Solicitors Disciplinary Tribunal

Nigel West

Description

The Solicitors Disciplinary Tribunal (SDT) has the power to strike off a solicitor from the roll, suspend a solicitor from practice, fine or reprimand a solicitor or make such other order as it thinks fit. Whilst over 90% of all cases brought before the SDT are brought by the SRA, it is open to anyone to bring a matter before it.This book provides a unique step-by-step guide to the law and practice of the Solicitors Disciplinary Tribunal, from the issue of proceedings through to appeal. Its practical approach will help anyone who wishes to avoid the common pitfalls faced by unfamiliar users of the Tribunal.It is the only comprehensive book available on SDT proceedings and it contains all the leading cases on Tribunal proceedings, many of which are not available on the internet, in one handy volume.

Sujets

• Droit et juridique
• Inglaterra
• Wales
• England

Informations

• Publié par: Law Society
• Date de parution: 18 février 2016
• Nombre de lectures: 0
• EAN13: 9781784460440
• Langue: English

Extrait

The Solicitors Disciplinary Tribunal
 
 
Other titles available from Law Society Publishing:
Compliance and Ethics in Law Firms
Tracey Calvert
SRA Handbook (November 2015 edition)
Solicitors Regulation Authority
The Solicitor’s Handbook 2015
Andrew Hopper QC and Gregory Treverton-Jones QC
Titles from Law Society Publishing can be ordered from all good bookshops or direct (telephone [phone], email [e-mail] or visit our online shop at www.lawsociety.org.uk/bookshop ).
The Solicitors Disciplinary Tribunal
Law and Practice
 
 
 
 
 
Nigel West and Susanna Heley
 
 
 
 
 
 
 
 
 
 
 
 
All rights reserved. No part of this publication may be reproduced in any material form, whether by photocopying, scanning, downloading onto computer or otherwise without the written permission of the Law Society except in accordance with the provisions of the Copyright, Designs and Patents Act 1988. Applications should be addressed in the first instance, in writing, to Law Society Publishing. Any unauthorised or restricted act in relation to this publication may result in civil proceedings and/or criminal prosecution.

The authors have asserted the right under the Copyright, Designs and Patents Act 1988 to be identified as authors of this work.

Whilst all reasonable care has been taken in the preparation of this publication, neither the publisher nor the authors can accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of relying upon its contents.

The views expressed in this publication should be taken as those of the authors only unless it is specifically indicated that the Law Society has given its endorsement.

© The Law Society 2016

Crown copyright material is reproduced with the permission of the Controller of Her Majesty’s Stationery Office

ISBN-13: 978-1-907698-95-8 (paperback)
ISBN-13: 978-1-78446-044-0 (EPUB)

Published in 2016 by the Law Society
113 Chancery Lane, London WC2A 1PL

Typeset by Columns Design XML Ltd, Reading
Printed by CPI Antony Rowe, Chippenham, Wilts

The paper used for the text pages of this book is FSC® certified. FSC (the Forest Stewardship Council®) is an international network to promote responsible management of the world’s forests.
Contents
Foreword
About the authors
Acknowledgements
Table of cases
Table of statutes
Table of statutory instruments
Table of EU legislation and international conventions
Abbreviations

1     The constitution of the Solicitors Disciplinary Tribunal

1.1 The statutory framework and the procedural rules
1.2 The Tribunal’s statutory jurisdiction to hear applications and appeals
1.3 Practice Directions
1.4 Terminology
1.5 The members
1.6 The president of the Tribunal
1.7 The vice-presidents
1.8 The divisions and panels
1.9 The clerk and deputy clerks
1.10 The Legal Services Board
1.11 Administration and finance

2     The SRA decision to prosecute

2.1 The SRA – constitution, powers and decision-making
2.2 Referrals to the SDT
2.3 No right of appeal
2.4 Reconsideration of the referral decision
2.5 Judicial review
2.6 Notification to regulatory authorities in other states
2.7 Delays in issuing proceedings

3     Jurisdiction, issue and service

3.1 The statutory jurisdiction of the Tribunal over solicitors
3.2 The statutory jurisdiction of the Tribunal over other regulated persons
3.3 Appeals to the Tribunal
3.4 The parallel jurisdiction of the Senior Courts
3.5 The applicant and lay applications
3.6 The documents required to commence proceedings
3.7 Certification of a case to answer
3.8 Adjournment for SRA to investigate
3.9 Service

4     Public hearings and publicity

4.1 The SRA publication policy on referrals to the Tribunal
4.2 The SRA publication policy on appeals to the Tribunal
4.3 The SRA publication policy on regulatory settlement agreements
4.4 SRA notification to local law societies and other third parties
4.5 The Solicitors Disciplinary Tribunal – listings
4.6 The Solicitors Disciplinary Tribunal – public hearings and judgments
4.7 Tribunal decisions on public hearings and judgments
4.8 The Solicitors Disciplinary Tribunal – circulation of order and judgment
4.9 The Solicitors Disciplinary Tribunal – judgment publication policy
4.10 The Solicitors Disciplinary Tribunal – transcripts
4.11 The Law Society’s records
4.12 The Law Society’s Gazette

