Acting to stop harm: the FCA and Appointed Representatives
Mr Ashok Sancheti, a solicitor (‘the Appellant’), appealed the decision of the Solicitors Disciplinary Tribunal (‘the Tribunal’), following a finding of nine allegations against him and a sanction of striking off of the Roll of Solicitors.
In accordance with Civil Procedure Rule 52.21, the High Court will allow an appeal if the decision of the Tribunal is wrong or unjust because of a serious procedural or other irregularity in the proceedings.
The Appellant was admitted as a solicitor on 1 February 1999. Between June 2005 and October 2009, the Appellant practised as a member and director of Morgan Walker LLP (‘the LLP’). Between November 2009 and 31 January 2012, the Appellant practised as the sole director of Morgan Walker Solicitors Limited (‘the firm’).
The LLP went into liquidation on 19 January 2011 and the firm ceased trading on 31 January 2012. The Solicitors Regulation Authority (‘SRA’) received a number of complaints regarding the Appellant, and on 30 March and 3 April 2012, decisions were made to intervene into the remnants of the firm and the LLP respectively. The Appellant’s practising certificate was suspended and he subsequently became bankrupt.
The allegations related to the Appellant’s failure to appropriately deal with monies under the trust of the Appellant but belonging to four clients.
The Rule 5 statement dated 28 March 2013, was served on the Appellant on 18 April 2013. Following a failure to effect proper service, the SRA served the Rule 7 statement on the Appellant by post on 18 December 2013 and a case management hearing took place on 16 October 2013. The Appellant did not attend this but raised in correspondence the possibility of him attending by Skype link, as he was resident in India. This was rejected by the Chairman on the basis that both parties were able to provide written submissions and a Skype link was likely to involve technological challenges. The Appellant subsequently sent his proposed directions by email.
The Tribunal ordered the Appellant to file and serve his answer to the Rules 5 and 7 statements by 15 November 2013. He was also ordered to make any application for a video conference hearing by the same date. The Appellant did not comply with either of these orders.
On 1 November 2013, the Appellant wrote to the Tribunal raising his concern that the case management hearing had proceeded in his absence. He asked for the letter to be treated as an application to vary the directions, but did not identify any specific variation sought. The Tribunal confirmed the orders previously made in a memorandum dated 29 November 2013, but varied the date to apply for video conference to 19 December 2013.
On 9 December 2013, the Appellant applied for judicial review of the decisions made by the Tribunal on 16 October and 28 November 2013. Permission to apply was refused on 19 February 2014 as the application was considered to be totally without merit.
On 16 December 2013, the SRA served a bundle of witness statements. On 18 December 2013, the Tribunal served the Rule 7 statement. On 10 February 2014, the Appellant was due to attend a directions hearing by Skype link, however, following a delay to the start of the hearing, he asked for the hearing to be adjourned on the ground that he was only available for the expected duration of the hearing and had to attend an important family event later that day. The Appellant later agreed that he could be available later on that same day, but when called, he was not contactable by either Skype or telephone. This also confirmed the Tribunal’s earlier determination that Skype was not a suitable medium for the substantive hearing.
The Tribunal gave written directions dated 11 February 2014, for the SRA to purchase a flight and hotel accommodation in order for the Appellant to attend the substantive hearing on 7 April 2014. The Tribunal also directed that the Appellant be provided with reasonable subsistence expenses for the duration of the hearing. The Appellant was ordered to file and serve his answer to the Rule 5 and 7 statements by 24 February 2014.
On 18 February 2014, the Appellant filed a request for further and better particulars of the SRA’s case and sought an extension of time. The SRA confirmed that a response would be forthcoming by 28 February and the Tribunal, in a memorandum dated 21 February 2014, refused the application for an extension of time on the basis that the Appellant had had many months to consider and prepare his response to the statements and it was of concern to the Tribunal that the Appellant had little regard to the orders made by the Tribunal to date.
On 19 February 2014, the SRA sent a disclosure bundle to the Appellant, enclosing a letter confirming that the bundle comprised all of the remaining material which the SRA viewed as disclosable and that the SRA had fulfilled its disclosure obligations. On 21 February 2014, the Appellant made an application to strike out the Rule 5 and 7 statements on the grounds that there had been a lack of disclosure, an absence of first-hand evidence and that the Panel should have been reconstituted because the solicitor members were biased.
