Solicitors Regulation Authority v Richard Spector (formerly the Third Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol,Lord Justice Burnett |
| Judgment Date | 15 January 2016 |
| Neutral Citation | [2016] EWHC 37 (Admin) |
| Docket Number | Case No: CO/2102/2015 & CO/2072/2015 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2016] EWHC 37 (Admin)
Lord Justice Burnett
Mr Justice Nicol
Case No: CO/2102/2015 & CO/2072/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Dutton QC and Rupert Allen (instructed by Bevan Brittan) for the Solicitors Regulation Authority
Tim Kendal (instructed by Howard Kennedy) for Richard Spector (the Third Respondent)
Hearing date: 8 th December 2015
In 2014 and 2015 the Solicitors Disciplinary Tribunal (the 'SDT') heard disciplinary proceedings which had been brought against three solicitors by the Solicitors Regulation Authority (the 'SRA'). It gave its decision in writing on 28 th April 2015. The 1 st Respondent to those proceedings (Joe Ezaz) was not currently on the roll of solicitors. The SDT ordered that he was prohibited from applying for restoration of his name to the roll for a period of 6 months. He was also ordered to pay £20,000 towards the SRA's costs. The 2 nd Respondent in the SDT proceedings (Darren Dale) was fined £1,000 and required to pay £8,000 towards the SRA's costs. The Third Respondent in the SDT proceedings had been found guilty of one of 7 offences, but the SDT considered that this was a minor matter and at the lowest level. It imposed no sanction on him, nor did it require him to pay any of the SRA's costs.
What led to the present proceedings are two further decisions of the SDT.
First, it granted an application by the Third Respondent that his name should not be used and so he should remain anonymous in the Tribunal's decision. Furthermore it directed the SRA not to disclose the Third Respondent's involvement in these disciplinary proceedings except where a local Law Society or enquirer was already aware of them in which case they could be told that the allegations against him had not been proved save for one technical breach for which no sanction had been imposed.
The SRA wishes to challenge this anonymity decision. It has done so by two procedural routes: it has appealed to the High Court against this part of the SDT's decision pursuant to the Solicitors Act 1974 s.49; it has also applied for judicial review to quash the anonymity decision. It followed both routes in case there was a jurisdictional difficulty about the Court investigating the anonymity decision on an appeal. In the event, the Third Respondent raised no jurisdictional objection to this matter being considered on the appeal. We agreed at the hearing that there was none. In consequence, the judicial review application became superfluous and we gave the SRA permission to withdraw it.
I need to return to the second decision of the SDT which we were asked to consider. At the end of the proceedings, and when the substantive result had become known, the Third Respondent applied for an order that the SRA should pay all or part of his costs. The SDT refused that application. He now cross appeals against that decision. By an application notice received in the Administrative Court Office on 4 th December 2015, the Third Respondent applied for specific disclosure in support of his cross appeal. At the hearing, we refused that application for reasons which we said would be given in the course of this judgment.
CPR r.52.11 limits every appeal to a review of the decision of the lower court. For present purposes that includes the SDT. Absent any procedural complaint (and there was none here), our task is to decide whether the decision of the SDT was 'wrong' — see r.52.11(3)(a). We therefore had to decide two matters: (i) Was the SDT wrong to make the anonymity direction? (ii) Was the SDT wrong to refuse to order the SRA to pay all or part of the Third Respondent's costs?
Anonymity of the Third Respondent
The three Respondents to the SDT proceedings had been members of two Limited Liability Partnerships: European Legal Solutions LLP and ELS International Lawyers LLP. The allegations against each of them were different. There were 7 allegations against the Third Respondent. Some of these concerned the use of Stamp Duty Land Tax ('SDLT') mitigation schemes which were promoted through a company called Equity Tax Ltd with which the Third Respondent was also involved. Two particular schemes were investigated by the SRA, one called the Brawn Scheme, another called the Lazarus Scheme.
