Solicitors Regulation Authority v Spector [2016] EWHC 37 (Admin)

Judgment date: 15 January 2016

Overview

The Solicitors Regulation Authority (SRA) appealed to the High Court to overturn a retrospective anonymity order made by the Solicitors Disciplinary Tribunal (SDT) preventing the third respondent’s name from appearing on the SDT’s listings and further directing the SRA not to mention the tribunal appearance of the third respondent unless already aware of the third respondent’s involvement in the proceedings.  The High Court allowed the SRA’s appeal and quashed the SDT’s anonymity decision, finding that the SDT had erred in law and that the policy on which the decision was based was “misconceived”.

The SDT hearing

In 2014 and 2015, the Solicitors Disciplinary Tribunal (SDT) heard proceedings brought by the SRA against three solicitors: Mr Ezaz, Mr Dale and Mr Spector.  The three respondents had been members of two Limited Liability Partnerships (LLP): European Legal Solutions LLP and ELS International Lawyers LLP. 

Having been found to have breached the Solicitors Accounts Rules 1998 (SAR) and the Solicitors Code of Conduct 2007 (SCC), Ezaz and Dale received sanctions and cost orders in favour of the SRA. One of seven offences was found proven in respect of Spector; which was considered to be a technical breach of the SCC. No sanction was imposed, nor was he required to pay any of the SRA’s costs. The public hearing lasted for 15 days. During the hearing, the names of the respondents were used without disguise and with no order in place protecting their identities. 

The order for anonymity

In making its anonymity order, the SDT referred to the SDT’s Judgment Publication Policy dated 3 September 2013 (the Policy). The Policy acknowledged the importance of publishing the SDT’s judgments in the interests of transparency but stated that “in the case where no allegations are found proved the Tribunal will consider an application made by the respondent at the hearing for an Order that the Judgment published on the Tribunal’s website be anonymised”.  In support of its decision, the SDT drew parallels with the case of SRA v Grindrod no. 11030-2012 14 November 2013  in which the SDT had granted anonymity for respondents found guilty of only technical breaches. 

In respect of the anonymity order for Spector, the SDT stated that it “was satisfied that publication of the Third Respondent’s name would be disproportionate to him [Spector] in view of the negligible level of culpability…and the fact that the [SDT] decided to make No Order (sic) on sanction”.

Upon conclusion of the SDT hearing and upon application, the SDT granted a retrospective order for anonymity for Spector following which the SRA appealed to the High Court to have this order overturned.

Appeal to the High Court

Quashing the SDT’s order for anonymity, Mr Justice Nicol (leading) emphasised the importance of the open justice principle in the courts and in particular its applicability to proceedings before the SDT.  Revisiting Scott v Scott [1913] AC 417, Nicol J set out the key components of the principle, namely:

  • the public’s freedom to attend court hearings (albeit not in issue in the instant case given the retrospective nature of the order)
  • that the proceedings are freely reportable (quoting from A-G Leveller Magazine Ltd [1979] AC 440 and Re Guardian News and Media [2010] 2 AC 697)

Referring specifically to disciplinary proceedings, Nicol, J asserted that “any report of the present Tribunal would lose much of its force if it has to be neutered” before quoting Cranston J’s reference in Yassin v GMC [2015] EWHC 2955 (Admin) to the effect that “general interest in the public being able to know the identities of those who have been subject to disciplinary proceedings” is of importance. 

Nicol, J found that the SDT’s decision was “contrary to principle” and “was not one which it could rationally make” on the basis that the SDT failed to recognise:

  • the importance of the open justice principle
  • that there were no competing rights under the European Convention of Human Rights 
  • that there was no requirement of the administration of justice which obliged the SDT to anonymise Spector
  • that the outcome of the proceedings could not justify anonymisation

In delivering his judgment, Nicol, J quoted Lord Steyn in Re S (A Child) (Identification Restrictions on Publication [2005] AC 593: “the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction”.  Nicol, J went on to state, “to the extent that the Tribunal thought that the very bringing of charges by the SRA imputed some kind of taint on the Third Respondent’s [Spector’s] character, that cannot be sufficient justification for departing from the principle of open justice”. 

Further, Nicol J was critical of the “wholly invidious” position in which the SRA found itself as a result of the SDT’s anonymity direction arising from the practicalities of complying with the order, particularly in relation to its retrospective nature following a fully public hearing in which Spector had been identified. 

Commentary

This case serves as a reminder as to the status of the open justice principle and warns against reliance on case law from courts of first instance in favour of any anonymity application.  Those who appear on behalf of regulated professionals in regulatory and disciplinary proceedings should carefully review any application for anonymity to assess whether there is merit. Grounds such as embarrassment are insufficient.

For regulatory bodies, this case provides a useful reference to the relevant case law in relation to the common law principle of open justice and its application within the disciplinary setting.  Nicol, J’s summary of the law in this area may serve to assist those responsible for drafting/reviewing related policies and practice notes on behalf of a regulatory body in relation to, for example:

  • an application for special measures for witnesses and/or registrants relating to anonymity
  • the listing of cases on a website
  • an application for a panel to sit in private 
  • the procedure for the publication of decisions

What we can take from this judgment is that any decision in favour of anonymity must be consistent with the principle of open justice, the bar for which remains high.