Andersons Solicitors & Ors v The Solicitors Regulation Authority (Rev 1) [2012] EWHC 3659 (Admin)

[2012] EWHC 3659 (Admin)

Case No CO/8736/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Date: 18/12/2012, revised 17/01/2013

Before

MR JUSTICE WALKER

Between

(1) Andersons SolicitorsClaimants

(2) Robert Alan AinsworthClaimant

(3) Christopher James AndersonClaimant

(4) Peter Howard CoeClaimant

(5) Margaret Ann HunterClaimant

(6) Paul Wade RichardsonClaimant

The Solicitors Regulation AuthorityDefendant

Gregory Treverton-Jones QC and Vikram Sachdeva (instructed by Andersons Solicitors) for Claimants

Timothy Dutton QC (instructed by Bevan Brittan) for Defendant

Hearing Hearing date: 6 December 2012

Judgment

Introduction

[1]In this application for judicial review the first claimant is a firm of conveyancing solicitors. The second to sixth claimants are partners in the firm. The defendant is the Solicitors Regulation Authority (“SRA”). It has made allegations against the claimants which are to be dealt with at a substantive hearing before the Solicitors Disciplinary Tribunal (“SDT”). The hearing is currently scheduled to take place over a period of 4 days beginning on 28 January 2013. There are five allegations which are to be tried. These are allegations 1 to 5. They are variously concerned with failing to provide clients with adequate costs information, providing clients with misleading costs information, overcharging and taking unfair advantage of clients, and failing to obtain clients’ informed consent before retaining commissions. Three allegations are admitted and are to be dealt with at the hearing on that basis. Allegations 6 and 7 are concerned with publicity which contained inaccurate references when setting out regulatory information. Allegation 8 concerns permitting residual balances to remain on client account ledgers.

[2]Under a 2010 policy statement, which was applied in the present case, the default position is that allegations which are to be heard by a tribunal, including the names of the affected solicitors, are published by the SRA once the tribunal has certified a case to answer. This is something which will happen well in advance of any eventual substantive hearing to determine whether the allegations are made good. The same default position, under which there is a “case to answer trigger” for publication, is adopted under a revised policy which came into force in July 2012.

[3]Mr Treverton-Jones QC and Mr Sachdeva appear on behalf of the claimants. They accept that the substantive hearing in January 2013 will be in public and that as a result there can be no objection to the SRA identifying the claimants and the allegations against them during a period which might be as long as three weeks before the hearing. Their assertion, however, is that publication by the SRA of the allegations identifying the claimants any earlier than this would be unlawful. It is an assertion which is new, in the sense that it was not advanced until relatively recently. The thinking which underlies the late adoption of this assertion (which I shall refer to as “the 3 week maximum assertion”) is, in my view, key to the inevitable outcome of this application. As I explain in section J1 below, prior to the adoption of the three week maximum assertion, the claimants’ stance was that there could be no publication of the allegations before the public disciplinary hearing had begun.

[4]It was to prevent such publication that on 16 August 2012 the claimants issued their application for permission to apply for judicial review. In that claim they challenged the SRA’s policy and procedure for publication of details of allegations made against solicitors which are to be heard by the SDT, and the implementation of that policy in relation to the allegations made by the SRA against the claimants. Permission was granted on the papers by Wyn Williams J by an order dated 19 October 2012, with a direction that the hearing take place by 21 December 2012. The court gave this matter priority over other urgent business so that the hearing could take place before me on 6 December 2012.

[5]At the outset of the hearing Mr Treverton-Jones sought an order for anonymity of the claimants under CPR 39.2 (4). He observed in that regard that the whole purpose of the application for judicial review is to protect the claimants from prejudice caused by adverse publicity. Mr Dutton QC, who appears on behalf of the SRA, noted that the application for an anonymity order was very late: see Pink Floyd Music Limited v EMI Records Limited

[2010] EWCA Civ 1429

. However the SRA did not object to such an order.

[6]I granted an interim anonymity order only. This was that, until further order, the identity of the claimants was not to be disclosed, and for that purpose they were to be referred to as C1 to C6 respectively. When giving judgment on 18 December 2012 I directed that the interim anonymity order should come to an end on 7 January 2013. Accordingly this judgment, which will not be published until after that date, is not anonymised.

[7]The reason I granted the interim order was that any other course would defeat the purpose of the application for judicial review. Mr Treverton-Jones acknowledged that anonymity ought to have been sought well in advance of the hearing. In that regard I draw attention to paragraphs 62 to 69 of the judgment of Lord Neuberger MR in the Pink Floyd Music case. By analogy with what is said in paragraph 68 of that judgment, in the present case the order for anonymity should have been sought when seeking permission to apply for judicial review.

[8]The matters dealt with in this judgment are as follows:a. A. Introduction 2

b. B. Legal basis for claim, and what was overlooked 4 B1. Summary of ground (1): open justice, and of the knock-out blows 5 B2. Summary of other grounds of challenge 5

c. C. The regulatory framework 7 C1. The Solicitors Disciplinary Tribunal 7 C2. The SRA 9

d. D. The SRA’s publication policy 13 D1. The 2007 publication policy 13 D2. The 2010 publication policy 14 D3. The 2012 publication policy 17

e. E. The Rule 5 Statement 21

f. F. Events prior to the Rule 5 Statement 22 F1. The 2003 reprimand 22 F2. The 2005 disciplinary tribunal 22 F3. Reconsideration of Mr Anderson’s reprimand 23 F4. Complaints adjudications in 2007 and 2008 23 F5. Consideration of a further referral 23 F6. Warning of possible publication 25

g. G. Background history and the Rule 5 statement 25

h. H. Events after the Rule 5 statement 29 H1. Certification by the SDT 29 H2. Notification to the claimants 29 H3. Publication decision of 11 June 2012 and response 29 H4. Publication decision 20 June 2012 and response 31 H5. Publication decision dated 25 July 2012 35 H6. SDT directions hearing on 27 July 36 [There is no section I] 36 J. Ground (1): open justice and its consequences 36 J1. The open justice complaint in the Grounds of Application 36 J2. A change of tack 37 J3. Consequences of the change of tack 38 K. Ground (2): unfair procedural policies 39 L. Ground (3): policy which misunderstands the law 40 M. Ground (4): policy outside the bounds of reasonableness. 41 N. Ground (5): a policy of not giving adequate reasons 46 [There is no Section O] 46 P. Ground (6): failure by the policy to comply with article 8 46 Q. Ground (7): procedural fairness: the present decision. 46 R. Ground (8): the law governing the decision 47 S. Ground (9): allegedly unreasonable decision in this case 47 T. Ground (10): adequacy of reasons for the present decision 47 U. Ground (11): breach of article 8 in relation to the decision 48 V. Conclusion 48 Annex: Ms Elliott’s letter of 25 July 2012 49

Legal basis for claim, and what was overlooked

[9]During the course of these proceedings the claimants’ complaints have been put in various ways. They were formulated in Grounds of Application submitted with the claim form. To an extent they were reformulated in a reply to the summary grounds of defence (“the Reply”). Points made in the Grounds of Application and the Reply were sensibly re-ordered and refined in the skeleton argument for the hearing (“the claimants’ skeleton argument”). They were further refined in the oral submissions at the hearing.

