The relevance of judges’ assessment of litigants’ ability to participate effectively

In Maitland-Hudson v Solicitors Regulation Authority, Green LJ and Carr J considered the appeal of the appellant (Alexis Maitland-Hudson) against findings of misconduct and dishonesty made against him by the Solicitors Disciplinary Tribunal (SDT) in May 2018.

Those findings of misconduct and dishonesty resulted in the appellant being struck off the roll of solicitors and he was also ordered to pay the Solicitors Regulation Authority’s (SRA’s) costs, including £300,000 by way of interim payment, and a further £57,720 regarding a previous strike out hearing.

At the outset, it is definitely worth noting that Carr J, in her leading judgment in the appellant’s appeal, emphasised that the SDT found the appellant to have been guilty of misconduct “… at the highest level…”, characterised as “…deliberate, calculated and repeated… over a number of years…”. That misconduct was aggravated by the appellant’s dishonesty and attempts to defend his conduct. Carr J also referred to the SDT’s description of the appellant as a “… very experienced solicitor…” who “… used that experience to manipulate each situation to his own interest…”

In addition, this case examines and clarifies the extent to which, if at all, a court’s personal assessment of a party’s ability effectively and productively to engage in proceedings, based on his or her performance, may be relevant.

Case background

The appeal (from the aforementioned SDT judgment) was based on grounds of alleged procedural unfairness but more specifically that the appellant, a litigant in person, was substantially impaired in his ability to defend himself, to the extent that he admitted himself to hospital due to (documented) mental health problems.

Despite the fact that consultant psychiatrist experts for both parties found/agreed that the appellant was unable to represent himself, the SDT refused to dismiss the proceedings on the basis of “… incurable unfairness…” or even to stay or adjourn the proceedings pending any kind of recovery by the appellant. The SDT made clear that given the circumstances of this case it was “… in the interest of justice for this matter to proceed…” notwithstanding the combined expert medical evidence and that the appellant could not attend the latter days of the SDT hearing, all of which, again Carr J, emphasised in her judgment.

The appellant ran an argument that the SDT had simply fallen into the “… appearance trap…” and he relied heavily on the case of Solanki v Intercity Telecom Ltd. However, Carr J made very clear distinctions between Solanki and the appellant’s case. Ultimately, the first instance judge in Solanki had seemingly not had any regard at all for the medical evidence and had then, without providing any reasons or justification, gone on to provide his own views. But Carr J contrasted this with the SDT taking full account of and properly considering both parties’ agreed medical evidence; then the SDT actually going onto provide a well-reasoned explanation for why the hearing should continue without the appellant present; and that the SDT had had full regard for the appellant’s appearance (that is, his demeanour, behaviour and oral evidence) before the SDT before the appellant admitted himself to hospital. To that end, Carr J summarised that the Solanki case was therefore “extreme”, whereas the SDT was quite justified in relying on its own first-hand assessment of the appellant’s ability to engage in the tribunal process coupled with consideration of the medical evidence. Carr J went on to say and confirm that it was absolutely proper for a court to have regard to its own assessment of a party’s capacity to participate effectively.

Again with reference to the distinction drawn between Solanki and the appellant’s case, Carr J made clear that just the same courts needed to be circumspect in these situations. It is imperative that courts provide clear, unequivocal reasons why it is relying on its own assessment and not relying on expert medical evidence, agreed or otherwise, but making sure that that same medical evidence had been given full consideration.

The judgment

In summary, the High Court found that there was no blanket rule that a court or tribunal had to ignore what it saw and heard in court. It was quite legitimate for a court to take account of its own assessment of a party’s capacity to participate effectively in its overall assessment of the evidence before it, including the expert medical evidence, if it considered it appropriate to do so.

Accordingly, the High Court dismissed the appellant’s appeal against the decision of the SDT’s findings of misconduct and dishonesty, pursuant to which he was struck off the roll of solicitors and the earlier costs order also remained substantive.

Practical implications for practitioners

It is worth bearing in mind that even agreed medical evidence is not the only factor that a court can take into account. A court can and should have legitimate regard for other factors, including its own assessment of a party.

So practitioners should advise clients in these circumstances that medical evidence alone, or absence from a hearing due to ill health, will not lead to a dismissal, stay or adjournment. Practitioners should also advise that there is no actual rule or guideline which tells or directs a judge that he or she must ignore/disregard what he or she sees and hears in court when deciding whether a party can properly engage effectively in proceedings.

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