Toth, R (on the application of) v Solicitors Disciplinary Tribunal [2001] EWHC Admin 240 (28th March, 2001)

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Queen v. Solicitors Disciplinary Tribunal ex parte Arpad Toth [2001] EWHC Admin 240 (28th March, 2001)

1. In 1993 Wilfred Toth, the son of the Applicant, Mr Arpad Toth, died in tragic circumstances. Mr Toth believed that his son's death was due to the negligence of his general practitioner and the doctor who was deputising for her. In 1995 he brought proceedings under the Fatal Accidents Act 1976 against the doctors. They were represented by a solicitor from the Medical Defence Union. In 1996, Mr Toth in his personal capacity issued proceedings against the same doctors to claim damages for personal injury he alleged he had suffered as a result of his son's death. The same solicitor acted for the doctors in those proceedings. In 1997 Mr Toth made a complaint to the General Medical Council concerning his son's treatment. Again, the same solicitor represented the doctors in relation to that complaint. The Fatal Accidents Act proceedings were settled in 1998 when Mr Toth accepted the defendants' payment into court. The defendants applied to strike out Mr Toth's personal proceedings against the doctors, but their application was ultimately unsuccessful.

2. Mr Toth considered that in the course of the strike out application the doctors' solicitor had misled the Court and had otherwise acted improperly. On 22 February 2000 he made a complaint to the Solicitors' Disciplinary Tribunal ("the Tribunal") pursuant to rule 4 of the Solicitors (Disciplinary Proceedings) Rules 1994 ("the Rules").

3. The Tribunal is established under section 46 of the Solicitors Act 1974 ("the Act"). Its jurisdiction includes cases of professional misconduct and failures to comply with rules made by the Law Society under sections 31 (professional practice, conduct and discipline of solicitors and clerks), 32 (accounts rules), 34 (failure to provide accountants' reports) and 37 (professional indemnity rules).

(6) Subject to subsection (7) and (8), the Tribunal shall be deemed to be properly constituted if -

(7) For the purpose of hearing and determining applications and complaints the Tribunal shall consist of not more than three members.

(8) A decision of the Tribunal on an application or complaint may be announced by a single member.

(9) Subject to subsections (6) to (8), the Tribunal, with the concurrence of the Master of the Rolls, may make rules -

(a) empowering the Tribunal to elect a solicitor member to be its president; and

(b) about the procedure and practice to be followed in relation to the making, hearing and determination of applications and complaints.

(10) Without prejudice to the generality of subsection (9)(b), rules made by virtue of that paragraph may in particular -

(a) empower the president of the Tribunal to appoint a chairman for the hearing and determination of any application or complaint;

(b) provide that, if the president does not appoint a chairman, a solicitor member shall act as chairman; and

(c) provide, in relation to any application or complaint relating to a solicitor, that, where in the opinion of the Tribunal no prima facie case in favour of the applicant or complainant is shown in the application or complaint, the Tribunal may make an order refusing the application or dismissing the complaint without requiring the solicitor to whom it relates to answer the allegations and without hearing the applicant or complainant.

(c) to require a former solicitor whose name has been removed from or struck off the roll to answer allegations contained in an affidavit relating to a time when he was a solicitor;

(d) by a solicitor who has been suspended from practise for an unspecified period, by order of the Tribunal, for the termination of that suspension;

(e) by a former solicitor whose name has been struck off the roll to have his name restored to the roll;

(f) by a former solicitor in respect of whom a direction has been given under subsection (2)(g) to have his name restored to the roll,

shall be made to the Tribunal; but nothing in this subsection shall affect any jurisdiction over solicitors exercisable by the Master of the Rolls, or by any judge of the High Court, by virtue of section 50.

(2) Subject to subsection (3) and to section 54, on the hearing of any application or complaint made to the Tribunal under this Act, other than an application under section 43, the Tribunal shall have power to make such order as it may think fit, and any such order may in particular include provision for any of the following matters-

(a) the striking off the roll of the name of the solicitor to whom the application or complaint relates;

(b) the suspension of that solicitor from practice indefinitely or for a specified period;

(c) the payment by that solicitor or former solicitor of a penalty not exceeding £5,000, which shall be forfeit to Her Majesty;

(d) in circumstances referred to in subsection (2A), the exclusion of that solicitor from legal aid work (either permanently or for a specified period);

(e) the termination of that solicitor's unspecified period of suspension from practise;

(f) the restoration to the roll of the name of a former solicitor whose name has been struck off the roll and to whom the application relates;

(g) in the case of a former solicitor whose name has been removed from the roll, a direction prohibiting the restoration of his name to the roll except by order of the Tribunal;

(h) in the case of an application under subsection (1)(f), the restoration of the applicant's name to the roll;

(i) the payment by any party of costs or a contribution towards costs of such amounts as the Tribunal may consider reasonable.]

(3) On proof of the commission of an offence with respect to which express provision is made by any section of this Act, the Tribunal shall, without prejudice to its power of making an order as to costs, impose the punishment, or one of the punishments, specified in that section.

(3A) Where, on the hearing of any application of complaint under this Act, the Tribunal is satisfied that more than one allegation is proved against the person to whom the application or complaint relates it may impose a separate penalty (by virtue of subsection (2)(c)) with respect each such allegation.

6. The Rules, which govern the procedure of the Tribunal, are contained in a statutory instrument made pursuant to the power contained in section 46 of the Act.

(ii) To strike the name of a registered foreign lawyer off the Register of Foreign Lawyers maintained by the Society, or

(iii) Making allegations against a solicitor, a former solicitor, or a registered foreign lawyer, or

(b) An Application to the Tribunal to make an order under Section 43(2) of the Act with respect to a solicitor's clerk shall be in Form 2.

(c) An Application to the Tribunal seeking restoration to the Roll or for the revocation of an order made pursuant to Section 43(2) of the Act or by a former registered foreign lawyer seeking to be restored to the Register of Foreign Lawyers shall be by affidavit in Form 3.

