The First-tier Tribunal has upheld the decision of the Legal Services Board (LSB) not to release an email exchange with the Solicitors Regulation Authority (SRA) over the Leigh Day case.
It did, however, emerge during the hearing that the emails were part of the oversight regulator’s investigation of the Law Society into a potential breach of its internal governance rules, which led in May 2018 to an unprecedented censure of the society.
However, the LSB’s 103-page report made no mention of the case, which saw the law firm and three of its lawyers cleared of misconduct in their work acting for Iraqis suing the Ministry of Defence.
The applicant Tim Bullimore, who has made Freedom of Information requests of various regulators about the case, asked the LSB to disclose any communications it had with the SRA over the prosecution.
The LSB disclosed some of it but not certain emails on the basis that they contained ‘restricted information’, defined in the Legal Services Act 2007 as information the LSB obtains in the exercise of its functions.
Section 167 of the Act prohibits the LSB from releasing such information, unless certain conditions in section 168 are met.
In turn, section 44 of the Freedom of Information Act 2000 provides an absolute exemption from public bodies having to disclose any information where there is a statutory prohibition from doing so.
Mr Bullimore, a one-time solicitor and barrister, appealed the LSB’s refusal to the Information Commissioner, who upheld its decision. He appealed on to the First-tier Tribunal, where Judge Moira Macmillan rejected the multiple arguments he made to counter the LSB’s position.
She ruled that the investigation was the exercise of one of the LSB’s functions and, having viewed the emails, found that the information contained “explicitly” engaged section 167.
“Unfortunately for the appellant, it is not possible to explain the basis of this conclusion in any more detail, given the restrictions of section 167.”
The judge rejected the submission that the LSB should have sought Leigh Day’s consent to disclose the information.
Though section 168(3)(d) does allow for this, the LSB was under no obligation to do so and “I am satisfied that the reasonableness or otherwise of the LSB’s choice in this regard is not a matter this tribunal should consider”.
This would have to be pursued by way of judicial review, she said.
Judge Macmillan concluded that the LSB was entitled to rely on the section 44 exemption to refuse to disclose the information.
Mr Bullimore said his interest in the case was as a member of the public trying to understand why the SRA spent so much of the profession’s money on the Leigh Day case and why the LSB was discussing it with the SRA when the case was still live.
He told Legal Futures that the LSB could have disclosed the information under section 168 but chose not to: “I struggle to see how the LSB can urge regulators to be more transparent when it seems reluctant to display that characteristic itself.
“It says that it is keen to illustrate its own openness, but it has spent 18 months avoiding disclosing correspondence which it received from the SRA about a failed prosecution which cost the profession at least £3m.
“That correspondence was apparently received by the LSB during an investigation into the Law Society’s monitoring and oversight of the SRA, which is surely a matter calling for complete transparency…
“I cannot see how this increases the public’s trust in legal services or enhances the reputation of the LSB as a transparent oversight regulator.”
The information that the LSB did release included a record of a meeting between then LSB chief executive Neil Buckley and his SRA counterpart Paul Philip, in which Mr Buckley wrote: “The intimation was that the government are very unhappy about the outcome of the Leigh Day case.
“Paul affirmed that when it is published they would look at the decision and decide whether to appeal [it did and was unsuccessful]. He was very sceptical about [the view of the then clerk to the Solicitors Disciplinary Tribunal] that the Leigh Day case did not turn on the issue of the criminal standard.”
At the time, the SRA was lobbying for the standard of proof in the tribunal to change to the civil standard, which was subsequently happened.
Another internal email from Mr Buckley recorded that, in relation to interaction between the SRA and the Ministry of Defence during its investigation, Mr Philip was “keen to emphasise that everything that occurred was very proper and that there had never been any discussion of the case or lobbying by MoD about what they should do.
“Paul did confirm that they had used it as an opportunity to set out their general views on the SDT, burden of proof and alternative ways that disciplinary cases could be considered.”
This lobbying came out in the SRA’s release of correspondence with the government in late 2018.