The Solicitors Regulation Authority (SRA) v Solicitors Disciplinary Tribunal

A statutory tribunal conducting a review must review the original decision, not rehear the case or make its own findings as primary fact-finder. Its approach must reflect the original decision-maker’s evidential advantage, although less deference is required where the evidence was entirely written and equally available to both bodies.

Where the primary decision-maker was required to apply the civil standard of proof, the reviewing tribunal cannot substitute the criminal standard. The term “employee” in section 44D of the Solicitors Act 1974 does not include an independent consultant engaged under a contract for services. The Tribunal’s decision was therefore dismissed on the section 44D appeal but quashed on judicial review of the section 43 review.

The SRA challenged two decisions of the Solicitors Disciplinary Tribunal concerning Huseyin Arslan. The Tribunal had revoked a section 43 order restricting his employment by solicitors and had allowed his section 44D appeal against a written rebuke and £500 penalty.

The SRA appealed the section 44D decision under section 44E and sought judicial review of the section 43 decision. The issues were whether Mr Arslan was an “employee” under section 44D, the proper nature of the Tribunal’s review, the applicable standard of proof, and whether the Tribunal had lawfully assessed the evidence.

1. Section 44D appeal dismissed. The term “employee” in the Solicitors Act 1974 was not extended by the SRA Glossary or professional rules. Delegated legislation could not enlarge the scope of the primary statute. Section 43’s separate references to employees and consultants reinforced the conclusion that a consultant engaged under a contract for services was not an employee for section 44D. The Tribunal therefore correctly held that the SRA lacked power to impose section 44D sanctions on Mr Arslan.
2. Nature of review. A review under section 43 and an appeal under section 44E were not rehearings. The Tribunal should begin with the original findings and evidence, and intervene only where the decision was wrong or affected by serious procedural irregularity. The weight given to factual findings depended on the original decision-maker’s advantage and on whether the conclusion involved an evaluative judgment within a range of reasonable disagreement.
3. The adjudicator had considered written evidence only. The Tribunal was therefore in as good a position to assess that evidence, but it still had to review the adjudicator’s reasoning rather than act as the primary decision-maker. Under section 43(1)(b), the statutory reference to the Society’s opinion also required the Tribunal to give appropriate weight to the adjudicator’s evaluative judgment.
4. Standard of proof. The SRA was required by rule 7.7 of the Disciplinary Procedure Rules 2011 to apply the civil standard in section 44D matters. The same standard was appropriate for section 43, which was protective rather than punitive. The Tribunal therefore erred in applying the criminal standard while conducting its review.
5. The Tribunal’s errors permeated its treatment of the evidence. It failed to consider material evidence about the creation and uploading of documents, treated logically connected issues as separate, and gave irrational or unsupported reasons for rejecting the adjudicator’s findings. The section 43 decision was quashed, reinstating the section 43 order, subject to any further application to the Tribunal.
6. The court declined to determine the standard applicable when the Tribunal itself acts as primary fact-finder. Earlier authorities on that issue appeared ripe for reconsideration, but deciding the point would have been obiter because it did not arise.

• Solicitors Disciplinary Tribunal: By judgment dated 16 March 2016, revoked the section 43 order and allowed Mr Arslan’s section 44D appeal.
• High Court (Administrative Court): The section 44E appeal was dismissed. Permission for judicial review was granted, the claim succeeded, and the Tribunal’s section 43 decision was quashed.