The Wislang Case

IN HER MAJESTY QUEEN ELIZABETH’S PRIVY COUNCIL, LONDON, ENGLAND
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R (Camacho) v Law Society [2004] 4 All ER, Divisional Court

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Date Added: 10 Jul 2006

This case was decided in July 2004, that is, 5 months before the Privy Council gave its opinion on the Wislang case. The important principles enunciated by the full bench of the Divisional Court comprising judges Thomas LJ, Silber and Goldring JJ, were therefore available to be taken into account by the law lords of the Privy Council in the Wislang case, despite Dr Wislang not knowing about it and not citing it in argument.

The principal issue in Camacho concerned the power of the Solicitors Disciplinary Tribunal to impose conditions on practice, and the desirability of the Tribunal, rather than the Law Society, doing so. The Court carefully distinguished the disciplinary functions of the Tribunal from the regulatory powers of the Law Society and said that unless there were exceptional reasons the Tribunal should itself impose the conditions it considered appropriate. In its decision, the Court reduced the indefinite period of the suspension of the practitioner to a definite one of 18 months.

A further important interest (per Thomas LJ) of the Court was whether it was the practice of the Tribunal to take into account the means of a person against whom an order for costs was to be made. The Court was told that it is the practise of the Tribunal that they do not take into account means at all when imposing an order as to costs, and that it makes the award and leaves it to the Law Society to decide as to whether it should be enforced, and if so, to what extent.

Thomas LJ said

 

“Again a very important question arises in relation to the public interest. Is it in the public interest and is it fair to the appellant that the question as to the extent of what is a significant financial liability should not be properly considered by the independent tribunal but should rather rest with the Law Society? We were told, and I, for my part, accept entirely, that the Law Society acts in an entirely responsible and reasonable way when deciding whether to enforce such orders, but that is not the point. The point is what is properly in the public interest and what properly is in the interests of justice for a respondent to disciplinary tribunals..…. Again we trust that both the Law Society and tribunal will give careful consideration to this third area of practise which has arisen in this appeal.”

In New Zealand it is the Medical Practitioners Disciplinary Tribunal which makes the order as to costs, and the Medical Council of New Zealand which has the responsibility of enforcing the costs order to the extent that it chooses. In the Wislang case the costs order imposed by the Tribunal was sought in full.

The decision in Camacho clearly has an important bearing on the distinguishing of disciplinary and regulatory functions in the disciplining of practitioners, medical as well as legal, in the future. The practical insistence by the Court that, unless there were exceptional reasons, the Tribunal itself should impose the conditions it considered appropriate, amounts to a recommendation for a form of disciplinary practice which, for whatever reason, was not followed in the Wislang case, but which will require to be considered in the future; as will the cautionary obiter dictum on the matter of costs awarded against disciplined practitioners.

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