SUPPLEMENTARY OPINION IN THE MINUTE THE LAW SOCIETY OF SCOTLAND FOR BREACH OF INTERDICT AND ANSWERS FOR JOHN GERARD O'DONNELL
OUTER HOUSE, COURT OF SESSION
2014 CSOH 167
P1091/09
SUPPLEMENTARY 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. 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…”
In 2012 the Law Society lodged a minute alleging breaches of the interdict. 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. Much of the first day of the proof diet was given over to dealing with preliminary applications and objections made by Mr O’Donnell. This supplementary opinion deals with these matters. For the background, context and the substantive decision, reference should be made to the main opinion.
Preliminary applications and objections
[2] Before evidence was led in the proof commencing 1 July 2014 Mr O’Donnell asked me to deal with a number of preliminary applications and objections. These were contained in a motion enrolled on 26 June. The motion is in the following terms:
“1. To have the Law Society of Scotland held to be in contempt of court, in that having initiated the present proceedings, and knowing that a proof had been allowed commencing on 1st July 2014, and 2 days thereafter, and therefor [sic] knowing that any matter between them and the Respondent was sub-judice, their representative took part in a BBC television programme, ostensibly about crooked lawyers in Scotland, and deemed it appropriate to comment on the Respondent in a prejudicial manner.
2. The present Petition should be dismissed as the proceedings were raised Mal-Fides [sic].
3. The Respondent not being able to instruct legal representation due, in part, to the prejudicial interview given by the Respondents [sic], and their continued active co-operation with the news media in his [sic] respect, the 3 day diet of Proof should be discharged, and a fresh diet assigned.
4. The Petition is irrelevant as framed.”
The motion was marked as opposed. After hearing argument I refused parts 2, 3 and 4 of the motion. I reserved my decision on part 1 of the motion and have now decided to refuse it. See the main opinion.
“Lawyers behaving badly”: contempt of court
[3] The alleged contempt occurred during a programme broadcast on BBC1 TV Scotland entitled Lawyers behaving badly. The programme was broadcast on 15 January 2014. A recording was played for me to look at in court. The reporter was Samantha Poling [SP]. The “expert panel” consisted of three English lawyers, namely Andrew Hopper QC [AH]; Andrew Boon, Professor of Law, City University of London [AB]; and Julian Webb, Professor of Legal Education, University of Warwick [JW]. The programme was 30 minutes long. The duration of the John O’Donnell sequence within the programme is two minutes 26 seconds. The alleged contempt consists of a contribution made by Carole Ford [CF], convenor of the Law Society’s regulatory committee, in answer to (apparently) two questions put by the reporter. The first question is unheard. The duration of Carole Ford’s contribution is 40 seconds. Here is my transcription of the alleged contempt in its context:
Still shot of John O’Donnell walking in the street
SP Numerous complaints were made against this man John Gerard O’Donnell. Over the last five years he has been suspended from practice twice, been bankrupt, and has repeatedly had negligence claims made against him by unhappy clients. At no point did the system deem him serious enough a problem to strike him off.
AH, AB and JW sitting at table looking at documents
SP We asked our panel to look at the way O’Donnell was dealt with in an early SSDT case which related to his borrowing £60,000 of client’s money without consent.
Cover page of document “Findings in Complaint of Law Society of Scotland against John Gerard O’Donnell”
AH I can’t get my head round borrowing in this context.
AH speaking
AH Somebody explain to me how you can borrow something without anybody knowing about it. That’s just taking.
JW nodding
AB speaking
AB They actually say in the judgment they would have struck him off but the clients hadn’t complained.
AH speaking
AH We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would’ve expected this to result in striking off.
AB speaking
AB The critical thing here is the risk factor. If somebody’s been dishonest once the likelihood is that they’re going to be dishonest again unless they’re stopped.
Still shot of John O’Donnell walking in the street
SP But he wasn’t stopped. The tribunal simply restricted his licence so that he had to work under the supervision of another solicitor.
John O’Donnell walking in Court of Session car park
SP Here he is turning up at the Court of Session in Edinburgh to answer the most recent allegations, claims that he adopted the identity of that supervising solicitor as a way of getting round the suspension.
