The High Court has refused a solicitor’s challenge to an adjournment in a disciplinary inquiry, finding that the Solicitors Disciplinary Tribunal could give a company time to obtain legal representation after ruling that its officer could not represent it at the substantive hearing.
The judgment, delivered electronically by Mr Justice Barr on 14 January 2022, concerned an inquiry into allegations of misconduct by the solicitor. The allegations related to his work for Nirvana Property Holdings Ltd on a land transaction. The court did not address their substance, and the solicitor had denied them in an affidavit.
The company’s application for an inquiry was lodged in 2010 by Tom Fleming and Sean Fleming on its behalf. The Tribunal found a prima facie case in 2011 and directed an inquiry. After several postponements, the substantive hearing began on 11 February 2020. The solicitor’s counsel then objected that Fleming, a company officer, could not represent the company at that hearing without a solicitor or barrister.
The Tribunal upheld that objection. Fleming asked for time to obtain legal representation. The Tribunal adjourned the matter and listed it for 29 April 2020. The solicitor argued that it should instead have dismissed the complaint and also contended that the Tribunal lacked jurisdiction because there was no evidence of a company resolution authorising the complaint.
The High Court found the Tribunal had power under its rules and its inherent authority to adjourn proceedings in the interests of fairness. The company had previously been represented by Fleming at procedural hearings without objection, and the solicitor raised the representation objection for the first time at the substantive hearing. The court considered the adjournment reasonable and found it would not prejudice the solicitor’s defence.
On authority to bring the complaint, the court said the Tribunal had not ruled on that issue in February 2020, and the company had not had an opportunity to address it. The court was not persuaded that the Tribunal had to demand proof of a board or member resolution before proceeding. It could assume the company officers were authorised, with the necessary authority to be established in evidence during the company’s case. If that proof were absent at the conclusion of its case, an application could then be made.
The court held that it would have been unfair for the Tribunal to decide the jurisdiction issue without hearing from the company when it had no right of audience at that hearing. It refused all the reliefs sought, including orders to quash the adjournment and prohibit further steps in the inquiry. The judgment did not determine the underlying misconduct allegations or whether the company would ultimately prove its authority. The parties were given two weeks to make written submissions on the terms of the final order and costs.