PETITION OF IAIN ROBERTSON FOR RECALL OF A DECISION OF THE SCOTTISH SOLICITORS’ DISCIPLINE TRIBUNAL DATED 14 NOVEMBER 2014 AND INTIMATED TO THE PETITIONER ON OR SHORTLY AFTER 13 JANUARY 2015
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 95
P108/15
Lord Menzies
Lord Brodie
Lady Dorrian
OPINION OF THE COURT
delivered by LORD MENZIES
in Petition
of
IAIN ROBERTSON
Petitioner;
for
Recall of a decision of the Scottish Solicitors’ Discipline Tribunal dated 14 November 2014 and intimated to the petitioner on or shortly after 13 January 2015
Petitioner: Bain, QC, Frain Bell; Drummond Miller LLP
Respondents: Dunlop QC; Balfour + Manson LLP
23 December 2015
Introduction
[1] The petitioner is a solicitor practising in Paisley. In August 2014 the Council of the Law Society of Scotland served a complaint on the petitioner making allegations regarding his conduct in relation to a claim for damages by Mr Steven McGovaney against the Scottish Ministers. As more fully set out below, it was alleged that the petitioner settled Mr McGovaney’s claim without authority to do so. The petitioner lodged answers to this complaint, and a hearing took place before the Scottish Solicitors’ Discipline Tribunal (“the Tribunal”) on 14 November 2014. Having heard evidence and submissions, on 14 November 2014 the Tribunal issued an interlocutor in which, inter alia, it found the petitioner guilty of Professional Misconduct in respect of his contravention of Rules 1.4.1, 1.5.1, 1.9.1 and 1.9.2 of the Law Society of Scotland Practice Rules 2011; censured the petitioner; and directed in terms of section 53(5) of the Solicitors (Scotland) Act 1980 that for an aggregate period of 2 years with effect from 1 March 2015 any practising certificate held or issued to the petitioner should be subject to such restriction as would limit him to acting as a qualified assistant to such employer as may be approved by the Council of the Law Society of Scotland or the Practising Certificate Sub-Committee of the Council of the Law Society of Scotland. By a second interlocutor of the same date, the Tribunal ordained the petitioner in terms of section 53A(2)(d) of the Solicitors (Scotland) Act 1980 to pay to Mr McGovaney the sum of £1,800 by way of compensation in respect of loss, inconvenience and distress resulting from the misconduct. It is against each of these interlocutors that the petitioner now appeals to this court. The respondents are the Council of the Law Society of Scotland.
The issues
(1) Was the Tribunal entitled to find the petitioner guilty of professional misconduct in the circumstances?
(2) Were the penalties imposed by the Tribunal excessive?
The factual background
[2] The Tribunal found the following facts established (the petitioner in the present proceedings being referred to as “the respondent” throughout these findings):-
“6.1 The Respondent was born on 6 April 1953. He was enrolled as a solicitor on the Register of Solicitors Practising in Scotland on 1 November 1976. For various periods during his professional career he has been a partner or associated with a number of firms including Messrs Robertson & Ross Solicitors, Downie Aiton & Co, Solicitors, Ghazala Ahmed, Robertson & Ross Solicitors and Blackwood & Co. Solicitors. From on or about 17 October 2005 he has been a director of the firm of Robertson & Ross Limited Solicitors to date. He was the founding partner of the firm of Messrs Robertson & Ross Solicitors which commenced practice in 1978. Since 1978 he has been a partner ort director of that firm.
6.2 The firm of the Respondent acted on behalf of the client Steven McGovaney. He is the secondary complainer. The client at the material time was a prisoner serving a sentence within a Scottish prison. He consulted with the firm of the Respondent in connection with a claim for damages against the Scottish Prison Service for their breach of certain rights afforded to Mr McGovaney in terms of the European Convention on Human Rights. An action was raised on behalf of Mr McGovaney. The background to the case is that this action was one of a considerable number of actions raised against the Scottish Ministers by prisoners and former prisoners in respect of prison conditions, with the focus being on sanitation arrangements, since the Scotland Act 1998 came into force. The term ‘slopping out’ is used to describe the situation where prisoners were held in cells which did not have integral in-cell sanitation. Broadly speaking, in these situations when prisoners were locked in their cells they required to use a receptacle to urinate or defecate in, which they later required to empty at a communal sluice along with other prisoners. ‘Doubled up slopping out’ describes a situation where a prisoner was sharing a cell with another prisoner. ‘Single cell slopping out’ describes a situation where a prisoner was not sharing a cell.
6.3 A large number of court actions were raised. The Scottish Ministers accepted that doubled up slopping out conditions were a violation of the prisoners’ rights in terms of Article 3 of the European Convention on Human Rights. With a view to settling these claims offers of £2100 plus a fixed amount of expenses were made in satisfaction for that breach in all cases where prisoners had been detained in these conditions for a material period of time. In relation to single cell slopping out an authority, Greens Petitioner reported at 2011 SLT 549 held that the practice where prisoners had to queue to take receptacles containing their own bodily waste in front of other prisoners was a violation of the prisoners’ rights under Article 8 of the European Convention on Human Rights and awarded damages of £500 for that breach. Following the decision of the Court of Session in this case the Scottish Ministers made offers of £500 plus a fixed amount of expenses in settlement of all cases where prisoners had been detained in these conditions for a material period of time.
6.4 In making offers to resolve matters, the Scottish Ministers had regard to their own detailed records of a prisoner’s detention. This allowed them to decide whether prisoners had been held in doubled up slopping out conditions, single cell slopping out conditions or indeed had not been detained in slopping out conditions at all. The vast majority of prisoners were represented by solicitors. The offers were directed to the solicitors involved. Each offer was made on the strict understanding that the action in which the offer was made was the pursuer’s only action against the Scottish Ministers in respect of detention and slopping out conditions and a condition of the offer was that the pursuer enter into a joint minute disposing of the action on the basis of decree of absolvitor being granted with no expenses.
