Elliott, R (on the application of) v Solicitors Disciplanary Tribunal & Anor

MR JUSTICE LEVESON: By these proceedings the claimant, Allen Phillip Elliott, seeks to quash a decision of the Solicitors Disciplinary Tribunal (SDT) which, on 23 October 2003, dismissed his application pursuant to Rule 25 of the Solicitors Disciplinary Proceedings Rules 1994 (the Rules) for a re-hearing on charges brought against him by the Law Society which led, on 4 December 2001, to his being struck off the Rolls. The basis of the application before the SDT was that he comes within the Rule because he neither attended the hearing before the original tribunal nor was he represented, with the result that the complaints were determined in his absence. Both the SDT and Law Society take issue with this contention.

As to the merits, it is argued on behalf of Mr Elliott that the case put before the SDT in his absence was more serious than that of which he had been given notice. Both the SDT and the Law Society challenge this contention as well and submit that if, contrary to the case advanced in relation to the Rules, this allegation falls to be considered, it is doomed to fail.

Although the primary issue can be simply stated and requires only a rehearsal of what happened on 3 December 2001, in order to address the wider issues, which both sides invite me to do, it is necessary to rehearse the facts in rather greater detail. Mr Elliott is approximately 55 years of age. He initially practised as a solicitor in Queensland, Australia and was admitted to the Rolls in the United Kingdom in 1995 starting in sole practice on 1 June 1996. In 1998 he started to offer a financial product described as a First Mortgage Debenture Monthly Income Plan. In August 1999 he transferred his practice to Elliotts Solicitors Plc. By January 2000 his clients had invested £14.8 million in the scheme. The essence of this scheme was short-term loans to companies secured by a first charge on property, the client lenders receiving relatively high interest and the borrower paying the lender's legal fee for the transaction and paying an even higher rate of interest together with arrangement fees to Elliott's.

On 17 March 2000 the Law Society intervened in Mr Elliott's practice on the grounds of reasonable suspicion of dishonesty. The Society appointed Russell Cooke Potter & Chapman as their agent. On 31 March 2000 Laddie J ordered that Russell Cooke Trust Company be substituted as trustee of all Elliott's trusts. The accounts of Elliott's were apparently found to be in order but there were doubts about the value of securities and about the information which Mr Elliott had given or failed to give to his clients.

By statement dated 1 March 2001, served on Mr Elliott shortly thereafter pursuant to Rule 4 of the Rules, the Law Society made 15 allegations, each to the effect that Mr Elliott had been guilty of conduct unbefitting a solicitor. The precise details do not require recitation in this judgment, but suffice it to say that ten alleged specific breaches of the Solicitors Practice Rules 1990 and the Solicitors Investment Business Rules 1995, three alleged misleading and/or inacccurate representations, information and correspondence and two alleged failure to disclose material information, in one case to clients and in another to the Solicitors Indemnity Fund. These charges were supported by a detailed summary and three lever arch files of material. The summary was provided to me this morning, that is the second day of this hearing. I have not seen the three lever arch files.

On 9 March 2001 Russell Cooke Trust Company brought proceedings against Mr Elliott and others for an account and payment of all monies received by them in respect of the scheme and for compensation for breach of trust. On the same day Laddie J made an order freezing Mr Elliott's assets and those of his wife. He later refused to set that order aside. In July 2001 the same judge concluded that each loan by more than one client on a single security was a separate collective investment scheme. Neither Mr Elliott nor his company was authorised to promote such an investment scheme.

On 18 June 2001 the trial of the disciplinary action was fixed for 3 December 2001. In the absence of any specific response from Mr Elliot ten days were set aside for the hearing. During the course of the application to adjourn, Mr Timothy Dutton QC, who then appeared on behalf of the Law Society, asserted that the date was fixed to suit the convenience of a number of people including Mr Elliott. That was not challenged. Mr Elliott was thus on notice that he had just short of six months to prepare for the hearing. From September 2001 he sought to obtain from Russell Cooke Trust Company release of funds to defend the disciplinary proceedings. The solicitors acting in the intervention said that he would have to apply to the court. There is an issue as to whether and, if so, to what extent they were obstructive. For reasons to which I shall return, this does not require resolution because it is academic.

By notice dated 5 November 2001 a supplemental Rule 4 statement was served on Mr Elliott making one allegation of unbefitting conduct. This did not concern his activities in practice but rather the declaration on his application for admission as a solicitor in this country and in particular his denial that he had been found guilty of professional misconduct. He had, in fact, been convicted of unprofessional conduct.

On 13 November there was a hearing before the SDT which dealt with preliminary matters. There was no suggestion that there was any difficulty about the date of the full hearing, and there was no reference to any problems of funding.

Consequent upon that hearing however on 26 November 2001 the Law Society served a comprehensive outline opening note settled by Mr Dutton, some 20 pages in length. That document went through the facts and provided a summary in these terms:

Meanwhile, on about 20 November, Mr Elliott having instructed new solicitors to act on his behalf, Messrs Irwin Mitchell, applied to adjourn the hearing. Irwin Mitchell wrote in support by a letter dated 23 November 2001. That letter is in these terms:

On 29 November they wrote again:

The solicitors acting for the Law Society in the disciplinary proceedings replied in clear terms:

At some stage before the hearing the detailed defence document was served. It contains a rebuttal and analysis, paragraph by paragraph, of the opening note and covers ten closely typed sheets. Omitting references to Mr Elliott's criticisms of the Law Society, in relation to the summary he said:

I turn now to the hearing on 3 December. It started with Mr Dutton introducing himself. He went on:

Mr Elliott, in reply, did not challenge these facts, but said that his solicitors believed he could be funded, at least to apply for release of money, for the SDT but was not.

