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

The factual and procedural background

The two respondents were at all material times respectively a solicitor employed by and a member/partner of Simmons & Simmons (“the Firm”). In and from about 2015 Mr Hinkel attempted to buy a property in London that was owned by the Islamic Republic of Iran. He was legally represented throughout. The Firm (and the respondents) took instructions from an individual known as Dr Azizi. The sale did not proceed. The Firm had not completed their due diligence to confirm the identity of Dr Azizi and his authority to give instructions on behalf of Iran. Their evidence was that they intended to do so before the transaction completed.

Mr Hinkel believes and has alleged that Dr Azizi was a fraudster who had no authority to act for Iran. Put neutrally, he blames the respondents and the Firm for the time and costs he says he wasted on the transaction. The respondents’ position, which the courts and Tribunal have not doubted in various proceedings to date, is that they believed in good faith that Dr Azizi was duly authorised by the Government of Iran and that the Firm had, therefore, been retained by it in relation to the transaction.

The civil proceedings

On 18 December 2018 Mr Hinkel issued proceedings against the Firm in the County Court alleging that it had fraudulently misrepresented that it was instructed by Iran. The gist of the Firm’s response was that Iran was a client of the Firm on other matters and that those involved at the Firm genuinely believed themselves to have been instructed on behalf of Iran on this matter too; and that they made clear to Mr Hinkel at all times that they had yet to receive the anticipated mandate from Iran.

On 10 March 2020 HHJ Dight dismissed Mr Hinkel’s claim against the Firm, giving summary judgment pursuant to CPR 24 on the ground that it failed to disclose a reasonable cause of action or reasonable grounds for bringing the claim. Having reviewed the evidence, including evidence about negotiations as to price for the property, he went further and held that Mr Hinkel had produced no evidence from which it could be inferred that the Firm knew that Dr Azizi was not authorised to provide instructions on behalf of Iran or that it knew that the representation as to its instructions was untrue or was reckless as to the truth. At [49] he concluded that the evidence relied upon by Mr Hinkel “is not evidence from which the Court could properly infer that [the Firm] did not believe in the truth of the representation that they acted on behalf of the Iranian government.”

HHJ Dight refused Mr Hinkel permission to appeal. His brief reasons for refusing permission to appeal included that: Mr Hinkel’s particulars of claim failed properly to plead a cause of action in fraudulent misrepresentation or deceit against the Firm; the evidence showed that there was no real prospect of Mr Hinkel succeeding in his claim; there was no material from which the court could properly infer that the Firm had knowingly made a false representation or were dishonest; as a matter of law, the Firm owed no duty to Mr Hinkel to advise him; and, in any event, he had retained his own solicitors on the transaction.

Mr Hinkel applied for permission to appeal against the decision of HHJ Dight. His application was initially refused on the papers by Adam Johnson J on 1 December 2020 on the basis that an appeal would have no real prospect of success. Mr Hinkel renewed his application at an oral hearing before Adam Johnson J on 13 January 2021. On 15 January 2021 Adam Johnson J handed down a written ruling dismissing the renewed application for permission. He considered in detail Mr Hinkel’s submission that HHJ Dight had been wrong on the question of knowledge or recklessness. His conclusion was expressed at [42] as follows:

“Overall, my view is that there are a number of ways of looking at the present acts which are consistent with [the Firm] (or rather, their representatives) having an entirely honest motive. I would go further in fact, and say that the alternative interpretations I have identified are inherently much more likely or more plausible than the theory that [the Firm] were involved in a fraud. The fraud allegation appears to me to be quite unrealistic. I therefore think HHJ Dight was correct to reach the conclusion he did, and I do not consider that the engagement letter, even if taken into account, gives rise to any serious prospect of showing on appeal that that conclusion was wrong.”

