Book review — The Solicitors Disciplinary Tribunal (2nd)

The first edition of this guide was published in December 2015 and much has changed since that time. The second edition continues to offer a comprehensive guide to the workings of the SDT and addresses the key changes in law and practice in the intervening period. These include:

• a change in standard of proof from the criminal to the civil standard
• new procedural rules at the SDT (2019)
• the effect of the SRA Standards and Regulations 2019
• the change in tests for dishonesty and integrity, and the current practice regarding agreed outcomes and restriction oOrders.

The authors are known to me, both as my co-authors on The Solicitor’s Handbook, and as experienced and highly respected practitioners in the field of solicitors’ professional discipline and regulation.

The book is aimed at, “anyone who wishes to avoid the common pitfalls faced by unfamiliar users of the Tribunal.” No doubt it will be of assistance to any respondent firm or individual facing proceedings, who finds themselves unable to afford specialist representation. It will also likely be used by Tribunal panels themselves and practitioners appearing before it.

Like the first edition, the second edition takes the reader on a chronological journey through proceedings. I’ve highlighted some chapters which best reflect the changes since the last edition.

Chapter 4 – addresses the increasingly thorny issue of publicity and the ‘Open Justice Principle’ coined in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, which has increased the threshold for solicitors seeking to maintain anonymity. The chapter will aid the reader understand when and how anonymity can be preserved.

Chapter 10 – addresses the test for dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, and cases since on its application such as Zivancevic v SRA [2019] EWHC 1950. It also addresses what constitutes ‘exceptional circumstances’ following SRA v James & Ors [2018] EWHC 3058, required if a respondent is to avoid being struck off following such a finding. This triple headed appeal saw mental ill-health both recognised as a contributory factor to exceptional circumstances but given less prevalence than other factors such as the length of time for which the dishonesty was perpetrated, whether it was repeated and whether any harm arose. The consequence of the case is that save in ‘moment of madness’ cases, respondents found to be dishonest can expect to be struck off.

Examples of cases where a dishonesty decision did not result in strike off are provided. Following the successful appeal by the respondent in Matthews v SRA [2022], heard since the book was written, and the SRA’s Workplace Culture Thematic Review, one can expect the age and experience of the respondent will be significant in future decisions.

Chapter 11 – addresses various other types of misconduct including the test for lack of integrity. The intervening years between editions has seen some topsy-turvy cases on the matter. 2017 saw the cases of SRA v Newell-Austin [2017] EWHC 411 and SRA v Malins [2018] EWCA Civ 366, decided a month apart, with diametrically opposite conclusions, the former finding that the concepts of dishonesty and integrity were not synonymous, and the later finding that they were. The matter now appears settled since Wingate and Evans v SRA [2018] EWCA Civ 366 such that the concepts are not treated as synonymous. In 2019, Mostyn J, who decided Malins, heard the case of Adetoye v SRA [2019] EWHC 707. While accepting the decision in Wingate and Evans he made clear his continued disagreement, commenting, “I have to regard acting without integrity as involving greater moral turpitude than mere dishonesty but, paradoxically, the former will generally attract a lesser sentence than the latter.”

Also addressed are the highly topical matters of sexual misconduct and integrity in private life, including Beckwith v SRA [2020] EWHC 3231 in which the court overturned a SDT decision which encroached too far on the private life of a solicitor, ruling that a finding of lack of integrity must be tethered to existing other rules.

Chapter 13 – on Settlements gives examples of cases and decisions in which agreed outcomes were upheld for less obvious reasons, for example, ‘disproportionality’ of proceeding to a substantive hearing in SRA v Smith [2020] and cases in which the agreed oOutcome was rejected.

Chapter 16 – on Costs, was written before the Supreme Court’s decision in CMA v Flynn Pharma [2022] UKSC 14 and therefore includes only the Court of Appeal decision of 2020, however, effectively, the status quo has been maintained and successful respondents will continue to need to show ‘good reason’ why the Tribunal should depart from the standard no order as to costs.

Chapter 17 – on appeals includes extracts from the cases of Dar v SRA [2019] EWHC 2831, Bawa-Garba v GMC [2018] EWCA CIV 1879, and James & Ors on the test to be applied. Bawa-Garba helpfully recognised the ‘evaluative’ nature of Tribunal decisions. However, the ‘error of law or clearly inappropriate test’ leaves substantial scope for the courts to interfere. In James v Ors, the evaluative judgment of the SDT was overturned as Flaux J considered that the SDT had given too much weight to the respondents’ mental ill-health.

Chapter 20 – addresses the variation and removal of restriction orders. Most of the cases are recent, being the natural consequence of the SDT now making restriction orders almost as a matter of practice.

Chapter 21 – the final one, addresses appeals to the Tribunal. Since publication, the SRA has been granted increased powers to fine ‘traditional’ law firms and its employees – a fine of up to £25,000 – the chapter however remains entirely relevant and is likely to become of increasing use as the SDT hears more such appeals. On 23 August 2022 the SRA launched a consultation on the use of the increased powers.

This is a well-written, and reliable text on proceedings before the SDT. Despite the increase in length from the first edition, it continues to be concise, and thus of great practical use. Writing this book will have been a burdensome undertaking, and readers will be grateful to the authors for making their lives commensurately easier.