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Moving on up

Last month, as part of looking forward to 2019, we looked back at the lessons from the SDT’s costs decision in the SRA’s case against Leigh Day. In this second reflection in the series, we’ll be taking a look at the judicial pronouncements made when the Leigh Day case went up to the Divisional Court on appeal.
 
The High Court judgment is not just instructive to advisers in the regulatory and disciplinary field, but to legal professionals more generally.  This is because as well as setting out at the appellate court’s approach to an appeal from the SDT, the judgment also contains important messages about the seriousness and culpability required when evaluating whether a breach of the principles has taken place.  The allegations against Leigh Day spanned the 2007 and 2011 regulatory regimes and the appeal judges were required to consider how the tribunal had reached its decision in relation to the two sets of rules. This indicates that the view formed by the appellate court will continue to be instructive when the rules change again later this year.

The appeal in a nutshell

The appeal related to full or partial appeals of a little under half of the allegations laid against Leigh Day and some of its solicitors and which had been dismissed by the SDT the previous year.
 
Some of the allegations had been dismissed unanimously and others by a majority.  Where there was a minority view, this had been set out in the SDT’s judgment.

The appellate court’s function

In its judgment, the Divisional Court (comprised of two High Court judges and one Court of Appeal judge) explains that the task of the appellate court is to assess whether the tribunal was “wrong” in its decision, where “wrong” means it has made an error of law, fact, or in the exercise of its discretion.  The judges emphasised that it is not the function of the appellate court to engage in a rehearing on the facts and that whilst this seemed an elementary point supported by legion authorities, the way in which the arguments had been presented to the court seemed to be “an attempted re-evaluation of the facts in the context of repeating the self-same arguments as to the facts and their evaluation as had been presented to the Tribunal.”1 

Assessing a tribunal decision

The judgment goes on to note some points that guide the appellate court’s assessment of a tribunal decision, namely:
 
1. The decision is that of a specialist tribunal, which is particularly equipped to appraise what is required in terms of professional conduct in the specific circumstances; an appraisal that  “the appellate court will be cautious in interfering with2
2. Where the decision of the tribunal is by way of a majority, the majority decision is the decision of the tribunal; it is not for the respondents to show that the minority was wrong rather it is for the appellant to show the majority were wrong.  The judgment explains that the appellate court will have careful regard to the reasoning and conclusions of the minority and, quoting Lord Bingham:
 
“The fact that one member of an expert tribunal has dissented does not, in my judgment, entitle this court to approach the matter as if it were the first instance tribunal entitled to make a primary judgment on the facts or on the appropriate penalty.  Our task, as in any other case, is to study the decision (in this case the decision of the majority) and consider whether it is one of those rare cases in which the court should interfere.  It is I think appropriate to approach that task with particular care when it is known that one of the three members is unable to agree with the majority and has taken a strongly dissenting view.” 3
 
3. That the tribunal is required to apply the criminal standard of proof; 4
4. Where there are other, separate proceedings with a degree of correspondence to those the tribunal is deciding on, the tribunal can be justified in attaching limited weight to the outcome in the other proceedings.  It is the job of each tribunal panel to decide the case before them by reference to the evidence and submissions presented to it;5 
5. That whilst the importance of contemporaneous documentary evidence is well-established, it would be wrong to maintain that documentary evidence of itself trumps any other evidence.  It is the duty of the tribunal or court to consider the evidence as a whole, including oral testimony;6 
6. That a tribunal judgment has to be read as a whole and it can be taken that the findings of fact in relation to an allegation relate back to the evidence and submissions which the tribunal has set out elsewhere in its decision.7 
 
The judgment returns to the appropriate approach to be taken by the appellate court a number of times, stating later that “In substance, the SRA’s real complaint is that the Tribunal did not accept its case and arguments in these allegations.  But that is not a legitimate basis on which an appellate court can properly interfere or can substitute (on a less well-informed view of all the evidence and without any real idea of the “feel” of the case in the light of all evidence adduced below) its own view of the matter.”8   Through the Leigh Day judgment the High Court has reiterated its own role as reviewer of the tribunal’s approach to its decision and whether it was open to the tribunal to make the decision it did, as distinct from that of the tribunal as the primary judgment-maker.

Defining misconduct

The SRA alleged breaches of the Solicitors Code of Conduct 2007 and the SRA Principles 2011. On appeal the SRA submitted that in dismissing the allegations, the majority of the tribunal had erroneously introduced considerations of professional misconduct rather than focussing on whether there had been a breach of the Code or Principles.9 The High Court rejected the SRA’s arguments, noting that it is plain that “issues of seriousness and culpability are relevant to the assessment of whether there had been a breach [of the Principles]”
 
Later in the judgment, the appeal judges ask:
 
“As we have had cause to ask rhetorically before in this judgment: what was this particular allegation doing before the Tribunal if it was not a matter of professional misconduct?  In truth, if such an allegation under Principle 5 is to be pursued before a tribunal then it ordinarily needs to have some inherent seriousness and culpability. It no doubt can be accepted that negligence may be capable of constituting a failure to provide a proper standard of service to clients. But even so, questions of relative culpability and relative seriousness surely still come into the equation under this Principle if the matter is to be the subject of disciplinary proceedings before a tribunal.  We do not, we emphasise, say that there is a set standard of seriousness or culpability for the purposes of assessing breaches of the core principles in tribunal proceedings.  It is a question of fact and degree in each case. Whether the default in question is sufficiently serious and culpable thus will depend on the particular core principle in issue and on the evaluation of the circumstances of the particular case as applied to that principle.  But an evaluation of seriousness remains a concomitant of such an allegation.”10 
 
The judges continue by saying whilst some breaches of the rules involve strict liability, such as the accounts rules, “that cannot be said generally with  regard to all alleged breaches of the core principles coming before the Tribunal” adding that these will ordinarily involve an evaluative judgment and an assessment of seriousness.  So whilst it sounds obvious, it is clearly important to remember going forward that what constitutes a breach is fact-specific, including the principle or principles said to have been breached and the degree of seriousness and culpability of the relevant conduct.

Closing comments

In their closing comments, the judges note that “In many respects, ultimately, this has been an attempt to invite this court simply to say that the majority’s assessment of the credibility of the witnesses and of the evidence was perverse: an invitation that will only rarely be accepted.”  They add: “There is, overall, no proper basis on which the appellate court, on established principles, can legitimately interfere with the assessment of the evidence and the evaluative judgment of the Tribunal on any of the allegations which are the subject of this appeal.”
 
The judgment is clear that what happens in the tribunal is important, both in terms of the evidence given and the assessment of it by the panel.  Moving forward then to our final lesson in this series looking back on the judgments in the Leigh Day case: a decision by the tribunal that appropriately balances seriousness and culpability to determine whether one of the principles has been breached, is not one that is capable of being appealed up to the Divisional Court.

About the author

Emma Walker is an associate in Leigh Day’s Regulatory & Disciplinary team, acting for professionals who need advice and support with compliance and regulatory matters.
 

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