Scottish Court of Session Decisions

At advising on 20th December 1935,—

LORD PRESIDENT (Normand).—This is an appeal by A, a country solicitor, and B, a solicitor carrying on business in Edinburgh, against an order of the Solicitors' Discipline Committee finding them both guilty of professional misconduct and censuring them.

The case is important, not only to the two appellants, whose professional future and personal honour are at stake, but also to the legal profession generally. It raises general questions of the duties of solicitors and counsel in the kind of action known as "speculative." Moreover, it is the first case which has come before the Discipline Committee established under the Solicitors (Scotland) Act, 1933, and the duties both of the Committee and of the Court under the Act have been the subject of debate before us and must be considered.

Before the passing of the Act of 1933 the method by which the alleged professional misconduct of a solicitor was brought before the Court was by complaint to the Court under section 22 of the Law Agents (Scotland) Act, 1873. Usually the complaint was brought by the society of which the solicitor was a member after some preliminary and private inquiries by it. The Act of 1933 for the first time set up a Discipline Committee, consisting of solicitors recommended by the General Council of Solicitors in Scotland, as representative of the profession throughout Scotland, and appointed by the Lord President. The procedure in the present case has been under sections 27 and 28, and the relative Rules of Court. Under this procedure a complaint is made to the Discipline Committee, who then have the duty of investigating it. If, as in the present case, the Discipline Committee are of opinion that the solicitor complained against has been guilty of professional misconduct but that such misconduct is not of sufficient gravity to warrant a finding in favour of striking the solicitor off the Roll or of suspending him, they may censure him, and in addition impose a fine. The Committee's finding is intimated to the solicitor, who has a right of appeal by petition to the Inner House. After the petition is presented the Committee lodge a report embodying the reasons for their finding. The Court is directed by the Act to treat the report in the same manner as the report of a reporter in a remit by the Court.

In the case before us a complaint against the appellants was laid before the Discipline Committee by the X Insurance Company. It arose out of an action raised in the Court of Session in the name of Alexander Low, as tutor and administrator-at-law of his pupil son, Arthur James Low, against James Bruce. The summons was signeted on 16th September 1933; the record was closed on 28th November; issues were approved on 5th December; and the trial took place on 26th June 1934. It was ascertained after the raising of the action that there had been a mistake about the relationship of Alexander Low to the pupil, but no blame attaches to anyone for this mistake, which was rectified by amendment and by the appointment on 30th January 1934 of Mr Prain, advocate, as tutor ad litem. The action was an action of damages for personal injury suffered by the boy Low. He was run down by a motor lorry belonging to and driven by a servant of Bruce, the defender, and Bruce was insured against third-party risks by the complaining company. The facts, so far as they can now be ascertained, are that, on the morning of 3rd August 1933, the boy, aged eight, ran, from west to east, across a roadway 32 feet wide and was knocked down by the defender's motor lorry travelling southwards on the east side of the road. The boy was hit by the radiator at a point some six feet or so from the kerb on the east side. There was other traffic on the roadway at the time, and the boy seems to have started to cross the roadway immediately in the rear of two horse-drawn vehicles, both going northwards. One of them, the nearer to him when he started to cross the roadway, was a lorry moving at foot-pace, and the other, further out in the roadway, was a van drawn by a trotting horse, and therefore overtaking the lorry.

The action was tried before Lord Moncrieff and a jury, and at the conclusion of the pursuer's evidence the Lord Ordinary withdrew the case from the jury, on the ground that there was no evidence which would justify a verdict for the pursuer. It was after this that the Insurance Company made complaint to the Discipline Committee. A general charge was brought that the solicitors concerned had raised and maintained the action in an endeavour to extract from the Insurance Company a settlement which would cost them less than the successful defence of the action. The charge was based on three main grounds: (1) that no proper inquiry had been made by them at any time to ascertain the facts; (2) that the facts did not justify an action in any Court and certainly not in the Court of Session; and (3) that the averments made in the condescendence annexed to the summons were not warranted by any precognitions in their hands. Answers were lodged by the appellants, and evidence was heard by the Committee. After hearing counsel for the parties the Committee issued the finding appealed against. In this finding there was no specification of the misconduct which the Committee held to be proved. But a consideration of the subsequent report shows that, in effect, the Committee held that the appellants had been guilty of the main charge brought against them of raising an action, in the merits of which they had no belief, for the purpose of inducing the Insurance Company to settle rather than incur the expense of defending it. When the case came before us the complaining Insurance Company appeared by counsel and supported the finding of the Committee, both on the grounds which are to be found in the Committee's report and on other grounds. The Discipline Committee were not represented before us, and this has been the cause of considerable difficulty in the conduct and consideration of the appeal. I greatly regret that we have necessarily to dispose of the case without having the advantage of hearing the views of the Committee, on various aspects of the report, from counsel authorised to represent them. But the Committee are in no way to blame for this. We were informed that the Committee have no funds out of which to defray the costs of the appeal. It thus appears that the machinery for the ultimate disposal of discipline cases remains essentially defective, and the Court will necessarily be handicapped in the discharge of one of its most important duties touching the administration of justice.

Before I come to the merits of the appeal, I must first deal with certain questions of procedure before the Committee, and with the functions of the Court in relation to the appeal. It was submitted by the appellants' counsel that the finding of the Committee should have stated in succinct terms the misconduct of which they found them guilty, and that they should not have had to wait until the report was lodged to ascertain what that misconduct was. The Act does not expressly require that the finding should specify the character of the misconduct, but, since the solicitor has a right of appeal, it is reasonable, and I think it is implied by the Act, that he should have before him, not merely a general finding of professional misconduct, but a brief specification of its nature. There might be a case where a very serious charge was combined with one much less serious, and only the minor charge was proved. A mere finding that the accused person was guilty of professional misconduct might in such a case be grievously misconstrued by the public and work serious injustice to the solicitor. For the future guidance of the Committee I hold that the finding should specify briefly the character of the misconduct. In the present case it would have been sufficient to say that the misconduct consisted in raising and maintaining a speculative action in the Court of Session without belief that it had any reasonable prospect of success—for that, I think, is the essence of the charge of misconduct in a case like the present.

The appellants' counsel took objection to the report on the ground that it found one of the appellants guilty of misconduct which had not been charged against him by the complainers. It was conceded, and rightly conceded, that, if the Discipline Committee in the course of investigating a particular complaint discovered another ground of complaint, they might competently find the solicitor guilty on either or both of these grounds, provided that a fair opportunity had been given to him to meet the new complaint. But it was said that, in the present case, the solicitor was never informed that any new charge was being made against him until he found in the report lodged after appeal that the Committee had held a charge proved of which no notice had been given. That, of course, would be inconsistent with elementary justice. I have considered the contention with care, and my conclusion is that the Committee found only one charge proved, the raising and maintaining of the action without belief in its merits. Due notice had been given of the charge by the complainers, and the Committee were entitled to take into account the whole evidence in arriving at their decision. Moreover, I think that notice, although bare notice, was given by the complainers of the particular matter now objected to, which concerned the submission of documents to the tutor ad litem.

The duty laid on the Court by the statute is clear. We are bound to enter into the merits of the case as fully and freely as if we were considering a report made after remit. It is nevertheless true that a decision by the Discipline Committee and their reasons for that decision are entitled to the greatest weight. The Committee consist of men of eminence in the profession, with special knowledge of the duties which solicitors must perform in their professional lives, and they have, as one would expect, dealt with the case brought before them with anxious care. I am certain that they did not lightly come to a conclusion adverse to two professional brethren. They had a public service to perform which must have been as distasteful as it was delicate, and this Court, with which the responsibility of review rests, approaches its task with a full sense of the importance of the Committee's deliberate and impartial decision, arrived at upon evidence given by witnesses who appeared before them and whom we have not seen. There is this specialty in the case, that it concerns the proper conduct of litigation, a matter peculiarly within the province of the Court, and for that reason the Court is in a more favourable position to review the decision than if the case had been concerned with some other branch of professional conduct which does not normally come within the cognisance of the Court.

The action of Low v. Bruce was taken up by A, B, and the counsel for the pursuer on the footing that the pursuer would be unable to meet the expenses of the litigation and that there would be no remuneration for their services except in the event of success. The outlays in connexion with the litigation were defrayed by the solicitors. It has long been recognised by our Courts that this is a perfectly legitimate basis on which to carry on litigation and a reasonable indulgence to people who, while they are not qualified for admission to the Poor's Roll, are nevertheless unable to finance a costly litigation. But it has equally been recognised that there is involved in such business a grave risk of abuse unless it is carried on with strict regard to honour by all who are professionally concerned in it. Before acting in business of this kind it is the imperative duty of the solicitors and of the counsel to consider whether the party for whom they are to act has a reasonable prospect of success. The reasons for this are obvious, and need no discussion. If a solicitor, when asked to conduct the case on a speculative footing, is, after consideration, unable to advise that there is a reasonable prospect of success, he should refuse to conduct the case. But, if he has reasonable doubts about the prospects of success, he is justified in consulting counsel. If counsel advises that the action may properly be raised, the solicitor is entitled to follow his advice, and in the future conduct of the action he is bound to act in accordance with counsel's instructions. If he does this after having fairly disclosed to counsel all the information at his disposal, he will not be exposed to a charge of professional misconduct. In order that the prospects of success may be fairly estimated by the solicitor and by counsel in their turn, it is in most cases, where questions of fact are involved, a necessary precaution that fair and honest precognitions of the chief witnesses who will be relied on should be taken at the outset.