It was against this background that the tribunal considered the matter, and, until Mr Platford replied to the submissions advanced on behalf of the SDT and the Law Society, I had approached this case on the basis that there was in fact money available which could have been used to fund this tribunal. It is now clear that because Laddie J had ruled that the money held off shore was impressed with a trust there was in fact nothing like sufficient held by Russell Cooke, as a consequence of the intervention, which belonged to Mr Elliott and which could have been available to fund his defence. Further, although his earnings were subject to the freezing order, he had not earned sufficient to fund his defence. He was, in fact, impecunious. Thus the failure to apply for released funds was a red herring. Mr Elliott did not make that clear to the SDT. But it is for that reason that I describe the issue between Mr Elliott and the Law Society in relation to the release of funds as academic.

In the event, the SDT considered the application and returned it to the tribunal rejecting it. They went on:

The written findings of the SDT were filed at the Law Society on 7 March 2002. Under Section 49 of the Solicitors Act 1974 Mr Elliott then had an unrestricted right of appeal to the High Court, the time for appealing being 14 days from the date of the filing of the findings. Upon such appeal, by sub-section (4), the High Court had power to make such order as it thought fit. That includes the power to order a re-hearing. Mr Elliott chose not to appeal. Rather, on 5 April 2002, he applied for a re-hearing of the case under Rule 25. He swore an affidavit which included the following:

On 24 July 2002 Mr Elliott had returned to his original solicitors. They also wrote upon the application for a re-hearing, making it clear that they had originally advised Mr Elliott on a pro bono basis. They went on to make it clear that Mr Elliott would concede a breach of the practice rules as alleged but would deny any element of dishonesty, so that the scope of the dispute between the parties would be very narrow. It was said that Mr Elliott accepted that he had adopted a deliberate tactic at the original hearing but that he had done so as advised by Messrs Irwin Mitchell. They conclude:

This came before the SDT on 25 July 2002 at which time Mr Elliott sought to adjourn the application pending his obtaining funds, that is by earning sufficient money to pay for representation and obtaining the release of those funds from any freezing order. This application was opposed but the tribunal concluded that as Mr Elliott was, and remained, struck off, the Law Society was not prejudiced by an adjournment although it was equally made clear that this view was formed without any consideration of the merits.

On 19 September 2003 Mr Elliott wrote to the SDT asking for his application to be restored. It was listed for 23 October by which time he had again changed solicitors. By skeleton argument served on his behalf (drafted by Mr Graham Platford who appears for him today) it was put that the Law Society had conceded that Mr Elliott neither attended nor was represented at the hearing. Rather, the Law Society had argued that Rule 25 was to be interpreted to cover situations where the respondent was not in attendance nor represented because the date of the substantive hearing had not been received by him or the like. Therefore, they had opposed the application solely by reference to the discretionary nature of the remedy. Mr Platford further argued that on its proper construction Rule 25 clearly required the presence of Mr Elliott or his representative for what was the only disciplinary hearing, described as a substantive hearing, and that justice was not served because he was absent, having no means to pay for representation. He had been given clear advice by reputable solicitors and furthermore the tribunal had fallen into serious errors on its findings of fact. Mr Goodwin, for the Law Society, argued that Rule 25 was not available to Mr Elliott as had been pointed out prior to the hearing.

The SDT, which heard this application, rejected it. By memorandum of 19 November 2003 it recorded its reasons in these terms:

Rule 25 of the Rules provides:

Mr Platford argues that the finding that Mr Elliott had failed to demonstrate that he had not attended the hearing was perverse and unsustainable because both the Law Society and the original SDT have accepted that he was absent at the substantive hearing. I do not consider that the concession that Mr Elliott was absent at the substantive hearing involves a concession that he fell within Rule 25. In reality, although I recognise that the matter might have been expressed more clearly, the Law Society has consistently argued by reference to the true construction of Rule 25 that by attending on 3 December 2001 Mr Elliott was present at the hearing even though he absented himself after the application to adjourn and before the investigation of the merits of the Law Society's complaint.

In his supplementary skeleton argument for these proceedings Mr Platford puts the issue thus:

I do not accept that Mr Dutton's words should be so construed. Neither do I accept that Mr Platford's submissions represent a proper construction of Rule 25. The hearing listed for 3 December 2001 was the hearing of the application by the Law Society for disciplinary sanctions to be imposed upon Mr Elliott. When the three members of the tribunal sat down at the start of the day, as the case was called on they immediately embarked on the hearing listed before them. That this hearing commenced with an application to adjourn is neither here nor there. All Mr Dutton was doing as he stood up to introduce the case was deferring to Mr Elliott's wish to make his application first, sensibly taken before he opened the case. Neither can Mr Elliott have been under any illusion that the point of one hearing only would be taken. His inability to rely on Rule 25 had been foreshadowed in the correspondence to which I have referred.

Putting the matter another way, the rule does not refer to the commencement of the "substantive hearing" but rather simply "the hearing".