6.5 In Mr McGovaney’s case an initial writ presented by the firm of the Respondent on his behalf referred to periods of detention between 1 July 1999 and 16 September 1999 in HM Prison Barlinnie and between 9 December 1999 and 8 May 2002 and 10 May 2002 through to 21 May 2003 in HM Prison Peterhead. There were no averments in the initial writ as to whether during these periods of detention Mr McGovaney asserted that he required to share a cell. In March 2011 Mr McGovaney instructed Messrs Taylor & Kelly to take over acting for him. A mandate was forwarded to Messrs Robertson & Ross on 21 March 2011. After an exchange of correspondence, the Respondent forwarded the file to Messrs Taylor & Kelly on 15 August 2011.
6.6 The records maintained by the Scottish Ministers revealed that Mr McGovaney was detained in single cell slopping out conditions between 1 July 1999 to 18 August 1999, 19 August 1999 to 20 August 1999, 9 December 1999 to 8 May 2002, 9 May 2002 to 21 May 2003 and 22 April 2005 to 30 May 2005. According to the records of the Scottish Ministers he was detained in doubled up slopping out conditions for two nights being 18 August 1999 to 19 August 1999 and 8 May 2002 to 9 May 2002. The position adopted by the Scottish Ministers was that such periods were de minimis and therefore not a violation of the Article 3 rights enjoyed by Mr McGovaney.
6.7 An offer of £500 was made in just satisfaction of an accepted breach of Mr McGovaney’s Article 8 rights during his detention in single cell slopping out conditions. The offer was directed to Robertson & Ross who were the solicitors who had raised the action and who had corresponded with the Scottish Ministers about the claim made by Mr McGovaney in 2008 under an alternative dispute resolution scheme which had been set up in an attempt to settle the subject matter of the court action. If agreement could not be reached under that scheme the court action remained live. The offer of £500 plus expenses of £2,640 was made by letter from the Scottish Ministers to Robertson & Ross dated 17 April 2012. At this stage the matter was being dealt with by the Respondent. By letter dated 19 April 2012 the Respondent intimated acceptance of the offer by returning the signed joint minute and accompanying joint motion. No file could be found for Mr McGovaney by the Respondent. Following on payment of the agreed settlement figure to Robertson & Ross decree of absolvitor with no expenses was granted at Peterhead Sheriff Court on 6 June 2012.
6.8 The Respondent accepted the offer on behalf of his client Steven McGovaney without checking any file for instructions. The Respondent accepted that offer without discussing or obtaining instructions of Mr McGovaney. The Respondent accepted the offer without making any communication at all with Mr McGovaney as regards to the offer. No slopping out administrative scheme – claim form had been completed by Mr McGovaney. The Respondent ought to have been aware that from 23 March 2011 Mr McGovaney was then represented by Taylor & Kelly and that the Respondent had no locus to act further on behalf of Mr McGovaney. In particular the Respondent had no locus to negotiate or accept any proposal which was advanced to resolve matters nor to sign any joint minute disposing of the court action. At the time the offer was accepted on behalf of Mr McGovaney the Respondent was the only qualified member of staff working at Robertson & Ross Solicitors. It ought to have been clear and obvious to the Respondent that he no longer enjoyed the instruction of Mr McGovaney. The Respondent had received and replied to ample correspondence from the new agents Messrs Taylor & Kelly who were acting on behalf of Mr McGovaney which should have alerted him that he was no longer instructed.
6.9 The Respondent received the settlement cheque in respect of Mr McGovaney’s claim on 2 May 2012. The Respondent did not pay the monies to him until 1 March 2013, a delay of some ten months. Mr McGovaney remained a prisoner during that time. The Respondent met with his cashier on a weekly basis and was aware that the monies remained unpaid. On 23 August 2012 Messrs Taylor & Kelly wrote to the Respondent enclosing the earlier correspondence. Despite an exchange of correspondence the monies were not paid to Mr McGovaney until 1 March 2013. In several cases the offer of £500 for other prisoners was rejected and a higher award of £2100 was secured for clients who had spent less than 8 days in doubled-up conditions. This occurred late on in the settlement process when it was understood there were few outstanding cases to be dealt with.
6.10 The action raised on behalf of Mr McGovaney was settled without his instructions. No inquiry was made to confirm that he accepted the record of his incarceration. He was deprived of his right to pursue his claim without instruction. He was caused loss, inconvenience and distress as a direct result of the Respondent’s conduct”.
The Tribunal’s decision on the issue of misconduct
[3] We shall turn to the Tribunal’s decision with regard to penalty and compensation later in this opinion. The Tribunal set out its decision on the issue of misconduct as follows:
“Little of the factual basis of the allegation of professional misconduct was disputed.
The Respondent accepted that at no stage had Mr McGovaney given any instruction to settle his case. He had not signed one of the Slopping Out Administrative Scheme – Claim Forms, used by the firm in the administration of these cases. A mandate was received by Messrs Robertson & Ross from Messrs Taylor & Kelly in March 2011. The Respondent had forwarded Mr McGovaney’s principal file to Messrs Taylor & Kelly in August 2011.
