The Solicitors Disciplinary Tribunal (SDT) has promised to make “open justice” central to its response to requests from non-parties for access to papers used at disciplinary hearings.
An independent analysis, seen by Legal Futures, has found that in 11 of 14 cases where non-parties have applied for disclosure since 2017, the SDT has refused the request.
In a consultation on its new policy, the SDT said the principle of open justice should be “the starting point, and central to” the correct approach to dealing with requests from non-parties.
The tribunal referred to the ruling of Lady Hale at the Supreme Court in Cape Intermediate Holdings v Dring in July, in which she said that the “default position” should be that the public should be allowed access not only to the parties’ written submissions and arguments, but also to the documents placed before the court.
However, the SDT said non-parties did not have “an automatic right” to access and a “non-party seeking access must explain why they seek it and how granting access will advance the open justice principle”.
The tribunal would then carry out a “fact-specific balancing exercise”, taking into account factors such as privacy interests, confidentiality and proportionality.
Nine of the SDT hearings in the analysis took place this year. The only successful application resulted in the disclosure of the names of certain companies. The tribunal refused to release the names of the individuals involved without a court order.
In one of two earlier cases, in 2017, the Solicitors Regulation Authority’s (SRA) rule 5 statement – which sets out the allegations and background facts – was released to a non-party, without exhibits. The SRA’s position, with which the SDT agreed, was to refuse further disclosure.
The stance taken by the SRA, in the 12 cases where it was recorded, was to oppose disclosure in seven cases, remain neutral in four, and oppose disclosure beyond the rule 5 statement in the remaining one.
Documents requested by non-parties ranged from the trial bundle, to witness statements, unanonymised judgments, and material considered by the tribunal in deciding on costs.
In at least 12 of the cases, the non-party was not legally represented. One of the 14 cases involved a decision by the SDT which was not published, and as a result there are no details relating to it.
The SDT stressed in the consultation paper that parties to hearings could “at any stage” make an application for an order that there should be no disclosure to non-parties.
The tribunal also said it had the power to award inter-partes costs in relation to non-party disclosure applications, though it would not “ordinarily” do so except in cases where it was necessary to prevent injustice.
Applications for non-party disclosure would be dealt on the papers “unless exceptional factors apply”, or unless they are made during the hearing.
The tribunal added that it had “no power to order the parties to carry out sifting, redacting, editing or anonymisation of documents to facilitate disclosure”.