Q&A with Frances Swaine
Posted on 07 December 2018
Frances Swaine is Managing Partner and Compliance Officer for Legal Practice (“COLP”) at Leigh Day.
Since April 2014, she has overseen Leigh Day’s response to and defence of a high-profile investigation and prosecution of the firm and some of its employees, by the Solicitors Regulation Authority. Frances heads up the firm’s new Regulatory & Disciplinary service, which launched in September.
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I joined Leigh Day in 1991 after working for some years in what is now the Ministry of Justice, in the Permanent Secretary’s team. I became a Partner in the firm in 1996 and Managing Partner in 2011, adding the COLP role when it was first introduced.
As the founding Partner of our Human Rights Department, I have always been driven by a sense of fairness and ethical behaviour both in the firm and in our external relations. Key influences in my life have been my parents, who were much involved in post-1945 Labour politics, and an uncle of the same age who headed up the Civil Service with an ethics-driven mentality, Sarah Leigh OBE who co-founded our firm and who drove a very strong ethical approach through the core of the practice, and Lady Hale, who (though she probably does not remember it) encouraged me to qualify at a time when it looked as if I might be a lifetime administrator!
Leigh Day was set up by Sarah Leigh and Martyn Day in 1987 as a niche personal injury firm. Some 30 years later, Leigh Day has developed into a firm of 44 Partners and more than 400 members of staff, with offices in London, Manchester, Liverpool, Chesterfield and Birmingham. The firm has some of the leading personal injury, product liability, clinical negligence, employment and discrimination, international and human rights lawyers in the country.
The firm’s ethos is to ensure that the ordinary person has just as good quality legal advice as state bodies and multi-nationals, which has led to Leigh Day taking on many fights for justice against the world’s most powerful players.
At its highest level, the SRA’s investigation and prosecution of Leigh Day, two of its Partners (including the firm’s Senior Partner, Martyn Day) and a junior solicitor, arose from matters connected with the Al-Sweady Inquiry.
The Al-Sweady Inquiry was a public inquiry that started in March 2010 and considered whether Iraqis had been tortured and, in some cases, unlawfully killed by British troops whilst in detention, following a gun fight in southern Iraq in May 2004. Leigh Day acted for some of the Iraqis in private law damages claims against the Ministry of Defence, which were put on hold whilst another firm acted for the Iraqis in the Inquiry.
The SRA first contacted me in April 2014 at a time when the firm was itself carrying out an investigation into what had happened. Then, in September 2014, the SRA started a formal investigation and sent a Forensic Investigator to visit the firm.
After the SRA had issued us with a notice requiring disclosure of documents and communications connected with the Al-Sweady matters, I took the decision to second a solicitor from the International Department, Gideon Habel, to form a dedicated team to deal with the disclosure exercise. Gideon scoped the exercise, designed a review platform and put together a team of solicitors and paralegals to carry out the relevance review. The team included another solicitor from the International Department, Emma Walker, who led the electronic document review with Gideon.
From an early stage, we had support and advice from specialist regulatory and disciplinary counsel who were able to guide us through the process. I also took the decision to retain Gideon and Emma as the internal defence team, given the experience and knowledge they had built up through the early stages of the SRA’s investigation process.
We provided detailed responses to the SRA in November 2015, January 2016 and March 2016. The SRA filed its written case at the Solicitors Disciplinary Tribunal (“SDT”) at the end of April 2016, which we were ordered to reply to in July 2016. Witness Statements were prepared and served in December 2016 and January 2017, hearing bundles were prepared and the case was heard over a six-week period starting in April 2017.
In June 2017 the SDT dismissed all of the SRA’s allegations. In January 2018, the SRA appealed to the Divisional Court to set aside parts of the SDT’s decision. The appeal was heard over 6 days in July 2018. Hand down of the appeal decision is awaited.
On realising that your regulator will be investigating an issue which has arisen within your practice, a number of issues need to be thought through straight away. The precise scope will depend on what the regulator wants to look at, but the sorts of things to bear in mind will be possible reputational damage and how this might affect client relationships; relationships with funders and banks; clarity and transparency of information given to staff; and maintaining privilege and confidentiality in advice, whilst ensuring all stakeholders are given an accurate picture of what is happening.
Having been through it with the firm, I would say from experience, that regulatory advice at an early stage, to guide your interaction with your Regulator and assist your business, is crucial.
Our team is made up of myself and the two Associates who acted as Leigh Day’s internal regulatory and disciplinary team on the Al-Sweady matter, Gideon Habel and Emma Walker.
We have experienced the longest-running hearing in the history of the Solicitors Disciplinary Tribunal and withstood the pressure of a high-profile and wide-ranging investigation and prosecution of our firm and colleagues. So, we know what it takes to defend a regulatory prosecution in extremely challenging circumstances and we wanted to put the experience gained over the last four years to positive use, to assist solicitors and other professionals dealing with regulatory issues, investigations and prosecutions. We believe the firm’s ethos, which runs through all our work, will complement this area of practice and will bring a new approach to regulatory and disciplinary matters.
In October and November, Gideon and Emma are holding a series of breakfast forums around the country with JLT, the firm’s insurance broker. The breakfast sessions are designed to provide a forum for Managing Partners, COLPs and others involved in the regulatory governance of firms, to discuss and learn from our experience. The Directors & Officers policy we had in place through JLT was a critical financial resource to us - without it, we simply wouldn’t have been able to defend ourselves as comprehensively as we did, including being able to instruct specialist regulatory and disciplinary counsel and solicitors.