Whatever the result, most defendants at the Solicitors Disciplinary Tribunal do not want to talk publicly after proceedings are done with. Martyn Day, senior partner at human rights firm Leigh Day, took a different approach, inviting the Gazette to discuss the case and its effects. Here is the full transcript.
Two weeks on from the verdicts, how do you assess the case?
From when the SRA first started putting their case to us, I have always felt that we were totally innocent of the charges that were being made against us, but I have been around long enough to know that many an innocent man or woman have gone down so even though I felt we were innocent it was never impossible that you could get a tribunal that just doesn’t like you. Even though I always felt confident in myself that we had a strong case, there was always that risk as we approached that Friday 10 days ago that I was seeing the last of my practising career. It is quite a cloud that hangs over you for the whole duration, but to be frank I have always been somebody who has rather thrived on adversity, it is the sort of cases I do. Also I am not the sort of person to worry too much – it was a stress but I wouldn’t overplay that. Actually I quite enjoyed a lot of it.
You seemed very relaxed through the whole proceedings?
It’s my nature. It drives my wife mad, she said she was far more stressed than me. I have never in my life been a person who gets particularly stressed by things and I quite enjoyed the challenge. I don’t want to go over the top – there were undoubtedly stresses in it, mostly for the firm. I was worried for the firm rather than for me personally, and that was as much to do with the fact I never thought I had done anything wrong. We made some mistakes along the way, absolutely. But doing something wrong in a way that was misconduct? Never. I think if I felt I had made a really major muck-up then that would have been different but because I felt all along that I just hadn’t, I felt comfortable with myself.
What was your view on the charges being based so much around the competence of the firm?
We didn’t fully understand that in the early days but certainly as the SRA case was unfolding, not least in the opening submissions by the SRA, it became clear that was a major part of what the case was all about: when does a mistake become misconduct. I was amazed actually at the line they were drawing, because basically it would give them the ability to go into any single firm in the whole country and come up with misconduct charges because we are all human, we all make mistakes. For me the notion that is actually misconduct and all the tribunal has got to do is decide on the level of the sanctions, it seemed to me to be a million miles away from what I had always understood to be what is actually the role of the regulator and the role of the rules. I was quite shocked actually that was even being put forward as their case.
Do you have any regrets at all about how you handled the case?
I recognise there were a number of areas where we could have done better. Undoubtedly the failure to spot the significance of the OMS list [of detainees] was one of those areas. Yeah, if I had my time again I would have been scouring that document massively in the opening days, so absolutely I have always felt, and as I said on the witness box, we felt we didn’t do as well as we should have done. We feel that we do a good job, we pride ourselves in being good lawyers, we take on tough cases, we are against often the biggest firms in the land, so we need to be able to operate at a high level and in a couple of areas we felt that we didn’t live up to our expectations of ourselves.
One of the charges related to endorsement of your clients’ claims at a press conference. Would you approach the case in the same way if you had your time again?
In life you learn lessons all the time. We are clearly moving to a world where the regulator is a much more powerful entity. That, to be fair to the SRA, is not just true of them, it is true more widely in society that the regulators in the financial sector and the accountancy world, the medical world, undoubtedly are becoming tougher beasts. The expectations on lawyers to follow the rules in a very clear way becomes ever stronger. I recognise that and I recognise that we as a firm, obviously the last thing we ever want to do is go back through this again – it was tough for me individually but it was pretty traumatic for the firm and a lot of people. The last we ever want to do is repeat that so undoubtedly we will be that bit more cautious when it comes to taking steps like holding a press conference or putting out a press release. Undoubtedly it means rather than looking twice at it we will be looking three or four times at it.
And the handling of documents, which formed such a big part of the case?
We have had lots more seminars, discussions, instructions notices to solicitors, about where we get the documents from, making sure that we know who the documents arrived from, who’s given it to us and instructions in relation to the rules about destruction and all that. So we have always had quite a lot of stuff but I think we have definitely intensified the whole issue about document handling.
You were questioned on whether you felt regret about the effects of the claims on British soldiers. How did you assess that element of the case?
I have been operating as a lawyer for nearly 40 years. I think I am pretty clear about where my duties lie, my duties in terms of my understanding of the law and the rules are not to be concerned about the defendant. I find that very peculiar from the regulator, the suggestion that I should in some way apologise. Where does that end up? Our job is to present cases, our job is to take claims on on behalf of people and in a lot of cases you are going to turn out that the claim is lost, abandoned, struck out or whatever. But the idea that our job is then to start apologising to the other side for simply doing our job of representing people, well I think that was just very strange. I didn’t really understand it.
There will be people who feel this was different because of the nature of the defendant.
