Linda Lu v Solicitors Regulation Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 06 July 2022 |
| Neutral Citation | [2022] EWHC 1729 (Admin) |
| Docket Number | Case No: CO/1093/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1729 (Admin)
Mr Justice Kerr
Case No: CO/1093/2021
Appeal No. C0010932021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE SOLICITORS DISCIPLINARY TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person
Mr Rory Mulchrone ( Mr Michael Collis on 6 July 2022) (instructed by Capsticks LLP) appeared for the Respondent
Hearing date: 25 May 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and will be released for publication on the National Archives caselaw website. The date and time for hand-down is 10am on 6 July 2022. I direct that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This appeal by the appellant ( Ms Lu) is from a decision of the Solicitors Disciplinary Tribunal ( the tribunal) published on 26 February 2021, in disciplinary proceedings brought by the respondent ( the SRA) against Ms Lu. Ms Lu was acquitted of any misconduct. The appeal concerns the tribunal's approach to open justice and to the anonymity of persons mentioned in the tribunal's decision and relevant to the allegations it had to determine.
The tribunal agreed to sit in private and decided to anonymise two complainant firms of solicitors, relevant individuals employed by them and, for some reason, a barrister and an expert witness whose roles were not particularly controversial. The tribunal so decided of its own accord, without any application from those concerned. However, the tribunal refused to agree to Ms Lu's request that her identity be withheld from the public domain.
At the hearing before me, held in public, with some misgivings I gave a temporary direction preserving the status quo and prohibiting publication of Ms Lu's name and that of the two firms, their relevant employees and the barrister. Before the draft of this judgment was made final, the two firms and four individuals were able to (and most did) make representations as to whether their anonymity should be preserved in this judgment. Ms Lu's should not be.
I am prepared, not without hesitation, to continue the anonymity of three relevant individuals within the two complainant firms. This is because they are likely, as against their employer, to have a contractual right to anonymity in respect of allegations made by or against them internally within the context of their employment; albeit that contractual right is far from conclusive, does not bind the court and might well have to yield to open justice.
I have found this appeal difficult. It shows the problems we are experiencing in our justice system with the notion of open justice. We repeatedly stress its importance, yet increasingly undermine it by the creeping march of anonymity and redaction. Parties, witnesses and ordinary workers — for example, a case worker at the SRA in this case — are routinely anonymised without asking the court or giving the matter much thought.
A common misconception is that if the identity of a person in legal proceedings is not directly relevant, there is no public interest in that person's name being known. The justice system thrives on fearless naming of people, whether bit part players or a protagonist. Open reporting is discouraged by what George Orwell once called a “plague of initials” 1. Clarity and a sense of purpose are lost. Reading or writing reports about nameless people is tedious.
The applicable principles are clear at the highest level. The common law principle of open justice is well known. The jurisprudence on articles 8 and 10 of the European Convention is quite well known. Procedural rules such as CPR 39.2 which reflect the law correctly, work reasonably well if properly applied. Yet, the inexorable trend seems to be towards less open justice and more anonymity. I doubt that this is a good direction of travel for the law.
Facts
I can take some of the facts from the decision of the tribunal. I will omit as much detail as possible. Ms Lu qualified as a solicitor in Scotland in 2015. The tribunal eventually rejected her contention that it lacked jurisdiction to discipline her, determining that she was an “RFL” (registered foreign lawyer) at the relevant times and, as such, subject to the disciplinary rules policed by the SRA and enforced by decisions of the tribunal.
Ms Lu became an associate in the London office of Cadwalader Wickersham & Taft LLP ( Cadwalader), a US law firm. Cadwalader was referred to by the tribunal as “Y LLP”. There, Ms Lu came into contact with, and in close physical proximity to, a senior work colleague, referred to by the tribunal and in this judgment as Person B.
Ms Lu's relations with Cadwalader, to put it neutrally, did not thrive. The reasons for that were and remain disputed. Ms Lu says the real reason was that she resisted harassment by a partner. She maintains that she passed her probation but was dismissed when she indicated a willingness to report the harassment to human resources (“HR”).
It is agreed that Cadwalader terminated Ms Lu's employment by a letter of 17 August 2017 and that the reasons given in the letter, not accepted by Ms Lu as genuine, were performance related: refusal to accept work allocated, refusing to discuss work with her supervising partner, taking unauthorised leave and displaying an aggressive attitude in conversation with supervising attorneys.
In or about October 2017, Ms Lu became an associate at the London office of Pillsbury Winthrop Shaw Pittman LLP ( Pillsbury), also a US law firm. Pillsbury was referred to by the tribunal as “X LLP”. Ms Lu's employment did not go smoothly. On 17 January 2018, she raised a grievance against “Person C”, a partner. On 15 and 26 February 2018, “Person A”, a partner, provided statements to Pillsbury saying that Ms Lu had refused to carry out work.