[10]However none of the documents in the proceedings drew attention to a directions hearing before the SDT which had taken place in public on 27 July 2012. At the outset of the hearing before me I asked whether any publicity had been given to the allegations against the claimants. It was only in response to my question that the court was told of the 27 July hearing.

[11]What is now apparent is that a public SDT directions hearing will often take place, and in this case has already taken place. For reasons which I explain below, in my view these two facts mean that these proceedings, as regards complaints both about the policy and about the decision in this particular case, are misconceived. In effect these two facts constitute knock-out blows to the whole of the present application. Additionally, they are facts which ought to have been disclosed by the claimants to the court when seeking permission to apply for judicial review. Unfortunately their significance was – innocently, I am sure – overlooked.

[12]I was initially inclined to think that I should confine this judgment to the knock-out blows. In case my reasoning on them may be wrong, however, I shall also deal with the main arguments advanced by the claimants on the assumption that there are no knock-out blows. For reasons which I explain below, even without the knock-out blows the claimants’ application for judicial review would not have succeeded.

[13]At no stage have the heads of complaint been set out in numbered grounds corresponding to the well established bases upon which a judicial review challenge can be brought. For the purposes of analysis it is desirable to do so. Later in this judgment I seek to work through the various grounds on which the claimants have asserted first, that the SRA’s policy was unlawful, and second, that the SRA’s decision to publish in their particular case was unlawful. For the purposes of this judgment I identify an initial ground which provides a convenient introduction to the knock-out blows: as to which, section B1 below summarises matters dealt with in section J below. Section B2 below summarises the other grounds, which are dealt with in sections K to U below.

B1. Summary of ground (1): open justice, and of the knock-out blows

[14]Ground (1) comprises what was set out at paragraph 16 of the Grounds of Application, where it was said that the policy was based on false logic, and paragraph 33 (c) (1), asserting that pre-trial publication is “entirely distinct” from fair reporting of the disciplinary hearing itself. The false logic was described as reasoning from the facts that the disciplinary hearing will take place in public, and the allegations will be determined in public, to a conclusion that those allegations should also be communicated to the public at large.

[15]It is when discussing ground (1) in section J below that I deal with the two facts which in my view constitute knock-out blows. I also deal in that discussion with the reasons why these two facts render the present application misconceived.

B2. Summary of other grounds of challenge

[16]As explained above, I only turn to deal with other grounds of challenge lest my reasoning on the knock-out blows may be wrong. In doing so I observe that if I am right then the exercise may not be a useful one, and that in any event it is not straightforward. What I attempt to do below is to identify the heads of complaint by way of numbered grounds in a structure which corresponds to the well established bases upon which a judicial review challenge can be brought.

[17]Ground (2) concerns allegations that the SRA’s policy involved unfair procedures.

[18]Ground (3) comprises different ways in which it was said that the SRA had misunderstood or misapplied the law governing its powers – what Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service

[1985] AC 374

, 409 referred to as “illegality”. It was not always clear whether a particular complaint about the policy alleged illegality or unreasonableness (the next ground of challenge dealt with below). Where this was not clear I have dealt with the complaint under both heads.

[19]Ground (4) comprises assertions that the default policy of publication of unproven allegations was vitiated by unreasonableness.

[20]Ground (5) asserted that the SRA failed to produce properly reasoned decisions tailored to the facts of each individual case.

[21]Ground (6) relied upon the obligation imposed by section 6(1) of the Human Rights Act 1998 on public authorities to act compatibly with

Article 8 of the European Convention on Human Rights

[22]Grounds (7) to (11) comprise matters relating to the decision in this particular case. It was said at paragraph 34 of the Grounds of Application that, quite apart from the unlawfulness of the policy as a whole, the decision was “disproportionate and unlawful, and … it was therefore irrational to make the decision to publish.” Paragraph 34 added that much the same points as had been made about the policy were relevant to the challenge to the decision. For that reason the points on the decision were not set out at any length. Instead 6 points were identified by way of summary. I shall refer to them as paragraphs 34(a) to (f):(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.

[23]When dealing with complaints about the decision in the present case I shall, for the purposes of analysis, adopt a similar structure to that used for complaints about the policy.

[24]Ground (7) comprises complaints about the fairness of the procedure used to take the decision in the present case.

[25]Ground (8) comprises complaints of failure to understand and apply the law governing the decision in the present case.

[26]Ground (9) comprises complaints that the decision in the present case was vitiated by unreasonableness.

[27]Ground (10) concerns an alleged failure to provide adequate reasons for the decision in the present case.

[28]Ground (11) comprises respects in which it is said that the decision in the present case failed to comply with the European Convention on Human Rights. The regulatory framework

C1. The Solicitors Disciplinary Tribunal

[29]The SDT is established under section 46 of the Solicitors Act 1974 (“the 1974 Act”). It is an independent tribunal comprising two legally qualified members and one lay member. Among other powers it may strike off a solicitor or suspend a solicitor from practice. Under section 31 of the 1974 Act any person can make an application to the SDT. In practice, the vast majority of applications are made by the SRA.

[30]The current rules governing procedure in the SDT are the Solicitors (Disciplinary Proceedings) Rules 2007. So far as material, they provide: 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. … 11.— Directions (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. 12.— Listing (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. (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. (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. (a) exceptional hardship; or (b) exceptional prejudice, (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

[31]The Law Society has long had regulatory functions concerning solicitors in England and Wales. The statutory framework for regulatory functions relevant to the present case is found in the Legal Services Act 2007 (“the 2007 Act”). Under the 2007 Act the position in broad terms is that the Law Society has been designated an “approved regulator”, certain activities of solicitors including conveyancing are “reserved legal activities”, and those who are qualified to act as solicitors are “authorised persons”.

