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The Solicitors Disciplinary Tribunal: new rules, new game?

05 May 2020. Published by Graham Reid, Legal Director, Professional Regulation and Thelma Ainsworth, Associate

There are few things that strike fear into the heart of a solicitor more than the prospect of being sent to the Solicitors Disciplinary Tribunal. This article looks at its new rules of procedure.

Before the advent of the new SRA Standards and Regulations, a solicitor finding themselves in this precarious position would be reliant on the Solicitors (Disciplinary Proceedings) Rules 2007 (SDPR 2007) for guidance on the rules and procedures to be followed by the Solicitors Disciplinary Tribunal (SDT). Now these rules have been updated with the new Solicitors (Disciplinary Proceedings) Rules 2019 (SDPR 2019).  The question then is: have the new rules made any significant changes?  Or have they merely lifted the bulk of the old rules and transferred them wholesale onto the statute book of the new rules? The answer is the former.  Such are the changes made by the new rules that they warrant a close look.  In the first of two blogs exploring these new changes, this article will focus on how a solicitor who is the subject of a complaint can navigate their way through these changes.  The second blog in this series will focus on these changes from the perspective of the solicitor's insurers.

Changes to the commencement of proceedings

One of the first things that a solicitor will notice is that the previous arrangement for a Rule 5 statement under the SDPR 2017, a document setting out the facts and the allegations supporting the application, has now been replaced by what will now be called a Rule 12 statement under the SDPR 2019.  The main difference between the two rules is that the Rule 12 statement has special provision where the application is being made by the Law Society (or the SRA).  In those circumstances, (as opposed to when the matter is being commenced by a lay person), in addition to complying with Rule 12's requirement to set out the matters supporting the application and each allegation, the SRA's application will also need to be accompanied by a time estimate for the substantive hearing and also "a schedule of the Society's costs incurred up to and including the date on which the application is made" (r.12(3) of the SDPR 2019).  Therefore, already from the outset there is a transparency to the proceedings concerning the costs incurred by the SRA to date and how long the hearing will be for the solicitor respondent so the latter will have some idea on timings regarding the matter being heard against them.

We now come to the next substantial difference between the old and new Rules.  Under both Rules, any application made must be certified by a solicitor member so as to decide whether there is a case to answer (as a protection against vexatious claims).  Whereas under the previous SDPR 2017, the Tribunal could adjourn to consider this question  for a period of no longer than 3 months, under r.16 of the current provisions, the consideration of this question could be adjourned for an initial period of 3 months to enable the Law Society to carry out its own investigations and consider whether to initiate its own application or, by agreement with the applicant, take over the conduct of the application. Following this initial period, if no decision has been made whether to initiate or take over the conduct of an application, the Tribunal may adjourn the matter for a further 3 month period.  Therefore, the total period which the Tribunal has in which to make this decision has doubled from 3 to 6 months, which is a substantial change.

A new standard of proof

On the assumption that the application proceeds because there is deemed to be a case to answer, how might the solicitor now navigate their way through the proceedings? One substantial matter to note, (not necessarily helpful to a solicitor respondent) is that the standard of proof has now changed. Under the SDPR 2017, the standard of proof was never set out clearly in the Rules and that lack of clarity led to some debate as to the correct standard of proof.  However, the new SDPR 2019 has swept away all uncertainty in this area by clearly stating under r.5 that "the standard of proof that will be applied to proceedings considered under these Rules is the standard applicable in civil proceedings."

As the balance of probabilities will now be the standard by which the applicant – usually the SRA – will have to prove their case against the respondent solicitor, are there any other procedural aids which can be used to mitigate the fact that the case against the solicitor need no longer be proved to the higher criminal standard?

Changes in the Rules of Evidence

The new Rules have made a couple of new, significant changes to evidence that could assist the solicitor respondent.  

Disclosure and Discovery

The first notable change is concerning the issue of disclosure.  Under the SDPR 2007, there was no express provision for disclosure by each party of documents that might adversely affect his or her or another party's case or support another party's case. Where any party wanted the issue of disclosure dealt with they would have had to rely on the fallback position of r.21(1) of the SDPR 2007 which states that the Tribunal has the power to "regulate its own procedure".  Well no more – this unsatisfactory state of affairs has since been remedied.  Under the SDPR 2019, r.26 is devoted solely to disclosure and discovery.  The rule allows for either party to make an application for the disclosure or discovery of material to the Tribunal.  The Tribunal may make such an order that the material be disclosed where it considers that the production of the material is necessary for the proper consideration of an issue in the case, (unless the Tribunal considers that there are compelling reasons in the public interest not to order the disclosure).  This provision makes it considerably easier for either party to seek the materials that they require from the other side although r.26(2) makes clear that any order made by the Tribunal will only apply to material that is in the possession or under the control of a party.  The process of dealing with disclosure and discovery under the new Rules can be made in one of two ways: firstly, it could form part of the case management directions in any case management hearing arranged by the Tribunal or clerk to the SDT under r.21, although the latter does not expressly refer to it.  However, as a matter of course there seems little reason why either party could not raise this matter if it is not covered in the directions being made at the time.  The second option is for the solicitor respondent to make a procedural application under r.22 of the new Rules and in this rule, a procedural application includes an application for disclosure and discovery (r.22(4)(d)).

Expert Evidence

We now come to the other major change in the new SDPR 2019 compared to its 2007 predecessor. This is concerning the issue of expert evidence.  Under the SDPR 2007, there was no provision for either party to call expert witness evidence.  On the other hand there was also nothing in those rules that prevented the statement of an expert witness being relied upon by either party.  This lack of clarity has now been dispensed with by the provision of r.30 of the SDPR 2019.  Under this rule, there is no longer any ambiguity concerning the issue of relying on expert evidence without leave of the SDT. Indeed, r.30(1) states that no party may call an expert or adduce in evidence an expert's report at the substantive hearing without the leave of the Tribunal.  In addition, all applications must be determined by a panel (the new composition of a Tribunal – again different from the former Divisions).  In addition to permitting expert evidence to be adduced where it considers that such evidence is necessary for the proper consideration of an issue or issues in the case, it may also direct that the evidence on an issue be given by a single joint expert, where two or more parties wish to submit expert evidence on a particular issue. (r30(4)).  The powers of the Tribunal are quite extensive in that it allows it to direct that discussions take place between experts in order to identify and agree expert issues in the proceedings and the Tribunal may specify the issues which the experts must discuss.  In this regard, the powers of the Tribunal are similar to that of a Judge presiding over civil proceedings in a Civil Court.

Conclusion

The new SDPR 2019 is an example of how stark changes have been made to the regulatory landscape following the introduction of the new SRA Standards and Regulations 2019.  The sweeping changes made to the SDPR 2007 is a demonstration of how the SDT is now conducted on a more serious footing than before with careful consideration given to new evidential and procedural rules to facilitate the process in the SDT. 

Practical Tips

We would encourage all solicitors and law firms to look carefully at the new SDPR 2019 should they receive the new Rule 12 statement application from 25 November 2019 to ensure they are familiar with all the major changes made to the SDT and the way the hearings will now be conducted.  We would also advise them to look at the SDT website[1] which refers specifically to the SDPR 2019 and which can also signpost them concerning other relevant aids such as previous judgements and relevant guidances.