APPEAL BY ALASDAIR McNABB IN THE CAUSE McKAY & NORWELL WS AGAINST ALASDAIR McNABB

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SHERIFFDOM OF LOTHIAN AND BORDERS 2014SCEDIN50 Case Number: A290/12
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   in appeal by   ALASDAIR McNABB Defender and Appellant   in the cause   McKAY & NORWELL WS Pursuers and Respondents   against   ALASDAIR McNABB Defender and Appellant   ___________________________

 

Act:  Party, appellant

Alt: Godden, solicitor for pursuers and respondents

 

 

EDINBURGH,  2 September 2014

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal;  adheres to the sheriff's interlocutors of 27 November 2013 and 12 December 2013;  finds the appellant liable to the respondents in the expenses of the appeal and allows an account thereof to be lodged and remits same, once lodged, to the Auditor of Court to tax and to report.

(signed) Mhairi M Stephen

 

 

NOTE:

1. The pursuers and respondents are a firm of solicitors.In this action they seek to recover the sum of £8,738.08 being their professional fees and outlays in respect of work they undertook on behalf of the defender and now appellant in connection with divorce proceedings raised by his wife.The pursuers acted for the appellant between December 2011 when the action was raised and 18 January 2012 when the appellant withdrew his instructions.

    

2. The pursuers rendered a fee note to the appellant at the end of January 2012 in the sum of £6,133.20.That fee note remains outstanding and unpaid.On 28 February 2013 the court remitted the pursuers' account of expenses for taxation.The Auditor of Court taxed the account at the sum craved.The taxed sum was modified to £8,281.34 being the amount of the decree granted on 27 November 2013 following proof.

    

3. The appellant appeals the sheriff's interlocutor of 27 November 2013 being the sheriff's judgment following proof.The appellant represented himself at the appeal hearing as he had done before the sheriff.The respondents were represented by Mr Godden, solicitor.The pursuers and respondents were represented by counsel at the proof last year.I was informed that counsel had been instructed on behalf of the pursuers for a number of reasons.Mr Godden may have been called as a witness at the proof and although not formally cited by the appellant had been informed that the appellant wished to maintain that option.Mr Godden had no knowledge of the facts of the case.In the end he was not called however it was necessary to engage the services of counsel to cover that eventuality and also in view of the nature of the defences and counter-claim alleging professional negligence and inadequate professional service.

    

4. The written pleadings are set out in the record No 20 of process dated May 2013.The proof before answer set down for 7 May 2013 was discharged on the appellant's motion. A fresh PBA of was assigned for 20 June 2013.That then proceeded over several days until 12 August 2013.The pursuers led evidence from Ms Byth, the solicitor who had acted for the appellant.The appellant also gave evidence and conducted the proof.No other witnesses were led.The counter-claim stated on record was withdrawn by the appellant prior to proof.The proof proceeded on the basis that the appellant disputed that he was liable for the sums claimed by the pursuers.He claimed that the account was excessive and contained false entries.Despite the absence of averments to support a restricted or agreed global fee, at proof the appellant argued that if any fees were due they were restricted to £2,000 as a result of an agreement with Greg Platt of the pursuers to that effect.Furthermore, despite the withdrawal of the counter-claim he alleged that the pursuers had provided an inadequate professional service and had acted in a manner which amounted to professional negligence.However, the sheriff records that the defender acknowledged that there was insufficient evidence to prove professional negligence.Referring to Hunter v Hanley 1955 SC 200 and the classic test of professional negligence the sheriff at para 30 states the need for evidence to be led from a skilled and experienced witness to speak to such negligence.No such witness was led.Although the appellant substantially accepted that the averments in respect of professional misconduct and professional negligence were no longer a live issue it is nevertheless important to record that there was an ongoing undercurrent of criticism and an intemperate approach by the appellant to the actings of the solicitor. It is also proper to say that such allegations infiltrated the appellant's approach to this appeal.At the risk of stating the obvious such allegations are serious when directed towards professional conduct and integrity.If allegations of professional negligence are to be made they require to have a proper foundation in fact and law otherwise the reputation and integrity of the professional is impugned in an unwarranted fashion and they are bound to fail.A solicitor is entitled to exercise a measure of judgment and discretion in fulfilling his or her duties and if the solicitor is criticised in the exercise of these professional duties any allegations of professional negligence must be underpinned by a report from a suitable witness which states that the course taken was one that no solicitor exercising ordinary skill and care would have taken.This is a matter of significant importance.To continue to make allegations and assertions about the solicitor's professional conduct and probity, as happened in this case, without any proper foundation whether deliberately or even in a mistaken belief, could amount to an abuse of process.

