Blacker v Solicitors Regulation Authority (Admin Court 17 January 2017, unreported)
This case highlights an important distinction between a practitioner genuinely afflicted by an illness (who would be likely to be granted an adjournment) and someone who merely asserts incapacity without providing any evidence of this. It confirms the principles set out in R v Jones to the effect that a panel or tribunal can make the decision to proceed in absence following careful scrutiny of all the circumstances.
This matter concerns an appeal against the decision of the Respondent Solicitor's Disciplinary Tribunal to proceed in the absence of the Appellant and strike him off at the conclusion of the case. The Appellant submitted that the tribunal's decision to proceed in his absence was a breach of its duty under the Equality Act 2010 to make adjustments to allow him to attend the hearing and that the order for costs should not have been made in the way that it was. Judge William Davis QC dismissed the appeal and found no basis to conclude that the tribunal had erred in its determination.
Mr Alan Blacker ["the Appellant"], a solicitor advocate, was appealing the decision of the Solicitor's Disciplinary Tribunal ("the Tribunal") to proceed in his absence rather than relocate the hearing to allow his attendance. The Appellant failed to attend the hearing in July 2016 claiming that it was listed over his birthday, that he was unable to travel to London due to health reasons and that the date had been fixed without taking into account his availability. The Tribunal found that the Appellant had failed to disclose any relevant medical evidence to support his claims and that he had therefore voluntarily absented himself from the hearing. At the conclusion of the two day hearing, the Tribunal found that the Appellant had acted dishonestly in relation to statements about his qualifications and accreditations which were inaccurate or misleading. He was struck off and ordered to pay £86,000 costs.
The Appellant then appealed the Tribunal's determination. In his grounds, the Appellant stated that, firstly, the Tribunal had been wrong to proceed in his absence as this was a breach of its duty under the Equality Act 2010 to make reasonable adjustments to allow him to attend the hearing. Secondly, he stated that the Tribunal had not correctly applied the criteria in R v Jones (Anthony William)  UKHL 5 with regards to proceeding in absence. Finally, the Appellant stated that the costs order should not have been made in the way that it was.
The Judgment was handed down by Davis QC J who held that the Tribunal's listing function was judicial rather than administrative and therefore the Equality Act 2010 did not apply. He referenced the case of Adeogba v General Medical Council  EWCA Civ 162 and highlighted that, where there is a good reason not to proceed with a case it should be adjourned, however, otherwise it should go ahead. Davis QC J stated that a person afflicted by an illness would be likely to get an adjournment but a person who merely asserted incapacity without foundation and deliberately failed to attend would be found to have voluntarily absented himself. Davis QC J applied R v Jones stating that the Tribunal was justified in proceeding as it could not take into account medical evidence that the Appellant had refused to disclose. Finally, Davis QC J held that the Tribunal had repeatedly indicated to the appellant that costs would be considered at the end of the hearing and invited him to make representations regarding his financial means in advance. He referenced Broomhead v Solicitors Regulation Authority  EWHC 509 (Admin) and Andersons Solicitors v Solicitors Regulation Authority  EWHC 3659 (Admin) and stated that the Tribunal was in a position to assess the costs summarily and it had not erred in its approach.
Mr Justice Irwin rejected the submissions of the Appellant and found nothing to demonstrate that the decisions made by the Tribunal were wrong.
Please note that this case has yet to be officially reported.