The Solicitors Disciplinary Tribunal (SDT) has taken the unusual step of striking out a case against two solicitors in the middle of the hearing, after the integrity of the investigation by the Solicitors Regulation Authority (SRA) was thrown into question.
The panel – chaired by SDT chairman Andrew Spooner – said the SRA’s case had been “seriously flawed from the outset and as such had proceeded on a completely erroneous and incorrect basis”.
Paul Anthony Austin and Christopher Andrew Sanders were directors of Darlington firm Austin Sanders, which closed in 2010 when it ceased trading and was placed into administration.
They were in the dock over a £34,000 cash shortage on 25 client matter balances on personal injury files, where disbursements for medical reports and counsel’s fee notes had not been paid.
However, overnight after the first day of the hearing, it emerged that instead of all 25 files being personal injury cases under the control of Mr Austin, only 21 were. Further, the SRA investigation officer’s evidence on the first day indicated that some of the money received for disbursements had come in the year before Mr Austin had conduct of the files.
Questioning from the SDT uncovered that the officer had relied on paperwork received from the firm’s administrators, including calculation of the shortfall, but had spoken to them “only a little”. The tribunal did not hear any evidence from the administrators, and the schedule of files they had provided was not sent to the solicitors, nor was it produced to the tribunal. The SRA then accepted that the schedule had not been properly investigated.
The SDT said that many of the respondents’ answers to the SRA would have been different if they had known all this. “The report produced by [the officer] was therefore inaccurate and unreliable in significant and important respects… The case had changed in important and significant respects.”
The tribunal added: “In many cases the SRA conducts its investigation thoroughly and in the public interest. However, in this case because of the shortcomings in the way in which the investigation commenced, everything subsequently was tainted. This meant that the basis of the investigation and the subsequent prosecution were unreliable and the admissions made by the respondents [which were withdrawn once this problem emerged] were arguably not made on a sound basis.”
Mr Austin represented himself, but the SDT awarded costs to Mr Sanders, who was represented.
An SRA spokesman said: “The SRA always reviews the outcomes of its cases before the SDT. We are considering carefully the judgment delivered in this case and whether there are useful lessons to be learned.”
Meanwhile, the SDT has responded to yesterday’s publication by the SRA of the independent comparative case review, which found evidence of disproportionality in sanctions imposed by the SDT on black and minority ethnic (BME) practitioners.
The SDT pointed out that it was not asked to provide evidence or become in any way involved in the review, and highlighted that fact that from 2010 to 2013, only 17 (2%) of appeals (out of a total of 848 tribunal decisions) were allowed by the High Court in whole or part.
“As far as the SDT is aware, no appeal has been successful on the ground of disproportionality in sanction imposed by the SDT on a BME practitioner,” it said.
The SDT pointed to a case in 2012 where the High Court threw out a solicitor’s challenge to the decision to suspend him, which he argued was tainted by racial discrimination. Mr Justice Haddon-Cave said that “no scintilla of discrimination of any kind is detectible”.
The statement continued: “The SDT will not be complacent and will take careful note of all Professor John’s findings. In keeping with the SDT’s mission to be independent, impartial, and transparent, the SDT will continue to apply its overriding objective to ensure that tribunal members and staff manage all cases justly, without fear or favour.
“The SDT will liaise with the members of its user group committee and others to progress Professor John’s work in a way which is in keeping with the SDT’s duty to protect the public from harm and maintain public confidence in the reputation of the profession and those responsible for the delivery of legal services.”
A full response will be published “in due course”.