(d) An Application to the Tribunal by a solicitor who has been suspended from practice or a registered foreign lawyer suspended from the Register of Foreign Lawyers to have that period of suspension terminated shall be by affidavit in Form 4.

(e) An Application that a direction be made by the Tribunal that a direction made by the Society in respect of a solicitor in respect of inadequate professional services be treated for the purposes of enforcement as if it were contained in an order of the High Court shall be in Form 1.

8. Mr Toth's complaint fell within Rule 4(1)(a)(iii) and was duly made by way of an application in Form 1 contained in the First Schedule to the Rules. Rule 4(4) is as follows:

(i) An application under Rule 4(1)(a)(i)(ii)(iii)(iv) and (b) shall be considered by a solicitor member of the Tribunal who shall certify whether a prima facie case is established in which event the procedure set out in Part III shall apply.

(ii) Where in the opinion of the solicitor member no prima facie case is established the Application shall be considered by another solicitor member and a lay member of the Tribunal and where in their opinion no prima facie case is established, the Tribunal may dismiss the Application without requiring the respondent to answer the allegations and without hearing the applicant. If required so to do by either party, the Tribunal shall make a formal order dismissing the Application.

(iii) If in the opinion of the solicitor member of the Tribunal the respondent should be given the opportunity of making representations as to whether or not a prima facie case is established, then the Clerk will serve a copy of the Application upon the respondent inviting him to make such representation in writing within 14 days and the solicitor member will after considering the same certify that a prima facie case is or is not established, or require oral representations to be made by the parties to him sitting in private before so certifying.

9. Part III of the Rules is headed "General", and contains Rules 5 to 31. Rules 5 and 6, 9, 28 and 31 are as follows:

5 Before fixing a day for any hearing the Tribunal may require the applicant to supply such further information and documents and copies thereof relating to the Application as it thinks fit.

6 Upon the receipt of an Application and after the finding by the Tribunal of a prima facie case where these Rules require the Tribunal shall fix a day for the hearing and the Clerk shall serve notice thereof on the parties at least 42 days before the date of the hearing. The Clerk shall give notice to the respondent in Form 5 and a copy shall be sent to the applicant.

9 The Tribunal may of its own motion or upon the application of any party adjourn or postpone the hearing upon such terms as the Tribunal may think fit.

28 (a) The Tribunal may at any stage of the proceedings against a Solicitor, former Solicitor or Registered Foreign Lawyer in which the application is not made on behalf of the Society refer the case to the Society for consideration by the Adjudication and Appeals Committee of the Solicitors Complaints Bureau (or such other appropriate body or committee as the Society might decide) and may adjourn the application pending the consideration thereof by that Committee in case it should see fit to lodge a further application against the respondent or to undertake on behalf of the original application the prosecution of his application.

(b) The Tribunal shall inform the Society, or the Solicitors Complaints Bureau, or both, (or such other appropriate body or committee as the Society might decide) at any stage of the proceedings, if it is of the opinion that the Society should consider whether to take any of the steps set out in the Courts & Legal Services Act 1990 (Schedule 15) relating to inadequate professional services.

31 (a) Subject to the provisions of these Rules the Tribunal may regulate its own procedure.

(b) The Tribunal may dispense with any requirements of these Rules in respect of notices, affidavits, witnesses, service or time in any case where it appears the Tribunal to be just so to do.

10. The Office for the Supervision of Solicitors ("the OSS") has replaced the Adjudication and Appeals Committee of the Solicitors Complaints Bureau: it is the "other appropriate body or committee as the Society (has decided)" referred to in Rule 28.

Two solicitor members and a lay member of the Tribunal met together on the 9^th March to discuss your application. They have declined to reach a conclusion as to whether or not a prima facie case is established thereby and believe that the matters which you raise should be investigated. The Tribunal has no powers of investigation and the appropriate body to conduct an investigation is the Office for the Supervision of Solicitors .....

12. Mr Toth contends that this decision of the Tribunal is unlawful, on the basis that it is not permitted by the Rules. He contends that the Tribunal was bound to proceed immediately upon his making his application to determine whether or not a prima facie case had been established, and if so to proceed to a hearing of his complaint as required by Rule 6, and he therefore seeks an order quashing the decision of the Tribunal and an order requiring it to consider his application. His essential contentions are:

i) Rule 28 applies only after the Tribunal has decided that a prima facie case has been established.

ii) Rule 28 only permits a reference to be made to the OSS for the purpose its considering whether "it should see fit to lodge a further application against the respondent or to undertake on behalf of the original [applicant] the prosecution of his application". It does not permit a reference and consequential adjournment in order for the OSS to investigate generally matters raised by an application.

13. The Tribunal contends that its decision as set out in the letter of 13 March 2000 was within its powers contained in the Rules. It disputes both of Mr Toth's contentions. It has, without prejudice to its contentions, agreed to consider whether Mr Toth's has established a prima facie case against the solicitor in question, but, given the possibility that the Tribunal may again wish to refer the matter to the OSS, it has agreed that the guidance of the Court should be sought as to the correct interpretation of the Rules.

14. As can be seen, the issues before me are issues as to the correct construction of the Rules. It was not argued on behalf of Mr Toth that, if the Rules, correctly construed, empowered the Tribunal to act as it did, its decision was unreasonable or otherwise vitiated. Furthermore, it was not suggested that Rule 28(a) is ultra vires.

15. Before turning to these questions of construction, it is appropriate to complete the chronology.

16. On 16 March 2000 the Tribunal sent Mr Toth's application to the OSS, stating that it had decided that the case should be referred to the OSS "for investigation". On 27 March 2000 his solicitors wrote to the Tribunal making the points which have been argued before me, and inviting it to determine that there was a prima facie case. On 10 April 2000, the OSS requested further information and documents from Mr Toth. On 20 April 2000, the OSS sent an unfortunate letter to Mr Toth in which it stated:

You will know that the Tribunal's first duty is to determine whether or not there is a prima facie case for (the Solicitor) to answer. The Solicitors Disciplinary Tribunal has passed the file to this Office for this Office to determine that issue.

