Solicitors Regulation Authority Limited v Daniel Whittingham

On an appeal against a disciplinary tribunal’s costs order, the High Court must review the decision with caution and restraint. Intervention is justified where the tribunal made an error of law or principle, misunderstood or failed to consider relevant evidence, or reached a conclusion outside the range reasonably open to it.

Under rule 43(4) of the Solicitors (Disciplinary Proceedings) Rules 2019, the tribunal must consider the substance of all relevant matters, including party conduct, compliance with directions, proportionality of time spent, the reasonableness of rates and disbursements, and means where relevant. Costs compensate the regulator and must not operate as additional punishment.

The Solicitors Regulation Authority appealed under section 49 of the Solicitors Act 1974 against the Solicitors Disciplinary Tribunal’s judgment dated 20 February 2023. The Tribunal had found the respondent’s misconduct proved, struck him off the Roll, and ordered him to pay £5,000 towards the Authority’s costs.

The Authority contended that the Tribunal had failed to account for the respondent’s equivocal engagement, failure to comply with directions, and failure to clarify whether he would attend the hearing. It argued that those matters had required preparation for a fully contested two-day hearing and that the considerations in rule 43(4) had not been addressed. The issues were whether the costs decision was wrong and whether the High Court should reassess costs or remit the issue.

1. Appeal allowed. The Tribunal’s costs order was quashed. The High Court reassessed the costs payable for the Tribunal proceedings at £19,468.
2. An appeal under section 49 of the Solicitors Act 1974 is ordinarily a review rather than a rehearing. The appellate court should exercise particular caution before interfering with a specialist tribunal’s factual or evaluative judgment. Intervention requires an error of law, fact or discretion, or a decision which no reasonable tribunal could have reached.
3. Rule 43(1) of the Solicitors (Disciplinary Proceedings) Rules 2019 gives the Tribunal a broad costs discretion. Rule 43(4) requires consideration of all relevant matters, including conduct, compliance with directions and time limits, proportionality and reasonableness of time spent, the reasonableness of hourly rates and disbursements, and means. Express reference to the rule is unnecessary, but the substance of relevant factors must be considered.
4. The respondent’s equivocal conduct, failure to file an Answer, failure to comply with directions, and failure to state whether he would attend made it reasonable for the Authority to prepare for a contested two-day hearing with witnesses and respondent evidence. The Tribunal’s failure to consider those matters, and the proportionality and reasonableness of the claimed costs, was an error of law and an error in the exercise of discretion.
5. Costs are compensatory rather than punitive and must not exceed costs actually and reasonably incurred. The shorter hearing remained relevant, so the court deducted the £2,000 refresher and £1,332 for the solicitor’s second-day attendance from the claimed £22,800.

• High Court (Administrative Court): Appeal under section 49 of the Solicitors Act 1974 allowed; the Solicitors Disciplinary Tribunal’s costs order was quashed and costs were reassessed at £19,468.
• Solicitors Disciplinary Tribunal: On 20 February 2023 the Tribunal struck the respondent off the Roll and assessed costs at £5,000.