An offer of settlement was received by the Respondent in April 2012, by which time his firm no longer held the principal file, and had misplaced any temporary file for the client. The style claim form, Production 1 for the Respondent, refers to the upper figure of £2100. The offer received was the lower figure of £500. A joint minute agreeing that court proceedings be disposed of by decree of absolvitor was signed by the Respondent without any reference to a file, or any attempt to contact the client for instructions. Payment of the compensation to the client was received by the Respondent on 2 May 2012 and not passed onto the client until 28 February 2013. Throughout this time Mr McGovaney remained a prisoner in HM Prison Greenock. Mr McGovaney disputed the information given by the Scottish Government regarding his history within the prison system. No attempt appears to have been made to confirm the accuracy of this information with Mr McGovaney.
The test for the Tribunal to be able to hold that professional misconduct has been established is that as set out in the case of Sharp. In short, it states that conduct that falls below the standard to be expected of a competent and reputable solicitor, that would be regarded by competent and reputable solicitors as serious and reprehensible may properly be categorised as professional misconduct. The case goes on to say ‘whether or not the conduct complained of is a breach of rules or some other actings or omissions the same questions falls to be asked and answered and in every case it will be essential to consider the whole circumstances and the degree of culpability which is properly to be attached to the individual against whom the complaint is made’.
In the case of Sandeman, the test for professional misconduct was described as conduct which has sufficient gravity and culpability to be capable of bringing the profession into disrepute.
The onus of proof lies with the Complainers who must prove beyond reasonable doubt that the Respondent is guilty of professional misconduct.
The Tribunal found Mr McGovaney to be an honest and straightforward witness. The evidence of Mr Robertson and Mr Pollock however, had been less than satisfactory, on occasion evasive and contradictory. In his submissions the Respondent stated that when he had received the mandate from Taylor & Kelly his only concern was to implement the mandate, and yet it had taken 4 months for that to be done. The first mention of track and trace agents had been made in evidence today. And yet there was no supporting documentation or correspondence.
The Tribunal was satisfied, beyond reasonable doubt, that the Respondent
1. Had not acted in the best interests of his client (contrary to rule 1.4.1 of the Practice Rules 2011)
2. Did not have the authority of Mr McGovaney to accept the offer of settlement (contrary to rule 1.5.1 of the 2011 Rules)
3. Had not communicated effectively with his client, including providing him with any relevant information the Respondent had, or accounting sufficiently for funds passing through his hands (contrary to rule 1.9.1 of the 2011 Rules) and
4. Had not advised his client of significant developments in relation to his case (contrary to rule 1.9.2 of the 2011 Rules).
However the Tribunal was not satisfied that it had been proved beyond reasonable doubt that the Respondent had acted deliberately in the clear knowledge that he no longer enjoyed the client’s instructions to act. Dishonesty, therefore, had not been established.
It was clear that the facts demonstrated that the Respondent had acted in a reckless and cavalier manner in signing a joint minute, without referring to a file or communicating with his client. The office system appeared to have broken down on a number of occasions in this case. The temporary file appears to have been mislaid and no effort made, during the whole time it was missing, to clarify the position and in particular the client’s instructions. The firm continued to act despite receiving a mandate. A joint minute agreeing a decree of absolvitor, bringing a complete end to the client’s claim was signed without any authority. A man, who was known to the Respondent as being subject to a life sentence, was not traced for a period of nearly four months, despite the fact that he remained in the same prison throughout the period. The Respondent was aware through his regular meetings with his cashier that funds had not been forwarded to the client. Nor were they until March 2013.
The firm’s position with regard to computerised correspondence/files appears to have been haphazard at best.
In all of this and in particular with the signing of the joint minute, the Respondent demonstrated a clear disregard for the interests of Mr McGovaney.
The evidence, at its most favourable to the Respondent, disclosed a chaotic and culpably sloppy approach to the matter. The Respondent had expressed shock at being reminded by Taylor & Kelly on 23 August 2012 that a mandate had been sent to him previously. This contention itself seemed surprising to the Tribunal, given the correspondence that had taken place between the two firms previously.
The Tribunal had no hesitation in holding that the conduct amounted to professional misconduct”.
Submissions on the issue of professional misconduct
[4] Senior counsel for the petitioner submitted that the Tribunal misdirected itself in finding that the petitioner was guilty of professional misconduct. She accepted that what the petitioner did amounted to unsatisfactory professional conduct (as defined by section 46(1) of the Legal Profession and Legal Aid (Scotland) Act 2007), but it was not as serious as professional misconduct. Mr McGovaney’s claim should not have been regarded as a solitary “one-off” claim which was settled by the petitioner, but rather as part of a scheme operated by the petitioner’s firm for processing a large number of claims. Because of the levels of awards of damages which had been established by the court, there was no question of legal aid funding being available to pursue litigation, because the level of any likely award was clearly below £3,000. It was important to note that the Tribunal was not satisfied that it had been proved beyond reasonable doubt that the petitioner had acted deliberately in the clear knowledge that he no longer enjoyed the client’s instructions to act, and that dishonesty, therefore, had not been established. The petitioner had acted in error, under the mistaken belief that he was still acting for Mr McGovaney and that the claim was covered by a mandate in the standard form which authorised the petitioner to reach a settlement.