[32]As an approved regulator the Law Society must comply with sections 1 and 28 of the 2007 Act: 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. (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. (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. (a) which is compatible with the regulatory objectives, and (b) which the approved regulator considers most appropriate for the purpose of meeting those objectives. (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.

[33]The SRA is a board within the Law Society. Under the Law Society’s General Regulations it exercises all monitoring, regulatory, investigative, adjudication, disciplinary, intervention, prosecution, enforcement, civil litigation and costs recovery powers vested in the Society or its Council. Plainly when performing those functions on behalf of the Law Society the SRA must comply with sections 1 and 28 of the 2007 Act.

[34]Among its other responsibilities the SRA carries out investigations in relation to the conduct of solicitors and their employees. In the light of the outcome of any such investigation it decides what (if any) further regulatory or disciplinary action to take. In order to decide whether to refer a matter to the SDT, the SRA applies its published Code for Referral to the SDT. Under the Code, the conduct of a solicitor will only be referred to the SDT by the SRA if both an evidential test and a public interest test are met. The two tests were described in paragraphs 21 to 25 of the witness statement of Carol Westrop, head of legal policy at the SRA: 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. 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. 25.1 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. The SRA’s publication policy

D1. The 2007 publication policy

[35]In 2007 the SRA conducted a public consultation on proposals for the modernisation of regulatory decisions. A number of the proposals concerned publication of regulatory decisions, among them decisions to refer a solicitor to the SDT. A report to the SRA board noted that 44 per cent of those responding were in favour of publishing such decisions. Having considered that report the SRA decided in May 2007 that decisions to refer to the SDT should be published once the SDT had certified a prima facie case [i.e. certified a case to answer under Rule 6]. A report to the SRA board in September 2007 described a redrafted policy statement which proposed “that these [certified referrals] may be published with immediate effect “since SDT proceedings are to a large extent in the public domain in any event.”

[36]Further consideration of the draft policy statement occurred at meetings of the SRA board and its compliance committee. The relevant policy became operational on 1 January 2008.

D2. The 2010 publication policy

[37]The decision challenged in the present case was taken under the SRA’s 2010 publication policy, which incorporated minor technical changes. So far as material, with additional numbering by me in square brackets, it stated: Publication of regulatory and disciplinary decisionsPolicy statement Introduction 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. … Publication of regulatory and disciplinary decisionsPolicy statement Introduction

• [2.1] Proportionality

• [2.2] Accountability

• [2.3] Consistency

• [2.4] Transparency

• [2.5] Targeting Decisions that may be published

• [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;

• [4.3] 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; Criteria for publication

• [8.1] The importance of transparency in the SRA’s decision-making processes;

• [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.

Article 8 of the European Convention on Human Rights

D3. The 2012 publication policy

[38]Ms Westrop’s statement records that she drafted a report which was submitted to the Regulatory Risk Committee (previously known as the Compliance Committee) in February 2012. Among other things, the report drew attention to comment in the legal press, and in a letter dated 18 November 2011 from the Law Society, in relation to the fairness of the SRA publishing decisions to take proceedings at the SDT.

[39]Certain aspects of this report were dealt with, and in some respects updated, in paragraphs 48 to 52 of Ms Westrop’s statement: 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. 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.

[40]Paragraphs 29 to 34 of the report need to be set out in full: 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. Points specifically made about the Policy in relation to SDT cases

• 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;

• 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.

Points specifically made about the Policy in relation to SDT cases

[41]At its meeting on 6 February 2012 the Committee considered the report and approved a proposed amended policy, subject to revisions. One such revision was that summaries of allegations would be updated once the relevant amendment had been accepted by the SDT. With the incorporation of those revisions, the SRA’s 2012 publication policy was issued on 13 July 2012.

[42]Among the changes additional to that mentioned above, a new bullet point was inserted in the section entitled “factors which support a decision not to publish include…”. This new bullet point was: [9.2A] In all the circumstances the impact of publication on the regulated person would be disproportionate.

The Rule 5 Statement

[43]As noted earlier, under Rule 5 an application to the SDT in respect of any allegation or complaint made in respect of a solicitor must be supported by a Statement setting out the allegations and the facts and matters supporting the application and each allegation contained in it. The Rule 5 Statement in the present case was dated 20 February 2012. It identified the eight allegations mentioned in section A above. They can be summarised in more detail in this way: 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.

[44]As noted below, each of allegations one to five was contested. Allegations 6, 7 and 8 were admitted. It was said by the claimants that if those allegations had stood on their own they would not have led to tribunal proceedings.

[45]The Rule 5 Statement drew attention to the background history. I turn to that history in Section F. Events prior to the Rule 5 Statement

F1. The 2003 reprimand

[46]An investigation took place in 2001 in relation to terms and conditions in costs documentation used by the firm. Following that investigation, Mr Anderson (who is the third claimant) was found by an Adjudication Panel on 5 December 2002 to have provided misleading or inaccurate costs information to clients. On 4 July 2003 a Review Panel reprimanded Mr Anderson in respect of his responsibility for those breaches.

F2. The 2005 disciplinary tribunal

[47]Two main allegations against Mr Ainsworth and Mr Coe as a result of the 2001 investigation were considered by the SDT on 7 July 2005. Allegation 2 concerned the same terms and conditions as had led to Mr Anderson being reprimanded. The relevant allegations were found by the tribunal not to be substantiated. The tribunal stated: 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.

[48]Allegation 1 identified five respects in which Mr Ainsworth and Mr Coe were said to have breached relevant Solicitors Accounts Rules. The fifth respect was a claim that one client’s money had been used, without proper authority, for the purpose of another client thus creating a shortage on the firm’s client account. This was withdrawn on the morning of the hearing. The first four respects were admitted. As regards those admitted breaches the tribunal reprimanded each of Mr Ainsworth and Mr Coe. The tribunal further ordered that they be jointly and severally liable for 50 per cent of the overall prosecution costs. That figure was reduced from 100 per cent of the costs because the tribunal noted that allegation 2 had not been substantiated and that allegation 1(v) had been withdrawn, and these had been the more serious allegations against Mr Ainsworth and Mr Coe.

