Appeal By Mcsparran Mccormick Under Section 21 Of The Legal Profession And Legal Aid (scotland) Act 2007 Against A Decision Taken By The Scottish Legal Complaints Commission Dated 25 June 2014
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Malcolm,Lord Drummond Young |
| Judgment Date | 27 January 2016 |
| Neutral Citation | [2016] CSIH 7 |
| Court | Court of Session |
| Date | 27 January 2016 |
| Published date | 27 January 2016 |
| Docket Number | XA168/14 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 7
XA168/14
Lady Dorrian
Lord Drummond Young
Lord Malcolm
OPINION OF LADY DORRIAN
in the appeal
by
McSPARRAN McCORMICK
Applicants;
Under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007
against a decision taken by the Scottish Legal Complaints Commission dated 25 June 2014
Applicants: Brown; Ian Anderson, Solicitors
Respondent: McIlvride, QC; Harper McLeod LLP
27 January 2016
Introduction
[1] The appellants are a firm of solicitors who complained to the Scottish Legal Complaints Commission about the conduct of another solicitor, Mr John McGeechan of JBM Solicitors, Airdrie. In essence, the complaint alleged that Mr McGeechan wrote letters to the appellants, to another firm of solicitors and to a firm of chartered accountants in which it was falsely asserted that the appellants had conspired with a chartered accountant and others to commit fraud, and did indeed commit fraud. The precise nature of the complaint will be discussed below. The Scottish Legal Complaints Commission concluded that the complaint was totally without merit in terms of section 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007 (“the 2007 Act”). Accordingly, the complaint was ruled ineligible, and accordingly not referred to the relevant professional organisation, namely the Law Society of Scotland.
Background
[2] The issue arose in connection with the affairs of a deceased client of the appellants, as explained in the Scottish Legal Complaints Commission determination paras 1.1 to 1.10. The appellants had acted for Mr Leslie Wilmot who died in March 2008. His estate was wound up on the basis of intestacy in accordance with a deed of variation agreed by his four children, one of whom was a Justin Wilmot. Justin Wilmot was the son of the deceased and a former co-habitee, Caroline Callaghan. The appellants wound up the estate.
[3] In March 2014 they received a letter, dated 5 March, from Mr McGeechan acting for both Justin Wilmot and Caroline Callaghan. The letter was headed “Action for reduction of deed of variation”. It referred to a will of the deceased from 1990, and claimed that at a meeting at which the Deed of Variation was signed, and at which a solicitor from the complainer’s firm was present, Justin Wilmot had given a copy of the 1990 will to Mr O’Hara, who ignored it. The letter stated:
“The Will of Leslie Wilmot was prepared by your firm and appears to be properly executed. Your firm would, therefore, be aware of the existence of the Will whilst acting in the Deed of Variation.
It appears that the Deed of Variation was a fraud that resulted in Caroline Callaghan being cheated of her rights under the will……
We are instructed to raise an action of reduction and to seek damages against all parties involved. We are also instructed to lodge complaints with various professional bodies, the police and HMRC.”
The letter continues:
“It may be that our clients are misinformed or that there is a genuine and legal explanation or reason. If this is the case please provide it as soon as possible”.
[4] In a letter sent the same day to Messrs Clark Boyle, Solicitors, who acted for another member of the family, Mr McGeechan stated that:
“The solicitors who prepared the will and the Deed of Variation, the accountants and your client were aware of the existence of the will.”
It asserted that the Deed of Variation:
“…appears …to be evidence of fraud on the part of those who benefited from the Deed significantly and it raises questions about the actions of the law firm… involved.”
It concludes by stating:
“We are further instructed to lodge formal complaints with the professional bodies regarding the firm of solicitors and the accountant and will be lodging a formal complaint with HMRC and the police about the deliberate undervaluing of the estate and the theft of moveable items from the estate…………………………We would be interested to know if your client can assist us as a witness in what will be a larger action regarding the Deed of Variation and the will, in order that we can correct the fraudulent distribution of the estate of Leslie Wilmot”
It is apparent from this letter that Caroline Callaghan was claiming to have been married to the deceased at the time of his death.
[5] A third letter was sent to the deceased’s chartered accountant, Mr O’Hara, in which it was stated that “… Caroline Callaghan has been cheated out of her rights under the will and that a fairly substantial fraud has been committed”.