[5] Senior counsel for the petitioner took particular issue with three statements in the Tribunal’s decision. First, she submitted that the sentence (in the last paragraph of page 26 of the Tribunal’s findings) that “it was quite clear that the facts demonstrated that the Respondent had acted in a reckless and cavalier manner in signing a joint minute, without referring to a file or communicating with his client” was neither justified on the evidence nor a fair description of the petitioner’s conduct. The petitioner believed that he was still acting for Mr McGovaney, and that he had a mandate from him authorising settlement. He was mistaken in each respect. However, he was not alone in his mistake; it appears that the court and the Scottish Ministers also overlooked the transfer of agency. Taylor & Kelly solicitors wrote to the Scottish Ministers by letter dated 24 April 2012 advising them that they were instructed by Mr McGovaney, yet the Scottish Ministers paid their cheque to the petitioner. Moreover, it appears from Taylor & Kelly’s letter dated 25 September 2014 that they intimated the transfer of agency to the court on 9 September 2011, but the court interponed authority to a joint minute entered into by the petitioner settling the action. The petitioner made an honest mistake, he complied with the normal practice of his firm in such claims, and his action in signing the joint minute was not so obviously unreasonable as to justify the Tribunal describing it as “reckless and cavalier”. The petitioner thought that he was doing the right thing, and his conduct caused no prejudice to Mr McGovaney nor to anyone else; on the information available, there was no prospect that Mr McGovaney would have received an award of damages greater than the sum achieved by settlement.
[6] Senior counsel for the petitioner also took issue with the Tribunal’s statement (at page 27 of its findings) that “in all of this and in particular with the signing of the joint minute, the Respondent demonstrated a clear disregard for the interests of Mr McGovaney”. There was nothing to justify this statement – indeed, the petitioner thought that he was acting in Mr McGovaney’s best interests.
[7] Senior counsel for the petitioner also took issue with the Tribunal’s statement (at page 29 of its findings) that “the Respondent’s cavalier approach to this client’s case suggests that he presents a danger to the public”. This was quite wrong. The circumstances showed that this was an honest mistake, in compliance with his firm’s own system. The respondent was not a danger to the public.
[8] With regard to the Tribunal’s criticism of the petitioner regarding his delay in sending the money to Mr McGovaney, the evidence of Mr McGovaney to the Tribunal was that when he was told that his case had been settled he telephoned Robertson & Ross and told them just to keep the money.
[9] For these reasons senior counsel for the petitioner submitted that the Tribunal had misdirected itself on the evidence, and was not entitled to find the petitioner guilty of professional misconduct. She relied on Sharp v The Law Society of Scotland 1984 SC 129 at 135. Properly assessed, what the petitioner did amounted to unprofessional conduct. She invited the court to quash the finding of professional misconduct, and substitute therefor a finding of unprofessional conduct.
[10] Senior counsel for the respondent invited us to refuse this appeal and to adhere to the decision of the Tribunal. It was important to recognise the ambit of the petitioner’s challenge to the Tribunal’s decision. His complaint was that the Tribunal had made an error of fact, or that it was not entitled on the evidence before it to conclude that the petitioner was guilty of professional misconduct. At the outset, it was necessary for the court to bear in mind the need to respect the assessment of a specialist tribunal such as this. The petitioner’s case was periled on his challenge to the facts. In order for him to succeed, he required to cross three hurdles. Each of these were, senior counsel submitted, insuperable.
[11] First, there is no transcript of the evidence given before the Tribunal, nor indeed of any part of the proceedings. Absent a transcript, how is the court to say that there was an error of fact? The court is bound by the Tribunal’s findings in fact, and any appeal must be limited to questions of law – Allardice v Wallace 1957 SLT 225 at 227; Lombard North Central Plc v David Stewart, Anthony Byrne [2009] CSIH 41 at paragraph 6; Thomas v Thomas 1947 SC (HL) 45.
[12] An appellate court is (and should be) reluctant to interfere with the findings of fact in the court or tribunal below – Thomas (supra); Henderson v Foxworth Investments Ltd 2014 SC UKSC 203. This reluctance to interfere extends to professional disciplinary tribunals – Gupta v General Medical Council [2002] 1 WLR 1691, per Lord Rodger of Earlsferry at paragraph 10. In the present case, credibility and reliability were clearly factors which weighed with the Tribunal. This places the court at a material disadvantage when considering the averments in the petition against the documentary materials available.
[13] By way of illustration of this point, senior counsel drew our attention to the averments in statement 5 of the petition. These included the averments that:
“it was confirmed at the Hearing that the petitioner understood that Robertson & Ross had a mandate in respect of all of these slopping out cases. The firm had instigated a process where a mandate known as Slopping Out Administrative Scheme – Claim Form was signed by each client and provided instruction to Robertson & Ross to settle their claim in terms of the agreed criteria without further recourse to the clients for permission to do so”.
The mandate did not form a production before the Tribunal, nor was it before this court. However, the terms of the mandate are set out in full in averments on behalf of the petitioner in answer 2.6 in the Record in the Tribunal proceedings. As stated in the averments, the mandate provides as follows:
“I understand that if I have a valid claim I will be offered the sum of £2100 in full and final settlement of all claims I have or may have at any time in relation to slopping out…. Further, I hereby appoint Robertson & Ross, Solicitors, 7 Causeyside Street, Paisley to act for me in dealing with the claim, and I authorise them to conclude settlement of the claim on my behalf”.
On no view did this authorise the petitioner to conclude settlement of the claim in the sum of £500 without specific instruction from the client. Accordingly, the whole basis of statement 5.1 of the petition was flawed. Again, Mr McGovaney gave evidence to the Tribunal that he was detained in doubled-up slopping out conditions for the whole time he was a prisoner in Barlinnie from March 1999 until August 1999, and there was no evidence led to contradict this (although the records maintained by the Scottish Ministers indicated that he was detained in doubled-up slopping out conditions for only two nights). Accordingly the basis for statement 5.2 of the petition was flawed. Moreover, the submission that the Scottish Ministers made the same mistake as the petitioner by offering settlement to the petitioner rather than to Taylor & Kelly was also flawed – the offer from the Scottish Ministers to Robertson & Ross was made by letter dated 17 April 2012 and accepted by letter dated 19 April 2012. Taylor & Kelly did not write to inform the Scottish Ministers of the change of agency until 24 April 2012. By that time, the action had been settled on the basis of the petitioner’s ostensible authority – Mowbray v Valentine 2004 SC 21.