F3. Reconsideration of Mr Anderson’s reprimand

[49]Following the ruling of the SDT in 2005 Mr Anderson asked that the 2003 reprimand be reconsidered. There was an initial refusal to do so. This led to judicial review proceedings, which were in the event disposed of when it was agreed by consent between the Law Society and Mr Anderson that the decision not to reconsider the appeal against the reprimand should be quashed. The matter was then reconsidered by the Review Panel. On 30 October 2007 the Review Panel allowed Mr Anderson’s appeal against the decision of the Adjudication Panel of 5 December 2002. The Review Panel’s decision of 30 October 2007 confirmed that no finding or sanction stood against Mr Anderson.

F4. Complaints adjudications in 2007 and 2008

[50]Two complaints by clients of the firm concerning client care documentation in the period 2005 to 2007 were the subject of decisions of Adjudicators of the Legal Complaints Service, dated 18 January 2007 and 17 April 2008. Each adjudicator found that the firm’s client care documentation in use in those cases in 2005 to 2007 did not constitute inadequate professional services.

F5. Consideration of a further referral

[51]The events which led to the current disciplinary proceedings are described in this way by Ms Westrop: 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). 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.”

F6. Warning of possible publication

[52]On 13 October 2011 Ms Elliott of the SRA wrote to the claimants: Disciplinary Proceedings 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. Disciplinary Proceedings

Background history and the Rule 5 statement

[53]In relation to the background history the Rule 5 statement said this: 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. 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. 51.1. 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: 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. Events after the Rule 5 statement

H1. Certification by the SDT

[54]Ms Westrop records that the Rule 5 statement was delivered to the SDT on 21 February 2012. She also records that on the same day a solicitor member certified under Rule 6 that there was a case to answer.

H2. Notification to the claimants

[55]On 22 February 2012 the SDT issued to the claimants a document headed “Notice of Pre-Listing Day”. It enclosed a copy of the Rule 5 statement, and advised that the “pre-listing day” would be 13 April 2012.

H3. Publication decision of 11 June 2012 and response

[56]Ms Elliott wrote to the claimants on 11 June 2012 enclosing a copy of a decision she had made that day. The decision stated that the SRA’s policy (which at that stage was the 2010 policy) had been taken into account, in particular paragraph 4 and the criteria at paragraphs 8 and 9. It continued: 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.

[57]Ms Elliott’s covering letter dated 11 June 2012 concluded: The publication will be entered on the SRA website at the expiration of 14 days from the date of this letter.

[58]By a letter dated 18 June 2012 Andersons Solicitors replied to Ms Elliott’s letter of 11 June. The reply included the following: 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.

[59]The questions enclosed with Andersons Solicitors’ letter of 18 June 2012 were as follows: Questions 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 Questions Dated 18 June 2012

H4. Publication decision 20 June 2012 and response

[60]Ms Elliott responded on 20 June 2012: 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.

[61]In response a letter dated 9 July 2012 was sent to Ms Elliott by Mr Coe. The letter set out representations as to why the SRA should not publish the disciplinary proceedings on its website, and was also written as a pre-action protocol letter should it be necessary to seek judicial review. Paragraph 3 of the letter said that the SRA’s reasoning was: 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.

[62]At paragraph 4 the letter set out lengthy extracts from a draft Defence Case Statement. The key points were summarised in paragraph 5. That paragraph, and other matters set out in the letter were as follows: 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

[2008] 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? 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. 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

[2008] 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: 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?

[63]The letter of 9 July 2012 was supplemented by a further letter dated 19 July 2012 sent to Ms Elliott by Andersons Solicitors. In that letter Andersons Solicitors drew attention to allegation 1(v) in the 2005 disciplinary proceedings. That allegation had been that in breach of relevant Solicitors Accounts Rules in 1999 and 2000 the firm transferred amounts totalling £19,784.59 from the account of one client to the account of another. The allegation had been withdrawn on the date of the hearing. The letter of 19 July 2012 added: 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

[64]By a letter dated 25 July 2012 Ms Elliott advised Mr Coe that she had considered the letters of 9 July 2012 and 19 July 2012, and that having done so she concluded that it was in the public interest to publish the referral decision. Ms Elliott’s letter of 25 July 2012 was detailed and lengthy. I set out material parts of it in the annex to this judgment.

H6. SDT directions hearing on 27 July

[65]The SDT held a directions hearing on 27 July 2012. Mr Treverton-Jones represented the claimants at that hearing. He has confirmed that it was in public. It seems likely that notice of it would have appeared on the SDT website.

[66]As noted above, this hearing was not mentioned in the material lodged by the claimants when seeking judicial review. Mr Treverton-Jones has explained that when he settled the grounds for seeking judicial review, the public hearing that had taken place on 27 July 2012 did not strike him as being significant. I accept his explanation. However for reasons which I give below I consider that by 16 August 2012, when the grounds for seeking judicial review were lodged, the fact that a public hearing had already taken place was a matter of considerable significance. [There is no section I] J. Ground (1): open justice and its consequences

J1. The open justice complaint in the Grounds of Application

[67]It is common ground that the allegations in this case will be publicly aired at the hearing before the SDT. There are procedures enabling the hearing or part of it to be in private (see rule 12(3) to (6) in section C1 above). However there is no suggestion that this would be appropriate in the present case.

[68]As noted in section B1 above, paragraph 16 of the Grounds of Application submitted that there was a logical flaw in the SRA’s policy. The flaw was said to appear in paragraph 5, in the passage I have annotated in section D2 above as [5.4.1]. It was said to be false logic to proceed from the fact that the allegations would be made public at the SDT hearing to a conclusion that the SRA should communicate the allegations to the public.

[69]The broad assertion in paragraph 16 was elaborated in paragraph 33(c)(1). It identified a clear cut distinction between the position once the hearing was under way and the position prior to that. On the one hand at a hearing the accused solicitor can object to anything said by the SRA, make a submission of no case to answer, give evidence and call witnesses. The media is duty-bound to ensure fair and accurate reporting of such proceedings. On the other hand publication before the hearing took place of unproven and uncontested allegations was “an entirely separate issue” and was a misuse of the principle of open justice. The putting of such allegations on the SRA website prior to the hearing meant that: … 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.

[70]In support of this clear cut distinction it was said that, as between open justice in disciplinary hearings and publication of unproven and contested allegations against solicitors facing such hearings: In reality the issues are entirely distinct.