Mr Platford concedes that if both Mr Elliott's application and the Law Society's application had been heard at the same time he would not be entitled to relief under Rule 25. That is, in fact, exactly what happened. They were both heard during the course of the same hearing. Of course they were not heard concurrently, but consecutively. But that does not alter the proper characterisation of what happened as an application in the course of the hearing of the Law Society's application which, as I have said, had been listed, called on and embarked upon as the tribunal commenced that day.

I ought to deal with Mr Platford's submission that this frustrates the purpose of the Rule. He postulates this situation: assume the Law Society's application and the respondent's application for an adjournment of the application were both listed at 10.30 am on the same day. The respondent put his case at 10.30 am, and the tribunal heard both sides, retired, returned and rejected the application at 12.45 pm and rose until 2.00 pm whereupon the respondent stormed off in disgust and was so distracted that he was run down on Ludgate Hill as he returned at 1.45 pm, as a result of which he was taken to hospital. If the tribunal proceeded in his absence, thinking reasonably that he was deliberately absent, the respondent would not be entitled to a re-hearing because he was present at the sitting at which the application was heard; whereas if the respondent's application had been listed at 10.30 and the Law Society's application listed at 2 pm he would be entitled to a rehearing.

Taking the first part first, I accept that Rule 25 would not bite in these circumstances. The respondent would not be entitled to a re-hearing pursuant to Rule 25, but I have absolutely no doubt that if these facts were established on appeal a re-hearing would be ordered. Mr Hopper QC, who appeared for the SDT and who has vast experience of this tribunal, observed that in this event a re-hearing would be allowed by consent, such having, in fact, happened.

I also accept that if an application to adjourn had been listed as a separate hearing at 10.30 am with the Law Society's application not being listed until either the following day or even at 2.15 pm, absence the following day or even that afternoon could well trigger Rule 25 although whether a respondent's solicitor would be entitled to relief would depend on the circumstances. A line must be drawn, on either side of which there will be situations quite close to each other which the general power of appeal can deal with to ensure that no injustice is done.

I add only that it would be absurd if any solicitor took Rule 25 as encouragement that if he failed to appear it might be easy to obtain a new hearing at a more convenient date. Those who fail to attend lose the right to participate and explain, and they do so at their peril. As Mr Platford conceded, if, without more, a solicitor deliberately absented himself it would not be feasible to argue that he was entitled to a re-hearing.

I must also deal with a subsidiary argument mounted by Mr Platford that the Law Society and SDT are effectively estopped from denying the meaning of the Rule for which he contends, at least in this case, because they embarked on hearing the application to adjourn knowing that he intended to absent himself if it failed, and when ruling the SDT observed that Mr Elliott was present and had the opportunity of appearing to explain and defend himself. Further when the Law Society confirmed its outline submissions of 29 April 2002, that Mr Elliott was not in attendance, he was encouraged to believe that there was no issue as to the fact that Rule 25 bit with the result that he restricted himself to applying for a re-hearing rather than to considering the question of appeal. It is said that as he did not appeal, if Rule 25 does not bite, he is deprived of all remedy. There was of course no restriction on Mr Elliott doing both, but I echo the comment of Mr Hopper that it is quite remarkable that the automatic right of appeal to the Divisional Court was not exercised.

The fundamental flaw in the argument however is that I do not accept that any assurance was given upon which Mr Elliott could rely to his detriment. From the outset the Law Society made its opposition clear to the proposition that Rule 25 would assist in these circumstances at all. What the Law Society accepted in its outline submissions was to echo the words of the SDT, namely that Mr Elliott was not present at the substantive hearing. As I have made clear, I do not equate the word "hearing" in Rule 25 with the phrase "substantive hearing". Thus I do not accept that Mr Elliott falls within Rule 25 either as a matter of construction or because of some argument based upon estoppel.

For that reason this application fails.

Although that is sufficient to deal with the matter, both sides have invited me to deal with the merits. Mr Treverton-Jones QC, on behalf of Law Society, does so on the basis that serious allegations have been made directed at both the Law Society and Mr Dutton who led at the hearing before the SDT. Mr Elliott does so because he accepted that a finding in his favour as to Rule 25 would be insufficient on its owns to justify a re-hearing and furthermore that assistance in relation to these matters may impact on other decisions which fall to be made. In addition, both sides argued that as the matter had been fully ventilated I should accede to the application. I do so, but comparatively shortly.

Mr Platford accepts that Mr Elliott's deliberate decision to absent himself from the tribunal, albeit based on advice from a reputable firm of solicitors, cannot itself mean that justice requires an order that the hearing be conducted afresh. He went on, correctly, to concede that if absence of itself is all that is relied upon to make the hearing unfair when that absence has been deliberate the case is hopeless. Rather, he submits that the way in which the case was presented was different to the way in which Mr Elliott could reasonably have anticipated its presentation from the material previously served upon him such that it was unfair. In part, he elaborates on that submission by reference to the decision of the SDT itself. To such extent as the SDT has gone further than the way in which the Law Society put the matter however, it does not appear to me that Mr Platford could ever rely on that finding to justify his contention that it was unfair not to grant a re-hearing because of Mr Elliott's absence. If the Law Society put the matter in a way not foreshadowed in the charges, the papers and the opening note that is one thing. Mr Elliott may not have had prior knowledge of allegations to be placed before the SDT.