At this stage, so far as the Solicitors Disciplinary Tribunal is concerned, your application before them is not "live" and the proceedings before the Tribunal has (sic) not formally begun.

17. On 31 May 2000 the OSS wrote to Mr Toth stating that in view of the imminent court hearings in his county court action and in his judicial review proceedings against the GMC's decision to dismiss his complaint about one of the doctors who had treated his son, it had decided that it could not investigate his complaints and that the "file is now closed".

18. The present proceedings were begun on 1 June 2000. The Tribunal nonetheless continued to consider Mr Toth's complaint, but by letter dated 3 July 2000 it informed him that it would defer making a decision as to whether there was a prima facie case until after the results of the court hearings were known. By the time of the hearing before me, the Tribunal had still not made a decision as to whether or not there is a prima facie case against the solicitor, but had agreed that a solicitor member of the Tribunal should consider the matter.

19. I have to say that I understand Mr Toth's frustration, if not exasperation, with the lack of any decision by the Tribunal as to the existence of a prima facie case. At the date of the hearing before me, over a year had passed since he lodged his complaint, and in effect it had not advanced one iota.

20. I turn to consider the questions of construction raised in these proceedings.

21. The starting point for Mr Toth's submissions is that Rule 4(4)(i) provides that the procedure in Part III applies in the event that a solicitor member of the Tribunal certifies that a prima facie case is established. Therefore, it is argued, Part III, which includes Rule 28, does not apply unless and until the solicitor member so certifies. Rule 4(4)(i) is mandatory, and does not permit the Tribunal or a solicitor member to defer making a decision or to refuse to make one. Furthermore, the certificate under Rule 4(4)(i) is that of a solicitor member of the Tribunal, whereas the power under Rule 28 to refer the case to the OSS and to adjourn for that purpose is vested in the Tribunal. Echoing the point made in the OSS's own letter of 31 May 2000, it is argued that there are no "proceedings" for the purpose of Rule 28(a) until the solicitor member has certified that a prima facie case is established. It is submitted that the power to refer to the OSS is inherently one to be exercised only if there is a prima facie case against a solicitor. Lastly, the narrowness of the power to refer to the OSS under Rule 28(a) is shown by the words "in case it should see fit to lodge a further application against the respondent or to undertake on behalf of the original application the prosecution of his application", which must qualify both the purpose for which the Tribunal may refer a case to the OSS as well as the purpose of an adjournment of the application.

22. Mr Coppel, on behalf of Mr Toth, approached the interpretation of the Rules on the basis that Mr Toth had a right to have his complaint determined by the Tribunal, as if the Rules were concerned with a lis between the complainant making an application under the Rules and the solicitor against whom a complaint is made. I do not think that this is the correct approach. The purpose of the Tribunal is not confined to matters between the complainant and the solicitor. It does not adjudicate upon private law rights. It does not award damages against a solicitor. It is concerned with the fitness of a person to act as a solicitor not for a particular client, but generally. It is concerned with the protection of the public from misconduct and the breach of professional rules on the part of solicitors, and the punishment of those who are guilty of misconduct or breach of those rules. Rule 28 has to be considered in the light of that consideration, and so considered it confers a potentially beneficial power on the Tribunal.

23. In my judgment, as a matter of construction the powers conferred by Rule 28(a) to refer a case to the OSS and to adjourn an application apply both before and after certification under Rule 4(4)(i). My reasons are set out in the following paragraphs.

24. First, the word "proceedings" in Rule 28 has a very wide meaning. In my judgment, "proceedings" in the Tribunal begin with the making of an application under Rule 4. Indeed, it is difficult to find a different word to denote what occurs after the presentation of an application to the Tribunal. Section 12(10) of the Act refers to the procedure and practice to be followed in relation to (among other matters) the making of complaints. I do not read these words as an indication that the making of complaints is not the subject of procedure, and if so the making of a complaint and what follows are "proceedings".

25. The width of the word "proceedings" is demonstrated by decisions such as Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729, in which the Court of Appeal held that there were proceedings for the purpose of the then RSC Order 2 rule 1 even before a writ was issued. Lord Denning MR said, at 735:

I think that any application to the court, however informal, is a "proceeding." There were "proceedings" in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the registrar.

26. The context of course was different, but the width of the expression is illustrated, as is its application at the earliest possible stage of an action, indeed before the formal commencement of the action. Similarly, in Ex parte Ewing [1991] 1 WLR 388 an application for leave to apply for judicial review was held to be "civil proceedings" for the purpose of section 42 of the Supreme Court Act 1981. See too Rozhon v Secretary of State for Wales, reported in the TLR for 29 April 1993. The width of the expression can also be seen in the context of limitations of actions in cases such as Hillingdon LBC v ARC Ltd [1998] 1 WLR 174 and [1999] Ch 139 and China v Harrow UDC [1954] 1 QB 178. In its normal meaning it would include procedure before certification of a prima facie case.

27. The heading of Part III of the Rules is "General". It does not indicate that the Rules in Part III apply other than generally. It is permissible to have regard to such headings in a statutory instrument: Odgers' Construction of Deeds and Statutes, 5^th edition, pp 311-312; Bennion, Statutory Interpretation, 3^rd edition, at pp 194, 549-550, 574-575.

28. In the case of applications under Rule 4(1)(c), (d) and (e) there is no preliminary consideration of the application under Rule 4(4). Part III must therefore apply to such applications without any express words of application such as are found in Rule 4(4)(i).

29. Furthermore, in the case of those applications which are subject to the certification of a prima facie case procedure (and I use the word "procedure" as seeming to me to be appropriate) some provisions of Part III apply before certification. This is clearest in the case of Rule 7, which expressly applies to service under Rule 4, and therefore to service on a solicitor for under Rule 4(4)(iii) before certification of a prima facie case. In my judgment, Rule 31(a) and (b) apply both before and after certification, as do Rule 29 and Rule 30. In addition, I see no justification for there being any difference between the meaning of "proceedings" in Rule 30 (which relates to proof of the decision of a court or tribunal in "proceedings before the Tribunal") and in Rule 28. In both cases, the word covers the procedure (and again I stress the use of that word) of the Tribunal from the moment that an Application is made to it. I also tend to the view that, despite its opening words, Rule 5 applies both before and after certification. It is clearly sensible and beneficial for it so to apply.