Mr Hinkel then issued a further eight applications seeking to challenge the refusal of permission to appeal. They included (i) an application for permission to appeal (which Adam Johnson J treated as an application to reopen an otherwise final appeal under CPR 52.30); (ii) applications to introduce evidence and rely on further documents; (iii) an application to set aside the judgments of HHJ Dight and of Adam Johnson J on the basis that they were obtained by fraud; (iv) an application to defer or delay the hearing of those applications; (v) an application for the recusal of Adam Johnson J; and (vi) an application for adjournment of his application on medical grounds.

On 17 December 2021 Adam Johnson J handed down judgment dismissing Mr Hinkel’s applications. The court made an Extended Civil Restraint Order (“ECRO”) against Mr Hinkel on the ground that he had persistently issued claims or made applications that were wholly without merit. The ECRO directed that Mr Hinkel was restrained from issuing claims or making applications in the High Court and County Court concerning any matter involving or relating to or touching upon or leading to Mr Hinkel’s civil proceedings (CH-2020-000134) without first obtaining permission. The ECRO was originally expressed to remain in effect until 15 December 2023 but was extended by a subsequent order of Adam Johnson J dated 22 March 2024 for a further three years, to 15 December 2026. It therefore remains in force in relation to applications in the High Court or County Court but not the Court of Appeal.

On 11 October 2023 William Davis LJ imposed a separate ECRO restraining Mr Hinkel from issuing claims or making applications in the Court of Appeal and the High Court in the light of six applications made by Mr Hinkel that had been certified to be totally without merit, including applications for permission to apply for judicial review (certified by Henshaw J) and three applications to the Court of Appeal (certified by Warby LJ). The ECRO imposed by William Davis LJ expired on 12 October 2025 after the present court refused an application for an interim extension. I deal with an application to extend it for a further three years later: see [89] below.

The regulatory proceedings: the 2019 Application

On 10 September 2018 Mr Hinkel made his first complaint to the Solicitors Regulation Authority (“the SRA”) against the Firm, Mr Hooton, and others at the Firm. The principal allegations were that Mr Hooton and others at the Firm had failed to conduct due diligence in relation to the failed transaction and failed to maintain client records in relation to the identity of their client in relation to the transaction. On 31 October 2018 the SRA informed Mr Hinkel that it had investigated his complaint and was satisfied that no further action was required.

On 25 January 2019 Mr Hinkel made a second complaint to the SRA that the respondents had failed to comply with their required KYC and due diligence requirements in relation to the failed transaction. On 16 March 2019 the SRA informed Mr Hinkel that it had investigated his second complaint and was satisfied that no further action was required.

While his second complaint to the SRA was still being considered, on 8 March 2019 Mr Hinkel applied to the SDT (“the 2019 Application”), complaining about the conduct of the present respondents and two other individuals at the Firm. He alleged that they had failed to conduct appropriate due diligence in respect of Dr Azizi and Iran and made wide-ranging allegations of breach of the rules applicable to solicitors and of UK and international sanctions legislation, including allegations of dishonesty, perjury, attempting to pervert the course of justice and acting “wilfully, fraudulently and recklessly” at various stages of the failed property transaction.

In 2019, as now, an application to the SDT could not proceed unless it was certified that there was a case to answer. On 15 March 2019 the SDT adjourned the 2019 Application to enable the SRA to carry out an investigation. In May 2019 the SRA informed the SDT that it considered that there was no evidence of misconduct on the part of the present respondents or the other two individuals. It therefore did not wish to take over Mr Hinkel’s application or to make an application of its own.

On 6 June 2019 the SDT decided that there was no case to answer in respect of the allegations in the 2019 Application, for reasons set out in a Memorandum of Consideration dated 10 June 2019 (“the 2019 SDT Decision”). The 2019 SDT Decision broadly categorised Mr Hinkel’s complaints as:

Making false statements which were relied upon by third parties;

Perjury in informing HM Land Registry that they were acting for the Iranian Government;

Illegality, corruption and deception;

Failure to notify their professional indemnity insurers that they were acting for a Designated Person under sanctions legislation;

Failures in respect of client identification procedures; and

Client records failings.

