THE LAW SOCIETY OF SCOTLAND FOR BREACH OF INTERDICT AND ANSWERS FOR JOHN GERARD O'DONNELL
OUTER HOUSE, COURT OF SESSION
2014 CSOH 166
P1091/09
OPINION OF LORD STEWART
In the Minute
THE LAW SOCIETY OF SCOTLAND
Petitioners and Minuters;
for
breach of interdict and answers for
JOHN GERARD O’DONNELL
Respondent:
Petitioner and Minuters: Moynihan QC; Balfour + Manson LLP
Respondent: Party
19 November 2014
[1] These are proceedings at the instance of the Law Society of Scotland for breach of interdict. The individual alleged to be in breach is John Gerard O’Donnell. Mr O’Donnell was admitted and entered on the roll as a solicitor in 1977. Latterly Mr O’Donnell practised as a solicitor using the firm name John G O’Donnell & Co from an office at 15 Clarkston Road, Glasgow G44. Disciplinary proceedings against Mr O’Donnell concluded with, among other outcomes referred to below, an undertaking by Mr O’Donnell to give up his practice. This was on 17 February 2008. In 2009, following information received, the Law Society petitioned this court to prohibit Mr O’Donnell from doing various things in the character of a solicitor. By interlocutor of the court dated 21 August 2009 Mr O’Donnell was interdicted ad interim in the following terms:
“… (i) from holding himself out as entitled by law to practice as a solicitor; (ii) from pretending to be a solicitor; or (iii) from taking or using any name, title, addition or description, including without prejudice to the foregoing generality, the style “notary”, “notary public” or “notaries public” or anything colourably similar, which implies that he is duly qualified to act as a solicitor…”
The interim interdict was granted ex parte before service of the proceedings on Mr O’Donnell. A certified copy of the interlocutor was served on Mr O’Donnell on 21 August 2009.
[2] Nothing further happened in the petition process until 2012. In 2012 the Law Society lodged a minute alleging breaches of the interdict. On 5 September 2012 the court granted the Law Society’s motion to ordain Mr O’Donnell to appear at the bar of the court to explain the breaches alleged in the minute. Mr O’Donnell in due course appeared; he denied the allegations; and he was then ordained to lodge answers to the minute. Ultimately a proof on the minute and answers was appointed. I heard the proof over three days 1, 2 and 3 July 2014 and took the matter under advisement. I have now decided that Mr O’Donnell is or was in breach of interdict. This is on the basis that the matter is established beyond reasonable doubt, the standard of proof proposed by senior counsel for the Law Society.
[3] Much of the first day of the proof diet was given over to dealing with preliminary objections and applications made by Mr O’Donnell. I have issued a supplementary opinion dealing with these matters. It is enough to say in this opinion that the proof went ahead with Mr O’Donnell representing himself but declining—for the most part—to participate. Mr O’Donnell led no evidence. He conducted some cross-examination of two witnesses, Mrs Joan Hoblyn and Mrs Elizabeth Campbell. He made brief submissions on the evidence.
[4] The time taken up with preliminary points, the subject matter of those preliminary points and the procedural history of this case have all led me to think that the Law Society of Scotland might reasonably give consideration to instituting a system of nominating agents who would be bound to act for members of the profession facing disciplinary proceedings and discipline-related court proceedings in situations where representation cannot otherwise be obtained. Such a system might well be of advantage to the profession as a whole, to the courts and to the public at large.
The professional context
[5] The scene was set by Wendy Henderson, solicitor, complaints investigator for the Law Society of Scotland. She identified Mr O’Donnell and spoke to the determination by the Scottish Solicitors’ Disciplinary Tribunal of two complaints made by the Council of the Law Society of Scotland against Mr O’Donnell in 2008. Mrs Henderson’s evidence establishes a number of facts about Mr O’Donnell’s professional situation. Mr O’Donnell was found guilty of professional misconduct on 17 February 2009 in respect of the two complaints referred to. He undertook to cease practice as a solicitor and resigned his practising certificate. He was censured and, putting it shortly, restricted to practising as an assistant employed by an approved solicitor for a period of five years: but he has not sought the approval of the Law Society for such restricted practice. He has not had a practising certificate since 29 June 2009. He remains on the roll of solicitors.
[6] It is of some importance that publicity was given to the decision of 17 February 2009. The decision was reported in the press at the time: “It means he can no longer run his own law firm but can still work as a lawyer” was how one newspaper told the story [Sunday Mail 19 April 2009]. This reporting evidences the popular confusion between “lawyers” and “solicitors”. A curious member of the public finding John O’Donnell delivering legal services from someone else’s premises might have assumed that he was operating under a restricted certificate with the Law Society’s approval. I speculate that John O’Donnell possibly thought that Law Society approval was not required to operate as a self-described “lawyer” and that he could do so without infringing the interdict: but if that is what he thought he was sailing too close to the wind.