To be frank, we spend a lot of our working life suing the Ministry of Defence, these are not unusual cases. Undoubtedly where there are serious allegations being made then we absolutely investigate that to a reasonable degree. A lot of this is about the response of the Ministry of Defence to the cases that we put forward. Obviously if they come back with a strong defence then either we won’t take the case or we will investigate it very thoroughly before issuing proceedings. But that’s the process and the fact that there are soldiers at the end of it… there are lots of cases involving lots of different people where it is quite traumatic to have a case brought against you. That is simply the law of being cross-examined. It’s a tough process – I have seen it myself for four days – but that is simply the law, that is justice, that is the way our system operates, that is simply it, whether you are a soldier, a teacher, a police officer, a doctor who is accused of negligence, a solicitor accused of negligence, that is simply the way that justice works, so I thought the idea we should apologise for the system was nonsense.
How did the case affect the firm itself?
I shut myself down in terms of the firm during this period for me it was crucial that I kept on top every day of what was going on in the tribunal. For the duration I stood down as being senior partner for this period. I didn’t go to any firm meetings for a month or two before the tribunal started. I didn’t actually get involved in telling anybody about what was going on, I just left that to others. In the end it was my job to be totally on top of the case in terms of the cross-examination and also in terms of the instructions to counsel.
Has it damaged the firm?
As far as I know we have not lost a single case, no one has said to us ‘sorry I am not carrying on with you, Leigh Day’. We don’t know whether people who might have come to Leigh Day read some of that stuff and decided not. Certainly nothing that is overt. Actually in terms of having a reputation as fighters, that it will have done us a lot of good. We stood up and were not found wanting.
Did you read any of the coverage of the case as it was going on?
Me, Anna and Sapna purposefully kept away from the media during this period, didn’t read a single thing. We really agreed we had to be just focused on what was going on in that courtroom, the moment you start getting involved in reading stuff – say you read something and say that’s not right and you start liaising with the other partners that we should write to the journal – that will take up hours of every day. Mentally you don’t want to be spending your time worrying about what the rest of the media has to say. In the end the crucial thing was going to be the result – that was always the issue. The best way the three of us could make sure that the case was as strong as possible was to totally focus on the tribunal. Even to this day I have not read all that stuff. That is not to say I didn’t see the front page of the Metro because I did. It was on my train which I get in from Greenwich with about three or four people reading it and one chap looking at me thinking ‘that looks familiar’.
Will this case have a profound impact on the solicitors' profession as a whole?
The whole debate is about when does a mistake become misconduct. That is absolutely fundamental to us as professionals. I would have thought it would send a shudder down all solicitors’ spines, the idea that the regulator says that a mistake above de minimis is potentially misconduct.
I think that quite a lot of people over the last six months in particular have to me and said ‘wow’ in terms of how the SRA presenting their case against [us]. They were really shocked as to what [the SRA] say is misconduct – whether that is the shredding of the individual document, failure to spot the significance of the OMS list, the whole debate about what sort of system we should have for documents. If those charges had been proven then I would have thought every solicitor in the country would have feared the knock of the SRA on their door because it would have meant that they could really have chosen any firm at will to go into, knowing they would have made mistakes because we are all human and they could then bring misconduct charges. What a scary world that would be.
Were you surprised to have been charged?
We were very surprised at the width of the charges and allegations against us and quite how wide-ranging they were. When the SRA first came to us, I rather assumed, as a pretty straight sort of guy who never felt we had done anything wrong, they would have appreciated that we are people who try and do our damndest for our clients and we may at times have poor judgment or make the odd mistake. But actually fundamentally I think we are out there to do a bloody good job for our clients. I rather assumed that would be sufficient, so I was very surprised at what they were trying to throw at us.
How much of an influence did the government have over this case?
The political backdrop to the case was always very strong. In how many cases do you have the prime minister standing up in the House of Commons and actually slagging lawyers off and basically encouraging the regulator to prosecute? We always felt there was a strong political element to what was underpinning the case against us. The SRA have said they only ever pursued it because they felt there was a genuine case to be brought. Well, we have seen what the outcome was. We always felt very strongly that the Ministry of Defence in particular but all the way up to the prime minister, him and then herself, they had a very big political battle to fight attacking the Human Rights Act, attacking human rights lawyers and we were the right people at the right time as far as they were concerned. This all became a part of that bigger picture of a political game.
There was a very strong political element to the backdrop to this case. Quite how much that influenced the SRA is difficult to tell, but that political influence was absolutely clear in terms of what was coming out of the likes of Sir Michael Fallon, David Cameron, Theresa May – that has some impact.
Will Leigh Day be cowed from challenging the government again in the future?