Having summarised the SRA’s position in the light of its investigation, the SDT set out its own findings, which included that:

There was no evidence that the respondents made false statements which were relied upon by third parties. Mr Hinkel’s broad assertion of false representations by another person (not the present respondents) fell to be addressed in the civil litigation;

There was no evidence on the papers that met the prima facie threshold test for perjury in informing HM Land Registry that they were acting for the Iranian Government;

Allegations of illegality, corruption and deception were “criminal allegations beyond the remit of the Tribunal in the first instance”;

What the Firm did or did not tell their professional indemnity insurers was a matter for them absent any misconduct arising from what was or was not said;

There was a proposed conveyancing transaction which did not progress to an effective sale. The Firm appeared to have undertaken preparatory work in that regard with a view to progressing matters upon receipt of a signed mandate/letter of engagement;

The SRA had investigated whether there were any failures with regard to client records and was satisfied that there was not. The Tribunal found nothing on the papers to raise a prima facie case to the contrary.

The Tribunal therefore determined that there was no realistic prospect of Mr Hinkel bringing successful proceedings. The allegations against the proposed respondent(s) were not particularised and there was no evidence in support of the broad allegations made. The application was therefore refused.

Mr Hinkel appealed against the 2019 SDT Decision by a notice of appeal that was issued on 26 July 2019 with reference CO/2933/2019. In his skeleton argument dated 25 July 2019 he submitted that his claim for permission to appeal should be listed for an oral hearing. Robin Knowles J dealt with the appeal on the papers and dismissed the appeal on 18 March 2020. His reasons were:

This appeal is wholly without merit, there is no case to answer, and the Solicitors Disciplinary Tribunal was right so to conclude.

Mr Hinkel wished to purchase a property. He wished to use a corporate vehicle in the purchase. He retained his own solicitors, and [the Firm] were not his solicitors. They believed they had instructions for the vendor (a government for whom they undertook other work) and there is nothing to suggest that this belief was not genuine. In any event the purchase did not proceed.

The allegations made by Mr Hinkel to the Tribunal against the 4 solicitors at [the Firm] were insufficiently particularised and were not supported by evidence. The Tribunal was correct to identify this at paragraph 8 of its decision dated 10 June 2019.

It is of the utmost importance that allegations of deliberate falsehood, corruption, and like alleged misconduct are properly particularised and supported by evidence before they are made. They involve, as a material element, an allegation of a dishonest state of mind, and the evidence for this was not addressed by Mr Hinkel in the complaint.

There is, further, no evidence that [the Firm] failed to follow its professional obligations in respect of KYC. And as the Tribunal states, the SRA has investigated the position as regards record keeping and is satisfied that proper records were kept.

It is for Mr Hinkel to make out his complaint and provide evidence to support allegations made within it. However the appeal also alleges against the SRA that it failed to carry out an appropriate investigation. The SRA has confirmed by its letter of 2 May 2019 that it has investigated all the issues that Mr Hinkel has raised and by its letter dated 16 May 2019 that it would not be appropriate or proportionate to investigate further. That latter judgment is a reasonable one that it was entitled to make.

The allegations (para 15 of the Grounds of Appeal) that the Tribunal lacked independence or may have been improperly motivated are unsupported by evidence and should not have been made. The allegations (para 19 and 20 of the Grounds of Appeal) that another firm, CMS, made statements “designed to cover up” and aided and abetted perjury are also unsupported by evidence and should not have been made.”

On being notified of Robin Knowles J’s decision, Mr Hinkel wanted to appeal it. On 31 March 2020 he emailed the Administrative Court Office stating that he wished to appeal and asking for guidance as to how to go about it as there was no guidance on the face of Robin Knowles J’s order and he could not find any guidance online. He immediately received an automatic reply pointing out that there may be a significant delay in receiving a response because of COVID. On the same day he emailed the Supreme Court asking whether he should be appealing the order to the Court of Appeal or the Supreme Court. On 6 April 2020, not having received a substantive reply, Mr Hinkel wrote again to the Administrative Court Office asking to which email address he should send his Appellant’s Notice by the due date, which he calculated to be 8 April 2020. Once again he received an automated reply warning of COVID-induced delays. On the same day, the Supreme Court replied saying that he could not appeal to the Supreme Court and should contact the Administrative Court Office for advice on how he might be able to appeal. The following day, 7 April 2020, he received an email from the Administrative Court Office stating that he could appeal the decision to the Court of Appeal and asking him to send all further emails to a specified email address for the Civil Appeals office.

On 8 April 2020 Mr Hinkel sent an email with 11 attachments to that address. The attachments included no less than three Appellant’s Notices in standard form (N161), which I shall call Appellant’s Notice 1, 2 and 3 respectively to reflect the order in which they appear as attachments to Mr Hinkel’s email of 8 April:

Appellant’s Notice 1 was an unsealed notice which stated that Mr Hinkel wished to appeal the 2019 SDT Decision. It stated that Mr Hinkel was asking for a mandatory order to the SDT to reverse the 2019 SDT Decision and to sanction the (four) respondents for breaching SRA Procedures and Rules. It was not signed by Mr Hinkel;

Appellant’s Notice 2 was the Appellant’s Notice dated and sealed 26 July 2019 by which Mr Hinkel had appealed the 2019 SDT Decision to the High Court. The substantive text in sections 1-11 was the same as that for Appellant’s Notice 1. In particular, the relief being sought and the evidence in support was the same as in Appellant’s Notice 1. Appellant’s Notice 2 stated that the original was signed and dated.

Appellant’s Notice 3 was an unsealed and undated notice which stated that Mr Hinkel wished to appeal the decision of Robin Knowles J. It asked for an extension of time of 14 days in which to file Mr Hinkel’s Grounds of Appeal, Evidence and Skeleton Arguments, which he said could only be supplied when he had lodged his appeal against the Judgment of HHJ Dight as the two cases were related.

On 21 April 2020 Mr Hinkel sent a further email to the same address at the Court of Appeal, attaching a Form N161 (“Appellant’s Notice 3A”) which again specified the decision of Robin Knowles J as the decision he wished to appeal but which had minor differences when compared with Appellant’s Notice 3. He also attached a copy of Appellant’s Notice 2. It is not necessary to identify the other attachments to his email save to say that the covering letter listed his grounds of appeal and skeleton argument as separate attachments and documents matching those descriptions are included in the documents provided by Mr Hinkel for this hearing. There is no reason to doubt that Mr Hinkel’s emails were sent or that the stated attachments were attached.

On 17 June 2020 the solicitors for the various respondents (including the two present respondents) wrote to the Administrative Court saying that they had been told by Mr Hinkel that he had filed an appeal against the order of Robin Knowles J but had not served it on them, and asking the Court to provide them with a copy.

There is no record of any response by the Court of Appeal to Mr Hinkel’s emails of 8 and 21 April 2020 until 25 July 2020 when there is in the papers a copy of an email from the Court of Appeal Registry asking him to file his Grounds of Appeal and stating that his appellant’s notice could not be filed without it. Mr Hinkel says that he did not receive this email until he made enquiries in January 2021. By his letter dated 16 January 2021 to the Civil Appeals Office Mr Hinkel referred to his submission of his Appellant’s Notice on 22 (not 21) April 2020 and asserted that he had received no reply or acknowledgement.

Whether as a reaction to that letter and subsequent correspondence in which Mr Hinkel re-sent what he had previously sent in April 2020 or for some other unknown reason, it appears that the Court of Appeal issued an Appellant’s Notice soon thereafter, which I shall call Appellant’s Notice 4. What is peculiar about Appellant’s Notice 4 is that it purports to challenge the 2019 SDT Decision (not the decision of Robin Knowles J) and is materially the same as Appellant’s Notice 1 save that it states that it was filed on 20 January 2021 and was allocated a 2021 Appeal Court Reference Number, 2021/0490. It was sent to Mr Hinkel on 15 March 2021 accompanied by a document of the same date which referred to the order being appealed as the order of 10 June 2019 (i.e. the 2019 SDT Decision). Mr Hinkel has variously described this issued Appellant’s Notice as “fake” and “manufactured”. I consider that a more reasonable response, in the absence of a clear explanation, is that the Court of Appeal issued Appellant’s Notice 4 in error, probably misled by the inclusion of Appellant’s Notice 1 in Mr Hinkel’s submission in April 2020 and resubmission of the same documents in January 2021. During protracted correspondence Mr Hinkel tried to explain that the issuing of Appellant’s Notice 4 was an error. Eventually, it appears from his letter dated 25 November 2022 that the issuing of Appellant’s Notice 4 was cancelled.