[7] I deduce that during the period of the alleged breaches Mr O’Donnell did transact legal work while working in some capacity, without Law Society approval, for, or with, or from the premises of, Colin Davidson, solicitor, a sole practitioner trading as Davidson Fraser & Co. Davidson Fraser & Co had offices at 311 Clarkston Road, Glasgow G44, and 365 Victoria Road, Glasgow G42. John O’Donnell seems to have worked at the Clarkston Road office. Colin Davidson operated out of the Victoria Road office. The impression given by the evidence of Joan Hoblyn under cross-examination by Mr O’Donnell is that Colin Davidson was something of a shambolic character with an alcohol problem or who had had an alcohol problem. He had long hair and was unshaven or bearded. Other evidence suggests that he was a gifted and inventive lawyer. According to the respondent’s pleadings, Mr Davidson had not practised as a solicitor for 18 years until 2010 when he applied for and received a new practising certificate. Colin Davidson died in, it is said, February 2012.
[8] Alison Sinclair (see below) testifies that when she went to “the office”, in 2011 I infer, John O’Donnell was dressed in a “stripy” shirt and jeans, no jacket, no tie. In cross-examination by Mr O’Donnell, Joan Hoblyn (see below) testifies that whenever she went to “the office”, which was frequently, presumably in 2011, John O’Donnell was dressed in jeans and an open neck shirt. Whenever she saw Colin Davidson, Mr Davidson was “suited and booted”. I do not regard Mr O’Donnell’s style of dress within the office as negativing inferences otherwise available to the effect that he was holding himself out as or pretending to be a solicitor.
The handwriting evidence
[9] Opinion evidence was offered as to the handwriting on a number of documents. The evidence was given by John McCrae, consultant forensic document examiner. Mr McCrae formerly worked in the Strathclyde Police Identification Bureau and the Forensic Science Laboratory, Glasgow. He has professional qualifications and 36 years experience. His evidence was unchallenged and uncontradicted and I accept it. His findings are referred to in the sections which follow.
Joan Hoblyn’s house purchase
[10] Mrs Hoblyn (69) is a retired inspector of taxes. She is separated from her husband. She was (and is) involved in litigation with her husband and other parties in the Court of Session [e.g. Hoblyn v Barclays Bank and the Accountant in Bankruptcy [2014] CSIH 52]. She represents herself in the Court of Session because of, she says, her “total lack of trust and respect of the legal profession...” She had been sequestrated on 10 March 2004 for an unpaid solicitor’s bill. She had suffered from depression and had tried to take her life three times.
[11] Over a period of five years Mrs Hoblyn had saved almost £70,000 which she gave to someone called Ian McMorris “to look after” for her. The first payment was in the sum of about £25,000. She described this initial sum as an inheritance from her mother. I have no reason to disbelieve her when she says that she intended to use the money to buy a flat. However, the arrangement, on Mrs Hoblyn’s account of it, was an unusual one. She claims that when it came to repayment Mr McMorris was due to pay her a premium taking the total repayable up to £125,000. She says that she paid the money into Mr McMorris’ account to conceal it from her husband. It seems to me that Mrs Hoblyn may well have meant to conceal the McMorris fund from her creditors as well.
[12] Joan Hoblyn had known Colin Davidson and his (former) wife for up to 25 years. I accept her evidence about the “conveyancing matter” that she took to Mr Davidson in January 2011. By arrangement with Mr Davidson Mrs Hoblyn went to the Clarkston office of Davidson Fraser & Co, 311 Clarkston Road, Glasgow G44, where she met Mr O’Donnell. Mrs Hoblyn was aware that Mr O’Donnell’s practice had closed down. Colin Davidson told her that he, Davidson, was giving John O’Donnell a chance “to get his teeth back into work”: Mr Davidson hardly needed to go across to his office—the implication being that he lived in a flat on the other side of Clarkston Road—because “John O’Donnell was dealing with matters”. Mrs Hoblyn gave Mr O’Donnell instructions to submit an offer for a flat at 12 Hill Crescent, Clarkston. Missives for the flat were concluded on 8 February 2011 at a price of £122,000 with entry at 28 April subsequently accelerated to 14 April 2011. Mrs Hoblyn’s evidence is that she “was keen to sign the missive” before she flew to Australia for six weeks.
[13] By letter dated 5 April 2011 Davidson Fraser & Co requested to be put in funds. The letter was signed “Colin”. There was then an issue about recovering the money from Ian McMorris. In June 2011, as Joan Hoblyn understood matters, John O’Donnell lodged a writ for payment in the Sheriff Court at Hamilton. By letter dated 8 July 2011 and signed “John”, Mr O’Donnell wrote to Mrs Hoblyn from Davidson Fraser & Co stating: “I enclose a copy of the writ which I amended...”. My understanding is that this was a reference to revisal of the draft writ before lodging and service. (The respondent’s pleadings claim that the writ was signed by Colin Davidson: but neither the principal writ nor a copy of the principal is available.) Defences were lodged and a proof was fixed for 28 October 2011. Mr O’Donnell asked if Mrs Hoblyn would be happy to represent herself, which she was. In the event, as I understand it, there was no appearance by or for Mr McMorris and decree was granted in the sum of £125,000 with interest and expenses. Mrs Hoblyn describes the decree as “not worth the paper it is printed on”. The house-purchase transaction had fallen through long before.
[14] During her evidence Mrs Hoblyn formally identified Mr O’Donnell. Mrs Hoblyn states that while in the offices of Davidson Fraser & Co she overheard John O’Donnell referring to himself as “Colin Davidson” when he answered the telephone. Mr McCrae states that the letter of 8 July 2011, signed “Colin”, was in fact signed by the hand of John O’Donnell. Mr McCrae’s opinion is that seven letters produced by Mrs Hoblyn and sent to her by Davidson Fraser & Co are signed by John O’Donnell. One of these is the letter referred to above signed “Colin”; another is a letter signed “Davidson Fraser”; and five of the letters are signed “John”.
[15] Until there was press coverage of the O’Donnell case in April 2013 Mrs Hoblyn “thought that John O’Donnell was a fully fledged solicitor”. She says that she is “sure” he described himself as a solicitor. She denies that Colin Davidson told her that Mr O’Donnell was not a qualified solicitor. She admits that Colin Davidson himself telephoned her to tell her that there had to be money in the client account to meet the purchase price of the flat that she had agreed to buy. She admits that it was Colin Davidson who told her that “we’ll sue [McMorris] for £125,000”.
Elizabeth Campbell’s litigations
[16] Elizabeth Campbell (71) is a widow. She and her late husband were partners in the firm of Campbell Coaches, East Kilbride. She testifies:
“It was quite a successful business. However, my husband was ill in hospital for about a year before he died and effectively the people who helped us in the business took the business away from us during that period. After my husband died I tried to salvage it involving lawyers and accountants.”
As at March 2011 Mrs Campbell faced four court actions. There was an action by the heritable creditors, Singers Corporate Asset Finance Limited, for possession of land at Dickson Place, East Kilbride. This was in Hamilton Sheriff Court. There were three actions for payment, namely a small claims action in Glasgow Sheriff Court by Semple Fraser LLP, solicitors, for unpaid legal fees in the sum of £1,586.25; a small claims action in Hamilton Sheriff Court at the instance of Robert J Hart & Company, chartered accountants, for unpaid accountancy fees in the sum of £1,518.22; and an ordinary action pursued by G J Campbell Contracts (a building firm) in Hamilton Sheriff Court for about £21,000. McClure Naismith LLP, solicitors, initially acted for Mrs Campbell in defending the suit at the instance of G J Campbell Contracts.
[17] When McClure Naismith LLP withdrew from acting, Mrs Campbell went to the Hamilton Citizens’ Advice Bureau. At the time she was “very upset, depressed and undergoing therapy”. She was referred from the Citizens’ Advice Bureau to Colin Davidson, solicitor, at Davidson Fraser & Co, solicitors, at the Clarkston Road office. From 29 March 2011 to 6 October 2011 Elizabeth Campbell put her affairs in the hands of Colin Davidson at Davidson Fraser & Co—or so she thought. On 13 April 2012 Mrs Campbell discovered from an internet website—perhaps the website called “A Diary of Injustice in Scotland” http://petercherbi.blogspot.co.uk/ —that the man she thought was Colin Davidson was in fact John O’Donnell.
[18] The details of Mrs Campbell’s business are not important. Her business was in a guddle when she went to Davidson Fraser & Co; and it was still a guddle when she left. The important point for present purposes is that when she first went to 311 Clarkston Road Mrs Campbell met a male who introduced himself as “Colin Davidson”, a male whom she thereafter—and without being corrected—called “Mr Davidson”. She identified John Gerard O’Donnell in court as the man whom she had known as “Colin Davidson”. She had “lots” of meetings with the pseudo Davidson; and she has documented specifically meeting him at the office on 29 March, 4 April, 13 April, 21 April, 28 April, 8 June, 5 July, 7 July, 20 July, 21 July and 19 September 2011. There were moments of Feydeau-like farce, for example when the real Colin Davidson appeared or when Mrs Campbell heard other people, including the secretary, referring to the pseudo Davidson as “John”. The explanation given to Mrs Campbell by Mr O’Donnell was that it was “a family thing”: he said that some people knew him as John but he was Colin Davidson.
[19] Thirteen letters sent by Davidson Fraser & Co to Mrs Campbell have been produced. These letters are dated various dates from 30 March 2011 to 12 October 2011. With the exception of the last mentioned—which bears to have been signed “pp” by the secretary—all these letters were signed by Mr O’Donnell. One is signed by him “C Davidson”; and the rest are signed by him “Davidson Fraser”. The letter signed “C Davidson” is dated 31 March 2011. It refers to “my meeting with you earlier this week”. I deduce that this is a reference to the meeting which Mrs Campbell had with the pseudo Davidson on 29 March 2011.
[20] Mrs Campbell refers to copies of three letters she wrote to “Colin Davidson”. The letter that she wrote on 28 September 2011 mentions the meeting “in your office last Monday, 19 September”. This bears out her oral evidence about a meeting with the pseudo Davidson on that date. There are two file notes with details of Mrs Campbell’s business in John O’Donnell’s hand. These have been extracted from the file recovered from the Clarkston office.
[21] The pseudo Davidson represented that he was qualified to appear in court for Mrs Campbell: but, for obvious reasons, it might be thought, he failed to appear. On 28 September 2011 Elizabeth Campbell wrote to Colin Davidson (the pseudo Davidson) saying she was “shocked to discover that I was not represented at the pre-proof hearing at Hamilton Sheriff Court yesterday”. On 3 October 2011 Mrs Campbell wrote again to the pseudo Davidson:
“... the Sheriff has given me until the 11 October to let him know how I wish to proceed and, in the absence of confirmation from yourself that you will be acting for me, I will either need to find another Solicitor, or defend myself.”
The pseudo Davidson’s final letter to Mrs Campbell, dated 12 October 2011 and signed per procurationem, by the secretary, states:
“I apologise for my non appearance at Court yesterday. I had every intention of being there but I was taken ill earlier in the morning... You have a Proof later this month, and I would recommend you obtain alternative legal representation for that hearing... I have intimated this letter to the Sheriff Clerk outlining my position so that the Court is made aware of the current situation.”
[22] In cross-examination Mrs Campbell denied the suggestion that Mr O’Donnell had introduced himself by his true name, as Mr Davidson’s assistant. She admitted that she had seen a man with a beard in the office. She admitted that the secretary had called the man with the beard Colin Davidson. She refused to accept that Mr O’Donnell had at no time suggested that he, Mr O’Donnell, was Colin Davidson. Mrs Campbell accepted that a judgment of Sheriff T S Miller sitting at Hamilton dated 23 August 2013 describes her evidence in that case as “not credible” and “incredible”. This was a judgment in the action at the instance of G J Campbell Contracts referred to above [A376/09, 23 August 2013, §§ 55 and 62]. Mrs Campbell blamed her then solicitor for not presenting “proper evidence”. That seems a poor explanation to me: but generally and unless otherwise indicated I accept Mrs Campbell’s evidence as noted above.
C S Construction Limited v Philip Booth
[23] There is evidence from Philip Simpson, advocate, that he had received instructions to act for the defender Philip Booth in an action at the instance of C S Construction Limited in Hamilton Sheriff Court. The instructions came from Davidson Fraser & Co at the Clarkston Road office. The work was done in the period February to June 2011. Mr Simpson has produced email instructions which were sent from the email address of the secretary at Davidson Fraser & Co, most bearing to be sent by the secretary, some bearing to be sent by “Colin”. The evidence does not allow me to look behind the emails and to know whether the true identity of the sender or senders was Mr O’Donnell. There is one letter of instruction, dated 18 May 2011. This is signed “Davidson Fraser” with the name “Colin R Davidson” typed beneath the firm signature. The evidence of the handwriting expert Mr McCrae authorises me to find that the letter was signed by John O’Donnell.
[24] On 10 June 2011 Mr Simpson appeared for Mr Booth at Hamilton Sheriff Court. Mr O’Donnell sat beside counsel and was there, as Mr Simpson understood the situation, to instruct him. During the debate the learned Sheriff indicated that consideration might usefully be given to amending Mr Booth’s pleadings to make certain averments more specific. In the adjournment that followed counsel sought instructions from Mr O’Donnell; and when the court reconvened, on the basis of the instructions received, counsel asked for time to amend. Mr Simpson had known, and had been instructed by, John O’Donnell when Mr O’Donnell was previously in practice on his own account with a full practising certificate. Mr Simpson was given no reason to question the impression conveyed by Mr O’Donnell on 10 June 2011 that Mr O’Donnell was Mr Simpson’s instructing solicitor. Mr Simpson was not cross-examined. I accept his evidence.
The affairs of Mr and Mrs William Colvin
[25] When he was in practice as a solicitor on his own account, Mr O’Donnell had acted as a solicitor for Mr Alan Colvin and for Mr Alan Colvin’s parents Mr and Mrs William Colvin. When operating from the premises of Davidson Fraser & Co in 2011 Mr O’Donnell had involvement in the legal affairs of Mr and Mrs William Colvin.
[26] It was in connection with the affairs of Mr and Mrs William Colvin that Gordon Adams (61), a social worker employed by Glasgow City Council, encountered John O’Donnell. Mr Adams states that he is a mental health officer based at Glasgow Royal Infirmary; and that safeguarding vulnerable adults is part of his remit. He explains that Mr and Mrs William Colvin were admitted to care in 2010, Mrs Colvin (Christina) in June and Mr Colvin four months later. The Colvins found accommodation together in Arcadia Gardens care home. There were concerns about financial exploitation by their son, Alan Colvin. (It is not said who raised the concerns: but I could well understand if there were speculation that Mrs Reid, referred to below, was implicated.) There was police involvement. Mr Adams took the lead for the social work department in dealing with the affairs of Mr and Mrs Colvin.
