After the dust settles on the SDT’s longest ever hearing, Helen Evans and Clare Dixon of 4 New Square ask why the outcome in SRA v Day, Malik, Crowther and Leigh Day was so different to that of SRA v Philip Shiner.
This article was first published in the Association of Regulatory and Disciplinary Lawyers’ Autumn 2017 bulletin. More information on ARDL can be found here.
The Battle of Danny Boy took place in Southern Iraq on 14 May 2004. British forces were ambushed by the Mahdi Army. They took a number of those killed to Camp Abu Naji where their bodies were released the next day. 9 Iraqis were detained by the British Army. Rumours began to circulate that a number of Iraqis had been murdered or tortured by the British forces.
Mr Shiner‘s practice, PIL, was instructed by the detainees and some of the relatives of the deceased, to bring judicial review proceedings against the Ministry of Defence. Leigh Day was instructed by the same clients to bring claims for damages.
The judicial review claim was stayed pending a Public Inquiry. The Inquiry concluded in December 2014 that the most serious allegations against the British soldiers were “wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility”.
The SRA commenced an investigation into the activities of Mr Shiner and four Leigh Day Respondents. Both those investigations culminated in hearings before the SDT.
Mr Shiner applied for his SDT hearing to be adjourned. When that application failed, he did not attend or send representation to the hearing. He made various admissions. The SDT found that almost all the allegations were proved and struck Mr Shiner off.
The Leigh Day hearing took place next. Although confronted with the problem of Mr Shiner’s admissions and the SDT’s findings against him, the Leigh Day Respondents successfully defeated all of the allegations.
Considering the full spread of the cases against Mr Shiner and the Leigh Day Respondents is beyond the scope of this article. We focus on two matters of significant overlap between the two sets of proceedings where there were strikingly different outcomes. These matters are: the press conference and the tri-partite fee sharing arrangement.
The Press Conference
Both PIL and Leigh Day participated in a press conference on 22 February 2008 in the course of which it was said that Mr Shiner and Mr Day had improperly endorsed allegations that the British army had unlawfully killed, tortured and mistreated Iraqi civilians and, consequently, were in breach of Rule 11 of the Solicitors’ Code of Conduct (“SCC”) 2007. Rule 11 requires a solicitor making a statement to the media to “exercise your professional judgment as to whether to make a statement….and, if you do…, about its content”.
Mr Shiner admitted that he had material in his possession which should, have caused him to doubt the veracity of the evidence which he was endorsing at the press conference. By way of example, Mr Shiner was in possession of inconsistent witness evidence.
Similar allegations of a failure to appraise the evidence were made against Mr Day. Arguably the case against Mr Day went further because Leigh Day had a copy of a list which demonstrated that some of the claimants were not innocent civilians but member of the Mehdi Army (although Mr Day had not at that stage seen this list himself). Further it had obtained an opinion from Counsel which said that Leigh Day should be “wary about [the] death claims”.
Nevertheless, the SDT reached a different conclusion against Mr Day to the outcome in the Shiner case. The panel had the advantage of hearing Mr Day give evidence and justified their determination on the basis that the allegations made against Mr Shiner and Mr Day related to their respective states of mind and actions, and the evidence from Mr Day was that his statements at the press conference had been based on his genuine beliefs about the evidence he had.
The divergent outcomes demonstrate how fact sensitive such findings are. Mr Shiner and Mr Day held a joint press conference. Each had evidence in front of him which arguably undermined what they were saying. Nevertheless, the approach taken by the SDT to the way in which Mr Day exercised his judgment resulted in a different finding to that made in respect of Mr Shiner.
The Tri-Partite Fee Sharing Arrangement
Given the overlap between the work being done by PIL and Leigh Day, they entered into a fee sharing agreement between them. This also involved Mazin Younis (“Mr Younis”) who was described as PIL’s Iraqi agent.
A number of allegations were made against Mr Shiner and the Leigh Day Respondents arising out of this arrangement. However one allegation levelled against both was that the fee payable to Mr Younis pursuant to the tri-partite agreement was a contingency fee within the meaning of rule 9.01(4) SCC 2007 which provided “You must not in respect of any claim arising as a result of death or personal injury…enter into an arrangement for the referral of clients with… any person whose business, or any part of whose business, is to make, support or prosecute… claims arising as a result of death or personal injury, and who in the course of such business, solicits or receives contingency fees in respect of such claims”.
Mr Shiner admitted breaching this rule and the SDT was satisfied that the admission was appropriate. In short, in the Shiner case it was accepted that Mr Younis was a person whose business was to support claims arising out of death or personal injury and the method of calculation of the sum payable to him pursuant to the tri-partite agreement amounted to a contingency fee.
By contrast, the Leigh Day Respondents defended the allegation on two grounds. First, Mr Younis did not make or prosecute any claims. Second, Mr Younis did not solicit or receive contingency fees in the course of a business of supporting claims because his business was a client referral service which was a service to Leigh Day. There was evidence that Leigh Day had considered the ambit of rule 9.01(4) before entering into the fee sharing agreement and believed that they had complied with that rule. In ruling in the Leigh Day Respondents’ favour, the SDT was apparently influenced by the fact that the SRA had not raised this issue prior to the Rule 5 statement. The SDT found that there had been no breach of rule 9.01(4) and, if there was, then it did not amount to professional misconduct.
It is difficult to reconcile the two decisions on this point and the SDT in Leigh Day did not really attempt to. The panel simply pointed out that the SDT in Mr Shiner’s case had not had the interpretation issue brought to its attention (even though the SRA was on notice at the time that the point would be taken by Leigh Day).
It is not uncommon for a respondent to disciplinary proceedings to be concerned about admissions made by other respondents, or findings made against those respondents, in earlier connected proceedings. The concern is typically that a subsequent tribunal will be influenced by the outcome of an earlier case. A common way of meeting this concern is to attempt to agree with the regulatory authority that it will not seek to rely on the earlier judgment or settlement agreement as having any probative value in the second case. However, the SDT cases against Mr Shiner and the Leigh Day Respondents demonstrate that the second case will not necessarily be tainted by the first.
19 October 2017
Disclaimer: this article is not to be relied on as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.