For most of us, the closing out of January is a blessed relief. No more having to feign interest in Geoff’s dry January (we suspect he lapsed after work last Thursday) or Sheila’s doomed fitness regime. The trees are bare, the weather is miserable and the tax returns are due.
The payoff for such a rotten month is that these doldrums are guaranteed to end. February brings with it early signs of spring, settled routines and nearly being able to leave the office in daylight.
But for the Solicitors Regulation Authority, February has brought no such mercy. Make no mistake, the decision by the Solicitors Disciplinary Tribunal that the SRA should pay Claire Gill’s costs is devastating to the organisation on all levels.
Gill was subject to a failed prosecution relating to an alleged ‘SLAPP’ case, which was dismissed in December. Tribunal panel chair Alison Kellett found the SRA’s case against Gill was ‘legally flawed and unsupported by evidence’. The estimated costs bill (which does not, of course, include the regulator’s own costs) of £1m is likely to be the largest since the SRA had to pay Leigh Day’s costs in 2019.
It takes a decent chunk out of the SRA’s £168m budget for this year and equates to about £5.80 for every practising solicitor paying their annual fees.
This failure is far from a one-off. In January, the SRA was ordered to pay £160,000 to cover the costs of a sole practitioner subject to a ‘fundamentally misconceived’ prosecution. Another law firm partner was awarded £50,000 costs after the SRA missed an opportunity to end its pursuit of him and instead relied on the evidence of its own investigator who was found by the tribunal to be ‘robotic, combative at times and omitted to verify all the relevant facts’.
These costs orders are supposed to be a deviation from the default position that respondents should pay their own costs. The frequency with which the tribunal orders costs against the SRA suggests this is hardly the default position any more.
The Gill case was part of a trend of the SRA failing to successfully prosecute solicitors alleged to have misused the threat of litigation in pursuit of their client’s interest. Last month the Administrative Court allowed an appeal from Osborne Clarke partner Ashley Hurst who had been fined £50,000 for such SLAPP-like behaviour. The court this time directed much of its ire at the tribunal itself, saying the decision against Hurst was ‘insufficiently analysed and reasoned, vitiated by misdirection and error of law, and unfair’.
To compound a bad month for the SRA, it ended with the tribunal clearing a third solicitor named in a Daily Mail report in 2023 over advice given to purported asylum seekers. The reports at the time were fodder for the media and the then-government, which sought to exploit the story. Justice secretary Alex Chalk had called publicly for immediate action against those involved and the SRA shut down three firms within days. The chair Anna Bradley had replied to Chalk at the time raising the issue of the SRA being given wider fining powers.
These various difficulties reflect criticisms that have dogged the SRA for years. On the immigration solicitors’ cases and to a certain extent SLAPPs, the regulator appears to have been influenced and even guided by political opinion. It is not the job of an independent regulator to do the government’s bidding or help to pursue its political agenda.
On SLAPPs, does the SRA even understand what malfeasance it is trying to eradicate? Has it been so swept up on this dangerous surge of ‘something must be done’ that it neglected to identity exactly what this something should be?
And on the costs orders, each case was marked out by a refusal to accept an alternative opinion, or to listen to what solicitors were trying to tell it. This obstinacy and tin ear approach ran through the disastrous (non) actions leading up to the collapses of Axiom Ince and SSB Law – both episodes which did enormous damage to the organisation. Investigators cannot be allowed to plough on in the face of weakening evidence or plausible explanations, to the point that the tribunal finds cases were improperly brought. Not every case will be won, but every case should be professionally handled.
None of which is the fault of incoming chief executive Sarah Rapson, but all of which ends up being her responsibility. She has been relatively quiet since joining in November but one must hope she is initiating fundamental changes behind the scenes. Or else the SRA’s winter of discontent will endure long after the leaves have grown back.
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