    

5. The pursuers' claim is essentially a simply one.They sue for payment of a debt.The appellant's position in his defences and on appeal is altogether more complicated standing the unsupported averments of professional misconduct which, as I have said, are both serious and damaging.The original note of appeal is characterised by intemperate language and assertions.The appellant freely makes reference to "lies" on the part of the solicitor who acted for him;false accounting, incompetence and criminal activity culminating with the extraordinary final paragraph:-

   "The defender therefore calls for a complete review of the case, including McKay & Norwell's criminal activity before a qualified sheriff in family law (none in Edinburgh at the moment until Sheriff Sheehan arrives in 2014) and a litigation sheriff to adjudicate on the need to take the matter to the higher court."

    

6. The original note of appeal has now been withdrawn and amended grounds substituted (No 23 of process).Essentially there are four grounds of appeal.
   1. Procedural unfairness – that the sheriff failed to allocate time for submissions fairly between the parties and did not allow the appellant to list the instances where the pursuers' witness (Ms Byth) had lied on oath.

       

   2. The sheriff failed to have regard to all the evidence and make findings as to the errors, lies and unprofessional advice on the part of the pursuers.

       

   3. In his assessment of the evidence the sheriff failed to give sufficient weight to the appellant's evidence both oral and written especially the evidence which contradicted Ms Byth as to the restricted fee.No reasonable sheriff would have preferred Ms Byth's evidence and accorded it the weight which the sheriff did.In this regard he erred.

       

   4. The sheriff erred in granting the pursuers' motion to sanction the cause as suitable for the employment of junior counsel.This was a straightforward matter and not complex.

       

7. The sheriff's findings in fact and reasoning can be found in his judgment.Subsequently the sheriff prepared a note and a further note commenting on the amended or fresh grounds of appeal.The sheriff deals with two errors which have no direct relevance to the issues on appeal.Firstly, Finding in Fact 2, which deals with the date when the appellant consulted the pursuers and instructed them should read: "late November/early December 2011" the reference to "late December" being a typographical error.Secondly, in the note attached to the judgment paragraphs nos 44 and 45 appear to be missing.This is a formatting error only.There is no text missing.Clearly, nothing turns on this at all.The pursuers aver that they acted for the appellant from 12 December 2011 and the appellant suggests that it was 8 December when he instructed the pursuers in his divorce.The corrections are accepted and points (i) and (iv) of ground of appeal two did not require to be argued.

    

8. Against that background I turn to the four live grounds of appeal argued before me.

    

    

1. Procedural unfairness

1. The appellant presented his argument on this ground to the effect that he had been limited to little more than 10 minutes to complete his submissions compared with 40 minutes allocated to the pursuers.He was therefore unable to fully address the sheriff on his main points including the instances where Ms Byth had given false evidence;lied or had been wrong footed or flustered by his cross-examination.This according to the appellant was crucial on the issue of the restricted fees of £2,000;his documentary evidence relating to phone records and her accounting.

    

2. Mr Godden agreed with the sheriff's observations on this ground of appeal in his further note where he records:-

   "The appellant presented his submissions until as I understood matters they were complete.  I had no recollection of seeking to truncate the appellant's submissions. ……….I have no recollection of setting any time limit on submission (eg 10 minutes).  Although the appellant's counter-claim had been withdrawn prior to the proof, the appellant was able to present submissions as to why any fee should not be greater than £2,000 and should, in any event, be set off against fees incurred by him to Messrs Wilson Terris.  Reference was made inter alia to the sum of £760 plus VAT.  The appellant founded on the inadequacy of the advice given, notably the failure to advise that he should return to the matrimonial home as soon as possible."

    

3. Mr Godden suggests that the sheriff would have been in no doubt as to the appellant's submissions as he had conducted the proof in the form of lengthy declamations and repetitive assertions as to his view of the pursuers' professional conduct and what the outcome of the case should be.Ms Byth had been cross-examined, by the appellant, for part of two days and had patiently answered Mr McNabb's highly colourful and abusive questions which accused her of being dishonest, lazy and unprofessional.She in turn listened to Mr McNabb's speeches to the same effect.