30. On Mr Coppel's reading of the Rules, the words in Rule 6 "where these Rules require", which qualify "after the finding by the Tribunal of a prima facie case", are otiose. I do not think that they are: they were necessary to limit the duty on the Tribunal under Part III to fix a date for the hearing, in cases to which Rule 4(4) applies, to cases in which a prima facie case is established.

31. It follows that the words in Rule 4(4)(i) "in which event the procedure set out in Part III shall apply" cannot be read as impliedly excluding the procedure set out in Part III before certification. Accordingly, Rule 28 applies before certification, unless its wording or effect indicate otherwise. As I stated above, the word "proceedings" is quite general, and the phrase "at any stage of the proceedings" equally general. I also derive some support for the view that Rule 28 applies both before and after certification from the reference to adjournment of the application rather than, as in Rule 9, adjournment of the hearing, bearing in mind that under Rule 6 the day for the hearing is fixed upon certification. Indeed, the second part of Rule 28 would duplicate Rule 9 if it did not also apply to the proceedings before a date for a hearing is fixed.

32. Mr Coppel submitted that the solicitor member of the Tribunal charged with considering certification, or the Tribunal itself, are under a duty, imposed by Rule 4(4)(i), to consider an application to determine whether a prima facie case is established; and that Mr Toth had a right to have his application so considered. The Tribunal is under a duty to secure that a solicitor member does consider an application under Rule 4(4)(i). However, that duty is subject to the rights and powers of the Tribunal under the Rules, including Rule 28. Mr Toth has no private law right to have his application considered. His "right" is a public law right. As I mentioned above, the function of the Tribunal is not to award compensation for breach of any personal duty owed by a solicitor to a member of the public: the principal object of its disciplinary jurisdiction is the protection of the public and the profession from misconduct and breach of professional rules by solicitors and others subject to its jurisdiction and the punishment of misconduct and breach of the rules. In exercising its duty under Rule 4(4)(i), and in exercising its powers under Rule 28, the Tribunal is entitled and bound to consider the implications of a complaint for the protection of the public and the maintenance of the reputation of the profession generally. Just as that may lead the Tribunal to adjourn a hearing, it may (and I comment on this below) lead it to defer a decision on a prima facie case pending consideration of the matter by the OSS.

33. Mr Coppel relied on the fact that the certification under Rule 4(4)(i) is by a solicitor member of the Tribunal whereas the power conferred by Rule 28 is exercisable by the Tribunal. However, there is no reason why the solicitor member responsible for deciding whether a prima facie case has been established should not, with another solicitor and a lay member, constitute the Tribunal in order to consider and if necessary exercise the power conferred by Rule 28.

34. Lastly, subject to what I say below, I do not find the subject matter of Rule 28 so inconsistent with its exercise before certification as to exclude its application to that stage of the proceedings. On the contrary, I accept Miss Robertson's submission that the power conferred by Rule 28 may be beneficial at this early stage if a lay person presents a complaint with insufficient information for the solicitor member to be satisfied that a prima facie case has been established, but which also raises concerns that it may not be unfounded.

35. I have to say that I find the drafting of Rule 28 unsatisfactory. Read literally, the power to refer an application to the OSS is unqualified, whereas the power to adjourn an application appears to be restricted to the possibility of the OSS lodging a further application against a respondent or undertaking on behalf of the original application (presumably this should read "applicant") the prosecution of his application. Given that a reference of an application to the OSS at any stage is likely to affect the time required before the application is ready to be heard, it is difficult to understand this difference in wording.

36. I was not given any examples of cases in which the OSS had taken over an application or presented a further application as a result of a referral under Rule 28, and I do not know how referrals have worked in practice. Neither the Rules nor the Act confer any right on the OSS to take over someone else's application. Presumably, therefore, Rule 28 envisages that the original applicant will agree to the OSS taking over his complaint and prosecuting it on his behalf. But what if he does not? Furthermore, the Rules do not deal with the protection of confidential information obtained by the OSS from a respondent solicitor or his clients which it may wish to use in undertaking the prosecution of someone else's application. Is the original applicant whose application is being prosecuted entitled to see the documents containing that confidential information or not? And what if the original applicant is not prepared to discuss with the OSS its taking over his application without knowing what additional material the OSS has obtained, material which in the nature of things is likely to be confidential?

37. Mr Coppel is correct that the OSS is not the investigatory arm of the Tribunal. The Tribunal is and must be independent of the Law Society, and thus of the OSS: c.f. Article 6 of the ECHR.

38. I have concluded that the power to refer an application to the OSS is qualified: it must be for the purpose of it enabling the OSS to decide whether to lodge a further application against the respondent or to undertake on behalf of the original application the prosecution of his application. I have so concluded for the following reasons. First, no other purpose for a reference is given. Secondly, the words "in case it should see fit to lodge a further application or to undertake on behalf of the original application the prosecution of his application" limit the purpose of an adjournment of an application. As I indicated above, in practice if a reference is made to the OSS there will almost certainly need to be an adjournment of either the consideration of the question of a prima facie case or the hearing of the application. Thirdly, the Rules contain no provision for evidence obtained by the OSS to be brought before the Tribunal otherwise than as a result of the OSS taking over or making a further application against a solicitor respondent.

39. However, in practice this restriction on the power to refer may not be of great significance. If the Tribunal refers a case to the OSS, it cannot at that stage know whether the OSS will want to take over the application or to make a further application against the respondent. It may refer a case to the OSS for it to investigate and as a result of its investigation decide whether to intervene in one of the ways envisaged by Rule 28(a). The practical difference between this, which is permissible, and a reference of a case to the OSS for it to investigate without qualification or reference as to the purpose of the investigation is likely to be small.

