Standard of proof

Solicitors considering appeals to the Solicitors Disciplinary Tribunal (SDT) against internal decisions of the Solicitors Regulation Authority (SRA) may be encouraged by the recent success of the solicitors in the case of Hafiz and Haque (a firm) v SRA, in which a written rebuke was set aside by the SDT on appeal.

The case is notable for a number of reasons:

• It is believed to be the first appeal of its kind against the SRA’s use of its powers under section 44D of the Solicitors Act 1974. It is unlikely to be the last, particularly if the SRA obtains the increase in fining power it has been pushing for in the last few years;
• The appeal was against a written rebuke, which is generally seen as a lesser sanction (save for the fact that a written rebuke, when published, may have unforeseen consequences for the solicitor’s reputation);
• The SDT sought submissions as to whether or not the standard of proof to be adopted was a live issue.

On its facts, the case is fairly straightforward. A firm failed to nominate a compliance officer for legal practice (COLP) and compliance officer for finance and administration (COFA) for various reasons, did not answer a question accurately at first, and was given a written rebuke by the SRA when various rule breaches were proven. Although recognising that the misconduct found by the SRA was not deliberate, intentional, or purposeful, the adjudication panel upheld the written rebuke on an internal appeal. The solicitor and firm appealed to the SDT, which set aside the findings, although it did warn the firm that it would need to ‘up its game’ in future.

Consultation debate

Of more general interest is the fact that the case highlights, once again, the ongoing dispute concerning the standard of proof to be applied in disciplinary matters. The SRA argued that the SDT should depart from its usual practice of adopting the criminal standard of proof because its jurisdiction as an appeal court was part of a self-contained statutory scheme in which the SRA had decided – after a period of statutory consultation involving the SDT – to adopt
the civil standard of proof.

The SDT members noted that the issue had been canvassed but not resolved during the consultation –something of an understatement given that this was an extremely contentious issue raised repeatedly between the Law Society, SRA, SDT, and other interested parties over about two years while the section 44D procedure was being developed. The issue became so heated that the Legal Services Board (LSB) chaired a meeting between the SDT and SRA in 2010 to try to resolve the issue while the
SRA handbook was being developed. No resolution was reached, but it was the SRA’s stated position at the time that the SDT would need to amend their procedure rules to allow the use of the civil standard. The SDT maintained that it was bound by precedent to adopt the criminal standard.

The debate on standard of proof reported in the SDT’s findings makes for interesting reading. The SRA’s submissions suggest that it is nonsensical for an appellate tribunal to adopt a different standard of proof to that used by the first instance decision maker. It may not be seen as strictly fair for the SRA to assert that the time for the SDT to indicate its intentions as to the standard of proof to be adopted was during the statutory consultation,
given that the SDT raised its objections in every forum then available to it.

Question of proportionality

In the circumstances of the particular case, the SDT declined to reach a conclusion as to standard of proof as it was unnecessary to determine the point to decide the case. The SDT found that the adjudication panel had fallen into error and had failed to give adequate reasons for parts of its decision.

For those solicitors considering appealing against internal decisions of the SRA to the SDT, it is apparent that the argument relating to standard of proof will continue to rumble on. The question may become increasingly important in the event that the SRA secures increases in its powers to impose disciplinary sanctions.

However, in the meantime, the question of proportionality must be considered: is it fair and appropriate to revisit the same argument or should the SDT maintain its position, as stated during the consultation process, that the SRA and SDT should agree to disagree? SJ

Susanna Heley is a solicitor at RadcliffesLeBrasseur

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