5     Rule 5 statements, answers and witness statements

5.1 Overview
5.2 The rule 5 statement
5.3 Rule 7 statements
5.4 Certification of a case to answer
5.5 The Standard Directions for consequential pleadings and for witness statements
5.6 The respondent’s answer
5.7 Failure to serve an answer
5.8 Amendments to the rule 5 statement and other pleadings and statements
5.9 Further and better particulars
5.10 Scott Schedules
5.11 Withdrawal of allegations
5.12 Leaving allegations on the file
5.13 Witness statements
5.14 Statements of truth
5.15 Filing documents at the Tribunal

6     Standard Directions and Practice Direction 6

6.1 Practice Direction 6
6.2 The applicant’s time estimate
6.3 Standard Directions in short cases
6.4 Directions in long cases
6.5 The procedure for the case management hearing
6.6 Failure to comply with the Standard Directions
6.7 Applications to vary or obtain further directions
6.8 Changes to time estimates
6.9 The certificate of readiness
6.10 Conflicts between the Standard Directions and the SDPR

7     Disclosure

7.1 The disclosure obligations
7.2 The procedural rules on applications for disclosure
7.3 Public interest immunity
7.4 Legal professional privilege
7.5 Privilege against self-incrimination
7.6 The SRA’s investigatory powers
7.7 Freedom of Information Code of Practice
7.8 Without prejudice communications

8     Interim applications

8.1 The procedural rules and practice relating to interim applications
8.2 Abuse of process
8.3 Adjournments of the substantive hearing
8.4 Amendments to the rule 5 statement
8.5 Consolidation, cases listed for hearing together and cases on thematic issues
8.6 Delay
8.7 Disability and ill health
8.8 Disclosure
8.9 Extensions of time
8.10 Further and better particulars
8.11 No case to answer
8.12 Res judicata – cause of action estoppel
8.13 Split trials
8.14 Strike out
8.15 Summary dismissal
8.16 Judicial review

9     Evidence

9.1 The general rules on evidence
9.2 Civil Evidence Act notices
9.3 Experts’ reports
9.4 Judgments and convictions
9.5 Notice to admit authenticity of documents
9.6 Notice to admit facts
9.7 Witness summonses

10     Dishonesty cases

10.1 The right to a fair hearing
10.2 The rule 5 statement
10.3 The test for dishonesty
10.4 The trial
10.5 The sanction
10.6 Exceptional circumstances
10.7 Appeals against dishonesty findings
10.8 Restoration to the roll following a finding of dishonesty

11     Types of misconduct

11.1 Overview
11.2 Criminal convictions
11.3 Failure to co-operate with the SRA or the Legal Ombudsman
11.4 Gross professional negligence
11.5 Integrity
11.6 Misleading the court
11.7 Recklessness
11.8 Recognised bodies
11.9 Accounts Rules
11.10 Supervision
11.11 Transactions bearing the hallmarks of mortgage or investment fraud
11.12 Trust of the public in the profession
11.13 Undertakings
11.14 Vicarious liability of co-partners

12     Section 43 orders, RELs and RFLs

12.1 Applications for section 43 orders
12.2 Review and revocation of section 43 orders
12.3 Registered European lawyers
12.4 Registered foreign lawyers

13     Settlements

13.1 Overview
13.2 Informal agreements
13.3 Regulatory settlement agreements
13.4 Agreed outcomes

14     The trial

14.1 The SDPR
14.2 Summary of the trial
14.3 Preparations for trial
14.4 Constitution of the Tribunal
14.5 Preliminary matters
14.6 Oral evidence
14.7 No case to answer
14.8 The respondent’s evidence and adverse inferences
14.9 Character references
14.10 Use of SDT cases as comparables
14.11 Closing submissions on liability
14.12 The decision on liability
14.13 The standard of proof
14.14 Antecedents
14.15 The submissions in mitigation
14.16 The sanction
14.17 The order for costs
14.18 Announcement and filing of the order
14.19 Applications for a stay or suspension of filing of the order
14.20 Functus officio
14.21 The written judgment
14.22 Permission to appeal
14.23 Application for a rehearing
14.24 Transcripts
14.25 Enforcement of Tribunal orders

15     Sanctions

15.1 The statutory framework
15.2 The procedural rules
15.3 The Guidance Note on Sanctions
15.4 The Practice Directions and the Standard Directions
15.5 The purpose of sanctions
15.6 The procedure for deciding the sanction
15.7 Case law on the Tribunal’s decision-making process
15.8 Assessing the seriousness of the misconduct
15.9 Comparable cases
15.10 Multiple allegations
15.11 Allegations against partners and entities
15.12 Personal mitigation
15.13 The normal range of sanctions
15.14 No order
15.15 Reprimand
15.16 Fine
15.17 Suspension
15.18 Strike off
15.19 Restriction order
15.20 Other orders

16     Costs

16.1 The statutory framework
16.2 The procedural rules on costs
16.3 Practice Direction 6 and the Guidance Note on Sanctions
16.4 Tribunal procedure on costs
16.5 The case law on liability
16.6 Financial circumstances
16.7 The quantum of costs
16.8 Appeals against Tribunal orders for costs
16.9 Costs orders on appeals to the High Court
16.10 Enforcement of costs orders

17     Appeals from the SDT

17.1 Overview
17.2 The statutory jurisdiction of the High Court
17.3 The procedure for appeals to the High Court
17.4 The High Court’s powers
17.5 Reviews and re