Where, however, the presentation has been consistent with the material previously served on Mr Elliott, in my judgment, the fact that the SDT may have reached a conclusion of fact not justified by that evidence is a problem which should be remedied by a challenge to a decision on appeal rather than an application for a re-hearing; error on the part of the SDT may justify a re-hearing or the quashing of a particular decision or some other remedy. A solicitor who has chosen not to attend cannot be in a better position to obtain a re-hearing because of some allegedly unjustifiable adverse finding by the SDT than a solicitor who has attended and taken a full part in those proceedings.

In his submissions Mr Platford focused on four areas in which he said that Mr Dutton had overstated or enlarged upon the case for the Law Society beyond the case advanced in the papers. He pointed to the terms of the charges which the Law Society had preferred against him, but, in my judgment, it is appropriate to go wider than that to see the overall approach of the Law Society to the application before the SDT which can only be done by consideration not merely of the charges themselves but also the Rule 4 summary and evidence served which includes the three lever arch files to which I have returned.

Having made that point and bearing in mind that I have not seen these three lever arch files, I turn to the four complaints he made. The first concerned what he submitted was a finding by the SDT of misappropriation which had not been alleged. I do not elaborate because, in my view, there is no such finding. At its highest, the SDT postulate what would be the position if the time came when loans defaulted and interest nevertheless had to be paid. What is of greater significance however is that Mr Dutton opened the case in exactly the way he had indicated in his opening note and as I have identified in the summary above. In argument Mr Dutton did elaborate that if Mr Elliott was paying interest out to clients before he had obtained interest, that had a knock-on effect on the client account. The tribunal itself then accurately added "unless he was going to do it with office accounts money". All this was future prospect. No allegation had been made or was made that this had in fact occurred. Consideration was perfectly justifiably being given to future risk which had been foreshadowed by Mr Dutton's reference to a "house of cards" and was dependent on Mr Elliott being able to roll over loans if borrowers defaulted and upon a rising market although, in fairness, Mr Dutton should have added, as a further pre-condition, inadequate security. Mr Platford points to an exchange during the course of the opening between members of the tribunal and Mr Dutton, and I accept that conditional words are not always used in that exchange. Having said that, I am quite satisfied that this is as high as the case was put and as high as the case was found.

The second area of complaint concerns what was said about mortgage valuations. Here again, in the opening note to which Mr Elliott responded it was clearly said to be part of the Law Society's case that properties appeared to have been overvalued. Mr Dutton referred to a report which detailed risky lending. He then specifically dealt with Mr Elliott's response to this part of his opening note, including the assertion that he never broke the 66.6 per cent rule (i.e. proportion of advance to property value expressed as a percentage), and commented that when the tribunal looked at the scheme as it turned out and the many occasions when the security had fallen short of the loan on redemption, taking it as a whole, the SDT were entitled to conclude that the rule of 66.6 per cent of the value was not genuinely applied. He later qualified that by saying to the tribunal:

Mr Dutton also made the point for Mr Elliott that he would say he had a valuation and had no reason to doubt that it was an honest one. Overall this was a perfectly legitimate approach and does not go beyond the intimated case. Looking at the evidence of Mr Gould served with the papers, and thus fully disclosed at an early stage to Mr Elliott, the matter is put clearly in these terms:

The third complaint concerned the way in which Mr Dutton dealt with Mr Elliott's application for admission to the Law Society and in particular his reference to the difference between professional misconduct, which Mr Elliott was required to disclose, and unprofessional conduct, which was what had been found against him in Australia, as "a rather discreet one". Mr Dutton went on that even if Mr Elliott had thought there was such a distinction, in making a full and frank declaration to his professional body, it should have been disclosed. This last was said in the context of reminding the SDT that Mr Elliott had said in his response that the two findings were not the same. Mr Platford submits that whether that is so or not is a matter of Australian law, in respect of which Mr Dutton led no evidence. He argues that the correct question should have been whether an Australian lawyer would think that unprofessional conduct was equivalent to professional misconduct. That may indeed be an issue which Mr Elliott could have ventilated before the tribunal. But in the absence of evidence to the effect that this was so, the Law Society and the tribunal were entitled to infer that the words "unprofessional conduct" carried their normal meaning in the English language. The opening went no further than had been intimated in the opening note. There is nothing in this complaint of over-prosecution.

Finally Mr Platford complains of the way in which Mr Dutton opened the complaint relating to inaccurate disclosure of his gross fees, for the purposes of insurance with the Solicitors Indemnity Fund. He further points out if, as the SDT found, Mr Elliott was required to account to his clients for the interest which he received, the money which it is said should have been declared as fees was not in fact fees. Thus Mr Platford argued that Mr Dutton himself should have appreciated the consequences of his earlier contention that Mr Elliott knew or should have known that the interest was held in trust, with the result that at its highest the case should have been put as an attempt.

These may be arguments which can legitimately be advanced to challenge the finding of the tribunal although, speaking entirely for myself, I have reservations about them.

More significant, in the opening note when dealing with the allegation which was a specific charge Mr Dutton referred to paragraphs 190 to 195 in the report of the Monitoring and Investigation Unit which I have not seen. Suffice it to say, that even based on the documents I have seen, Mr Dutton was entitled to open the case as he did and whether or not there is any merit in the new point it is not one that can be taken in support of the submission that Mr Elliott was disadvantaged because the case was presented on a more serious basis than had been suggested in the document which had been served upon him.