[27] On 18 May 2011 Gordon Adams went with care worker Kate Keatings to Arcadia Gardens care home. Mr Adams’ purpose was to introduce himself to William Colvin, to explain the investigation into suspected exploitation and to obtain consent to recover information about intromissions with Mr Colvin’s assets. On that occasion Mr Adams met John O’Donnell who told Mr Adams that he, John O’Donnell, had called to get a will signed by William Colvin. A copy of the signed will is produced. The execution of the will by Mr Colvin on 18 May 2011 is witnessed by “John Gerard O’Donnell, lawyer, at 311 Clarkston Road, Glasgow”. The testing clause containing this designation is in Mr O’Donnell’s handwriting.
[28] Before he visited Mr Colvin, Mr Adams had already heard from the social care workers who looked after William Colvin and Christina Colvin—Kate Keatings and Margaret Fitzpatrick respectively—that “a lawyer called Mr O’Donnell was involved.” When Gordon Adams arrived at the care home for the visit on 18 May 2011 he was told by one of the care home staff that “Mr Colvin was seeing his lawyer”. When Mr Adams met Mr Colvin, Mr Colvin told Mr Adams that he, Mr Colvin, had “just seen his lawyer and signed his will”. This is consistent with the terms of the testing clause. The next day Mr O’Donnell wrote to Mr Colvin from the Clarkston Road office of Davidson Fraser & Co in the following terms [emphasis added]:
“I refer to my meeting with you on Wednesday afternoon. I enclose a copy of your completed Will. I confirm that I will hold the completed document at my office. If you require to make any further alterations I can meet with you.”
The letter was signed “John” by Mr O’Donnell. The letter was issued on the writing paper of David Fraser & Co at 311 Clarkston Road, Glasgow G44.
[29] In evidence Gordon Adams states that he equates “lawyer” with “solicitor”. Clearly this is so, for Mr Adams wrote six letters about the Colvin case to Mr O’Donnell in the period 23 May 2011 to 8 August 2011; and each of these letters is addressed to “John O’Donnell, Solicitor” at the Clarkston Road office. Mr Adams also wrote to “Colin Davidson, Solicitor” at the same address. Mr Adams did this, once, on 2 June 2011. He explains that he wrote to “the senior partner” (Mr Davidson) as a matter of courtesy and because he was “also a bit wary”. It seems that the care workers had told Mr Adams that John O’Donnell was “working under supervision”, under the supervision of the Law Society of Scotland was what Gordon Adams thought.
[30] The letter to Colin Davidson was intended to alert him to, and to put on record a number of concerns including the fact that Mr O’Donnell was proceeding with the sale of the Colvins’ house on the instructions of Mr Colvin without authority of or on behalf of the co-owner Mrs Colvin. Mrs Colvin was incapax; and no guardianship application had been made. Mr O’Donnell told Mr Adams that the sale could progress “using implicit authority”; and that the transaction could be finalised once the guardianship paperwork was in place.
[31] A case conference was held on 8 June 2011. Mr Adams intended to take the opportunity to discuss the guardianship application, should Mr O’Donnell be present. Mr O’Donnell was in attendance for part of the meeting. Mr Adams’ understanding was that John O’Donnell was there in his capacity as Mr Colvin’s solicitor; and that Mr Colvin had instructed Mr O’Donnell to make the guardianship application.
[32] Also present was Alison Sinclair (40), a palliative care nurse, the granddaughter of Mr and Mrs William Colvin and the niece of Alan Colvin. John O’Donnell was known to Mrs Sinclair as her uncle’s solicitor. She had encountered Mr O’Donnell when he acted for her grandparents’ several years before. Alison Sinclair testifies that John O’Donnell introduced himself at the case conference as her grandfather’s “lawyer”. He stated that he was at the meeting to represent her grandfather, that is Mr William Colvin. In her mind “lawyer” and “solicitor” are the same thing.
[33] The purchaser was allowed entry to the Colvins’ house without paying the price on 8 July 2011. The guardianship application had still not been made by 8 August 2011, the date of Gordon Adams’ last letter to “John O’Donnell, Solicitor”. Thereafter, according to Mr Adams, Mr Davidson “took over” and a guardianship application to the sheriff was made by Mr Davidson. An interim order was granted at around the end of August and full guardianship was granted in November 2011.
[34] There is agreed statement evidence from Mary Christine Colvin or Reid who is the daughter of Mr and Mrs William Colvin and the mother of Alison Sinclair. Senior counsel for the Law Society tells me that he does not rely on this statement evidence because Mrs Reid is not available to be cross-examined. Correspondence from Davidson Fraser & Co to Mrs Reid and her husband has been produced and is agreed in terms of the fifth notice to admit (which has not been contested). This correspondence consists of nine letters from Davidson Fraser & Co dated various dates in the period 1 April 2011 to 7 July 2011. On the unchallenged and uncontradicted evidence of Mr McCrae I find that all of these letters are signed by John O’Donnell, one of the letters being signed “Davidson & Fraser” and the rest being signed “Davidson Fraser”. The letters are about the sale of the house belonging to Mrs Reid’s parents Mr and Mrs William Colvin. The letters are written as if to the owners of the house. There was no power of attorney in favour of Mr and Mrs Reid. Gordon Adams’ correspondence shows that it was one of the recommendations of the case conference that Mr William Colvin be encouraged to appoint Mrs Reid as his attorney.
