Two bites of the apple- limitation in professional negligence cases
Where there is a lack of evidence of a respondent’s attempt to notify a tribunal and other parties of non-attendance, a Court was permitted to conclude that they had not been sent and, in the circumstances, a tribunal was permitted to proceed in absence under s.16(2) of the Solicitors (Disciplinary Proceedings) Rules 2007.
The appellant, a solicitor (Gurpinar), appealed a decision by the Solicitors Disciplinary Tribunal (‘the Tribunal’) which ordered that his name be struck from the Roll of Solicitors in relation to findings of eight allegations of professional misconduct.
The original hearing was fixed for 25 March 2010 and the appellant was granted an adjournment to 22 April 2010 with the direction that a defence bundle be served by 14 April 2010. The appellant failed to comply with the direction. At the reconvened 22 April hearing, he also failed to attend and was unrepresented. The tribunal contacted previous Counsel for the appellant who confirmed that no further instructions had been received since 25 March 2010.
S.16 (2) of the Solicitors (Disciplinary Proceedings) Rules 2007 provides that where notice of a hearing is served and a respondent fails to attend, the tribunal may proceed in his absence to hear the allegations. Under this provision the tribunal proceeded in his absence.
The appellant submitted in the current appeal that he had taken various steps to contact the Tribunal and other parties; he submitted that due to ill health and disruption to air travel caused by the Icelandic volcano he was prevented from returning to the United Kingdom in time to attend his hearing. The appellant relied upon several letters and e-mails sent to the clerk to the Tribunal, Counsel for the Solicitors Regulation Authority (SRA), his co-respondent, a member of the Metropolitan Police and finally letters dated 04 May 2010 sent to the Tribunal and Counsel for the SRA confirming his return to the country on 28 April and requesting an update.
The Tribunal were unable to trace any record of the receipt of the letters and e-mails detailed. Lord Justice Moore-Bick ruled that the only explanation for lack of response and failure to find evidence of their receipt was that they had not been sent. The Court also found that unreasonable delay had occurred in the appellant seeking to explain why he did not attend on his return to the Country and the Tribunal had good reason for proceeding in his absence.
It is important to note that Gurpinar’s partner, against whom the same allegations were made, was present at the hearing.
The Court therefore concluded that there was no basis for setting aside the Tribunal’s order on the grounds that the procedure had been unfair to the appellant.
In relation to the sanction, the submission was that the Tribunal failed properly to take into account the circumstances of each of the allegations of professional misconduct it found proved against the appellant and imposed an unduly harsh penalty as a result.
The allegations went to various breaches of conditions placed on the appellant’s Practising Certificate, and also breaches of the Solicitors Accounts Rules.
The crux of the submission was that the Tribunal had taken too serious a view of the allegation, and that they did not avert to evidence put forward to explain various instances of professional misconduct that came about.
The Court acknowledged that any of the breaches in isolation would not attract a serious view. However, any breach of the Solicitors Accounts Rules will attract a stringent penalty, and in this matter the number and nature of findings justified the Tribunal’s sanction. The Court also drew attention to the fact that Mr Gurpinar failed to serve a defence bundle and failed to attend to give oral evidence.
This case demonstrates the need for firm evidence from Registrants to back up any reasons for non-attendance if they wish the matter to be adjourned. Simply claiming practical difficulties without supporting evidence may well not suffice.
Harriet Roberts, Legal Assistant
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