[1]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 [2] 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.”