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SDT rebuked for incorrect approach to an Appeal but the SRA has no power to restrict the engagement of consultants by Solicitors

Solicitors Regulation Authority v Solicitors Disciplinary Tribunal & Huseyin Arslan (Interested party) & Law Society (Intervening party) [2016] EWHC 2862 (Admin)

Mr Arslan was the subject of an investigation by the Solicitors Regulatory Authority (SRA), in connection with which he provided a number of documents in response. The SRA found that there was insufficient evidence to support the principal complaint but they were concerned that the documents provided by Mr Arslan had been doctored to support his case. The evidence was considered by an Adjudicator who decided that the documents probably had been altered and that accordingly he would make penalty orders under ss.43 and 44D of the Solicitors Act 1974. Mr Arslan appealed to the Solicitors Disciplinary Tribunal (SDT), who accepted that it had been appropriate for the SRA to have made a decision on the civil standard of proof, but surprisingly resolved to hear the appeal on the basis of the criminal standard. The SDT also decided that the SRA had acted beyond its jurisdiction in ordering a penalty under s.44D because Mr Arslan was not an employee. The Appeal succeeded.

In November the matter came before the High Court on appeal by the SRA. Lord Justice Leggatt and Lord Justice Leveson made three significant findings which will have important implications for future investigations by both the SDT and the SRA.

First, their Lordships found that the SRA had erred in assuming that s. 44D of the Solicitors Act 1974 applied to consultants such as Mr Arslan. This is significant because it means that the SRA currently has no power to restrict the engagement of independent contractors by solicitors even where misconduct has been found.

Second, it was held that the SDT had erred in considering the evidence afresh in spite of their stated intention to review rather than re-hear. In particular they failed to explain why the reasons which weighed with the Adjudicator should not have led him to make the findings he did.

Finally, the SDT should have applied the same standard of proof as the SRA, the civil standard. In the course of discussions it was persuasively mooted that the SDT should, in common with most professional disciplinary bodies (with the notable exception of the Bar Standards Board), always adopt such a standard in order to properly protect the public.

Dr Joanna Kerr / 21st Dec 2016


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