It is, however, clear that, for whatever reason, the Court has not issued Appellant’s Notice 3 or the slightly different Appellant’s Notice 3A challenging the decision of Robin Knowles J, or any Appellant’s Notice challenging the decision of Robin Knowles J.

In addition, on 25 March 2021, the Civil Appeals Office emailed Mr Hinkel as follows:

“The Master of the Court of Appeal has asked me to inform you of the following:

"I refer to the appellant's notice filed by Mr Hinkel seeking permission to appeal an order of HHJ Robin Knowles dated 18th March 2020.  The order was made on the papers and therefore the appropriate course is for Mr Hinkel to seek an oral hearing in the Administrative Court. If Mr Hinkel wishes to appeal the outcome of the oral hearing he may file an appellant's notice in the Court of Appeal."

Regulatory proceedings: subsequent applications to the SRA and the SDT

Mr Hinkel made two further complaints to the SRA arising from the facts of the failed transaction. On 16 January 2021 he made his third complaint, alleging (as he had done before) that the respondents had failed to comply with their required KYC and due diligence obligations in relation to the failed transaction. On 1 March 2021 the SRA informed him that it had investigated his third complaint and was satisfied that no further action was required. On 26 March 2021 Mr Hinkel made a fourth complaint to the SRA, again alleging that the respondents had failed to comply with their required KYC and due diligence obligations in relation to the failed transaction. On 8 July 2021 the SRA informed Mr Hinkel that it had investigated his fourth complaint and was satisfied that no further action was required.

Undaunted, Mr Hinkel made a further lay application to the SDT against the present respondents on 23 July 2021 (“the 2021 Application”), setting out his allegations in a witness statement of the same date and supplementing them in a further witness statement dated 28 July 2021. His essential allegation was that the respondents had failed to conduct appropriate due diligence concerning Iran and Dr Azizi, in breach of the Money Laundering Regulations. Mr Hinkel again alleged that the respondents had acted dishonestly and had breached sanctions laws. He also alleged that the respondents had lied to the SRA when explaining their conduct in connection with the transaction. He did not disclose to the SDT either the 2019 Application or its outcome.

The SDT adjourned consideration of whether to certify the 2021 Application so that the SRA could investigate the matter and consider whether to initiate its own application or take over the conduct of Mr Hinkel’s application. The SRA failed to report back to the SDT within the requested timeframe. The SDT therefore came to consider Mr Hinkel’s application on 21 July 2022 without the benefit of any input from the SRA and in ignorance of the 2019 SDT Decision or that it had been upheld on appeal by Robin Knowles J. It certified that there was a case to answer in relation to the following matters:

“• whether Simmons and Simmons were properly instructed or at all

• failures to undertake due diligence

• the acceptance by the Respondents that enhanced due diligence was required of Dr Azizi, they proposed to meet him in person in that regard but failed to do so yet issued contracts of sale

• failure to heed the red flags surrounding Dr Azizi which included, his position or not within the Iranian government, the fact that Iran appears on the United Nations Sanctions list which gives rise to potential money laundering concerns, Dr Azizi’s unusual residential address, the fact that Dr Azizi was corresponding via a “gmail” address.”

I shall refer to this as “the 2022 SDT Decision”. The allegations of or involving dishonesty were not certified.

