Civil standard of proof in solicitors tribunal a mere 'Christmas list'

The Solicitors Regulation Authority’s expectation that the standard of proof in the Solicitors Disciplinary Tribunal would, before long, be lowered to the civil one has been met with surprise by the tribunal, Solicitors Journal has learned.

SRA procedure rules provide for the application of the civil standard in regulatory proceedings, but no such rule exists in relation to tribunal proceedings, where the accepted approach has been to apply the criminal standard.

The regulator has long suggested that the civil standard should apply to tribunal proceedings too. Last month the chief executive, Paul Philip, said he was confident that there was now a broad consensus in favour of the move and that the SRA was ‘pushing an open door’.

Responding to the comment, the tribunal clerk and chief executive, Susan Humble, said there had been no conversation between the SRA and the tribunal over the matter. Humble added that the SDT had the question of standard of proof ‘very much in mind’ but that, at this stage, Philip was ‘maybe expressing his Christmas list’.

Supporters of the criminal standard of proof in the tribunal rely on the 1993 High Court ruling in Re A Solicitor [1993] QB 69, where Lord Lane suggested that, in the main, where SDT proceedings involved behaviour that was ‘tantamount to a criminal offence, the tribunal should apply the criminal standard of proof’.

However, the decision in the Arslan case [2016] EWHC 2862 just four weeks ago has provided support to the argument that the civil standard should apply. Although the High Court declined to rule specifically on the standard of proof to be applied in the SDT, Mr Justice Leggatt said he agreed with ‘persuasive’ submissions that the application of a different standard in the tribunal was ‘unsatisfactory and illogical’.

Adding his own comment obiter, Mr Justice Leveson said the case underlined ‘the need for a re-evaluation of the approach to disciplinary measures intended to protect the public’.

But Humble warned that the decision in Re A Solicitor shouldn’t be read as describing a sliding scale depending on the seriousness of the offence. Instead, she said, the correct approach is that taken by the House of Lords in Re B (Children) [2008] UKHL 35.

Although Baroness Hale gave the Lords’ decision in the case, Lord Hoffmann said in a concurring opinion that ‘some confusion has been caused by dicta which suggest that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned’.

In his view, ‘clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard’.

The key point, Humble said, was about the cogency of the evidence rather than whether it’s the civil or criminal standard. ‘The more serious the offence, the more persuasive the evidence in support has to be,’ she said.

More recently, the sliding scale approach was also disregarded in the market abuse case of Hannam v Financial Conduct Authority [2014] UKUT 0233 TCC, where the Upper Tribunal said it had been ‘exposed as a heresy’. Although the normal standard is civil, the tribunal said, ‘there are some civil proceedings in which the criminal standard is applied’.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg