Solicitors Regulation Authority v Williams [2023] EWHC 2151 (Admin)
Summary
Solicitors Regulation Authority v Williams [2023] EWHC 2151 (Admin) concerned an appeal by the Solicitors Regulation Authority to the High Court against the Solicitors Disciplinary Tribunal’s refusal to anonymise the names of several former clients of a struck-off solicitor. Mr Justice Julian Knowles allowed the appeal, holding that the tribunal had erred in law by failing to protect legal professional privilege.
Mr Edward James Williams was admitted to the Roll in 1988 and worked at a Yorkshire law firm in the property department. In relation to Clients A and B, he dishonestly used £1,200 of their client account funds to pay costs owed by a different client, Client D, to Bell & Buxton LLP, falsifying an email to conceal the misappropriation. In relation to Clients J and K, who had instructed the firm to purchase the freehold interest in a property, Mr Williams misappropriated £4,500 from Client J and then used £5,712 belonging to Clients L and M to pay the vendor without their consent, creating false documents to cover his tracks. The SRA’s Rule 12 statement used letters to anonymise the clients and properties involved, with a schedule providing the key.
At the disciplinary hearing in November 2022, which proceeded in the absence of Mr Williams, counsel for the SRA applied under Rule 35(9) of the Solicitors (Disciplinary Proceedings) Rules 2019 for an order continuing the anonymisation of most of the clients and properties. Rule 35(9) empowers the tribunal to prohibit disclosure or publication of any matter likely to lead to identification of any person whom the tribunal considers should not be identified. The tribunal refused the application, giving oral reasons and referring to Lu v SRA [2022] EWHC 1729 (Admin), in which Kerr J had criticised the widespread use of anonymity orders and stated that courts and tribunals should not be squeamish about naming innocent people caught up in alleged wrongdoing of others. The tribunal found there was no compelling reason to depart from the principle of open justice. Mr Williams was struck off with written reasons to follow, which were provided in December 2022. At the SRA’s request, the tribunal agreed not to publish its judgment pending the outcome of the present appeal.
In its written reasons, the tribunal said it had considered the application and the comments in Lu, particularly paragraphs 6 and 138 regarding the plague of initials and the principle that there is no presumption that privacy is more important than open justice. The tribunal understood that the individuals and companies had been anonymised for convenience when the Rule 12 statement was drafted, and that none had been contacted or given any commitment to be anonymised. Counsel had applied for anonymisation based on an assertion of confidentiality for clients in respect of matters for which they had sought legal advice and assistance. The tribunal considered the judgment in Lu to be potentially broad in application. It noted that some months had passed since proceedings were issued and the SRA had not approached any individuals or companies for comment, and that the SRA was not aware of any particular sensitivities or vulnerabilities which needed protecting. The tribunal, while conscious of the need for client confidentiality in the normal course of events, could not detect any harm which might result to any of the clients referred to in the Rule 12 statement. It therefore determined that this was not a case under Rule 35(9) of exceptional hardship or exceptional prejudice such that anonymisation should be applied, and it saw no reason to depart from the principle set out in Lu.
The SRA advanced three grounds of appeal. First, that the tribunal had failed to have regard to the public interest in maintaining legal professional privilege and the fact that it is a fundamental right which cannot be overridden where it applies. Second, that the tribunal had misdirected itself as to the effect of Lu, which was not concerned with legal professional privilege and provided no reason to depart from the established practice of anonymising clients’ names where necessary to protect privilege. Third, that the tribunal had misdirected itself as to Rule 35(9) by wrongly conflating it with Rule 35(2) and applying the thresholds of exceptional hardship or exceptional prejudice which appear only in the latter rule governing whether a hearing should be in public or private, not in the rule governing anonymisation orders. The SRA relied on long-established authority that legal professional privilege is a fundamental condition on which the administration of justice as a whole rests, citing Anderson v Bank of British Columbia (1876) 2 Ch D 644 and R v Derby Magistrates’ Court ex parte B [1996] AC 487, in which Lord Taylor CJ emphasised that a client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. The principle extends to non-litigious business such as conveyancing transactions, as held in Balabel v Air India [1988] Ch 317. Legal professional privilege is a fundamental right which cannot be overridden by some competing public interest, and Parliament can only override it by express words or necessary implication, as held in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563. The SRA submitted that the tribunal had focussed only on harm to the particular clients in this case, failing to consider or recognise the wider harm to the public interest when the general principle that a client may expect their communications with their lawyers to be kept confidential is eroded without proper or lawful reason. The principles of open justice are not absolute and may be departed from where necessary in the interests of justice, as explained in R (Good Law Project Ltd) v Secretary of State for Health [2022] EWHC 46 (TCC). Legal professional privilege requires such a departure because it is necessary and indeed mandatory in the interests of justice for tribunals and courts to uphold privilege when conducting public hearings and giving public judgments.