After this limited certification, Mr Hinkel tried to widen the scope of the certified enquiry to include wide-ranging allegations of dishonesty against the respondents. On 1 September 2022 the SDT held at a Case Management Hearing that most of the allegations that Mr Hinkel was trying to reintroduce, including those of dishonesty and lying to the SRA, were outside the scope of what had been certified. They defined the scope of the enquiry to include two further allegations that broadly covered the areas of failure to conduct due diligence. On 3 October 2022 Mr Hinkel made a further application seeking to re-introduce wide-ranging allegations against the respondents including of dishonesty and of lying to the SRA. By a memorandum dated 7 November 2022 the SDT refused to certify all but one of Mr Hinkell’s further allegations. In doing so it referred to the fact that it had previously considered and refused to certify many of them. Specifically, it stated that “any allegations raising or touching upon the question of the Respondents’ honesty had already been considered and had not been certified.”

On 7 November 2022 Mr Hinkel applied to the SDT for reconsideration of its refusal to certify most of his enlarged allegations. The SDT refused that application on 16 November 2022, concluding that there were no grounds for reconsidering the decision and that Mr Hinkel’s remedy, if any, would be by way of Judicial Review. Mr Hinkel did not attempt to overturn that decision either by way of appeal or by Judicial Review. Meanwhile, the respondents sought to challenge the 2022 SDT Decision, asking for it to be reconsidered, alternatively for the case to be dismissed as an abuse of the process; and they issued Judicial Review proceedings challenging the certification decision which they requested should be stayed until after the SDT had determined their reconsideration of the 2022 SDT Decision.

There was other activity involving Mr Hinkel, the respondents, the SRA and the SDT, as outlined in [29]-[35] of Henshaw J’s judgment and a chronology that has been provided to the Court by the Respondents but not agreed. However, in my judgment, that other activity is not “critical path” and does not need to be summarised here.

The 2023 SDT Decision

Following a two-day hearing of the respondents’ application for reconsideration on 15-16 December 2022, the SDT gave its decision on 18 January 2023. In short, it revoked the 2022 SDT Decision. I set out below and endorse Henshaw J’s summary as set out at [36]-[38] of his judgment. It is, however, necessary to review the decision in a little further detail, with particular reference to matters that are or may be relevant to our consideration of Ground 4 and the underlying contention that the issue of res judicata was a necessary or determinative feature of and basis for the SDT’s decision.

Henshaw J’s summary at [36]-[38] is as follows:

In the Decision, the SDT held that the certification of Mr Hinkel’s 2021 Application had proceeded on the basis of a fundamental mistake: the certifying panel had wrongly believed that the allegations had not been previously considered and adjudicated upon. The SDT had, it held, unwittingly exceeded its powers in certifying the 2021 Application and had acted contrary to the overriding objective of dealing with cases justly and at proportionate cost. The SDT therefore revoked the certifications and ordered that the proceedings be dismissed. It ordered Mr Hinkel to pay the Respondents’ costs, summarily assessed in the amount of £291,000.

In reaching those conclusions, the SDT made the following findings (among others):

In principle, the SDT had the power to review the certification decision in circumstances where there had been a fundamental mistake (§ 28.2.6).

The SDT Panel who in July 2022 certified that there was a case to answer were unaware both of the existence of the 2019 Application and that it had been refused certification (§§ 28.3.1-28.3.3).

Having carefully considered the analysis by Mr Coleman KC (counsel for the present Respondents) of the allegations made in 2019 and the later allegations pursued in 2021, the SDT agreed that in substance they were the same (§ 28.3.4):

“At their core the allegations concerned the alleged failure by the Respondents to conduct appropriate due diligence, and related alleged breaches of international sanctions. When viewed together it was clear that the 2021 allegations were in substance the same or materially the same as those which a different Panel had refused to certify when made in the 2019 Application.” (§ 28.3.5)

“… [Mr Hinkel] had not demonstrated that any of the matters certified by the 2022 Panel as showing a case to answer had not been mentioned in his 2019 Application and considered by the Panel which refused to certify that Application.” (§ 28.3.6)

The SDT was therefore satisfied that the mistake of fact operating upon the 2022 Panel was fundamental to the decision to certify the 2021 Application (§ 28.3.7).