40. As I stated above, Mr Toth has not raised before me the question whether the decision of the Tribunal to refer his case to the OSS was one reasonably open to it on the facts, apart from the question of construction of the Rules that he raised. I have to say that quite apart from the questions of construction, I am concerned at the procedure followed in this case. The letter of the OSS dated 20 April 2000 contained two important errors. First, the Tribunal had no power to pass the file to the OSS for the OSS to determine whether there was a prima facie case for the solicitor respondent to answer. The Tribunal has no power to delegate to any other body the performance of the duties laid on it by the Act. Secondly, it was incorrect to state that the proceedings before the Tribunal had not formally begun: they had begun with the lodging of Mr Toth's application under Rule 4(1).

41. Furthermore, I have seen no justification for the decision of the Tribunal to "decline" to reach a conclusion as to whether or not a prima facie case is established. If it was because it had delegated that decision to the OSS, it was clearly wrong to do so. If the evidence before it establishes a prima facie case, the Tribunal should not without good reason defer certification in order to refer the case to the OSS under Rule 28. The cases must be rare in which it is not possible to determine whether a prima facie case exists but it is appropriate to refer to the OSS.

42. There has been considerable delay in the prosecution of Mr Toth's application, and it is apparent that much of that delay was unnecessary.

43. The Tribunal may have in mind the possibility of making a reference to the OSS, the OSS presenting a further application or taking over an existing application, and the solicitor respondent then being given an opportunity, pursuant to Rule 4(4)(iii) to make representations as to whether or not a prima facie case has been established. However, it is to be borne in mind that the power under Rule 4(4)(iii) arises only if it is questionable whether a prima facie case has been established. If a prima facie case has clearly been established, no question arises of the exercise of the power under that Rule. In such a case, the occasion for the Respondent to present his case and to make his representations is at the hearing of the application.

44. I should also point out that in general the existence of pending civil proceedings involving a solicitor respondent is not a good reason to postpone the determination of a complaint by the Tribunal: see the cases referred to in Cordery on Solicitors at paragraph 1441.

45. Furthermore, the establishment of a prima facie case is not be regarded as a high hurdle: see Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] AC 192, in which the House of Lords distinguished between the relatively low requirement of a prima facie case and the requirement, in an extradition case, of a "strong or probable presumption" that the defendant committed the offence charged. In the present case, I am not asked to review any decision that there was or was not a prima facie case, since no such decision has been made, and I do not propose to discuss the meaning of a prima facie case in the abstract.

46. The nature of a similar screening procedure under the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 was considered by Lightman J in R v the General Medical Council, ex p Toth [2000] 1 WLR 2209, and by Sullivan J in his unreported judgment in R v the General Medical Council, ex p Richards, copies of which were supplied to me. However, the wording of those Rules differs in important respects from the Rules I am considering, and the analysis of the screening process in that context is not necessarily applicable in the present context.

47. I shall hear counsel as to any relief required and the form of the order to be made as a result of my judgment.

MR JUSTICE STANLEY BURNTON: My judgment in this case has been distributed in draft. I am grateful to counsel for their suggestions as to content and clarification. Attempts have been made to deal with the matters mentioned. I hope the judgment is clear as a result. Copies of the final judgment are available for counsel, for the press, and for the public.

MR COPPEL: Yes, my Lord. In terms of relief, leaving aside the issue of costs, two orders would be sought. First, an order quashing the decisions of the respondent dated 13 March 2000, and 3 July 2000, in which it refused to make a decision as to whether the applicant has shown a prima facie case, and directing the respondent to determine the applicant's application on the evidence before it; secondly, my Lord, a declaration that the respondent may only refer a matter to the OSS in order for the OSS to decide whether to lodge a further application against the respondent, that is the respondent to an applicant's application, or to undertake on behalf of the applicant the original --

MR JUSTICE STANLEY BURNTON: In other words, following the wording of Rule 28.

MR JUSTICE STANLEY BURNTON: I have a horrible feeling my papers are still in my room, but I think I remember it all well enough.

MR COPPEL: It picks up the wording also of your paragraph 38, the first sentence of paragraph 38.

MR JUSTICE STANLEY BURNTON: If I make such a declaration, it must make it clear that the OSS is able to consider obtaining information and then decide.

MR COPPEL: Yes, my Lord. We do not have any problem with that, but we do ask for a declaration to be made in order that there can be no misunderstanding.

MR JUSTICE STANLEY BURNTON: Let me hear Miss Robertson. I had thought that the tribunal had -- well, I mention it -- had agreed to reconsider this question.

MISS ROBERTSON: Well, it has, and so we certainly say that certiorari and mandamus are inappropriate, because we had made an open offer to reconsider before the case was ever heard. Of course, the parties were agreed that there should be guidance from the court as to the scope of the rules, and so in practice they have been waiting for that guidance. But it would seem wholly inappropriate in the circumstances, where the key question -- in other words, could one refer before a prima facie case will have been determined -- your Lordship has come down in favour of the construction we argued, and that is the reason why it was necessary to have the hearing -- that one should make an order quashing the original decision which we have already agreed to revisit. So I say no to that.

So far as the declaration goes, it is sort of tempting in a way to try and distil out the heart of this and put it into a declaration, but it does make me somewhat uncomfortable that one might overlook something that could have an impact on other cases. The choice is between simply reflecting the wording of Rule 28, my learned friend argues, which takes the matter really no further forward because we have the rule and we have the judgment; or, as your Lordship was suggesting, adding some additional wording to clarify what other things the OSS can be expected to do, such as consider and obtain evidence.

The difficulty with that is one might not cover, as it were, all the bases, because the issues have not arisen in this case. Is it really sensible to try and come up with a declaration over and above what is already contained in the judgment itself? I think that is the concern that we have there.

So we would suggest that no further relief is required, subject obviously to the debate yet to be had about costs.

MR JUSTICE STANLEY BURNTON: Mr Coppel, it seems to me you do not need an order quashing this decision because they have agreed to revisit.

