MARMITE: SKELETON ARGUMENTS: “SO CALLED”: ATTEMPTS TO APPEAL THE FACTS: A SPREAD OF ISSUES CONSIDERED
In Solicitors Regulation Authority v Day & Ors [2018] EWHC 2726 the Divisional Court rejected the SRA’s appeal against a decision of the Solicitors’ Disciplinary Tribunal. There are some interesting comments about the number of documents and the length of skeleton’s along the way.
THE CASE
The SRA appealed against a decision of the SDT that partners in Leigh Day (and the firm itself) had not been guilty of any misconduct. (The respondent firm, Leigh Day, was described as a “Marmitefirm”, by its own counsel, this was adopted in the judgment).
A LONG TIME AND A LOT OF COSTS
4. The appeal hearing before this court itself extended over six days (quite apart from pre-reading): a very long time indeed compared to the norm for Divisional Court cases. The case was meticulously and elaborately argued, with the closest attention to detail. Notwithstanding efforts by the parties to prune the documentation from the vast quantity presented to the Tribunal, this court was nevertheless confronted with many folders of documents and transcripts; extremely lengthy “skeleton arguments” (so called); and bundles of authorities comprising in excess of a hundred authorities, notwithstanding that the disputed matters were primarily ones of fact and of evaluative judgment. The hearing itself, however, was greatly assisted by a relatively concise list of issues directed by the court and agreed by the parties, by reference to which the arguments were mainly directed.
5. All this doubtless reflects the very great importance both sides have understandably attached to these proceedings and to their outcome. But it has also been an inevitable further consequence that, quite apart from the time expended in the investigations and proceedings, the costs thus far have become simply enormous – deep into seven figures, on the figures presented to us.
THE SRA’S DIFFICULTY: IT WAS ALL ABOUT THE FACTS
Despite the numerous documents, authorities and lengthy skeletons the SRA’s basic problem was a familiar one: it was attempting to overturn findings of facts and inferences drawn from those facts.
Conclusion
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Dissatisfaction on the part of the SRA with the outcome of the very protracted hearing before the Tribunal below cannot of itself ground a successful appeal. As will be gathered from what we have said, in almost all material respects the challenge has, on analysis, been as to the Tribunal’s findings of primary fact and its evaluative assessment of those facts in determining whether or not there had been proved to be professional misconduct. To the extent that points of law arose (for example, on Allegations 1.12 – 1.15) either there were no errors of law on the part of the Tribunal or any errors were not material to the conclusion on each allegation.
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If the SRA were to succeed on these allegations, it in essentials needed to persuade the Tribunal to make adverse findings on the reliability of the respondents’ evidence and to persuade the Tribunal that the explanations offered in evidence by the respondents with regard to each such allegation were to be rejected. This the SRA failed to do. There is, overall, no proper basis on which the appellate court, on established principles, can legitimately interfere with the assessment of the evidence and the evaluative judgment of the Tribunal on any of the allegations which are the subject of this appeal.
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The outcome is that this court unanimously concludes that all the grounds of appeal fail. The appeal is dismissed.