AH, AB and JW sitting at table looking at documents with SP in foreground, back to camera
SP If these current allegations against John Gerard O’Donnell are proven in court, our panel’s view is this would be very serious.
AH speaking to SP
AH That goes beyond professional culpability, its deceit
SP You’re not comfortable with the situation?
AH Ugh, well would anybody be?
CF speaking to SP
CF This case is not closed. The Law Society is pursuing Mr O’Donnell and they’re pursuing him according to the rules and regulations that relate to, eh, solicitors who have broken the rules in some way. But it is not a closed case. And he is not allowed to practise at present.
SP speaking
SP Are you happy with the level of robustness of the SSDT in the case of John O’Donnell ?
CF speaking
CF I would say on reflection “no”. I think what he’d done in the past possibly it should’ve been a, a more than just a restriction on his practice. But that’s me in hindsight looking at it with nothing like the level of detail that the disciplinary tribunal did.
I had not seen the programme before. Mr O’Donnell invited me to look at the recording, disowning any suggestion that seeing it could influence me as the trier of fact. Senior counsel for the Law Society agreed that it would be helpful to look at the recording.
[4] I would have expected a question of contempt of this sort to be raised in writing by minute with an opportunity for the alleged contemnor to answer the allegations in writing. However, parties are agreed that I can deal with the matter by looking at the recording and considering oral submissions. Mr O’Donnell’s submission is that the present proceedings are quasi criminal; that the proceedings have been endorsed by the Lord Advocate [breach of interdict proceedings require the concurrence of the Lord Advocate]; and that the contribution by the Law Society, knowing that the current proof was upcoming, is like a procurator fiscal publicly commenting on an on-going prosecution in advance of the trial. The prejudice is that witnesses are potentially tainted.
[5] I reject the allegation of contempt directed against the Law Society of Scotland. There might possibly be concerns about the script and some comments made by the expert panellists: but there are no concerns about the comments made by Carole Ford of the Law Society. In any event I agree with senior counsel for the Law Society that there is no prejudice. Looking at the matter more broadly, the factual material in the programme, so far as concerned with the O’Donnell case, is largely, as I understand matters, about other proceedings which resulted in a determination by the Scottish Solicitors’ Disciplinary Tribunal in 2009 and about the terms of that determination. These matters had already been publicised in the Journal of the Law Society of Scotland and elsewhere [“Scottish Solicitors’ Discipline Tribunal”, JLSS 14 June 2010]. The reporting of the present proceedings is substantially accurate. The material was properly reportable given that a proof had been allowed in May 2013. The matter was and is one of on-going public interest. The witness evidence to be led for the Law Society at the proof was to be and is for the most part affidavit evidence which was the subject of deposition long before the programme was broadcast. There is no indication that any of the witnesses has since seen the programme or been influenced by it in any way that might affect their responses during cross‑examination. (As matters transpired there was little cross-examination.) Even if there were a contempt of court by the Law Society of Scotland, a discharge of the proof—which is what Mr O’Donnell is really seeking—would not be, or would not have been required. Ironically, had the proof not previously been delayed to accommodate Mr O’Donnell, the evidence would have been heard before the broadcast.
Irrelevancy
[6] Turning to the other preliminary complaints directed at having the proof put off, I shall deal with them in the following order: irrelevancy, bad faith and lack of representation. As regards irrelevancy, Mr O’Donnell represents that he has only just discovered in the last month that he remains on the roll and continues to be a “solicitor”. He submits, correctly, that “I cannot be punished for pretending to be what I am.” Senior counsel for the Law Society submits, to put it shortly, that the point is a challenge to the terms of the interdict rather than to the allegations of breach; that Mr O’Donnell’s motion to recall the interim interdict was continued twice and then not insisted on at the original proof diet on 12 November 2013; and that it is too late to take a point of relevancy now, or at least too late to decide the matter as one of pure relevancy now without hearing the evidence. The point is not a reason for discharging the proof.
[7] I agree with senior counsel. The point is one capable of being dealt with once the evidence is out without prejudice to Mr O’Donnell. It is in any event not a complete answer to the complaints of breach of interdict. I therefore refused this branch of the motion. As explained in the main opinion, with the evidence now out Mr O’Donnell agrees that pretending to be a solicitor includes impersonating another solicitor; and I have found as a fact that John Gerard O’Donnell did just that.
