Letters roundup - 20 July 2020

No place for bad faith prosecutions

The November 2019 change to the civil standard of proof in disciplinary proceedings against solicitors was objectionable enough in itself, but it has thrown up a novel and troubling anomaly.

 

In SDT case number 12060-2020, I appeared for the respondent.

 

Before the final hearing, the Solicitors Regulation Authority and the respondent signed a statement of agreed facts and outcome. In that document the SRA agreed that it could not prove two allegations of dishonesty to the required standard and that making the allegations was both disproportionate and contrary to the public interest. The document was not a without-privilege document and the parties did not agree to make it confidential.

 

The application for an agreed outcome was refused and the matter proceeded to a full hearing.

 

At this point, the SRA had a choice to make. Should it apply to withdraw the dishonesty allegations? Or should it proceed to make ruinous allegations against a solicitor, having already confirmed that they did not believe those allegations could be shown to be probably true?

 

My view is that a regulatory authority should not instruct its lawyers to go before a tribunal and accuse a person of misconduct that it thinks he or she probably did not commit. It is a fundamental principle of public law that regulators must act in good faith. Prosecuting a solicitor for something one does not believe they are likely to have done is, in my opinion, acting in bad faith.

 

In civil proceedings, there is an effective mechanism to disincentivise a party from agreeing one thing with their opponent and arguing the opposite before the court. The party that goes back on a concluded agreement can expect his opponent to produce that agreement to the court in evidence (BGC Brokers v Tradition (UK) Ltd [2019] EWCA Civ 1937, paragraph 18). Its evidential weight is likely to be significant.

 

But in disciplinary proceedings, it seems that an agreed outcome is inadmissible in evidence, regardless of whether it is a confidential/without-prejudice agreement.

 

Imagine what it would feel like to be accused of dishonesty by the SRA at a public hearing just a few days after receiving a document from the SRA confirming that they believe you are probably not dishonest.

 

Before November 2019, the SRA would occasionally concede in an agreed outcome that it might not be able to prove allegations beyond a reasonable doubt. If the agreed outcome application failed, there was nothing reprehensible about the SRA proceeding anyway, because the SRA believed the respondent had probably done wrong. This has now changed. Now, when the SRA agrees that it cannot prove an allegation to the civil standard, logic dictates that the SRA accepts the misconduct was more likely not to have occurred than to have occurred.  

 

The public’s conscience would be outraged by such bad faith prosecutions. At the very least, the Solicitors Disciplinary Tribunal ought to make it clear that agreed outcomes are admissible in evidence. There is nothing in the statutory rules governing proceedings before the tribunal that would prevent such a move.

 

It would be far simpler for the SRA to stick to the high professional ideals it professes (and enforces), and not to instruct its lawyers to advance arguments in court that the regulator does not believe to be true.

 

Chris Kirk-Blythe

Umbrella Legal, Bradford

SRA crusade misplaced

I note your news item SRA assesses claims of sexual misconduct in 117 cases.

 

I joined the profession more than 60 years ago. I seem to have navigated my way through with a reasonable degree of success. This even though I am not a great academic, financial controller, banker, manager, IT expert, enforcer of detailed governance principles, diplomat, psychiatrist, spy, priest, teetotaller and monk.

 

You have to excel at all these today to operate a practice that avoids the grasp of the Solicitors Regulation Authority.

 

However, I was quite effective at client relations and attracting clients, which surely is what it’s all about.

 

The world is suffering a pandemic, climate change and severe economic problems. Parts of the profession teeter on the edge of extinction and the SRA still spends millions on a crusade against alleged stolen kisses.

 

Surely this sort of money and more should be spent on urgent aid, advice and assistance to the profession: lines of credit and cheap rate insurance should be made available; ruinously expensive inquiries into peccadilloes by partners can surely wait.

 

I’m an ordinary chap trying to live an ordinary but acceptable life. Perhaps I have reached the Groucho Marx stage. I am not sure I would wish to join a club that would have someone like me as a member.

 

Mark Finburgh

Edgware