UK: Provision of Legal Advice and Representation - Pine v Solicitors´ Disciplinary Tribunal

In Pine v Solicitors' Disciplinary Tribunal [2001] All ER (D) 359 (Oct), the Court of Appeal considered whether the lack of any provision of legal advice or representation in connection with a hearing of the Disciplinary Tribunal was a breach of Article 6 of the European Convention on Human Rights.

A solicitor had been struck off the Roll after a hearing of the Solicitors' Disciplinary Tribunal in which he was neither present nor represented. Various allegations had been made against the solicitor including the swearing of affidavits which were false and misleading in material particulars, failure to disclose material information to the Court, various breaches of the Solicitors' Accounts Rules 1991, failing adequately to account to clients, giving false information to clients and rendering a fee note to a client which he knew or should have known could not be jusitfied.

The need for legal advice and representation to be provided in order that a fair hearing could be provided.

Under Article 6(1) which protects rights in relation to any determination of an individual's civil rights and obligations, "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...". The Court of Appeal referred to previous cases on the issue of whether and when legal aid and assistance should be provided in civil proceedings in order to comply with the provisions of Article 6.

Firstly the Court referred to Airey v Ireland [1979] 2 EHRR 305 where the Strasbourg Court decided that the complexity of the law and procedure in relation to judicial separation cases in the High Court in the Republic of Ireland was such that allowing the applicant to appear in person without legal representation did not constitute an effective right of access to the court, and therefore Article 6 had been breached. However this is not to be taken as a general conclusion and "much must depend on the particular circumstances" of each case. The Court of Appeal also noted that the court in Airey had stated that Article 6(1) leaves to the public authority a free choice of the means to achieve compliance with Article 6(1). For example this could be done with the provision of a legal aid scheme or by a simplification of the procedure involved, and it is not for the Courts to indicate, let alone dictate, which measures should be taken. The Court in Airey did however state that Article 6(1) may sometimes require legal aid to be provided where this would be indispensable for an effective access to Court for example by reason of the complexity of the procedure or of the case.

The Court of Appeal secondly referred to the case of X v United Kingdom (1984) 6 EHRR 136 where the Commission stated that "only in exceptional circumstances, namely where the withholding of legal aid which makes the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of the proceedings, can such a right [to legal aid] be invoked by virtue of Article 6(1) of the Convention." It was not disputed by either side that the Court should apply this principle in the present case.

The solicitor did not claim that the withholding of legal aid made his defence to the allegations practically impossible. He did however contend that it led to obvious unfairness. This was because of the nature of the charges, the severity of the possible consequences for the solicitor and the inhibiting effect on the prosecution of his defence caused by the solicitor's emotional involvement. However the Court found that neither the seriousness of the likely consequences nor the e motional involvement of the solicitor (which on the evidence did not appear to be a debilitating factor in any case) when considered in the light of the absence of legal advice or representation, gave rise to unfairness. They also referred to the fact that the procedure was not complex, the relevant facts were within the knowledge of the solicitor, that he was experienced in commercial litigation and that he had ample opportunity to indicate any defences he might wish to advance.

The Court was prepared to accept that "there may be circumstances in which the fact that a party is both unrepresented and absent from the hearing will amount to a denial of effective access to the Court and, therefore, a breach of Article 6 but "it will depend on the facts of the case." The Court found in this case however that there was no breach of Article 6 since it had been open to the solicitor to seek various ways around his inability to afford the fare to London. In particular there had been ample opportunity to outline any defence that he might have had to the allegations, and there were various rules to which he could have had recourse. For example under rule 9 of the Solicitors (Disciplinary Proceedings) Rules 1994 SI 288/1994 he could have sought an adjournment, under Rule 18 he could have admitted evidence by way of affidavit, under Rule 30 the Tribunal has the power to waive the rules of evidence were it just to do so, and under Rule 25 it was open to the solicitor to invite the Tribunal to re-open the hearing after it had made its determination. The Court of Appeal suggested that the solicitor might have sought a hearing in his home city of Manchester rather than in London. The Court also found that it was clear from the letter which the solicitor wrote to the Tribunal the day before the hearing that he recognised that he had been given ample opportunity to advance any defence he might have and that he was content that the Tribunal should proceed in his absence.

The Pine case shows that when it comes to deciding whether legal advice and representation should be provided by a Tribunal in order to comply with the requirements of Article 6(1), this will be determined on the basis of the facts of the particular case. However, the starting point is the principle set out in X v United Kindgom, that legal aid would only be required in exceptional circumstances where the lack of legal aid would either make the assertion of the civil claim practically impossible or lead to an obvious unfairness in the proceedings. The present case concerned a solicitor experienced in commercial litigation being denied legal representation. It is not surprising that he was unable to satisfy the test in X v United Kindgom. A more difficult case will arise where serious allegations are made in a complex case against someone who is not experienced in contentious proceedings.

Regulators will need to consider whether funding should be provided for those who cannot afford their own representation in serious complex cases although it is likely to require a set of facts at the more extreme end of the spectrum before subsidised or free legal defence may be required in order to ensure compliance with Article 6. This is particularly so in circumstances where disciplinary proceedings are generally characterised as "civil" rather than "criminal" for the purposes of Article 6 (see R (on the application of Fleurose) v SFA Ltd [2001] 2 All ER (Comm) 481) because legal aid is an automatic requirement for those who are unable to pay for a lawyer in cases which are characterised as "criminal".

© Herbert Smith 2002

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