MR COPPEL: That is correct, my Lord, that they made an offer in open court, and that that was noted. What I say in relation to that is that the applicant has suffered extraordinary delay already in this matter. There has been no indication, to my knowledge, to the applicant when that decision would be made, and it would provide the applicant with a degree of comfort to know that those two decisions, or the decision which is reflected in those two letters, has been formally quashed, and, in particular, that there has been a direction from this court directing the respondent to do what it is required to do.

So far as the second matter is concerned, that, my Lord, is a little more important, I submit, because your Lordship may recollect during the course of the hearing that my learned friend, when telling the court that the exercise was being undertaken, did indicate to the court that it may be -- albeit unlikely that it would be -- it may be that the matter would again be referred to the OSS. The applicant is very anxious to ensure that, if that is done, it can only be done for the limited purposes prescribed by your Lordship.

MR JUSTICE STANLEY BURNTON: Well, they are not so limited. That is the reason -- I think that was the clarification Miss Robertson thought that -- I am not sure they are actually so limited in practice.

MR COPPEL: Well, limited in the sense of not being unqualified. Any limitation so far as the applicant is concerned is better than an unqualified power. What the applicant does not want to find himself confronted with at a later stage is this matter being referred again to the OSS for a purpose which the applicant believes to be out with what your Lordship has decided is a correct reference to the OSS; and for that purpose would like the comfort, the clarity, and the assuredness of a declaration. It was relief that was provided.

MR JUSTICE STANLEY BURNTON: Without having the precise wording of the declaration that is sought in front of me and --

MR COPPEL: My Lord, I am happy to take ten minutes out in order to draft something up.

MR JUSTICE STANLEY BURNTON: Let me ask Miss Robertson what assurance the tribunal can give Mr Toth. Mr Toth is in a position in which nothing has happened for some considerable time.

MR JUSTICE STANLEY BURNTON: I think he is entitled to some formal assurance that the matter is being taken forward. I have to say I am somewhat surprised that the view has not been taken between the date of the hearing and now as to whether there is a prima facie case.

MISS ROBERTSON: Well, my Lord, the only basis in which it was necessary for the hearing to go forward was to give both sides comfort that there could be no further problem with misinterpretation of the rules with it going forward. So that was the point as far as that was concerned.

I did in fact discuss with my learned friend before the last hearing whether we could give any comfort in terms of a timetable and matters of that kind. The difficulty with that is that with the best will in the world, we have a third party to consider here, the solicitor. It is possible that the solicitor member may consider it necessary to get representations from her. We cannot bind ourselves to a timetable that might impact on the time she has for giving responses and matters of that kind, so it is not possible to say, we will deal with it by such and such a date.

MR JUSTICE STANLEY BURNTON: No, but you could agree or undertake to deal with his application --

MR JUSTICE STANLEY BURNTON: -- in accordance with the judgment that I have given.

MISS ROBERTSON: Well, I cannot imagine we would have any difficulty with that, but the question is, is that really necessary? We are plainly bound by the determination of the issues that your Lordship has delivered, and there is no reason to do anything other than go ahead and decide it in accordance with that determination.

The slight concern behind me at the idea of giving an undertaking to determine it in accordance with the decision is in case by any chance there is some innocent misinterpretation of the meaning of the decision, and my solicitor will be in breach of his undertaking.

MR JUSTICE STANLEY BURNTON: The same would apply if an order of mandamus were made. Would it not have been exactly the same position?

MISS ROBERTSON: My Lord, I just somehow wonder whether we are worrying about theoretical difficulties here. I can perfectly well see that against the past background, Mr Toth feels considerable frustration and asks for comfort, but that background is the very reason why I would hope there is no doubt at all that this matter will now be dealt with as expeditiously as may be the case and in the light of the doubtless advice from those sitting behind me as to the meaning of the judgment.

MR JUSTICE STANLEY BURNTON: As far as the declaration is concerned, if there is a declaration which in form is satisfactory?

MISS ROBERTSON: Yes, your Lordship had my submissions on that. It is simply that one may -- your Lordship, I think rightly, was thinking that it would be necessary to flesh out somewhat simply the wording of Rule 28 if one was going to give a declaration, and I was simply concerned that one might inadvertently draw the thing too narrowly in light of future cases which may raise different questions.

MR JUSTICE STANLEY BURNTON: I think one can cater for that by referring, for instance, to the exercise of its powers, and with a little bit of thought, I would have thought a declaration could be framed which does not close any doors but does clarify the matter. If it cannot, then I shall not make a declaration.

MISS ROBERTSON: My Lord, we will see perhaps what Mr Coppel proposes, but I am simply saying that paragraph 39, as it stands, gives the parties to this matter sufficient guidance, in the sense that you there find that the OSS may refer a -- sorry, that a case may be referred to the OSS for it to investigate, and, as a result of this investigation, decide whether to intervene in one of the ways envisaged by Rule 28(a).

What concerns me is when we start to add further words, "consider", et cetera, whether we may --

MISS ROBERTSON: For the purposes of this case, yes. That is, I think, my difficulty. I do not want to have to prejudge what may or may not arise in other cases.

MR COPPEL: My Lord, the applicant seeks its costs. The applicant is legally aided. He has been substantially successful. When the applicant commenced these proceedings, the position of the respondent was that it was refusing to decide the matter, and your Lordship has referred to what I think you described as "unfortunate letters". In the circumstances, the application of Mr Toth was a perfectly reasonable one.

The only question, it seems to me, is whether a continuation of the proceedings after the indication earlier this year was a valid continuation. When one reviews the correspondence, it is submitted that the stance of Mr Toth in continuing it was perfectly reasonable. I note that there was no time limit set by the respondent for the making of its decision, and indeed I note that that remains the case, notwithstanding the assurances which have been given by my learned friend on behalf of the respondent.

MR JUSTICE STANLEY BURNTON: That is because of the provision of the rules, at Rule 5, which enables, entitles, the single solicitor member to ask for representations by the respondents that complained.

