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

Lord Justice Stuart-Smith:

Introduction

Mr Hinkel applies to the Court for permission to appeal against the order of Henshaw J made on 2 August 2024. By that order, Henshaw J dismissed Mr Hinkel’s appeal pursuant to section 49 of the Solicitors Act 1974 against the decision of the Solicitors Disciplinary Tribunal (“SDT”) dated 18 January 2023 and amended on 19 January 2023 (“the 2023 SDT Decision”) revoking the SDT’s earlier decision and certification that there was a case to answer in respect of allegations made by Mr Hinkel against the present respondents.

Mr Hinkel wished to challenge Henshaw J’s decision on multiple grounds, some of which will have to be mentioned later. Zacaroli LJ refused leave on all of Mr Hinkel’s grounds other than Ground 4 which, as expressed verbatim in Mr Hinkel’s Grounds of Appeal, is:

“The Judgment incorrectly states I did not appeal the Order of Mr Justice Robin Knowles that was filed at the Court of Appeal during the Covid19 Pandemic, was maladministered although the evidence of my application was in the bundle for the hearing on 28 November 2023.”

Zacaroli LJ extended and clarified the scope of Ground 4 by directing that there should be a rolled up hearing limited to the following ground:

“Whether there was a valid application for permission to appeal against the order of Robin Knowles J dated 18 March 2020 and, if so, whether that application is still pending before the Court of Appeal, and whether it precludes the conclusion reached by the SDT of 18 January 2023 that Mr Hinkel’s appeal should be dismissed on the grounds of res judicata”

In addition, Zacaroli LJ directed that, if there was a valid application for permission to appeal against the order of Robin Knowles J dated 18 March 2020 (of which more later) and if that application was still pending in the Court of Appeal, then it should be listed to be heard at the same oral hearing for the purposes of considering permission to appeal or, if the court thinks appropriate, further directions for its disposal.

In giving his reasons for granting permission as he did, Zacaroli LJ said:

“In summary, apart from one point, I consider that none of the grounds of appeal have any real prospect of success and do not in any event raise an important point of principle or practice. The one exception is the point raised by the fourth ground of appeal: namely that the judge was wrong to conclude that no appeal was brought from the earlier decision of Knowles J. A search made of CE-file reveals that a notice of appeal was sent to the Court of Appeal shortly after Knowles J’s decision. This was sent at the beginning of the COVID pandemic, which might explain why nothing appears to have been done in response to it for a long time. A year later, a Master’s direction was relayed to Mr Hinkel that he should first seek an oral hearing to set aside Knowles J’s order. There does not appear to be a response to that email. In November 2022 Mr Hinkel emailed the court asking about progress of his application for permission to appeal. There does not appear to have been an answer to that email. It may be that the earlier attempt to appeal the decision of Knowles J is to be treated as having expired, so that there is no extant appeal in progress. If not, however, it may be that the premise of Henshaw J’s decision – namely that there is a final and unappealable decision on Mr Hinkel’s prior application, so as to give rise to res judicata is undermined.”

It should therefore be appreciated at the outset that (a) the scope of Ground 4 is focused on the impact of an appeal against the decision of Robin Knowles J on a finding of res judicata and (b) the premise that makes the question of an appeal against the decision of Robin Knowles J relevant (as opposed to academic) is that the decision of Henshaw J depended upon a finding of res judicata. At the same time it must be borne in mind that we are concerned with a potential second appeal against the 2023 SDT Decision, so that the stringent requirements of the second appeals test must be satisfied if permission to appeal is to be given.

To put these issues in context it is necessary to summarise the main elements of the factual and procedural background. The procedural background involves both regulatory complaints and a civil claim that are closely related. It is largely common ground and I adopt and adapt much of it from the concise summary provided by the judgment of Henshaw J, to which reference should be made for further details: [2024] EWHC 393 (Admin).