Bad faith
[8] Bad faith on the part of the Law Society, Mr O’Donnell submits, is to be inferred, in the absence of a satisfactory explanation, from two circumstances. The first circumstance, to put it shortly, is that five to six weeks after other disciplinary proceedings by the Law Society of Scotland against Mr O’Donnell had been sisted, the present proceedings for breach of interdict were raised in the Court of Session. I think—the details have not been expiscated—the other proceedings relate to a client called Philip Gillies. The sist was granted on 20 July 2012 following receipt of a consultant psychiatrist’s report about Mr O’Donnell’s mental state instructed by the fiscal, or prosecutor, to the disciplinary tribunal. The second circumstance is that when, in early 2014, an application was made to recover documents in (I think) the Gillies proceedings, the reason for the delay (since 2012) in applying to recover the documents was said to be “concern for Mr O’Donnell’s mental health”.
[9] I have read as best I can the agreed consultant psychiatrist’s reports produced by Mr O’Donnell—some of the photocopying is illegibly faded—and it does appear that he was described in 2012 and 2013 as suffering from “a major depressive episode” and to be “not capable of representing himself.” I suspect that at the earliest stage there were also perceived to be difficulties for him in instructing a solicitor. The report of 22 January 2013 [wrongly dated 22 January 2012] states [substituted 7/3, page 3, continuing at page 4]:
“Mr O’Donnell advised me that he attended a Disciplinary Tribunal on 20 July 2012 and advised that the action against him would assist? [be sisted] And that the Law Society had accepted the terms of the report I prepared for them... His mental health by his account was improving steadily until receipt of a letter indicating that a separate process was ongoing, involving him and the Law Society [the present proceedings]... Mr O’Donnell has the experience of a significant increase in his anxiety levels and associated symptoms...
[...]
I am satisfied that Mr John Gerard O’Donnell... continues to meet the criteria for a Major Depressive Disorder, albeit his symptoms have been improving with relief from his stressful situation and support from his family and General Practitioner his recovery was fragile and partial and has been set back by more recent events... It is my opinion that at present Mr O’Donnell is not medically well enough to appear in Court at present. However, I do consider that he is now in a position where he is able to instruct a professional to represent him if the case continues.”
A three day proof in the present proceedings was allowed by interlocutor dated 21 May 2013 to proceed on a date to be appointed. The Law Society undertook not to seek a diet “in this term” (ie before the autumn term 2013) so as to allow Mr O’Donnell time to obtain representation. A proof diet was subsequently assigned for the autumn term, commencing on 12 November 2013. On that date Mr O’Donnell appeared and made a motion at the bar to discharge the diet of proof. The court granted the discharge. The reason advanced for the discharge, I am told, is that Mr O’Donnell had been unable to find representation and was not well enough to represent himself. The court ordered Mr O’Donnell to do a number of things including to submit to a further psychiatric examination to be instructed and paid for by the Law Society. The court directed that the fresh diet of proof should be fixed for no earlier than 12 June 2014 “to allow the respondent [Mr O’Donnell] time to obtain legal representation”.
[10] The psychiatric report resulting from the hearing on 12 November 2013 is dated 9 December 2013. An improvement is reported [7/4, page 4]:
“Mr John Gerard O’Donnell... is recovering from a major depressive episode... I am satisfied that Mr O’Donnell is well enough to appear and to represent himself in Court at present. However, I do consider that his mental health remains fragile and would express concern that he is using alcohol to control his anxiety. It would be of considerable benefit and support to him if he were able to find a solicitor to represent him.”
This is the most recent psychiatric report. Mr O’Donnell does not claim that there has been a deterioration since then.
[11] I reject the allegation of “Mal-Fides” [sic]. The Law Society of Scotland as a professional regulator acting in the public interest is well entitled if not bound to raise proceedings in a situation like the present one. It is bound to conduct the proceedings, once raised, responsibly under the oversight of the court; and it has done so. Mr O’Donnell has had the proof delayed once, then discharged, then re‑fixed for a date well in the future in order to accommodate concerns about his mental health and about representation. I refused this branch of the motion also.
