Bias – Clerks – Findings – Solicitors Disciplinary Tribunal

Amritpal Singh Virdi (appellant) v Law Society (respondent) and Solicitors Disciplinary Tribunal (intervener): CA (Civ Div) (Lords Justice Jacob, Lloyd, Stanley Burnton): 16 February 2010

The appellant solicitor (V) appealed against a decision ([2009] EWHC 918 (Admin)) to dismiss his appeal against a finding of the Solicitors Disciplinary Tribunal that he was guilty of serious professional misconduct, as alleged by the respondent Law Society.

The tribunal had announced its decision and given its findings in summary form at the end of the hearing, and had later given written findings. The tribunal clerk (E) had retired with the tribunal members when they considered their decision and assisted in drafting the findings. E was an employee of the Law Society and had been formally seconded to the tribunal. V had discovered that from the tribunal’s website. Evidence given during the first appeal established that the tribunal and its clerks were effectively independent of the Law Society. V argued that (1) the tribunal lacked the power to invite the clerk to retire with its members; (2) a fair-minded and informed observer determining whether there had been apparent bias would have been restricted to information that was publicly available at the time, and so E’s retirement with the tribunal and her participation in drafting the findings gave the impression of bias.

Held: (1) It had been lawful for the tribunal to invite E to retire with it. It was lawful for a statutory body such as the tribunal to do what the law expressly or impliedly authorised, R v Somerset CC Ex p Fewings [1995] 1 WLR 1037 CA (Civ Div) applied. It did not need to have power conferred to invite its clerk to advise it, as that had no direct legal effect. Rather than the issue being one of vires, it was whether there was an implied prohibition on the tribunal acting as it did. It was significant that a practice direction had been issued which included the circumstances in which the legal adviser to a magistrates’ court could retire with the bench: a practice direction could not confer power on a magistrates’ court to do that which was otherwise ultra vires, Practice Direction (CA (Crim Div): Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 CA (Crim Div) considered. In inviting E to retire with it, the tribunal had been regulating its own procedure within the meaning of rule 31(a) the Solicitors (Disciplinary Proceedings) Rules 1994. There was no basis for limiting the meaning of ‘procedure’ in that rule to the trial process: the tribunal procedure included the consideration of the decision and the provision of written findings, Baxendale-Walker v Law Society [2006] EWHC 643 (Admin), [2006] 3 All ER 675 applied. If powers had been required, there was no doubt that inviting E to retire with it was an administrative arrangement within the tribunal’s implied powers. Furthermore, E’s assistance in drafting the findings had occurred after the decision had been announced and become effective. The tribunal then had no power to reconsider it, and what occurred subsequently could not in general give rise to a ground of appeal against the decision.

(2) The tribunal had been impartial and had appeared to be so. V’s submission on the fair-minded and informed observer was rejected. The observer was only a hypothetical conception posited to assist the court in deciding whether the proceedings in question were seen to be fair. If, on examination of all the relevant facts, there was no appearance of unfairness, there was no reason for the imaginary observer to be used to reach a different conclusion, Davis Contractors v Fareham Urban DC [1956] AC 696 HL and Locabail (UK) Ltd v Bayfield Properties Ltd (Leave to Appeal) [2000] QB 451 CA (Civ Div) considered. The observer was also fair-minded, and so would not reach a conclusion that a tribunal appeared to be biased without seeking to obtain the full facts. If the challenge to the tribunal’s impartiality had been made to the tribunal at the time, the tribunal would have put the full facts before V. Further, V had suggested no sensible criterion to distinguish between facts that were publicly available and the full facts. In the instant case he had argued that the publicly available facts included only those on the tribunal’s website, but the relevant facts could not be restricted to that. Facts pointing to bias might not be publicly available. Moreover, facts that would have been obtained on inquiry of the Law Society were publicly available for the purposes of the case. V’s submission was also inconsistent with authority. The requirement that the court must ascertain all the circumstances which had a bearing on the question of bias was inconsistent with any limitation on the circumstances to be taken into account, Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 applied.

Appeal dismissed.

Marc Beaumont for the appellant; Michael McLaren QC (instructed by Bevan Brittan) for the respondent; Andrew Hopper QC, Alexis Hearnden (instructed by in-house solicitor) for the intervener.