MR COPPEL: Yes, my Lord, but the position of Mr Toth is that, here it is, he has been waiting now for a long, long time for anything to be --

MR COPPEL: And we still do not have any signs of progress. Now, one hears lots of explanation why there are no signs of progress, but that is of cold comfort to Mr Toth, for what should be, as your Lordship has described, really a fairly elementary and basic first step in the totality of the proceedings. That is the first point.

MR JUSTICE STANLEY BURNTON: On the questions of construction, it was one all, was it not?

MR JUSTICE STANLEY BURNTON: And to some extent, the major question of construction was the first.

MR COPPEL: My Lord, I submit that the more important is, in fact, the second, because it extends both to the prima facie proceedings and to the substantive proceedings; whereas the other is simply related to the first half of the proceedings.

MR JUSTICE STANLEY BURNTON: We are in the extraordinary position in which the submission you made was shared, to some extent, by the OSS. There we are.

MISS ROBERTSON: My Lord, can I hand up a bundle of correspondence which my learned friend already has, and can I begin by making it clear that it is agreed, and that was the tenor of the offer made before the hearing, that my clients will pay Mr Toth's costs, on the standard basis, up to and including 1 February.

The issue between us is over whether he should also have his costs in relation to the hearing. My Lord, can I quickly take you through some passages in the correspondence which have a bearing on that. On 8 February, Mr Toth's solicitors were writing to my solicitors, and it is evident at that point --

MR JUSTICE STANLEY BURNTON: Can you remind me of the dates of the hearing. I am sorry.

MISS ROBERTSON: I am so sorry, I have forgotten myself. 19 February, I am told from behind, unless I am corrected from my left. So on 8 February it is evident that relatively little had yet been done. If your Lordship turns to the second page of that letter, we are told that the solicitors only received notification of the grant of public funding on 24 January, so they were unable to comply with the deadlines of the pagination for the bundle, et cetera, and they are going to -- they apply for an extension of the deadline.

We see that in the next paragraph they have had difficulties in finding suitable counsel. However, they said they have now retained counsel, and they will arrange, last paragraph, a paginated bundle.

Now, my Lord, on 31 January there had been a conversation between my solicitor and Mr Toth's solicitor, which we will see reflected in a later letter. However, notwithstanding the offer which was made in that conversation, reiterated in the letter of 13 February, we see that trial preparations are going ahead, and 9 February again refers to finalising preparation of the bundle.

On 13 February my instructing solicitor wrote to say that he was concerned about the contents of the letter of 8 February, bearing in mind the discussions that had taken place on 31 January. He then goes on to set out the tribunal's approach:

"The Tribunal considers that it has the power to refer cases to the Office for the Supervision of Solicitors prior to determining whether there is a prima facie case. This question is a matter of interpretation..."

That was the key question and always perceived as the key question, in my submission. He goes on to say at the bottom of the letter:

"Notwithstanding the Tribunal's view of the legal basis of your client's application, the Tribunal is willing to agree to re-consider the application...and determine upon the evidence available whether there is a prima facie case. Such an approach offers a cost effective and practical solution to your client's application."

"When we spoke to your Mr Cadman on the 31st...we indicated our client would be willing to resolve your client's application on the basis set out above. Our understanding was that you would be seeing your client on the 1st February...and would revert to us shortly thereafter...we have heard nothing."

And then sets out what the position will be at the hearing consistent with that. So the statement that was made at the opening of the hearing was consistent with what had been said at the 13 February letter. On 15 February Mr Toth's solicitors write back describing that offer -- or rather the 31 January offer, in the last paragraph on the first page, as a tentative proposal. They go on to say:

"As confirmed to you on 9th February, our client was not prepared to accept a settlement on this basis."

In other words, not prepared to accept a settlement on the basis which acknowledged the existence of a right to refer the prima facie stage. And he says that:

"It was against this background that Instructions were sent to Counsel to finalise the skeleton argument."

MR JUSTICE STANLEY BURNTON: Where is the passage you have just read? That is the top of page 7, is it?

MISS ROBERTSON: Six. It is at the foot of page 6. So some issue taken about how tentative or otherwise the 31 January offer was, but at all events it was reiterated in the letter your Lordship has seen, and it was said that counsel was instructed thereafter.

MR JUSTICE STANLEY BURNTON: Hold on. Let me just go back to the letter of 8 February. Well, is there anything about the sentiment in the 8 February letter?

MR JUSTICE STANLEY BURNTON: It says, our client's position -- page 7 at the top reads:

"Our client's position as to any settlement was confirmed to you at the latest by our letter of 8th February and telephone conversation with you on 9th February."

MISS ROBERTSON: All I can infer was they were saying, you should have known, because we were continuing with trial preparation, that your offer was unacceptable.

MISS ROBERTSON: My Lord, then what one gets is a rather more substantive response on 16 February.

Basically, a time limit for carrying out a preliminary consideration. But we have to accept that there is no power to refer before a prima facie case has been determined, but the decisions were Wednesbury unreasonable, and that we pay the costs on an indemnity basis.

MISS ROBERTSON: Yes. My solicitors responded to that, saying they were surprised by that, since Wednesbury unreasonable had not been raised by the skeleton that had been served in the meantime by Mr Toth.

And then on the second letter of the 16th, on page 12, my solicitors wrote confirming that they now had instructions to pay Mr Toth's costs up to 1 February. My Lord, the rationale of that date was that was the date on which Mr Toth's solicitors were seeing him following the offer having been made on 31st, and could have obtained instructions from him. However, they have said in correspondence this his instructions were not to accept.

So, my Lord, so far as that is concerned, we say, look, in practice what then happened was that the hearing went ahead because Mr Toth would not accept the key issue: was there a power to refer at a preliminary stage, before a preliminary determination had been made. Both sides agreed that, although it was a theoretical problem that might arise again, it was much better to resolve it rather than have the prospect of a further judicial review down the line. So it went ahead effectively as a form of test case, the practical problem having been already resolved by the open offer; in other words, we will reconsider in any event.

So far as the test case goes on points of construction, as your Lordship rightly says, it is effectively one all. We would say, therefore, that so far as the costs of the hearing go, they should simply be left to lie where they fall. We have already said we will pay Mr Toth's cost up to 1 February, and we would say that that is the appropriate order in all the circumstances.