As a result of Mr Hinkel’s failure to disclose the existence of the 2019 Application and its fate, a wrong turn was taken on 6 August 2021 when the Panel requested the SRA to investigate. Had the Panel been aware of the 2019 Application, and the decision to refuse certification of it (following a request to the SRA investigate the allegations), it would have been unlikely to have taken the approach it did by issuing a repeat request to the SRA to investigate (§ 28.3.9).

Thereafter, several further adjournments followed to allow the SRA more time to investigate. When, by 21 July 2022, the SRA requested yet another adjournment, the Panel on that occasion not unnaturally refused this request and certified the allegations as showing a case to answer. However, it did so in ignorance of the fact that the same, or substantially the same, allegations had already been investigated by the SRA, had been found not to evidence any misconduct, and had been refused certification by the SDT (§ 28.3.10). The Panel had thereby unknowingly acted beyond its powers (§ 28.3.11).

Whilst no Panel of the SDT can bind another, it is an irregularity for a later Panel to reach a decision on the same facts that runs counter to an earlier decision made by a differently constituted Panel (§ 28.3.12).

The SDT accordingly revoked the certification decision made in 2022, and dismissed the 2021 Application.

The SDT also revoked the decision it had made to certify the Certified Rule 14 Allegation, on the basis that a Supplementary Statement under rule 14 is made “in support of the application” (as indicated in the final words of that rule); accordingly, the Certified Rule 14 Allegation was parasitic on the original application and fell away in the light of the revocation of the decision to certify the original application.”

When setting out the respondents’ “core submission” at § 15.1 the Tribunal made clear that the primary basis for the respondents’ application was that the 2022 SDT Decision had been made on the basis of a fundamental mistake which should lead to the 2022 SDT Decision being revoked and Mr Hinkel’s application dismissed. “In the alternative”, if the [2022 SDT Decision] was not revoked, Mr Hinkel’s application should be dismissed “on the grounds that the certified allegations were nevertheless res judicata and/or their pursuit by Mr Hinkel is an abuse of process.” § 15.2 was equally clear: “the primary basis of the application was that [the 2022 SDT Decision] should be revoked on the grounds of fundamental mistake.”

The Tribunal addressed the issue of fundamental mistake by reference to Mr Coleman KC’s submissions in §§ 15 –18 before turning to res judicata and/or abuse of process at § 19. It then recorded his final submission (at § 20): “Mr Coleman invited the Tribunal to revoke the Certification Decision and to dismiss the proceedings, or in the alternative, if the Tribunal was not satisfied that it had the power to revoke the Certification Decision, it should nevertheless be dismissed on the grounds that the certified allegations were res judicata and/or Mr Hinkel’s pursuit of them is an abuse of the process.” (Emphasis added).

When it came to rehearse Mr Hinkel’s submissions, it set out his understanding at § 21.6 as follows:

“The Respondents founded their application primarily on the contention that the July 2022 Tribunal made a “fundamental mistake” when deciding to certify the allegations before it because, in the Respondents’ view, these allegations were the same or substantially the same as those he had made in 2019. Mr Hinkel noted that the Respondents’ secondary argument was that the certified allegations were subject to res judicata and/or were an abuse of process.”

The Tribunal then recorded Mr Hinkel’s submissions that the 2019 and 2021 Applications were not the same and that there was no fundamental mistake, before turning to his separate submissions on absence of legitimate expectation (§ 23), res judicata and abuse of process (§ 24) and his final submissions (§ 25).

In his reply submissions, Mr Coleman provided a series of questions at § 26.5, which again drew the distinction between the issue of fundamental mistake and the issue of res judicata, as follows:

Does the Tribunal have the power to set aside the certification of the 2021 Application on the grounds of fundamental mistake?”

If it does, did the certifying panel make a mistake and, if so, was it fundamental?

