Two bites of the apple- limitation in professional negligence cases
Andersons Solicitors, Robert Alan Ainsworth, Christopher James Anderson, Peter Howard Coe, Margaret Ann Hunter, Paul Wade Richardson v The Solicitors Regulation Authority  EWHC 3659 (Admin)
Judgment date: 17 January 2013
High Court considers SRA policy of publication of allegations prior to hearing and principle of ‘open justice’.
Andersons Solicitors and five partners within that firm (the Claimants) made an application for judicial review against the Solicitors Regulation Authority (SRA). The Claimants were the subject of five allegations made by the SRA which were to be dealt with at a substantive hearing before the Solicitors Disciplinary Tribunal (SDT) beginning on 28 January 2013.
Under SRA policy, which was applied in this case, the default position is that allegations which are to be heard by a tribunal, including the names of the affected solicitors, are published by the SRA once the tribunal has certified that there is a case to answer. This publication takes place well in advance of any eventual substantive hearing to determine whether the allegations are proved. The Claimants sought to challenge the pre-hearing publication of their names and the allegations.
Mr Justice Walker dismissed the Claimants’ application. The application was made on numerous grounds, but for brevity, this summary refers only to the principle ground which related to the principle of open justice (Ground 1).
Ground 1: open justice and its consequences
It was accepted by the Claimants that the allegations in this case would be publicly aired at the hearing before the SDT. However, their initial stance was that it was “false logic” to proceed from this to conclude that allegations could be publicised prior to the hearing. They initially claimed there was a distinction between the position during a hearing and that prior to the hearing. During a hearing the accused solicitor can object to anything said by the SRA, make a submission of no case to answer, give evidence and call witnesses. The media is duty-bound to ensure fair and accurate reporting of such proceedings. On the other hand, it was claimed that publication before the hearing took place of unproven and uncontested allegations was “an entirely separate issue” and was a misuse of the principle of open justice. Placing such allegations on the SRA website prior to the hearing meant that:
“…many who consult the SRA website may take the view that there is no smoke without fire, with disastrous consequences for the solicitor's practice.”
On this basis, the Claimants’ stance was originally that the allegations should not be published before the public hearing had begun.
However, there was subsequently a “change of tack” by the Claimants and in their skeleton argument no express mention was made of the issues being “entirely distinct” prior to the hearing as opposed to once it had begun. Instead, stress was laid on the allegations being published “many months” before the hearing. It was accepted that the principle of open justice means that the public are entitled to know a few weeks before the hearing who is to be the subject of the hearing and what the allegations are. Instead, the Claimants claimed that publication by the SRA of the allegations identifying the Claimants any earlier than three weeks before the hearing would be unlawful. This was referred to by Mr Justice Walker as “the 3 week maximum assertion”.
Mr Justice Walker noted that there were consequences to the change of tack by the Claimants. The first consequence was that the Claimants now accepted that an accused solicitor must “run the risk” that some may think there is no smoke without fire for up to three weeks before the hearing. The second consequence was that some principled basis must be sought for arriving at a period of up to 3 weeks.
Mr Justice Walker went on to describe what he considered to be two “knock-out blows” to the application. Those being, firstly, that a public SDT directions hearing will often take place and secondly that, in this case such a hearing had already taken place. Mr Justice Walker stated that:
“It must now be recognised that accused solicitors may well, if there is a directions hearing, have to acknowledge that the public can be informed of the allegations during a period of months between the directions hearing and the substantive hearing. To my mind this puts a very different complexion on many of the complaints about the policy, to such an extent that it would not be right to seek judicial review of the policy in judicial review proceedings which do not take account of the impact of directions hearings. This is the second knock-out blow, and it means that the present judicial review proceedings must fail.”
Period of publication
As to the reasonableness or otherwise of the length of time prior to the hearing that the allegations were published, Mr Justice Walker observed that:
“Within the spectrum the disciplinary regimes for certain other professions envisage publication of allegations two to three weeks before a public hearing. That provides no basis for saying that earlier publication is inappropriate for solicitors…solicitors have very important roles and duties in relation to client funds and the like, roles and duties which are not generally assumed by those practising the professions cited by the claimants. I add that the potential impact [in individual cases] would be a matter for consideration by the decision-maker under the publication policy.”
This lengthy case highlights the well-established open justice principle that, in regulatory proceedings, there will be publication of the allegations prior to the hearing concerning those allegations. What constitutes a reasonable period of publication will vary between cases and is a policy matter for the regulatory body.
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