[14] With regard to statement 5.3 of the petition, the Tribunal’s statement that “the evidence, at its most favourable to the respondent, disclosed a chaotic and culpably sloppy approach to the matter…” was an assessment of the evidence made by a specialist tribunal peculiarly qualified to make such an assessment, and it cannot properly be impugned.
[15] Senior counsel for the respondents submitted that the third hurdle which the petitioner must cross, and which he had failed to cross, was that Mr McGovaney had not in any event signed any claim form or mandate. If he had, as discussed above, it would only have authorised settlement in the sum of £2100. It was important to remember the sequence of events: Mr McGovaney instructed Taylor & Kelly to take over acting for him in March 2011, and after much correspondence, the papers were only sent to Taylor & Kelly on 15 August 2011. In April 2012 the petitioner accepted the Scottish Ministers’ offer in settlement – an offer which would not have been covered by the petitioner’s firm’s standard claim form mandate, even if Mr McGovaney had signed such a claim form, which he did not. It was a fundamental principle that if a solicitor receives an offer to settle a client’s action, the solicitor should take instructions from the client. On the basis of the irrefutable and admitted findings in fact, the Tribunal was entitled to do what it did.
[16] On questions of professional practice and conduct the court should accord respect to the views of specialist tribunals in cases such as this – McMahon v Council of the Law Society of Scotland 2002 SC 475 at paragraph [16]; Mallon v General Medical Council 2007 SC 426 at paragraph [28]. In the present case the Tribunal’s assessment of the petitioner’s conduct as “reckless and cavalier” was justified in all the circumstances, and in particular having regard to the following:
(a) it was the petitioner himself who transferred the file to Taylor & Kelly, after months of correspondence with them.
(b) when the petitioner received the offer in settlement of the action from the Scottish Ministers he did nothing to check that he held instructions. He did not check his file nor did he try to contact his client.
(c) the lower amount offered by the Scottish Ministers depended on their assertion of the time spent by Mr McGovaney in doubled-up slopping out conditions; the petitioner simply accepted this assertion pro veritate, without taking instructions from his client.
(d) in any event the system on which the petitioner relied did not on any view authorise acceptance of an offer of £500 without specific instructions.
[17] In all these circumstances senior counsel for the respondents submitted that the court should not interfere with the Tribunal’s finding of professional misconduct.
[18] In reply, senior counsel for the petitioner submitted that the petition did indeed focus on whether the finding of professional misconduct was justified. She relied on the first sentence in statement 5, to the effect “that in relation to the finding of professional misconduct, the Tribunal’s Findings are, in material respects, unsupported by the evidence and/or contrary to the evidence”. However, lest there be any doubt on the matter, she moved to amend the petition by adding a further sentence immediately after this, in the following terms: “In any event the finding of professional misconduct was not justified on the facts found”. This was opposed by senior counsel for the respondents, partly as coming too late, and partly because there are numerous authorities on whether conduct meets the test of professional misconduct, and the respect given to a specialist tribunal in such a matter. He would have referred the court to a very different list of authorities if the petition had been framed thus.
[19] We granted the motion, although it came at a very late stage in the proceedings – it was made for the first time at about 4.30pm on 3 November 2015, after a full day’s discussion on the summar roll. The petition was lodged on 3 April 2015 and had been adjusted on several occasions prior to the summar roll. The motion was made after senior counsel for the respondents had concluded his submissions. However, we were persuaded that there was no real risk of prejudice to the respondents if this motion were to be allowed, and that the proposed amendment merely gave clearer focus to the submissions already made for the petitioner.
[20] Senior counsel for the petitioner submitted that the court should look at the Tribunal’s decision in the light of the whole circumstances of the case, always having due respect for the expertise of the Tribunal and giving to their decision such weight as we should think appropriate – McMahon v Council of the Law Society of Scotland at paragraph [14]. With regard to the date of the Scottish Ministers’ knowledge of transfer of agency, she pointed out that the cheque was not paid to Robertson & Ross until 2 May 2012, after the Scottish Ministers were aware that Taylor & Kelly were instructed. She submitted that there was no need for a transcript of evidence – the terms of the Tribunal’s findings and note provided adequate material for the court to consider the appeal.
Decision on the issue of professional misconduct
[21] We do not consider that the Tribunal’s finding that the petitioner was guilty of professional misconduct can be set aside by this court in the circumstances of this case. The basis of the challenge is clearly set out in statement 5 of the petition – “the Tribunal’s Findings are, in material respects, unsupported by the evidence and/or contrary to the evidence and in any event the finding of professional misconduct was not justified on the facts found”. In the absence of any transcript of the proceedings, we can only proceed on the basis of the Tribunal’s findings in fact. We do not understand this to be challenged by senior counsel for the petitioner. The observations of Lord Justice Clerk Thomson in Allardice v Wallace are, mutatis mutandis, applicable:
“Although a proof was taken the evidence was not recorded. Only the Sheriff-Substitute can know what the evidence was. It is only by his findings in fact that the facts of the case can come before an appeal court. As we do not and cannot have the evidence, we ourselves are much in the same position as if we were considering a stated case or as the House of Lords are when hearing an appeal from the Court of Session in a cause originating in the sheriff court. That means that we are bound by the findings in fact and that the appeal is limited to questions of law”.
