Discipline Tribunal consults on draft new rules
New draft rules for the Scottish Solicitors’ Discipline Tribunal have been published by the tribunal for consultation.
Its current rules date from 2008 and the tribunal believes they are no longer fit for purpose. Some procedures commonly adopted have no provision in the rules. Other rules are ambiguous and have been subject to different interpretations. There are no procedures for some issues which are commonly encountered. Modern technology may be able to provide some solutions, as became clear during the Covid-19 pandemic when much of the tribunal’s business moved online.
An initial consultation took place in 2019 on the issues that ought to be addressed, but the draft rules contain more comprehensive changes, with the overall aim of assisting the expeditious disposal of business and avoiding unnecessary hearings, while maintaining the tribunal’s independence, impartiality and transparency. They also aim to be expressed in plain English.
New inclusions
One inclusion in the new draft is the standard of proof in misconduct cases, which the tribunal recently decided should remain at the criminal standard of beyond reasonable doubt. While this will be kept under review, it is not yet time to revisit the issue and the tribunal does not believe it would be difficult to change the rule if that were felt appropriate in future.
Another new inclusion is a statement of overriding objective – “to deal with cases fairly, justly and efficiently, always in accordance with the law and the rules of natural justice”.
The tribunal intends to keep its system of complaints and answers, but with more guidance in the forms as to what is required in pleadings. There is significant new provision for case management, including by the chair and vice chairs without a full tribunal.
Electronic service, digital or scanned signatures and remote hearings are all provided for. Another innovation is specific provision for compensation hearings, which can take place on the day of the misconduct hearing or at a later date, or on the papers in appropriate cases.
There is extended provision for affidavit evidence, and a power to direct that a witness be treated as vulnerable, with special measures available. Criminal convictions will be provable by the production of an extract.
A further new rule will apply where a question arises as to the ability of a party to participate in and/or attend a hearing by reason of mental disorder.
Numerous miscellaneous changes have been made. These are set out in the consultation by noting the current and the proposed new rule, and a brief explanation of the changes.
Expenses change
A separate and parallel consultation covers awards of expenses. In a 2021 consultation the tribunal proposed to continue awarding expenses on the agent and client, client paying scale, subject to its discretion to use a different basis, but following concerns raised by the Lord President that this might not be proportionate, and consideration of other responses, the Tribunal proposes that in general it uses the party and party scale. This is a significant alteration to its general practice and the tribunal therefore wishes to seek views before implementing such a decision.
Both consultations can be accessed here. The closing date for responses is 5pm on 1 June 2023.