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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Andersons Solicitors & Ors v The Solicitors Regulation Authority (Rev 1)  EWHC 3659 (Admin) (18 December 2012)
Cite as:  EWHC 3659 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) Andersons Solicitors
(2) Robert Alan Ainsworth
(3) Christopher James Anderson
(4) Peter Howard Coe
(5) Margaret Ann Hunter
(6) Paul Wade Richardson
|- and -
|The Solicitors Regulation Authority
Timothy Dutton QC (instructed by Bevan Brittan) for the Defendant
Hearing date: 6 December 2012
Crown Copyright ©
Mr Justice Walker :
|B. Legal basis for claim, and what was overlooked||9|
|B1. Summary of ground (1): open justice, and of the knock-out blows||14|
|B2. Summary of other grounds of challenge||16|
|C. The regulatory framework||29|
|C1. The Solicitors Disciplinary Tribunal||29|
|C2. The SRA||31|
|D. The SRA's publication policy||35|
|D1. The 2007 publication policy||35|
|D2. The 2010 publication policy||37|
|D3. The 2012 publication policy||38|
|E. The Rule 5 Statement||43|
|F. Events prior to the Rule 5 Statement||46|
|F1. The 2003 reprimand||46|
|F2. The 2005 disciplinary tribunal||47|
|F3. Reconsideration of Mr Anderson's reprimand||49|
|F4. Complaints adjudications in 2007 and 2008||50|
|F5. Consideration of a further referral||51|
|F6. Warning of possible publication||52|
|G. Background history and the Rule 5 statement||53|
|H. Events after the Rule 5 statement||54|
|H1. Certification by the SDT||53|
|H2. Notification to the claimants||55|
|H3. Publication decision of 11 June 2012 and response||56|
|H4. Publication decision 20 June 2012 and response||60|
|H5. Publication decision dated 25 July 2012||64|
|H6. SDT directions hearing on 27 July||65|
|[There is no section I]|
|J. Ground (1): open justice and its consequences||67|
|J1. The open justice complaint in the Grounds of Application||67|
|J2. A change of tack||71|
|J3. Consequences of the change of tack||74|
|K. Ground (2): unfair procedural policies||82|
|L. Ground (3): policy which misunderstands the law||86|
|M. Ground (4): policy outside the bounds of reasonableness.||92|
|N. Ground (5): a policy of not giving adequate reasons||111|
|[There is no Section O]|
|P. Ground (6): failure by the policy to comply with article 8||112|
|Q. Ground (7): procedural fairness: the present decision.||114|
|R. Ground (8): the law governing the decision||117|
|S. Ground (9): allegedly unreasonable decision in this case||118|
|T. Ground (10): adequacy of reasons for the present decision||119|
|U. Ground (11): breach of article 8 in relation to the decision||120|
|Annex: Ms Elliott's letter of 25 July 2012||Annex|
B. Legal basis for claim, and what was overlooked
B1. Summary of ground (1): open justice, and of the knock-out blows
B2. Summary of other grounds of challenge
(a) there was a failure adequately to take into account the likelihood that the decision would have potentially devastating consequences for the practice.
(b) irrespective of the lawfulness of the policy, its application in the present case was unlawful because it was contrary to the provisions of section 28 of the Legal Services Act 2007.
(c) the decision maker had failed adequately to take into account that the current proceedings were "largely a re-hash of an earlier, failed, prosecution" against Mr Ainsworth and Mr Coe (who are the second and fourth claimants), "and may be seen as, or close to, an abuse of process."
(d) the decision maker had failed adequately to take into account that the prosecution was "unnecessary and oppressive".
(e) the decision maker had failed adequately to take into account that for various reasons it was most unlikely that the SDT would impose any severe sanction even if it found all allegations proved. Accordingly, the effect of pre-trial publication would be out of all proportion to any public interest in knowing of the disciplinary proceedings, and that was not adequately taken into account by the decision maker.
(f) the decision in this particular case was inadequately reasoned.
C. The regulatory framework
C1. The Solicitors Disciplinary Tribunal
5. Applications in respect of solicitors, recognised bodies, registered European lawyers and registered foreign lawyers
(1) An application to the Tribunal in respect of any allegation or complaint made in respect of a solicitor, a recognised body, a registered European lawyer or a registered foreign lawyer shall be in the form of Form 1 in the Schedule to these Rules.
(2) The application shall be supported by a Statement setting out the allegations and the facts and matters supporting the application and each allegation contained in it.
(3) The application, the Statement and any documents exhibited with them shall be delivered to the Clerk together with 5 additional copies and a further copy for any second or further respondent.
6. Certification of a case to answer
(1) An application made under Rule 5 shall be considered by a solicitor member, who shall certify whether there is a case to answer.
(2) Paragraph (3) applies if
(a) the solicitor member is minded not to certify that there is a case to answer; or
(b) in his opinion, the case is one of doubt or difficulty.
(3) If this paragraph applies, the application shall be considered by a panel of three members of the Tribunal, at least one of whom shall be a solicitor member and one a Lay member.
(4) If a solicitor member or a panel decides not to certify that a case to answer is established in accordance with this rule, the application shall be dismissed without formal order unless any party to the proceedings requires otherwise.
(5) If it is certified that there is a case to answer, a clerk shall serve the application, the Statement and any documents exhibited with them on each respondent in accordance with rule 10.
(1) A clerk may give any directions deemed necessary or appropriate for the hearing of any matter brought before the Tribunal.
(2) Without prejudice to paragraph (1), directions may be made about documentation, inspection, Statements, skeleton arguments and the place or time of any hearing.
(3) A clerk may appoint a time and place for the review of the progress of the matter and shall notify the parties of the date, time and place of any such review.
(4) A clerk may refer to the Tribunal any matter for a decision or directions and the Tribunal may itself or on the application of any party make an order on such terms as to the Tribunal shall appear just
(a) to give consent to the withdrawal of an application or allegation in respect of which a case to answer has been certified;
(b) to adjourn any hearing listed for directions or for a substantive hearing;
(c) to agree to the amendment of any application or allegation or the correction of any matter;
(d) to make any directions which shall appear necessary or appropriate to secure the timely hearing of the matter.
(5) Any hearing under this rule shall be held in public unless rules 12(5) or (6) apply.
(6) No application or allegation in respect of which a case to answer has been certified may be withdrawn without the consent of the Tribunal.
(1) Unless the Tribunal has made directions in respect of the hearing, a clerk shall appoint a date for the hearing by the Tribunal and shall give notice of the date to the parties. The hearing shall not, unless all the parties have agreed or the Tribunal has so ordered, take place sooner than the expiry of a period of 42 days beginning with the date of service of the notice appointing the date of the hearing.
(2) A clerk shall arrange for the hearing date to be published in the Daily Cause List of the High Court.
(3) Subject to paragraphs (5) and (6) every hearing shall take place in public.
(4) Any party to an application and any person who claims to be affected by it may seek an order from the Tribunal that the hearing or part of it be conducted in private on the grounds of
(a) exceptional hardship; or
(b) exceptional prejudice,
to a party, a witness or any person affected by the application.
(5) If it is satisfied that those grounds are met, the Tribunal shall conduct the hearing or part of it in private and make such order as shall appear to it to be just and proper.
(6) The Tribunal may, before or during a hearing, direct that the hearing or part of it be held in private if
(a) the Tribunal is satisfied that it would have granted an application under paragraph (4) had one been made; or
(b) in the Tribunal's view a hearing in public would prejudice the interests of justice.