Mr Justice Julian Knowles held that the SRA’s submissions were soundly based. His principal observation was that Lu was not a decision about legal professional privilege, in which Kerr J did not mention privilege once. That case had been concerned with claims for anonymity based on interests other than privilege, including contractual expectations of privacy and allegations of sexual harassment. If the tribunal had been relying upon Lu in relation to claims for privilege, then it should no longer do so, as that case would almost certainly be irrelevant to any question of privilege likely to arise before the tribunal. The tribunal’s main error was that a claim for privilege does not involve the balancing of competing interests against a client’s right to confidentiality of communications with his solicitor. Privilege either applies to a communication or it does not, and where it applies it is absolute unless waived by the client. It followed that the tribunal’s consideration whether the firm’s clients had been asked to comment or whether they had particular sensitivities or vulnerabilities was unnecessary and completely beside the point. The facts of the Derby Justices case illustrated the absolute nature of privilege, in which the House of Lords held that privilege was to be upheld in all cases as the predominant public interest even where the witness no longer had any recognisable interest in preserving confidentiality. Lord Taylor CJ explained that once any exception to the general rule is allowed, the client’s confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything said would never in any circumstances be revealed without consent, would have to qualify his assurance and tell the client that his confidence might be broken in some future case if the court were to hold that he no longer had any recognisable interest in asserting his privilege, thereby undermining the purpose of the privilege. Legal professional privilege and public interest immunity are as different in their origin as they are in their scope, and if a balancing exercise was ever required in the case of privilege, it was performed once and for all in the sixteenth century and since then has applied across the board in every case, irrespective of the client’s individual merits. It is not for the sake of the applicant alone that privilege must be upheld but in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. The judge considered that the communications at issue in the present case were obviously protected by privilege which had not been waived, and that should have been the end of the matter. No further analysis was necessary, and the tribunal should have reflected the communications’ privileged status by anonymising its reasons as requested by the SRA. Its decision refusing to do so was obviously wrong as a matter of law. By the same token, the tribunal was also plainly in error when it entered into the territory of considering the questions of exceptional hardship or exceptional prejudice, which on any view simply did not arise. The judge allowed the appeal and made an order prohibiting the disclosure or publication of any matter likely to lead to the identification of any legal professional privilege communications from former clients to the firm, requiring in practice the anonymisation of clients A, B, D, J, K, L and M and properties F and I in all relevant communications mentioned in the tribunal’s reasons.
In short, the High Court held that the Solicitors Disciplinary Tribunal had erred in law by refusing to anonymise clients’ names where necessary to protect their legal professional privilege, which is absolute where it applies and does not require any balancing exercise against the principle of open justice.
Mr Edward James Williams was admitted to the Roll in 1988 and worked at a Yorkshire law firm in the property department. In relation to Clients A and B, he dishonestly used £1,200 of their client account funds to pay costs owed by a different client, Client D, to Bell & Buxton LLP, falsifying an email to conceal the misappropriation. In relation to Clients J and K, who had instructed the firm to purchase the freehold interest in a property, Mr Williams misappropriated £4,500 from Client J and then used £5,712 belonging to Clients L and M to pay the vendor without their consent, creating false documents to cover his tracks. The SRA’s Rule 12 statement used letters to anonymise the clients and properties involved, with a schedule providing the key.
At the disciplinary hearing in November 2022, which proceeded in the absence of Mr Williams, counsel for the SRA applied under Rule 35(9) of the Solicitors (Disciplinary Proceedings) Rules 2019 for an order continuing the anonymisation of most of the clients and properties. Rule 35(9) empowers the tribunal to prohibit disclosure or publication of any matter likely to lead to identification of any person whom the tribunal considers should not be identified. The tribunal refused the application, giving oral reasons and referring to Lu v SRA [2022] EWHC 1729 (Admin), in which Kerr J had criticised the widespread use of anonymity orders and stated that courts and tribunals should not be squeamish about naming innocent people caught up in alleged wrongdoing of others. The tribunal found there was no compelling reason to depart from the principle of open justice. Mr Williams was struck off with written reasons to follow, which were provided in December 2022. At the SRA’s request, the tribunal agreed not to publish its judgment pending the outcome of the present appeal.
In its written reasons, the tribunal said it had considered the application and the comments in Lu, particularly paragraphs 6 and 138 regarding the plague of initials and the principle that there is no presumption that privacy is more important than open justice. The tribunal understood that the individuals and companies had been anonymised for convenience when the Rule 12 statement was drafted, and that none had been contacted or given any commitment to be anonymised. Counsel had applied for anonymisation based on an assertion of confidentiality for clients in respect of matters for which they had sought legal advice and assistance. The tribunal considered the judgment in Lu to be potentially broad in application. It noted that some months had passed since proceedings were issued and the SRA had not approached any individuals or companies for comment, and that the SRA was not aware of any particular sensitivities or vulnerabilities which needed protecting. The tribunal, while conscious of the need for client confidentiality in the normal course of events, could not detect any harm which might result to any of the clients referred to in the Rule 12 statement. It therefore determined that this was not a case under Rule 35(9) of exceptional hardship or exceptional prejudice such that anonymisation should be applied, and it saw no reason to depart from the principle set out in Lu.
