Clarifying s.49 Solicitors Act Appeals: No Oral Renewal After Paper Refusal; SDT May Revoke Certification for Fundamental Mistake

Case: Hinkel v Gheissari & Anor [2025] EWCA Civ 1351 (Court of Appeal, Civil Division, 24 October 2025)

Introduction

This Court of Appeal decision arises from Mr Hinkel’s application for permission to bring a second appeal against an order of Henshaw J dated 2 August 2024. That order dismissed his s.49 Solicitors Act 1974 appeal from a Solicitors Disciplinary Tribunal (SDT) decision of 18/19 January 2023 which had revoked an earlier certification decision and dismissed his 2021 lay application against two solicitors at Simmons & Simmons.

Permission to appeal was refused on all grounds save for a limited “rolled-up” hearing on Ground 4: whether there was a valid application for permission to appeal from the earlier order of Robin Knowles J dated 18 March 2020; whether any such application remained pending; and whether it undermined the SDT’s 2023 decision (and the Judge’s decision) by removing the res judicata foundation said to have supported them ([2]–[6]).

The judgment matters for two distinct reasons:

• It clarifies the appellate architecture under s.49 of the Solicitors Act 1974 by holding that, where the High Court dismisses an SDT appeal on the papers (in a case falling within s.49(5) and s.46(10)(c)), there is no general-law right to an oral renewal; the correct route is appeal to the Court of Appeal ([63]–[67]).
• It reaffirms that the SDT can revoke a certification decision on the distinct ground of “fundamental mistake,” and that—on the facts of this case—the SDT’s 2023 revocation did not depend on res judicata; any status of an appeal from Knowles J was therefore irrelevant ([41]–[48], [71]–[75]).

The case intersects a lengthy civil and regulatory history: failed civil fraud claims dismissed summarily in 2020; multiple unsuccessful High Court applications culminating in an Extended Civil Restraint Order (ECRO); four SRA complaints; and two lay SDT applications (2019 refused at threshold; 2021 initially certified in 2022 but revoked in 2023 when the SDT discovered a fundamental mistake). The rolled-up hearing was confined to the procedural effect of a putative appeal from Knowles J’s 2020 order on the SDT’s 2023 decision.

Summary of the Judgment

• No issued appeal from Knowles J’s order and no appeal pending: Although Mr Hinkel timely sent two Appellant’s Notices (April 2020) directed at Knowles J’s order, none was ever issued. An email from the Civil Appeals Office in March 2021 incorrectly suggested he should seek an oral hearing in the Administrative Court; nevertheless he later ceased to pursue an appeal, so there is no pending appeal ([62]–[69]).
• Statutory carve-out from the general right to oral renewal: The general rule permitting oral renewal after a paper refusal does not apply to s.49 Solicitors Act appeals that fall within s.49(5)/s.46(10)(c). The proper course from a paper refusal is appeal to the Court of Appeal; the CA staff email was wrong to advise otherwise ([63]–[67]).
• Res judicata did not underpin the SDT’s 2023 decision: The SDT’s revocation rested on fundamental mistake (ignorance of the 2019 refusal and SRA’s prior involvement), not res judicata. Its passing comments on res judicata were obiter. Therefore, the existence or non-existence of an appeal from the 2020 order does not affect the 2023 SDT decision or Henshaw J’s dismissal of the s.49 appeal ([41]–[48], [71]–[75]).
• Permission refused: Ground 4 had no real prospect of success and, in any event, failed the second appeals test ([77]–[79]).
• Would-be appeal against Knowles J would fail: Even had an appeal been issued or were it now to be issued, permission would be refused for lack of merit and for failing the second appeals test ([81]–[88]).
• ECRO in the Court of Appeal not extended: On assurances given, the Court declined to extend the CA ECRO, while noting the likely reimposition if further unmeritorious applications emerge ([89]).
• Costs: Costs ordered against Mr Hinkel on the standard basis, excluding the respondents’ application to extend the CA ECRO ([90]).

