Provision of Legal Advice and Representation - Pine v Solicitors' Disciplinary Tribunal

Author:Mr Andrew Lidbetter
Profession:Herbert Smith
 
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Introduction

In Pine v Solicitors' Disciplinary Tribunal [2001] All ER (D) 359 (Oct), the Court of Appeal considered whether the lack of any provision of legal advice or representation in connection with a hearing of the Disciplinary Tribunal was a breach of Article 6 of the European Convention on Human Rights.

A solicitor had been struck off the Roll after a hearing of the Solicitors' Disciplinary Tribunal in which he was neither present nor represented. Various allegations had been made against the solicitor including the swearing of affidavits which were false and misleading in material particulars, failure to disclose material information to the Court, various breaches of the Solicitors' Accounts Rules 1991, failing adequately to account to clients, giving false information to clients and rendering a fee note to a client which he knew or should have known could not be jusitfied.

The need for legal advice and representation to be provided in order that a fair hearing could be provided.

Under Article 6(1) which protects rights in relation to any determination of an individual's civil rights and obligations, "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...". The Court of Appeal referred to previous cases on the issue of whether and when legal aid and assistance should be provided in civil proceedings in order to comply with the provisions of Article 6.

Firstly the Court referred to Airey v Ireland [1979] 2 EHRR 305 where the Strasbourg Court decided that the complexity of the law and procedure in relation to judicial separation cases in the High Court in the Republic of Ireland was such that allowing the applicant to appear in person without legal representation did not constitute an effective right of access to the court, and therefore Article 6 had been breached. However this is not to be taken as a general conclusion and "much must depend on the particular circumstances" of each case. The Court of Appeal also noted that the court in Airey had stated that Article 6(1) leaves to the public authority a free choice of the means to achieve compliance with Article 6(1). For example this could be done with the provision of a legal aid scheme or by a simplification of the procedure involved, and it is not for the Courts to indicate, let alone dictate, which measures should be taken. The Court in Airey did however state that Article 6(1) may...

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