Pushing all tribunal cases through the First-tier Tribunal would be unfair

The Solicitors Disciplinary Tribunal has its flaws but it does protect solicitors, says Susanna Heley

The decision of the Solicitors Disciplinary Tribunal (SDT) to strike out a case mid-hearing this month as a result of evidence casting doubt on the integrity of the Solicitors Regulation Authority's (SRA) investigation, is a timely reminder of the value of the SDT at a time when its jurisdiction is under attack from both the SRA and the Legal Services Board (LSB), albeit in different ways.

The decision, in SRA v Sanders Austin was taken when it emerged that the SRA investigator had relied on information provided by the third party administrator of the respondents' firm.

The SRA had only limited contact with the administrator, and the SDT determined that the results of the SRA's investigation were called into question and could not be relied in. Despite the SRA's formal processes and internal checks, this issue was not identified until the investigator was cross-examined. There is a very good reason, in both public policy and fairness terms, why evidence should be tested in this way and in a public forum.

Erroneous assumption

The SRA does not always get it right. There have been cases (thankfully relatively rare) in which the SRA has proceeded to a hearing on an erroneous assumption of law or fact or where exculpatory evidence has only become available during cross-examination of witnesses. More common is where allegations are refined or amended when evidence is collated for the purposes of preparing an application to the SDT or after evidence has been submitted by the respondent.

The SRA recently consulted on a potential increase to its internal fining powers. The SRA's current fining powers are inconsistent between ABS firms, where the SRA can impose internal fines of up to £50 million on individual managers or employees and up to £250 million on the firm itself, and traditional firms, where the SRA can only impose fines of up to £2,000.

If a more serious sanction is contemplated, the solicitor or firm is referred to the SDT. Given that the average fine imposed by the SDT over the last five years has hovered around the £5,000 to £7,500 mark, based on overall figures taken from the SDT's annual report, even a small increase in the SRA's fining powers may have the consequence of removing a lot of cases from the SDT's consideration.

The LSB's assessment of current sanctions and appeals processes suggests, among other things, that all legal services appeals against regulatory decisions should go to the First-tier Tribunal - effectively removing the SDT's appellate jurisdiction.

Common system support

The report does not go so far as to recommend the complete abolition of the SDT, however, there is clear support for a common system for all legal services decisions and the LSB has always advocated the First-tier Tribunal as the appropriate home for legal services matters.

The SDT's decision in Sanders Austin is a reminder of the importance of a fair process culminating in a fair hearing. Although the SDT is not perfect, it provides an important safeguard to ensure that proceedings are conducted fairly even in the absence of those accused of misconduct. On occasion, the detailed scrutiny of the SDT is all the protection available to unrepresented solicitors or those representing themselves.

In a profession supposedly dedicated to ensuring a fair hearing for all, it is a worrying possibility that we may endorse changes to our system which erodes the right to a fair hearing for solicitors. Of course, it goes without saying that it is to the benefit of all that lessons can be learned from those who have fallen below the standards expected of solicitors, as a result of public hearings and the publication of detailed findings.

The consequences of disciplinary proceedings for solicitors can be devastating. Even relatively minor transgressions can have a huge impact on careers. The consequence of abandoning or curtailing the meagre built-in protections for solicitors and their employees - in the form of the informed and independent scrutiny of the SDT - is frightening.