C2. The SRA
1 The regulatory objectives
(1) In this Act a reference to "the regulatory objectives" is a reference to the objectives of-
(a) protecting and promoting the public interest;
(b) supporting the constitutional principle of the rule of law;
(c) improving access to justice;
(d) protecting and promoting the interests of consumers;
(e) promoting competition in the provision of services within subsection (2);
(f) encouraging an independent, strong, diverse and effective legal profession;
(g) increasing public understanding of the citizen's legal rights and duties;
(h) promoting and maintaining adherence to the professional principles.
(2) The services within this subsection are services such as are provided by authorised persons (including services which do not involve the carrying on of activities which are reserved legal activities).
(3) The "professional principles" are
(a) that authorised persons should act with independence and integrity,
(b) that authorised persons should maintain proper standards of work,
(c) that authorised persons should act in the best interests of their clients,
(d) that persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independence in the interests of justice, and
(e) that the affairs of clients should be kept confidential.
(4) In this section "authorised persons" means authorised persons in relation to activities which are reserved legal activities.
28 Approved regulator's duty to promote the regulatory objectives etc
(1) In discharging its regulatory functions (whether in connection with a reserved legal activity or otherwise) an approved regulator must comply with the requirements of this section.
(2) the approved regulator must, so far as is reasonably practicable, act in a way
(a) which is compatible with the regulatory objectives, and
(b) which the approved regulator considers most appropriate for the purpose of meeting those objectives.
(3) The approved regulator must have regard to
(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and
(b) any other principle appearing to it to represent the best regulatory practice.
21 The evidential test is passed if the SRA is satisfied that there is enough evidence to provide a "realistic prospect" that the solicitor will be found guilty of misconduct, taking into account what the solicitor's case in response may be and how that is likely to affect the SRA's case. A realistic prospect of a finding of misconduct is an objective test. It means that the SDT, properly directed in accordance with the law, is more likely than not to make a finding of misconduct against the respondent. In deciding whether there is enough evidence to proceed, the SRA must consider whether the evidence can be used and is reliable.
22 The public interest test must be considered in each case when the evidential test has been fulfilled. A case will normally be referred to the SDT if a finding of misconduct is likely to lead to a fine, a suspension, a strike off, or the exercise of any other power vested in the SDT, unless there are public interest factors tending against that course of action which clearly outweigh those tending in favour.
23 A decision to refer a matter to the SDT involves balancing the factors for and against pursuing the case to the SDT carefully and fairly. Public interest factors that can affect a decision to pursue the case usually depend on the seriousness of the misconduct or the circumstances of the solicitor.
24 Generally speaking, the more serious the alleged conduct, the more likely it is that a case should be referred to the SDT in the public interest. The published criteria state that referral is likely to be needed when:
.24.1.there is evidence that the conduct was pre-.meditated, repeated, systematic or otherwise .dishonest;
.24.2.the solicitor abused a position of authority or .trust;
.24.3.a client or other person's interests have been .seriously compromised;
.24.4.any victim of the misconduct was vulnerable;
.24.5.the misconduct was motivated by any form of .discrimination;
.24.6.the solicitor's previous disciplinary history is .relevant;
.24.7.there are grounds for believing that the conduct .is likely to be continued or repeated;
.24.8.there has been financial loss or the reputation of .the profession has been damaged;
.24.9.practice rules, or requirements under statute, .have been breached and the breach is not de .minimis;
.24.10. the conduct has damaged or brought disrepute .on the administration of justice; and
.24.11.the conduct brings disrepute on the regulatory .system, such as a failure by the solicitor to deal .properly with a client complaint, failure to reply .to the SRA or failure to comply with a direction .of the SRA.
25.The criteria state that some common public interest factors against pursuing the referral to the Tribunal are:
.25.1.the SDT is likely to impose a nominal penalty;
.25.2.the misconduct was committed as a result of a .genuine mistake or misunderstanding;
.25.3.the solicitor is elderly and no longer practising;
.25.4.the solicitor is, or was at the time of the .misconduct, suffering from significant mental or .physical ill health, unless the misconduct is .serious or there is a real possibility that it may be .repeated;
.25.5.the solicitor has co-operated fully with the SRA, .in particular by providing prompt redress; and
.25.6.there has been a long delay between the .misconduct taking place and the date of the .hearing, unless:
.25.6.1 the misconduct is serious;
.25.6.2 the delay has been caused in part by the .solicitor;
.25.6.3 the misconduct has only recently come to . . light; and
.25.6.4 the complexity of the misconduct has .meant that there has been a long .investigation.
D. The SRA's publication policy
D1. The 2007 publication policy
D2. The 2010 publication policy
Publication of regulatory and disciplinary decisions
1. The Solicitors Regulation Authority (SRA) publishes regulatory decisions when it considers it to be in the public interest to do so.
2. In developing this policy we have had regard to the principles of good regulation:
- [2.1] Proportionality
- [2.2] Accountability
- [2.3] Consistency
- [2.4] Transparency
- [2.5] Targeting
3. Publishing our regulatory decisions wherever possible is an important contribution to ensuring that what we do is transparent. It informs users of legal services, and helps others to hold us accountable by helping them to assess whether we are active proportionately and consistently.
Decisions that may be published
4. It is not practicable to list all possible decisions that may or may not be published. In deciding whether a decision not listed in this paragraph should be disclosed, the SRA will apply the criteria set out below. Regulatory decisions that may be published include:
- [4.1] Findings pursuant to section 44D of the Solicitors Act 1974 and Paragraph 14B of Schedule 2 to the Administration of Justice Act 1985 when we can legally do so;
- [4.2] The imposition of conditions on practising certificates or in relation to any person we regulate when they are first imposed or materially varied (and continuing the current policy of disclosing conditions on enquiry);
- [4.3] Decisions to prosecute at the Solicitors Disciplinary Tribunal (SDT) once the Tribunal has certified a prima facie case;
- [4.4] Settlement Agreements and Issue Agreements unless otherwise stated in the Agreement;
- [4.5] Intervention decisions and the legal basis for the decision;
5. [5.1] The nature of the decision to publish in the public interest will vary depending on the decision. [5.2] Findings of misconduct pursuant to section 44D require a statutory decision to publish and the circumstances are prescribed in the SRA (Disciplinary Proceedings) Rules 2009 and attached publication criteria. [5.3] In contrast, decisions to intervene have long been published as an essential part of informing clients that their solicitor's firm has been closed down. [5.4] Similarly, [5.4.1] a referral to the SDT, once a prima facie case has been certified, will lead to a public hearing, and [5.4.2] conditions are already publicly available to telephone enquirers. [5.5] Accordingly, [5.5.1] whilst each decision in these circumstances by a staff member at caseworker level or equivalent in the relevant unit or at adjudication as appropriate will be taken on its own merits, [5.5.2] it is expected that decisions will be published unless such a staff member considers that one or more of the factors at paragraph 9 below would make such publication inappropriate.
Criteria for publication
8. Factors which support a decision to publish include:
- [8.1] The importance of transparency in the SRA's decision-making processes;
- [8.2] The importance of providing information about regulatory action against solicitors to enable, for example;
- [8.2.1] Clients or prospective clients to make informed choices about whom to instruct;
- [8.2.2] Clients and others to decide whether behaviour of concern should be reported to the SRA;
- [8.3] The need to maintain public confidence in the regulatory system by demonstrating what regulatory action is being or has been taken and why.
