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

The High Court has overturned a decision of the Solicitors Disciplinary Tribunal (SDT) to anonymise in its judgment the identity of a solicitor who was largely exonerated following a disciplinary hearing, saying that the SDT had not taken sufficient account of the principle of open justice.

The SDT proceedings

S, a solicitor, faced seven allegations before the SDT, but only one was found proved and the SDT considered that it was a minor matter. Accordingly, it imposed no sanction and did not require S to pay any portion of the SRA's costs of bringing the proceedings.

S applied for an order that his name should not be used in the SDT's written decision, and the SDT granted that application. The SDT also directed that the SRA was not to disclose S's involvement in the proceedings except where the enquirer was already aware of the proceedings, in which case they should be told that the allegations against him had not been proved save for one technical breach for which no sanction was imposed.

In making this decision, the SDT had regard firstly to its own Judgment Publication Policy (dated 3 September 2013) (the Publication Policy), which provides that, where no allegations are found proved, the tribunal can consider an application that the respondent is anonymised in the written judgment. It also had regard to an earlier SDT case, namelySRA v Grindrod (11030-2012) in which the SDT granted such anonymity to two respondents who had been found guilty of only 'technical breaches'.

S also applied for an order that the SRA pay for his costs of defending the proceedings but that application was refused.

The Appeal – the principle of open justice

The SRA appealed the anonymity order, and S cross-appealed the SDT's refusal to grant him his costs. In its judgment, the HC noted that open justice is a fundamental principle of the common law (citing Scott v Scott [2013] AC 417), and that there are two aspects to this, namely:

  1. that the public should be free to attend court proceedings (as was the case with the SDT hearing, which had been open), and
  2. that proceedings are freely reportable, which includes reporting the names of the individuals involved.

In respect of (ii) the court cited with approval Cranston J's statement in Yassin v GMC [2015] EWHC 2955 that: "There is a general interest in the public being able to know the identities of those who have been subject to disciplinary proceedings".

The HC noted that, as a principle of common law, open justice might be abrogated or varied by statute, although there were no instances of statute limiting public access to, or reporting of, SDT proceedings. The HC acknowledged that, pursuant to rule 12 of the Solicitors (Disciplinary Proceedings) Rules 2007 (the SDT Rules), the SDT could in certain circumstances direct that hearings be held in private. Accordingly the SDT had, inferentially, the power to adopt a procedure which was less intrusive on the principle of open justice and so might allow a witness or party to be referred to by a pseudonym or cipher.

However, in Attorney General v Leveller Magazine Ltd [1979] AC 440 and [1979] 2 WLR 247, the House of Lords had recognised that open justice was intended to advance the administration of justice and, if the administration of justice would be hindered rather than assisted by full openness, the common law permitted a departure from that principle. The starting point, however, is full openness and it is only when an exception is required in the interests of the administration of justice that some limitation is justified. The HC noted also that the principle of open justice applied as much in disciplinary proceedings as in in the courts (citing L v Law Society [2008] EWCA Civ 811 and Andersons and others v SRA [2012] EWHC 3659 (Admin)).

Findings on appeal – anonymity order

The HC went on to find that the SDT's decision in respect of anonymising S's identity was wrong, for reasons which included:

  • the SDT had failed to recognise the importance of the open justice principle, any departure from which must be justified. There were no competing ECHR rights, and there was no requirement of the administration of justice which obliged the SDT to anonymise S
  • the outcome of the proceedings did not justify anonymising S and, to the extent that the Publication Policy led the SDT to make its decision, that policy was misconceived, as the premise seemed to be that there was something discreditable about being cleared of all (or all serious) charges, which could not be right, as the respondent's professional reputation had been vindicated. To the extent that the mere bringing of charges against S might impute some taint on his character, that could not possibly be sufficient justification for departing from the principle of open justice
  • the SDT's anonymity order put the SRA in an invidious position if it was approached by someone who did not know about the SDT proceedings, but wished to know whether S had ever been subject to disciplinary proceedings. The options for the SRA were to lie, or to give a wholly unhelpful answer along the lines of "we neither confirm nor deny that there have been such proceedings"
  • the SRA would be inhibited from performing its statutory duty to have regard to the principle that its regulatory activities should be transparent (pursuant to the Legal Services Act 2007, s28(3)(a))
  • S's identity was in any event no secret; the hearing had been in public, and his name was still in the SDT's lists published on its website. Additionally, it would not be difficult for the public to work out who the 'third respondent' was in the judgment
  • S's counsel had conceded that there would have been no justification for the entire hearing to be held in private (pursuant to Rule 12 of the SDT Rules), which meant that any member of the public could have attended and learnt S's identity. By the same token, there was no rational reason why a member of the public who approached the SRA for regulatory information could not be told of S's identity.

Findings on appeal – costs

S argued that the SRA's case before the SDT had been a “shambles” from start to finish and that, by failing to recognise that, in a costs order, it had acted irrationally or unreasonably.

The HC applied Law Society v Adcock [2007] 1 WLR 1096 DC, in which it was stated: “This court should only disturb an order for costs in rare circumstances and only if, in the exercise of its discretion, the tribunal has misdirected itself or reached a conclusion which this court would not have reached, and where the solution preferred by the tribunal has exceeded its general ambit within which a reasonable disagreement is possible.”

The HC went on to find that there was no inconsistency in the SDT ruling that there was a case to answer but then finding that the allegations against the respondent were not proved. S had come nowhere close to showing that the SDT had reached an irrational conclusion.