Applications in respect of Solicitors
The majority of applications are made on behalf of the Law Society (through the Solicitors Regulation Authority ("SRA")) and are conducted by in-house solicitors and barristers employed by the SRA or by solicitors in private practice selected from a panel maintained by the SRA. Sometimes the SRA authorises its solicitors to instruct barristers to appear on their behalf at the hearing.
Any person can make an application direct to the Tribunal. A person making such an application is called a "Lay Applicant". It is essential to note that the Tribunal does not have any powers of investigation, nor does it collect evidence to support or oppose an application. The Tribunal cannot award compensation. Ordinarily the Tribunal will expect a Lay Applicant to have first sent their complaint or to have made a report to the SRA, which does have powers of investigation and can collect evidence. If an application by an individual is made direct to the Tribunal, it can refer the application to the SRA. In such a case the SRA will take whatever steps it considers to be appropriate, which might include investigation or submitting its own application to the Tribunal.
Time and expense will be saved for the Lay Applicant if the complaint is reported to the SRA and the SRA is given an opportunity to investigate and reach a decision on the complaint before making a Lay Application to the Tribunal.
Applications to the Tribunal must be made in the form specified by the Rules (Form 1) supported by a statement setting out the allegations and the facts and matters supporting the application and each allegation made. Documents referred to in the statement should be exhibited to it.
Applications in respect of persons employed or remunerated by a solicitor in connection with his practice
The Solicitors Act 1974, Section 43 (as amended), empowered the Law Society to make an application to the Tribunal for an Order controlling the employment of a person who is or was a clerk to a solicitor. When the relevant provisions of the Access to Justice Act 1999 came into force, the Law Society as well as the Tribunal gained power to make an Order pursuant to Section 43 in respect of persons employed or remunerated by a solicitor in connection with his practice.
The effect of a Section 43 Order is to vest in the Law Society control of the future employment of an individual clerk in a solicitor's practice. Whilst the Order remains in force, any solicitor wishing to employ the clerk must first obtain the written permission of the Law Society to do so. The Law Society delegates this role to the Solicitors Regulation Authority.
Where the Law Society or the Tribunal has made a Section 43 Order, the person in respect of whom that Order has been made or the Law Society may make an application to the Tribunal for review (Section 43(3)(a)) and whichever of the Law Society and Tribunal made the Section 43 Order may at any time revoke it (Section 43(3)(b)). On review, the Tribunal has power to quash, vary or confirm the Order (Section 43(3A)). The Tribunal may also make an order as to the payment of costs by any party to the application (Section 43(4)). When making an application to the Tribunal for review, please refer to the Solicitors Disciplinary Tribunal Guidance Note on Other Powers of the Tribunal (1st Edition) and the Judgment of Mr Justice Wilkie dated 26 June 2013 in R (on the application of the Solicitors Regulation Authority) v Solicitors Disciplinary Tribunal and Solicitors Regulation Authority v Liaqat Ali  EWHC 2584 (Admin.). The Guidance Note applies to all cases heard after 1 January 2017.
The Law Society alone can bring an application under Section 43 to obtain an Order in respect of persons employed or remunerated by a solicitor in connection with his practice; a lay applicant has no jurisdiction to do so.
In conjunction with reading the summary below, please refer to the Solicitors Disciplinary Tribunal Guidance Note on Other Powers of the Tribunal (1st Edition), which applies to all cases heard after 1 January 2017.
The Tribunal has power to restore to the Roll the name of a former solicitor whose name has been struck off the Roll.
An application in such a case must be supported by a statement setting out details of the original Order of the Tribunal, dealing fully with the history of the applicant's employment since the Order was made and indicating his future intentions as to employment within the profession in the event that the application is successful.
An application for restoration is not to be regarded as an appeal against the decision to strike off. The Tribunal’s function when considering an application for restoration is to determine whether the applicant has established that he is now a fit and proper person to have his name restored to the Roll. Certain factors are, however, taken into account by the Tribunal in deciding whether to grant an application for restoration. These may be summarised as follows:
- The application should not be premature having regard to the time which has elapsed since the original Order striking the solicitor's name off the Roll was made. An applicant cannot expect to have his name restored to the Roll within six years of the original Order striking off save in the most exceptional circumstances;
- Clear evidence of the applicant's rehabilitation must be adduced, together with evidence that he has been employed, preferably in the solicitors' profession, in the intervening period or, at least, has held employment in a position of trust again preferably in a legal environment;
- The Tribunal places particular emphasis on the applicant's future intentions and whether another solicitor would be willing to employ him in connection with his practice in the event that the applicant's name is restored to the Roll;
- Indebtedness to the Compensation Fund, although not a bar to restoration, is a factor always taken into account by the Tribunal when considering applications of this nature. The applicant must be in a position to demonstrate that he has made a sustained effort to meet any liability to the Fund and, where appropriate, that the effort will continue in the event of restoration;
- A criminal conviction recorded against an applicant involving dishonesty, or a finding of dishonesty by the Tribunal, can constitute an all but insurmountable obstacle to a successful application for restoration.
In 1993, the Master of the Rolls made it clear that the solicitor seeking restoration must not only prove his fitness to be a solicitor but must also demonstrate that his restoration to the Roll would not adversely affect the good name and reputation of the solicitors' profession nor would it be contrary to the interests of the public. The Tribunal should not and will not be swayed by the argument that a decision not to restore is hard on the individual concerned.
The Law Society, via the SRA, is the respondent to such an application.