Shiner judgment holds a stark message for solicitors
By Sr Duran-Corretjer Duran-Corretjer
The duty to disclose evidential issues affecting a client's case is onerous, but solicitors engaging in public law litigation must be aware of it, warns Patrick Gaul
The case of Phil Shiner has understandably attracted considerable media attention. In pursuing legal claims against British soldiers, Shiner, of Public Interest Lawyers, claimed that Iraqi civilians had been tortured and killed while being detained. This was subsequently contested by the 2014 Al-Sweady inquiry report, which found that those who died had been members of an army militia and were killed in exchanges of gunfire. The five-year-long inquiry cost over £22m, before a concession by PIL that there was ‘insufficient evidence’ to support a finding of unlawful killingled led to its effective collapse in March 2014.
Shiner also subsequently admitted that he had paid an Iraqi middleman to find claimants, a practice that is in breach of professional standards.
The politically charged nature of the inquiry and the controversy caused by the allegations against British troops inevitably led to a high-profile prosecution of Shiner, a figure who had been much feted and honoured for his work in this area. The Solicitors Regulation Authority charged him with multiple breaches of the Code of Conduct and he was struck off in February of this year. In March the lengthy judgment of the Solicitors Disciplinary Tribunal was published.
Evidential difficulties
It is clear from the judgment that most of the charges against Shiner concerned unlawful referral fees (paying a Mazin Younis for referring Iraqi clients to the firm); charging referral fees on public law cases; and entering into arrangement fees which amounted to unlawful contingency agreements. The link from Shiner’s conduct to the collapse of the public inquiry is, however, really only to be seen in the allegations that he failed in his duty of candour. He did not disclose to the court that there were discrepancies in the accounts of witnesses (his clients); that the main protagonist (client 10) had used threats of violence; and that there were discrepancies in client 10’s statements.
The SDT’s judgment demonstrated no sympathy for the fact that Shiner was also, metaphorically, in the firing line, doing difficult and dangerous work himself. There are clear findings that he should have made his clients’ counsel, the court, and the Legal Aid Agency (which may be bringing a claim against him) aware of these evidential difficulties.
On notice
So the message is a fairly stark one and puts all solicitors engaged in public law litigation (and indeed any litigation perhaps) on notice of what can sometimes be a very onerous duty in which the solicitor is almost inevitably in a position of conflict with his or her client in terms of privilege and confidentiality. In any litigation it is fairly common for there to be discrepancies in evidence, particularly when witnesses are recalling events from long ago.
Shiner made admissions in relation to many of the charges and he did not appear to give evidence himself. On the crucial charges of failing to report or disclose evidential issues affecting his clients’ case, one cannot help but feel that the collapse of the case and the eventual outcome of the inquiry had a major bearing on the charges brought against him. The commencement of a separate case against the law firm Leigh Day, which also brought claims for compensation against the British Army, means this matter is far from over. These proceedings are being heralded as potentially the longest and most expensive prosecution in the SDT’s history and the firm and its partners deny any wrongdoing.
Whether that judgment will hold more food for thought for those involved in litigation remains to be seen.
It must be said that the Shiner case is a very sad morality tale of a once highly thought of solicitor who ended up disgraced. It is also clear the tribunal thought he was motivated by reputational enhancement and commercial gain. In some respects one has a sense that politics played its part and the benefit of hindsight came in to play.
Patrick Gaul is a partner specialising in professional negligence at Weightmans