The High Court has rejected the appeal of a solicitor struck off for his involvement with the failed Axiom Legal Financing Fund after it found the Solicitors Disciplinary Tribunal (SDT) was entitled to proceed with hearing the case in his absence.
Mrs Justice Lang found that Andrew Lindsay’s claims about his ill-health were really an attempt to stop the proceedings altogether.
Mr Lindsay ran Manchester and Preston firm Tandem Law and borrowed just shy of £6m from Axiom, but its total liability to the fund was more than £10m, none of which has apparently been repaid.
The money was supposedly to fund ‘right to buy’ negligence cases against other solicitors, but the SDT found that it was spent on a range of other things, including a Porsche Cayenne and helping the managing director’s PA buy a house.
Andrew Lindsay argued that the SDT hearing was procedurally unfair because it refused applications to adjourn and stay the proceedings on grounds of ill-health, and conducted the hearing in his absence.
In January 2017, 10 months before the hearing, Mr Lindsay provided a letter from a cardiologist saying that he was suffering from heart disease and was not fit to take part in the proceedings. The doctor said he was concerned that the stress would “precipitate further life-threatening arrhythmias”.
A consultant cardiologist then appointed to be the tribunal’s expert found that, “from a purely cardiac point of view”, Mr Lindsay would be safe to continue with the proceedings, but he appeared to be suffering from “a severe stress/anxiety condition”. If this could be managed, the proceedings could continue.
The Solicitors Regulation Authority asked Mr Lindsay to consent to an examination by a consultant psychiatrist to advise on his ability to participate in the hearing, and any adjustments which might be required because of his stress
Mr Lindsay objected to this, and the tribunal then ordered him to attend the examination.
He still did not and, in a letter before action alleging that the tribunal procedures were unfair and in breach of his human rights, refused to undergo any more medical examinations or engage in the tribunal processes.
In October, the SDT refused Mr Lindsay’s application for a stay, saying he had not provided “a cogent reason” for not cooperating with the psychiatrist.
Mr Lindsay provided a report from a different consultant psychiatrist who diagnosed him as suffering from “generalised anxiety disorder”, which was aggravating his cardiac problems.
The doctor’s view was that preparing for, and attending, the tribunal hearing could lead to considerable stress that in turn might lead to life-threatening cardiac events.
The SDT treated this as a fresh application for a stay, and found that this evidence did not specifically address Mr Lindsay’s ability to participate in the proceedings.
It continued that the solicitor “had not participated in these proceedings in any meaningful way”. He had not complied with the tribunal’s directions and it found the latest report contained “no additional information” to support a stay.
On the day of the hearing, the SDT concluded that Mr Lindsay “had voluntarily absented himself” and that it would proceed in his absence. “It was in the interests of fairness and justice for the substantive hearing to go ahead.”
Mrs Justice Lang found that, at each stage, the SDT correctly directed itself on the law, and the principles to apply to applications for an adjournment or stay.
“The tribunal recognised that the appellant suffered from a serious cardiac condition, which was potentially life-threatening, and potentially exacerbated by his symptoms of anxiety and stress,” she said.
“The appellant’s position was that the tribunal proceedings should be permanently stayed because of his medical condition. However, in addition to its duty to act fairly to the appellant, the tribunal was under a duty to ensure that the disciplinary proceedings were effective, if at all possible, as it was in the public interest that action be taken against solicitors facing serious charges of misconduct and dishonesty.
“Thus, the tribunal rightly addressed the question whether, and to what extent, the appellant could nonetheless participate in the proceedings, despite his ill-health. The appellant did not address this question, and nor did the two doctors [whose reports he provided].”
The judge said Mr Lindsay could have given evidence by video link and could have instructed lawyers for the hearing – having used them from time to time during the proceedings.
She continued: “It was apparent from reading the appellant’s numerous, lengthy emails that he was able to engage with the proceedings energetically, and defend himself with vigour. He was also able to make written submissions on mitigation and costs during the course of the hearing.
“In the light of this evidence, I have no doubt that he was also physically and mentally capable of making written submissions to the tribunal in response to the allegations against him.
“It is therefore telling that the appellant never complied with the requirement to file an answer to the allegations. Nor did he submit a witness statement to the tribunal.
“In my view, the reason for these failures was that he did not want the proceedings to go ahead, not that he was too unwell.”