Victims of failed investment schemes have accused the Solicitors Disciplinary Tribunal of protecting at-fault solicitors by withholding documents revealing misconduct. The allegations appear in a summary of responses to the tribunal's request for views on its policy for disclosing documents used in proceedings.
Almost half of the 43 responses were from individuals directly affected by an allegedly fraudulent investment, understood to be the Ecohouse scheme, who said the tribunal’s policy was biased towards non-disclosure. They argued that the context of requests was not taken into account and the potential costs were an unfair deterrent to non-party access.
In its response, the tribunal stated that its default starting position will be that the public should be allowed access to documents referred to during a public hearing – but this should not be an automatic right.
Recent investment fraud cases coming through the tribunal have prompted requests from people who felt they had been victims of similar misconduct. The 1974 Solicitors Act makes some limited provision for access to, and the publication of, documents in relation to tribunal proceedings.
Alleged victims perceived that solicitors' misconduct had been insufficiently prosecuted, and their alleged inability to obtain background documents exacerbated their sense of injustice. Several responses said the tribunal's policy should help non-party applicants hold the Solicitors Regulation Authority to account.
They suggested third parties were required to ‘write an essay’ on how their disclosure request might advance the open justice principle. If the request was denied, the only option was to spend up to £20,000 on judicial review – effectively closing this route to most individuals.
Aside from victims of one particular scheme, most other respondents to the tribunal consultation made similar criticisms. They contended that the tribunal gave the impression that disclosure requests made it uncomfortable and were an unwelcome drain on resources.
The SRA submitted that the existing policy was fit for purpose. It said tribunal proceedings may use privileged material and that other documents might be exceptionally sensitive, for example in cases concerning sexual misconduct. The SRA said that individuals who provide sensitive material need confidence in the regulator’s ability to prevent disclosure.
The tribunal maintained that the principle of open justice was the starting point, and central to, the correct approach to dealing with requests for access to papers. But it was obliged to comply with the law and was not required by open justice to disclose sensitive personal details. It rejected the suggestion that its starting point was to withhold documents and said it would consider each application for disclosure carefully on its merits.
A slightly amended disclosure policy, emphasising the default starting position and with a list of potentially relevant factors, will come into force next month.