Nally: Fair and realistic balance
Non-parties should in principle be given access to documents placed before the Solicitors Disciplinary Tribunal (SDT) and referred to during hearings, it has emphasised in a new policy.
Rejecting suggestions that it does not apply this in practice, the tribunal cautioned that, while it endorsed the open justice principle outlined by the Supreme Court last year in relation to court documents, it could be more tricky in regulatory proceedings.
In response to a consultation on updating its policy on supplying documents from tribunal records to a non-party, the SDT said: “The principle of open justice does not provide an automatic right to access to all documents held by the tribunal.
“The distinction between civil litigation, the context of the Supreme Court decision in Cape v Dring, and regulatory proceedings, is significant particularly as legally privileged documents (in almost all circumstances the confidentiality of which is very carefully protected for public policy reasons) will often be included as evidence.”
The new version of the policy – which comes into force on 1 June – says a non-party seeking access must explain why they seek it and how granting access will advance the open justice principle.
The tribunal will then carry out “a fact-specific balancing exercise to take account of factors such as privacy interests, confidentiality or proportionality”.
It rejected the suggestion made by individuals who responded to the consultation that its starting point was actually that it would withhold documents.
Some 21 of the 43 responses were from individuals directly affected by an “allegedly fraudulent failed investment scheme” – the Ecohouse Ponzi scheme – and they argued that the existing policy was perceived to be biased towards non-disclosure.
They also insisted that the context of the requests was not adequately taken into account, while the potential costs risks were an unfair deterrent to non-party access to documents.
Many of the further 16 individual responses raised similar or identical issues, the SDT said.
One of those recorded that, in 11 of 14 cases where non-parties have applied for disclosure since the current policy was put in place in 2017, the SDT has refused the request. Three more decisions were published this week – all refusals.
The SDT rejected the Law Society’s suggestion that applicants should be asked to confirm the purpose of a request, for example whether it was intended to publish the material disclosed, saying this would be unlikely to “elicit additional information which would assist either the parties to the substantive case or the panel considering the application”.
Birmingham Law Society’s proposal to introduce an application fee could act as a deterrent. “Given the current frequency of such applications, and the importance of public access to relevant documents to meaningful open justice, it is not proposed to introduce an application fee.”
The policy provides that legal costs will only be awarded where necessary “to prevent an injustice”.
Another addition to the policy is that any affected party to a case should have the opportunity to comment and respond to any application before a decision is made.
SDT president Edward Nally said: “The amended policy provides more detailed guidance for users and is intended to strike a fair and realistic balance between minimising costs and complexity, promoting open justice and ensuring that the interests of all those affected are taken into account.”
Mr Nally’s comments are unrepresentative.
The SDT initially refused to publish all individual responses “En masse” because they made reference to the SRA’s deplorable behaviour in relation to the Ecohouse fraud case, and one particular response heavily criticised the SDT for dismissing every lay application in the preceding 4 years and for refusing the vast majority of non-party disclosure applications. The SDT has confirmed that 13 out of 19 non-party applications have been refused over the last 5 years, with one in progress application likely to be refused also – the SDT’s default position is clear – it ordinarily refuses to grant applications, hence the call for reform by Lady Hale.
The SDT has reluctantly bowed to publishing the individual responses, all be it with considerable redactions. The responses are evidence that the SDT suppressed all arguments and concerns raised by individual responders. The SDT did not block the route for unscrupulous solicitors, who have been before the SDT on misconduct allegations, to defend themselves and subject applicants to further loss through intra party cost orders. It has permitted applications and redactions to be referred back to the SRA and SDT respondents for comment, and ignored all concerns about the Judicial Review facility for challenging refusals being unaffordable for 95% of the population. The SRA recently revealed that 67% of UK adults have less than £5,000 in savings.
The SDT has subverted the consultation process – very little has changed – this is not reform and neither is it democratic.