MR JUSTICE STANLEY BURNTON: Why is it that nothing has happened as between 19 February and 28 March?

MR JUSTICE STANLEY BURNTON: I have to say I expected by now a decision would have been taken.

MISS ROBERTSON: Well, my Lord, I think there may have been a misunderstanding over that. Certainly, the understanding on this side of the room, and I thought also on the other side of room was this: that the whole-purpose of having -- the only remaining purpose of having a hearing, given the offer that we had made, was to ensure that when the matter went forward, it went forward with no doubt at all about the scope of the powers.

MR JUSTICE STANLEY BURNTON: So it has not gone forward since the hearing before me, in other words.

MISS ROBERTSON: No, for that reason, because otherwise, we would simply have gone ahead -- we would not have had a hearing, and the decision doubtless would have been made by now. As far as there has been delay, there has been delay because Mr Toth was not prepared to let us go ahead on that basis, effectively.

MR COPPEL: Mr Toth has never said he was not prepared to let matters go ahead.

MR COPPEL: My Lord, I say costs should certainly be borne by the respondent. First of all, a proper offer only came on Friday the 16th, that is to say an offer which included costs. The hearing was on Monday the 19th. That gave no proper opportunity for an acceptance, assuming that the offer was a clear one. Secondly --

MR JUSTICE STANLEY BURNTON: But the inference I draw at the moment is that if that offer had been made two weeks earlier, it would have made no difference.

MR JUSTICE STANLEY BURNTON: Yes. The hearing would have gone on, because the crucial issue --

MR COPPEL: That may be so, my Lord, but we deal with it as it is before us, and the fact of matter is an offer was made without costs, and it only was made with costs on the Friday before the hearing on the Monday. Now, that is what has to be decided, whether that is a proper offer that had been made in the beginning of February. I say it is not, because it does not include any provision in relation to costs.

Secondly, my learned friend would have it both ways. She says, well, the hearing was totally hypothetical because we had agreed to do everything, but then in fact when you inquire what has been done, well, nothing has been done because she says, we were awaiting your guidance.

MR JUSTICE STANLEY BURNTON: Forget about the hypothetical nature of the hearing. I am still concerned that it was a one-all case.

MR COPPEL: It was a one-all case that had to be brought by Mr Toth in order to get a decision, a proper decision, from the respondents. The fact that he had two planks to his argument does not affect that. He, at the end of the day, has succeeded in extracting something from the respondents that previously they were not prepared to offer.

As far as costs are concerned, the respondent has agreed to pay costs up to 1 February. The real question is what is to happen so far as costs are concerned thereafter, including the costs of the hearing.

There were two questions of construction of the procedural rules of the tribunal argued before me. On one of those the claimant was successful; on one the respondent was successful. So far as the question of referral of a case to the Office for the Supervision of Solicitors before a decision as to a prima facie case had been made by the tribunal, or by the single solicitor of the tribunal, that I see from the letter at page 11. It is a letter which appears at a very late stage and was very much a major point in the litigation between the parties. I do infer from that letter that even if the offer to which it refers had been made at an earlier stage, the litigation would have gone on and nothing would have been saved.

On the other hand, it is apparent that, although Mr Toth has failed on one argument, it was necessary for him to bring these proceedings, or it would appear to have been necessary, as appears from the fact that an offer was made by the tribunal to reconsider his case before the proceedings commenced, and it is now recognised by the tribunal that this case must be reconsidered in accordance with my judgment.

It seems to me that justice will be done if I were to apportion the costs incurred after 1 February to some extent to reflect that, but also to reflect the fact that he failed on one issue. The order I propose to make is that from that date he is to have two-thirds of his costs.

So far as relief is concerned, it appears to me to be unnecessary to make a quashing order and equally unnecessary, in the light of my judgment, which I hope will give to the parties sufficient guidance for future and for the tribunal guidance generally, for me to make a declaration. I like to think the judgment is clear enough.

In view of the assurance that has been given, I do not propose to make an order of mandamus. However, I do so on the basis that between the date of the hearing and today's date, no action has been taken by the tribunal pending my judgment. It now has that judgment. Mr Toth is entitled to expect, and the court is entitled to expect, that the assurance that has been given on behalf of the tribunal is one which will be honoured. If it is not expeditiously honoured, I say now that Mr Toth will be justified in returning to the court for an order mandating the tribunal to consider his application in accordance with the rules and my judgment.

I hope that any such application will be unnecessary. It seems to me the easiest way to do it is to give him liberty to apply, but I will hear counsel as to that. The advantage of that is there would not have to be separate proceedings. I do hope that that would be unnecessary.

As I indicated in my judgment, a determination of a prima facie case should not take long in a matter of this kind, which does not involve consideration of the events in a long and complex trial, but relatively few documents, and that consideration should be carried out expeditiously and easily.

MISS ROBERTSON: My Lord, may I simply ask that liberty to apply be expressed as liberty to apply through counsel.

MISS ROBERTSON: Through counsel. There is some concern behind me that if Mr Toth ceased to be represented, applications may be made on less than the grounds that your Lordship has in mind. We would --

MR JUSTICE STANLEY BURNTON: The court will deal with those appropriately. The liberty to apply is, I make it clear, not an invitation to vexation or frivolity. I am sure Mr Coppel will make sure Mr Toth understands that.

MR JUSTICE STANLEY BURNTON: Unless there is anything else I can do, thank you both very much.

	SOLICITORS DISCIPLINARY TRIBUNAL	Respondent
	- ex parte -
	ARPAD TOTH	Applicant

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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Toth, R (on the application of) v Solicitors Disciplinary Tribunal [2001] EWHC Admin 240 (28th March, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/240.html Cite as: [2001] EWHC Admin 240

England and Wales High Court (Administrative Court) Decisions

Queen v. Solicitors Disciplinary Tribunal ex parte Arpad Toth [2001] EWHC Admin 240 (28th March, 2001)