Collecting these allegations together, it is important to separate, as I have tried to do, challenges to the legitimacy of the conclusions reached by the SDT, upon which I do not rule, from allegations of unfairness consequent upon a presentation to the SDT at a level higher than foreshadowed in the papers served on Mr Elliott. On this latter issue I reject entirely the submission that Mr Dutton unfairly treated Mr Elliott. His presentation of the case essentially followed his opening note and incorporated Mr Elliott's responses. He was measured in the additional comments which he made, at one point expressing in terms a concern that "the danger of having to present, as it were, both sides of the case is that I have to be very careful." Further, in respect of one of the allegations not withdrawn, he said that he expected it would be dismissed in the light of the evidence.

Mr Platford was reduced to arguing that because of some of the conclusions reached by the SDT, the tone of Mr Dutton's voice must have expressed a different view to that apparent from the transcript. But he has not invited me to listen to any tape justifying that allegation. In any event, it entirely ignores the fact that this professional tribunal not only had Mr Dutton's help, they had the three lever arch files to which I have referred and they were entitled to reach their own conclusions. Whether or not these are justifiable is not ascertainable in these proceedings. Suffice it to say that, in my judgment, the allegations against Mr Dutton should never have been made.

Mr Elliott cannot rely on Rule 25 of these Rules. On its true construction he does not fall within the description of a respondent who has neither attended in person nor been represented at the hearing. In any event, he cannot rely on his own deliberate and informed decision not to attend the substantive hearing as providing a basis for the exercise of the discretionary remedy of a re-hearing. Having rejected the allegation that he was treated unfairly by leading counsel who presented the case, no other justification for a re-hearing, save for a series of challenges to the decision of the SDT, has been mounted. As to these challenges, in my judgment, they do not impact on whether a hearing should be ordered following a deliberate decision not to attend. They should have been ventilated on appeal under Section 49 of the Solicitors Act 1974.

I add a few further words. Mr Platford submitted that given the passage of time there was now no alternative remedy open to Mr Elliott and it was particularly harsh that he should be faced with serious findings of the SDT which were such as were likely to mean that he will never be able to regain his place on the Rolls on the basis that he genuinely relied, however inadvisably, on advice, however misconceived, from a reputable firm of solicitors. Both Mr Hopper and Mr Treverton-Jones observed that although his indefeasible right to appeal had been lost, even at this late stage it remained open to Mr Elliott to apply for an extension of time in which to appeal. If he makes such an application it can be considered on its merits, which may include, first, his explanations for the delay; secondly, the extent to which he relied on professional advice; thirdly, the way in which the Law Society responded to his arguments under Rule 25 even though not constituting any form of estoppel; and, fourthly, a consideration of the true merits of his challenge to the findings of dishonesty given that none of the underlying facts are now in issue. I have not seen all the papers and I express no view on the merits of such an application. Nothing however that I have said should be taken to the contrary.

MR HOPPER: As to costs, would your Lordship grant an order for costs in favour of the tribunal? We drifted into the second day. There were schedules provided on the basis that we were listed for one day. Speaking for myself, the additional amount for the second day only makes a difference of £1,000 plus VAT. If you are persuaded to order costs on a summary assessment on the basis of the figures with that slight adjustment then I would be most content. In the alternative, if it is not to be dealt with by way of summary assessment, then we would ask for an order for detailed assessment with a substantial payment on account.

MR JUSTICE LEVESON: Forgive me, but the point might be made that although the tribunal were entitled to attend and, given that the issue concerned the true meaning of the Rules, perhaps should have attended, whether they needed to attend by a leading advocate is perhaps another matter.

MR HOPPER: That is one of the reasons why you will have detected, if you have looked at the schedule which you may not have done, that the rate I charge is an extremely modest one. One of the consequences of my accepting instructions from the tribunal, more or less as a stand-in solicitor or counsel, is a lot of the work I might do might not justify the involvement of silk. So the rate I charge the tribunal is a flat rate of £250 an hour which, in defence of my own honour, does not equate to the rate I would charge for other work wearing the relevant wig. That is part of the answer.

MR JUSTICE LEVESON: I had not focused on the costs. I now see the document.

MR HOPPER: I was wondering whether you were going to raise a different issue which was whether the tribunal should be regarded as a party for the purposes of costs. There is a short Times report which deals with that which came out shortly before the matter was first listed. We would need to consider that. That only goes to the question whether in circumstances such as this where the tribunal or any inferior tribunal has taken an active part so as to be considered a party, then costs generally follow the event. Whereas there can be circumstances where an inferior tribunal takes a more neutral role.

MR JUSTICE LEVESON: Had the issue not required consideration of the meaning of the Rules, whether the tribunal needed to be represented could be a discreet and separate issue.

MR HOPPER: The difficulty is that the way this case has been developed from the claimant's point of view is that it has involved quite serious considerations from the point of view of the tribunal in terms of the interpretation of the Rule and in terms of practice in relation to Rule 25 and application for a re-hearing which has very much engaged the tribunal and its concerns arising from the issues in this case. Simultaneously there has been an attack on the Law Society and the Law Society's advocate which has naturally resulted in a different issue being aired and being equally seriously considered by the Law Society. Unfortunately - I say "unfortunately" from the point of view of Mr Elliott - nevertheless the consequence is that two separate parties come here very substantially to address two separate issues that have been equally important for each of them. That is where I stand. You have the figure for summary assessment.