9. Factors which support a decision not to publish include:
- [9.1] Potential damage to the underlying purpose of a Settlement or Issue Agreement, such as where substantial redress may be provided to clients or others but there is a risk of prejudicing the position of the solicitors or others in related litigation or potential claims;
- [9.2] Inability to publish without:
- [9.2.1] disclosing a client's confidential or legally privileged information;
- [9.2.2] disclosing a solicitor's confidential medical condition or treatment;
- [9.2.3] prejudicial legal proceedings or legal, regulatory or disciplinary investigations;
- [9.2.4] a significant risk of breaching a person's rights under Article 8 of the European Convention on Human Rights.
[9.3] These factors are not exhaustive and do not prevent the SRA from taking into account other factors that it considers to be relevant.
10. [10.1] Published information will usually be limited to a short statement of the decision with brief factual details such as [10.1.1] the basis of a finding under section 44D of the Solicitors Act 1974 and the sanction imposed, [10.1.2] the reasons for imposition of conditions, or [10.1.3] the basis of a referral to the SDT. [10.2] Settlement and issue agreements will normally be published in full.
11. [11.1] Decisions will normally be published promptly but the SRA retains discretion to publish them or parts of them at a later time. [11.2] This may be necessary, for example, if an investigation or prosecution is sensitive, such as where there is a risk of prejudice to other proceedings or regulatory activity.
12. [12.1] There may be exceptional circumstances in which the SRA decides that it is in the public interest that decisions or other information should be published. [12.2] For example, in relation to an investigation giving rise to significant public concern, it may be in the public interest to disclose how the investigation is progressing or that it has concluded without an adverse finding against the solicitor.
D3. The 2012 publication policy
48 The report noted that, according to its databases, the SRA had published 2,304 separate decisions since 1 January 2008 to November 2011 with 652 of those being decisions to refer solicitors to the SDT (203 in 2009, 304 in 2010 and 145 up to November in 2011). (see CAW 1, Tab 10, pages 151 to 152 at paragraph 10). Updated figures show that in the whole of 2011 the SRA eventually published 178 decisions to refer solicitors to the SDT (excluding publication of regulatory settlement agreements) while up to 24 October 2012, the SRA has published 143 decisions to refer solicitors to the SDT (excluding publication of regulatory settlement agreements).
49 The report noted that website traffic statistics showed that the Policy had delivered very substantially improved transparency and that, although the SRA had published over 2,300 decisions up to November 2011, it had received only four judicial review applications, all four of which related to publication of decisions to bring proceedings before the SDT. The report explained that, of the applications received, two did not proceed and in the other two, the Court refused permission (see CAW 1, Tab 10, page 152 at paragraphs 12 to 15).
50 The report summarised general points and concerns raised which had been raised about the Policy as follows (see CAW 1, Tab 10, page 152 to 153 at paragraphs 16(a) to (e)):
50.1 That the SRA was breaching a duty of confidentiality to the solicitor by publishing. The SRA's view expressed in the report is that it does not owe an absolute duty of confidentiality and if a duty arises it is subject to a public interest balancing test;
50.2 That the SRA was breaching Article 8 (right to protection of private life and in this context) or Article 6 (right to a fair trial) of the ECHR or breaching the Data Protection Act 1998. The report noted in response that Article 8 is also subject to public interest balancing and that the SRA saw no Article 6 implication arising out of a decision to publish and did not accept that publication raised any issues in connection with the DPA 1998;
50.3 That the fact there was no free standing right of appeal against a decision to publish made it unfair;
50.4 That publication damaged the reputation of the firm and those within it who are not implicated in the behaviour of the person against whom action is being taken. The report highlighted that the SRA considers that identifying the entity was important for transparency and accurate identification of the individual;
50.5 That publication was disproportionate in that the potential adverse publicity and damage to reputation, especially to those practitioners with unusual names, outweighed the public interest in knowing of such decisions and that it had also been suggested that the policy may therefore discriminate against ethnic minority lawyers.
51 The report noted that at the time of the original proposal to introduce a publication policy, there was some discussion as to whether decisions to authorise proceedings before the SDT should be published at all and if so at which stage. However, as the report explains, the SRA considered that, leaving publication of a decision to refer a solicitor to the SDT until as late as, for example, the stage at which allegations have been read out in the public SDT proceedings would result in a loss of transparency affecting clients and others who would be unaware that a practitioner was facing serious allegations. The SRA considered that the adopted approach of publication, after considering representations, on certification by the SDT, was a balanced one with the element of external validation by the SDT's decision to certify (see CAW 1, Tab 10, page 154 at paragraph 22). A decision to certify by the SDT is a decision that there is a prima facie case to answer - i.e. one which should proceed to a full hearing.
52 The report also highlighted the SRA does not publish decisions in every case and explained that, since 2008 and up to November 2011, manual records (which may not therefore be complete) showed that the SRA had either decided not to publish a SDT referral, or having published then withdrawn it, in 28 separate cases. Those cases were set out in brief detail in an annex to the report (see CAW 1, Tab 10, page 170). The report also noted that in all the cases that the SRA decided not to publish, for example, because of arguments of prejudice or for medical reasons, the application to the SDT has resulted in adverse findings. In only 5 cases, the SRA removed the publication of the referral because the proceedings before the SDT were withdrawn or struck out and in only a further 3 cases, was the publication withdrawn after the SDT hearing because no order was obtained. According to manual records held by the SRA (which are reasonably accurate but may not be 100% accurate as they depend upon reports being made back to SRA staff) the SRA has not published decisions to refer solicitors to the SDT or has withdrawn publication in a further 9 cases since November 2011. In two cases proceedings were withdrawn; in two cases, the previous publication was amended owing to a regulatory settlement agreement being entered into; in two cases the disciplinary proceedings were rescinded because a regulatory settlement agreement was entered into; in once case criminal proceedings were pending and in two further cases there was no order by the SDT.
Points specifically made about the Policy in relation to SDT cases
29. Specific arguments made to us about publishing SDT cases include:
- the certification stage is too early because allegations are often amended, redrafted, withdrawn or added to;
- some published allegations are not upheld, causing reputational damage in the meantime;
- there may be inconsistency between ABSs and traditional law firms because we will make ABS decisions with no publication of temporary ("we have decided to prosecute") decisions. That is a largely inherent aspect of the problem of parallel systems, which may also be partly corrected by higher fining powers over traditional law firms.
30. Taking into account the differing views expressed, on balance, our position remains that it is appropriate that decisions to refer to the SDT continue to be published following certification by the SDT.
31. The key justification is that it is right for the public, including clients and regulators, to know that a solicitor is facing serious allegations at the SDT. Of the 387 cases in 2010, 368 resulted in a sanction, such as a reprimand, fine, suspension or strike off, or if a sanction was not imposed, the SDT decided that the matter was properly brought and awarded costs. In only 5% of cases did we not obtain any sanction or any costs. To date in 2011, we have dealt with 212 cases and in only 9 have we obtained no order. In proportionality terms the overall impact of prosecutions that are not successful (or justified) is very small and outweighed by the benefit of the public knowing of the 95% of referrals where action is taken. It could also be argued that knowing of those cases where we were unsuccessful is important in holding us accountable for the decisions we make.