Analysis

Precedents and Authorities Cited or Applied

• MD (Afghanistan) v SSHD [2012] EWCA Civ 194; [2012] 1 WLR 2422: the general rule that an applicant refused on the papers has a right to seek an oral renewal before a judge of co-ordinate jurisdiction ([63]). The Court of Appeal held that this general rule is displaced here by the specific statutory regime in s.49(5) read with s.46(10)(c) of the Solicitors Act ([66]–[67]).
• Spencer Bower & Handley, Res Judicata (6th ed) §5.19, and cases cited: Scott v Pilkington (1862) 2 B&S 11, 41; Huntly (Marchioness) v Gaskell [1905] 2 Ch 656, 667. The Court reiterated the orthodox position that a final order gives rise to res judicata even if an appeal is pending ([74]).
• Henderson v Henderson (1843) 3 Hare 100: relied upon in submissions below as an abuse of process framework. The Tribunal treated abuse and res judicata as alternative grounds, but decided the case on “fundamental mistake,” rendering its abuse/res judicata observations obiter ([43], [46]–[48]).

Legal Reasoning

1) The s.49 Solicitors Act appellate structure and the “no oral renewal” holding

Section 49 SA 1974 creates a discrete appellate path for appeals from the SDT to the High Court, notable for two features:

• No permission requirement for such an appeal (s.49(1), (4)).
• Where the underlying SDT decision was made without hearing the complainant under rules made by virtue of s.46(10)(c) (i.e., a no-case-to-answer refusal), s.49(5) authorises the High Court to determine the appeal without hearing the appellant.

Drawing these together, the Court held it would be “inconsistent” with the statutory scheme to “re-graft” the general oral renewal right after a paper refusal ([67]). Put differently, the ordinary CPR-based entitlement (as described in MD (Afghanistan)) is displaced by s.49(5) in this context; if the appellant wishes to challenge the High Court’s paper refusal, the remedy is to appeal to the Court of Appeal, not to seek an oral renewal in the High Court ([67]). The Court expressly held that the 25 March 2021 Civil Appeals Office advice directing Mr Hinkel to seek an oral hearing in the Administrative Court was incorrect ([64], [67]).

This is the principal procedural clarification emerging from the case and is likely to guide both litigants and court staff in future s.49 appeals where the SDT’s original decision was taken without a hearing under s.46(10)(c) rules.

2) Fundamental mistake, not res judicata, underpinned the SDT’s 2023 revocation

The SDT revoked the July 2022 certification after a two-day hearing, finding that the certifying panel had proceeded under a fundamental mistake of fact: it was unaware the 2019 application had been refused certification after SRA investigation and that the 2021 allegations were in substance the same ([41], [47]). The Tribunal found that this mistake was central to the 2022 panel’s approach and had caused it to exceed its powers and act contrary to the overriding objective ([41], [47]).

Although respondents had advanced res judicata and abuse of process in the alternative, the Tribunal expressly decided the case on fundamental mistake, treating its short discussion of res judicata as obiter ([43], [47]–[48]). The Court of Appeal emphasised this separation and held that the SDT’s decision remains valid irrespective of any procedural status of an appeal from Knowles J’s order ([71]–[75]).

3) Finality and the status of Knowles J’s 2020 order

The Court found that while Mr Hinkel had filed Appellant’s Notices (N161) in April 2020 seeking to appeal the 18 March 2020 order of Knowles J, none was issued. Later confusion was compounded by the Registry erroneously issuing a notice purporting to appeal the SDT’s 2019 decision (which was subsequently cancelled) and by the mistaken advice that an oral hearing in the Administrative Court was required ([26]–[32], [30]–[31], [67]–[69]).

Two conclusions followed:

• No valid issued appeal against Knowles J’s order ever existed, and there is no pending appeal ([69]).
• Despite court error in the advice given, Mr Hinkel ultimately chose not to pursue the appeal. In consequence, it was correct for Henshaw J to proceed on the basis that no appeal had been brought ([69]).

Crucially, the Court held that even if a (hypothetical) appeal from Knowles J had been pending, a final order still operates with res judicata effect unless and until set aside (per Scott v Pilkington and Huntly v Gaskell) ([74]). That said, the point was beside the mark because the SDT’s 2023 decision did not depend on res judicata at all ([75]).

4) The merits of any putative appeal from Knowles J’s decision

To avoid lingering uncertainty and acknowledging the earlier misdirection to a litigant in person, the Court reviewed the April 2020 appeal materials and concluded that an appeal would have had no real prospect of success and would have failed the second appeals test ([81]–[88]). The Court reaffirmed prior judicial findings that there was no evidential basis for the serious dishonesty allegations ([83], echoing the analyses of HHJ Dight and Adam Johnson J) and found no substance in complaints about allegedly improper references to the civil judgment or a supposed failure by Knowles J to undertake an independent evaluation ([84]–[85]).