    

4. I can see no merit in this ground of appeal.The sheriff was clearly aware of the points which the appellant sought to address. The sheriff clearly states that he did not time limit any of the submissions nor did he seek to truncate the appellant's submissions.In the context of a proof which had firstly been discharged on the appellant's motion and which had then proceeded over several days there was no reason why the proof could not have been further adjourned had the appellant or, indeed, the pursuers so requested.This did not happen. No motion to adjourn was made and there is no basis for the suggestion that the appellant was not allowed sufficient time to put his case to the sheriff.

    

1. The Sheriff's Failure to have regard to all of the evidence and make Findings in Fact on matters such as the pursuers advice and the consequences of that advice for the appellant.

    

1. The context against which the appellant makes assertions of inadequate professional advice and negligence (which have no proper basis in law) relate to the interim hearings which followed the raising of divorce proceedings by his wife.There are a number of averments on record relating to the hearing on 16 December 2011 which followed an interim interdict granted on 9 December 2011 prior to service of the writ. The second interim hearing, following service, was to take place on 16 December and would deal with continuing the interim interdict;further interim orders such as an exclusion order and the attaching of the power of arrest to the interim interdict.Ms Byth discussed with the appellant the approach to be taken and according to Ms Byth it was clear that the priority at that stage was to secure suitable arrangements for contact between the appellant and his children over the Christmas period.An undertaking not to enter the former matrimonial home was discussed given that the appellant had by then moved out of the matrimonial home.Ms Byth's clear recollection was to the effect that returning to the matrimonial home was not a concern far less a priority and that an undertaking in these circumstances not to enter or occupy the family home without permission or without giving seven days' notice would be easily obtempered and appropriate with a view to negotiating suitable contact and reducing the tension between the parties which a fully opposed and highly charged hearing on a power of arrest and exclusion order would engender.The sheriff deals with this in his Findings in Fact 5 to 9 and in his note paragraphs 22 to 29.In particular it is noted firstly that the appellant had expressed gratitude for the steps taken by Ms Byth to secure contact and secondly that an exclusion order was, in any event, granted by the court the following April when the appellant was represented by other solicitors.

    

2. The appellant's position now is that he disputes that these were his priorities and asserts that he did not receive adequate professional advice on the importance of the hearing or the implications of his undertaking to stay away from the former matrimonial home.He asserts that the respondents failed to protect his position.

    

3. On appeal the appellant submitted that the sheriff ought to have recognised the significance of the advice given to him and made findings as to that advice.Secondly, he argued that the sheriff failed to make findings in fact as to Ms Byth's inadequate record keeping.

    

4. Mr Godden pointed out that the sheriff was under no obligation to make findings in fact about matters which were not material to the dispute. In any event the sheriff had regard to the discrepancies in certain of the entries and my attention was drawn to paragraph 49 on page 9 of the judgment.The sheriff had accepted the appellant's challenge to the entry for 29 December 2011.The sheriff had thus shown that he was prepared to be discriminating on the evidence he heard.Importantly, the sheriff was under no obligation to make findings in fact about matters which were the subject of the appellant's colourful speeches of which there were several on the question of alleged professional negligence.There was no basis whatsoever for the allegations of professional negligence.The sheriff has referred to the advice given around the interim hearing of 16 December.He notes the strategic decision to concentrate on the priority of contact (for which the appellant expressed gratitude) and has referred to the subsequent grant of the exclusion order.

    

5. In my opinion this ground of appeal is misconceived.The appellant's counter-claim had been withdrawn prior to proof and therefore the sheriff did not require to make any findings on the counter-claim based on inadequate professional service et separatim professional negligence.Furthermore, in so far as similar averments as to inadequate professional service/negligence formed part of the defence to the pursuers' claim for payment of fees that was not a live matter before the sheriff there being no basis for these allegations of professional negligence which were unsupported by the opinion of anyone qualified to express an opinion on that matter or issue.

    

6. In any event, the sheriff has made findings in fact or given reasons in his note for his approach to the evidence sufficient to deal with the true issues before the court.