[22] The caution which an appellate court will exercise when being asked to interfere with findings in fact made by an inferior court or tribunal is clearly exemplified by the observations of Lord Reed in Henderson v Foxworth Investments, which echo the observations of Lord Rodger of Earlsferry when giving the judgment of the Privy Council in Gupta v General Medical Council. There were indeed issues of credibility and reliability in this case, which clearly carried some weight with the Tribunal. Moreover, as was observed in both McMahon v Council of the Law Society of Scotland and Mallon v General Medical Council this court must have due respect for the expertise of the Tribunal. This is a specialist tribunal dealing with specialist matters of professional practice. As the Lord Justice Clerk put it in Mallon (at paragraph [28]):
“Our impression, for what it is worth, is that the finding of serious professional misconduct was amply justified, not least in respect of the findings of irresponsibility. But it is sufficient to say that the panel was best placed to make that judgment since the critical findings in fact related to technical questions of the practice of medicine. On such questions the issue of serious professional misconduct was pre-eminently a question for the panel. The panel had to bring to bear its expertise in matters of medical practice on the judgment that it had to make. In our view, it was open to it to conclude that, even after the graver elements were taken out of the charge, what remained nonetheless constituted serious professional misconduct”.
[23] In the present case, the petitioner himself transferred the file to Taylor & Kelly, after several months of correspondence about the matter. When the offer to settle the action was received from the Scottish Ministers, it appears that the petitioner did nothing to check that he held instructions from Mr McGovaney to settle the action. He did not check his file nor did he try to contact Mr McGovaney. He appears to have accepted at face value the assertions of the Scottish Ministers that Mr McGovaney had only spent two days in doubled-up slopping out conditions, and took no instructions from Mr McGovaney on this point. Furthermore, on any view the mandate which is the subject of averments on behalf of the petitioner in answer 2.6 of the record before the Tribunal would not have authorised the petitioner to settle the action in the sum of £500 – even if Mr McGovaney had signed such a mandate, which it appears that he did not.
[24] Having regard to these factors we are unable to conclude that the Tribunal’s findings were, in material respects, unsupported by the evidence and/or contrary to the evidence. The evidence before the Tribunal, as contained in its findings in fact, was sufficient to support the Tribunal’s finding that the respondent was guilty of professional misconduct. Accordingly we answer the first issue in the affirmative.
The Tribunal’s decision regarding penalty/compensation
[25] The Tribunal set out parties’ submissions regarding disposal, and its decision on these matters, as follows:
“Mr McGovaney emphasised that he had been denied the right to pursue his claim. Mr Reid, on his behalf, clarified that Mr McGovaney sought £1600 plus a modest amount to reflect the degree of frustration he suffered. He also asked the Tribunal to have in mind that Mr McGovaney had had to engage in correspondence from prison and that the cost of a stamp in those circumstances was more significant to the prisoner than it might normally be in ordinary circumstances. Mr McGovaney suggested to the Tribunal that £400 was an appropriate figure to reflect this.
The Fiscal referred the Tribunal to Messrs Taylor & Kelly’s letter at Production 24. He advised the Tribunal that the Respondent had been before the Tribunal on a previous occasion and had been found guilty of professional misconduct for failing to supervise an assistant regarding conveyancing transactions, although these transactions predated this case. The Respondent confirmed he was fined £1500 in that case and that he had no other cases before the Tribunal.
The Respondent indicated that he was 61 years old and that next year would be his 40th year in practice. He was concerned that he would be removed from the approved panel of solicitors by building societies once they were aware of this finding. He employs 12 members of staff. His income at the moment is approximately £20,000 per annum. He expected the expenses in this case to be at least £5000.
….
The Tribunal considered the question of compensation to the Secondary Complainer first.
The Tribunal accepted the evidence of Mr McGovaney and in particular accepted that he would not have accepted the offer of £500 if his instructions had been sought. No effort was made to take Mr McGovaney’s instructions in relation to the history of his incarceration described in the Scottish Ministers’ letter, despite the conflict between that, the dates provided within the initial writ raised, and the difference as expressed by Mr McGovaney in the hearing. The Tribunal considered that it was appropriate that the Secondary Complainer be awarded compensation for the difference in the two figures being £1600. Additionally the Secondary Complainer had been caused inconvenience, worry, concern and frustration. The Respondent had done little or nothing to rectify matters. Accordingly, the Tribunal decided that it was appropriate to include in the award of compensation a figure of £200 to reflect the inconvenience and frustration suffered by the Secondary Complainer as a direct result of the Respondent’s misconduct.
Thereafter the Tribunal went on to consider the penalty appropriate to reflect the gravity of the conduct here. The Respondent’s cavalier approach to this client’s case, suggests that he presents a danger to the public. He clearly would benefit from being supervised whilst in practice. Such supervision would limit the risk to the public. The misconduct in this case was considered at the higher end of the middle of the scale of misconduct. The Respondent, in the course of proceedings, had not demonstrated any insight into his conduct. There was no suggestion that he had taken any corrective steps. Additionally, the Respondent already has a finding of professional misconduct on his record. The Tribunal therefore considered that it was appropriate to impose a Restriction on the Respondent’s practising certificate, to restrict him to acting as a qualified assistant under the supervision of someone else. The Tribunal imposed an aggregate restriction as the Tribunal consider it important that the Respondent learns from the two year period of supervision. The Tribunal, being aware of the consequences of such a direction, considered that it would be appropriate to delay the commencement of the restriction until 1 March 2015 to allow the Respondent an opportunity to put his affairs in order”.
