CA-2024-002445 - [2025] EWCA Civ 1351

Ground 4: discussion and resolution

Did Mr Hinkel appeal the Order of Robin Knowles J?

I have set out in some detail the steps that Mr Hinkel took to try to appeal against the order of Robin Knowles J: see [25]-[32] above. Three points emerge. First, although Mr Hinkel submitted Appellant’s Notice 3 on 8 April 2020 and Appellant’s Notice 3A on 21 April 2020, neither was issued by the Court and nor was any other Appellant’s Notice challenging the Order of Robin Knowles J. Second, on 25 March 2021 the Court’s emailed advice to Mr Hinkel was that he should seek an oral hearing in the Administrative Court and only if he wished to appeal the outcome of that oral hearing could he file an Appellant’s Notice in the Court of Appeal. Third, Mr Hinkel’s explanation to Henshaw J for his not having continued to pursue an appeal against the decision of Robin Knowles J was that “there were other applications in progress and the SDT ordered the SRA to investigate further”.

It is a general rule of civil procedure that, in the absence of any order or legislation to the contrary, a party who has applied for an order which has been refused by a judge on the papers, without oral argument, has the right to renew his application orally before a judge of co-ordinate jurisdiction: see MD (Afghanistan) v SSHD [2012] EWCA Civ 194, [2012] 1 WLR 2422 per Stanley Burnton LJ at [21]. As a corollary to that general rule, the normal next step where relief is refused on the papers is for the aggrieved party to request an oral hearing. Where that is the case, the order itself will refer to the right to request an oral hearing.

The order of Robin Knowles J was made on the papers. The question therefore arises whether the communication from the Court on 25 March 2021 provided correct information. In my judgment it did not.

Section 49 of the Solicitors Act 1974 provides:

An appeal from the Tribunal shall lie to the High Court.

…

The High Court shall have power to make such order on an appeal under this section as it may think fit.

Subject to any rules of court, on an appeal against an order made by virtue of rules under section 46(10)(c) without hearing the applicant or complainant, the court—

shall not be obliged to hear the appellant, and

may remit the matter to the Tribunal instead of dismissing the appeal.”

Section 46(10)(c) provides:

Without prejudice to the generality of subsection (9)(b), rules made by virtue of that paragraph may in particular—

…

provide, in relation to any application or complaint relating to a solicitor, that, where in the opinion of the Tribunal no prima facie case in favour of the applicant or complainant is shown in the application or complaint, the Tribunal may make an order refusing the application or dismissing the complaint without requiring the solicitor to whom it relates to answer the allegations and without hearing the applicant or complainant.”

There are two distinctive features of these provisions. First, permission to appeal pursuant to section 49 is not required; and, second, where (as in the present case) the appeal is against an order made by virtue of rules under section 46(10)(c) which was made without hearing the applicant, section 49(5) provides that the Court need not hear the appellant. Whether section 49(5) is there as a quid pro quo for the absence of a need to seek permission to appeal is not self-evident. What is evident, however, is that section 49 provides a different structure from that which applies in the general run of civil appeals. It would in my judgment be inconsistent with these provisions to re-graft a right to an oral renewal after refusal by the Judge on the papers. Accordingly, I consider that these features taken together amount to a statutory exception to the general rule that a party who has been refused on the papers has a right to renew at an oral hearing. Accordingly I would hold that the information provided by the Court to Mr Hinkel on 21 March 2021 was incorrect. The way to challenge the order of Robin Knowles J was to appeal against it without first attempting to renew the application orally. That may and should explain why the order of Robin Knowles J did not include a note at the end informing Mr Hinkel of a right to renew orally. For completeness I should add that, because of the terms of section 49, the fact that Mr Hinkel submitted in his Skeleton Argument attached to his Appellant’s Notice seeking permission to appeal against the 2019 SDT Decision that his appeal should be listed for an oral inter partes hearing did not oblige the Court to list the appeal that came before Robin Knowles J as an oral hearing. It was entirely appropriate for Robin Knowles J to dispose of the appeal on the papers.

It follows that, on the evidence that is available to us, either Appellant’s Notice 3 or Appellant’s Notice 3A should have been issued. In the light of the sequence of events that I have outlined at [25]-[32] above, I would not be unduly critical of Mr Hinkel for not having pursued his attempts to get an appropriate Appellant’s Notice issued by the Court. That was, however, ultimately his decision.