    

7. The issues which the sheriff had to determine were therefore fairly narrow.Firstly, did the pursuers provide legal services to the defender and, if so, what are the fees to which the pursuers are entitled?Secondly, have these fees been paid by the appellant?The second question admits of little controversy and would not take up any time at proof as the appellant admits that the entire fee note remains outstanding.Leaving to one side the assertions and hyperbole advanced by the appellant essentially the appellant's main argument at proof was to the effect that the pursuers (in the form of Mr Flett) had indicated that the fees would be restricted to £2,000.This argument does not feature in the appellant's written case.It is in that context that I turn to the final substantive ground of appeal.

    

1. The sheriff's approach to the evidence – the sheriff failed to place sufficient weight on the appellant's evidence and failed to notice the lack of evidence by the respondents to counter the appellant's evidence on the restricted fees.

    

1. The first point (i) under this ground in the amended note of appeal relates not to the sheriff's view of the evidence but rather to paragraph 14 of the sheriff's note. In that paragraph the sheriff records the pursuers' submissions on the issue of the restricted fees not the sheriff's view.This point is therefore unarguable.Despite that, the appellant submitted that he had no basis upon which to believe that £2,000 would be exceeded and no reason to challenge the letter of engagement which advised him of the hourly rate of £190.The appellant had endeavoured to contact the pursuers on receipt of the letter.His position was that the pursuers had obliged themselves to restrict the fee to £2,000.It was not necessary for him to do anything and, indeed, turning to point (ii) the sheriff should not have accepted the pursuers' evidence as to the basis of charge given the complete absence of any written evidence to support Ms Byth's oral testimony.The sheriff ought to have required such evidence and the pursuers' failure to lead supporting evidence undermines their case on fees.The appellant argued (point (iii)) that the sheriff's approach to the evidence undermines his decision.He ought to have applied negative weight to the evidence given by the pursuers' Ms Byth.Accordingly, the sheriff erred in making findings in fact based on her evidence.

    

2. In reply, Mr Godden referred to the sheriff's reasoning at paragraphs 18 to 21 of the note.The sheriff was satisfied that no agreement was reached restricting fees to £2,000.The appellant's own e-mail (No 5 of defenders' inventory) undermines any argument that such an agreement was reached.His e-mail of 11 December 2011 states inter alia:-

   "Greg suggested it wouldn't be a problem and that if everything went smoothly, the most I could expect to pay would be about £2,000.  I'll leave you to advise me accordingly."

    

               That is both conditional and vague.  Conditional on everything going smoothly and vague as the figure is "about" £2,000.  Accordingly, the sheriff was correct to interpret the evidence as pointing to a clear agreement on a charge out rate of £190 per hour which was not objected to and was set out in the written correspondence lodged.  Likewise the sheriff was correct to conclude that there was no agreement that the fee would be restricted to £2,000.  Any arrangement to restrict fees would have to be clear and unambiguous.  There was evidence not only from Ms Byth but from the correspondence lodged to support the agreed basis of charge at £190 per hour.

    

3. Mr Godden addressed the role of the appellate court in appeals against decisions of sheriffs and judges who make findings in fact based on the evidence they heard.I was referred to Thomas v Thomas 1947 SC (HL) 45 and Wilson v North Lanarkshire Council and Another [2014] CSIH 26, a recent case which sets out at paragraphs 17 and 18 the proper approach to appeals which challenge the judge or sheriff's assessment of the credibility and reliability of the witnesses a matter which is pre-eminently for the sheriff.It is not for the appeal court to reach a different view unless there is a clear misdirection or a lack of evidence to support a crucial finding or on the evidence available to him the sheriff was plainly wrong.The law is well settled.The appellant is not in a position to suggest that the sheriff's findings should be interfered with as the extended notes of evidence had not been lodged.In any event, the sheriff heard from two witnesses, Ms Byth and the appellant and preferred the evidence of Ms Byth for the reasons he gives throughout his note and in particular at paragraph 31.

    

4. Mr Godden concluded that the appellant's argument amounted to the sheriff being wrong because he, the appellant, does not agree with the result.The appellant was asking the appeal court to substitute another view without there being any basis either in law or in fact to do so.The appeal should therefore be refused.

