Case Summary – Solicitors' Regulation Authority v Manak and Dhillon [2016] EWHC 1914 (Admin)

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High Level Summary
An appeal against a strike out decision by the Solicitors Disciplinary Tribunal ("SDT"). The strike out decision was made by the SDT on the ground that the respondents were unable to understand the cases they had to meet and that to proceed would have been an abuse of process. The appeal was made only in respect of two of the five respondents from the case on the ground that some of the pleadings against them were not incoherent and that to proceed with those pleadings would not have been an abuse of the tribunal's process. The appeal succeeded in part, as Thirlwall J DBE allowed the appeal in respect of most of the allegations and remitted the case back before a freshly constituted SDT for consideration.

Facts

Mr Manak (Respondent 1) and Ms Dhillon (Respondent 2) were registrant solicitors against whom the SRA brought proceedings in 2013 along with three other solicitors. Allegations included breaches of the Solicitors Accounting Rules and improper use of client monies.

On 12 November 2014 the SDT announced its dismissal of the cases brought against all five registrants on the grounds of abuse of process. The tribunal considered that the pleadings were difficult to follow and as a result the case was incoherent.

The SRA appealed the decision in respect of twelve of the fifteen original allegations against Respondent 1 and in respect of two of the allegations against Respondent 2.

The grounds of the appeal were as follows:

'The pleadings were not incoherent. In approaching the application to strike out, the tribunal took a broad brush approach instead of considering the case against each respondent. Proper consideration of the pleadings against Mr Manak and Ms Dhillon were clear and to proceed with them would not have been an abuse of the tribunal's process… all parties agreed that the facts were not complex.'

Respondent 1 made a cross appeal, seeking to uphold the strike out in respect of an allegation that the SDT did not specifically deal with in its memorandum of decision and to recover the whole of his costs from the SDT hearing. Respondent 2 did not attend the appeal nor was she represented.

Judgment

Handed down by Mrs Justice Thirlwall DBE

Thirlwall J allowed the appeal in part and did not allow the cross appeal.

Thirlwall J criticised both parties for prolonging the proceedings by over complicating a case which was not complex (at para 11):

"That length reflects the over complicated approach to the case that was taken by the parties in protracted wrangling that began after the service of the SRA pleadings, continued through case management hearings and then into the substantive hearing."

Thirlwall J considered that the tribunal was wrong to strike out as an abuse of process the allegations against Respondent 2 and many of the allegations against Respondent 1. Thirlwall J acknowledged that the case was poorly presented by the SRA, but stipulates that this should not have been allowed to confuse the tribunal's assessment of the case (at para 18):

"…poor presentation does not equal abuse of process, still less does it justify striking out adequately pleaded allegations of serious misconduct."

However, in criticism of the SRA, Thirlwall J deemed that it was "regrettable" that the SRA did not follow the advice of the Divisional Court in the case of Thaker v Solcitors Regulation Authority [2011] EWHC 660 (Admin), which (at para 65) states:

"…The reader should not have to burrow through hundreds of pages of annexes in an attempt to piece together what acts are being alleged, It is the duty of the draftsman (not the reader) of a pleading …to analyse the supporting evidence and to distil the relevant facts, discarding all irrelevancies."

Thirlwall J distinguished this case with Thaker, noting that the tribunal in that case were not concerned with a strike out case as an abuse of process. In that case it was deemed that the inadequacies of the pleading should be corrected by a proper pleading being produced.

Later in her judgment, (at para 72) Thirlwall J emphasises that Thaker is not authority for the proposition that where pleadings are defective they may be struck out as an abuse of process. She criticises the tribunal for failing to consider the approach in Thaker in relation to directing clearer pleadings.

In her criticism of the approach towards case management of the parties, Thirlwall J highlighted rule 11 (4) of the Rules which provides that the tribunal:

"…may make an order…to make any directions which shall appear necessary or appropriate to secure the timely hearing of the matter."

Thirlwall J placed some responsibility for expediency on the tribunal itself in her interpretation of this provision in stating (at para 42):

"If case management is to mean more than the setting of a timetable the tribunal must take a grip of the case and shape it so that it is ready for the hearing."

Responsibility for the efficient running of the case was also placed on the respondents and appellant, as Thirlwall J indicated that both parties had earlier opportunity to raise the Respondents' complaints regarding the coherence of the pleadings, (at para 46):

"If the respondents really could not understand the case against them they should have raised it in a case management hearing and made their application. I also consider that the SRA should have sought clarification of the respondents' position and established whether they intended to make some sort of application based on the complaints about the pleadings."

Thirlwall J stated, in agreement with the Applicant, that the case in relation to each Respondent should have been considered separately, (at para 68):

"…before concluding that the pleadings were so unclear that the respondents could not understand the case they had to meet it was incumbent upon the tribunal to consider in respect of each Respondent what the case alleged against him or her was."