SDT fires starting gun over possible appeal in Leigh Day case

SRA: appeal clock ticking

The Solicitors Disciplinary Tribunal yesterday published its 214-page ruling in the Leigh Day case, meaning the Solicitors Regulation Authority now has to decide whether to appeal.

The ruling, which comes nearly four months after the overall decision clearing the firm and three of its solicitors of all allegations was announced, also details for the first time the disagreement among the three tribunal panel members – an extremely rare occurrence.

The time for appeal runs from the conclusion of the case, which is the decision on costs. The tribunal ruled that the hearing on costs should be held on the first available date 35 days after publication of the ruling.

The highly politicised case related to the firm’s conduct in acting for Iraqi nationals at the Al-Sweady inquiry, which cleared British soldiers of the most serious allegations of unlawful killing after a firefight during the Iraq war in 2004, but found there had been some mistreatment of detainees.

The controversy focused in particular on the very late disclosure of a document showing the nine detainees to have been insurgents and the delay by their lawyers in withdrawing the allegations of torture and murder.

That document contradicted what the detainees had told the inquiry and, Leigh Day said, what they told the firm.

However, only four of the charges explicitly related to this issue, and there were a host of other allegations, including that there were improper allegations made against soldiers and improper fee-sharing arrangements.

Bench chairman Simon Tinkler – a senior corporate partner at City giant Clifford Chance – and lay member Lucinda Barnett, a former chair of the Magistrates Association, cleared Leigh Day partners Martyn Day and Sapna Malik, solicitor Anna Crowther and the firm as a whole of all the 20 allegations laid variously against them.

However, Richard Hegarty issued dissenting findings in respect of 10 of the allegations. Mr Hegarty, who sat on the Law Society council for 16 years until 2005, is senior partner of Peterborough firm Hegarty Solicitors.

The differences between the three are clear from general comments made at the start of the ruling on the witnesses.

The majority view was that Mr Day and Ms Malik “demonstrated honesty in their answers” and that there was no evidence to back up suggestions made during the proceedings that they ducked or avoided difficult issues and changed their views over time.

Mr Day, it noted, gave “discursive answers to questions in cross-examination, or answered the question in a different way from how it was phrased”, but found that by and large “this was a function of the way the questions were framed, and [Mr Day’s] desire to give a full answer, rather than due to evasiveness”.

On the question of a crucial document that was not disclosed – a key element of the case – Mr Day’s explanation was “straightforward and credible”.

The tribunal said Ms Malik and Ms Crowther were “credible witnesses” and found that generally all four respondents “actively investigated regulatory requirements and tried to act in accordance with the rules”.

Mr Hegarty, however, did not consider Mr Day to be “a credible, honest or convincing witness”.

He found: “On numerous occasions [Mr Day] failed to give clear and succinct answers to straightforward questions. At times [his] answers to questions contradicted statements he had made at the relevant time or did not accord with contemporaneous documents. He endeavoured to argue that some documents did not mean what they clearly said.”

Mr Hegarty said Ms Malik was “far more credible… and was more prepared to accept that she did not always get it right”, and also criticised Ms Crowther in respect of two aspects of her evidence.

The ruling also addressed the important broader issue of whether any failure to provide a proper standard of service was a breach of principle 5 of the SRA Principles and therefore professional conduct.

The SRA said principle 5 was different from the other principles in that the seriousness of conduct was not relevant in deciding whether there was a breach.

The tribunal rejected this. There was, it said, a difference between being in breach of a rule and having committed professional misconduct.

“It seemed to the tribunal to be self-evident that a solicitor should provide a proper standard of service to his or her clients. That had always been the case, and principle 5 was an articulation of that.

“However, it did not follow that failing to provide a proper standard of service (in other words, negligence) constituted professional misconduct, and certainly not professional misconduct that should come before the tribunal.”

Negligence, it said, would need to be serious before constituting professional misconduct.

“It probably did not need to be ‘deplorable’ or possibly even ‘manifest’, but it certainly had to be substantially more than ‘de minimis’.”

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