Response to the Consultation on the making of Procedural Rules in relation to Applications to the Tribunal

Between 16 July and 8 October 2018 the Solicitors Disciplinary Tribunal (“the Tribunal”) consulted on the making of procedural rules in relation to first instance applications to the Tribunal. The Tribunal invited views on whether it should apply the civil (instead of criminal) standard of proof in line with other professional regulators. It also sought comments on proposed new draft rules to update the current Solicitors (Disciplinary Proceedings) Rules 2007.

The Tribunal received 28 external responses to the consultation which it considered very carefully and, as a result, is now in a position to respond to the consultation and to bring forward the version of the proposed rules that it will submit to the Legal Services Board for approval. The proposed new rules specify the standard of proof that the Tribunal will apply to proceedings commenced after these rules are enacted.

The application to the Legal Services Board will be made within the next few weeks. Subject to the Legal Services Board’s decision and the making of a Statutory Instrument, the Tribunal’s goal is for the new rules to come into force on 25 November 2019 to coincide with the date on which the SRA’s new regulations will come into force.

Edward Nally, President of the Tribunal said:

 “I am pleased to present our Response to the Consultation. Once enacted these new rules will replace our existing 2007 Rules.

At the outset of the consultation I said that this was a perfect opportunity for the Tribunal to tackle the question of the appropriate standard of proof to be applied in the future. I take the view that any modern regulatory or judicial tribunal, such as the Tribunal, must keep pace with trends in a fast developing environment. We should lead on a key issue such as this, which is what we are seeking to do here. Our overriding consideration always has to be the maintenance and protection of the interests of the public. Added to that must be the maintenance, and indeed enhancement, of the reputation and standing of the solicitors’ profession.

Those who responded to the consultation question about the standard of proof that the Tribunal should apply articulated with eloquence and passion the arguments for and against a change to the standard of proof. After careful scrutiny and consideration the Tribunal is proposing to move to the civil standard of proof as and when these new rules are enacted.  The Tribunal believes that the protection of the public interest, and the promotion of the reputation and standing of the solicitors’ profession will be enhanced by this change.

For those who believe that this move will result in “easier” prosecutions of alleged misconduct breaches I respectfully reject that proposition. The Tribunal will continue to scrutinise robustly all allegation brought before it, and will continue to look for and identify cogent and compelling evidence before finding allegations proved.  

I commend the detailed Response to you all, which explains in detail these proposals and many others that are addressed in our new rules beyond the issue I highlight above.”

The Tribunal’s decision to move to the civil standard of proof was made after very careful consideration of the arguments for and against a change to the standard of proof. The fact that the Tribunal is currently in a minority amongst other similar tribunals, in applying the criminal standard, was not a factor in its decision to alter its standard of proof. However, and to set this decision into context, the move to the civil standard means that the Tribunal will be applying the same standard of proof as the majority of other professional disciplinary bodies and tribunals, including the Bar Standards Board which moved to the civil standard of proof for allegations of misconduct arising from 1 April 2019. 

The consultation response is available here.