32. There are also occasional incidents by which people become the victims of someone we are prosecuting at the SDT and are concerned that they were unable to ascertain that. For example, in one case from memory a clerk had bought a law firm from an elderly solicitor and there was an intervention and the section 43 procedure was instigated against the clerk. The clerk obtained employment with another law firm which was unaware of the section 43 case and allegedly stolen money. The firm were unhappy that it was not possible to discover the section 43 procedure. Indeed, the position remains that the procedure cannot be discovered (or likely SDT proceedings against a solicitor) before SDT proceedings are started. This illustrates the balance between the risk to the public in a lack of transparency and the impact on the regulated person of publication.
33. It also illustrates that it is not only consumers but also law firms that may suffer the potential adverse impact of a lack of publication.
34. A balance of transparency and fairness is struck by:
- seeking representations in advance;
- making a reasoned publication decision in each case;
- making it clear on the website that the allegations are as yet unproven because they are yet to be determined by the SDT.
- including in our published decisions a clear but brief description of the allegations, to achieve transparency without providing too much detail.
[9.2A] In all the circumstances the impact of publication on the regulated person would be disproportionate.
E. The Rule 5 Statement
1 The method of providing costs information to conveyancing clients and charges made to conveyancing clients in 2009 including that the fees set out in the client care letter and other documentation contradicted each other and that the Claimants had overcharged and/or taken unfair advantage of clients.
2 The method of providing costs information to conveyancing clients and charges made to conveyancing clients as at June 2011 including that the fees set out in the client care letter and other documentation contradicted each other, that the firm's method of providing costs information remained inadequate, unclear and/or misleading and that the Claimants had overcharged and/or taken unfair advantage of clients.
3 The method of providing costs information to conveyancing clients and charges made to conveyancing clients from 6 October 2011 was in breach of the SRA Principles 2011.
4 There was a failure to obtain clients' informed consent before retaining commissions.
5 Clients were given incorrect information regarding the Solicitors Code of Conduct's requirements on commissions.
6 In the period up to 5 October 2011, the Claimants' publicity was inaccurate.
7. From 6 October 2011 that publicity remained inaccurate.
8. Residual balances were allowed to remain on client account ledgers in breach of rule 15(3) of the Solicitors Accounts Rules 1998, and there was a failure to remedy this on discovery in breach of Rule 7 of the Solicitors Accounts Rules 1998.
F. Events prior to the Rule 5 Statement
F1. The 2003 reprimand
F2. The 2005 disciplinary tribunal
The Tribunal considered however that the combined documents (i.e. the form and the letter) gave clients all the information, and indeed the Adjudicator had confirmed that all the information was given. The front page of the standard form of instructions clearly referred clients to the back page and to the accompanying letter. The Tribunal accepted that there was a balance to be struck in ensuring the clients took note of the most important information without overwhelming them with detail. The Tribunal noted that the Respondents had made certain amendments to attempt to improve the clarity of the documents which showed a willingness on their part to respond to any criticisms. The Tribunal did not consider that there had been any deliberate misleading or lack of clarity in the original documentation nor that the use of the terms and conditions amounted to conduct unbefitting a solicitor. Allegation 2 was not substantiated.
F3. Reconsideration of Mr Anderson's reprimand
F4. Complaints adjudications in 2007 and 2008
F5. Consideration of a further referral
62 On 18 and 19 November 2009, a monitoring visit of the firm took place which resulted in a report dated 4 December 2009 (the "PSU Report").
63 The content of the PSU Report was raised with the Claimants in a letter dated 4 December 2009 to which they replied by way of letter dated 8 January 2010. Further information and representations were provided by the Respondents in their letters dated 9 April 2010, 28 April 2010, 9 June 2010, 1 and 2 June 2011 and 13 July 2011 (see paragraph 11 of the Rule 5 Statement at C/36).
64 The Claimants solicitors wrote to the SRA on 1 June 2011 (see CAW 1, Tab 10, pages 180-183) categorising the SRA's allegations as "persecution", "oppressive", "small-minded" and "vindictive". That letter went on to criticise the SRA for pursuing the proceedings because the Claimants contended that on previous occasions the firm's approach to costs had previously been upheld. The letter further criticised the SRA's investigation stating that "the attempts by the caseworker to distinguish the previous proceedings are wrong as a matter of fact; the system of charging is the same; if anything the clarity has been improved." The letter also asserted that the report had proceeded on a "fundamental flaw" and accused the SRA of showing "no sign of "constructive engagement"" and of failing to enter into a dialogue with the Claimants.
65 The SRA responded to that letter on 30 June 2011, inviting the Claimants to set out their proposals for meeting the SRA's concerns (C/142).
66 On 13 July 2012, the Claimants replied (see C/143-5) alleging that the SRA's letter had failed to respond to the firm's explanations and submissions. The Claimants' letter suggested three possible ways forward:
66.1 that the SRA caseworker review the firm's submissions in detail to say why they were wrong, although it was noted that this was not after all practical as it was asserted that it would be difficult for the caseworker to be objective;
66.2 that the matter be referred to someone else for a more objective view but for the same purpose as (a), above; or
66.3 that the matter be referred to adjudication "with a view to the Adjudicators giving a fully reasoned judgment on the matter, which will either accept your view or ours, but in either event will explain in detail why, dealing with all the arguments, as any judicial or quasi-judicial system would require."
67 The SRA sent a letter to the Claimants on 22 July 2011 responding to each of the suggestions and highlighting that the matter had been referred to the Adjudication Committee (see pages 7 to 8 of JCE1).
68 On 24 August 2011, an Adjudication Panel resolved to refer the conduct of each of the Claimants to the SDT confirming that it was satisfied that the evidential and public interest tests had been met (see pages 9 to 10 of JCE1).
F6. Warning of possible publication
I refer to our previous correspondence and now write to inform you that I have instructed Miss Kit Wingfield of Penningtons Solicitors to act for the Solicitors Regulation Authority for the instigation of Disciplinary Proceedings against you.
In due course a statement of allegations will be lodged with the Tribunal who will decide whether there is a case to answer. If the Tribunal is satisfied that the matter should proceed to hearing they will serve the proceedings on you.
Please note that if in due course the Solicitors Disciplinary Tribunal certifies that there is a case to answer, we may decide to publish details of the decision to prosecute on the SRA website. Decisions to publish are made in accordance with the SRA's policy statement on publication of regulatory and disciplinary decisions (available to view on our website www.sra.org.uk). If you wish to make representations as to why publication would not be appropriate in accordance with the policy, please write to me within the next 14 days.
G. Background history and the Rule 5 statement
50. The Respondents have contended in representations to the PSU officers dated 8 January 2010 ("KEW 1" page 191) and in representations to the caseworker dated 9 June 2010 and 1-2 June 2011 ("KEW 1" pages 410-411 and 565-602) that the client care documentation provided to conveyancing clients is not open to material criticism because:-
50.1. In previous proceedings brought by the Law Society against the Second and Fourth Respondents an allegation regarding the Firm's client care documentation for conveyancing clients at that time was, on 7 July 2005 (written reasons dated 2 September 2005), found to be not substantiated ("KEW 1" pages 435-444);
50.2. The Law Society subsequently entered into a consent order with the Third Respondent dated 4 June 2007 which was consistent with the Tribunal's findings made on 7 July 2005 ("KEW 1" pages 445-448). Following this, a Reconsideration Panel of the Law Society quashed a finding that the Third Respondent had acted contrary to Rule 1 of the Solicitors Practice Rules in connection with the Firm's 2001 costs information ("KEW 1" page 449-450); and
50.3. There have been two decisions of Adjudicators of the Legal Complaints Service, dated 18 January 2007 (case of [H] "KEW 1" page 451-455 and dated 17 April 2008 (case of [P] "KEW 1" page 659-664), who each found that the Firm's client care documentation in use in those cases in 2005-2007 did not constitute inadequate professional services.