[6] That letter also indicated that complaints would be lodged with professional bodies, the police and HMRC.
[7] The appellants received a further letter from Mr McGeechan dated 24 March 2014 in which, after referring to the 1990 will, he stated:
“Your firm also thereafter acted for various parties in a Deed of Variation which clearly contradicts the will and which stated in paragraph 1 that Leslie Wilmot died intestate. He obviously did not die intestate and your firm would have had to be aware of that, having drafted and attended to the execution of his will”
He added that Justin Wilmot
“was deceived into signing the Deed of variation when a solicitor from your office was present……………The Deed of variation would therefore appear to be a fraudulent document by claiming that Leslie Wilmot died intestate”.
[8] On the same date a further letter was also sent to the chartered accountants in terms which stated:
“We also note that you refer to another will and that this appears to have been unsigned. This may be viewed as a convenient and manufactured document that was created by various parties who were not happy about the will of Leslie Wilmot. We are concerned to note that the solicitors who acted in the original will and the Deed are the same firm. It seems very strange that there was no reference to the validly executed will and we note that Caroline Callaghan, who was a beneficiary in that will, is not a signatory to the Deed. This therefore makes the Deed invalid and the whole circumstances give the impression of a deliberate fraud.”
That letter also states
“we hold a valid signed and executed will”
a claim which the appellant asserts is false, Mr McGeechan having had sight only of a copy will.
[9] A letter of 24 April was written to the Institute of Chartered Accountants of Scotland intimating a complaint against Mr O’Hara. In that letter it was asserted that:
“..through a combination of actings of McSparran McCormack ……….he [Justin Wilmot] was deceived into signing a Deed of variation.”
[10] In a final letter, dated 7 May and sent to Mr Ian Anderson, solicitor, by then acting for the appellants, Mr McGeechan stated:
“There appears to be collusion between professional parties and other members of the family”.
[11] The appellants aver that at the time of the 1990 will the deceased was co-habiting with Caroline Callaghan who was named as a beneficiary in the will. That relationship foundered in acrimonious circumstances in 1994, apparently in consequence of Caroline Callaghan commencing a relationship with a friend of the deceased, one Benjamin Biddle whom she married in 1999. In about December 1997 the deceased contacted the appellants to make further testamentary arrangements. He considered that the provision for Caroline Callaghan was no longer appropriate, and that provision should be made for Justin Wilmot who had not been born until after the execution of the 1990 will. Accordingly, on 18 December 1997 he instructed the appellants to destroy the 1990 will and gave instructions for preparation of a new will. In accordance with those instructions the old will was destroyed and a new will prepared and sent to the deceased who kept it with his papers but did not sign it. He contacted the appellants shortly before his death to review his will. They read over to him the terms of the 1997 will, but failed to notice that it had not been signed, with the result that he died intestate.
[12] The appellants further aver that prior to the letter of 24 April 2014 they had informed Mr. McGeechan (i) that Caroline Callaghan had never been married to the deceased; (ii) that at the time of the death she was in fact married to someone else; and (iii) that the 1990 will had been destroyed animo revocandi.
[13] The appellants complained to the Scottish Legal Complaints Commission on the basis that Mr McGeechan may have been guilty of professional misconduct, or at least unsatisfactory professional conduct, by making allegations of serious impropriety on the part of the appellants with no proper basis to do so. The complaint opens by stating:
“We are complaining about the conduct of John McGeechan of JBM Solicitors Limited in respect of letters written to our firm …and to another firm of solicitors and to a firm of Chartered Accountants containing untrue allegations that solicitors at this firm conspired with a chartered accountant and members of a family to commit a fraud and carried out the fraud.”
The complaint refers to the letters of 5 March and adds:
“Copes of the letters of 5 March 2014 and subsequent letters from JBM …are enclosed”
[14] It is said that there had been no contact made prior to the letters of 5 March being sent, and no attempt to obtain information from the appellants, who maintain that the allegations made by JBM were made without properly checking the facts, recklessly, and without proper belief in their truth. The complaint maintains that “it is clear from the correspondence” that JBM had no proper knowledge of the background facts, and concludes:
“A solicitor has a duty to act ethically and with restraint and it was at least unsatisfactory professional conduct for such a serious allegation to have been made recklessly in intemperate language without any proper basis.”
[15] The Commission sent a summary of the complaint to the appellants on 2 June 2014, in which reference is made only to the...
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