It is well known that Disciplinary Panels and other quasi-judicial Tribunals must be careful to give appropriate reasons for their decisions. This important principle is however sometimes more cited than necessarily understood, or indeed implemented in practice. A couple of recent examples from the case law provide a timely opportunity to review the requirements.

In C v Special Educational Needs and Disability Tribunal and Another (2007), C saw fit to challenge the decision of the Tribunal on grounds that it had misunderstood, failed to take into account or otherwise given inadequate reasons for rejecting expert evidence which had been advanced at the Hearing. That challenge was rejected by the Administrative Court in England on the basis that, although the Tribunal's decision did not refer in any specific detail to the expert's evidence, it was nonetheless apparent from its decision that the expert's evidence had been considered by the Tribunal and weighed against other available evidence. Moreover, the Tribunal had provided proper written reasons, explaining its decision, in a letter issued to C.

In the more recent case of Yerolemou v Law Society (2008), however, the same Court held that the Solicitors' Disciplinary Tribunal in England and Wales had acted inappropriately in striking a solicitor off the Roll. It was alleged that the solicitor had failed to honour undertakings to register certain property charges, however a number of reasons were advanced by the solicitor in question in mitigation for his alleged conduct. The Tribunal appeared to ignore those reasons in stating in its decision that the solicitor had failed to offer any reasons or explanations. In light of this defect in the Tribunal's reasoning, the sanction imposed by the Tribunal was, in the opinion of the Court, unduly onerous.

These cases serve as a reminder of the importance of appropriate reasoning. It is not sufficient, however, for a decision to be well reasoned, if this is not also evidenced from the Panel's written communication of its decision.

What reasons should be communicated by the Tribunal? It is not the case that Tribunals require necessarily to record in writing every aspect of their detailed consideration of the case. Indeed, to do so may actually detract from the clarity of the decision. In most cases, what is actually required is simply a relatively brief, clear statement of the Tribunal's findings and determination, making it clear that it has properly had regard to all of the evidence presented and setting out briefly the considerations which have led it to the conclusions at which it has arrived. As it was put by Lord Donaldson, MR, in R v Civil Service Appeal Board ex parte Cunningham (1992), the duty of the Tribunal is to, "outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing, not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful".

Put differently, by Lord Lane, CJ in R v Immigration Appeal Tribunal, ex parte Khan (Mahmud) (1983), "The important matter which must be borne in mind by Tribunals … is that it must be apparent from what they state by way of reasons, first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions". 

In short, a Respondent is entitled to know to what the Tribunal has applied its mind and upon what basis it has arrived at its findings and determination.

It is worth recalling in this context that reasons are normally appropriate not only in relation to the Panel's substantive findings and decision, but also in relation to its consideration and determination of the question of sanction. In particular, it should be apparent from the Panel's decision that it has applied its mind to the full range of possible disposals available, making it clear as to the considerations which have led it to arrive at its decision in relation to sanction. Subject to the terms of the particular disciplinary scheme, it should not normally be presumed that any sanction will be appropriate and the Panel's decision should include consideration as to why the imposition of a sanction (as opposed to no sanction) is to be preferred.

As borne out in the case of Yerolemou, it will be particularly important in relation to sanction to demonstrate that any basis for mitigation advanced by the Respondent has been properly considered.

The moral of the story here is clear. It is not sufficient for tribunal panels to merely pronounce their decisions, no matter how well reasoned they may be in theory. The reasoning behind their decision must be adequately communicated to the Respondent, to avoid any potential challenge of unfairness.  Adequate reasons should ensure that the Respondent is not kept 'in the dark' and that the requirements of fairness are observed.

For further advice in relation to the role and functions of Tribunals, or for information on our training programmes in relation to disciplinary proceedings, please contact Ben Kemp.