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22.11.21

‘Fresh Evidence’ in Regulatory Appeals

In Narayanasamy v Solicitors Regulation Authority Ltd [2021] EWHC 2918 (Admin), the Appellant exercised his statutory right of appeal against a decision by the Solicitors Disciplinary Tribunal (SDT) to strike him off following a finding of dishonesty and other serious misconduct. In seeking to overturn the judgment of the SDT, the Appellant was relying on ‘fresh evidence’ in the form of an expert report from a consultant psychiatrist. Such evidence was not adduced at trial and hence the Appellant was seeking to introduce it in order to persuade the High Court that had it been available at the time of trial it may have had a significant influence on the outcome of the first instance proceedings.

The basis for the disciplinary proceedings brought by the Solicitors Regulatory Authority (SRA) was the evidence given by the Appellant both orally and in writing during the course of a trial in 2015 in which he was defending a claim brought by his former business partner. The SRA alleged that evidence was dishonest. The Appellant was represented by leading counsel at the SDT who, in closing, made concessions to the Tribunal that, inter alia, “its abundantly clear from the manner in which the [Appellant] has given evidence to the tribunal, and indeed to the Chancery trial in 2015, that he suffers from a number of severe deficiencies or shortcomings in his ability to process information and to give evidence”. However, he went on to say “I’m not saying that the respondent’s is a clinically diagnosed problem, I’m not instructed to say that and, of course, there’s no expert medical report”.

Prior to the appeal being heard, the Appellant had waived privilege and it transpired that he and Leading Counsel (he had dispensed with solicitors) had discussed obtaining expert medical evidence but had decided against it. After the findings against him and the sanction, he had instructed new solicitors who had obtained a report from a psychiatrist who said that he was suffering from PTSD and that this would have substantially affected his ability to give evidence at the Tribunal (although crucially there was no evidence about the potential impact on his evidence during the 2015 trial which was the subject-matter of the allegations).

Mr Narayansamy appealed using the fresh evidence of the psychiatrist. There is, of course, a statutory right of appeal against a finding of the SDT to the High Court under section 49 of the Solicitors Act 1974. Solicitors Disciplinary Tribunal proceedings are civil proceedings. Accordingly, Mr Justice Saini considered the governing principles on the introduction of fresh evidence to justify a new trial which were laid down in Ladd v Marshall [1954] EWCA Civ 1. In that case, the Court of Appeal said that three conditions must be fulfilled in order to justify ordering a new trial based on ‘fresh evidence’:

  1. That the evidence could not have been used with reasonable diligence at the original trial;
  2. The evidence would have had an important influence on the outcome of the case; and
  3. The evidence must be apparently credible.

In this case, regrettably for the Appellant, his attempt to introduce the evidence fell at the first hurdle. Mr Justice Saini gave five reasons why the evidence could have been obtained with reasonable diligence at the SDT Hearing:

  1. Mr Narayansamy had expert representation at every stage of the proceedings;
  2. His cognitive shortcomings were extensively relied upon in closing before the SDT;
  3. The Appellant and his counsel actively discussed obtaining medical evidence and rejected it;
  4. The Appellant’s counsel told the SDT that they were not seeking to adduce a medical report; and
  5. The evidence was easily obtained by the new representatives.

In any event, the Court found that the evidence would have been of marginal relevance because it only addressed the Appellant’s state of mind at the time of the SDT hearing itself as opposed to the subject proceedings.

Of interest, it was suggested by counsel for the Appellant that the SRA and SDT had an obligation themselves (akin to that of prosecutors under the Criminal Procedure and Investigations Act 1996) to obtain material which may assist a Respondent’s case. This submission was roundly rejected by Saini J who confirmed that SDT proceedings are not criminal in character.

Comment

Thus, the importance of relying upon expert evidence at first instance is clear. Expert medical evidence should be sought early in the process as respondents and their representatives will be required to comply with standard directions provided upon notification of a case to answer following referral to the SDT.  Psychiatric and other medical evidence will often be relevant in such proceedings and it will be in the rarest of cases that such evidence would be admitted as part of any appeal process. The point on disclosure was only addressed briefly. Of course, the SRA do have obligations to make disclosure (see Bank Mellatt v HM Treasury [2010] EWCA 413) although such obligations are unlikely to extend to a positive duty to obtain material not in its possession or control.

 

Call on 020 3813 5366 or email to find out how our specialist regulatory solicitors can help if you are facing SRA proceedings or investigation.


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Articles are intended as an introduction to the topic and do not constitute legal advice.


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