Judging by Appearances
Mr Maitland-Hudson faced allegations of high level dishonesty. Following a long and drawn out hearing in which he repeatedly invited the Tribunal to discontinue proceedings on the basis of his poor health the allegations were found proved and he was struck off the roll. His appeal turned entirely on this question of health. The Tribunal had rejected the medical evidence served, which stated he was unfit to participate in the hearing. In doing so, he alleged, it had placed undue reliance on its own assessment of his appearance during the hearing, falling into what he termed “the appearance trap”.
The evidence of the Appellant’s poor health had evolved as the hearing ran its course. Prior to the start of the hearing (15 January 2018), two letters from his GP, Dr MacGreevy, were introduced into evidence. These stated he was receiving medication for depression. It invited the Tribunal to restrict its sitting hours and to take frequent breaks. The Tribunal complied with these suggestions, except for one day where it sat later to accommodate a witness, offering as many breaks as needed to assist the Appellant.
A further letter from Dr MacGreevy was submitted on 19 January stating his mental state was poor and “negatively affecting his ability to perform in court“. On 24 January 2018 the Appellant submitted an email of 23 January from a Dr Capstick which stated he was suffering from depression and anxiety which “impact his performance“.
The SRA closed its case on 24 January. The Appellant made an application to discontinue the proceedings on the basis of his ill-health. This was rejected, as were further applications, and he then gave evidence in his defence. On 31 January the Appellant failed to attend, having admitted himself to a private psychiatric hospital. The Tribunal adjourned the hearing to 26 February with directions for the service of medical evidence, if either party wished to rely on any.
On 26 February the Appellant again did not attend but a representative, acting pro bono, applied for an adjournment on his behalf. He relied on medical evidence from Dr Bourke, a treating psychiatrist. The thrust of this was he was unable to represent himself but he was able to instruct counsel. The matter was adjourned for a further four weeks.
At the resumed hearing on 3 April the Appellant again did not attend and his representative applied for an adjournment to enable his health to improve and to secure adequate funds to pay for representation. He provided evidence from Dr Bourke and a consultant psychiatrist, Dr Symeon. He also produced evidence he was currently working as a lawyer in France. The Tribunal reluctantly adjourned briefly to enable him to obtain representation to draft closing submissions.
On 16 April the Appellant had instructed counsel – but only for the purpose of making an abuse of process argument because he could not participate effectively in the trial. In rejecting this application the Tribunal analysed the medical evidence and its limitations. It also noted that the Appellant had advanced applications effectively during the hearing. It considered there was insufficient evidence to suggest he was unable to participate effectively.
The Appellant criticised the various refusals of the Tribunal to stay proceedings. He contended the Tribunal had fallen into the “appearance trap” – placing inappropriate reliance on its own observations of the Appellant to the exclusion of the medical evidence. He relied heavily on Solanki v Intercity Telecom Ltd  EWCA Civ 101where the judge’s refusal to adjourn a case in the face of the medical evidence was heavily criticised. The judge had essentially decided the appellant was “putting on an act” and refused to adjourn in the face of the medical evidence. The appellate court noted:
“the judge’s own view, apparently based on his observation of the appellant in court, was no substitute for the professional medical evidence provided by the general practitioner which clearly demonstrated that the appellant had a genuine history of depression and mental problems, for which he had been prescribed medication over a period of time. The judge did not explain why he felt able to reject the doctor’s view that the appellant had reported suicidal thoughts (six days before the hearing), and that examination of his mental state was consistent with a diagnosis of “severe depression”. The appellant was plainly ill and there was no evidence to suggest that the illness was contrived”
In the instant case, Carr LJ distinguished this authority:
“I am unable to accept this proposition as a matter of general principle. There is no blanket rule that a court (or tribunal) must ignore what it sees and hears in court. Solanki was a very extreme case on its facts. The first instance judge there essentially completely disregarded the medical evidence without giving any reasons…
It is quite legitimate for a court to take account of its own assessment of a litigant’s capacity to participate effectively in its overall assessment of the evidence before it, including the expert medical evidence, if it considers it appropriate to do so. No court is ever bound to accept the expert evidence before it, even if that evidence is agreed; see for example Levy v Ellis-Carr and others  EWHC 63 (Ch) at  (endorsed in Hayat at ). A court or tribunal is entitled to weigh up the medical evidence against all of the other material available to it. If it intends to depart from the conclusion of an expert or experts, it needs, of course, to exercise caution. It also needs to bear in mind that litigants with, for example, mental health illness may mask their problems or not understand that it may not be in their best interests to continue. It must also give reasons for its conclusion. The Judge’s failure to do so in Solanki was central to the Court of Appeal’s criticism of the Judge’s approach.”
The Tribunal had been entitled to treat the medical evidence with a degree of scepticism. Dr Bourke was not independent. He had not been tendered for cross-examination. It was not clear he was aware the Appellant was continuing to work as a lawyer in France, or that he had read the Appellant’s submissions and evidence during the proceedings, or was aware of the adjustments made during the hearing to assist the Appellant. Likewise Dr Symeon did not appear to be aware of all the material facts. In carrying out this analysis the Tribunal was not
“substituting its own views for those of the medical experts but rather considering their evidence in the round.”
Having analysed the medical evidence, it carried out
“the perfectly legitimate – indeed it could be said necessary – exercise of cross-checking by reference to the Appellant’s actual performance in the proceedings to date.”
Green LJ made only brief remarks. He observed that the Appellant had attempted to argue (i) he would not recover until the proceedings had finished, (ii) but his ill health was such that an adjournment of proceedings was the only lawful course open to the Tribunal. This “classic Catch 22” did not fall to be resolved in this case. However,
“I would however add that even if the Catch 22 had been a justifiable position on the evidence this would not necessarily have meant that the Tribunal became powerless. Once again, the analogy with criminal proceedings is instructive. There, if a defendant is unfit to plead, the charges are not dismissed, or the trial adjourned into an uncertain future without limit…The relevance of this is that even when a defendant faces very serious charges an inability to defend himself, because of unfitness, does not automatically mean that the important public interest in the pursuit of the proceedings is set aside. In such a case the court adopts a modified approach which balances that public interest in pursuing proceedings with the right of the defendant to a fair trial. We have not in the present case had to address how such a balance might have been struck. The only point I would make is that I would have been loath to accept the argument that the unfitness of a solicitor to face disciplinary proceedings inevitably meant that such proceedings had to be abandoned, or placed in more or less permanent stasis.”
It remains to be seen if any regulator or court develops this novel suggestion.