[35] Mrs Reid is not available to testify because she is dead. Christina Colvin is dead, as is William Colvin. Alan Colvin is alive but, at the time of the hearing, was unfit to give evidence. He is recovering from swine flu. He was admitted to hospital on two occasions for a total period of about seven weeks. During the first admission he was in an induced coma for five weeks. As stated above, Alan Colvin is the son of Mr and Mrs William Colvin and the uncle of Alison Sinclair. He is the brother of Mrs Reid. Alan Colvin is described as a necessary witness for Mr O’Donnell. Senior counsel for the Law Society and Mr O’Donnell agree that I should treat an undated letter bearing to have been signed by Alan Colvin as Mr Colvin’s evidence. The letter is addressed to John O’Donnell [No. 7/15 of process]. This agreement supersedes the application by Mr O’Donnell to continue the proof in order to receive the oral testimony of Alan Colvin on commission or in court. The motion for a continuation can now be refused as unnecessary.
[36] The essence of Alan Colvin’s evidence is that his sister Mrs Reid is a liar; and that their father, William Colvin, was told by John O’Donnell in Alan Colvin’s presence at the care home in December 2010 that John O’Donnell “no longer had a certificate to practice” but that he was “associated with a firm called Davidson Fraser who would be happy to act” for William Colvin in the sale of the house belonging to Mr and Mrs William Colvin. The letter states: “There was a few meetings thereafter, but at none of these meetings did you pretend to be a current lawyer, and my father was aware of this.” I am bound to accept the agreed evidence of Alan Colvin. I also accept the evidence of Gordon Adams and Alison Sinclair which I heard in court and which is unchallenged and uncontradicted.
Analysis
[37] The complaints in the petition are that John Gerard O’Donnell “has continued to hold himself out as a solicitor; et separatim to pretend that he is a solicitor...” [Record No. 28 of process 4D, 5D, 6D, 7A-B, 7D, 8A and 8D]. The first complaint, expanded to fully reflect branch (i) of the interdict, reads “has continued to hold himself out as entitled by law to practice as a solicitor”. I understand it in that way. The interdict in turn broadly reflects the terms of the criminal offences created by sections 23 and 31 of the Solicitors (Scotland) Act 1980. In principle, civil interdicts have to be strictly construed; and the penal dimension, it is submitted on behalf of the Law Society, means that a narrow meaning has to be assigned [Agassi v Robinson (Inspector of Taxes) (No 2) [2006] 1 WLR 24] at 24H—25B, at §§ 4—5 and 28—36 per Dyson LJ delivering the judgment of the Court of Appeal].
[38] This raises a potential problem with the complaint of “pretending to be a solicitor”. The complaint of pretending reflects branch (ii) of the interdict. Mr O’Donnell does not have a practising certificate: but he remains on the roll; and he really does continue to be a solicitor at least in some senses or for some purposes―see the Solicitors (Scotland) Act 1980 s. 42A(8) which provides that “solicitor” includes “any solicitor, whether or not he had a practising certificate in force at the time…”. The provision implies that enrolled individuals are properly described as solicitors whether or not entitled to practice.
[39] I have to notice that the Scottish Solicitors’ Disciplinary Tribunal has been seised of other proceedings against Mr O’Donnell. I am told nothing more about the substance of those proceedings except that they are something to do with a client called Philip Gillies. Those proceedings were ongoing on 20 July 2012 when they were sisted until July 2013. The proceedings were apparently still live on 19 June 2014 when there was an exchange of email correspondence between Mr O’Donnell and the Law Society under the subject header “Philip Gillies”. The existence of these proceedings necessarily means that John Gerard O’Donnell has continued to be a solicitor at least for disciplinary purposes.
[40] Nonetheless, having taken a look at the underlying petition for interdict, I am satisfied that the second branch of the interdict is intended to be directed at pretending to be not simply a solicitor but someone entitled to practice as a solicitor. I am satisfied that the interim interdict would have been understood or ought to have been understood by Mr O’Donnell in this way and in no other way. Since he gave up his practising certificate he has never—if Mrs Hoblyn’s evidence is discounted—described himself in person as a solicitor (although he may have allowed others to do so). This supports the inference that he understood the risk of “pretending to be a solicitor” in the sense I have described.
[41] On the foregoing understanding of the interdict and the complaints in the petition, I turn to address the following questions: does the evidence show that Mr O’Donnell expressly held himself out as or pretended to be a solicitor; does the evidence show that Mr O’Donnell held himself out as or pretended to be a solicitor by implication by providing services within the exclusive competence of solicitors; does the evidence show that Mr O’Donnell held himself out as or pretended to be a solicitor by implication by providing services that solicitors normally provide while allowing third parties to have the impression that he was a solicitor? The answer to the first and third questions is “yes”; and the answer to the second question is “no”. Let me be more specific.
