Solicitors Regulation Authority v Day & Ors

An appellate court will not re-evaluate findings of fact or professional judgment made by a specialist disciplinary tribunal merely because it would have reached a different view. Intervention requires an identifiable error or a conclusion outside the range reasonably open to the tribunal.

Alleged breaches of solicitors’ core duties ordinarily require an evaluative assessment of seriousness and culpability. Oversight, negligence, or technical non-compliance does not necessarily amount to disciplinary misconduct. A referral-fee arrangement may lawfully compensate an introducer through payments for properly notified future referrals, even where fees cannot be paid for historic referrals, provided that the arrangement does not in substance pay for the historic cases.

The SRA appealed against the Solicitors Disciplinary Tribunal’s dismissal of specified professional-conduct allegations against three solicitors and their firm. The allegations arose from the firm’s work for Iraqi claimants following the Battle of Danny Boy and concerned a press conference, delayed appreciation and disclosure of the OMS Detainees List, disposal of a manuscript translation, referral-fee arrangements, and payments described as work-leave payments.

The Tribunal had dismissed all allegations after a six-week hearing. Its decisions on some allegations were by majority, with a solicitor member dissenting. The central issue was whether the Tribunal had been wrong in its findings of fact, evaluation of the evidence, and application of the professional rules.

1. Appeal dismissed unanimously. Under CPR 52.21(3), the court was reviewing whether the Tribunal was wrong, not conducting a rehearing. It had to respect the advantages of the specialist Tribunal, especially on witness credibility and evaluative judgments. The SRA had to establish an identifiable error of law or fact, a material misunderstanding or omission of evidence, or a conclusion outside the range reasonably open to the Tribunal.

2. Where the Tribunal had decided by majority, its majority decision remained the decision under appeal. The appellate court should consider the dissent with particular care, but the SRA still bore the burden of showing that the majority was wrong.

3. On the press-conference allegations, the Tribunal was entitled to find that the solicitor had acted reasonably in seeking an investigation and had not compromised independence or diminished public trust. The statements had to be read as a whole and in their contemporary context. They advanced clients’ allegations and sought an independent inquiry; they did not warrant the allegations’ truth.

4. The repeated failure to appreciate the OMS Detainees List deserved criticism. Yet the Tribunal was entitled to conclude that the oversights had not been proved to amount to misconduct under Rules 1.01 and 1.06 of the Solicitors’ Code of Conduct 2007. Its assessment of the document’s developing significance, the surrounding litigation, and the respondents’ explanations was evaluative and reasonably open to it.

5. The Tribunal was also entitled to reject the allegation arising from disposal of the manuscript translation. It found no negligence, no intention to mislead, an accurate typed transcription, and almost no remaining evidential significance in the manuscript.

6. The 2009 and 2010 agreements complied in form and substance with Rule 9.02. They did not pay referral fees for historic cases. They lawfully provided a larger referral fee for new, properly notified cases to compensate the introducer for being unable to receive fees on historic cases. The clients needed notification of the financial arrangement and amount, not the parties’ commercial rationale or a later fee-sharing payment to another solicitor.

7. The Tribunal could regard the £25,000 payment’s temporary non-compliance with Rule 9.02 as insufficiently serious to constitute misconduct. The court did not need finally to determine the obsolete construction issue under Rule 9.01(4).

8. Finally, the Tribunal was entitled to reject dishonesty, lack of integrity, and recklessness concerning the work-leave payments. There was no evidence that the payments were bribes or otherwise improper, and the Tribunal was entitled to accept that the respondents did not suspect that they were. A conscious-avoidance allegation could not fairly support an adverse finding when it had not been properly put in cross-examination.

• High Court (Administrative Court): dismissed the SRA’s appeal from the Tribunal.
• Solicitors Disciplinary Tribunal: on 22 September 2017 dismissed all allegations of professional misconduct. Its subsequent majority costs decision made no order as to costs.