Mr. Macr For Judicial Review Of A Decision Of The Law Society Of Scotland
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Neutral Citation | [2013] CSOH 28 |
| Year | 2013 |
| Published date | 20 February 2013 |
| Date | 20 February 2013 |
| Court | Court of Session |
| Docket Number | P47/12 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 28 | |
| P47/12 | OPINION OF LORD DRUMMOND YOUNG in the Petition of MR MacR Petitioner; for Judicial Review of a decision of the Law Society of Scotland ________________ |
Act: Ferguson QC, Watts; Simpson & Marwick
Alt: Lindsay QC; Anderson Strathern LLP (Law Society of Scotland)
Alt: Miss C, personally (Interested Party)
20 February 2013
[1] The petitioner seeks judicial review of a decision of the Law Society of Scotland dated 10 January 2012. The Law Society appear as respondents to the petition. The petitioner is a solicitor, against whom the interested party made a complaint in August 2005. The complaint was intimated to the petitioner in September 2006. It contained 38 allegations. In order to investigate the complaint the respondents instructed a series of reporters. The first two reporters were unable to complete their task. A third reporter produced a report dated 28 September 2009, in which he recommended that all of the heads of complaint made by the interested party should be dismissed apart from one finding of inadequate professional services. The interested party complained about the terms of the 2009 report; she alleged that the third reporter had not seen all of the necessary papers, that the petitioner's firm had submitted a file which contained fabricated evidence, and that the petitioner's firm had removed letters from files which were incriminatory or adverse to their interests. The respondents instructed the third reporter to prepare a supplementary report, but he intimated that he was unable to do so. The respondents then instructed a fourth reporter to consider matters; initially he was instructed to prepare a supplementary report, but this became a completely fresh report, involving a total reconsideration of the complaints against the petitioner. The fourth reporter produced a report dated June 2011. His conclusions differed radically from those of the third reporter, in that he made eight findings of inadequate professional services against the petitioner and seven findings of professional misconduct.
[2] On 10 January 2012 the respondents wrote to the petitioner to intimate that they proposed to proceed on the basis of the 2011 report, treating the 2009 report as a nullity. They invited comments on the 2011 report. In the present petition the petitioner seeks reduction of that decision and certain ancillary orders. The petition founded on a number of legal grounds including the proposition that the 2011 report and the decision of 10 January 2012 were ultra vires and that the respondents failed to give adequate reasons for their decision, but those two grounds were not argued at the first hearing. At that hearing four grounds remained. First, it was said that the procedures followed by the respondents breached the rules of natural justice, in particular the principle audi alteram partem. Secondly, it was said that the procedures followed by the respondents following the receipt of the 2009 report contravened the pursuer's legitimate expectations, in that the initial instruction to prepare a supplementary report metamorphosed into a completely fresh report. Thirdly, it was said that the procedures followed by the respondents had violated the petitioner's right to a fair trial under article 6 of the European Convention on Human Rights: he had been denied a fair hearing as required by that article in that he had not been informed of the change in the fourth reporter's instructions and was therefore unable to present proper submissions to the fourth reporter. Fourthly, the disciplinary proceedings had not been completed within a reasonable time, as required by article 6 of the Convention. All of those grounds were resisted by the respondents, and also by the interested party. The respondents also claimed that the petition was premature and should be dismissed because the alleged procedural improprieties were capable of being remedied within their disciplinary procedures without intervention by the court. The interested party essentially adopted the same position as the respondents, but she also advanced a claim that the petition was fundamentally incompetent, in that the requirements for judicial review were not satisfied.
[3] I propose first to set out the legal provisions that govern the respondents' procedures in disciplinary matters together with the practice that was followed in respect of such complaints at the relevant time. I will then set out the factual history of the complaint against the petitioner so far as that is necessary for the purposes of judicial review. After that I will consider the four grounds on which the petitioner seeks judicial review, both generally and individually, and thereafter the plea of prematurity taken by both the respondents and the interested party and the wider plea to competency taken by the interested party.