51. It is submitted that none of the above points provide the Respondents with any defence to the allegations. In particular:
51.1. The costs documentation as considered by the Tribunal in the 2005 proceedings and in issue in the Consent Order and decision of the Reconsideration Panel was the costs documentation in use at the Firm in 2001. Copies of such documentation is attached at "KEW 1" pages 790-803). The costs documentation in this case is the costs documentation in use at the Firm from 2009 onwards which is different. In particular:
51.1.1. In 2001, the Firm only sent 2 documents containing information about costs (a client care letter and an Instructions to Solicitor Form with terms and conditions on the back). The costs documentation being considered in this case was contained in 3 documents (client care letter, Instructions to Solicitor Form and Terms and Conditions Booklet).
51.1.2. In 2001, all the Firm's costs documentation (i.e. client care letter and Instructions to Solicitor Form) was sent to the client at the same time. The costs documentation in this case (i.e. client care letter, Instructions to Solicitor Form and Terms and Conditions Booklet) was not all sent to the client at the same time the client care letter and Terms and Conditions Booklet was sent initially by email and the Terms and Conditions Booklet were sent later.
51.1.3. There is no suggestion in the 2005 proceedings that the costs documentation as sent to the client in 2001 was inconsistent and contradictory. In this case there is evidence of inconsistent and contradictory information being sent to clients.
51.1.4. There is no suggestion in the 2005 proceedings that any clients were charged more than the amounts specified in the costs documentation. In this case there is evidence of clients being charged more than the amounts specified in the costs documentation.
51.1.5. Fewer additional charges were set out in the Firm's client care letter and/or terms and conditions in 2001 than are set out in the client care letters and/or Terms and Conditions Booklets from 2009 onwards at issue in this case. The client care letters and/or Terms and Conditions Booklets from 2009 onwards contain additional charges for the following matters, none of which were the subject of additional charges made by the Firm in 2001:
[details were set out]
51.2. Previous decisions by Adjudicators of the Legal Complaints Service (which consider issues of inadequate professional services) do not bind SRA or the Tribunal (which considers allegations of misconduct). In any event, the facts before the Adjudicators in the 2 cases relied on by the Respondents were different:-
51.2.1. In the 2 cases before the Adjudicators, the clients were sent all the costs documentation at the same time, by letter. They were not sent some costs information by email and then further additional costs information subsequently by post which is what happened in this case.
51.2.2. In the [P] case, the Firm relied not only on its costs information (i.e. client care letter, Instructions to Solicitor Form and Terms and Conditions Booklet) in support of its case but on the fact that prior to exchange of contracts the client had specifically agreed, in an email sent to the Firm, to the disputed fee for acting for the mortgagee (see paragraph 2.19 of the decision at "KEW 1" page 663). That is not the position in this case. Further in the Pyott case, the Adjudicator appears to have been influenced by the fact that the client was sophisticated. That is not the position generally in relation to conveyancing clients.
51.3. The rules applicable to the Respondents' conduct in this case are the Solicitors' Code of Conduct 2007, the SRA Principles 2011 and the SRA Code of Conduct 2011. The rules applicable in the previous proceedings were contained in the Guide to Professional Conduct of Solicitors.
52. The Respondents also contended that in a letter to the Firm dated 16 September 2002 Croydon Council stated that in its opinion the Firm's terms and conditions were not in breach of fair trading legislation and/or the Consumer Credit Act ("KEW 1" page 228). It is submitted that this is irrelevant. It is not contended in these proceedings that the Firm's terms and conditions were in breach of fair trading legislation and/or the Consumer Credit Act. It is contended that the manner in which the Respondents provided costs information was not compliant with the Solicitors Code of Conduct 2007 and/or the SRA Principles 2011 and/or the SRA Code of Conduct 2011. In any event, the letter dated 16 September 2002 was written in relation to the Firm's previous terms and conditions which were materially different to the terms and conditions applicable in 2009 onwards (see paragraph 51.1 above).
53. The Respondents have also contended that they make all their charges pursuant to a section 57 Solicitors Act 1974 non-contentious fee agreement. For the reason set out at paragraph 19 above, it is at least doubtful whether clients did enter into a section 57 non-contentious fee agreement. In any event, the point is irrelevant as even if the clients did enter into a section 57 non-contentious fee agreement that does not negate the Respondents' duty to provide clear and accurate costs information. For the reasons set out above, it is submitted that they failed to do so.
54. The Respondents have contended ("KEW 1" pages 567-568, 582-583, 591-592) that it is impossible for a client to contract with the Firm on the basis of an initial email quotation without ever seeing the Terms and Conditions Booklet as no retainer is ever entered into until the client returns a written confirmation that, amongst other things, the booklet has been read and understood, and on the basis that an offer has been made in writing to provide any further explanation needed. This is incorrect. The only document which the client is asked to sign is the Instructions to Solicitor Form which is sent initially by email (and therefore could be signed and returned before the Terms and Conditions Booklet is received by post). The Instructions to Solicitor Form does not include any confirmation from the client that the Booklet has been read and understood. In any event, even if a client did sign such a confirmation, that would not mean that the Booklet had necessarily been received at the time of signature as clients may simply sign the Instructions to Solicitor Form considering it to be standard form documentation authorising the Firm to act.
55. The Respondents have also contended that in any event their costs information was clear and compliant with the requirements of the Solicitors Code of Conduct 2007. It is submitted that this is not correct, for the reasons set out above.
56. The Respondents have further denied that their charges were disproportionate or that they have overcharged clients. It is submitted that this is not correct, for the reasons set out above.
H. Events after the Rule 5 statement
H1. Certification by the SDT
H2. Notification to the claimants
H3. Publication decision of 11 June 2012 and response
I have decided that it is in the public interest for the SRA to publish this decision and details of the allegations because of the importance of transparency of the regulatory process and the ability of the public to ascertain whether a solicitor is being referred to the Tribunal and if so, the allegations to be made. None of the factors in paragraph 8 of the policy statement make it inappropriate to do so.
The publication will be entered on the SRA website at the expiration of 14 days from the date of this letter.
It is hereby confirmed that all of the allegations in the Rule 5 Statement will be defended. You may not be aware that much of the case against us in respect of the present proceedings was decided in our favour in proceedings before the SDT in 2005. I enclose a copy of Andrew Hooper QC's letter dated 1 June 2011 and draw your attention in particular to paragraphs 3, 4 and 5 from which you will note that the SDT and the High Court found in favour of the partners concerned in respect of much the same allegations which are now being put before the SDT.
This firm relies heavily upon residential conveyancing work and consequently private clients are dependent in many cases upon funding from financial institutions. As you are no doubt aware, the lending market is particularly difficult at this time and any decision to publish would in our opinion have a detrimental effect upon lenders and our panel appointment which we enjoy with all of the major lenders. The impact on this firm through the publication could consequently be extremely injurious/damaging.
We consider in all of the circumstances that the impact of publication on this firm would be disproportionate and substantially prejudicial.
As you are aware it has been necessary in the past to threaten the issue of an injunction and also to issue Judicial Review proceedings to seek redress in respect of ill-found decisions as you have noted from Andrew Hopper QC's letter of 1 June 2011. We wish to avoid wasting Court's time and further expense in seeking a Review of your decision and hereby request pursuant to the statement contained in paragraph 9 of your Policy Statement from which it is noted that the SRA may take into account "other factors that it considers to be relevant".