MR JUSTICE LEVESON: 15 March. There must be another sheet as well, I suppose.

MR HOPPER: There should be a covering letter.

MR JUSTICE LEVESON: Yes. I have it.

MR HOPPER: It has an up-date. That brings it to £16,273.75; adding my fee today that brings it up to £17,448.75.

MR JUSTICE LEVESON: Mr Treverton-Jones, you had better take a moment to find out what has happened. (Mr Treverton-Jones entered the court at beginning of costs discussion)

MR TREVERTON-JONES: I understand that we have prevailed.

MR JUSTICE LEVESON: That is so.

MR TREVERTON-JONES: I do not know what order for costs Mr Hopper is seeking but we would seek an order for costs against Mr Elliott. Because the case went over we would submit that the correct order is that there be a detailed assessment, if not agreed, but we would seek an interim payment under Ord.44.3 (8). Our total costs before today were just under £25,000 or was it just under £30,000, just under £30,000. I understand that the other side's costs come to £15,000. So we would respectfully ask for an interim payment or payment on account of £15,000.

MR JUSTICE LEVESON: Mr Platford?

MR PLATFORD: I deal with it in several stages; a question of principle. On 23 October last year we dealt within about half-an-hour with a small discreet point - did Rule 25 apply or did it not? The decision was it did not apply because we attended. Mr Elliott thought that was wrong so he applied to this court to get it right. Then, not the tribunal but the Law Society, chose to bring into play the very argument that we had decided we would not raise before the tribunal. Had this venture been limited to the question we had agreed should be dealt with this hearing would have been dealt with very promptly.

MR JUSTICE LEVESON: The difficulty with that argument is this. I have now made inquiries and you are absolutely right, the case in front of Mr Justice Goldring was listed for half-a- day. Half-a-day was absolutely ample to deal with the very short, discreet issue - does Rule 25 apply? But, as I understand it, the wider issues were then to be ventilated by consent.

MR PLATFORD: No.

MR JUSTICE LEVESON: You opposed the adjournment.

MR PLATFORD: Yes. I wanted to go on there and then.

MR HOPPER: This is bizarre.

MR PLATFORD: I wanted to go on there and then. I maintained my estimate of half-a-day was correct, but if Mr Treverton-Jones wanted to canvass those matters that appeared in his skeleton argument it would inevitably take more than half-a-day. So we went on. There are two ways of looking at it. Either the Law Society should pay the costs of the last exercise or - and this is my preferred submission - I should have to pay some costs because that which could have been dealt with in half-a-day I have lost. But that is the extent of it. My Lord will recall that on the last occasion the skeleton arguments before the court included my supplemental skeleton argument which said, line after line, this is not in evidence.

MR JUSTICE LEVESON: Yes. That is a slightly different question. You tell me that you objected to it being adjourned and you wanted to go on on the limited basis. That is what you say.

MR PLATFORD: I recognised, because it was put to me, that if we were going to argue as Mr Treverton-Jones wanted to argue it it was inevitably going to take more than half-a-day. We had to give way to the other case in the list.

MR JUSTICE LEVESON: Inevitably, with great respect, and as I thought when I read the papers, it was going to take more than a day. These were very bulky skeleton arguments.

MR PLATFORD: Yes. It was only limited to a day because Mr Treverton-Jones was arguing that actually even given his extra material we could still deal with it in half-a-day. Mr Justice Goldring had no sympathy with that suggestion.

MR JUSTICE LEVESON: I am not notably slow but may be I have been. It has taken me some considerable time to deliver judgment. That is the first issue of principle.

MR PLATFORD: The second matter is that given the issues that brought us here the attendance of the Solicitors Disciplinary Tribunal is, in the first instance, unnecessary and, secondly, brought upon it by itself. I do not think I need rehearse the arguments I have been through several times in a slightly different direction on that aspect. I shall not descend to the assessment at this point, if I may continue with my questions of principle. The next is the question that given that I concede that I must be liable to pay some costs, query whose? In my submission, yes, I have run an argument against effectively the Law Society which I have lost. There again, on any reasonable construction, in my submission, of Mr Goodwin's argument and the tribunal's decision until it became clear how they were putting their case Mr Elliott had a very good reason for coming here to make this application. Had the Law Society said, at the very first instance, "I am terribly sorry Mr Elliott but your proper way of going about this is to appeal" - - - - -

MR JUSTICE LEVESON: They do not have to give him advice at all. The point is this: we have had the benefit of having gone into the merits. Let us assume that all this had been ventilated from the outset; you would have had to satisfy the tribunal that you were entitled to a discretionary remedy and, based upon the judgment I have just given, you never had a prospect of doing that.

MR PLATFORD: The way it would have gone is that I appear in front of the tribunal, I make my application for a re-hearing. The tribunal says you are not entitled to a re-hearing, we have no discretion to grant you one because you were present at the hearing. We do not need to go into the next matters which are whether or not it was just to grant a re-hearing. Because that did not happen - at least not in a comprehensible way - we ended up with a decision on that preliminary issue and that alone. Since I have failed on that preliminary issue all the other matters are entirely irrelevant. Had I gone about it the other way round and said "I qualify, now I have to show that it is just to grant a re-hearing" and I lost that argument, fair enough, but the very decision on 23 October was that I should not go into those matters.

MR JUSTICE LEVESON: That was not the decision. That was for discussion between the parties.

