SRA criticised for ‘legally misconceived’ case and costs appeal against solicitor

A KC who represented a solicitor in the High Court after the Solicitors Regulation Authority appealed a costs order following a failed prosecution has criticised the regulator's 'legally misconceived' actions. 

Speaking at the Solicitors Assistance Scheme’s annual conference, Gregory Treverton-Jones KC this week called for an investigation ‘into the whole matter’ of the SRA's investigation into Hon-ying Amie Tsang, its subsequent allegation and later appeal. Another individual speaking at the same event said the SRA’s conduct in the Tsang case was ‘a mixture of incompetence and an absolute hatred of losing’.

The SRA had brought an allegation against Tsang at the Solicitors Disciplinary Tribunal. Tsang, who managed her own firm until closing it in 2018, was alleged to have failed to give advice about the high risks of three property development schemes. The tribunal dismissed the allegations, finding that Tsang had acted reasonably within the terms of her retainer. It ordered the SRA pay costs of £74,950.

The SRA appealed the costs order but not the tribunal’s findings. The High Court dismissed the appeal on all four grounds and the judge indicated directions would follow in relation to the fifth ground, part of an amendment to the regulator’s grounds of appeal, in which the SRA disputed the validity of £15,500 of the costs order. It was eventually dismissed.

The SRA was ordered to pay Tsang’s costs of £125,950, the tribunal’s original cost order, and the appeal costs of £51,000.

Treverton-Jones,  long-time co-author of The Solicitor's Handbook,  said the fifth ground contained a ‘bizarre allegation’ that the SDT had been misled as to the costs claimed by Tsang’s former professional adviser. He said, following the High Court judgment, he was made aware that the SRA did not disclose all communications between it and the adviser.

He said: ‘Why was it not disclosed? Should not a litigant seeking permission to appeal on the basis that a court or tribunal below has been misled put the whole picture before the court? When it made its application to add a ground of appeal to allege that the SDT had been misled, the SRA had in its possession material suggesting that the SDT had been misled and material suggesting that the SDT had not been misled.

‘The overall result of this disastrous prosecution was that the SRA had to pay £126,000 in adverse costs plus its own costs of the investigation, the prosecution in the SDT, and the appeal. All of those costs were therefore borne by the profession.’

He added: ‘Ms Tsang was embroiled in a regulatory investigation, followed by a legally misconceived disciplinary prosecution and then, what was to my mind, an equally misconceived appeal, including a misconceived application to amend, for more than seven years.

‘That has been a highly stressful experience for her and her family and she had to put at risk an enormous sum of money in legal costs to establish her innocence of a disciplinary allegation which should never have been brought against her.

‘The SRA advanced a case which was simply bad in law, as conceded by the decision not to appeal the dismissal of the case. I, for one, would welcome a thorough independent investigation into the whole matter. I hope that no other solicitor is ever put through what Ms Tsang was put through over the last seven years.’

An SRA spokesperson said: ‘We are looking into this, so are not in a position to comment.’