Please also confirm that you will give us 14 days notice in writing before you actually publish to enable us to seek urgent injunctive relief is so advised.
1. In reaching your decision did you take into account the matters contained in Andrew Hopper QC's letter (the Letter) dated 11 June 2011?
2. Are you aware that the SRA made no attempt to deal with matters contained in the Letter?
3. With reference to the last paragraph of the Letter, do you think it would have been in the public interest for the SRA to have responded constructively?
4. In reaching your decision were you aware that there have been two complaints, all of which were resolved in the firm's favour? See decision dated 17 April 2008 and decision dated 18 January 2007.
5. Are you aware that there have been no other such complaints to the SRA?
6. Given your stated concern for the public interest, why has it taken the SRA two and a half years to bring matters to this stage?
7. Do you consider the ten month delay referred to in paragraph 6 on page 3 of the Letter was in the public interest?
8. When did the SDT certify that there was a case to answer?
9. Do you consider that if the allegations are of a nature that they warrant publication, the dilatory handling of this matter by the SRA has undermined its position in making the decision to publish?
Dated 18 June 2012
H4. Publication decision 20 June 2012 and response
I can confirm that I am aware of the previous disciplinary proceedings and have had sight of Mr Hopper QC's letter of 1 June 2011.
You set out in your letter that publication of the decision will be disproportionate and substantially prejudicial because your firm relies heavily on residential conveyancing work.
I have considered your submissions about the possible consequences of publication pending the hearing before the Solicitors Disciplinary Tribunal. These submissions have to be balanced against the interests of transparency in the regulatory process and public interest and in my view they do not outweigh the principles of transparency and public interest.
In coming to this decision I have taken into consideration that the Respondents will benefit from the presumption of innocence before the Tribunal as enshrined in Article 6.2 of the European Convention on Human Rights. This case will ultimately be determined by the Tribunal which is an independent and impartial tribunal (see for example Pine v The Law Society). The publication of the decision to prosecute on the SRA's website makes it clear that the Solicitors Disciplinary Tribunal is an independent Tribunal which will reach its own decision after considering all the evidence, including any evidence put forward by the Firm. Also, that the allegations are subject to a Hearing before the Solicitors Disciplinary tribunal and are as yet unproven. Therefore, it would be clear to any lender on reading the publication decision that whilst a case has been certified by the Tribunal that the matter will ultimately be decided by Tribunal at a hearing in due course.
I note you have included a list of questions I have reviewed the questions and I am of the view that the issues raised by them do not go directly to the issue of publication but relate to the case generally and therefore I am not providing a response to these questions.
Publication will be entered onto the SRA website within 21 days of the date of this letter. If you have further representations to make please ensure you do so by no later than 11 July 2012.
so vague and formulaic that it is impossible to discern precisely why it felt that publication was necessary and proportionate in our case. The same reasoning could be used to provide justification for any publication in any case, and we believe that the SRA decision maker has simply adopted a general template for such decisions without any proper consideration of the extremely unusual facts of our case.
5. It can be seen from that Defence Case Statement that we are contending that:
a) The prosecution is based upon very similar allegations to those which were dismissed by the Solicitors Disciplinary Tribunal in 2005;
b) 2 Law Society Adjudicators have resolved in our favour complaints of inadequate professional service arising out of our terms and conditions in conveyancing transactions;
c) The local authority trading standards department has also considered our terms and conditions and they passed muster with that organisation;
d) In the light of all of that, it was natural and reasonable that the firm should continue to use the terms and conditions in conveyancing transactions.
e) The prosecution could well be categorised as an abuse of process;
f) Our willingness to enter into a dialogue with the SRA is hereby confirmed;
g) In the new world of outcome-focused regulation, the SRA ought to engage in a constructive dialogue to seek to resolve this matter without going through with the prosecution;
h) The subsidiary allegations are plainly not at all serious and should not have been brought before the Tribunal. There can be no justification for publishing those allegations to the world at large through the SRA's website.
i) The prosecution is in any event disproportionate and oppressive.
6. The effect of publication upon the firm and the individual solicitors is bound to be very serious. As a conveyancing firm, we rely upon memberships of mortgagees' panels of solicitors for much of our work. Continued membership of those panels will be called into question if the SRA publishes details of the prosecution on its website. Private clients and potential private clients will be deterred from instructing us if they consult the SRA website. Yet no practising certificate conditions have been imposed upon us (in fact the SRA has failed to issue us with practising certificates, and that is another source of dispute between us at the moment). We attach two articles from the Law Society Gazette as to the disproportionate and unfair consequences for solicitors of the policy of more or less indiscriminate publication adopted by the SRA.
7. There are also more general arguments available to us, with which the SRA will be familiar. We are aware that there was a judicial review challenge mounted last year by another firm, although the proceedings did not reach the stage of a permission hearing as the SDT hearing intervened. We set out those arguments in brief:
a. The SRA's reliance upon "transparency" is misconceived. Why does the public need to be informed where the SRA does not consider that the public interest requires the imposition of practising certificate conditions? Where the SRA has not imposed conditions on a solicitor's practising certificate pending the hearing of disciplinary allegations, the dominant purpose pursued by the SRA publication policy must be to inform the public of the activities of the SRA. This is not regulation in the public interest, but regulation in the interests of the reputation of the regulator, and hence an improper purpose.
b. It is difficult to reconcile the publication of forthcoming disciplinary proceedings with the statutory regime for imposing fines and rebukes in-house by the SRA. If, using its new powers where they are available, the SRA fines or rebukes a solicitor and proposes to publicise the matter it may not do so until all rights of appeal, including an appeal to the Tribunal, are exhausted; however, if it does not make a final decision but refers a matter to the Tribunal to make that decision, it may publicise a necessarily partial account of the referral to the Tribunal ("partial" because it reflects the accusations, and not the explanations of the accused), before any conclusion is reached. The only way this paradox can be resolved is if it is recognised that the publicity policy is not designed to address the public interest at all, but rather to demonstrate that the SRA is wedded to publicity of its own activities. The publicity is thus not in the public interest, but in the SRA's interest.
c. The Master of the Rolls has held that this approach to regulation is incorrect: see Odunlami v Law Society  EWCA Civ 1598.
d. Although this was a practising certificate appeal it concerned a regulatory decision, just as is a decision to publish. The Master of the Rolls rejected as a basis for making such a decision a desire on the part of the SRA to maintain public confidence in itself in other words what was rejected as a basis for decision-making was a desire to tell everyone what the SRA was doing publicity in the interests of the SRA's reputation, not for any legitimate public interest.
e. The publication of a decision to prosecute is always prejudicial to the individual concerned, particularly as the allegations are necessarily unproven. The public interest in being informed of unproven allegations must be weighed against the significant prejudicial effect on the individual(s) concerned, yet the SRA's default position is that there should be publication. This approach is flawed. Publicity of referrals to the Tribunal should not occur unless there is a positive need in the public interest in the given case. It is necessary, before publicity can be justified as a regulatory act by an approved regulator, to show that it is essential, on the particular facts of that case, that publicity is given to the decision, to protect the public. To adopt an alternative approach is to do that which the Master of the Rolls has said the SRA should not do, and to fail to have regard to section 28(3) of the Legal Services Act 2007.
f. The SRA and all its regulatory decisions are governed by and subject to section 28(3) of the Legal Services Act 2007:
"The approved regulator must have regard to
(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and
(b) any other principle appearing to it to represent the best regulatory practice."
g. Thus every regulatory act must be directed by the principles of proportionality and necessity ("needed" is synonymous with "necessary"). The SRA's publicity policy in its present form is incompatible with the statutory obligations of an approved regulator, in having what amounts to a 'default' in favour of publication in all cases. It simply cannot be the case that every decision to prosecute must be published; that it is necessary, essential, that it be published, in the public interest (save impliedly in exceptional circumstances). What is the public interest in publicising unproven allegations?