    

5. The straightforward issue which I have to decide is whether the decision of the sheriff under appeal is one that no reasonable sheriff could have reached.The role of the appellate court in appeals which involve challenge to findings in fact and the sheriff's view of the witnesses and their credibility and reliability is well settled.There is a long line of authorities from Thomas v Thomas (supra) until more recent Supreme Court decisions in McGraddie v McGraddie [2013] UK SC 58 and Henderson v Foxworth Investments Limited and Another [2014] UK SC 41.The law is also conveniently set out in Macphail on Sheriff Court Practice paragraph 18:103 onwards.In Thomas v Thomas it is authoritatively stated that an appellate court should not come to a different conclusion on the evidence:

   'unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion".

    

               This is not a case where the sheriff's decision cannot be explained or justified.  There is a proper basis for the sheriff's decision.  There was evidence which he accepted to support the pursuers' account of fees which has now been taxed by the Auditor of Court.  There is no basis in law to suggest that the sheriff's assessment of the witnesses should or could be interfered with.  Accordingly, as this appeal does not involve a general review of the evidence and standing the evidence which the sheriff accepted which supports his decision the appeal falls to be refused.

    

6. There remains, however, one ancillary ground of appeal which challenges the sheriff's discretionary decision to certify the cause as suitable for the employment of junior counsel at the proof.

    

7. The appellant argued that the sheriff should not have allowed the motion for sanction.This is a straightforward action for recovery of fees.The appellant acknowledged that Mr Godden, who represents the pursuers, considered he required to instruct counsel as he may have been called as a witness.If that was so, the pursuers could have engaged the services of another firm of solicitors.There was nothing novel or complex either in the facts or in the law.

    

8. Mr Godden confirmed that one of the reasons why counsel was instructed related to the likelihood of him being called as a witness by the appellant despite him having no knowledge of the facts nor did he offer any professional services to the appellant.There were, however, other reasons for instructing counsel particularly the allegations of professional negligence and breach of contract.The complexity arose from the manner in which the appellant as a party litigant had stated his defence and counter-claim.The pursuers has a plea to the relevance of the averments in respect of professional negligence and inadequate professional service.It is difficult to understand how the averments in respect of inadequate professional service related to the question of fees.There was accordingly no basis for disturbing the sheriff's decision on sanction.

    

9. The sheriff's decision on expenses is essentially a matter for the sheriff having regard to the assessment of who has been successful.The motion for certification of the cause as suitable for the employment of junior counsel is a matter ancillary to the question of expenses and again pre-eminently a discretionary one for the sheriff having regard to the case before him and its complexities and the manner in which the litigation had been conducted.

    

10. I agree with the appellant's submission that this is a straightforward action for recovery of fees.As I have said the pursuers' claim is essentially a simple one and they sue for payment of a debt.What renders the action complex is the nature of the defence and the counter-claim. Even though the counter-claim was not ultimately insisted upon the averments on record which purport to suggest inadequate professional service and professional negligence constitute serious allegations.The court does not have jurisdiction to make findings of inadequate professional service.That is a matter for the discipline procedures which regulate the conduct of solicitors.The appellant's reliance on professional negligence has the consequence that his own florid assertions of negligence and impropriety makes the simple case both concerning and complex.The appellant's assertions impugn the integrity of the pursuers and the solicitor who acted in the appellant's divorce.It is a matter of concern when allegations of professional negligence are made without proper foundation as in the present case.The pursuers require to defend their professional reputation irrespective of whether the allegations are well founded or not.It matters little whether the allegations of professional negligence are on the one hand genuinely held but wholly mistaken or, on the other, are spurious or malicious.

     

11. Sanction for the employment of counsel is dealt with in Chapter 12 of Macphail.At Chapter 12.25 it is stated:-

    "A claim of small value may involve imputations on the personal or professional character of a party of such seriousness that representation by counsel is appropriate".

     

                The author also emphasises that the decision whether to sanction employment of counsel is a matter within the discretion of the sheriff.

    "An appeal court is unlikely to interfere with his decision unless there has been an obvious miscarriage of justice or the expenses have become a great deal more valuable than the merits".

     

                In my opinion this ground of appeal is without merit.  The question of whether to sanction counsel is one that is squarely within the sheriff's discretion.  He has exercised his discretion and given reasons.  The appellant's own conduct of the case and his allegations of improper conduct and professional negligence themselves turn the straightforward action into one which unnecessarily raises matters of gravity, complexity and concern.

     

12. The appeal in it's entirely falls to be refused and the pursuers and respondents are entitled to the expenses of the appeal.

(signed) Mhairi M Stephen