A senior solicitor overseeing claims against the Ministry of Defence missed several chances to notice and produce a document that could have fatally undermined the case, the Solicitors Disciplinary Tribunal heard today.
The tribunal heard that Sapna Malik unknowingly took a list of detainees, known as the OMS list, on fact-finding trips to Damascus and Istanbul in 2007 and 2008.
She also drew up a list of key documents to share with Phil Shiner, director of Public Interest Lawyers, the firm leading a judicial review into the treatment of detainees, but did not send them.
The OMS list was on this initial to-do list. Malik told the tribunal this was an ‘oversight’ and it was ’difficult to find an explanation’ for that failure to disclose. The list itself highlighted links between the detainees – clients of Shiner’s in the JR and Leigh Day’s in civil proceedings – and the insurgent militia, and placed into question the claimants’ assertion they were innocent bystanders during the 2004 Battle of Danny Boy. Its significance was discovered in 2013 after a public inquiry ordered disclosure of all relevant documents.
The tribunal heard Malik recorded 247 hours of work in the space of nine months in the build-up to lawyers going public with allegations at a press conference in February 2008.
Prosecuting counsel Andrew Tabachnik QC said Malik as the ‘leader’ would have reviewed what documents were held by the firm before the Damascus trip. He said Malik was joined by two other solicitors from Leigh Day who would have flagged up to her that the OMS list existed and might be significant.
‘Demonstrably the other two Leigh Day personnel on this trip have the OMS list,’ said Tabachnik. ‘You are the partner leading the trip and it is inconceivable you were not shown a copy of it at some point?’ Malik replied this was ‘entirely possible’ but that she would have been focused at the time on interviewing key clients.
The prosecution stressed it was not the case that Malik deliberately held back the document in the knowledge of its significance. The question for the tribunal was whether she had it in circumstances where she should have recognised its significance, Tabachnik said.
When the delegation returned to the UK, the OMS list was placed onto a generic file and stored, with a junior solicitor organising the documents into order. With Malik going over evidence and statements, Tabachnik said this was a moment when she should have raised the issue of unrecognised documents, saying: ‘It is normal in such circumstances to do a sort of "have I missed something double check".’
Malik responded: ‘I was primarily focused on what was said in interview and going through the various statements. I don’t accept it was necessarily "normal", I was focusing on the evidence I was given.’
Tabachnik queried why Malik had not disclosed all relevant documents to PIL when the firms were co-operating in the build-up to judicial review proceedings. He said: ‘It would not have been an onerous task to comply with this and give Mr Shiner potentially every bit of material you had.’
He told the tribunal Malik had drafted a list of documents and circled and highlighted ones that were to be included in Shiner’s bundle. This set of documents was ultimately never shared. Malik said she could not explain why material was not exchanged between Leigh Day and PIL, and added it was a ‘regret’.
Tabachnik said: ‘On this particular matter there is not even a speculation that can be come up with that looks like a credible and sensible explanation why these documents had not been given to Mr Shiner.’
Pressing Malik on why she did not simply hand over all documents to Shiner, Malik said: ‘I can’t say. It was an oversight. It is difficult to find an explanation now but I don’t think there was a conscious decision not to disclose those documents.’