Had the allegation been published it could have had devastating consequences in respect of the reputation of this firm and inevitably the public would have questioned our integrity.
H5. Publication decision dated 25 July 2012
H6. SDT directions hearing on 27 July
[There is no section I]
J. Ground (1): open justice and its consequences
J1. The open justice complaint in the Grounds of Application
many who consult the SRA website may take the view that there is no smoke without fire, with disastrous consequences for the solicitor's practice.
In reality the issues are entirely distinct.
J2. A change of tack
18 Transparency and open justice. The asserted connection between pre-hearing publication of disciplinary allegations and the principle of open justice is fallacious. Open justice requires that justice should not only be done, but seen to be done. This is achieved by hearing disciplinary proceedings in public save in exceptional circumstances. The broadcasting of contested and unproven allegations for months beforehand has nothing to do with that process. In order to inform the public that disciplinary proceedings are to be heard, it is only necessary to announce this fact to the public at large a short time before the hearing, so that the press and interested members of the public can then witness the proceedings if they wish to do so.
19 This is precisely what occurs in disciplinary proceedings against barristers. Allegations against barristers are not published on the Bar Standards Board website months in advance of the hearing: instead, details of forthcoming hearings are available 2-3 weeks prior to the date of the hearing. In this way, the Bar Council reaches the correct balance between prejudice to a barrister (who is innocent until proved guilty) facing disciplinary proceedings, caused by pre-hearing publicity, and the need to inform the public about forthcoming public hearings . Much the same policy is adopted by the dentists' regulator . The GMC has no policy of publishing allegations as soon as it is clear that a case will go to a substantive hearing , but appears to publish allegations a few weeks in advance of the hearing.
J3. Consequences of the change of tack
K. Ground (2): unfair procedural policies
L. Ground (3): policy which misunderstands the law
M. Ground (4): policy outside the bounds of reasonableness.
the affected solicitor is not involved in this process at all, and will not even know that it is happening. He is not given any opportunity to make representations to the SDT as to why it should not certify a case to answer, let alone informed representations. He is not informed directly by the SDT that it has certified a case to answer. No reasons are given for the certification. It is not known whether the SDT is aware that its certification of a case to answer is the trigger for publication of the allegations by the SRA. It is believed that the SRA either certifies or does not certify a case to answer it does not pick and choose between allegations and/or solicitor Respondents. It is also believed that where the SRA is the prosecutor (cases can be brought by anyone under section 46 of the Solicitors Act 1974), the number of occasions that the SDT has declined to certify a case to answer is tiny.
????There is no hint given of any answer that there may be to the disciplinary allegations. [Footnote: The statement in the Grounds of Opposition that "The fact that the allegations are to be contested and have not been proved will be stated by the SRA when it publishes that there has been a decision to refer" is inaccurate so far as the emboldened words are concerned. There is no reference to the fact that the proceedings will be contested, and indeed the SRA will usually be unaware at the point of publication whether proceedings will be contested or not.]
????The publication notice contains the statement that "The Tribunal has certified that there is a case to answer " [Footnote: In paragraph 6.7 of the Grounds of Opposition it is stated "All that will be published by the SRA on its website will be the facts that the Claimants have been referred to the SDT, the nature of the allegations, that the matter has been referred to the Tribunal, and that nothing has yet been proved." This is also incorrect. Additionally, and importantly, the SRA also states that the Tribunal has certified a case to answer.]
????The notice ends with the statement that "The allegations are subject to a Hearing before the Solicitors Disciplinary Tribunal and are as yet unproven." The inclusion of the words "as yet" is completely unnecessary, and, along with the statement that the SRA has certified a case to answer, gives the impression that conviction of the solicitor is only a matter of time.
The consequences of publishing disciplinary information could have serious effects and there will need to be appropriate thresholds and safeguards, including the right of appeal to the SDT.
N. Ground (5): a policy of not giving adequate reasons
[There is no Section O]
P. Ground (6): failure by the policy to comply with article 8
Q. Ground (7): procedural fairness: the present decision.
R. Ground (8): the law governing the decision
S. Ground (9): allegedly unreasonable decision in this case
T. Ground (10): adequacy of reasons for the present decision
U. Ground (11): breach of article 8 in relation to the decision
Annex: Ms Elliott's letter of 25 July 2012
Ms Elliott's letter of 25 July 2012 (see section H5 of the main judgment) included the following:
4. The details of the matter being challenged
I do not agree with your assertion that I adopted a general template for making the publication decision without considering the individual circumstances of the case. I consider it will assist if I set out the chronology of dealing with the publication decision.
The decision to publish the prosecution is set out in the publication decision dated 11 June 2012 (which has previously been provided to your firm). I would however remind you that at that stage no response had been received from your firm to my letters of 13 October 2011 inviting your firm to make any representations you may have on publication within fourteen days from the date of that letter. The decision document clearly sets out the factors taken into account to decide whether or not publication of the referral decision was appropriate in the circumstances of the case. The decision document sets out that I was of the view that for this matter it was in the public interest for the SRA to publish the decision and details of the allegations because of the importance of transparency of the regulatory process and the ability of the public to ascertain whether a solicitor is being referred to the Tribunal and if so, the allegations to be made.
Thereafter I received a letter from your firm dated 18 June 2012 setting out your submissions regarding why publication should not proceed. The points you raised were that publication would be disproportionate and prejudicial as all of the allegations against the firm would be defended, and that your firm relies heavily upon residential conveyancing work and that in your opinion any decision to publish would have a detrimental effect upon lenders and your panel appointment which could be extremely injurious/damaging to your firm.
My letter of 20 June 2012 makes it clear that I have taken into account the points that you made. I referred to the issues you had raised regarding the firm's heavy reliance on residential conveyancing work explicitly. I explained to you that it would be clear to any lender on reading the publication decision that whilst a case had been certified by the Tribunal that the case would ultimately be determined by a Tribunal at a hearing in due course.
In your most recent correspondence you set out that my reasoning is "vague and formulaic". I disagree for the reasons I have set out above. I have considered the individual circumstances of the case in making my decision and taken into account the representations provided in response by your firm to my decision at each stage publication has been considered and reviewed.
I turn now to consider the points you make in your letter numbered from 4 through to 7(a) to (g).
Having considered these I note that your objections to the publication of the referral decision are essentially fourfold:
(a) prejudice to the firm and the individual solicitors (points 6 and 7(e));
(b) that the decision to publish is not made in the public interest but in the in the interests of the SRA to publicise its own activities (points 7(a) to (d));
(c) that the SRA's publication policy is incompatible with the statutory obligations of an approved regulator because the SRA's "default position" is that publication should take place (points 7(e), (f) and (g));
(d) that publication is not in the public interest because of the particular facts of this case (points 4 and 5).
I address each of these objections in turn.
