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SRA AND DOCUMENT DISCLOSURE

Download the fully-formatted .pdf file here: File:SRA and Document Disclosure.pdf

The Solicitors Regulation Authority (SRA) is the independent regulator of solicitors and most law firms in England and Wales.

Official narrative:

Its job is to protect the public, maintain confidence in the legal profession, and make sure solicitors meet proper professional and ethical standards, such as:

· Sets the rules solicitors must follow;

· Authorises and regulates solicitors and law firms;

· Investigates allegations of misconduct;

· Takes disciplinary action where appropriate (such as fines, practising restrictions, referrals to the Solicitors Disciplinary Tribunal, or striking solicitors off the roll); and

· Provides guidance on ethical and professional issues.

The SRA’s rules are contained in its Standards and Regulations, which include the SRA Principles and the Code of Conduct.

The principles are the fundamental duties of solicitors. They require solicitors to act:

· in a way that upholds the rule of law;

· with honesty;

· with integrity;

· independently;

· in the best interests of each client;

· in a way that maintains public trust and confidence; and

· in a way that encourages equality, diversity and inclusion.

The Code of Conduct explains how those principles apply in practice. It sets standards of behaviour and professionalism, including that solicitors:

· must not take unfair advantage of others;

· must not mislead clients, courts or other people;

· must perform undertakings within a reasonable time;

· must only make assertions that have a proper basis; and

· must provide competent legal services.

In summary:

The SRA exists to regulate solicitors in the public interest, and its codes exist to ensure that solicitors act honestly, fairly, competently and ethically when dealing with clients, courts and members of the public.

If a solicitor makes claim to a document that allegedly allows them to act against you, such as a charging order or attachment of earnings, SRA codes can be used, in conjunction with a court, to compel the solicitor to disclose the document to you.

Solicitors Regulation Authority SRA Code of Conduct for Solicitors

Paragraph 1 – Maintaining trust and acting fairly

Paragraph 1.4

“You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).”

The SRA’s own guidance on conduct in disputes explains that solicitors conducting litigation:

· must act fairly,

· must not take unfair advantage of others,

· must not mislead others, and

· should only make assertions that have a proper basis. ([Solicitors Regulation Authority][2])

If a solicitor:

· asserts that a judicial instrument exists,

· relies upon it to demand payment or threaten enforcement, and

· refuses to identify the court, case number, date, or nature of the instrument,

then they must still comply with the above obligations. In particular:

· they must not mislead or attempt to mislead you (paragraph 1.4);

· they must not take unfair advantage of you (paragraph 1.2); and

· any representation that such an instrument exists must be properly arguable and have a proper basis (paragraph 2.4).

This means that a solicitor cannot properly claim to have a judicial instrument if they have no proper basis for doing so, or use ambiguity about its existence to exert improper pressure.

SRA Code:

Link 1: https://guidance.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors

Link 2: https://www.sra.org.uk/solicitors/guidance/conduct-disputes

The Local Government Ombudsman and case law

Official narrative:

The position has been criticised because many councils historically declined to provide copies of liability orders. The Local Government and Social Care Ombudsman has previously stated that councils should provide sufficient information to enable a taxpayer to understand and verify the debt being enforced.

This means if a solicitor says: “There is a liability order against you.”

You can write requiring them to provide:

· the magistrates court that issued it.

· the date of the order.

· The case number.

· the liability order number/reference (to locate it).

· the amount covered by the order.

· a copy of the order.

If they refuse, you can seek the following:

· Confirmation from the issuing magistrates court and request a copy of the instrument.

· Begin litigation against them for making an unfounded claim.

· Complain to the council through its complaints procedure.

· Escalate to the Local Government and Social Care Ombudsman.

If the solicitor has made unsubstantiated assertions or refused to identify the order while pursuing enforcement, you may raise the matter with the Solicitors Regulation Authority on the basis of paragraphs 1.2, 1.4 and 2.4 of the SRA Code.

If a County Court claim has already been issued

This is where you can use the court process to compel disclosure.

CPR 31: DISCLOSURE AND INSPECTION OF DOCUMENTS

If the claimant refers to a document in the Particulars of Claim, you may request inspection of it under CPR 31.14.

You can ask for copies of:

· agreements

· notices

· deeds of assignment

· judgments

· orders

· schedules

· and any other documents expressly mentioned in the claim

Link: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31

Before allocation to the small claims track

You can often make a CPR 31.14 request before allocation. If the claimant refuses, you may apply to the court for an order compelling disclosure.

After allocation to small claims

Once allocated to the small claims track, CPR 27.4 gives the court power to order a party to provide documents.

CPR 27.4(1) provides: “The court may give such directions as it considers appropriate...”

This includes directing that the claimant provide copies of documents relied upon that supports their claim.

If they fail to comply, the court may:

· exclude the documents.

· strike out their claim.

· adjourn the hearing.

· make other case management orders.

Link: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27

Notice Template

Based on SRA regulations and CPR protocols, it is clear that a solicitor should not make assertions without a proper legal basis, should not mislead or take unfair advantage, and that where they rely upon a document to justify enforcement action, they should identify and disclose sufficient particulars to enable the recipient to understand and verify the basis of that action.