Legislation
[4] At the time when the complaint was made against the petitioner, the respondents' disciplinary procedures were governed by section 33 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. That section, which is headed "Complaints in relation to legal services", provides as follows:
"(1) Where any person with an interest has made a complaint (a 'conduct complaint') to a professional organisation that a practitioner has -
(a) been guilty of professional misconduct; or
(b) provided inadequate professional services, the organisation shall investigate the matter, and shall thereafter make a written report to the complainer and the practitioner concerned of -
(i) the facts of the matter as found by the organisation; and
(ii) what action the organisation propose to take, or have taken in the matter".
So far as the present case is concerned, "professional organisation" is defined in subsection (5) as being the Council of the Law Society of Scotland, and "practitioner" is defined in the same subsection as a solicitor. I should record that that legislation has now been superseded by the Legal Services (Scotland) Act 2010. Under the transitional provisions in that Act, however, section 33 continues to apply to the complaint against the petitioner.
[5] The procedure followed by the respondents in dealing with conduct complaints is to appoint a reporter to investigate the complaint, to report on the facts and to make a recommendation as to what grounds if any exist upon which the respondents might take action. Normally the reporter is a solicitor. The respondents' practice, which is set out in a document known as "The Society's Complaints Process" (no. 7/4 of process), is that the issues of the complaint are agreed with the complainer and the solicitor is given fair notice of the allegations. Thus a solicitor against whom a complaint is made will know the evidence against him and will be given an opportunity to comment on it before the report is produced. Thereafter the report is considered by the relevant committee of the respondents. In the case of inadequate services, the report goes to the Client Relations Sub-Committee. From that Sub-Committee there is an appeal to the Scottish Solicitors Discipline Tribunal, and from there an appeal to the Inner House. In the case of professional misconduct, the report goes to the Professional Conduct Sub-Committee, which may decide that it should be prosecuted before the Scottish Solicitors' Discipline Tribunal. In that event the matter is heard by the Discipline Tribunal, from which there is a right of appeal to the Inner House.
The complaint against the petitioner
[6] The petitioner had acted for the interested party in connection with the dissolution and winding up of the affairs of the former partnership of West Anderson & Co, the firm of solicitors in which the interested party was a partner. (A firm of the same name exists today, and the interested party is a partner, but it is the affairs of the old firm that form the subject matter of this petition). On 16 August 2005 the interested party made a complaint to the respondents about the petitioner's conduct. The complaint contained thirty eight separate heads. Three of these were complaints of inadequate professional service in relation to an arbitration arising out of the dissolution and winding up of the former firm of West Anderson & Co; twelve were complaints of inadequate professional service in relation to a commercial action raised in Glasgow Sheriff Court in connection with the dissolution and winding up of the firm; nine were complaints of professional misconduct in relation to the same commercial action; and one was a complaint of inadequate professional service in relation to the dissolution of the partnership and the provisions of the contract governing the consequences of such dissolution. In accordance with their usual practice the respondents in September 2007 appointed a solicitor as reporter, but in May 2008 he withdrew because of pressure of work and problems with his records. In June 2008 a second reporter was appointed, but in September of that year it became necessary for the second reporter to withdraw because his identity had been discovered by the interested party, and the third reporter was appointed. The third reporter then prepared a report on the complaint; the report (no. 6/69 of process) was dated 28 September 2009, and was sent to the petitioner and the interested party. The petitioner states that he had an opportunity to comment on all the evidence before the third reporter before the 2009 report was prepared. As I have already mentioned, the third reporter found only one of the thirty eight heads of complaint against the petitioner to be established, and he recommended that no sanctions should be imposed in respect of that head, which related to a failure to disclose to the interested party that the petitioner's firm had failed to lodge defences timeously in the commercial action in Glasgow Sheriff Court.
[7] On 9 November 2009 the...
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