High Court: burden of establishing justice of ordering a re-hearing lies with the party seeking it

A solicitor who was struck off in his absence has had his challenge to the decision thrown out by the High Court.

Mr Justice Foskett warned that those who fail to attend Solicitors Disciplinary Tribunal (SDT) hearings do so at their own peril.

In Nathaniel Akindele Faniyi v Solicitors Regulation Authority [2012] EWHC 2965 (Admin), the first hearing in June 2010 was adjourned on the basis of his ill-health and re-listed for 2 December.

Mr Faniyi did not appear on that day and the hearing proceeded in his absence after the SDT determined that notice of it had been properly served on the 62-year-old solicitor, who practised at Nathaniel & Co in Dalston, east London. The SDT found nine allegations proved, and said one of them involved dishonesty (but rejected allegations of dishonesty in two others). It struck off Mr Faniyi and ordered him to pay £28,000 in costs.

One working day after the hearing (6 December), Mr Faniyi issued an application for the tribunal to set aside the decision and grant a re-hearing on the basis that he believed the 2 December date had been vacated because a particular piece of correspondence had not reached him.

A differently constituted SDT rejected this on 16 December, concluding that he had been aware of the date and that he had deliberately not attended. It ordered him to pay a further £7,500 in costs.

Mr Justice Foskett said the burden of establishing the justice of ordering a re-hearing lies with the party seeking it. He found the conclusion of the 16 December tribunal “unassailable”, saying: “The evidence that the appellant had known about the first hearing and had been running shy of the whole process, hoping to delay it for as long as possible, was, to my mind, overwhelming.”

The judge also dismissed criticisms of the 2 December hearing, noting that the SDT had considered the case fairly, as evidenced by its rejection of some of the allegations of dishonesty. He dismissed the suggestion that the decision on sanction was flawed because Mr Faniyi had not had the chance to put forward mitigation.

“[This] would mean that a solicitor who deliberately failed to attend a hearing before the SDT could readily obtain a rehearing of that part of the proceedings relating to sanction. That, in my judgement, cannot possibly be right.

“Leveson J, as he then was, put the matter pithily in Elliott (R on the application of) v Solicitors Disciplinary Tribunal & another [2004] EWHC 1176 (Admin) when he said this: ‘Those who fail to attend lose the right to participate and explain, and they do so at their peril. As [was] conceded, if, without more, a solicitor deliberately absented himself it would not be feasible to argue that he was entitled to a re-hearing.’ I respectfully agree with that approach.”

 

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