[42] I am reluctant to accept the uncorroborated testimony of Joan Hoblyn when she says she is “sure” that John O’Donnell described himself as a solicitor. Aside from what Mrs Hoblyn says there is no evidence that Mr O’Donnell expressly held himself out as or pretended to be “a solicitor” except insofar as he impersonated Mr Davidson. In answer to my question Mr O’Donnell accepts that impersonating Mr Colin Davidson is the equivalent of “holding out” or “pretending” and would be a breach. On the evidence of Mrs Hoblyn and Mrs Campbell and on the handwriting evidence I find that Mr Davidson did impersonate Mr Colin Davidson in Mr Davidson’s capacity as a solicitor. Mr O’Donnell did this by representing in terms that he was Mr Davidson and by signing documents as Mr Davidson or by using the firm signature, without qualification. In that respect Mr O’Donnell is in breach.
[43] The next question is whether Mr O’Donnell provided services within the exclusive competence of solicitors and thereby impliedly held himself out as or pretended to be a solicitor. This is not proved. It is correct, as submitted, that the Solicitors (Scotland) Act 1980 s. 32(1) is apt to be read as conferring exclusive competence. One of the reserved activities is “drawing or preparing any writ in relation to any action or proceedings in court”. Neither side offers submissions on the meaning of this provision. I do not construe the provision as referring to merely preparing an inhouse draft although it can include that stage: it has to involve putting your name to the final iteration which is lodged in court. I reach this conclusion having taken account of the terms of section 32(2)(a) of the 1980 Act and having had regard to the equivalent provision for England & Wales. There may well be a suspicion that Mr O’Donnell “drew or prepared” Mrs Hoblyn’s initial writ against Ian McMorris, but no more than that. The reference to “amendment” of the writ in the letter of 8 July 2011 is, as I read it, a reference to revisal of the writ before signature. Mr O’Donnell’s method of operation makes me think it unlikely that he would have signed the writ; or, if he did sign the writ, that he would have signed it in his own name. For completeness there is no submission that Mr O’Donnell breached the interdict by entering into missives on behalf of Mrs Hoblyn; and her evidence suggests that she signed the acceptance herself. As for Mr William Colvin’s will, section 32(3) of the 1980 Act makes clear that preparing wills is not the exclusive preserve of solicitors qualified to practice. Since Mr Colvin on the agreed evidence of his son Alan Colvin knew that Mr O’Donnell was not a solicitor nothing should be made of the will episode in itself. The episode is of note in that it provides clear cut evidence of Mr O’Donnell describing himself as a “lawyer”.
[44] The final question is whether Mr O’Donnell impliedly held himself out as or pretended to be a solicitor by providing services that solicitors normally provide while allowing third parties to have the impression that he was a qualified solicitor. That he did so is most clearly evidenced in his dealings in relation to the affairs of Mr and Mrs William Colvin. Mr Adams of Glasgow Social Work Services first wrote to “John O’Donnell, Solicitor” on 23 May 2011. He wrote in the same terms on 8 June 2011, the day of the case conference at which John O’Donnell was in attendance for part of the time and at which Alison Sinclair and Gordon Adams were present.
[45] At the case conference of 8 June 2011 Mr O’Donnell must have been aware that Mr Adams regarded him, John O’Donnell, as a solicitor. John O’Donnell introduced himself as Mr William Colvin’s lawyer. Mr Adams testifies that he understood John O’Donnell to be in attendance in his capacity and acting as Mr William Colvin’s solicitor. Mr Adams continued to send letters to “John O’Donnell, Solicitor”. There was no return correspondence from Mr O’Donnell: but Mr Adams says that he and Mr O’Donnell continued to discuss matters, presumably on the telephone. The matters under discussion were the ongoing adult support and protection investigation, the sale of the Colvins’ house, Mr Colvin’s power of attorney and the guardianship application for Mrs Colvin. Gordon Adams’ letter to “John O’Donnell, Solicitor” of 17 June 2011 refers to “the Guardianship application being undertaken by yourself” and states: “I should be grateful if you could e‑mail me a copy of your draft summary application.” Gordon Adams’ letter to “John O’Donnell, Solicitor” of 8 August 2011 again refers to “your draft summary application”.
[46] A summary application (to the sheriff) in terms of section 2 of the Adults with Incapacity (Scotland) Act 2000 is a “writ in relation to any action or proceedings in court” within the meaning of the Solicitors (Scotland) Act 1980 s. 32(1). In describing himself as a “lawyer”, in providing or purporting to provide legal services normally undertaken by solicitors and in knowingly allowing Mr Adams and others to continue to understand that he, John O’Donnell, was a solicitor and as such qualified to undertake work within the exclusive competence of qualified solicitors John Gerard O’Donnell was “holding himself out as entitled by law to practice as a solicitor and pretending to be a solicitor”. He was in breach of the interdict.
