Sometimes a decision gets me thinking about my cases from a different perspective (in this case, from the Respondent's perspective). This is one of them, so I thought I'd share what my take home pointers were.
What were the allegations, what was the outcome and why did Mr Lindsay appeal?
* Mr Lindsay was alleged to have: (1) obtained finance from an investment fund in circumstances that were improper (2) failed to cooperate with the SRA's investigation (3) made false and misleading responses to the SRA.
* Mr Lindsay was struck off the roll following the hearing before the Solicitors Disciplinary Tribunal ("SDT").
* The SDT refused to stay the proceedings or adjourn the hearing on grounds of Mr Lindsay's ill health. The decision was appealed on the basis that this was procedurally unfair.
A bit more context
It was accepted between the parties and the Tribunal that Mr Lindsay had a severe cardiac condition and on my reading of the judgment, it is inferred that it wasn't in dispute that this could be exacerbated by stress (and that engaging with tribunal proceedings is, obviously stressful).
Having read the chronology of the disclosure of evidence, engagement with medical experts and applications summarised in the appeal judgment, it appears that whilst Mr Lindsay had legitimate health concerns, he was resistant to the Tribunal's attempts to take practical steps to identify in what way he could properly engage with the proceedings and the hearing. He was reluctant to provide access to his medical records and he refused to attend an examination with an independent psychiatrist as recommended by the independent cardiologist (until an email on day 2 of the Tribunal hearing when he indicated that he would do so, which would have made an adjournment unavoidable).
Mr Lindsay had demonstrated his lack of engagement with the substance of the proceedings as he did not file an Answer and did not file a witness statement. However, Mr Lindsay had been able to engage with the procedural aspects of the case robustly and, once the Tribunal found the allegations proved, he prepared lengthy written submissions in respect of mitigation and costs. The High Court considered (paragraph 64) that "the reason for these failures was that he did not want the proceedings to go ahead -not because he was too unwell."
The few take home points that I've thought about
1. Headline - evidence of a health condition, however severe, is not automatically medical evidence that a respondent (or witness) is not fit to attend a hearing or engage with the disciplinary proceedings.
2. That said, being subject to regulatory proceedings must be extremely stressful and it is always best if parties can engage early to identify any reasonable adjustments or additional support required by a respondent, if necessary. For some people, something as simple as committing not to sending letters about a case that arrive on a Friday (before the weekend) can make a huge difference. I remember a case where I agreed to telephone an unrepresented registrant to summarise key points from letters before sending them in the post (so she could face opening her post when it arrived). We are all capable of thinking outside the box. In this particular case, the Tribunal took the health concerns seriously and were open to obtaining all relevant medial evidence but they resisted an attempt to frustrate the proceedings.
3. It is also a take home point for me that it really is worth the time we spend thinking carefully about the right questions to ask an expert, including commenting on reasonable adjustments and breaking each part of "participating with the proceedings" down. Attendance isn't always a case of all or nothing.
The SDT had not erred in refusing to stay or adjourn, on the grounds of ill-health, disciplinary proceedings brought against a solicitor. The tribunal had given careful consideration to the medical evidence and had been entitled to conclude that the solicitor was fit to attend, provided reasonable adjustments were made.