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

The appeal before Henshaw J

Mr Hinkel appealed pursuant to section 49 of the Solicitors Act 1974 against the 2023 SDT Decision. On 29 July 2023 Henshaw J made an order addressing various issues including Mr Hinkel’s application for permission to make a late application for an oral hearing in case CO/2933/2019 (i.e. in relation to the order of Robin Knowles J). As evidence in support of that application, Mr Hinkel said:

“Permission be granted for this late application for the hearing in (1) above. An application previously made to the Court of Appeal during the Covid 19 Pandemic papers was delayed through an e-mail failure and then a court error and was no longer followed up as there were other applications in progress and the SDT ordered the SRA to investigate further. Although there has been a delay, it is now appropriate, as the SRA relied on false statements, for an oral hearing to take place to avoid the need for an appeal to the Court of Appeal and for the decision to be changed, given the changed circumstances of certifications by the SRA and SDT whether revoked on the unlawful ground of res judicata.”

Henshaw J refused the application for permission to make a late application and included in his reasons:

“Case CO/2933/2019 was an appeal by the Appellant against the Solicitors Disciplinary Tribunal’s decision of 6 June 2019 (reasons given 10 June 2019) that there was no case to answer in respect of allegations which the Appellant had made against the Respondents (which were materially the same as those made in the present case) and against the Tribunal’s decision of 10 June 2019 dismissing the proceedings. The Appellant’s appeal was dismissed by Robin Knowles J on the papers on 18 March 2020 and certified as totally without merit. That decision, which was not the subject of any appeal, is final and binding. There is no basis on which the court could now entertain an application for an oral hearing on that case, whether as part of the present appeal or at all. The Appellant asserts in Section 11 of his Appellant’s Notice that an application made to the Court of Appeal during the Covid-19 pandemic was delayed through an email failure and then a court error, but was no longer followed up “as there were other applications in progress and the SDT ordered the SRA to investigate further”. Whether that be the case or not, it provides no basis for this court to reopen Robin Knowles J’s decision.”

The substantive hearing before Henshaw J took place on 28 November 2023 with further written submissions being received by the Court after the hearing. Judgment was delivered on 23 February 2024. The Judge distilled and summarised Mr Hinkel’s lengthy grounds of appeal as follows at [39]:

The SDT committed serious procedural errors.

The 2019 decision was procured by the Respondents’ dishonesty, and (it appears) did not constitute a bar to his further application.

The SDT was wrong to conclude that the Certified Rule 14 Allegation was parasitic on his 2021 Application and therefore fell away with the revocation of the certification of that application and its dismissal.

The Second Respondent and [the Firm] breached a duty of candour to the SDT.

The SDT’s costs order was wrong for a number of reasons, including by reference to sanctions laws.”

The Judge dealt with each head of appeal in turn. In doing so he made limited references to the order of Robin Knowles J, which is unsurprising given the thrust of the grounds of appeal that Mr Hinkel was advancing.

At [17], having set out the salient terms of the order, the Judge said of Robin Knowles J’s order that “[it] was [a] final and binding decision from which no appeal was brought.”

In [42], under the heading “procedural errors”, the Judge referred to Mr Hinkel’s submission that the SDT was wrong to refuse to address his allegations of dishonesty and that it had not been established that Iran was the Firm’s client: he said it had not been established by Robin Knowles J’s judgment as he had (in Mr Hinkel’s submission) merely assumed it to be the case, based on false evidence. The Judge rejected that submission at [43] because, as he held, the SDT was correct to proceed on the basis that the respondents’ honesty was not in question; and there was no evidence to support the suggestion that the respondents had made any knowing or reckless misstatement about Iran being a client.

Under the heading “2019 Decision procured by dishonesty” Henshaw J identified at [51] that one strand of Mr Hinkel’s argument was that the res judicata principle does not apply where a regulator has been deceived, as Mr Hinkel contends that the SRA and SDT were in 2019. At [52] ff he rejected the submission that the 2019 SDT Decision was procured by dishonesty as untenable for multiple reasons. The first of those reasons was that the proper avenue for a challenge to the 2019 SDT decision or the decision of Robin Knowles J dismissing his appeal from it would have been to seek to appeal from Robin Knowles J’s decision and that it was not open to Mr Hinkel to make a collateral attack on it via an appeal from the 2023 SDT Decision. The other reasons included: second, that in 2019 Mr Hinkel had made wide-ranging allegations including dishonesty and failure to conduct proper due diligence, but the SRA found no evidence of misconduct and the SDT found no basis on which to take a different view. Third, the SDT in September and November 2021 specifically refused to certify Mr Hinkel’s allegations of dishonesty and of lying to the SRA. Mr Hinkel made no challenge to that decision. The SDT when sitting in December 2022 and making the 2023 SDT Decision was accordingly bound to proceed on the basis that those allegations formed no part of the case against the respondents. Fourth, the Judge held at [56] that “there was and is no proper evidential basis for Mr Hinkel’s allegations of dishonesty, whether at the time of the transaction or subsequently, including in relation to the Respondents’ dealings with the SRA and the SDT”. His allegations of lying at the time of the failed transaction were considered and rejected in Mr Hinkel’s civil claims and also considered and rejected by the SRA in 2019 and by Robin Knowles J in 2020. Further, the Judge held that, on the evidence before him, there was no basis for any allegation that the respondents lied to the SRA or the SDT. For good measure, Henshaw J reviewed the evidence upon which Mr Hinkel wished to rely as new evidence and held that it did not fundamentally change matters, for reasons that he set out in detail.