[47] Mr O’Donnell was in breach of interdict in the same way on 10 June 2011 when he allowed Mr Simpson, advocate, to act on the assumption that he, Mr Simpson, was authorised to act for the client by Mr O’Donnell in the capacity of instructing solicitor. I do not think that Mr O’Donnell can quibble with this. In a letter he wrote to the Dean of the Faculty of Advocates on 3 December 2013 he stated: “I am aware that an advocate receives instructions from a solicitor to act...” [7/11]. The letter of instruction to Mr Simpson dated 18 May 2011 was signed by John O’Donnell pretending to be “Colin R Davidson”. When John O’Donnell offered Joan Hoblyn the choice of representing herself on 28 October 2011 at Hamilton Sheriff Court he was also implying that he was qualified to represent her if instructed to do so. Mr O’Donnell in the persona of the pseudo Davidson induced Elizabeth Campbell to understand that he was qualified to appear in court on her behalf. I have already said that Mr O’Donnell was in breach of interdict by impersonating Colin Davidson.
[48] For completeness, no particular distinction is drawn in the Law Society’s submissions between holding out and pretending. Senior counsel did make submissions about the ineptitude of John Gerard O’Donnell’s handling of legal business. It may well be correct that what Mr O’Donnell did and failed to do was inept but that is not relevant, I hope, to the question of whether he was holding himself out as and pretending to be a solicitor. Separately, a discernible theme is that people who got involved with Mr O’Donnell had reasons for not taking mainstream legal advice. It is not obvious that any of the complainers suffered loss by any act or omission on the part of Mr O’Donnell. I agree with Mr O’Donnell that, on the evidence I have, neither Mrs Reid nor Mr William Colvin nor Mrs Hoblyn nor Mrs Campbell was or were exploited by him.
Decision and disposal
[49] I find it proved beyond reasonable doubt that John Gerard O’Donnell is in breach of the interim interdict granted on 21 August 2009 in the respects referred to above. It is submitted on behalf of the Law Society of Scotland that the proper disposal is a sentence of imprisonment. Imprisonment is said to be appropriate (a) because the subject matter is the enforcement of disciplinary measures for the protection of the public, (b) because the granting of interim interdict put Mr O’Donnell on a second warning and (c) because Mr O’Donnell’s actings affected three vulnerable clients or sets of clients. I am not sure about the “second warning”. The complaints in the petition for interdict are that John O’Donnell continued to operate from the premises at 15 Clarkston Road with a replacement sign that read “John G O’Donnell & Co, Notaries” in place of the original sign “John G O’Donnell & Co, Solicitors and Estate Agents”; that the premises continued to display the signage of the Glasgow Solicitors’ Property Centre [GSPC]; and that Mr O’Donnell continued to use headed writing paper “John G O’Donnell & Co, Solicitors and Notaries”. There is no suggestion that Mr O’Donnell has persisted in those particular activities. “Vulnerable” is a favourable description of Mrs Reid, Mrs Hoblyn and Mrs Campbell on the information available to me. Mr O’Donnell may not have made things better for Mrs Hoblyn and Mrs Campbell but I do not think that he made things worse. Mr William Colvin was aware, on the agreed evidence, that Mr O’Donnell did not have a practising certificate.
[50] I am told that there is some ambiguity as to whether breach of interdict is subject to the provisions of the Contempt of Court Act 1981. Senior counsel submits that modern practice is to punish breaches of interdict as if they were contempts within the scope of the legislation, subject to the same restrictions [T Welsh (ed), Hon Lord Macphail, Sheriff Court Practice, 3rd edn (SULI, Edinburgh, 2006), § 21.99; cf. Johnson v Grant 1923 SC 789]. In terms of section 15 of the 1981 Act the maximum penalty that this Court can impose is two years imprisonment or a fine or both; and in the sheriff court the maximum penalty in civil proceedings is imprisonment for three months or a fine of level 4 on the standard scale or both. I now see that the Solicitors (Scotland) Act 1980 s. 63(1) provides: “Any person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale”. This would include the offences of holding out and wilfully and falsely pretending in terms of sections 23 and 31. Level 4 is currently £2,500.
[51] There are three agreed psychiatric reports which bear to show that Mr O’Donnell has had mental health issues. I shall continue the case by order to be addressed on all circumstances relating to the appropriate disposal and mitigation. All options remain open. I expect parties to lodge necessary documentation relative to disposal in advance of that hearing and to be prepared to address me fully on the options. In the meantime having already refused heads two, three and four of Mr O’Donnell’s preliminary motion I shall now refuse head one which seeks to have the Law Society of Scotland found in contempt of court (see supplementary opinion); I shall refuse Mr O’Donnell’s motion made at the bar for a continuation of the proof to allow the evidence of Mr Alan Colvin to be received, that motion having been superseded by the agreement between the parties to the effect that the letter No 7/15 of process should be treated as Mr Alan Colvin’s evidence; I shall reserve further consideration of the plea-in-law for the Law Society (which addresses both the merits and punishment); I shall repel the pleas-in-law for Mr O’Donnell; and I shall reserve all questions of expenses.