On 27 February 2018, Ms Lu was suspended by Pillsbury pending an investigation. On 2 March 2018, she was asked to attend a disciplinary hearing on 7 March. Also on 7 March, she raised a grievance against 13 individuals at Pillsbury including Person A and the other partners who had provided statements criticising her. She alleged that the statements were false and misleading and constituted harassment.
On 29 March 2018, Pillsbury concluded, after enquiring into the matter, that Person C had not harassed Ms Lu. Pillsbury also looked into whether Ms Lu had been bullied
and concluded that she had not been. On 29 March 2018, Pillsbury appointed Ms Judy Stone (“J” in the tribunal proceedings), a barrister in private practice, to investigate Ms Lu's grievance raised earlier that month. Ms Stone spoke to various people including Ms Lu. On 25 May 2018, Ms Lu appealed against the decision not to uphold her grievance against Person COn 15 June 2018, Ms Lu posted on her Instagram account the first post for which she was subsequently charged with misconduct by the SRA. I will call it the “corgi post” as it featured an image of the rear end of a corgi dog. The tribunal edited some of it out, though the full text was before it in a witness statement from Person A.
As edited in the tribunal's decision, it was economically rendered as follows:
“Ever want to kick someone's c*** in so bad?! # diebitchdie f****** fat [name] Corgi can suck my d***”.
The word “name” in square brackets denotes the omitted word “Debra” which is the first name of Person A. She and Pillsbury were concerned and offended because they believed the corgi post referred to her rather than to any dog.
Ms Kathleen Pearson, Pillsbury's Chief HR Officer, reported that and other potential disciplinary matters to the SRA on 30 July 2018, informally and without at that stage identifying Ms Lu. On 30 July 2018, Pillsbury dismissed Ms Lu's appeal against the decision not to uphold her grievance against Person C.
On 22 August 2018, the barrister Ms Stone produced her report. I have not seen it but according to the tribunal she had (in the tribunal's words) “difficulties” with Ms Lu's evidence, which she treated “with caution”. Ms Lu “lacked candour”.
Ms Stone preferred the evidence of nine people from Pillsbury against whom Ms Lu had complained. Some of the complaints about Person A were (this time in Ms Stone's words quoted by the tribunal) “inconceivable” or “highly implausible”. She rejected Ms Lu's claim that Pillsbury's witnesses colluded to fabricate a basis for her suspension.
The second matter over which Ms Lu was later accused of misconduct was that two posts allegedly appeared on her Instagram account on 29 August and 23 September 2018. This led to what I will call the “abuse and threat posts” allegation. The two posts clearly related to Person B, Ms Lu's senior work colleague during her time at Cadwalader.
The abuse and threat posts (and the tribunal's description of them) were more detailed and complicated than the corgi post. Since the tribunal ultimately found that the SRA could not prove Ms Lu was the author of those posts, I need not set them out in full. They were deeply offensive to Person B and if penned by Ms Lu would without question have amounted to serious misconduct. The second post included what appeared to be a threat to Person B:
“…it's only a matter of time before I take you down. I will do it when you least expect it to keep it fun.”
In the light of Ms Stone's report, Pillsbury dismissed Ms Lu's grievance of March 2018 in a detailed letter of 27 September 2018. They also rejected a suggestion from Ms Lu that Ms Stone had been biased and unfair.
On 11 October 2018, Ms Pearson of Pillsbury spoke to Mr Nicholas...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2022-12-09, [2023] UKUT 00074 (IAC) (YSA (Anonymity of Barristers))
...it is always the restriction, not the publication, that requires to be justified. See Lu v Solicitors’ Regulation Authority [2022] EWHC 1729 (Admin) at The process of intense focus has to be conducted in the context of the prospective interferences identified. The question of necessity will......
-
Upper Tribunal (Immigration and asylum chamber), 2022-12-09, PA/00000/0000
...it is always the restriction, not the publication, that requires to be justified. See Lu v Solicitors’ Regulation Authority [2022] EWHC 1729 (Admin) at The process of intense focus has to be conducted in the context of the prospective interferences identified. The question of necessity will......
-
Solicitors Regulation Authority v Edward James Williams
...In summary: (a) the SDT said that it had carefully considered the matter and had had regard to the judgment of Kerr J in Lu v SRA [2022] EWHC 1729 (Admin); (b) it found there was no compelling reason to depart from the principle of open justice dealt with by Kerr J in [138] of Lu: “138. In......