High Court Rules: SDT Wrong to find Misconduct Against Solicitor for what Happened in his Private Life.

Solicitor Ryan Beckwith had caught the attention of the Solicitors Regulatory Authority (‘SRA’) back in 2017. Following a drunken but consensual sexual encounter with a junior colleague, Mr Beckwith was found to have failed to have acted with integrity or behave in a way that maintains public trust in the profession. In Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin), the High Court has overturned that decision, holding that what happens in a solicitor’s private life is not always relevant to allegations of misconduct.

Facts

Mr Beckwith (‘the Appellant’) was formerly a partner in the Restructuring and Insolvency Department of Freshfields Bruckhaus Deringer (‘the Firm’). The complainant – ‘Person A’ – was an associate in the same department. The Appellant was in a position of authority and seniority to Person A. She had received a job offer from another law firm and had resigned from her employment with the Firm in June 2016. Her last day of work was 8 July 2016. On the evening of 1 Friday 1 July 2016, Person A, the Appellant and other colleagues had drinks at a pub close to the Firm’s office.

At the conclusion of the evening, Person A ordered a taxi home. Both she and the Appellant travelled in the same taxi. When it arrived at Person A’s home, the Appellant asked if he could use the toilet. He was permitted access to Person A’s home, and thereafter the Appellant and Person A had what the Solicitors Disciplinary Tribunal (‘SDT’) referred to as a ‘sexual encounter’. The SDT found that, though she was not vulnerable, Person A was ‘heavily intoxicated’ and that her ‘judgement and decision-making ability was impaired’. The SDT also found that the Appellant’s judgment was also influenced by his alcohol intake that evening, but that he had not abused his position of authority over Person A.

The SDT concluded that the Appellant’s conduct affected not only his personal reputation but that of the profession more broadly. It held that the Appellant’s conduct had also fallen below accepted standards. Accordingly, the SDT found that the Appellant had failed to act with integrity or to behave in a way that maintains public trust in the profession – respectively, Principle 2 and 6 of the SRA Handbook (‘the Handbook’). The Appellant was fined £35,000 and ordered to pay the SRA’s costs in the sum of £200,000 (around 60% of the £343,957.08 the SRA had incurred in bringing the proceedings).

The High Court’s Decision

The Appellant challenged the SDT’s finding on the basis that it was wrong to conclude that his conduct amounted to a breach of Principles 2 and 6. He also raised a point under Article 8 of the ECHR (respect for private life) and disputed the SDT’s decision on costs.

The High Court (Dame Victoria Sharp PQBD and Swift J presiding) held that the SDT erred in its understanding of Principles 2 and 6. With respect to the former, though the Court accepted that the concept of integrity is broader than acting honestly, the SDT did not have ‘carte blanche’ to define integrity however it wished. Rather, the concept of integrity was to be taken from the SRA Handbook, and the Court went on to find that, though the Handbook prohibits taking unfair advantage of others, the Appellant’s conduct did not amount to this, nor had the SDT concluded that the Appellant had abused his authority over Person A.

Moreover, the High Court held that the SDT’s decision on Principle 6 – maintaining public trust – was also flawed. The Court accepted that seriously abusive conduct by one solicitor against another, especially from a senior to someone more junior, might damage public trust. However, the SDT did not conclude that this had happened. The sexual encounter between the Appellant and Person A was consensual and outside of the workplace. The Court observed that there is a line to be drawn by bringing one’s own reputation into disrepute and bringing the profession more broadly into disrepute.

In light of these conclusions, the Court did not feel the need to determine the Article 8 point. However, in passing the Court criticised the SRA’s conduct, commenting that neither Principle 2 nor 6 of the SRA Handbook had ‘unfettered application across all aspects of a solicitor’s private life.’ Moreover, the Court opined that, though there was no ‘hard and fast rule’, Principles 2 or 6 could only reach into a solicitor’s private life when the conduct that is part of that private life was relevant to the alleged misconduct. Regulators needed to avoid becoming ‘dogmatic’, the Court remarked: ‘popular outcry’ did not always mean that a particular set of events fell within a regulator’s ambit.

Yet the High Court reserved its sharpest criticism for the SRA’s costs, which were described as ‘alarming’. The Court reminded the SRA that, since it does not usually pay costs when proceedings are successfully defended, it needs to be mindful of the need to allow regulated persons to defend themselves without excessive cost. This is part of the SRA’s responsibility to act in the public interest, the Court observed. The SDT’s decision on costs was thus set aside.

Commentary

It will be interesting to see what impact – if any – the Court’s decision will have on the SRA’s approach going forward.

For some time now, the SRA has been one of the more vigorous of the professional regulators, striking off solicitors for breaches of conduct that other regulators would have treated more leniently. Indeed, it is the SRA’s record that the Court likely had in mind when it chastised regulatory dogmatism, and there is no shortage of critics within the legal profession who have criticised how the SRA treats its registrants. Notwithstanding recent movements like #MeToo, the SRA and other regulators need to be careful not to overreach themselves. A registrant’s private life is not always relevant to regulatory enquiry.

The High Court’s decision also marks another pointed criticism of the SRA’s costs regime. It is certainly not the first time that the SRA’s costs have been disproportionally larger than the financial sanction imposed by the SDT. With so few solicitors covered by their insurers in regulatory proceedings, defending oneself before the SDT can be financially ruinous. Where a solicitor is particularly junior – as has been the case in recent high-profile prosecutions before the SDT – they are often unable to fund their own legal defence. One hopes the High Court’s judgment prompts a rethink by the SRA.

Ryan Ross is a third-six pupil at Farrar’s Building.

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