Judicial review of SDT decisions
A claim for judicial review is a claim to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function.
The Solicitors Regulation Authority (SRA) and Solicitors Disciplinary Tribunal (SDT) both exercise a public function and decisions of the SRA and SDT can be challenged by judicial review unless there is a prescribed right of appeal.
Choosing the right route to appeal
It is important to ensure that the correct procedural route is chosen. We have seen cases in which solicitors wishing to challenge a decision of the SRA or SDT have commenced judicial review proceedings without realising that they have a statutory right of appeal. They have then faced the risk that their applications for judicial review will be refused after the time limit for appealing has expired.
In the SDT, there is a statutory right to appeal orders made after the substantive hearing. That right of appeal does not extend to interim orders and solicitors wishing to challenge interim decisions relating to for example disclosure or adjournments have to apply for judicial review. In the SRA, a number of decisions relating to, for example, Practising Certificates and disputes on enrolment and admission, have prescribed rights of appeal. Other decisions, such as decisions relating to SRA investigations and decisions to publicise referrals to the Tribunal, can only be challenged by judicial review.
A person wishing to challenge a decision by judicial review should follow the pre-action protocol for judicial review before issuing proceedings (unless the matter is urgent). Under the pre-action protocol, the applicant should send the SRA or SDT a letter of claim identifying the issues in dispute to establish whether the matter can be resolved without proceedings. The respondent should normally reply within 14 days.
If the pre-action protocol does not resolve the matter, the applicant needs permission to proceed with a claim for judicial review. The application for permission is made by issuing a claim form in the Administrative Court (part of the Queens Bench Division).
By CPR part 54.5 the claim form must be issued (a) promptly and (b) in any event not later than three months after the grounds to make the claim first arose. The application for permission will initially be considered on paper without an oral hearing. The court can either refuse the application or give permission to proceed.
If permission is given, the permission to proceed may be subject to conditions or on certain grounds only, and the matter then proceeds to a trial of the claim for judicial review. If permission is refused, the application can at the applicant’s request be reconsidered at an oral hearing (unless the court certifies when refusing permission that the application is totally without merit).
Many respondents to judicial review proceedings do not take an active part in the proceedings until permission is given (and the court does not normally make an order for costs against the applicant when refusing permission). The SRA does not always follow that standard approach and it’s not uncommon for the SRA to lodge submissions at the permission stage. That can put the applicant at risk of an adverse order for costs if permission is refused.
Applicants should always consider whether an interim injunction is required pending determination of the claim. An injunction may be appropriate in cases relating to, for example, SRA decisions to publicise a referral to the Tribunal and, in such cases, the SRA should be invited to agree not to publish the referral pending the outcome of the claim.