Submissions on the issue of penalty/compensation
[26] With regard to compensation, senior counsel for the petitioner submitted that the Tribunal had erred in law in its approach. Mr McGovaney had only sustained a loss of opportunity to claim a higher sum – it did not follow that he would have succeeded in obtaining this. The Tribunal does not appear to have taken this into account. Moreover, the value of the loss of opportunity should have been assessed in light of (a) the information provided to the Tribunal by the Scottish Ministers (in their letter dated 10 October 2013) that Mr McGovaney was detained in doubled-up slopping out conditions for two specified nights (18/19 August 1999 and 8/9 May 2002), that such periods were de minimis and therefore there was no violation of his article 3 rights, and (b) that on any view Mr McGovaney would have required to proceed to a proof to vindicate a higher claim, and would not be eligible for legal aid to do so. Although Mr McGovaney gave evidence that he had been detained in doubled-up accommodation from March until August 1999, he gave no specification of any names of persons with whom he was so detained. It cannot therefore be correct for the Tribunal to reject the Scottish Ministers’ letter outright; at the very least, the Tribunal required to set out an analysis of why they preferred Mr McGovaney’s evidence to the information provided by the Scottish Ministers. Mr McGovaney was not prejudiced by the petitioner’s acceptance of the offer from the Scottish Ministers, although it was accepted that he would have been taken aback and that he was put in a difficult position not of his own making.
[27] With regard to the penalty imposed on the petitioner, senior counsel submitted that a two year restriction on his practising certificate was clearly excessive in light of the Tribunal’s finding that dishonesty had not been established.
[28] Senior counsel accepted that the petitioner had been found guilty of professional misconduct on two previous occasions. On 24 September 2008 he was found guilty of professional misconduct by his seeking and accepting a private payment to account from a client of £31,000 when only £11,792.30 was required to cover work done prior to the date of the grant of legal aid, his deliberately rendering invoices to his client and taking payment for these on a private basis despite knowing a legal aid certificate was in place, and associated matters relating to the payment of fees and outlays. On that occasion the penalty imposed was a fine of £5000. On 17 March 2014 the Tribunal found the petitioner guilty of professional misconduct in respect of his failure to adequately supervise his employee whereby his employee failed to abide by established conveyancing practice and adhere to the duties which he owed to his clients, the lenders in a conveyancing transaction. On that occasion the Tribunal censured the petitioner and fined him the sum of £1500.
[29] In the circumstances of the present case senior counsel for the petitioner submitted that the appropriate penalty was a fine. The petitioner was 61 years old and 2015 was his 40th year in practice. He employed 12 members of staff. The Tribunal (1) failed to give adequate consideration to the impact upon the petitioner’s firm and the future of his 12 employees in the event that his practising certificate was restricted to that of a qualified assistant for a period of 2 years from 1 March 2015; and (2) have effectively forced the petitioner to cease practice as it is unrealistic in the circumstances to expect someone to agree to supervise him for the next 2 years. The firm would be unable to continue without the petitioner. The firm’s overdraft and loans were secured against the petitioner’s home. The firm would go into liquidation as it currently had debts due to the bank in the region of £140,000, which debt could not be serviced in the absence of the petitioner. Furthermore the bank had first charge over the assets of the firm and so there would be no funds available to pay redundancy money if the firm had to close. The petitioner had been working towards an exit policy but the lawyers earmarked were still too junior to take over the firm, the most senior lawyer being only 3 years qualified. The petitioner had advertised the firm for sale but had only received three inquiries and no offers to purchase.
[30] On behalf of the respondents, senior counsel referred us to Dad v General Dental Council Professional Conduct Committee [2010] CSIH 75, and adopted the submissions which he had made to the court in that case, as follows:
“…in determining the appeal, the court should have regard to three principles. The first was that the purpose of the sanction imposed by the respondents was the protection of the reputation of the profession as a whole, rather than the punishment of the individual concerned. Accordingly, the significance of the consequences for the individual, which would normally be relied on in mitigation, is less relevant than would otherwise be the case. Secondly, the court should be slow to interfere with the assessment of the specialist tribunal as to what is necessary for the protection of the reputation of the profession. Thirdly, where the conduct complained of included serious dishonesty, especially where that was inextricably linked to professional activities, erasure from the Register of Practitioners was often the only means of ensuring the protection of the profession’s reputation”.
The court in Dad accepted these submissions – see paragraph [13] of the opinion. Senior counsel also relied on the opinion of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, particularly at 518D/E and 519B/E.
[31] The real purpose of a sanction such as this was to protect the reputation of the profession. On the basis of the admitted findings, the petitioner had no regard to the interests of Mr McGovaney; he simply accepted the offer. The Tribunal (being a specialist tribunal) considered that the misconduct in this case was at the higher end of the middle of the scale of misconduct. This court can only interfere with the penalty imposed by the Tribunal if it is able to conclude that the decision was plainly wrong – Dad at paragraph [15]. There is a range of appropriate disposals; this court should only interfere if satisfied that the disposal selected by the Tribunal was grossly disproportionate and plainly wrong. This was the third occasion in 7 years in which the Tribunal had found the petitioner guilty of professional misconduct. Standing the Tribunal’s observation that the petitioner had not demonstrated any insight into his conduct, and standing the respect owed to a specialist tribunal, the court should not interfere with the penalty. The award of compensation was within the range properly open to the Tribunal.
[32] In response, senior counsel for the petitioner pointed to the period of time that had elapsed since the 2008 finding of professional misconduct. In the 2013 finding the Tribunal specifically stated that there would be no risk to the public as a result of the petitioner’s conduct. These cases should not have influenced the Tribunal’s disposal in the present case. Moreover, senior counsel did not accept that the correct test was either “grossly disproportionate” or “plainly wrong” – what the court required to do was to look at the whole evidence and the circumstances of the case and to decide whether this restriction on the petitioner’s practising certificate was appropriate.
