Guilty verdicts will 'flood' SDT with minor negligence allegations
Tribunal should only deal with cases involving â€˜manifest' misconduct, says Leigh Day's silk
Guilty verdicts against three solicitors charged with allegations of misconduct over claims against the British army will have a 'chilling effect' on lawyers' work and lead to a tribunal 'flooded' with minor negligence claims, the Solicitors Disciplinary Tribunal has been told.
Patricia Robertson QC, from Fountain Court Chambers, acts for Leigh Day founding partner, Martyn Day and fellow partner Sapna Malik, who face 19 charges of misconduct, and junior solicitor, Anna Crowther, who the Solicitors Regulation Authority allege destroyed a key document.
The charges arise from the lawyers' alleged misconduct in handling allegations that British soldiers tortured and murdered Iraqi detainees in the wake of the Battle of Danny Boy in 2004. The hearing began last week.
Robertson told the SDT that the Ministry of Defence had settled 300 claims related to misconduct and that the firm was being prosecuted on the basis of eight out of 950 claims it had brought. If the trio are found guilty, she said it could have a 'chilling effect on the willingness of lawyers to act in difficult cases' and speak out on matters of public importance.
Roberston also warned that if the SRA's prosecution succeeds, the tribunal will be 'flooded' with minor negligence allegations. The prosecutors' case, she said, relied on the basis that anything above a 'de minimis' finding of negligence should result in misconduct charges.
She suggested that, as damages claims can be made for allegations of minor negligence, the tribunal should only deal with cases involving 'manifest' misconduct.
The tribunal was also told that evidence disclosed by the MoD during a judicial review of the army's conduct during the Iraq war, strongly suggested British soldiers had abused Iraqi detainees.
In 2008 Leigh Day and Phil Shiner, the founder of the now defunct Birmingham law firm, Public Interest Lawyers, held a joint press conference at which they made the allegations public. Robertson said that Day had believed his clients were telling the truth about their mistreatment, and had tried to verify their accounts, but had been 'sucked' in by their lies.
Army officer, Colonel James Coote, told the tribunal that he felt the way the claims were made public at the press conference and in a BBC Panorama documentary had been 'inappropriate' and done with a 'sense of sensationalism'.
Coote, of the Princess of Wales's Royal Regiment, said the claims that British soldiers had murdered and tortured detainees were 'harrowing' and had put pressure on the men under his command and added to their post-war stress.
He said he felt 'dismayed and a sense of anger' that the claims had been brought in the way that they were. 'What I can say is that in 13 years, individual soldiers have been put through a very harrowing process that added stress, added strain to their lives,' Coote told the SDT.
It also emerged that Leigh Day and Shiner had fallen out over the claims that led to £30m Al-Sweady Inquiry, which found the allegations the firm made against the troops were without foundation.
Correspondence highlighted by Robertson revealed that Day complained of being 'side-lined' by Shiner, who treated his firm as 'bag-carriers' in the matter.
Shiner was struck off the solicitor's roll this year after being found guilty of misconduct and dishonesty in bringing false claims against the British army and paying referral fees to an Iraqi middleman.
Later in the week, it was reported that Paul Gott, a barrister also at Fountain Court and representing Leigh Day, told the tribunal that the defence secretary, Michael Fallon, had put pressure on the SRA to speed up its investigation into the firm and press charges, when he called for the firm and PIL to be disciplined in a debate in parliament in 2014.
Earlier in the hearing the firm admitted it had made a 'cock-up' in failing to recognise the significance of a document that identified its clients were Iraqi insurgents, rather than being civilians. The revelation led to the collapse of the public inquiry into the affair.
Robertson said that the firm accepted the significance of the document, which was a personnel list from the Office of the Martyr al-Sadr (OMS), was significant and said that it had not been deliberately overlooked.
'Not spotting its significance [at first] was a cock-up that's much regretted but it does not amount in all of the circumstances to misconduct,' she said. 'Lawyers do sometimes miss significant documents but it was not the nail that caused the kingdom to be lost. No one here is fired up by an agenda to do down the army.'
'We don't always prove to be right about how cases turn out nor always right about the judgments we make about other human beings.'
But Robertson said the OMS document was not the 'silver bullet' that brought down the whole of the inquiry, as other evidence had been involved.
In any event, the fact that the clients were insurgents, she said, did not disqualify them from having valid claims of mistreatment.
All three Leigh Day solicitors deny any wrongdoing. The hearing, which is expected to last seven weeks, continues.
Catherine Baksi is a freelance legal journalist