Andersons Solicitors & Ors v The Solicitors Regulation Authority (Rev 1)

A regulator may adopt a policy permitting publication of disciplinary allegations after an independent tribunal has certified a case to answer, provided each publication decision considers the individual circumstances and balances transparency against prejudice and other relevant factors. The policy need not require publication only where it is essential to protect the public. Transparency, accountability and public confidence may legitimately form part of the public interest. A public directions hearing may itself make the disciplinary process public; after that event, a challenge to publication which ignores the hearing is misconceived. The policy was not unlawful under the Legal Services Act 2007 or Article 8, and the decision to publish was adequately reasoned.

The claimants, a conveyancing firm and its partners, sought judicial review of the SRA’s policy of publishing details of referrals to the Solicitors Disciplinary Tribunal after certification of a case to answer, and of the decision to publish allegations against them. The allegations concerned costs information, overcharging, commissions, publicity and client-account balances. The claimants argued that publication of unproven allegations was unlawful, disproportionate, procedurally unfair and incompatible with Article 8.

After the claim was issued, a public directions hearing took place before the Tribunal. The central issues were whether that event affected the challenge, whether the publication policy was lawful, and whether the decision in the claimants’ case was procedurally fair, reasonable and adequately reasoned.

1. The application failed. The public directions hearing on 27 July 2012 was a material fact which had not been disclosed when permission for judicial review was sought. The Tribunal rules made directions hearings public unless the specified exceptions applied. Once the proceedings had become public, the claimants’ own revised case on open justice provided no basis for preventing publication of the allegations. The challenge to the particular decision was therefore misconceived. The same omission undermined the policy challenge because the policy had been examined on an incomplete factual basis.
2. The SRA’s policy was lawful. It did not unlawfully treat transparency as conclusive, nor did it impose an inflexible presumption. It expressly required regard to proportionality, accountability, consistency, transparency and targeting, and stated that decisions were to be taken on their own merits. The non-exhaustive factors supporting non-publication permitted consideration of prejudice, Article 8 rights and other relevant circumstances.
3. Under section 28 of the Legal Services Act 2007, transparency, accountability and maintaining public confidence in the regulatory system were legitimate considerations. The fact that publication decisions differed from publication of internal fines or rebukes was rational because proceedings before the Tribunal generally concerned more serious allegations and created a stronger public-interest case for publication.
4. Certification under rule 6 of the Solicitors (Disciplinary Proceedings) Rules 2007 was a lawful initial threshold. It showed that the case should proceed, but did not determine the merits. The respondent solicitor remained able to seek dismissal after receiving the Rule 5 statement. The policy could therefore use certification as a trigger for considering publication.
5. Assuming Article 8 was engaged, the policy was compatible with it because it required individual consideration. The decision-maker had considered the claimants’ representations, the possible effect on their conveyancing practice, the public interest in transparency, and the fact that the allegations were unproven. The operative decision of 25 July 2012 gave adequate reasons.