J2. A change of tack

[71]Material submitted in conjunction with the Reply was inconsistent with this clear cut distinction. It showed that disciplinary allegations against barristers are made available to the public by the Bar Standards Board 2-3 weeks prior to the date of the hearing. Similarly two weeks before the date of a hearing before the Practice Committee of the General Dental Council a “Programme of Business” made available on the Council website would include the charges. In the Reply itself there were early signs that there might be a change of tack. No express mention was made in the Reply of the issues being “entirely distinct” prior to the hearing as opposed to once it had begun. Instead, stress was laid on the allegations being published “many months” before the hearing.

[72]The change of tack duly came about in the claimants’ skeleton argument. There was still said to be a fallacy, but it was a different one. It was described in this way at paragraphs 18 and 19 of the skeleton argument: 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.

[73]Consistently with this change of tack Mr Treverton-Jones in oral submissions accepted that as regards the hearing the principle of open justice means that the public are entitled to know a few weeks before the hearing who is to be the subject of the hearing and what the allegations are. Thus it was that the 3 week maximum assertion, described in section A above, came about.

J3. Consequences of the change of tack

[74]The first consequence concerns the risk that some may think there is no smoke without fire. It is now accepted that an accused solicitor must run that risk for up to three weeks before the hearing.

[75]The second consequence is, as Mr Dutton submitted, that some principled basis must be sought for arriving at a period of up to 3 weeks. The answer given by the claimants appears to be simply that no more than this is required to ensure open justice. This begs the question as to why that should be so, and if so, why it should necessarily provide the only lawful start date for publication. I return to those matters later in this judgment.

[76]The third and fourth consequences are those which to my mind show that the application for judicial review in the present case is misconceived. They are the two knock-out blows to the challenge to the decision in this particular case and the challenge to the policy as formulated in the present case. Both turn on the application of the principle of open justice in a context where a directions hearing takes place and is open to the public. On two occasions in argument I asked Mr Treverton-Jones why the consequences for open justice of a public directions hearing should be any different from those for a public substantive hearing.

[77]Towards the end of Mr Treverton-Jones’s opening submissions he urged that while the SDT case management hearing had taken place in public, publication by the SRA would be entirely different. He noted that the SDT website does not identify the allegations that the accused solicitor is facing. A directions hearing would not have the consequence that members of the public would stumble upon the fact that the accused solicitor was up before SDT.

[78]In his reply submissions Mr Treverton-Jones noted that at the directions hearing in the present case there was no consideration of details of the charges or any answer to them. He urged that there was no legitimate interest in the public being informed of case management hearings.

[79]Both these answers seem to me to have lost sight of the principle behind open justice. I acknowledge that open justice does not entitle a public authority without more to circulate details of past offending. However we are not here concerned with dredging up an event from the past.

[80]The present case concerns an active judicial process. Even accepting the 3 week maximum assertion, what it applies to is the doing of justice. The stage at which that process becomes public is in this case governed by tribunal rules. They are the same rules for directions hearings as they are for substantive hearings: see rule 11 in section C1 above, which as regards directions hearings cross-refers to what is said about public and private substantive hearings in rule 12. Once the tribunal proceedings have become public – which in this case they undoubtedly did at the directions hearing on 27 July 2012 – the logic of paragraph 18 of the claimants’ skeleton argument is that there can be no room for complaint about telling the public of that fact and what the allegations are. Thus the third consequence of the change of tack is that there is a knock-out blow to any attempt, such as is made in the present case, after 27 July 2012 to prevent the SRA from putting details of the allegations on its website.

[81]The fourth consequence concerns the impact on the challenge formulated in the present case to the SRA’s publication policy. It will not be uncommon for there to be directions hearings. They will ordinarily be in public. If the policy is to be scrutinised on the grounds which the claimants advance, I find it difficult to see how it can be appropriate to do this on a false basis. It must now be recognised that accused solicitors may well, if there is a directions hearing, have to acknowledge that the public can be informed of the allegations during a period of months between the directions hearing and the substantive hearing. To my mind this puts a very different complexion on many of the complaints about the policy, to such an extent that it would not be right to seek judicial review of the policy in judicial review proceedings which do not take account of the impact of directions hearings. This is the second knock-out blow, and it means that the present judicial review proceedings must fail.

K. Ground (2): unfair procedural policies

[82]Ground (2) concerns allegations that the SRA’s policy involved unfair procedures. The first complaint in this regard concerned the policy behind the letter of 13 October 2011. Mr Treverton-Jones submitted that it was extraordinary to invite representations on publication at a stage when the solicitor was entirely ignorant of case to be advanced. If the publication policy were lawful, the time for representations would be once the solicitor had the rule 5 statement. It was, he submitted, unfair for the opportunity to make representations to be provided at a stage when the affected solicitors merely learnt that lawyers had been instructed to act for the SRA for the instigation of disciplinary proceedings: the affected solicitor (AS) cannot engage meaningfully with the process at that point.

[83]Mr Dutton in answer made the point that by 13 October 2011 these claimants had a great deal of information about what troubled the SRA. That is ample answer in the present case, and illustrates that a complaint about policy would be unsound. To my mind, however, a complete answer to this complaint is that it is will generally be desirable to flag the question of publication at an early stage. If there is some good reason to keep matters private, then the sooner that is raise and thought about the better.

[84]The next complaint about procedure concerned reliance on the SDT’s certificate that there was a case to answer. This is not a complaint about having a fair opportunity to influence the decision, but rather a substantive complaint of unreasonable adoption of a particular trigger for publication. I deal with this in section M below.

[85]Remaining complaints about procedure were specific to the present case. I deal with them in section Q below.

L. Ground (3): policy which misunderstands the law

[86]As noted above, Ground (3) comprises different ways in which it was said that SRA had misunderstood or misapplied the law governing its powers – what Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service

[1985] AC 374

, 409 referred to as “illegality”. One way in which it was said that this had happened took the form of an allegation of improper motive. The SRA, it was said, favoured publication because this would give the public greater confidence in the SRA as regulator. By contrast Sir Anthony Clarke MR had held on appeal form the Law Society in A. Odunyami

[2008] EWCA Civ 1598

that when imposing conditions on practising certificates the test was whether the conditions were necessary, reasonable and proportionate in the interests of the public and the reputation of the profession. It had been wrong for an adjudicator to impose conditions because this would be in the interests of public confidence in the SRA’s regulation of the profession.