Hopefully not for a single second. We will undoubtedly learn lessons as we don’t want to go through all this again and there are areas that we will be a little bit more cautious about, but I would hope that would not affect what we do in any significant way. If we hold a press conference or put out a press release we will look at it three or four times rather than just twice. We will check things more but I would hope fundamentally it doesn’t stop what we were made to do and that is bringing the government and multinationals to account.
I have little doubt as we are learning lessons, so the regulator will learn lessons. They may well think twice about taking on us or other human rights practices who are going about doing a decent job, before they on anything like this again. Equally we don’t want the regulator knocking on our doors so we learn lessons and will try and make sure wherever we can we are as watertight as we possibly can be in terms of what the rules are.
With our sort of work, at times it is unusual work and doesn’t work in the same way as the normal city or high street solicitor so at times it is not always easy to say ‘how do the rules apply if you are walking through the forests of Colombia or difficult areas like Nigeria or the Ivory Coast – it doesn’t always transmit into the same sort of stuff. But as much as we absolutely can we do not want to cross swords with the SRA again, and hopefully they feel the same.
What will you take from this experience?
Hopefully it doesn’t fundamentally change what we do, and I hope that everyone in the human rights world feels the same, that they will all be learning. One of the biggest lessons is for god’s sake get insured. We found that our insurance cover under the PII that we had doesn’t cover this sort of work and we were very lucky we had taken out 10/15 years ago cover. We took out directors' and officers' insurance and the big message I would pass out to the profession is check your insurance – if you are not insured for cover in relation to the regulator then for god’s sake go out and get it tomorrow. If they come in it is serious stuff. You really need to be in a position where you can properly defend yourself and get in decent lawyers, both solicitors and barristers who can do it, and absolutely you want to make sure you are in a position where you can properly defend yourself. Obviously Phil Shiner was a good example of somebody who wasn’t in that position. For me I feel that the human rights world in particular, and lawyers across the land, should go and check their insurance because normal PII does not cover this sort of work. If we had not got out this other policy we would have been knackered.
We would have fought the fight but we would have had to have done it on the cheap rather than getting in decent silks and a decent law firm to represent us. We may well not have been able to afford that, and we are a big firm compared to most human rights practices. That seems to me a massive lesson for the profession: with the modern regulator operating in this much tougher way than we have ever seen in the past, that having the insurance to make sure you can properly defend yourself seems to me rather fundamental.
On a personal level, do you plan to take a step back or will you return to full-time practice?
I have loved my work for nearly 40 years that I have been a lawyer and there has been no greater pleasure than getting back into the saddle and working on my cases. On Sunday I am travelling to Sierra Leone on a big case that we’ve got in trial in January and going back out to see my clients. There is nothing I would rather be doing in my life, so I am not sitting at home chilling, I am getting on what I love.
If things had gone differently, this could have been the end of your career?
Even though I had always felt strongly that we were not guilty of these various charges I recognised there are many case where innocent people have gone down. In the framework of this, I didn’t spend a lot of time dwelling on it as I felt reasonably confident we would be all right, but that’s not to there was not the odd moment when I was thinking: ‘would I end up playing a lot of tennis’.
I am 60 and so if the worst had come to the worst, I was prepared for it. I never thought I had done anything wrong and you have got to have the confidence in yourself. I felt I could always live with myself if in the end the tribunal had decided we should be struck off for terrible reason. Even though it would have been painful I would have lived with it because I felt within myself it was likely we would get off.
I have had messages not just from human rights lawyers in the UK but abroad: people saying they would be really worried that the atmosphere is changing about lawyers operating in the human rights field internationally and that they have been delighted that we have been able to successfully bat off these allegations. I think it has been seen as being a major case not just in this country but internationally.
Lawyers from other firms were at the hearing itself in support. What has been the reaction from the profession?
It has been lovely – people I have never met, never heard of. I live near Greenwich Park and was walking the other day and this chap jumped out and said ‘you don’t know me, I’m a solicitor, I just want to say how delighted I am you were found not proven because it would have been a disaster if they had gone the other way.’ It was rather sweet. It has had quite a resonance in the legal world, not just in the human rights world but more widely, that people really worried as to the line that was being taken.
I am very proud to be a lawyer. I could have taken various careers, I might have gone into politics, but actually being a lawyer is a fabulous profession and suits me as a person very much. I love being able to put together a team and seeing the youngsters grow and develop and I love being able to put our resources at the behest of people who have been treated so badly.
I have been through quite a lot of my 40 years in the law, I have had many a case big and small and you learn in life there are ups and downs and you take it in your stride. It was a really good day on that Friday and obviously we enjoyed the result. It was very gratifying to find the tribunal was with us.