SDT president: Concerns over civil standard of proof “misplaced”

Nally: Sense of proportionality needed

Concerns over the decision of the Solicitors Disciplinary Tribunal (SDT) to move from the criminal to the civil standard of proof are “misplaced”, the tribunal’s president has said.

Introducing the SDT’s annual report, Edward Nally said some had expressed “great anxiety” about the change, expected to be implemented in November this year, subject to Legal Services Board approval, and opposed by the Law Society.

“I would invite you to consider the point that only a small fraction of the solicitors’ profession find themselves in the unhappy position of appearing before our tribunal,” Mr Nally said.

“In percentage terms, it is less than 1%. I sincerely hope that the percentage will continue to be at that low level.

“Without underestimating the impact upon those who are unfortunate enough to appear before the SDT as respondents, I believe we need to maintain a sense of proportionality in terms of the impact that changes to our regulatory discipline have on the overwhelming majority of the profession.”

In a contribution written to mark his retirement from the tribunal after 10 years as a member, solicitor and former Law Society council member Richard Hegarty added: “The solicitor in me says we should keep the criminal standard. The regulation lawyer in me says we have to conform to most other professions and move to the civil standard of proof.

“The decisions the tribunal makes usually have very serious consequences and I do not believe any change, if it happens, will make a great deal of difference to the difficult decisions we have to make in the retiring room.”

The annual report revealed a significant rise in the number of solicitors struck off last year – 80 in all, up from 58 in 2017 and 76 in 2016.

While the number of suspensions (20) did not change, fines were far more frequent than previous years at 85, compared with 55 in 2017 and 52 the year before. The value of the fines was nearly £1.2m – this money goes to the Treasury.

The number of applications to the SDT from the SRA fell significantly, from 141 to 2017 to 113 last year, while the number of days the tribunal sat was static at 266, reflecting that the number of actual cases heard by the tribunal during the year increased.

This was reflected in the SDT’s worst failure to meet its target of concluding 60% of cases within six months of issue: in 2018, it did this in just 39% of cases.

The cost of the tribunal, at £2.9m, has stayed at the same level in recent years, meaning the cost per solicitor has fallen to £19.95, given the ever-increasing number of practitioners.

Referring to a proposal from the SRA that there should be a lay majority on tribunal panels, Mr Hegarty said: “I hope that we will continue to have two solicitor members on each tribunal panel. It is just as important to have the trust of the profession in our deliberations as the trust of other stakeholders.

“Two solicitor members bring a breadth of experience in how a solicitor operates in practice, which in many cases is vital.”

The changes put forward by the SDT do not seek to change the solicitor majority.

Mr Hegarty also reflected on how tribunal proceedings have changed over the past decade.

“When I joined the tribunal, most of the cases were no more than a day, the papers that we received prior to a hearing were contained within a treasury tag and it was very rare that a QC appeared before us. Many of the matters were not contested. Cases were rarely taken to appeal.

“It is very different today. Boxes appear two weeks before the hearing full of lever arch files. As chairman, you often have to deal with hard fought pre-hearing applications. You then receive a succession of emails with final pleadings and skeleton arguments from all sides.

“In a recent case, I received a 70-page skeleton argument. When the hearing starts you have probably already spent hours, if not days, reading the papers.

“The hearings are now much longer and far more of them are contested. The SRA and respondents often instruct leading counsel. Legal points are hard fought and there are often applications within the hearing which have to be adjudicated on.”

This meant that the costs to the parties have risen “considerably”. Mr Hegarty said: “The tribunal members often take a sharp intake of breath when we are shown the costs schedule.”

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