SRA Update | SDT lawyer
Two main issues have been in the headlines over the past few weeks, the dismissal of the case against Leigh Day and also the continued gymnastics of the High Court around the question of the definition of lack of integrity, where the president of the Queen’s Bench Division Sir Leveson has now entered the fray – rather like bringing a gun to a knife fight?√جª¬ø
Leigh Day
This was the longest and most expensive trial conducted at the SDT ( Solicitors Disciplinary Tribuanl) and it concluded with the tribunal dismissing the charges. The case took seven weeks to conduct and at the conclusion, all 19 charges against Mr Day, his partner Sapna Malik and solicitor Anna Crowther, together with the firm were dismissed.
The case had political overtones, where it was again suggested that this was a case where the SRA had been ‘leant on’ by the government to bring charges. See article on this blog dated 5th December 2016. The case advanced by the SRA was based on late disclosure of a document showing that 9 detainees had been insurgents, and also delay in withdrawing allegations of torture and murder.√جª¬ø√جª¬ø
Two issues remain outstanding, costs and an appeal. Leigh Day estimate that their costs were £7m and no doubt the SRA will have run up a similar, if not larger figure. Costs orders for successful defendants at the SDT are very rare, an issue that has caused consternation in the profession, as those who are prosecuted often have to budget to cover the SRA investigation and case costs, leaving them unable to fund their own representation.
The other issue is whether or not the SRA will appeal, as the recent trend in the High Court seems to be more interventionist than previously, when tribunal decisions were more likely to be regarded as being ‘within the band of a reasonable tribunal’. Successful practitioners before the SDT now routinely suffer a period of uncertainty, knowing that the reasons when finally delivered will be dissected by a regulator keen to ‘hold the line’, especially where dishonesty has been alleged.√جª¬ø
Again the debate about lowering the standard of proof at the SDT ( and Bar Standards Board) has emerged. As a practitioner who regularly attends at the SDT, this decision is seen as strong support for the protection that is needed of ordinary practitioners with the higher burden of proof. See Legal Futures 12th June 2017. The pressure of an SRA investigation and subsequent SDT hearing are so enormous, that, even now, most people facing such a process are unable to properly defend themselves. Giving the SRA an easier task would tip the balance and probably render the process unfair.
Lack of Integrity
Again this is an issue that has been in the press recently, bearing in mind conflicting decisions of the High Court. See blog article April 9th 2017 where Mostyn J joined the fray with his decision in Mallins v SRA [2017] EWHC 835 (Admin) which is available in full on that article.
The latest case is that of Peter Williams, a specialist in agricultural law who was accused of acting for a client in a bid to defraud the client’s creditors by selling a property at undervalue. Although the High Court rejected the charges of dishonesty, it concluded that 3 representations demonstrated ‘manifest lack of integrity’. Mr Williams was struck off and ordered to pay £195,000 costs.
Although the High Court set aside the findings of dishonesty as they had not been properly put in cross examination or mentioned in closing argument. Carr J delievered the judgment and held,
‘I proceed on the basis , both on the authorities and as a matter of principle that, in the field of solicitors regulation, the concepts of dishonesty and want of integrity are indeed separate and distinct..want of integrity does not require the subjective element of conscious wrongdoing’√جª¬ø
In brief comments Lord Justice Leveson agreed, saying that in the absence of compelling justification he would reject Moystn J’s description of the concept of want of integrity as second degree dishonesty’.√جª¬ø
So it seems that Mostyn J’s attempt to bring fairness back to the SDT may have hit the rocks. The point is not whether or not dishonesty and lack of integrity mean the same thing, it is whether or not the SRA have managed to push the envelope on lack of integrity as a head of charge, so that they can abandon the difficult task of proving dishonest, with its high standard of proof and subjective element. Moystn J clearly wanted to see fairness, surely that is what this debate is really about.√جª¬ø
