Court of Session rules on two discipline cases

Two recent decisions have been given by the Court of Session in cases concerning decisions of the Scottish Solicitors' Discipline Tribunal.

In one, a finding of professional misconduct was upheld against a solicitor who accepted an offer in settlement after his client had transferred his instructions to another firm, but the penalty imposed was reduced; in the other a petition for judicial review of a decision by the tribunal to repel a motion to dismiss a complaint because of unreasonable delay in bringing it, was itself dismissed for reasons including delay in presenting it.

The settlement case concerned Paisley solicitor Iain Robertson, whose firm Robertson & Ross had been instructed by Steven McGovaney, a prisoner who had brought a "slopping out" claim against the Scottish ministers. In March 2011 Mr McGovaney instructed another firm, Taylor & Kelly, who forwarded a mandate to Robertson & Ross; following correspondence Mr Robertson forwarded the file in August 2011. In April 2012 the ministers made a settlement offer to Robertson & Ross, having failed to notice that Taylor & Kelly were now acting; Mr Robertson accepted the offer without seeking instructions. The offer was a standard one of £500 plus expenses; Mr McGovaney would have sought the higher sum of £2,100 paid to prisoners in certain circumstances, although this would have been likely to have been contested.

It was argued for Mr Robertson that while his conduct had been unsatisfactory, it did not amount to professional misconduct as the tribunal found he had acted in error rather than dishonestly, and in the belief that he had a mandate from his client to agree a settlement.

Delivering the opinion of the court, Lord Menzies, who sat with Lord Brodie and Lady Dorrian, said this was not a case where the court could interfere with the tribunal's findings, having regard to its specialist expertise and that it had to decide issues of credibility and reliability. Mr Robertson had not checked his file or tried to contact Mr McGovaney; he had accepted the ministers' assertions as to what payment Mr McGovaney was entitled to; and the mandate in his favour did not entitle him to accept the lower sum.

However as regards penalty and compensation, the tribunal erred in awarding Mr McGovaney the full difference between the lower and higher sums in contention, plus £200 for inconvenience and frustration: he had only suffered a loss of opportunity to pursue the higher claim, and his prospects of success, and unlikelihood of receiving legal aid, had not been considered. The appropriate award was £350. There was also no justification for a two year restriction on Mr Robertson's practising certificate: although he had acted in a reckless and cavalier manner, sustaining public confidence in the profession did not require this move, which would also have extremely serious consequences for Mr Robertson and the 12 employees of his firm. A fine of £3,000 was substituted.

Mora plea upheld

The judicial review was brought by James Gerard Moore, concerning a complaint of professional misconduct lodged with the tribunal in March 2014. A preliminary hearing was held on the petitioner's plea seeking dismissal on the basis of unreasonable delay constituting a breach of article 6(1) of the European Convention, as the complaint related to events in 2007 and 2008. The tribunal held it was bound by the decision in Hall (2002), that the relevant period began with the raising of the complaint. An appeal was marked but held incompetent in December 2014. A further tribunal hearing was fixed for 15 June 2015; the present petition was presented on 26 May.

Lord Bannatyne sustained all three preliminary pleas for the respondents and dismissed the petition. The time taken to raise the proceedings was "significantly in excess of what would have been reasonable", given the short time limits for appeal, the lack of investigation needed and the knowledge that others were acting on the decision; no acceptable explanation had been offered for the delay. The petitioner had also failed to make it clear that he was still asserting his rights; and acquiescence could be inferred from his silence and inaction.

The second plea, that the challenge was merely academic, was upheld because on the authorities it was not enough under article 6 to allege unreasonable delay: it had to be established that there could no longer be a fair hearing, or that it would otherwise be unfair to try the defendant, and the petitioner had not put forward such a case.

The third plea, that the petitioner had an effective alternative remedy, was also upheld, as the petitioner could make a submission based on unreasonable delay before the tribunal at the full hearing on the complaint: no plea in law of his had yet been repelled. He also had an unfettered right of appeal following that hearing.

Click here for the opinion in the Robertson case; click here for the opinion in the Moore case.