Should a disciplinary tribunal proceed to hear charges against a person who fails to attend a hearing, or should it grant an adjournment? Can it ever be fair to decide a disciplinary case without hearing one side of the argument? These were the issues considered by the Privy Council in the recent case of Tait v Royal College of Veterinary Surgeons [2003] UKPC 34.
The decision in Tait
Mr Tait was a veterinary surgeon whom the RCVS charged with "disgraceful conduct in a professional respect". He failed to attend the hearing before the RCVS Disciplinary Committee, and the hearing was adjourned. He then failed to attend the adjourned hearing, but wrote requesting a second adjournment on grounds of ill health, although he did not provide any medical evidence. The Committee refused the request and proceeded to hear the charges against Mr Tait in his absence. It found him guilty of two charges and ordered that his name be removed from the register of veterinary surgeons.
The Privy Council allowed Mr Tait’s appeal. It held that the Committee had applied the wrong legal test because it had been incorrectly advised that it had "absolute discretion" as to whether an adjournment should be granted. The proper test was that which had been set out by Lord Bingham in R v Jones [2002] 2 WLR 524. Since the Disciplinary Committee had not addressed the questions set out by Lord Bingham in that case, its decision was quashed.
Jones
was a case concerning the criminal trial of a defendant who had deliberately absconded while on bail. Lord Bingham held that a court had a discretion to commence a trial in the absence of a defendant who chose not to appear, but that the discretion was "to be exercised with the utmost care and caution". He added that, if the defendant’s absence were attributable to involuntary illness or incapacity, it would "very rarely, if ever" be right to commence the trial, unless he was legally represented and asked that the trial should begin.Lord Bingham also referred to a list of matters to be taken into account in exercising the discretion, which had been set out by the Court of Appeal. They included whether the defendant’s absence was voluntary, whether he would be likely to attend after an adjournment, the extent to which he would be disadvantaged by not being able to give his account of events, the risk of reaching an improper conclusion about his absence, and the seriousness of the offence. Lord Bingham endorsed this list, except that he held that the seriousness of the offence should not be considered. Whether the offence was serious or trivial, it was important to ensure that any trial was as fair as the circumstances permitted and led to a just outcome.
In Tait the Privy Council held that Jones showed that three factors should have been taken into account by the Disciplinary Committee in deciding whether to proceed with the hearing. Two of these were the risks of (1) reaching a wrong decision about the reasons for Mr Tait’s absence and (2) reaching a wrong conclusion on the merits if Mr Tait’s account was not heard. However, despite Lord Bingham’s clear statements to the contrary in Jones, the Privy Council held that the other relevant consideration was the seriousness of the offence. This apparent misreading of Jones raises questions as to whether the Privy Council adopted the correct approach in Tait.
Other examples
More consistent guidance on the approach to adjournments has been provided by the Court of Appeal in recent cases concerning Employment Tribunal proceedings, in particular Teinaz v Wandsworth London BC [2002] EWCA Civ 1040 and Andreou v Lord Chancellor’s Department [2002] EWCA Civ 1192. Since regulatory and disciplinary proceedings are generally classified as civil rather than criminal, the employment cases may well provide a more useful analogy than criminal cases such as Jones.
Both cases make clear that the decision whether to adjourn is within the discretion of the tribunal but may be challenged on the ground of perversity or unfairness. As in Jones and Tait, the Court of Appeal stressed that a tribunal must be careful not to cause injustice to the party seeking an adjournment, especially if refusing to adjourn would have severe consequences such as the dismissal of the proceedings.
Peter Gibson LJ accepted in Teinaz that the onus was on the party requesting the adjournment to satisfy the tribunal that he or she was genuinely unable to attend a hearing. However, if a tribunal had doubts about the genuineness of that party’s medical evidence, it could give directions designed to resolve those doubts. For example, it might direct that further evidence should be provided promptly, or invite the party seeking the adjournment to allow the other party’s lawyers access to his or her doctor. Nevertheless, a tribunal would not necessarily have made an error of law if it had not taken such steps, as everything would depend on the particular circumstances of each case.
In both cases, the employee applied to have the hearing of the claim adjourned on grounds of ill-health and produced a medical certificate. In Teinaz, the tribunal doubted whether the employee was really unable to attend and refused to adjourn. It heard the case and found against the employee. The Court of Appeal held that this decision had not been open to the tribunal and should be quashed. In Andreou, the tribunal took the view that the employee’s medical evidence was inadequate, and adjourned for a week to allow her to provide further information. When she failed to do so, her application to adjourn was rejected and the case dismissed. The Court of Appeal held that the tribunal had taken a sensible approach, given the employee a reasonable opportunity to obtain adequate medical evidence, and had decided the case having taken into account all relevant matters. Its decision was upheld.
Discussion
All of the cases discussed above reinforce the principle that a tribunal should take great care in deciding whether it should adjourn a disciplinary hearing or proceed in the absence of the respondent. The main consideration must be fairness to the parties, and a tribunal’s decision will be open to challenge if it misinterprets the law or fails to ensure a fair hearing.
The first task for a tribunal faced with an application for an adjournment is to consider the reasons for the application. If a party claims to be unable to attend a hearing due to ill health, the tribunal should consider whether sufficient medical evidence has been provided. If there is insufficient evidence and hence a risk of reaching an incorrect conclusion about the reasons for the respondent’s absence, it may be necessary to adjourn to obtain further information.
The second task is to consider whether it is in the interests of justice to proceed with the hearing or to adjourn. The tribunal will need to keep in mind the serious risk that a respondent will suffer injustice if charges are heard without one side of the case being put to the tribunal. However, it is also necessary to ensure fairness to any other parties to the proceedings, such as a regulator or complainant. There may also be wider public interests to consider, particularly if adjourning the proceedings could have the effect of allowing a respondent who might present a danger to the public to continue to practice.
If the tribunal concludes that the respondent is genuinely unable to attend, it should almost certainly adjourn the hearing. However, if it finds that the respondent has not provided evidence to justify an adjournment, or has deliberately failed to attend, the tribunal will have a wider discretion. Even so, a tribunal which proceeds without the respondent must always ensure that the hearing is as fair to the respondent as possible in the circumstances.
Article by Andrew Lidbetter, James George and Nusrat Zar
© Herbert Smith 2003
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