[87]I do not accept that there was any wrong motive on the part of the SRA when formulating the policy. First, formulation of a publication policy was a completely different exercise from deciding whether to impose a condition on a practising certificate. Second, under section 28 of the 2007 Act the SRA must have regard, among other things, to principles of transparency and accountability. An important object of these principles is to enable the public to be informed about action taken by the SRA. In the context of a publications policy a range of motives which include maintaining public confidence in the regulatory system is in my view consistent with the statutory objectives.

[88]As to section 28, there was a complaint that the policy did not have regard to the principles under which regulatory activities should be targeted only at cases in which action is needed. The first problem with this complaint is that the policy expressly said in paragraph [2.5] that the SRA had had regard to principles of targeting. The claimants’ response in reply submissions was that this is not decisive, either as regards targeting or as regards any other of the principles in section 28(3), the question was whether the SRA was properly having regard to them in each individual case. The complaint thus becomes a complaint about the specific decision in this specific case rather than a complaint about the policy.

[89]There was also a complaint that the policy did not require the examination of the specific circumstances of individual cases. The complaint was advanced as a breach of article 8 (see section P) but, if sound, could equally have been put forward as a failure to understand an implicit statutory obligation to consider cases individually. However, the complaint is not sound. The policy expressly said at paragraph [5.5.1] that each decision would be taken on its own merits. There is a combination of a default policy and consideration as to whether or not to apply it. This is perfectly lawful both under the statute and under article 8.

[90]The policy changed in 2012, adding paragraph [9.2A] with its explicit reference to a potential disproportionate impact of publication on the regulated person. This, along with statistics that over a period of 4 years in only 2 cases were allegations not published on grounds of disproportionality, was said to show that the 2010 policy ignored this important factor. I am not persuaded that any such inference is justified. The 2010 policy said expressly that in developing it the SRA had had regard to proportionality: see paragraph [2.1] at section D2 above. The policy as a whole explains the need for a balance, and is consistent with seeking to identify at a general level how a proportionate balance can be achieved. At the individual level in paragraph 9 it identifies factors which in an individual case may point towards non-publication, but paragraph 9.3 expressly stated that these factors were not exhaustive and did not prevent the SRA from taking into account other factors that it considered to be relevant. The two cases identified in the statistics are evidence that those making decisions pursuant to the policy did consider proportionality and in two cases decided that it would be appropriate to classify a decision not to publish as having been made as a result. It would not in my view be right to infer that the failure specifically to mention what in 2012 was inserted in the passage I have marked [9.2A] arose because of any explicit or implicit conclusion that a disproportionate impact on the regulated person should be ignored. The inference which I consider justified is that in the course of the extensive and careful process which led to the 2012 policy, it was thought desirable to specify something whose importance had never been doubted but which had not been specifically referred to in paragraph 9 thus far.

[91]The remaining assertions of illegality in relation to the policy concerned complaints about the policy’s balance between transparency and targeting. They would, in my view, only warrant a conclusion that the law had been misunderstood if they were such that a reasonable policy maker, properly understanding relevant decision making powers, could not reasonably have adopted the particular aspect of the policy in question. I deal with these in section M, to which I now turn. M. Ground (4): policy outside the bounds of reasonableness.

[92]Ground (4) comprises assertions that the default policy of publication of unproven allegations was vitiated by unreasonableness. It was said that the policy was irrational when placed in the context of the SRA’s array of regulatory powers, in particular as regards practising certificate conditions. Decisions to impose such conditions are published on the SRA website, but only after any appeals have been exhausted. Paragraphs 21 to 24 of the Grounds of Application said that where, as here, the SRA had concluded that the public interest did not require any particular controls upon their practice as a result of the decision to prosecute, and in addition authorisation as a training establishment had been granted by the SRA notwithstanding the pending proceedings, it was impossible to see any public interest in publishing unproven disciplinary allegations. It was also impossible to understand how, logically, on the one hand the public interest did not require the imposition of any restrictions upon ability to practise and to train, and yet, on the other, required publication to the world at large of unproven and contested allegations of professional misconduct.

[93]What is claimed here to be impossible is in my view perfectly possible. The suggested impossibility only arises if(1) the fact of pending proceedings need cause no concern, and

(2) transparency and accountability as regards decisions to prosecute have no importance. As to (1), on the contrary, pending proceedings before the SDT will often be a cause for concern. True, the concern may not lead to a conclusion that it would be right to impose conditions on the ability to practise. The risk in question may not be appropriate to be dealt with in that way. That does not mean that the existence of the proceedings should be censored. As to (2), for the reasons given above transparency and accountability are both matters to which the SRA must have regard.

[94]A similar complaint was made about internal sanctions open to the SRA. Under statutory powers it may impose fines of up to £2000, or administer a written rebuke, in relation to misconduct. The relevant statutory provisions give a right of appeal to the SDT if a rebuke were accompanied by a decision to publish, but no such right of appeal where the SRA decides not to publish. Moreover, proven allegations against a solicitor may not be published pending appeal. Paragraphs 25 to 28 of the Grounds of Application noted that Parliament had thus prevented publication of less serious allegations, because of the prejudicial effect that this might have, yet the SRA policy was for routine publication of the more serious unproven allegations, in respect of which the prejudicial effect of publication would be all the greater. This was described as something which “appears nonsensical.” This point was developed at paragraph 32 of the claimant’s skeleton argument in relation to the need to examine the individual circumstances of particular cases. Where a fine or rebuke was administered by the SRA itself, not only was publication deferred until a decision had been made and any appeal dealt with, a decision to publish would only be made after consideration of the individual facts. To deal with those cases in that way, while adopting a default position of publication for unproven serious allegations, was to adopt an irrational distinction.

[95]The short answer to this point was provided by Mr Dutton. Matters dealt with by way of internal sanctions will indeed generally involve misconduct less serious than those referred to the SDT. In terms of protecting the public, the case for publication of proceedings before the SDT is thus stronger, not weaker, than the case for publishing current internal disciplinary proceedings.

[96]On publication generally, reference was made to the evidence of Ms Westrop to the results of a consultation exercise conducted when the policy was originally formulated in 2007. The outcome was that only a minority (44%) of respondents favoured publication of allegations prior to their determination by the SDT. This, added Mr Treverton-Jones, was in the context of a consultation document which did not identify at what stage prior to the SDT hearing such publication would take place. It does not seem to me that these matters advance the claimants’ case. A reasonable regulator may properly conclude that a policy favoured by a minority of consultees should be adopted.

