AC-2024-LON-001202 and AC-2024-LON-001207 - [2025] EWHC 2810 (Admin)

The Appellants have a right to appeal to the High Court against the prohibition orders under CPR Part 52. On such an appeal, the test the Court should apply is whether the Decision was “wrong” (CPR r.52.21(3)(a)) or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court” (CPR r.52.21(3)(b)).

By CPR 52.21(1), an appeal proceeds by way of review unless a practice direction provides otherwise, or the court considers it will be in the interests of justice to hold a re-hearing. CPR 10 PD52D lists statutory appeals from some professional regulatory bodies which are to be heard by way of re-hearing, however, appeals under regulation 17 of the 2012 Regulations are not included in the list.

I was referred to a number of authorities setting out the proper approach to appeals against prohibition orders imposed by the SSE. Pepperall J in Sutcliffe v SSE [2024] EWHC 1878 (Admin) summarised the proper approach as follows:

“46.1

The court should allow an appeal where the decision was wrong or unjust because of a serious procedural error or other irregularity: r.52.21(3).

46.2

Rule 52.21 provides that the appeal should be limited to a review of the decision unless a practice direction makes contrary provision (it doesn't in the case of teachers) or the court considers that, in the circumstances of an individual appeal, it would be in the interests of justice to hold a rehearing.

46.3

Generally, the appeal should therefore proceed by way of a review rather than a rehearing for the reasons explained by Steyn J following her detailed review of the authorities in Ullmer v. Secretary of State for Education [2021] EWHC 1366 (Admin) . See also the unreported case of Brittain v. Secretary of State for Education (2019), Lang J; and Jones v. Secretary of State for Education[2019] EWHC 3151 (Admin) , Cavanagh J.

…

46.5

Professional conduct panels have the benefit of hearing the witnesses and have the primary responsibility for deciding the disputed facts of a case. The court will not interfere with a panel's finding of fact unless it is perverse in the sense that there is either no evidence to support the finding of fact or it is one which no reasonable panel could have reached.

46.6

Both the panel and the Secretary of State are expert and informed decision-makers who are well placed to assess whether the proven conduct constitutes unacceptable professional conduct or may bring the teaching profession into disrepute. The court will pay proper deference to their expertise before interfering with the exercise of their professional judgment.

46.7

The panel and Secretary of State are also well placed to assess whether a prohibition order is necessary in the public interest. Where unacceptable professional conduct or conduct that may bring the profession into disrepute is established, the court will again pay proper deference and only interfere with the decision to impose a prohibition order if satisfied that such decision was wrong.”

Pepperall J referred to the decision of Steyn J in Ullmer v SSE [2021] EWHC 1366 (Admin) in which the Judge conducted a comprehensive review of the case-law in relation to when appeals of this kind should proceed by way of review or re-hearing before reaching the following conclusions:

Finally, in an appeal of this nature, the court has to exercise caution before interfering with findings of fact but also before interfering with evaluative judgements involving the assessment of a number of different factors which have to be weighed against each other (Sastry v General Medical Council [2021] EWCA Civ 623 at [34] – [39] and [107]).

At one stage the Appellants seemed to be arguing that these appeals should proceed by way of a rehearing. However their joint skeleton argument accepted that the hearing should be in the nature of a review. I have independently considered this issue and am satisfied that the hearing should proceed by way of a review, in accordance with the default position. While I accept that the prohibition orders have had a serious impact on the Appellants, that does not of itself mean that a re-hearing is required (otherwise a rehearing would be necessary in every case in which a prohibition order was imposed) In Hart v SSE [2024] EWHC 44 (KB), [54], Eyre J noted that “the consequences of a prohibition order and the reputational harm resulting from findings of misconduct do not without more necessitate an appeal by way of re-hearing. To decide otherwise would be to create a new category where the appeal is to be by way of re-hearing rather than review and to do so notwithstanding the fact that this could have been done by way of practice direction if that had been regarded as necessary or appropriate.”

Further:

As Pepperall J observed in Sutcliffe, [46.7], the Secretary of State is entitled to significant deference from the court on the issue of whether a prohibition order should be made, and, if so, on what terms. To the same effect, I was referred to the decision of Mr Justice William Davis in R (Lonnie) v National College for Teaching and Leadership [2014] EWHC 4351 (Admin), [20]-[21] and the Court of Appeal in Bolton v Law Society [1994] 1 WLR 512, 518-19. In that case, Sir Thomas Bingham MR stated:

“[O]ften the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.”

Significantly, the Master of the Rolls continued:

“Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.

…

So far as the finding of disproportion between the findings of the tribunal and the penalty are concerned, I do not for my part understand how suspension can be said to be a disproportionate order in a case of conduct described, and rightly described, by the tribunal, as “wholly unacceptable” and “very serious indeed.”

In my judgment, the Divisional Court was doing, no doubt unwittingly, exactly what authority says the court should not do, namely substitute its own view on penalty for that of the professional tribunal.”