At [66] ff the Judge referred to Mr Hinkel’s submission that his Certified Rule 14 application was not parasitic on his 2021 Application and therefore did not fall away with the dismissal of that application. The Judge rejected that submission for two reasons, the second of which was that the Certified Rule 14 Allegation was in substance the same or materially the same as those which the SDT had refused to certify in 2019. In passing, he referred to the fact that the decision of the SDT in refusing to certify was upheld by Robin Knowles J. Similarly, when dealing with the costs award made by the SDT, Henshaw J at [76] again referred to the 2019 SDT Decision having been upheld by Robin Knowles J.

Henshaw J also made only limited reference to the doctrine of res judicata:

At [45.4] he rehearsed Mr Hinkel’s argument (in the context of his assertion of procedural failings on the part of the SDT and his application to call witnesses) that it was imperative that the SRA be permitted to state to the Tribunal whether or not the 2019 SDT Decision was based on false statements by the respondents as it was his case that the basis for the decision and the subsequent appeal (i.e. the decision of Robin Knowles J) was one of false statements and the doctrine of res judicata and abuse of process had no basis or application in such circumstances. Henshaw J’s primary reason for dismissing the application to call witnesses was that they could not give relevant evidence: see [48];

Henshaw J returned to the issue of res judicata at [51], identifying that one of the strands of Mr Hinkel’s case about the 2019 SDT Decision being procured by dishonesty was that the principle of res judicata does not apply where a regulator has been deceived, as (in his submission) the SRA and the SDT were in 2019. It was in this context that he said at [53] that the proper avenue for a challenge to the 2019 SDT Decision, or the decision of Robin Knowles J dismissing Mr Hinkel’s appeal from it, would have been to seek permission to appeal from Robin Knowles J’s decision. It is, however, important to note the other reasons for rejecting Mr Hinkel’s submissions, which I have summarised at [56] above.

Having rejected each of the five heads of appeal, Henshaw J dismissed the appeal and ordered Mr Hinkel to pay the respondents’ costs.

Mr Hinkel’s proposed grounds of appeal from Henshaw J

I have mentioned that Ground 4 was the only one of many grounds for which Mr Hinkel sought leave and which Zacaroli LJ permitted to go forward to this rolled-up hearing. Two of the others as summarised by Zacaroli LJ in his order of 13 February 2025 were:

“Second, that the Judgment unlawfully rules that res judicata applies in circumstances where a judgment is obtained by fraud and/or deception. … Fifth, that the Judgment unlawfully rules that the Second Respondent is honest, and wrongly states that there is no basis for the allegation that any or all of the Respondents lied to the Solicitors Regulatory Authority (“SRA”) or the SDT.”

Zacaroli LJ’s reasons for refusing permission to appeal on these grounds were:

“Second, the Applicant’s submission – that the Judgment unlawfully rules that res judicata applies in circumstances where a judgment is obtained by fraud or deception – is untenable. Specifically: (i) there is no evidential basis for this submission before this court, or indeed any court or tribunal in these proceedings – for example, in 2019 Mr Hinkel made the same allegations but the SRA did not find any evidence of them, nor did the SDT find any evidence which supported taking a different view, and (ii) in September and November 2021, the SDT refused to certify Mr Hinkel’s allegations of dishonesty and lying, which he did not challenge – accordingly, the 2022 decision proceeded on the basis that this did not form part of the case. In these circumstances, it is not open to the Applicant to appeal the 2022 decision on this ground, and, in any event, this ground would not have a real prospect of success on the evidence.” (Emphasis added)

And

“Fifth, contrary to the appellant’s assertion, Henshaw J’s judgment does not make any findings to the effect that the second respondent was honest. He found only – as had been found on previous occasions – that there was no evidence which justified the appellants’ allegations of dishonesty. These were conclusions Henshaw was entitled to reach, and in respect of which an appeal does not have a real prospect of success.” (Emphasis added)