MR PLATFORD: It was also the decision of the Solicitors Disciplinary Tribunal.

MR JUSTICE LEVESON: Is there any other issue of principle?

MR PLATFORD: No.

MR JUSTICE LEVESON: You had better tell me what you say about taxation and the rest.

MR PLATFORD: So far as the tribunal is concerned, if you have Mr Hopper's .....

MR JUSTICE LEVESON: No, I do not. His bill or the case?

MR PLATFORD: Yes.

MR JUSTICE LEVESON: I have his bill. I thought you were referring to the authority.

MR PLATFORD: No. That is question of principle; I do not think I need to trouble you with that. As for the assessment, conceding for the moment that what we are arguing about is whether there should be payment on account and, if so, how much .....

MR JUSTICE LEVESON: So you would argue for a detailed taxation, in any event.

MR PLATFORD: Yes. Coming on to the second question. I accept that it would be appropriate in a case of this nature to make payment on account if you are against me.

MR JUSTICE LEVESON: Yes, I understand that. I can carry the alternative arguments in my mind.

MR PLATFORD: I had no doubt. Assuming that, can I take you to the third entry - attendances on others. I have no idea upon whom .....

MR JUSTICE LEVESON: If you are suggesting there should be a taxation, and there has to be a taxation because the Law Society seek a taxation in any event, it would be wrong to start a summary assessment for half the case.

MR PLATFORD: I agree. I am not suggesting any nitpicking, but I am seeking to indicate that the payment on account should be only a very small portion of the bill because it is, on the face of it, significantly high. I was taking my Lord to the third entry and it is slightly surprising, the Solicitors Disciplinary Tribunal's position, that they need to attend on any others. I go down to the next entry - work done on documents - I reminded my Lord that so far as the Solicitors Disciplinary Tribunal is concerned they have not entered into the debate on the merits. They have only entered into the construction of Rule 25. So 18.9 hours plus a brief fee of £5,000, which is I think exactly the same as mine so I cannot make too much fuss about that, seems .....

MR JUSTICE LEVESON: Where it is the same person who is getting both the brief fee and the work on documents, we have to be careful that the work on the brief did not include the work on documents.

MR PLATFORD: Yes.

MR JUSTICE LEVESON: I have the point. So you say "modest" only even though Mr Hopper contends that this is a modest bill in the first place. In relation to the Law Society?

MR PLATFORD: In relation to the Law Society I repeat what my friend has said. His bill is twice ours, and we have had the running of this thing. I do not think there is anything else I can say.

MR JUSTICE LEVESON: There are some substantive issues to be dealt with and with which I need help. Mr Platford said he was happy to go on before Mr Justice Goldring.

MR HOPPER: That does not accord with my recollection. I will try to put this into context and background. If you have the original claim form; the one you got was mine that I handed in. If you have a claim form as a separate clip it will have a blue triangle in the top left-hand corner; if not, I will read from it.

MR JUSTICE LEVESON: I have it.

MR HOPPER: If you go to the statement of facts relied on which immediately follows the printed form and to page 3, at the bottom of the page at paragraph 9, Mr Elliott says:

MR JUSTICE LEVESON: Were you happy just to try the preliminary issue, or the question what Rule 25 meant in front of Mr Justice Goldring?

MR HOPPER: By that time, no. Clearly the matter had developed in the course of skeleton arguments, Mr Platford's supplementary skeleton argument having arrived the afternoon before. It was I think common ground, that is to say on the morning before the hearing before Mr Justice Goldring, and I believe I am right in saying that it was Mr Platford who first raised the issue, with my learned friend Mr Treverton-Jones, that in the light of these later developments and the way that the Law Society and the tribunal had responded and reason of the additional documents it was no longer a half-a-day case. That was aired before the judge and we agreed to lose our place and come back, on a day's estimate, another time. We must all take such blame as there is in that nobody, between the stage where skeleton arguments were exchanged, made any approach to the court to vary the time estimate.

MR JUSTICE LEVESON: Until Monday morning everybody thought it would take a day. I suppose I could have said "I have read everything" and let you develop it. It seems to me I could take that shortly.

MR HOPPER: So far as it being suggested that there was a difference between the parties as to how that day and that hearing should proceed, being as polite as I can, that does not accord with my recollection.

So far as other issues are concerned - unless you need any further assistance with that one - the involvement of the tribunal, it being suggested to be both unnecessary and brought upon itself by its decision, it is a submission that I find difficult to follow in that the tribunal has only brought the proceedings upon it by taking a decision that your Lordship has considered was right. That would clearly suggest that costs should follow the event, unless it is suggested that I should not have been here at all. But we are the defendant in these proceedings and an attack was made not only on this particular decision, but an attack that was sufficiently material to have a bearing on the way in which the current redrafting of the tribunal's Rules may take place, the current final draft. We were awaiting the result of these proceedings with interest in case that should influence it. I do not say that was something Mr Elliott should have predicted but he must surely have predicted that this was an issue of considerable importance because it was an attack on the way in which Rule 25 is to be interpreted and to be implemented in practice. I was not intending to condescend into the detail of the figures.

MR JUSTICE LEVESON: No, that is not necessary because if there is to be detailed taxation an interim payment inevitably is a broadbrush attempt to identify the true .....

