Solicitor: The Proper Role of Judges
26 July 2023
A former solicitor who was struck off the roll in January 2020 brought second appeals, firstly, against the order of Sharp J made in 2011 dismissing a defamation claim brought by the former solicitor and, secondly, against the order of Saini J made in 2021 dismissing his appeal from the Solicitors Disciplinary Tribunal: El Diwany v Solicitors Regulation Authority [2023] EWCA Civ 888 – Sir Geoffrey Vos MR, Macur, Falk LJJ
Dismissing both appeals, the court made comments on the common themes of a broader picture.
The former solicitor appeared to allege Islamophobia against any judge who did not go out of his or her way actively to condemn abuse against him. The proper role of judges was to decide the issue or issues before them. They were not required actively to call out religious abuse, or indeed inappropriate behaviour of any kind, nor to make any other comment about it unless it was part of the essential reasoning for their decision.
Of course, they may choose to comment on it, as Saini J did, and that may be entirely appropriate. But judges could not be criticised for not doing so where it was not required to perform their role. Still less should they be subject to entirely unjustified allegations of racism, religious hatred or holding any other form of unacceptable view by reason only of their failure to do so.
That last point applied not only to judges but to others such as court and tribunal staff, barristers, solicitors, regulators such as the BSB and the SRA and their respective staff, some of whom had been subjected to completely inappropriate and unfair criticism and abuse.
It was equally unacceptable for a litigant to refuse to accept the accuracy of what a judge said about his or her own position in response to a challenge on grounds of bias where there was no proper basis for doing so. Unless the objective facts gave rise to a real reason to doubt what the judge had said, a statement by the judge about the judge’s knowledge should be accepted without more. This was relevant to unjustified criticism of both Warby LJ and Popplewell LJ.
It was also unacceptable to seek to criticise a judge by seeking to infer what they had or had not read otherwise than by reference to their judgment. A judge’s process of decision-making was one for the judge. It resulted in a decision and it was that decision, and the reasoning expressed in it, that a dissatisfied litigant must seek to challenge.
More broadly, it was important to recognise the function of courts and tribunals, which was to decide the issues in the case in accordance with the evidence and the law. Appellate courts generally also had a limited role, in the form of a review to determine whether something went materially wrong, rather than a rehearing. Where a discretion had been exercised, for example as to sanction, appellate courts would only usually interfere if the decision was outside the ambit of reasonable decision making.
The important point of principle was one of finality of decision making. Once legitimate challenges had been addressed, disappointed litigants must accept decisions however much they may dislike them.
One aspect of the finality principle was that appeals should be determined on a timely basis. In all but exceptional cases, of which this was certainly not one, it would be wholly inappropriate to seek to unpick a decision taken many years ago in respect of which appeal rights were exhausted at the time.
The history of the various proceedings exemplified the SDT’s findings of a complete lack of insight on the part of the former solicitor. He presented his actions to the Court of Appeal as a justified response to press abuse he had received. In doing so, he did not address the findings of a foreign court in 2001 and 2003 that the press interest had been prompted by his own actions.
More significantly, even if the abuse had been entirely unprompted, the former solicitor had wholly failed to appreciate that the nature and extent of his response was inappropriate and that there was a serious failure on his part to comply with his professional obligations.
Strong views about press abuse and hate emails, however appropriately held, could not justify either his actions or his failure to report the convictions to the SRA. Still less did it justify the aggressive campaign he had since waged against individuals who had had any connection with the proceedings in this jurisdiction or in relation to his being and remaining struck off, or the time wasted and costs incurred as a result of his unwarranted attempts to pursue complaints against those individuals.
Observing that in the past three years alone at least 9 individual orders had been certified against the former solicitor as being totally without merit and that an ECRO was insufficient, the court imposed a General Civil Restraint Order for a period of three years.