Solicitors Disciplinary Tribunal (SDT)
Sanctions and Costs
The Sanctions and Orders available to the Tribunal in respect of solicitors are derived from Section 47 of the Solicitors Act which gives the SDT power to “make such order as it may think fit” as well as and of the following:
- No Order – appropriate where there is, for example, a technical inadvertent accounts rules breach but with no adverse consequences;
- The imposition of a reprimand;
- The imposition of an unlimited fine. This year (2017) there have been two substantial fines of £250,000 and £500,000 imposed as examples of the way large law firms might expect to be dealt with. The SDT will also consider imposing a fine which takes away any financial advantage gained through misconduct;
- The imposition of restrictions upon the way in which a solicitor can practise;
- Suspension from practice indefinitely or for a specified period;
- Striking off the Roll;
- Terminate a period of suspension;
- Restore to the Roll following a strike off;
The Tribunal is not restricted as to the number or combination of sanctions which it may impose.
The SDT’s current Guidance Note on Sanctions is at LINK. This reiterates its function “to protect the public from harm, and to maintain public confidence in the reputation of the legal profession (and those that provide legal services) for honesty, probity, trustworthiness, independence and integrity. The public must be able to expect to receive a high standard of service from a competent and capable solicitor”.
There are three stages to the approach on sanction. The first is to assess the seriousness of the misconduct. The second is to keep in mind the purpose for which sanctions are imposed. The third is to choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.
That said, SDT has a complete discretion and is not confined by its Guidance Note. Solicitors preparing to present mitigation need to do so thoroughly and should never make the error of anticipating a particular sanction to the exclusion of all others.
Costs awards in the SDT has been and remains a contentious and at times controversial subject. The SRA can run up substantial costs particularly when it instructs senior or leading counsel, or indeed its external solicitors. This can often seem an unstoppable process with the worry over costs being just as much a concern as the allegations themselves.
It is well established that an order for costs should not serve as an additional punishment, but should compensate the applicant for the costs actually and reasonably incurred in bringing the proceedings. However, there are very many Judgments containing costs figures that are often seen as disproportionate and punitive.
As I know how the SRA works I can bring real value to proceedings on the issue of costs.
When allegations have been admitted or found proved SDT will usually make a costs order against the solicitor with the only real issue being the amount to be paid.
When the SRA fails in its prosecution the opposite does not necessarily follow. The following principle does apply:
“In respect of costs, the exercise of its regulatory function placed the Law Society in a wholly different position from that of a party to ordinary civil litigation. Unless a complaint was improperly brought or, for example, had proceeded as a “shambles from start to finish”, when the Law Society was discharging its responsibilities as a regulator of the profession, an order for costs should not ordinarily be made against it on the basis that costs followed the event” (per Laws LJ, Baxendale-Walker v The Law Society  EWCA Civ 233).
In day to day practice the SDT has a very wide discretion and will make finely balanced judgments when determining how to deal with costs when the SRA loses in full, or only partly succeeds.
SDT will also take account of good quality financial information provided by the solicitor in advance to show what is affordable.
It is a regular feature of these proceedings that SRA makes multiple allegations some of which are appropriate and some not.
I understand how the process works and can:
- Minimise the scope of proceedings either by reducing the number of allegations or confining the facts;
- Negotiate with the SRA;
- Take steps to protect your exposure to costs. By identifying errors or misunderstandings in prosecutions at an early stage in the proceedings and using case management hearings effectively much can be done to mitigate costs and to influence the final outcome. Work done at an early stage can be invaluable;
- Give you realistic advice on all issues based on experience. SDT attaches great weight to the way solicitors conduct themselves during the investigation and prosecution, and this is where I can bring guidance and real value.