Acting to stop harm: the FCA and Appointed Representatives
It took a six-week hearing before the Solicitors Disciplinary Tribunal and a further six days in the High Court, not to mention in excess of £7 million of legal fees, for the London firm to clear its name.
Yet this extraordinary battle is unlikely to have much impact beyond the immediate combatants.
It was a case that turned on its own facts. It created no new legal principle and in that sense is dwarfed by the two huge cases of the last year in professional discipline, Ivey v Genting, which went to the Supreme Court, and SRA v Wingate & Evans, a Court of Appeal ruling.
In the Leigh Day case, there are some useful observations about how professional misconduct means more than a simple breach of the SRA code – but apart from that, the saga will not be regularly cited for years to come.
However, the case has undoubtedly been a bruising experience for the regulator – not least in terms of cost but also as a body that normally wins big cases. No factual stone was left unturned, but still it came up short.
Nonetheless, the SRA can rely on the origins of this case to justify its actions. Harsh criticism of Leigh Day and another firm, Public Interest Lawyers, by the government following the collapse of the Al-Sweady Inquiry left regulators with little choice but to bring proceedings.
For Leigh Day, the firm can now focus again on core work. The High Court judgement contains some sharp criticisms and the partners accepted that they made mistakes.
But there will be huge relief that what may have seemed an existential threat has passed. As all of us who work in this area understand, it is an unpleasant feeling when the SRA has you in its sights and appears unable or unwilling to accept any explanation. Leigh Day has done well to weather the storm.
Does this case present a template for how to deal with SRA investigations and proceedings? No. The standard tactic is to admit the unavoidable and contest the more serious matters. Insight is hugely important in professional disciplinary proceedings and complete denial can be an extremely high risk strategy.
Even if the SRA is only partially successful, such an approach usually leads to a much harsher sanction. Leigh Day took that risk, largely because the nature of the allegations against the firm meant that it had little choice.
The one organisation that did well out of the case was the Solicitors Disciplinary Tribunal. The High Court described its decision as “impressively thorough” and the reasoning of its majority was upheld in its entirety.
The tribunal again demonstrated its independence from the SRA and its importance in the regulatory framework for solicitors and law firms.
Iain Miller is a partner in Kingsley Napley, a London law firm, and chairman of the Association of Regulatory and Disciplinary Lawyers.
This blog was first published by The Brief on 23/10/18.
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