Regulatory Settlement Agreements and Agreed Outcomes
Exploring a settlement
It is nearly always worth exploring a settlement once SDT proceedings have been authorised or commenced. A mixture of costs awareness and pragmatism tends to make anyone involved in these proceedings turn to settlement as way of resolving them without a highly stressful, time consuming and expensive hearing.
Efforts to do this should be started right at the beginning of the process, when explanations are provided. That alone can have profound costs implications should the SRA decline to settle and subsequently proceed and not succeed. Given the restrictive way in which the Tribunal must make costs orders, informed advice and guidance at this stage can be invaluable.
Once an authorised officer at the SRA has made a decision to refer a solicitor to the tribunal it will inevitably take time for those proceedings to be drawn, filed with the Tribunal and then served. This provides a further opportunity to try and reach an agreement either with an externally instructed solicitor, or another within the SRA’s legal department. A fresh eye and a fresh approach can sometimes result in a different attitude.
A Regulatory Settlement Agreement (RSA) is a document that records the terms of agreement reached between the SRA and the solicitor. There is usually a limited opportunity to enter into an agreement and the process inevitably places time pressures on the solicitor.
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RSAs will contain admissions of misconduct of one sort or another, but they also include explanations and mitigation. The SRA will not usually refuse to allow the inclusion of reasonable mitigation. Crucially, RSAs are an opportunity to agree costs at an early stage in the process and these will always be substantially lower than those which may later be imposed by a Tribunal. The difference can be huge.
RSAs do not usually involve the Tribunal in approving them.
An Agreed Outcome is different altogether. It is a document presented to the Tribunal for approval and effectively becomes its judgment. Agreed Outcomes take different forms. Some record agreed facts and the misconduct arising from those facts and leave it to the Tribunal to determine the sanction. It can be a very useful way of restricting the underlying facts to be presented to the Tribunal, rather than fighting it out in evidence. Others may go further and contain an invitation to the Tribunal to impose a particular sanction.
Agreements, whether reached before or after the commencement of disciplinary proceedings, are a valuable way of limiting damage and restricting or controlling costs. Offers to agree can be seen as a clear willingness to cooperate which ultimately the Tribunal may take account of at a much later stage in relation to sanction or costs or both.