[97]The policy in effect identifies certification of a case to answer by the SDT as a trigger for the taking of a decision by the SRA as to whether or not to publish the allegations. Complaint was made that: … 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.

[98]By way of additional grist to the mill, it was observed that in the present case a lengthy rule 5 statement was received by the SDT and certified on the same day. The claimants added that the SDT rules had not been drafted with publication in mind.

[99]The process under rule 6 is designed to perform a particular function – early disposal of allegations, without troubling the subject of the allegation, where initial consideration on the papers shows no case to answer. Many tribunals adopt a similar process in relation to the question whether they have jurisdiction to deal with an appeal. The fact, if it be so, that in almost all cases proceedings brought by the SRA are certified under rule 6 seems to me to be neither here nor there. Neither it, nor the speedy decision to certify in the present case, show that the decision to certify is anything other than a genuine process lawfully carried out by the SDT.

[100]I accept that there is no reason to think that certification found its way into the rules in order to help a regulator who is considering whether allegations should be published. That said, I can see no reason why a regulator should not have a policy which identifies certification as an initial hurdle. Only if it has been overcome will the regulator proceed to consider whether or not to publish the allegations. Overcoming that hurdle does not determine the outcome. Moreover those who are the subject of allegations are not bound by the certification decision in this sense – once they have received the rule 5 letter it will be open to them to apply to the tribunal for dismissal of the proceedings on the basis that the rule 5 letter does not disclose a case to answer. The presence of the hurdle will have the additional benefit, as it seems to me, that while the existence of a case to answer is being disputed there is unlikely to be any publication by the SRA of the allegations.

[101]A different complaint about the use of certification as a trigger is that it is too early. Whether that has merit or not essentially depends on whether the 3 week maximum assertion has merit or not. Various matters were relied upon in support of that assertion. The claimants argued vigorously that publication might cause devastating damage to the solicitor’s practice – so much so as to give rise to a claim that the policy could only be lawful if it explicitly recognised this. Such a claim in my view has no foundation, whether it is put on the basis of reasonableness or otherwise. As noted above, the policy calls for individual decisions in individual cases, and thus allows the decision-maker to assess what may be the impact of publication in a particular case.

[102]Exchanges between the claimants and the SRA in the present case involved the SRA commenting on a lack of evidence of actual prejudice in the present case. This was characterised by the claimants as a demonstration by the SRA of its refusal or failure to accept the potential for publication to cause serious damage. It was of course no such thing.

[103]The claimants’ skeleton argument identified 3 complaints about the way in which allegations generally appeared when published on the SRA website [1] 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.] [2] 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.] [3] 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.

[104]Of course what goes on the website must be accurate. Although there is a complaint that the grounds of opposition did not accurately state what went on the website, there is no complaint that what actually went on the website is inaccurate. The 3 complaints in fact made all seek to support assertions that publication is both too early and gives the impression that conviction is a foregone conclusion. To my mind, however, what is put on the website must be seen in context. The context is one in which the allegations made by the SRA, and which have survived the certification hurdle, are published. I cannot see that there is any obligation on the SRA as a matter of policy to wait to see whether the allegations are contested before publishing them. There will be individual consideration of the matter, giving the solicitor concerned the opportunity to make representations about publication, including as to whether it should await the defendant’s answer. Even independently of the context, I find it quite impossible to accept the accusation that the website gives the impression that conviction of the solicitor is only a matter of time: only someone who already had such a pre-conception could read the limited and entirely accurate statements on the website in this way.

[105]It was said in the claimants’ skeleton argument that the Chair of the SRA in 2007, Mr. Peter Williamson, clearly appreciated the risks of serious consequences if allegations were published “on its website for months on end in the manner set out above”. In support of this the claimants’ skeleton argument cited from an article written by Mr. Williamson, in The Law Society Gazette in 2007: 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.

[106]I had understood this to be an assertion that the SRA policy ran counter to the views of Mr Williamson, who favoured a right of appeal to the SDT before publication of certified allegations on the SRA website. Examination of the article, however, showed that the passage quoted by the claimants was not concerned with publication of allegations to be tried by the SDT. It was about publication of settlement agreements. What the article to my mind shows very clearly is that the SRA in 2007 was concerned about the potential consequences of publishing disciplinary information and carefully considered how that should affect its publication policy.

[107]A witness statement by Mr Andrew Hopper QC was relied on as showing that once on the website the allegations could easily by picked up on the internet generally. He drew attention to the functioning of the Google search engine: a search by those who only sought a solicitor’s address or other contact details could lead to Google offering a link to the SRA disciplinary website. I do not consider that this significantly advances the claimants’ case. The inherit assumption behind a decision to publish is that the information will enter the public domain. Either the policy is sufficiently well-founded at the general level to warrant the allegations entering the public domain or it is not. At an individual level any particular feature, such as the consequences of using the search engine where a solicitor has an unusual name, can be considered as part of the individual decision-making process.

[108]Paragraph 17 of the Grounds of Application gave an example (“the young solicitors example”) said to show how devastating publication could be. The young solicitors in question faced very serious allegations in the SDT to the effect that they had been involved in mortgage fraud. Those allegations survived the rule 6 process. At the hearing, however, it became apparent – at least to the SDT – that they were unfounded. Publication of the allegations had not taken place while judicial review proceedings in that regard were under way. But for that, submitted Mr Treverton-Jones, the unfounded allegations would have been published and the young solicitors’ practice would have been crippled.

[109]To my mind this is an example, and potentially a poignant one, of the impact that any serious allegation may have on the person who is the subject of the allegation. That does not of itself mean that the allegation must not be published. Had the allegations in the young solicitors example been made in criminal proceedings, then the allegations would have been public from an early stage – long before certification by any judicial tribunal that there was a case to answer. Mr Treverton-Jones submitted that there was no true analogy with criminal proceedings. The state has a limited array of measures it can take – either to remand in custody or attach conditions to bail. A regulator has wider powers, whereas criminal law is a very blunt instrument. I agree that the analogy cannot be pushed too far. What it indicates is that there is a spectrum of approaches, different approaches which may be taken in different contexts, as regards policy on whether serious allegations should generally be published. It also indicates that the policy adopted by the SRA is not as extreme as the claimants seek to portray it. Within the spectrum the disciplinary regimes for certain other professions envisage publication of allegations two to three weeks before a public hearing. That provides no basis for saying that earlier publication is inappropriate for solicitors. As Mr Dutton pointed out, solicitors have very important roles and duties in relation to client funds and the like, roles and duties which are not generally assumed by those practising the professions cited by the claimants. I add that the potential impact in the young solicitors’ example, and in the example given in Mr Anderson’s letter of 19 July 2012, would be a matter for consideration by the decision-maker under the publication policy.