On 24 February 2014, the Appellant sent the SRA and the Tribunal a document described as a ‘draft response…which will be perfected in due course after the receipt of the files and the further particulars’. On 27 February 2014, the Appellant filed a request for disclosure, which he stated was needed to enable him to ‘properly formulate the final Defence in answer to the two statements’. The SRA served a further bundle of witness statements on 10 March 2014.
On 10 March 2014, the Appellant emailed the Tribunal and expressed that he was the victim of oppression by the SRA and that he could not receive a fair hearing because the Tribunal was biased in favour of the SRA. Later that day, the Appellant sent a further email stating that his brother had refused to provide any further facility for him to participate in the proceedings.
On 14 March 2014, the Tribunal attempted to arrange a Skype link for the Appellant to make applications for strike out, disclosure and directions. This was unsuccessful and so the Tribunal proceeded on the basis of the Appellant’s written submissions. The Appellant’s written submissions included assertions that he was being maliciously prosecuted, that the true purpose of the proceedings was to close his business in the UK and punish him financially following his brother’s involvement in a case which resulted in a number of English law firms being unable to practise law in India. The Appellant further submitted that documents had been wrongly withheld from him by the SRA and this was the reason for his failure to respond to the Rules 5 and 7 statements. The Tribunal accepted the SRA’s submission that all relevant documents had been disclosed and the Appellant’s applications were refused.
The SRA served a skeleton argument on 27 March 2014, setting out the witnesses to be called in the case and informing the Appellant that if he failed to attend the hearing, the SRA would ask the Tribunal to proceed in his absence.
The Appellant failed to attend the hearing in April 2014. The Tribunal were satisfied that the Appellant was aware of the hearing date and had been provided with a return air fare, hotel accommodation and subsistence. The Tribunal therefore exercised its power to proceed in his absence. The Tribunal did not consider the Appellant’s ‘draft response’ dated 24 February 2014, as it did not think that it would be appropriate to see a draft document.
On 5 June 2014, the Appellant put forward sixteen grounds of appeal. The grounds of appeal included that the decision of the Tribunal was perverse and arbitrary, that the members of the Tribunal are not independent as they are members of the Law Society, that the Appellant had been asked to defend the allegations without being provided with any papers or access to information which was relevant to his defence and that he had not been allowed adequate or proper opportunity to defend himself.
The SRA, in response to the appeal, relied upon Pine v Law Society, which confirmed that members of the Tribunal are independent and impartial. It was submitted that the SRA has ‘complete operational independence from the Law Society’ and that the judgement of the Tribunal in this case showed no evidence of bias or partiality.
The SRA relied on the chronology of events as discussed above, to refute the Appellant’s argument that he was denied an opportunity to defend himself via a video link and was not provided with adequate disclosure. The SRA further submitted that the Tribunal was correct to refuse to consider the Appellant’s draft response and that in any event, the Appellant could not have successfully defended any of the allegations nor the striking off which resulted from the Tribunal’s findings.
In rejecting the Appellant’s appeal on the ground that the Tribunal was not independent, the Court confirmed that the members of the Tribunal are not chosen by the SRA or the Law Society, but are appointed by the Master of the Rolls. The Court submitted that the Appellant had not provided any evidence to indicate actual bias, or an appearance of bias. The Court added that there is ‘obvious good sense in a professional disciplinary body including not only lay members but also professional members who are familiar with the duties and obligations’ of that profession.
The Court confirmed the Tribunal’s decision not to consider the draft document provided by the Appellant and rejected the Appellant’s argument that he had been refused adequate disclosure. The Court agreed with the SRA’s submission that the Appellant’s draft response would not have assisted him to defend himself.
The Court accepted the Tribunal’s refusal of the Appellant’s request to attend the hearing by video link and made reference to the practical difficulties that had been encountered during earlier hearings. The Court considered whether it was appropriate for the Tribunal to have proceeded in the Appellant’s absence, taking into account the SRA’s attempts to secure the Appellant’s attendance and concluded that the Appellant’s absence from the hearing was ‘plainly voluntary’.
The Court rejected the Appellant’s remaining grounds of appeal and commented that throughout the proceedings, the Tribunal had gone to considerable efforts to assist the Appellant to participate, had acted fairly and had given valid reasons for its decisions.
The most important feature of this case is that the Court confirmed the independence of the SDT from the Law Society and SRA. The Court also reinforced the benefit of having professional Panel members, who are familiar with the duties and obligations of the relevant profession.
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