When the SRA proposes to take disciplinary action against a solicitor, it prepares a statement pursuant to Rule 5(2) of the Solicitors (Disciplinary Proceedings) Rules 2007 SI 2007 No.3588 ('the Disciplinary Proceedings Rules'). The statement is put before a solicitor member of the SDT who certifies if there is a case for the solicitor to answer — see Rule 6. That was done here and certificates were issued confirming that all three Respondents had a case to answer in respect of each of the allegations against them.
Ordinarily, the SRA will publish the details of the proceedings against a solicitor in advance of the SDT hearing. It took a decision to do so in the present case, but the Third Respondent threatened to bring judicial review proceedings. Publication was delayed and the issue became moot once the hearings began.
However, the SDT publishes a daily cause list and, for each day that the hearings against these three solicitors took place, their names were published in that list.
The hearings were extensive. They occupied in total 15 days between January 2014 and March 2015. All of them took place in public. The names of all the Respondents were used in the course of the hearings without disguise and with no order in place protecting the identity of any of them.
After the close of the SRA's case, on 1 st May 2014 the Respondents (including the Third Respondent) argued that there was no case to answer. The SDT rejected those submissions (except in relation to part of one of the seven allegations against the Third Respondent). The Third Respondent then gave evidence to the Tribunal.
The SDT announced its decision in public on 18 th November 2014. On that date it indicated that its written findings (which were to be published at a later date) would anonymise the Third Respondent's identity. The SRA sought further clarification in writing and at a further hearing, which took place on 10 th March 2015. The Tribunal then said that the Third Respondent was not to be named by the SRA in response to any inquiries made by anyone who was not already aware of the SDT proceedings against him.
In its written decision, the SDT recorded the arguments which had been advanced by Mr Kendal for the Third Respondent. He had relied on the SDT's Judgment Publication Policy of 3 rd September 2013. This had acknowledged the importance of publishing the Tribunal's judgments in the interests of transparency. However, the Policy also said,
'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 the present case, Mr Kendal submitted, the Tribunal had found one allegation proved against the Third Respondent, but that had been a technical breach and no risk or harm had been caused thereby. In SRA v Grindrod No.11030-2012 14 th November 2013 the SDT had likewise granted anonymity to the second and third respondents in that case who had been found guilty of only technical breaches.
In giving its decision, the Tribunal said at [176]
'Whilst the Tribunal stressed it was important for judgments to be published in the interests of transparency, and normally an application for anonymity would only be considered where no allegations were found proved, the Tribunal was satisfied that the circumstances in SRA v Grindrod were very similar to the facts of this case. Accordingly, the Tribunal, taking into account consistency, was satisfied that publication of the Third Respondent's name would be disproportionate to him in view of the negligible level of culpability the Tribunal has found and the fact that the Tribunal had decided to make No Order on sanction. The Tribunal granted the Third Respondent's application for anonymity.'
The Tribunal elaborated on the consequences of its order when it said,
'[179] The Tribunal's view was that anonymity was precisely that. The Third Respondent was not to be named in the written Judgment and anonymity included not naming him to any third party enquirer or to local Law Societies who were not already aware of the Third Respondent's involvement in these proceedings. Where any local Law Society had already been informed by the SRA of the Third Respondent's involvement in these proceedings, as the Third Respondent did not object and indeed the Tribunal considered it would be fair to him, those local Law Societies should be informed that allegations against the Third Respondent were found not proved save for one technical breach for which no sanction was imposed.
[180] The spirit of the Tribunal's decision on anonymity was to protect the identity of the Third Respondent so that he would not be tainted with a record of a Tribunal appearance. It would be perverse for any third parties to be informed that he had appeared before the Tribunal and this would defeat the object of the Tribunal's Order so that information could then enter the public domain.'
In my judgment, in making this anonymity order the Tribunal erred in law. Its decision was contrary to principle and it was also not one which it could rationally make on the facts of the...
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