…

If the Tribunal concludes the certification of the 2021 Application was unlawful, then the Respondents’ case is that the power to revoke the decision should be exercised and the 2021 Application should be dismissed, and that there is no alternative properly open to the Tribunal. …

If the Tribunal concludes that the certification of the 2021 Application should not be revoked, because it is not satisfied that the power exists and/or that the certification is unlawful, then the following further question would arise.

Are the certified allegations (including the additional certified allegation in the Rule 14 Supplementary Statement) res judicata because they are in substance the same as allegations made in the 2019 Application? …

In so far as any of the certified allegations are not res judicata, is Mr Hinkel’s pursuit of them a Henderson v Henderson abuse of process, …?

Irrespective of the answers the Tribunal may give to the questions in (a) and (b) above, has Mr Hinkel conducted the proceedings in such a way as to undermine, or risk undermining, the integrity of the system of justice administered by the Tribunal, such as to amount to an abuse of process?” (Emphasis added)

In giving its decision at § 27 ff the Tribunal adopted Mr Coleman’s questions as a useful roadmap, dealing first with the question whether the Tribunal had the power to set aside the certification of the 2021 Application on the grounds of fundamental mistake (§ 28.2) and then, having found in principle that it had the power (§ 28.2.6), addressing the question whether the certifying panel made a mistake and if so, whether it was fundamental (§ 28.3). As to that, the Tribunal found that the 2022 Panel was unaware both of the existence of the 2019 Application and that it had been refused certification (§ 28.3.2) and that the 2022 Panel was operating under a mistake of fact, in that it was unaware that the Application it was being asked to certify was a second Application arising out of the same underlying transaction (§ 28.3.4). It held that the 2021 allegations were in substance the same or materially the same as those which a different Panel had refused to certify when made in the 2019 Application (§ 28.3.5). “Had the 2021 Panel that asked the SRA to investigate been aware of the 2019 Application, and the decision to refuse certification of it following a request that the SRA investigate the allegations arising from it, and the SRA’s conclusions having done so, it would have been most unlikely to have taken the approach it did by issuing a repeat request to the SRA to investigate.”: (§ 28.3.9). In the result, the Tribunal revoked the 2022 SDT Decision. It then went on to say at (§ 28.5.3):

“Having decided that the Certifying Decision should be revoked based on ‘fundamental mistake’, the Tribunal was not required to decide the matters set out in the remaining questions. However, for reasons of completeness the Tribunal made the following observations obiter dicta: …”

Having made clear that its decision was founded on the issue of “fundamental mistake”, the Tribunal restricted itself to one paragraph on the issue of res judicata as follows (§ 28.5.4):

“The allegations certified in July 2022, save for the matter brought under Rule 14, had, to the Tribunal’s satisfaction been demonstrated as being in substance the same as those which were refused certification in 2019, and to this end the principle of res judicata obtained. The Tribunal agreed with Mr Coleman’s reasoning:

• The 2019 decision was judicial in the relevant sense.

• The 2019 decision was pronounced in the sense that the decision was set out in a Memorandum which was available to the public.

• The Tribunal panel that made the 2019 decision had jurisdiction in respect of the Respondents and Mr Hinkel and in respect of the 2019 Application.

• The 2019 decision was on the merits. In particular, the Tribunal panel made the decision after reviewing the 2019 Application and the substantial supporting documentary evidence, and making inquiries of the SRA, and concluded that the case did not disclose a case to answer. It did not matter that it did not hear oral evidence and argument.

• It was also a final decision of the Tribunal. A decision is final even if it can be appealed.

• The 2019 Decision determined in substance the same or materially the same allegations as those certified by the Certification Decision.

• The 2019 Decision concerned the same parties. It was sufficient that the Respondents and Mr Hinkel were all parties to the 2019 Decision, albeit that the Application included two additional respondents who were not included in the later 2021 Application.”

It will immediately be noticed that, apart from the reference to a decision being final even if it can be appealed, there is no reference to the decision of Robin Knowles J in this brief summary.