5) Second appeals test and ECRO

Even if Ground 4 were arguable (it was not), permission would have been refused under the second appeals test: no important point of principle or practice and no other compelling reason ([78]). The Court declined to extend the existing CA ECRO (expired), but indicated likely reimposition if further unmeritorious applications were made ([89]).

Impact

• Procedural clarity for s.49 SA 1974 appeals: Court staff and litigants should not expect an oral renewal after a paper refusal in appeals caught by s.49(5) (i.e., where the SDT’s decision was of the “no case to answer” type under s.46(10)(c)). The correct remedy is a further appeal to the Court of Appeal. This clarification should reduce missteps and delay, particularly in cases initiated during periods of administrative disruption (e.g., the COVID-19 backlog).
• Tribunal case management and “fundamental mistake”: The decision strengthens the SDT’s ability to revisit certification decisions promptly when subsequent facts show a fundamental mistake (such as ignorance of a closely related, earlier refusal after SRA investigation). It underscores the importance of full and frank disclosure by lay applicants about prior, similar applications and outcomes.
• Finality principles reaffirmed: The Court reiterates the orthodoxy that a final order is res judicata unless and until set aside; a pending appeal does not strip it of finality. Although obiter here (because res judicata was not the ratio), the restatement will be cited where parties contend that an appeal in train prevents estoppel.
• Abuse and repetitive litigation: The Court’s account of serial applications, the imposition of ECROs, and the rejection of repeated allegations lacking evidential footing demonstrates the system’s willingness to balance access to justice with the need for finality and proportionate use of resources.
• Litigants in person and court error: The Court recognised an instance of incorrect administrative guidance, showed procedural forbearance by addressing the would-be appeal’s merits, yet ultimately held that litigants remain responsible for progressing their appeals.

Complex Concepts Simplified

• Res judicata: A family of finality rules preventing re-litigation of the same cause of action (cause of action estoppel) or the same issue (issue estoppel) between the same parties once a final decision has been made by a competent tribunal. In English law, a judgment remains “final” for estoppel purposes even if an appeal is pending; it ceases to operate only if set aside.
• Henderson v Henderson abuse of process: A party should bring forward their whole case at once. Later proceedings that seek to litigate points which ought reasonably to have been advanced earlier may be struck out as abusive, even if strict res judicata does not apply.
• Fundamental mistake (in SDT certification): An SDT panel may revisit and revoke a certification decision where it proceeded on a fundamental mistake of fact (e.g., ignorance of an earlier, materially identical application refused after SRA investigation), leading it to unwittingly exceed its powers and act contrary to the overriding objective.
• s.49 Solicitors Act appeals: Appeals from the SDT lie to the High Court without permission. Where the SDT’s underlying decision was made without hearing the complainant under rules authorised by s.46(10)(c) (“no case to answer”), s.49(5) permits the High Court to determine the appeal on the papers and not to hear the appellant. In such cases, the usual CPR right to renew a paper refusal orally does not apply; the remedy is to appeal to the Court of Appeal.
• Extended Civil Restraint Orders (ECROs): Orders restraining a party, who has persistently issued totally without merit applications, from bringing further applications or claims without permission for a fixed period, to protect the court’s process and other parties from abuse.
• Second appeals test (CPR 52.7): The Court of Appeal will only permit a second appeal if it raises an important point of principle or practice, or there is some other compelling reason for the appeal to be heard. Mere disagreement with findings or attempts to reargue facts will not suffice.

Conclusion

Hinkel v Gheissari & Anor is an important procedural clarification within the niche but significant realm of Solicitors Act appeals. The Court of Appeal held that in s.49 appeals falling within s.49(5)/s.46(10)(c), the general right to an oral renewal after a paper refusal is displaced; the proper next step is to appeal to the Court of Appeal. That point alone will simplify litigants’ choices and court administration.

Substantively, the decision underscores that the SDT’s 2023 revocation rested on “fundamental mistake,” not on res judicata or abuse of process, rendering debates about a pending appeal academic. The Court’s reaffirmation of finality principles (a final order remains res judicata unless set aside) and careful treatment of a litigant-in-person’s procedural misadventures reflect a court keen to balance fairness, efficiency, and legal certainty. The upshot is a clear message: repeated attempts to re-litigate allegations found to be unsupported will not be entertained, and the SDT retains the ability to correct course where a certification decision was taken in ignorance of crucial, earlier determinations.