Wait a minute - Maybe Covid has improved our service to professional regulation clients

10th May 2021 Business Crime

We all agree that Covid has had a dramatic impact on how cases are listed at the various courts and tribunals. It has caused problems, but has also provided opportunities to review the way in which we do things. Are we really providing the most cost-effective service in the most efficient manner? Are there ways in which we can deliver a better product to our clients, especially where we would ordinarily travel or engage an agent lawyer nearer to the tribunal venue? A recent example arose from a review of listing practices at the Solicitors Disciplinary Tribunal.

The SDT’s Board recently agreed the following listing arrangements up until December 2021, when they will be reviewed:

In terms of cases they are now issuing:

  • All Case Management Hearings (CMHs) will continue to take place remotely.
  • Cases with a time estimate of 2 days or less to be listed as a remote hearing. It will be open to the parties to apply for an in-person hearing.
  • Cases with a time estimate of 3 days or more to be listed for a CMH (as usual) and the issue of whether the hearing should be in person, hybrid or remote to be considered at the CMH. If witness evidence is required (other than the Respondent(s)) consideration to be given to whether specific witnesses can attend remotely even if the hearing is listed in person.

In terms of cases that are already listed:

  • All CMHs to continue to take place remotely.
  • All cases listed until the end of July 2021 to be heard remotely unless a party applies for a hybrid/ in-person hearing (this is to enable the SDT to know what the June 2021 requirements are and give parties 4 weeks’ notice of the type of hearing they will have).
  • Cases with a time estimate of 2 days or less to be listed as a remote hearing. It will be open to the parties to apply for an in-person hearing.
  • Cases with a time estimate of 3 days or more which have already had their CMH to be listed as a remote hearing. Again, it will be open to the parties to apply for an in-person hearing.
  • For cases with a time estimate of 3 days or more which have yet to have their CMH the issue of whether the hearing should be in person, hybrid or remote to be considered at the CMH. If witness evidence is required (other than the Respondent(s)) consideration to be given to whether specific witnesses can attend remotely even if the hearing is listed in person.

The Solicitors Regulation Authority and the Respondent lawyer(s) sometimes agree that a particular sanction may be appropriate and this can be the subject of an application to the SDT for consideration on the papers. Agreed Outcome applications and similar matters will now be listed before a dedicated Panel, remotely.

If a shorter case appears on the face of the papers to need an in-person hearing, this will be specifically considered by a clerk and the parties views sought if appropriate. The measures outlined above are guidance only. They enable the Tribunal to consider the more complex cases on a case-by-case basis and decide what type of hearing is appropriate without the need for additional applications and hearings which would increase the costs for the parties.

From my own point of view, I welcome these changes. I was in the habit of travelling between Manchester and London on a regular basis to service hearings at different professional regulation Tribunals. Some Tribunals are based in the regions, but most are in London and whilst professional clients north of London generally like to be represented by lawyers within reach of their own practices, many would rather not suffer the expense of sending their lawyer to a London hearing. This can be cured to some extent by briefing London counsel, but more clients (and insurers) are looking to lawyers who can provide in-house solutions. It clearly requires the necessary expertise, but remote hearings have enabled me and colleagues to deliver a more focused service in respect of suitable hearings.

Of course, face-to-face hearings are often the only way to properly present a case and I see what the SDT say above about Respondents applying for a face-to-face hearing. On a first reading, I wondered whether the SDT should set out exactly what is required to justify something other than a remote CMH or substantive hearing. On reflection, I don’t think it should be overly prescriptive. Covid conditions have, in my experience, prompted a welcome level of pragmatism and co-operation in relation to how cases should be heard. Panel members and the participating lawyers are very familiar with the ‘interests of justice’ factors and I have not come across any obstruction when I really felt the need for a face-to-face hearing. As long as the reasoning is sensible and clearly argued, I believe Tribunals will continue to arrange traditional hearings. I also imagine the panel members like to get out once in a while!

Over the last year, I have attended Tribunal hearings comprised in many different ways. Panel members have dialled into the substantive hearing and have deliberated in virtual breakout rooms. Witnesses have dialled into a face-to-face hearing from another country. Respondents have appeared remotely, while I stand in front of the panel in person. CMHs have been conducted by telephone or video link. The IT has left a little to be desired in some cases, but I have found that Tribunals are well suited to remote proceedings. I have more problems with remote attendance at the Crown Court where a defendant’s liberty is at stake, especially where quite a few participants are involved and a queue develops. It can easily get messy and depends largely upon the judge’s ability to wrangle a gaggle of competing counsel, each with something to say.

One benefit I did not expect from remote hearings is the degree to which one must refine and focus on the real issues in a case. More liberal use of skeleton arguments and position statements have shortened hearings and really assist panels in organising their thoughts. More can be resolved between hearings, so that substantive hearings in particular rid themselves of extraneous argument (unless, of course, extraneous argument is part of the strategy!).

​​​​The face-to-face hearing is essential in many matters. After all, we assume responsibility for protecting someone’s right to practice his or her profession. However, we really can offer a more cost-effective, high quality product in many other matters where physical presence is less important. I have found that many clients welcome the option and would rather not appear in person unless it serves a valuable purpose. Necessity is the mother of invention and as long as we all play our part responsibly, the option of having a remote hearing will augment our service to the client in suitable cases.

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Evan Wright is a Partner located in Manchester in our Business Crime & Regulation department

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