Two conclusions follow from this. First, although Mr Hinkel filed Appellant’s Notice 3 and (reading it as the same application) Appellant’s Notice 3A within time, there has never been a valid issued application for permission to appeal against the order of Robin Knowles J. Second, although the absence of a valid issued application for permission appears to be attributable in the first instance to error on the part of the Court, there came a time when, for the reasons explained to Henshaw J by Mr Hinkel, he stopped following up his application for permission to appeal: see [50]-[51] above. There is therefore no longer a pending appeal. It follows that Henshaw J was right to say, both in his order on 29 July 2023 and in his substantive judgment, that the order of Robin Knowles J had not been the subject of any appeal. The fact that he was unaware of Mr Hinkel’s unsuccessful attempts to appeal is immaterial.

I return to consider what should be done in the light of these conclusions later in this judgment.

The substance of Ground 4

The critical question in this appeal is whether the presence or absence of an appeal against the order of Robin Knowles J affects the validity of the 2023 SDT Decision or the substantive decision of Henshaw J on the issues raised on the appeal to him. In my judgment the answer to this question is clearly that it does not.

The reason for this answer may be shortly stated: the SDT did not base the 2023 SDT Decision on the issue of res judicata. As I have set out in some detail at [41]-[48] above, the 2023 SDT Decision was reached and based on the SDT’s conclusion that the 2022 panel was operating under a fundamental mistake of fact. The mistake of fact was that it was unaware that the application and allegations it was being asked to determine was and were in substance the same or materially the same as those which a different panel had refused to certify after investigation by the SRA; and the mistake of fact was fundamental because, but for the mistake, the 2022 panel would have been most unlikely to have taken the approach it did.

Res judicata was raised by the respondents in the alternative if their case on fundamental mistake failed, which it did not. That was clearly recorded in the 2023 SDT Decision. Furthermore, following the road map that had been offered, the Tribunal stated expressly that it was not required to decide the other issues that had been raised (which included res judicata) and that what it said about res judicata was “observations” that (as it said itself) were no more than obiter dicta – i.e. not essential to the decision. That inessential status explains why the Tribunal was content to limit its observations on the question of res judicata to one paragraph, which I have set out at [48] above.

The decision of the Tribunal on fundamental mistake did rest in part upon the Tribunal’s finding that the 2019 SDT Decision determined in substance the same or materially the same allegations as those certified by the 2022 SDT Decision. However, that was a finding that was reached independently of the doctrine of res judicata (though it would be material to the issue of res judicata as well). There is no appeal against that finding or the other central findings that underpinned the 2023 SDT Decision, nor could there be. It need only be added that, if I had concluded that there is or was a pending appeal against the Robin Knowles order, that order would still give rise to res judicata because it is a final order: see Spencer Bower and Hanley: Res Judicata (6^th Edition) at 5.19, citing Scott v Pilkington (1862) 2 B&S 11, 41 and Huntly (Marchioness) v Gaskell [1905] 2 Ch 656, 667.

For these reasons, it is not arguable that either the SDT or Henshaw J either found or assumed that res judicata formed the basis for the 2023 SDT Decision. The SDT’s decision was soundly based on its finding of fundamental mistake and was not undermined whether or not there was an extant or pending appeal against the order of Robin Knowles J. Henshaw J found that the SDT was correct to find as it did. His decision did not depend upon the issue of res judicata any more than had the Tribunal’s and there is no basis upon which this Court could hold that his finding was not open to him or was plainly wrong. The premise that underlay Zacaroli LJ’s decision that there should be a rolled up hearing on Ground 4 therefore falls away.

Mr Hinkel would dearly like this Court to re-open and re-litigate the findings on which the earlier decisions were made. As is made clear by the passages from the decision of Zacaroli LJ that I have set out at [61] above, that course is simply not open to the Court or to him. For completeness, however, I would add that I have seen nothing that would come close to persuading me that the multiple findings of the Tribunal and Courts are wrong or should be re-opened. I accept and endorse the analysis of Henshaw J that I have summarised at [56] above.

For these reasons, I take the view that an appeal on Ground 4 would have no real prospect of success and that permission to appeal should be refused.

The second appeals test

Even if I took a different view on the prospects of any appeal on Ground 4 being successful, I would refuse permission to bring what is a second appeal because the second appeals test is not satisfied. The proposed appeal raises no important point of principle or practice and there is no other compelling reason for the Court of Appeal to hear it.

Disposal

The proposed appeal on Ground 4

For the reasons set out above, I would refuse permission to appeal on Ground 4.