MR HOPPER: It may help if I explain because I am this strange hybrid how I approach the calculation of costs for summary assessment. I put everything in the solicitors bit up to the point where I consider that final preparation for the hearing and the hearing itself will occur.

MR JUSTICE LEVESON: So work on documents does not include work on documents such as the skeleton argument.

MR HOPPER: It does. That includes everything up to final preparation for the hearing. So the solicitor's meter, if you like, continues all the way through until I get on the train or whatever it is and do my final preparation for the actual advocacy and then undertake the actual advocacy.

MR JUSTICE LEVESON: That is interesting. I am not sufficiently aware of the ramifications of costs to know how that works out.

MR HOPPER: I have no problem with detailed assessment, but I have a slight problem with anybody suggesting that I have not done the time.

MR JUSTICE LEVESON: No. No one is suggesting that.

MR HOPPER: Well, you never know.

MR JUSTICE LEVESON: At least not to me.

MR HOPPER: So be it.

MR JUSTICE LEVESON: Thank you. Mr Treverton-Jones, what do you say about what Mr Platford says, that he wanted to go on before Mr Justice Goldring and objected to it going .....

MR TREVERTON-JONES: I was amazed to hear that, literally amazed. Can I give you my own recollection? My recollection was this: as you appreciate, the Law Society was not in the case originally. We joined as an interested party. It was being listed as a half-day application at the time I was being instructed, so I did not know the detail or meat of the case at the time the half-day estimate was given. When I came into the case I was surprised to see that it had a half-day estimate. I persuaded myself that it was possible to dispose of this case in half-a-day on the basis that the court might take a robust view of the construction.

MR JUSTICE LEVESON: I could certainly have dealt with the case in half-a-day if I limited myself entirely to what Rule 25 meant, and I could have saved myself no small measure of work.

MR TREVERTON-JONES: Yes.

MR JUSTICE LEVESON: But neither side encouraged me to do that.

MR TREVERTON-JONES: The reality, when one analyses it, is that

My recollection of what happened when we arrived at court in front of Goldring J was that Mr Platford told me that this was now a day's case, as I think all three of us effectively agreed. The difficulty that we had in front of Mr Justice Goldring was that we could not go part heard to the next day because I had a fixture in another court. Although it was canvassed that we might go off to the Friday - this was starting on Wednesday - understandably I think certainly Mr Hopper, and also possibly Mr Platford, agreed that that would not really be desirable.

MR JUSTICE LEVESON: The risk you run is that you could have gone over yet again.

MR TREVERTON-JONES: There are all sorts of problems, as one knows, with not going off to the next day. My recollection was that - far from opposing any application to adjourn - there was no application to adjourn. The matter was really put before Mr Justice Goldring as, effectively, an agreed position that half-a-day would be inadequate and effectively, by agreement, Mr Justice Goldring put it off to be re-listed with a day's estimate.

MR JUSTICE LEVESON: So the hearing before Mr Justice Goldring did not take long.

MR TREVERTON-JONES: Half-an-hour, if that. He had other cases to hear in the morning. We were going to be last in the list, perhaps getting on at 2 o'clock. Because of the agreed difficulty I think we asked if we could draw the matter to his attention early on. That is how it happened. I am certainly willing to accept my share of the blame for that, as I think Mr Hopper is.

MR JUSTICE LEVESON: I am not ascribing blame. I took a view about the length of the case about which you know, but that is neither here nor there. The real point that concerns me is this: if the matter was put before Mr Justice Goldring that "we have got to where we are but we could use the half- day to deal with a simple construction issue", as Mr Platford submits that might have a bearing on costs; if it was not, then, otherwise.

MR TREVERTON-JONES: I do not recollect Mr Platford ever making that suggestion to Mr Justice Goldring. I am very sorry that my recollection is so different from his. Obviously the matter can be resolved anyway, if your Lordship wishes it to be, by obtaining a transcript, but my recollection is very much the same Mr Hopper's.

ASSOCIATE OF COURT: (To judge) The case actually took 10 minutes on 17 March.

MR JUSTICE LEVESON: 10 minutes.

MR PLATFORD: Perhaps it would help if I gave my recollection of what actually did happen.

MR JUSTICE LEVESON: No. There is clearly an issue here. My attitude is that I am not prepared to try and resolve this between counsel. It was a 10-minute hearing. It is not going to be very expensive. We will get a transcript of what happened. What I direct is this: the parties seeking an order for costs - so I will put it on the Law Society - should obtain a transcript of the hearing before Mr Justice Goldring. Short - I am talking about a page - submissions can be put into writing by each side on the question of costs which I shall then decide on paper. I am not going to spend any more costs sorting it out. I will resolve that issue on paper. Is there anything else you want to say in relation to what Mr Hopper had to say? Thank you. I will reserve the question of costs and direct that a transcript be obtained of what was said before Mr Justice Goldring. How long will it take to obtain a transcript?

MR TREVERTON-JONES: Yes.

MR JUSTICE LEVESON: Submissions by the respondent to this application within seven days thereafter, and the response by the claimant within seven days thereafter: short - I do not apprehend that this exercise should incur any further costs. Each must serve the skeleton arguments on the other. If there is any reply - which doubtless by now will be down to a few lines - that can be within very short time thereafter. I will deal with it on paper rather than by judgment and, as it were, by spoken order by a letter written my clerk. That is sufficient. Then the order can be drawn up accordingly.

I ought to thank you all very much for your assistance.