The SRA advanced three grounds of appeal. First, that the tribunal had failed to have regard to the public interest in maintaining legal professional privilege and the fact that it is a fundamental right which cannot be overridden where it applies. Second, that the tribunal had misdirected itself as to the effect of Lu, which was not concerned with legal professional privilege and provided no reason to depart from the established practice of anonymising clients’ names where necessary to protect privilege. Third, that the tribunal had misdirected itself as to Rule 35(9) by wrongly conflating it with Rule 35(2) and applying the thresholds of exceptional hardship or exceptional prejudice which appear only in the latter rule governing whether a hearing should be in public or private, not in the rule governing anonymisation orders. The SRA relied on long-established authority that legal professional privilege is a fundamental condition on which the administration of justice as a whole rests, citing Anderson v Bank of British Columbia (1876) 2 Ch D 644 and R v Derby Magistrates’ Court ex parte B [1996] AC 487, in which Lord Taylor CJ emphasised that a client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. The principle extends to non-litigious business such as conveyancing transactions, as held in Balabel v Air India [1988] Ch 317. Legal professional privilege is a fundamental right which cannot be overridden by some competing public interest, and Parliament can only override it by express words or necessary implication, as held in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563. The SRA submitted that the tribunal had focussed only on harm to the particular clients in this case, failing to consider or recognise the wider harm to the public interest when the general principle that a client may expect their communications with their lawyers to be kept confidential is eroded without proper or lawful reason. The principles of open justice are not absolute and may be departed from where necessary in the interests of justice, as explained in R (Good Law Project Ltd) v Secretary of State for Health [2022] EWHC 46 (TCC). Legal professional privilege requires such a departure because it is necessary and indeed mandatory in the interests of justice for tribunals and courts to uphold privilege when conducting public hearings and giving public judgments.
Mr Justice Julian Knowles held that the SRA’s submissions were soundly based. His principal observation was that Lu was not a decision about legal professional privilege, in which Kerr J did not mention privilege once. That case had been concerned with claims for anonymity based on interests other than privilege, including contractual expectations of privacy and allegations of sexual harassment. If the tribunal had been relying upon Lu in relation to claims for privilege, then it should no longer do so, as that case would almost certainly be irrelevant to any question of privilege likely to arise before the tribunal. The tribunal’s main error was that a claim for privilege does not involve the balancing of competing interests against a client’s right to confidentiality of communications with his solicitor. Privilege either applies to a communication or it does not, and where it applies it is absolute unless waived by the client. It followed that the tribunal’s consideration whether the firm’s clients had been asked to comment or whether they had particular sensitivities or vulnerabilities was unnecessary and completely beside the point. The facts of the Derby Justices case illustrated the absolute nature of privilege, in which the House of Lords held that privilege was to be upheld in all cases as the predominant public interest even where the witness no longer had any recognisable interest in preserving confidentiality. Lord Taylor CJ explained that once any exception to the general rule is allowed, the client’s confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything said would never in any circumstances be revealed without consent, would have to qualify his assurance and tell the client that his confidence might be broken in some future case if the court were to hold that he no longer had any recognisable interest in asserting his privilege, thereby undermining the purpose of the privilege. Legal professional privilege and public interest immunity are as different in their origin as they are in their scope, and if a balancing exercise was ever required in the case of privilege, it was performed once and for all in the sixteenth century and since then has applied across the board in every case, irrespective of the client’s individual merits. It is not for the sake of the applicant alone that privilege must be upheld but in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. The judge considered that the communications at issue in the present case were obviously protected by privilege which had not been waived, and that should have been the end of the matter. No further analysis was necessary, and the tribunal should have reflected the communications’ privileged status by anonymising its reasons as requested by the SRA. Its decision refusing to do so was obviously wrong as a matter of law. By the same token, the tribunal was also plainly in error when it entered into the territory of considering the questions of exceptional hardship or exceptional prejudice, which on any view simply did not arise. The judge allowed the appeal and made an order prohibiting the disclosure or publication of any matter likely to lead to the identification of any legal professional privilege communications from former clients to the firm, requiring in practice the anonymisation of clients A, B, D, J, K, L and M and properties F and I in all relevant communications mentioned in the tribunal’s reasons.
In short, the High Court held that the Solicitors Disciplinary Tribunal had erred in law by refusing to anonymise clients’ names where necessary to protect their legal professional privilege, which is absolute where it applies and does not require any balancing exercise against the principle of open justice.
SDT wrong to deny anonymity to victim-witnesses | Litigation Privilege