The order of Robin Knowles J

I have explained the reasons why there is no outstanding appeal against the order of Robin Knowles J. Zacaroli LJ’s direction (that if there was a valid application for permission to appeal against the order of Robin Knowles J and it was still pending then it should be listed to be heard at the same oral hearing for the purposes of considering permission to appeal or further directions for its disposal) does not apply. That said, it is plainly unsatisfactory that there should be no resolution of the issues that Mr Hinkel, a litigant in person, wished to raise in the documentation that he sent to the Court on 21 April 2020. I also place weight on the fact that there appears to have been an error by the Court in informing Mr Hinkel that the appropriate course was to seek an oral hearing rather than appeal the order of Robin Knowles J. In the circumstances, I make these limited comments on the intended application.

Two questions arise. First, would an appeal as proposed in Mr Hinkel’s April 2020 appeal documents have a real prospect of success? Adopting the approach most favourable to Mr Hinkel, I would answer that question by reference to the situation as it would have obtained had a valid appeal been issued in or shortly after April 2020. Second, what, if any, order should the Court make for the future of the proposed appeal?

Mr Hinkel’s Grounds of Appeal and his skeleton argument dated 21 April 2020 raise three main issues. First, it is alleged that the respondents were dishonest in their dealings in relation to the failed transaction. Second, it is alleged that provision of the judgment of HHJ Dight to the SDT amounted to improper interference with the SDT’s process. Third, it is alleged that Robin Knowles J did not undertake any independent investigation but simply relied upon findings made by HHJ Dight.

Having reviewed all of the papers that were before Robin Knowles J and the further documentation and submissions provided by Mr Hinkel to this court, I consider that an appeal against the order of Robin Knowles J on the basis of Mr Hinkel’s conviction and submissions that the respondents were dishonest as he alleges would have no real prospect of success. My reasons are largely the same as those expressed by Adam Johnson J (see [13]-[15] above) and Henshaw J (at [54]-[64] of his judgment). To the contrary, both Robin Knowles J and the SDT in reaching its conclusions on the 2019 SDT Decision were entitled to reach the conclusions that they did, for the reasons they gave.

Mr Hinkel’s second main ground of complaint focuses on the conduct of the Respondents’ legal representatives in informing the SDT of the outcome of the proceedings before HHJ Dight. He considers this to have been an improper attempt to influence the SDT’s decision. There is no substance in this complaint. The decision of HHJ Dight was plainly material to the issues that the SDT had to determine and there was nothing improper in bringing it to the attention of the SDT.

Third, I can see no basis for the submission that Robin Knowles J failed to undertake any independent investigation. The reasons he gave concisely cover the main grounds and issues. His reference to the SRA’s letters of 2 and 16 May 2019 of itself demonstrates some investigation of the underlying materials. There is no reason to suppose that he did not investigate them appropriately; and the fact that Mr Hinkel believes passionately that Robin Knowles J came to the wrong conclusion does not demonstrate or even suggest the contrary.

I therefore conclude that an appeal against the order of Robin Knowles J would have had no real prospect of success. Furthermore, such an appeal would have been a second appeal and would fail to satisfy the second appeals test as it would raise no important point of principle or practice and there is no other compelling reason for an appeal to be heard.

If, therefore, a valid notice of appeal had been issued or were to be issued now, the result would be a refusal of permission to appeal.

In these circumstances no purpose would be served in directing that the Court should now issue Mr Hinkel’s Appellant’s Notice 3 or 3A. I would therefore direct that no further action should be taken in respect of them.

Extending the Court of Appeal ECRO

In the course of opposing an interim extension of the Court of Appeal ECRO, Mr Hinkel assured the Court that he had no other applications up his sleeve (not his form of words) and to be issued if the ECRO were to expire. I would accept Mr Hinkel’s assurance. In those circumstances, I do not consider that it is necessary for the ECRO in this Court to be extended. Mr Hinkel will be fully aware that, if he were to start issuing unmeritorious applications in this Court, it would be overwhelmingly likely that a further ECRO would be imposed.

Costs

I would order Mr Hinkel to pay the respondents’ costs of these proceedings, to be assessed on the standard basis if not agreed. This order should exclude any costs attributable to the respondents’ application to extend the Court of Appeal ECRO. I would direct that, if and to the extent that Mr Hinkel incurred costs in relation to that application, his recoverable costs should be paid by the respondents.

In the course of submissions, the respondents relied upon a number of costs orders made against Mr Hinkel that he has not satisfied. I do not consider it necessary to refer to or rely upon the existence of unsatisfied previous costs orders in reaching my conclusions. That does not mean, however, that their existence would not be relevant in other circumstances, as to which I express no view one way or another.