Petition Of Alistair Kenny Smith Hood For Review Of A Decision Of The Scottish Solicitors' Discipline Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Glennie,Lord Drummond Young,Lord Justice Clerk |
| Judgment Date | 07 March 2017 |
| Neutral Citation | [2017] CSIH 21 |
| Published date | 07 March 2017 |
| Date | 07 March 2017 |
| Court | Court of Session |
| Docket Number | P385/15 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 21
P385/15
Lord Justice Clerk
Lord Drummond Young
Lord Glennie
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in the petition of
by
ALISTAIR KENNY SMITH HOOD
Petitioner
for
Review of a Decision of the Scottish Solicitors’ Discipline Tribunal made on
12 February 2015
Appellant: Davies; T C Young Wilson Terris
First Respondents (Council of the Law Society of Scotland): Dunlop, QC; Balfour & Manson LLP
7 March 2017
[1] In January 2014 the petitioner made a complaint of unsatisfactory professional conduct to the Scottish Legal Complaints Commission against WR, a solicitor and a partner of WR & Co Ltd, solicitors, Glasgow. The Commission referred the conduct part of the complaint to the respondents, the Council of the Law Society of Scotland. On 29 May 2014 the respondents intimated that they had decided not to uphold the complaint. The petitioner appealed that determination in part to the Scottish Solicitors’ Discipline Tribunal, which by interlocutor dated 12 February 2015 confirmed the decision of the respondents. The petitioner has appealed to the Court against that interlocutor of the Tribunal. He submits that the Tribunal should have upheld issues 1 and 3 in the complaint against WR and should accordingly have found WR guilty of unsatisfactory professional conduct.
[2] In 2013 WR was acting for the petitioner’s wife in a divorce action and an action for division and sale of the former matrimonial home in Glasgow (referred to as “the Property”), which was jointly owned by the petitioner and his wife. The allegations in issues 1 and 3 of the complaint were as follows:
1. WR and the firm of WR & Co Ltd commenced marketing the Property for sale without obtaining the petitioner’s consent or instructions as a joint owner of the Property and in the absence of any minute of agreement between the petitioner and his wife, the co-proprietor, concerning the arrangements for sale of the Property and division of the net proceeds of sale.
3. WR purported to act for the petitioner in the marketing of the Property for sale without issuing a terms of engagement letter or marketing agreement to the petitioner in a situation where that was an actual or potential conflict of interest in WR’s acting for both the petitioner and his wife.
Factual background to the complaint
[3] The factual background to the petitioner’s complaint is as follows. In March 2013 the petitioner and his wife were engaged in contentious divorce proceedings. Their principal asset was the former matrimonial home, which was a suburban house in Baillieston, in the eastern part of Glasgow. Negotiations with a view to the petitioner’s acquiring his wife’s interest in the house broke down during 2012, and it is a matter of agreement that thereafter it was essential that the house should be sold. On 12 July 2012 WR wrote to the petitioner’s solicitors enclosing a draft minute of agreement to allow the early marketing of the property. Nothing of note happened thereafter until March 2013, when WR and the petitioner’s solicitor met and discussed inter alia the sale of the house. On 22 March the petitioner’s solicitor wrote to WR to state that the petitioner would allow his wife to market the property through the agency of WR’s firm for whatever sum she thought appropriate for a period of three months. Thereafter any offer of £105,000 or more should be accepted. On 17 April WR replied, offering to sell the property to the petitioner, but if that were not accepted it was proposed that WR’s firm would arrange for the immediate marketing of the property in terms of an agreement concluded between the petitioner’s solicitor and WR. It was further indicated that WR’s firm would prepare a minute of agreement for immediate execution by the two firms’ respective clients to allow marketing of the matrimonial home to take place.
