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John Vander Luit

Editor, Solicitors Journal

SDT to consult on 'appropriate' standard of proof

SDT to consult on 'appropriate' standard of proof


Majority of professional regulators have opted for the civil standard

After long defending its decision to retain the criminal standard of proof, the Solicitors Disciplinary Tribunal has said it would consult “on the appropriate standard of proof to apply”.

All professional regulators except for the Bar Standards Board and the Royal College of Veterinary Surgeons have opted for the civil standard, and the SDT has so far remained adamant that the criminal standard should apply to tribunal cases involving solicitors.

In a consultation started in May, however, the BSB indicated that it would likely move to the civil standard and asked consultees whether it should wait until the SDT had the same inclination.

Responding just two days before the consultation closed, the SDT said it “would not wish its decisions to delay or accelerate the Bar Standard Board’s proper reflections on their own rules”.

The tribunal's response related solely to the question of whether the BSB should wait for the SDT to consider the matter, but tribunal clerk and CEO Susan Humble said: “The tribunal will itself, as part of the exercise of bringing forward its proposed new rules, be consulting on the appropriate standard of proof to apply.”

The SRA has been pressing for the SDT to move to the civil standard too. In its own response to the BSB consultation, the regulator said the criminal standard of proof meant that “the interests of individual solicitors or barristers will always be put above those of the public”.

In December last year, Humble dismissed the claim by SRA chief executive Paul Philip that the regulator was "pushing an open door" over the issue. She said Philip's comments were a mere Christmas wishlist.

The SRA has been relying on the High Court ruling in Arslan last November (2016) to further its position. Judges in the case, the SRA said, “made clear their view that the present situation in which the SDT applies a different standard of proof is unsatisfactory and illogical”.

Further, the regulator claimed, “the higher burden of proof creates an incentive for defendants to fight cases, rather than to settle them through a paper-based process”.

The SRA’s consultation response was filed within days of the regulator failing to convince the SDT – after a seven-week hearing costing an estimated £10m – that Leigh Day and three of its lawyers, including co-founder Martyn Day, were in breach of solicitors rules over claims of torture brought against the British Army in Iraq.

The SRA is yet to indicate whether it will appeal against the ruling. Speaking last week at a briefing following the regulator's monthly board meeting, Philip said the SRA would decide once it has had a chance to consider the decision, which is expected to be published in the next few weeks. 

Philip suggested this could depend on the arguments developed by tribunal member Richard Hegarty, who dissented from the majority on a number of points. He said the SRA would only lodge an appeal if it was satisfied this would be in the public interest.

Jean-Yves Gilg, editor-in-chief | @jeanyvesgilg