Decision on the issue of penalty/compensation
[33] We preface our decision on these matters by indicating that we accept that this court should be slow to interfere with a penalty imposed by a specialist disciplinary tribunal such as the respondents in this case. We bear in mind Lord President Emslie’s comments in MacColl v Council of the Law Society of Scotland 1987 SLT 524 at 528, and Lord President Hope’s observation in MacDonald v Council of the Law Society of Scotland 1992 SLT 353 at 354 to the effect that underlying all the cases where the court is asked to review a sentence for professional misconduct is the principle that, if the sentence is to be set aside, it must be shown to be plainly wrong and unjustified. (see also Gray v The Council of the Law Society of Scotland 1993 SLT 126, and Bolton v Law Society supra at 518 and 519).
[34] The above observations were made in the context of penalties or sanctions imposed against the practitioner, and not specifically in relation to awards of compensation. We deal first with the issue of compensation in this case. We consider that the Tribunal erred in law in its approach to this. The Tribunal approached the valuation of compensation to Mr McGovaney by simply awarding him the difference between the sum of £500 which was paid as a result of the settlement, and the sum of £2100, the difference in the two figures being £1600, with an additional award of £200 to reflect the inconvenience and frustration suffered by him. This approach to valuation takes no account of the fact that any loss sustained by Mr McGovaney was merely a loss of an opportunity to pursue a claim for the larger sum. It is likely that, if this claim had been pursued, the Scottish Ministers would have continued to defend the action. They had specific documentary evidence from their records to indicate the two particular nights on which they accepted that Mr McGovaney was detained in doubled-up slopping out conditions. There was nothing in the evidence given by Mr McGovaney to the Tribunal to indicate that he had any evidence to support his contrary assertion. No supporting witnesses were either led or named in the proceedings before the Tribunal. Of course it does not follow that Mr McGovaney would have failed in his claim; it is possible that he would have succeeded. However, the Tribunal does not appear to have considered the prospects of success in his claim, nor the fact that he would not have been likely to be in receipt of legal aid to pursue it, when approaching its valuation of the appropriate amount of compensation. In this respect we consider that the Tribunal has gone “plainly wrong” and has erred in law. We shall accordingly quash the Tribunal’s award of compensation in the sum of £1800 to Mr McGovaney. We consider that an appropriate sum to reflect the loss of the prospect of obtaining a higher award, together with inconvenience and frustration suffered by him as a direct result of the petitioner’s misconduct, is a total of £350. We shall accordingly substitute that sum for the figure of £1800 awarded by the Tribunal.
[35] With regard to the penalty of restriction of the petitioner’s practising certificate for an aggregate period of 2 years with effect from 1 March 2015, despite the respect which it is necessary to give to the decision of the Tribunal as a specialist tribunal, we consider that this penalty was plainly wrong and unjustified. The Tribunal was not satisfied that it had been proved beyond reasonable doubt that the respondent had acted deliberately in the clear knowledge that he no longer enjoyed the client’s instructions to act, and dishonesty therefore had not been established. This was not a one-off case – the Tribunal required to have regard to the whole context. That context included a system which was devised and operated (until his retirement from the firm) by the petitioner’s former partner in order to deal with a large number of “slopping out” cases. The petitioner’s actings amounted to unwarranted assumptions in Mr McGovaney’s case; in particular, the petitioner assumed (wrongly) that Mr McGovaney had signed a statement of claim mandate; he assumed (wrongly) that such a mandate authorised him to accept an offer of £500 in settlement of Mr McGovaney’s claim without obtaining specific instructions from him; and when he received, and then accepted, the offer from the Scottish Ministers, he assumed (wrongly) that he was still instructed by Mr McGovaney to act on his behalf. He also accepted pro veritate the assertions made by the Scottish Ministers as to the period of time which Mr McGovaney had spent in doubled-up slopping out conditions, without obtaining Mr McGovaney’s instructions. Individually and cumulatively these were serious failings by the petitioner. However, they do not (as the Tribunal recognised) fall into the most serious end of the scale of misconduct.
[36] As Sir Thomas Bingham MR observed in Bolton v Law Society (at page 518):
“Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors’ Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the Tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the Tribunal be likely to regard as appropriate any order less severe than one of suspension”.
[37] We do not take issue with any of these observations. However, the present case does not concern dishonesty, nor did the Tribunal’s findings seriously attack the petitioner’s integrity, probity or trustworthiness. He was found to have acted in a reckless and cavalier manner, and to have demonstrated a clear disregard for the interests of Mr McGovaney, but we do not consider that the maintenance of the reputation of the solicitors’ profession and the sustaining of public confidence in the integrity of the profession required the Tribunal to impose the restriction on the petitioner’s practising certificate which it did. The consequences of such a restriction for the petitioner himself, and indirectly for the 12 employees of his firm, would be extremely serious, and out of all proportion to the seriousness of the petitioner’s professional misconduct.
[38] We consider that the seriousness of the petitioner’s professional misconduct would be appropriately marked by the imposition of a fine of £3,000. This penalty would be sufficient to serve the purposes of punishment, maintenance of the reputation of the profession and the sustaining of public confidence in the integrity of the profession. We shall accordingly quash the interlocutor of the Tribunal dated 14 November 2014 insofar as it directs in terms of section 53(5) of the Solicitors (Scotland) Act 1980 that for an aggregate period of 2 years with effect from 1 March 2015 any practising certificate held or issued to the respondent shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer as may be approved by the Council of the Law Society of Scotland or the Practising Certificate Sub-Committee of the Council of the Law Society of Scotland, and substitute therefor a fine in the sum of £3,000 to be forfeited to Her Majesty.