09 Jul SRA Disclosure – A Law Unto Themselves
In this case I was instructed as the defence barrister for a solicitor in professional disciplinary proceedings brought by the Solicitors Regulation Authority (SRA). The solicitor faced a number of allegations being tried by the Solicitors Disciplinary Tribunal (SDT) (see: http://www.solicitorstribunal.org.uk/Content/documents/11222.2014.Zysblat.pdf).
The important allegations turned upon whether a Mr Tulsiani (Mr T) had become the respondent’s client in relation to a number of investment property purchases. It was the respondent solicitor’s case that Mr T had never been his client. It was the SRA’s case that Mr T was indeed his client.
Part way through the SRA’s case, and following cross-examination of Mr T and another witness by me, it became apparent that Mr T had provided a large amount of documentation to the SRA. That documentation included a folder of evidence which had been generated by a private detective, Mr Munro, instructed by Mr T. This material had never been reviewed by counsel for the SRA let alone disclosed to the respondent. There was also a letter from Mr T’s new solicitor, Teacher Stern (referred to in the judgment as TS) which undermined the SRA case.
As a consequence of these revelations leading counsel supervised a thorough review of material in the SRA’s possession. It was leading counsel’s view that the material “newly discovered” could be disclosed. The disclosed material showed that Mr T, far from asserting that he had become the respondent’s client, had said that he never became the client.
However, leading counsel for the SRA sought to justify the non-disclosure on the following bases:
- It was asserted that the failure in relation to the undisclosed material was the respondent’s failure;
- The SRA, as a matter of policy, only disclose what it discovered and not that which was provided to it.
As can be imagined, the SDT had little truck with either of these arguments following submissions by me. In terms the SDT found that the failure to disclose was no fault of the respondent:
“…it was for the Applicant to prove the case to the highest standard. The Tribunal did not consider that even if there had been any default by the Respondent – and it was not satisfied that he was in default – this would have any bearing on the Applicant’s failure to deal properly with disclosure.”
It went on to add:
The Tribunal could not determine that in all cases the original intelligence ought to be disclosed to a Respondent, but the Applicant’s policy of not disclosing was unhelpful in that it appeared to have caused the Applicant to overlook the potential disclosability of this document. No policy document of the Applicant to that effect had been produced, and any such policy could not override a duty to the Tribunal.
Further, and more importantly, the SDT found that the SRA had imposed upon itself an irrelevant fetter as far as its disclosure obligations were concerned – that is the “policy of only disclosing what it finds and not what it is given” (whatever that meant).
The SDT found that this material (in which Mr T specifically disavowed ever having become a client as far as the investment properties were concerned) fell full square within what should be disclosed by the SRA pursuant to the Practice Direction No. 2.
The SDT held as follows:
“It was clear from the volume of material turned up during 17 and 18 March that the Applicant had not fully and adequately addressed the issue of whether there were any further documents in its possession or control which might assist the Respondent in the preparation of his defence or which might in any way undermine the Applicant’s case.
The SDT went on:
“The Tribunal considered the Applicant’s argument that as a matter of policy it did not disclose the intelligence which caused it to begin an investigation as the Applicant relied only on its own findings in the course of the investigation. It was understandable that such reports were not disclosed during the course of an investigation; it was important that those who produced information which triggered an investigation should be confident that their identity would not be disclosed prematurely. However, when an investigation led to a prosecution before the Tribunal the Tribunal’s rules of disclosure and the need for a fair hearing took precedence. It may be that in very many cases, the item which triggered an investigation would indeed be irrelevant to the case; in such cases, it need not be disclosed. However, in a case such as this where the evidence of a key witness could be challenged by the Respondent using the contents of such a document any such document should, prima facie, be disclosed.
Finally, the SDT added, in devastating terms:
The Tribunal balanced its duties to the parties, to the public interest and the interest of the profession as a whole in ensuring proceedings were conducted fairly. The best way to do this was for the Tribunal to rule that it would not rely on Mr Tulsiani’s evidence at all, save where it was clearly consistent with other evidence and/or agreed by the Respondent. Mr Tulsiani’s evidence had been fatally flawed, not by any act or default on his part, but because the Applicant had not given disclosure properly at the appropriate time. The case could proceed, but on the basis that no reliance could be placed on Mr Tulsiani’s evidence. In particular, the Tribunal would be unable to find as a fact that Mr Tulsiani had been a client of the Respondent from January 2007
The SDT quite properly took a firm approach to the SRA’s failures. It disapproved of the SRA “policy” not to disclose material that had been provided to it, noting that no such policy document had been provided by the SRA to the SDT.
The message must now go out to both the SRA and the solicitors’profession, particularly those faced with solicitors disciplinary proceedings. In order to maintain a proper regulatory regime where fair hearings may be provided, the SRA must comply with its disclosure responsibilities. Lawyers defending in such cases should be astute to ensuring that the SRA are properly pressed for disclosure of material which fulfils the criteria set out in Practice Direction No 2, namely:
“…material should be disclosed which could be seen on a sensible appraisal by the Applicant:-
(i) to be relevant or possibly relevant to an issue in the case;
(ii) to raise or possibly raise a new issue whose existence is not apparent from the evidence the Applicant proposes to use, and which would or might assist the Respondent in fully testing the Applicant’s case or in adducing evidence in rebuttal;
(iii) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence which goes to (i) or (ii).”
The SDT summarised my submissions to them as follows:
“…in order to ensure there was a fair playing field and that the parties had equality of arms, so that a fair trial of the allegations could be held, it was necessary to have proper disclosure…the Tribunal would have in mind its duty to uphold the reputation of the solicitors’ profession. It would not help that reputation if the case were allowed to proceed on the present basis. Mr Kendal…reminded the Tribunal of the Respondent’s right to a fair hearing of the very serious charges against him.”
The SDT agreed with my submissions and struck out the relevant charges against the respondent. Importantly and significantly, the SDT considered the SRA’s disclosure failures when determining that the respondent should not pay any costs in this case.