The draft notice template below is framed in those terms and should be used when first contacted by any solicitor for the first time:

Note: it is not advisable to begin quote acts, statutes, CPR, or any legislation at the start of this process as jurisdiction has not yet been determined, and you must consider the following:

· You may not be in a position to legally use the codes.

· The codes you quote may not be applicable to the situation.

· In court you request the judge to apply the codes, not you.

Note: this is a general template and not legal advice, and should only be used as guidance to assist you in creating your own notice based on your personal circumstances.

Applications for charging orders and Land Registry restrictions can involve specific procedural rules, so if proceedings are active you will have to adapted this template to your circumstances.

Date: [Insert Date]

Your Reference: [Insert Reference]

NOTICE REQUIRING DISCLOSURE

To: [Name of Solicitor]

We write concerning your application to HM Land Registry seeking the registration of a charging order, restriction, notice, or other entry against the above property.

You assert that you possess documentation entitling your client to seek such registration and enforcement. However, despite requests, you have refused to disclose the documentation upon which you rely.

Therefore we hereby serve you formal notice requiring you to identify and provide copies of the documents said to justify your application.

In particular, it is required that you provide the following within 30 days of the date of this letter:

1. A copy of the charging order, interim charging order, final charging order, judgment, order, or other judicial instrument relied upon.

2. The name of the court said to have issued the instrument.

3. The claim number and/or case number.

4. The date upon which the instrument was made.

5. The identity of the parties to the proceedings.

6. Confirmation of the amount allegedly secured.

7. Copies of any application, witness statement, certificate, or supporting material lodged with HM Land Registry in support of the application.

8. Confirmation of the statutory basis upon which you contend your client is entitled to seek registration against the property.

9. Confirmation of the nature of the Land Registry application made, including the application reference number.

We also take this opportunity to make you aware of your professional obligations under the Solicitors Regulation Authority Standards and Regulations, including the requirement not to mislead others, not to take unfair advantage of third parties, and only to make assertions that have a proper legal basis.

If you maintain that such documentation exists while refusing to identify or disclose its particulars, we require you to explain the legal basis upon which you consider such refusal compatible with your professional obligations.

Furthermore, if you are unable or unwilling to provide the requested material, we require written confirmation that:

a) no charging order exists in the form asserted.

b) no final charging order exists.

c) no order affecting the property exists.

d) you do not presently possess the documentation relied upon.

Should you fail to provide the requested information, it shall be established that you do not have said documentation and therefore we reserve all rights, including but not limited to:

· Raising the matter directly with HM Land Registry and objecting to the application.

· Seek disclosure through the court where appropriate.

· Relying upon your refusal in any application concerning costs or case management.

· Making a formal complaint to the Solicitors Regulation Authority concerning any apparent breach of professional obligations.

· Pursuing any other remedy available to challenge the validity of the application.

Nothing in this notice should be taken as an admission that any debt, judgment, charging order, or other liability exists, is enforceable, or has been validly registered.

You may also wish to adapt the final paragraph depending on the stage reached.

For example: if the Land Registry application is still pending, you could expressly state that you intend to lodge an objection with HM Land Registry pending production of the alleged charging order.

If court proceedings are already underway, references to disclosure under the Civil Procedure Rules may also be appropriate.

Notice Template

The first template notice can be reframed to now include the following:

Further, insofar as the documents referred to above have been mentioned in any statement of case, witness statement, witness summary or affidavit in proceedings to which CPR Part 31 applies, this notice is to be treated as a request for inspection pursuant to CPR 31.14.

CPR 31.14 provides that a party may inspect a document mentioned in “(a) a statement of case; (b) a witness statement; (c) a witness summary; or (d) an affidavit”.

In addition, CPR 31.15 requires that where a party is exercising their right to inspect a document, the party in control of that document must permit inspection not more than seven days after the date on which the right to inspect arises and, if requested, provide a copy upon payment of any prescribed charge.

Accordingly, to the extent that you rely upon any judgment, charging order, interim charging order, final charging order, application notice, witness statement, affidavit, notice, deed, assignment or other document falling within CPR Part 31, you are required to permit inspection and provide copies of those documents.

Should you contend that CPR Part 31 does not apply, you are hereby required to identify the basis upon which you say the documents requested are exempt from inspection and disclosure, whilst maintaining reliance upon them in support of your client’s position.

Note: the following should be considered depending on your own circumstances.

· CPR 31.14 creates the right to inspect documents mentioned in specified court documents.

· CPR 31.15 sets out the obligation to allow inspection within seven days of the right arising.

· If there are no county court proceedings, or the documents have not been mentioned in a statement of case or witness evidence, the solicitor may argue that CPR Part 31 does not apply.

· In that situation, your request would instead rest on their professional obligations under the SRA Code and the fact that they are seeking to affect title to your property whilst refusing to disclose the basis for doing so.

SPARTA 18 - SRA AND DOCUMENT DISCLOSURE

SRA AND DOCUMENT DISCLOSURE