[110]For all these reasons, even when all points relied on by the claimants are taken together, there is no merit in the allegations of unreasonableness. There is likewise no merit in contentions of illegality – for example, fettering of discretion by ascribing conclusive weight to transparency – which rely on unreasonableness as a basis for inferring the illegality in question.

N. Ground (5): a policy of not giving adequate reasons

[111]Ground (5) asserted that the SRA failed to produce properly reasoned decisions tailored to the facts of each individual case. What was said in argument was that there was a failure in the policy to focus on individual circumstances, and a practice of using the template seen in the 11 June decision. I have dealt with both these points above, and for the reasons I have given neither of them is sound. [There is no Section O]

P. Ground (6): failure by the policy to comply with article 8

[112]Ground (6) relied upon the obligation imposed by section 6(1) of the Human Rights Act 1998 on public authorities to act compatibly with

Article 8 of the European Convention on Human Rights

. Mr Dutton objected that article 8 was not engaged by either the policy or decisions taken under it. I shall assume, however, that article 8 is engaged, particularly as regards protection of the claimants’ reputation.

[113]On that assumption I am not persuaded that the policy infringes article 8. It envisages individual decisions on individual facts. Cases concerning revelation by public authorities of adverse information were relied upon to show that there is no carte blanche, and to stress the need for individual consideration, but they do not mandate any particular outcome going beyond the provision made in the present policy for individual consideration. Other matters dealt with in section M above were relied upon, but for the reasons there given do not demonstrate any failure to comply with article 8. Q. Ground (7): procedural fairness: the present decision.

[114]Ground (7) comprises complaints about the fairness of the procedure used to take the decision in the present case. I have dealt in section K above with the first two complaints about the procedure in the present case.

[115]A third complaint was the use of a “template” when the initial decision to publish was taken on 11 June 2012. Mr Dutton rightly points out that as claimants had neither before nor after receipt of the rule 5 statement made any representations on publication, there can hardly be any complaint about using a template. It is clear from Ms Elliott’s statement that its use was not automatic. She considered the application of the policy to the present case and identified no reason to do anything other than adopt the default position. Her letter, and no doubt the template on which it was based, wrongly referred to paragraph 8 when it should have referred to paragraph 9, but this was no more than a typographical slip and nothing turns on it.

[116]There was then a complaint that the representations of 18 June 2012 fell on deaf ears. But it seems to me clear from Ms Elliott’s letter of 20 June that she considered the representations and explained why she did not think they justified non-publication. Thus she pointed to the fact that the website would make clear that the allegations were not yet proven. Nor do I agree with the next complaint, that even though Ms Elliott gave 21 days for representations the decision was already made. There is no basis for an allegation that the offer of a 21 day period for further representations was anything other than genuine.

R. Ground (8): the law governing the decision

[117]Ground (8) comprises complaints of failure to understand and apply the law governing the decision in the present case. The arguments that may arise in this regard (e.g. under paragraph 34(b) of the Grounds of Application) have all been dealt with in sections L and M above.

S. Ground (9): allegedly unreasonable decision in this case

[118]Ground (9) comprises complaints that the decision in the present case was vitiated by unreasonableness. Here the Grounds of Application rely upon paragraph 34 (a), (c), (d) and (e). In general terms these matters, however, are fully dealt with in the final decision letter of 25 July 2012. Most of them were considered in the rule 5 letter where reasons were given for concluding that the allegations should nevertheless proceed. In those circumstances it does not seem to me that there is any valid complaint.

T. Ground (10): adequacy of reasons for the present decision

[119]Ground (10) concerns an alleged failure to provide adequate reasons for the decision in the present case. What needs to be recognised here, however, is that there has been a series of decisions. The decision which is operative is that of 25 July 2012. Mr Treverton- Jones objected that it was also a pre-action protocol reply. To my mind that does not prevent it from also being what it said it was: a decision taken after consideration of the representations of 9 July 2012. The claimants’ submissions conspicuously failed to criticise the adequacy of reasons in the 25 July 2012 letter. I find them to be ample to meet the relevant test in this regard.

U. Ground (11): breach of article 8 in relation to the decision

[120]Ground (11) comprises respects in which it is said that the decision in the present case failed to comply with the European Convention on Human Rights. The arguments which arise in this regard are all dealt with in section P above.

V. Conclusion

[121]For the reasons given above this application for judicial review fails. Annex: Ms Elliott’s letter of 25 July 2012 122. 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. Prejudice to the firm and the individual solicitors Further, the SRA’s publication Policy states at paragraph 8 that: The importance of providing information about regulatory action against regulated persons to enable, for example: Whether publication is not in the public interest owing to the facts of this case

Andersons Solicitors & Ors v The Solicitors Regulation Authority (Rev 1) [2012] EWHC 3659 (Admin)

Introduction

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

C1. The Solicitors Disciplinary Tribunal

C2. The SRA

D1. The 2007 publication policy

D2. The 2010 publication policy

D3. The 2012 publication policy

Points specifically made about the Policy in relation to SDT cases

The Rule 5 Statement

F1. The 2003 reprimand

F2. The 2005 disciplinary tribunal

F3. Reconsideration of Mr Anderson’s reprimand

F4. Complaints adjudications in 2007 and 2008

F5. Consideration of a further referral

F6. Warning of possible publication

Background history and the Rule 5 statement

H1. Certification by the SDT

H2. Notification to the claimants

H3. Publication decision of 11 June 2012 and response

H4. Publication decision 20 June 2012 and response

H5. Publication decision dated 25 July 2012

H6. SDT directions hearing on 27 July

J1. The open justice complaint in the Grounds of Application

J2. A change of tack

J3. Consequences of the change of tack

K. Ground (2): unfair procedural policies

L. Ground (3): policy which misunderstands the law

N. Ground (5): a policy of not giving adequate reasons

P. Ground (6): failure by the policy to comply with article 8

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

V. Conclusion

Cited in 2 later judgments