Lack of representation and discharge of the diet of proof
[12] As regards lack of representation for the present diet of proof, Mr O’Donnell states that he is not in a condition to represent himself because he is depressed and because he does not have the forensic ability; and that his inability to obtain professional representation is a good reason to discharge the diet.
[13] Mr O’Donnell documented his attempts to obtain representation in an email to the court offices on 8 November 2013 [7/7]. It appears that in the period May to November 2013 Mr O’Donnell contacted six solicitors, one advocate and one solicitor advocate without success. He contacted two more solicitors, he says, with no success at the beginning of November 2013 [Letter to Bilkus & Boyle, 3 December 2013, 7/10 page 3]. On 14 November 2013, at Mr O’Donnell’s request, the Law Society provided details of six Glasgow law firms that might provide representation [Letter from Balfour & Manson, 14 December 2013, 7/9]. Mr O’Donnell tells me that he contacted all six firms without success. He contacted the Dean of Faculty and was told that advocates had to be instructed by solicitors. Mr O’Donnell tells me that Patrick Campbell of, I think, Patrick Campbell & Co solicitors, Glasgow G42, thinks there is probabilis causa on the papers which Mr Campbell has seen; and that, if the proof were to be discharged, Mr Campbell would apply for legal aid to represent Mr O’Donnell.
[14] Mr O’Donnell submits that no prejudice would be caused by further delay because the proof has to be continued in any event until the autumn of 2014 in order to receive the evidence of Mr Alan Colvin a necessary witness for Mr O’Donnell who is presently unfit to attend court. The interests of the complainers are not material. None of them has been exploited. They are all “wrong uns”, according to Mr O’Donnell: Joan Hoblyn has been sequestrated by a firm of solicitors and has committed fraud on her creditors; the late Christine Reid is called a liar by her own brother Alan Colvin; and Elizabeth Campbell’s evidence on oath is described at two places in the written judgment of the sheriff at Hamilton as unbelievable.
[15] I am sympathetic to litigants who cannot find representation and all the more so if they have health problems and, like Mr O’Donnell, face possible penal consequences; I have a concern about the apparent absence of a right to counsel in civil proceedings which may result in imprisonment; and I agree with Mr O’Donnell that, on the information presented by him at this stage, the personal interests of the complainers do not seem to be a material consideration. However, I accept the submissions for the Law Society that it is not in the interests of justice to discharge the present diet of proof in this case for the purpose of allowing Mr O’Donnell to find representation in a situation where the right to representation is not guaranteed. The most recent psychiatric report states, albeit with some qualification, that Mr O’Donnell is “well enough to appear and to represent himself in court at present.” No doubt it would be of “benefit and support” if Mr O’Donnell were able to find representation: but there is no indication that he has taken any steps at all to find representation for most of the period of more than six months leading up to this proof. The contact with Mr Patrick Campbell, solicitor, seems to be very recent; and the implied reservation in Mr Campbell’s offer is that he will act only if legal aid is granted. In presenting his submissions Mr O’Donnell has demonstrated presentational skills, an understanding of procedure and a grasp of the substantive issues which are, as you would expect, better than average for a litigant in person. So far as I am able as a lay person to judge, his mental state does not impact on his self‑representation.
[16] There have already been delays in bringing the matter to proof. Mr O’Donnell’s own lack of activity and the response of the solicitors approached to date together suggest that it is unlikely that further delay will result in Mr O’Donnell finding representation. Mr O’Donnell claims that the BBC TV broadcast Lawyers behaving badly has had a chilling effect: but a negative response on the part of the profession to his approaches was well evidenced before the programme was broadcast. Against Mr O’Donnell’s claims on the one side there have to be weighed on the other side the interests of the Law Society of Scotland and its members and the public interest. I am not persuaded that the proof will necessarily have to be continued in any event in order to have the benefit of Mr Alan Colvin’s evidence. For these reasons I have decided that the proof should not be discharged and I have refused the motion under this head as well. (As matters have transpired—see the main opinion—there is no need for a continuation to obtain the evidence of Mr Alan Colvin.) I expect to be addressed on the question whether, in the absence of representation and, apparently, of a right to counsel, the full range of possible disposals is open to the court.