[4] Between April and August 2013 no material developments occurred in relation to the sale of the property. On 29 August WR wrote to the petitioner’s solicitor regarding the draft minute of agreement, and stated that he believed that any delay in the marketing of the property had been entirely due to the petitioner’s failure to approve or adjust a draft schedule of sale. A copy of the draft minute of agreement as revised was available to the Tribunal. It provided that the matrimonial home should be marketed for sale, with WR’s firm to be instructed in the estate agency work involved. Provision was made for the disposal of the sale proceeds of the property; a loan from Abbey National was to be paid off; all estate agency costs or fees and outlays incurred by WR & Co Ltd were to be paid; all costs, fees and outlays incurred by the petitioner’s solicitors in the conveyancing of the property were to be paid; and thereafter the proceeds of sale were to be divided equally between the parties. Clause 6 of the draft minute of agreement, which had been added at revisal, provided as follows:
“6. With regard to said estate agency, it is an essential term of this Agreement that the party shall act in accordance with the following provisions.
6.1 During a period of three calendar months commencing upon the later date of signature hereof, the first party shall not be obliged to accept any offer for the purchase of the property.
6.2 Following the expiry of the said period, upon receipt of any offer as aforesaid at a price of or in excess of £100,000 [the wife] at her option shall either accept said offer or forthwith shall convene a closing date for offers, to be held no later than seven days thereafter. At such a closing date, the parties shall accept the highest offer received providing that said offer is at a price [of] or in excess of £100,000.
6.3 Upon receipt of any offer for the purchase of the property at a price of or in excess of £100,000, [the wife] shall be entitled to purchase the property at a price equivalent to the price contained in said offer…. If [the wife] does not exercise said right, [the husband] shall be entitled to exercise said right [on identical terms]”.
[5] Further correspondence passed in September 2013. On 18 September the petitioner’s solicitors wrote to WR & Co Ltd to say that the matter could not progress until there was in place a minute of agreement executed by their respective clients. On 16 October WR wrote to the petitioner’s solicitors about a number of outstanding matters, including the division and sale of the matrimonial home. It was stated that the property would be on the market no later than Wednesday 23 October. On that basis it was suggested that there would be no need to lodge defences in the action of division and sale that had been raised. It should be noted that in that letter WR was quite open about his intention to start marketing the property, by 23 October at the latest. On 21 October WR wrote to the petitioner’s solicitors to state that his firm’s property manageress was due to visit the property that day to take photographs and prepare the schedule of sale, and that it was hoped that the property would be marketed during the course of the week. A further suggestion was made that the wife might transfer her interest in the matrimonial home to the petitioner based on a sale price of £117,500. Once again, WR was quite open about his intention to market the property.
[6] The petitioner’s solicitor replied on 22 October, asking for defences in the action of division and sale, if they were to be lodged, by return. It was suggested that there was no defence to that action. Further reference was made to the wife’s failure to respond to the revised minute of agreement that had been forwarded on 6 September. The letter then stated
“Obviously if steps are now taken belatedly to market the property, this will be welcomed and we look forward to receiving the engrossed Minute of Agreement for execution”.
We note that in that letter the petitioner’s solicitors clearly expressed support for the marketing of the property; this is a matter that we consider important, for reasons discussed below. No minute of agreement was produced at that stage, but shortly thereafter WR’s firm began to market the property through the Glasgow Solicitors Property Centre. When the petitioner discovered this, he attempted to contact WR directly to complain that he had not agreed to the marketing of the property, and his solicitor wrote to WR’s firm on 13 November. The letter stated:
“We refer to [an employee’s] telephone call to this office advising that the matrimonial home was now being marketed at a fixed price of £115,000.
It is necessary for there to be in place a signed Agreement for the property to be marketed. Please revert to us as a matter of urgency in relation to this matter. An earlier Minute of Agreement in draft form was revised and returned to you in early September 2013”.
[7] WR responded to that letter by means of a handwritten note sent by fax shortly after the letter was received. The note stated:
“Agreement only needs to be in place before accepting any offer not for marketing. Given your client’s action we would have thought he would be pleased @ property being marketed. We did write about Agreement but you have not responded. We trust we can now get that in place but in the meantime… no offer will be accepted until then”.
On 20 November WR sent a letter to the petitioner’s solicitors to similar effect, stating that the actual minute of agreement did not require to be finalized unless an offer were received and accepted. The letter confirmed that that would not be done without the petitioner’s consent. The letter further stated:
“We would respectfully submit that we gave you and your client clear intimation that the property was going to be marketed at the end of October and at no time did either you or your client intimate not to do so”.
[8] On 22 November the petitioner’s solicitors wrote to WR’s firm to ask for...
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