fees in the case of Mr Rattigan but, assuming that he did, the question arises whether he was deprived of that possession in the public interest and subject to provisions provided for by law. The relevant law is set out in section 37A and Schedule 1A of the Act. It provides that the Law Society may in appropriate circumstances make a determination and direction which, by paragraph 4, may have an immediate effect upon the civil obligations of the solicitor.

Assuming for present purposes that the claimant was deprived of a possession and thus had a civil right determined by the determination as to costs described above, the question whether his rights under the Convention were infringed seems to me to depend upon whether there was an infringement of his rights under article 6(1) because, if there was not, he was not deprived of his possession (his accrued right to fees) except as provided by law. For the reasons stated earlier, the answer to that question depends upon a consideration of the process viewed as a whole.

The process was considered by Lightman J in White v Office for the Supervision of Solicitors [2001] EWHC Admin 1149, where he gave an admirable account of the system. He described each stage of the process, the fourth stage being after the decision of the adjudication panel. He held (in paragraph 21) that the solicitor is not entitled to invoke paragraph 5(1) of the Schedule by, as it were, appealing to the SDT. I agree with that conclusion, although I am bound to say that it is difficult to see why not, if (as in my opinion is the case) a determination as to costs has or may have immediate legal effect. However, Lightman J made it clear that all parties, including the solicitor, could apply for judicial review in order to challenge the decision of the adjudication panel.

On the facts of that case he rejected the application for judicial review. He gave these reasons in paragraph 26:

“The Solicitors thirdly complained that they were entitled before the Adjudicator and Appeals Committee as a matter of procedural fairness to an oral hearing but did not obtain it. Whilst the Solicitors were entitled to a fair hearing, procedural fairness does not require an oral hearing in all cases. Whether an oral hearing is required must depend on all the circumstances and in particular whether an issue of fact critical to the decision-making can only satisfactorily be resolved in this manner: see R v SolicitorsComplaints Bureau ex parte Curtin[1993] 6 Admin LR657 at 668 per Steyn LJ. In my view the complaint of the absence of an oral hearing should be rejected for two reasons: the first is because there was no such issue in this case; and the second is because the Solicitors never asked for an oral hearing. When a party is well informed as to his rights (as the Solicitors must be presumed to have been in this case) or legally represented, rarely (if ever) can it be incumbent on the tribunal to prompt a request for an oral hearing if neither party requests it.”

I entirely agree with those conclusions, which (as I understand them) were reached on the basis of the common law. They are consistent with the conclusions which I set out above. However, to my mind they also apply to complaints of unfairness under article 6(1), as indicated above with particular reference to the decision in Smith v The Parole Board. In my opinion, on the facts of this case, the claimant’s right to a fair and public hearing was protected by the combination of the processes before the relevant committee and the Adjudication Panel and by the opportunity to apply for judicial review, which of course took place in public.

On the facts here, even after the committee had made a determination on costs, the claimant did not ask for an oral hearing before the Adjudication Panel in the Rattigan case. The most likely reason for that was that he did not think that there was any need for any such hearing. For my part I can think of no good reason why the claimant should have asked for such a hearing with regard to the costs and in all the circumstances I would hold that the claimant’s rights under the Convention were not infringed.

For all these reasons I would refuse the claimant’s applications for judicial review. I am satisfied that he had a fair hearing at each stage and that there is no basis upon which the court could properly hold that he should have been afforded an oral hearing at any stage. I would only add that I am very grateful to Mr Engelman for all the work he has put in to advance the claimant’s case throughout the applications before us.

Finally, I would reiterate the suggestion made earlier (echoing those of Lightman J in the White case) that the Law Society reconsider their procedures in the light of the problems which have arisen here. It might in particular consider whether solicitors should be given rights of appeal to the SDT.

I agree.

I also agree.