Simmons & Simmons: Ex-client has pursued firm through courts and SDT
The Solicitors Disciplinary Tribunal (SDT) has ordered a former client of City firm Simmons & Simmons to pay costs of £291,000 after throwing out his private prosecution of two of its solicitors.
The order followed the panel’s equally unusual ruling to revoke a decision issued by another panel last year that partner Matthew Hooton and managing associate Erin Gheissari had a case to answer.
Though the vast majority of prosecutions before the SDT are brought by the Solicitors Regulation Authority (SRA), members of the public can bring cases themselves.
The decision by the SDT to certify Mr Hinkel’s application was made without it knowing he had made substantially the same complaint in 2019 – after the SRA declined to take on the case – which the SDT refused to certify.
This was because Mr Hinkel had not informed the panel about it; had he, the latest panel said, in all likelihood the application would not have been certified.
This represented a “fundamental mistake which required correction” by revoking the certification and bringing the proceedings to an end – subject to any appeal to the High Court.
It also held, obiter, that the principle of res judicata applied.
The proceedings represented another front in Mr Hinkel’s long-running campaign against Simmons & Simmons, which also involved an unsuccessful civil claim, all arising out its work for him on a failed attempt in 2017 to acquire an English property owned by the Republic of Iran.
The solicitors’ counsel told the SDT that Mr Hinkel had subjected them and the firm “to repeated allegations of misconduct in respect of the transaction”, despite their rejection by the courts and the 2019 tribunal.
On costs, the SDT said that, as Mr Hinkel was “not a person who was unfamiliar with or unaware of court proceedings”, he was aware of the risk of having to pay costs if he was unsuccessful.
“His vigorous pursuit of the case, notwithstanding the earlier refusal of certification and the unsuccessful appeals against that decision, had caused the costs which flowed from the mistaken certification of his allegations…
“It was therefore appropriate for him to bear the costs of the case.”
The solicitors sought costs of £394,000, which the tribunal summarily assessed despite the costs schedules being “sparse in detail”.
In relation to the hearing, the costs sought were “high” and “there was some merit in the contention that there had been no need for the presence of the entire Clyde & Co team throughout the hearing”.
Similarly, for the proceedings overall, the legal team “could have been more streamlined”, notwithstanding the issues, including “difficult areas of law”.
The SDT said: “Whilst the respondents were entitled to take a belt and braces approach to their representation, they were not entitled to expect the applicant to pay for that approach.
“Nevertheless, the tribunal noted the prolixity of the allegations pursued by the applicant, and his statements in support of them, and the number of applications that had been pursued by the applicant since the certification of a case to answer, resulting in a number of hearings prior to the current one, all of which will have increased the costs incurred by the respondents.”
It came to a final figure of £291,000 that Mr Hinkel should pay. He had provided no evidence of his means.
The tribunal was also critical of how Mr Hinkel ran the case. “Whilst litigation sometimes involves robust exchanges of views and heated disagreements, parties to proceedings are expected to conduct themselves with decorum and good faith.
“Despite directions and warnings from the tribunal, Mr Hinkel persisted in making allegations against the respondents impugning their honesty and integrity, when such allegations formed no part of the certified case, and at the same time pursued a campaign of hostility against those who represented the respondents, with the clear intention of causing those representatives to withdraw from acting, and so deprive the respondents of representation.
“There was no place for such behaviour, and by conducting himself in this way the applicant had undermined his own prosecutorial role.”
But the SDT stressed that this was not why it had revoked the certification.
The costs award looks far greater than is generally awarded against a losing party in SDT!