Leigh Day fall-out: Questions over burden of proof in tribunal and SRA powers

---

Bennett: tribunal a credit to the profession

Friday’s ruling of the Solicitors Disciplinary Tribunal (SDT) to clear Leigh Day and three of its lawyers in the longest and most expensive prosecution ever has brought into the spotlight questions about the burden of proof in disciplinary proceedings and the Solicitors Regulation Authority’s (SRA) push for greater internal fining powers, it has been suggested.

The Bar Standards Board recently issued a consultation paper suggesting lowering the burden of proof in Bar tribunals from the criminal to civil standard, and the SRA would like to see the same at the SDT.

The Legal Services Board supports such a change, while it was also a recommendation of the Insurance Fraud Taskforce, which has been accepted by the government.

At the moment, the SRA can rebuke solicitors and fine them up to £2,000, but for any case where it believes a stronger sanction is required, it has to refer them to the SDT.

The SRA would like a much higher fining limit – under different rules for alternative business structures, it can fine firms up to £250m and individuals up to £50m, with a right of appeal to the SDT.

Paul Bennett, a partner in the Shrewsbury office of Aaron & Partners who acts for solicitors before the SDT, said: “It is a credit to the legal profession that our cases are presented fairly against a hysterical backdrop from the tabloid press and are dealt with on a standard of proof that is reflective of the individual and collective importance of the matters in dispute, beyond all reasonable doubt.

“The SRA should not be criticised for putting their case to the test. Like the CPS in the criminal courts, they will lose occasional cases by applying the public interest test and the evidential test. Justice is best served when it can be seen to be done.”

He added that the case highlighted that the SRA’s case to lower the standard of proof and to make more use of adjudicators “has no place in a modern profession”.  

Mr Bennett explained: “Openness, transparency and independence of decision making are key. Judging the evidence against the highest potential standard is part of that.

“Elements of the professional will be critical of the SRA for losing this case – instead, we should be celebrating it was properly heard before an independent tribunal. I congratulate the tribunal for the excellence it has demonstrated throughout which should give confidence to the public and the profession.”

Iain Miller, a partner at London firm Kingsley Napley and former SRA prosecutor, said: “The stakes in this process were high for Leigh Day given the seriousness of the SRA’s allegations so the firm and [the lawyers] must be hugely relieved by the outcome.  

“They have had an uncomfortable few weeks in the spotlight but I do not see a lasting impact on their business.

“Whether those in political circles will be satisfied by today’s result is a different story. It will be interesting to see if this strengthens the hand of those calling to hand more disciplinary powers to the SRA.”

Another regulatory specialist who acts for solicitors before the SDT, Jayne Willetts, of Jayne Willetts & Co in Worcestershire, said: “The outcome of the Leigh Day case is a timely reminder that it is the tribunal that ultimately decides what is and what is not professional misconduct, not the SRA.

“The majority of the allegations were based upon breaches of the principles which are general indicators as to conduct – they are not specific rules. There is scope therefore for a divergence of opinion between what is and what is not appropriate conduct.

“It is unlikely that the burden of proof played a large part in the tribunal’s decision making. The tribunal was simply not persuaded by the SRA’s view of this case. This decision may also weaken support for the SRA to have increased internal fining powers.”

Martina Hogg, a compliance consultant in Weightmans’ Compli unit, added: “There will no doubt be a post-mortem under way at The Cube following Friday’s decision in the Leigh Day case.

“Whilst it is easy to focus on the costs of the case and debate the burden of proof, for that post-mortem to yield any meaningful results the SRA need cut right down to the bone.

“The decision to investigate any case is made a long time before anyone makes an appearance in front of the SDT. In the time between the SRA deciding to investigate and the final decision at the SDT many other important decisions are made.

“Will it be a desktop investigation conducted from The Cube or will the SRA conduct the investigation on site? Is there a need for enforcement action? Can the matter be dealt with internally or is it a matter for SDT?”

Ms Hogg said she had seen a number of cases “where it appears to us that at the very early stages of an investigation the SRA are not making good decisions. This is sometimes then compounded by an unwillingness to reconsider the position”.

She concluded: “For the profession to have any faith in any process, whatever the burden of proof, it needs to be a process that has integrity from beginning to end.”

In a blog on the case, Richard Moorhead, professor of law and professional ethics at University College London, said: “I am not unsympathetic to idea that dark forces were out to get [Martyn Day]. And for what it is worth, what I did read of the SDT hearings did not suggest to me they had a good case. But also, for what it is worth, what I have read of the allegations that the SRA bent to the pressure of the government was similarly weak.

“But I want to say that my judgment here, at least, is likely to be limited – only modestly encumbered by evidence and experience. And I see the same flaws in judgments being reached by the professions and the commentators via the vehicle of questions need to be asked.

“It is certainly the case that the hearing was expensive. And that the SRA lost on all 20 counts might very well raise questions about whether the prosecution should have been brought. And that any discussion between the SRA and the government might have been inappropriate or unwise.

“But it might also be the case that the SDT is a poor tribunal. Or that the standard of proof is wrong (or right – this case may very well be an interesting and acute case study of the problems posed in disciplining lawyers).

“It is also the case that it would be worrying indeed if the good, sometimes great, and – the law of averages tells me – sometimes poor work that firms like Leigh Day does might be chilled by such judgments.

“But it is also the case that allegations of the sort that were made really do need to be investigated and, where appropriate, prosecuted. Phil Shiner tells us that, if it tells us anything. Martyn’s innocence (if that is properly how we see an acquittal) does not tell us that there is a need to find blame – not yet. And neither does it tell us we should not have a proper but balanced look to see if blame is deserved.”

Given the strength of political interest in the outcome – although it was totally overshadowed by the fall-out from the election – and disappointment expressed by the Ministry of Defence, the case could in time have implications for planned reforms of legal regulation.

Meanwhile, Colonel Richard Kemp, a former commander of British forces in Afghanistan, was quoted in The Sun as saying: “Whatever the findings of the tribunal, there is no doubt Leigh Day tormented innocent veterans with years of needless worry. The very least they can do is apologise.”