by Steve Hynes
After months of rumours that staff were leaving the firm and that its founder Phil Shiner was buckling under of the pressure, Public Interest Lawyers (PIL) has announced its closure.
The final nail in the coffin, it seems, was the announcement by the Legal Aid Agency (LAA) that it was terminating the firm’s contract. It is to be regretted that PIL has gone to the wall before the accusations made against it and its founder, Phil Shiner, could be substantiated or refuted.
PIL has been under a cloud since the Ministry of Defence (MoD) sent a dossier outlining alleged misconduct to the Solicitors Regulation Authority (SRA) in February last year. In June this year the SRA decided that Shiner and John Dickinson from PIL had a case to answer and referred the matter to the Solicitors Disciplinary Tribunal (SDT).
Shiner has successfully applied for the SDT case to be heard in secret. He might have had good grounds for doing this, such as his health or the need to protect client confidentiality. However, he and the other protagonists in this case have already been engaged in a media battle, which means that much of the detail of the issues involved are already in the public domain.
The charges of professional misconduct the solicitors are facing arise out of the Al-Sweady inquiry. The inquiry was established to investigate the allegation that British troops murdered up to 20 Iraqi civilians at a check-point near Basra in May 2004.
In a damming decision the inquiry found that the allegations of murder were “wholly without foundation and the product of deliberate lies, reckless speculation and ingrained hostility.” Leigh Day, a large firm specialising in human rights, is accused of professional misconduct in nine cases which were also considered by the Al-Sweady inquiry.
In an interview for The Guardian last year Martyn Day, a partner at the firm, admitted, “Maybe the Iraqis were fantastic liars. It seems they hoodwinked us.”
The most serious allegation the MoD has made against the Shiner and Leigh Day, is that they sat on evidence which disproved the allegations for around a year before announcing that they were no-longer litigating the cases.
If it is found that solicitors at either or both firms deliberately failed to disclose evidence then they face being struck off. This issue of the delay in disclosure is likely to be the subject of much of the detailed evidence before the SDT. The MoD also claims that Shiner used an agent to tout for business in Iraq, which LAG believes might be the reason for the LAA’s decision to terminate PIL’s contract.
According to an article in The Independent last year the MoD said it had no “direct evidence” of the payment of referral fees, but suggested that there was a suspicion this was going on due to the large number of cases the firm was representing in. Untangling whether a payment of a prohibited referral fee was made or not can prove complicated, especially when a third party in a foreign country is retained to work on behalf of a firm.
This accusation might therefore go no-where. With hindsight it seems that Shiner got it spectacularly wrong when he took-up these cases, but Martyn Day was right when he said in the same interview with The Guardian that they were serious allegations which needed investigating.
In the past Day and Shiner have both acted for clients in which the government has been found to have acted illegally. Shiner particularly has history with the MoD. A history that makes his claims of a political vendetta made in an interview with The Independent newspaper last year not implausible.
Baha Mousa was an Iraqi hotel worker who was arrested as a suspected insurgent and died while being held for interrogation by the army in September 2003. Shiner doggedly pursued the case on behalf of the dead man’s father. Eventually, an inquiry found that the Mousa and other civilian prisoners had been subject to an “appalling episode of serious gratuitous violence” by the army and that MoJ was guilty of “corporate failure”.
Responding to the findings in a statement to the House of Commons, the Secretary of State for defence, Liam Fox, conceded that what had happened to Mousa and the other detainees “was deplorable, shocking and shameful.”
The current Defence Secretary, Michael Fallon, has described the closure of the firm as the “right outcome for our armed forces.” Ominously, a Number 10 spokesman has also said that the government was committed to addressing the “types of spurious claims that companies like PIL are pursuing” and that ministers were considering a “suite of measures” to prevent “bogus claims.” The problem is sifting the “spurious” from Baha Mousa cases is more difficult than politicians and the many journalists rushing to condemn Shiner might suppose.
Love them or loath them the public interest is dependent on firms like PIL and Leigh Day to hold government to account.
Steve Hynes, director, Legal Action Group
This article was originally published on New Law Journal.