Solicitors Regulation Authority v David (2011) QBD (Admin) (Mitting J) 3/2/2011  

Two solicitors were struck off for failing to comply with undertakings. One solicitor was bankrupt and the other was unemployed. The Solicitors Regulation Authority (SRA) applied to the Solicitors Disciplinary Tribunal for its costs. The Tribunal decided that there should be no order as to costs.

The SRA appealed on the grounds that

  • the Tribunal should not take account of the financial situation of the two solicitors in making a decision on costs; and
  • in civil litigation, the means of the losing party were not relevant when considering whether to award costs, and the amount of those costs.

The court held that although disciplinary proceedings were not criminal, neither were they civil as they were not related to civil rights between individuals. It was the case, therefore, that neither the criminal or civil approach to costs should automatically apply in disciplinary proceedings.

Although the court did not feel it appropriate to state how the Tribunal should deal with costs issues, it nevertheless set out practical guidance:

  • A solicitor before the Tribunal who admitted the charges against him and anticipated a sanction being imposed, was required to give as much notice as possible to the SRA that, due to their financial circumstances, they would apply either for no costs order or a limited order as to costs. In these circumstances, the solicitor must also supply evidence to the SRA to support such an application. This was to enable the SRA to investigate such evidence.
  • However, where a solicitor disputed the charges, there was no such duty to provide advance notice and evidence to the SRA. In these circumstances, the solicitor would be required only to show that they would be unable to pay a costs order once the charges were found proved by the Tribunal.

In this case, the solicitors had admitted the charges, but had not given advance notice or evidence to the SRA, However, their submissions regarding their ability to pay any order made against them were accepted. Therefore, there was no reason for their circumstances to be reviewed again.

Accordingly, the SRA's appeal was dismissed.