Knowles: SDT erred on application of privilege
The Solicitors Disciplinary Tribunal (SDT) was “obviously wrong” to name former clients of a struck-off solicitor and failing to uphold legal professional privilege (LPP), the High Court has ruled.
Allowing an appeal by the Solicitors Regulation Authority (SRA), Mr Justice Julian Knowles said that, where LPP applied, it was “absolute” and did not involve the “balancing of competing interests”.
Edward James Williams was struck off by the SDT in November 2022. Mr Williams, admitted in 1988, worked in the property department of Yorkshire law firm Atherton Godfrey.
The SRA alleged that the solicitor had, among other things, misappropriated £4,500, falsified an email and created a false attendance note, client-care letter and invoice.
In the ‘rule 12 statement’ setting out its allegations, the SRA anonymised many of the persons and addresses referred to.
The SRA applied for an anonymity order for eight clients and four properties, an application which the tribunal rejected.
The regulator appealed, arguing that publishing an unanonymised version of the decision would lead to a breach of LPP and be “inconsistent with binding authority”.
The judge said the SDT’s written decision had not been published, pending a ruling in the appeal. Neither Mr Williams nor the SDT played a part in the appeal.
He said that among the “underlying facts” were that Client J instructed Atherton Godfrey to buy the freehold of a property. Mr Williams emailed the client, indicating that the owner was willing to sell it for £4,500 plus costs and VAT.
Client J paid £4,500 to an HBSC bank account, as requested by Mr Williams, but it was “not controlled by the firm”. The full amount needed to buy the freehold, £5,712, was taken from the client account of Client L, who was unaware of the transaction.
Counsel for the SRA argued that, by refusing to anonymise its judgment in the way the regulator applied for, the SDT “failed to have regard to the public interest in maintaining LPP and the fact that LPP is a fundamental right which cannot be overridden where it applies”.
The SDT had “misdirected itself” on the effect of the High Court’s ruling last year in Lu v SRA – which dealt with open justice and anonymity at the SDT – and was wrong to conclude that the ruling was so broad that it applied to information subject to LPP.
He submitted too that the tribunal had wrongly conflated two of the Solicitors (Disciplinary Proceedings) Rules 2019, applying a test from rule 35(2) used to determine whether a case should be heard in public or private by considering whether someone would suffer exceptional hardship or prejudice, to rule 35(9) – on applications for anonymity – where these situations were not mentioned.
Julian Knowles J said he accepted and adopted the SRA’s reasoning. He said Lu “was not a decision about LPP” and the claims for anonymity in that case were “concerned with interests other than LPP, which it was argued required anonymisation”. The judge, Mr Justice Kerr, “did not mention LPP once”.
The tribunal’s “main error” was that a claim for LPP “does not involve the balancing of competing interests” and “either applies to a communication, or it does not”.
Where it applied, it was “absolute unless it is waived by the client” and the SDT’s consideration of whether the firm’s clients had particular sensitivities or vulnerabilities was “unnecessary and completely beside the point”.
The communications at issue were “obviously protected by LPP which had not been waived, and that should have been the end of the matter”. The SDT’s decision refusing to anonymise its reasons was “obviously wrong as a matter of law”.
He added that the SDT was also “plainly in error” when considering the questions of exceptional hardship or prejudice. “On any view, these questions simply did not arise.”
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