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Law Report: Solicitor's tribunal appeal barred: Re a Solicitor. Court of Appeal (Lord Justice Nourse, Lord Justice Beldam and Lord Justice Simon Brown). 27 April 1994

The High Court's jurisdiction to hear an appeal from the Solicitors Disciplinary Tribunal, under section 49(1)(b) of the Solicitors Act 1974, only applied to a formal and final order; it did not cover interlocutory rulings.

The Court of Appeal refused a solicitor's application for leave to appeal out of time against an order of the Queen's Bench Divisional Court, on 16 March 1993, dismissing his motion to appeal against the refusal of a Solicitors Disciplinary Tribunal, on 15 October 1992, to dismiss disciplinary proceedings against him.

Richard Gordon QC (Arnold Rosen & Co) for the solicitor; Richard Nussey (Percy Hughes & Roberts, Birkenhead) for the Law Society.

LORD JUSTICE SIMON BROWN said the solicitor faced six allegations of conduct unbefitting a solicitor and one of failing to comply with the Solicitors Accounts Rules. Taken together, they presented a case of the utmost gravity against him.

Before the tribunal, he contended that the proceedings should be dismissed because he had been 'irrevocably prejudiced' by the disclosure, at an earlier pre- trial review, of three matters, namely: (i) that he had been the subject of previous disciplinary proceedings before the tribunal, in respect of which a 'findings and order' had been promulgated; (ii) that he had been adjudged bankrupt; and (iii) that the Law Society had intervened in his practice.

The tribunal took the view that (ii) and (iii) were matters of public record of which it could properly be told.

As to (i), they said they would tell their clerk to list the matter before a fresh division of the tribunal which had not heard about it.

The applicant issued a notice of originating motion seeking to appeal against the tribunal's refusal to dismiss the disciplinary proceedings.

The Divisional Court dismissed that motion on the grounds that it had no jurisdiction, under section 49 of the 1974 Act, to hear an appeal from a tribunal which had discharged itself, while another tribunal had been convened which had yet to commence its inquiry.

Section 49(1) of the 1974 Act provided: 'An appeal from the tribunal shall lie (a) in the case of an order on an application under section 43(3) or 47(1)(d), (e) or (f) or the refusal of any such application, to the Master of the Rolls; (b) in any other case, to the High Court.'

The applicant argued that, save for those specific orders of the tribunal from which appeals were expressly reserved to the Master of the Rolls, 'in any other case' an appeal from the tribunal lay to the High Court; and this was such another case.

However, his Lordship agreed with the Law Society that, having regard to the 1974 Act as a whole and to the Solicitors (Disciplinary Proceedings) Rules 1985 (SI 226), interlocutory rulings of the kind here in question were simply not within the ambit of section 49 at all.

Rather, for a tribunal decision to be appealable, it must be an order properly so called, made under one of the sections expressly providing for such orders and attracting the formal requirements of section 48.

The reference in section 49(1)(b) to 'any other case' plainly meant 'in the case of any other order'.

It followed that the solicitor had no right of appeal whatever against the tribunal's determination on 15 October 1992 that the disciplinary proceedings against him should proceed to a hearing.

Finally, even if he had been of a different view on the jurisdictional issue, his Lordship would still have been strongly disposed to refuse the necessary extension of time for leave to appeal, since the delay in applying for it was both unacceptable and wholly inadequately explained. It was high time the complaints against this solicitor be heard. .