SRA investigation: Leigh Day’s Firing Squad draws a blank

Over two months after the Solicitors Disciplinary Tribunal cleared Leigh Day’s Martin Day, Sapna Malik and Anna Crowther of all 21 disciplinary offences, their 214 page judgment has finally been published.  In essence, these three solicitors stood accused of pursuing their ‘al-Sweady’ claims on the basis that their Iraqi clients were innocent civilians whilst at the same time:-

• Withholding evidence within their possession suggesting some of their clients were in fact militia men within the Mahdi Army, or linked to this Army
• In the case of Miss Crowther, disposing of a translation of an original document of such evidence one day before officials from the al-Sweady inquiry were due to assess files.
• Paying unlawful referral fees to a third party for introducing publicly-funded claimants to Leigh Day.
• Failing to investigate concerns that the reimbursement of client expenses might look like ‘bribes’ (although it was not suggested by the Solicitors Regulation Authority (SRA) that such payments were in fact bribes).
• Failing to properly manage documents within their possession and identify those most relevant to the inquiry.

Of key importance to the case was the background of Khuder al-Sweady, a prominent Leigh Day client and ‘link man’ to other Iraqi clients affected by the ‘Battle of Danny Boy’ in Majar al Kabir on 14 May 2004. The Solicitors Regulation Authority (SRA) claimed that Leigh Day knew that Khuder al-Sweady was linked to serious violence and intimidation because of an Arabic list of Detainees which they received in 2004 from a freelance journalist.  It was known as the “OMS list” and purported to set out which detainees were part of the Mahdi Army. But whatever its provenance or veracity, it was actually accepted that this original document had been properly disclosed by Leigh Day in the proceedings that followed.

The document which was shredded by Anna Crowther had been initially reported as an original list of Mahdi Army members. The way this document was described created the impression that Ms Crowther had shredded the actual OMS list itself. In fact, it transpires her document was merely an original handwritten translation of the OMS list. The original Arabic OMS list remained quite safe. In addition, the Legal Aid Agency had themselves investigated this point and in 2014 determined that Leigh Day were not trying to destroy evidence which it deemed to be critical, because clearly the original Arabic document had been more important than a translation.

In relation to the fee arrangements, this area was complex but in broad terms there was no issue between the SRA and the respondent about the terms of those agreements, and the issue was whether the agreements constituted a prohibited contingency fee within the meaning of the rules. By a majority of 2-1, the tribunal found that they did not. Even the dissenting tribunal member found that any breach of the Rules had not been deliberate, and amounted to technical breaches only.

In fact, on many of the key decisions the Tribunal were split 2-1, with one member, Mr Hegarty, expressing serious doubts about the credibility of Martin Day. This dissenting view has generated a good deal of publicity. There will of course be further arguments regarding Leigh Day’s costs, which are said to run into several million pounds. Some will argue that Leigh Day were fortunate to escape theoretically unscathed, while others will say the SRA have wasted huge resources and were improperly influenced by government. Whoever is right, reading the facts of this matter provide a timely reminder: for lawyers and journalists alike, there is no substitute for hearing about the actual evidence, rather than reading the press releases in advance of it.

Rather like the Iraq war itself, what was billed by the SRA as a clear, straightforward quest for justice in fact became a lengthy, complicated and ultimately unsuccessful venture.

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