Prejudice to the firm and the individual solicitors
I note that you assert that the effect of publication on the firm and individual solicitors will be serious as membership of mortgagees' panels will be called into question by the publication of the referral decision. I confirm (as I have done in my previous correspondence) that where a decision is published it is made clear in the decision itself that the allegations are contested and subject to a hearing before the Tribunal and so are as yet unproven. Further, it is also made clear that the Solicitors Disciplinary Tribunal is an independent tribunal and that it will reach its own decision after considering all the evidence, including any evidence put forward by the Solicitor(s)/firm that are the subject of the proceedings.
The Prosecution section of the SRA website at www.sra.org.uk/consumers/solicitor-check/prosecutions.page makes it clear that where there is a referral to the Tribunal that the allegations are often contested and some or all of the allegations may not be proven. Further, it is also stated on this page of our website that it is for the Tribunal to consider the evidence at a hearing and decide whether the allegations are proven to the necessary standard. There is a direct link to the above web page from the decision page itself.
Therefore it would be clear to the mortgagees' panels and both private clients and potential private clients that the allegations were yet to be tested before the Tribunal as this information is included in the publication of the referral itself and also generally on our website.
You set out that private clients and potential private clients would be deterred from instructing you if they consult the website. One of the factors supporting publication is the importance of providing information to the public about regulatory action which includes enabling prospective clients to make informed choices about whom to instruct and clients and others to decide whether behaviour of concern should be reported to the SRA.
Your letter contends that publicity of referrals to the Tribunal should not occur unless there is a positive need in the public interest in the given case. The decision to publish referrals is made in accordance with our Publication Policy which is available on our website at www.sra.org.uk/consumers/solicitor-check/publications/publication-policy.page.
I draw your attention to paragraph 1 of this policy which makes it clear that the SRA publishes regulatory decisions when it considers it to be in the public interest to do so.
Further, the SRA's publication Policy states at paragraph 8 that:
"8. Factors which support a decision to publish include:
The importance of transparency in the SRA's decision-making processes;
The importance of providing information about regulatory action against regulated persons to enable, for example:
Clients or prospective clients to make informed choices about whom to instruct;
Clients and others to decide whether behaviour of concern should be reported to the SRA;
The need to maintain public confidence in the provision of legal services by demonstrating what regulatory action is being or has been taken and why."
Decisions to publish referral decisions are therefore made following a consideration of whether there is a public interest in doing so. Publication decisions support the public interest in the public being entitled to know about cases which are referred to the SDT and so that they can have confidence in the profession and the provision of legal services in knowing that action is being taken in certain cases, and that the prosecution of allegations is not dealt with "behind closed doors", but is open to scrutiny. This is entirely consistent with the statutory objectives in section 28(3) of the Legal Services Act 2007.
Therefore, the allegation that the SRA publishes referral decisions "as it is more interested in its own regulatory activities rather than any legitimate public interest" (with the implication that there is something improper in the SRA's reasons for publishing) is unsustainable.
Self evidently as a result of publication the public will learn that the SRA considers there is a case which justifies referral to the SDT, but that is true of all decisions by regulators or prosecuting authorities to refer a case to a court or tribunal, and to publish the fact of referral. Furthermore, the hearing before the Tribunal itself will take place in public unless the Tribunal is satisfied that it would cause "exceptional hardship" or "exceptional prejudice" to a party, a witness or anyone affected or if, in the SDT's view, a hearing in public would "prejudice the interests of justice" (regulations 12(4) and 12(6), Solicitors (Disciplinary Proceedings) Rules 2007).
Further, in response to your point about the publication of decisions relating to rebukes or fines, one of the factors taken into account in considering whether or not to publish a regulatory decision is the type of decision it is. Paragraph 5 of the Publications Policy sets out the difference between publishing decisions to fine or rebuke solicitors on the one hand and decisions to refer to the STD on the other:
"5. The nature of the decision to publish in the public interest will vary depending on the decision. Findings of misconduct pursuant to section 44D require a statutory decision to publish and the circumstances are prescribed in the SRA (Disciplinary Proceedings) Rules 2009 and attached publication criteria. In contrast, decisions to intervene have long been published as an essential part of informing clients that their solicitor's firm has been closed down. Similarly, a referral to the SDT, once a prima facie case has been certified, will lead to a public hearing, and conditions are already publicly available to telephone enquirers. Accordingly, whilst each decision in these circumstances by a staff member at caseworker level or equivalent in the relevant unit or at adjudication as appropriate will be taken on its own merits, it is expected that decisions will be published unless such a staff member considers that one or more of the factors at paragraph 9 below would make such publication inappropriate."
Whether the SRA's publication policy is incompatible with the statutory obligations of an approved regulator because the SRA's "default position" is that publication should take place (points 7(e), (f) and (g));
As mentioned above, your letter asserts that the publication of decisions to refer should not occur unless there is a positive need in the public interest in the given case.
As explained above, the decision to publish referrals is made in accordance with the SRA's Publication Policy which makes it clear that the SRA publishes regulatory decisions when it considers it to be in the public interest to do so. It is not the SRA's default position to publish referral decisions and the Publications Policy does not amount to such a position. Publication is considered on its own facts in accordance with the Publication Policy.
The decision to publish has been made in this case after consideration of the relevant factors. The decision to publish in this case dated 11 June 2012 sets out that both the factors for and against publication have been weighed up, and gives the reason for the publication decision. Further, as I have previously set out I reconsidered this decision taking into account your subsequent representations dated 18 June 2012.
You refer to Section 28(3) of the Legal Services Act in support of your contention that the publication policy is incompatible with the SRA's statutory obligations as a regulator. This is unsustainable.
Paragraph 2 of the Publication Policy sets out that, in developing the policy, the SRA had regard to the principles of good regulation as set out in section 28(3) of the Legal Services Act specifically proportionality, accountability, consistency, transparency and targeting.
The decision to publish is taken on its own facts in the case and it is explicitly set out that each case should be considered on its own merits in point 5 of the publication policy (see above).
Whether publication is not in the public interest owing to the facts of this case
Having addressed the above issues that you raise, I now turn to your representation that the SRA should not publish the fact of these disciplinary proceedings. I have carefully considered the points raised by your correspondence together with enclosures and I am of the view that publication is appropriate having considered these points and the factors for and against publication as set out in the Publication Policy.
I note that the allegations are unproven but taking into account that the allegations include providing clients with misleading costs information together with the importance of transparency and providing information for prospective clients to make informed choices and balancing this against the potential damage to the individuals concerned I am of the view it is in the public interest to publish.
Your letter sets out at length your views that the prosecution is both "unnecessary" and "oppressive".
The SDT has, following a consideration of the Rule 5 Statement which enclosed correspondence and submissions from you outlining similar points to those in your letter of 9 July 2012, certified that there is a case to answer and the points that you have made will be considered at the hearing of this matter before an Article 6 compliant Tribunal. Further, in certifying your case, the Rule 5 statement specifically referred the SDT to the previous proceedings and the cases of Hazell and Pyott.
While I have considered the points that you have made I consider that they address the merits of the substantive case bought against you by the SRA which will be considered by the Tribunal in due course. Further, I consider that any issues surrounding the merits or demerits of the substantive case bought against you by the SRA are separate to the question of publication of the referral decision. Therefore, although I have read and considered the points you make at point 4 through to 5a-i) of your letter I do not consider that they raise any factors which would support a decision not to publish the referral decision as set out in the Publications Policy.
Therefore, having carefully considered your correspondence and enclosures, including your most recent letter of 19 July 2012, and the factors for and against publication, I have concluded that it is in the public interest to publish the referral decision and that your correspondence does not indicate any reason why the decision to publish the referral decision of 21 February 2012 would be inappropriate on the facts of this case.