SRA investigations: what should you expect from the SDT process?

In Part 3 of this series, Professional Discipline solicitor Hannah Pilkington looked at what cases may be referred to the Solicitors Disciplinary Tribunal (SDT). In this Keynote, Hannah outlines what to expect from the SDT process.

The SRA is issuing a case at the SDT: what do you need to do next?

The SRA will prepare a document setting out its case and the evidence relied on – the Rule 12 statement. It includes formal allegations, which may not be exactly the same as those at the Notice stage.

Once this document is sent to the SDT along with an application to issue the case, it will be considered by a single Tribunal member (who is a solicitor). They will review the case and certify it as having a case to answer or not. The vast majority of cases issues by the SRA are certified. Once the case is certified, you will be notified by the SDT and served with the papers.

As soon as you are served with the papers by the SDT, it is very important that you obtain advice. You will need to prepare a formal Answer to the Rule 12 statement, signed with a statement of truth. Not only will that be before the Tribunal, but a well-drafted Answer can challenge the SRA’s case and cause a review. Further, the Answer is likely to be published on the SDT’s website.

Once your Answer has been filed, there will usually be a case management hearing to set directions for witness statements, further disclosure, and the final hearing. These take place remotely via Zoom. You may be able to avoid the costs of a case management hearing if an agreement is reached with the SRA on the procedural steps.

You may need to:

• obtain and file witness statements,
• consider whether you are going to provide a statement and give evidence,
• consider if you can rely on character evidence (and at what stage), and
• prepare submissions.

It is very important that you are assisted to prepare to give evidence well, and to establish remediation and insight.

During this time there can still be without prejudice discussions to reach an Agreed Outcome (AO), but any AO needs to be submitted more than 28 days prior to the final hearing, as otherwise Tribunal leave is needed. The SRA will be more likely to engage in without prejudice discussions if an agreement can be reached earlier in the proceedings.

Can I adjourn the hearing?

To adjourn a hearing, you will need to make a formal application to the SDT. It will want to know if the SRA agrees to the adjournment or not. If it is because you are unwell, you will need proper medical evidence, more than a GP certificate, and may need an expert to be instructed on your behalf.

The SDT is unlikely to delay a hearing because you have decided to instruct a solicitor or barrister and they are not available, or because you need more time to prepare. Adjournment applications should be made with plenty of time before the hearing if possible.

What is the SDT hearing like?

Your case will be heard by three Tribunal members, who will be assisted by a legally qualified clerk. The hearing can take place in person or remotely. Hearings are usually public and can go ahead even if you do not attend or engage in the process.

The first stage will be the Tribunal hearing the SRA’s opening submissions and factual evidence. You will have the chance to give evidence, call witnesses, and make closing submissions. Witnesses can be questioned by both sides and by the Tribunal. The Tribunal then decides what factual allegations have been proved, and what Principles or parts of the Code of Conduct have been breached.

If nothing is proven, that is the end of the matter save for arguments about any costs orders. If allegations are proven, a brief decision will be read out in court.

At stage two, the Tribunal then considers what sanction should be imposed, and what costs order should be made. You can make submissions and call further evidence to mitigate any sanction. They do not usually hear from the SRA on what sanction it thinks is appropriate other than in unusual cases.

You can challenge whether it is right that the SRA recovers its costs, and the amount of any costs. You can also include evidence of your financial difficulties which may be relevant to paying a fine and costs.

Once the SDT has made it decision on sanction and costs, it will read the order in open court. A written judgment is available about 6–8 weeks after the hearing and is usually published.

What can the SDT order against me?

The SDT will apply its own sanctions guidance when deciding on what order to make. Any order should take into account any aggravating or mitigating factors.

The SDT can impose anything from “no order” up to striking a solicitor’s name off the Roll. It can impose conditions on your practice, or suspend you.

In cases where dishonesty is found proved, the usual sanction is a striking off order. There can be arguments made that the dishonesty was in a “moment of madness” or other exceptional circumstance which may make a striking off inappropriate. If you are facing a case of dishonesty or considering admitting dishonesty, you should obtain specialist advice on the likely serious consequences.

A sole practitioner must consider carefully the potential impact of conditions, such as, in some cases, limiting your ability to handle client money or act as owner or manager of a firm.

Unlimited fines can be imposed and will be fixed to reflect the seriousness and be proportionate to the misconduct. If you are facing financial difficulties, appropriate evidence should be submitted to support submissions that fines should be reduced.

Will I need to pay the SRA’s costs?

The SDT can order that you pay the SRA’s costs, and these can be substantial.

It is the usual starting point that you pay the SRA’s costs if it proves allegations against you. However, if the SRA has only proved some but not all, or only a few of the allegations, submissions that costs should be reduced, or no costs ordered at all, can be made.

If the SRA does not prove its case against you, it is not necessarily the case that it will pay your costs. You will need specialist advice as to whether there is scope to bring a claim for your costs to be paid and to help prepare submissions.

You will usually receive at least two costs schedules from the SRA, one for the costs up to issuing the case, and an updated one to include the costs incurred through the case to the end of the hearing. These may include costs incurred in the SRA investigation before referral, including the costs of a forensic investigation including office visits.

If you reach an AO, you will usually be expected to agree to pay a proportion of the SRA’s costs. You may be able to agree a reduction if you can reach an AO at an early stage. You may also be able to agree a payment plan once the final amount has been agreed and the AO approved.

Can I appeal?

You (and the SRA) can appeal final decisions of the SDT. Appeals must be made to the Administrative Court, which is a specialist part of the High Court. You can appeal up to 21 days after you receive the SDT’s written judgment.

If you are considering an appeal, you should obtain specialist advice urgently as the time frames are very short. You should obtain advice on the merits of an appeal, as you can become liable for the SRA’s costs of defending any appeal.

If you have questions or concerns about a SRA investigation, please contact Hannah Pilkington.