It is important to note that, in this case, there is now no question that fair and honest precognitions were obtained at the outset from the eye-witnesses. The first ground tabled by the complainers in support of the charge therefore goes by the board. The precognitions were submitted by A to counsel, and no complaint can be made of deliberate concealment from him of any material fact. Counsel says:

"The footing on which I got the papers was this, ‘If there is a probabilis causa here I suppose you will draw the summons; if there is not, you won't.’"

He accepts full responsibility for the summons and the condescendence annexed to it, and he specifically accepts responsibility for the amount sued for and for the action being taken in the Court of Session, and he explains his reasons for thinking that there were good grounds for the defender's liability. Whether his reasons were good or bad is not material to the decision of this appeal.

Near the beginning of the report the Discipline Committee, in dealing with the charge against A, call attention to certain irregularities in the early stages of the case. For example, they note that A's account does not disclose from whom he received particulars of the accident, that his books do not record the date when he first consulted counsel, that there is no copy of his letter of instructions, and that the original draft summons is said to have been lost. These irregularities do not constitute professional misconduct. But I take this opportunity of observing that it is of importance in speculative actions more than in others that every step taken should be itself regular and punctiliously recorded. These matters may seem to be details, but due observance of the regular professional routine is in itself a safeguard against improper conduct, and failure of such observance properly invites scrutiny of the conduct of the solicitor. I do not share the view pressed upon us that it is irregular for a country agent to approach counsel with the request that he should, if he thinks the circumstances warrant it, draw a Court of Session summons. Before the summons is signeted it must, of course, be passed to the Edinburgh agent, who then has an opportunity of considering it, and, if he thinks it necessary, of bringing it before counsel again.

The report goes on to deal with the essential issue in the case, the bona fides of A, by stating that, in the opinion of the Committee, the precognitions disclosed no case of negligence and did not warrant the raising of any action, and that the statements in condescendence 3 were not supported by the precognitions. They therefore held A guilty of professional misconduct, on the ground that the raising of the action in the Court of Session was done in order to concuss the defender into settling. It is on this part of the report chiefly that I should have wished to hear counsel for the Committee. In the absence of that assistance I have considered this passage with great care, and I have arrived at the conclusion that the Committee have not, at this point, addressed themselves to the relevant question. The question to be answered is not whether the precognitions disclosed a case of negligence, but whether A could honestly believe that they did. The Committee have failed to take account of the fact that the responsibility for raising the action lay with counsel, and that A was entitled to follow his advice—Batchelor v. Pattison and Mackersy, per Lord President Inglis at p. 918.

The next point concerns the correspondence between the precognitions and the averments in condescendence 3. An examination of the structure of the condescendence in the open record shows that condescendence 2 contains the summarised narrative of the facts spoken to in the precognitions. This condescendence has not been criticised by the Committee, and I regard as unfounded a criticism offered by counsel for the complainers that it should have referred to the presence of the horse-drawn vehicles, presumably for the purpose of indicating the nature of a possible defence. "A pursuer of course states his own case, and not those qualifications upon it"—or, I may add, difficulties in the way of its success—"which it may be the business of his adversary to use"—Shillinglaw v. J. G. & R. Turner, per Lord President Clyde at p. 816. Condescendence 3 contains the averments of duty and of negligence. These averments are the special concern of counsel, and the averments of negligence are inferences drawn from the facts by counsel and formulated by him. It is he, and he alone, save in most exceptional circumstances, who must bear the responsibility for these averments. The duty of the solicitor in revising the summons and condescendence no doubt requires him to consider the whole document, and, if he discovers anything which appears to him to be an error, to make representations to counsel in order that it may be reconsidered. But, taking this duty at its highest, I cannot hold that it was breached by A in this case because he did not take exception to the averments in condescendence 3. The Committee evidently felt some suspicion that the condescendence might have been altered after it was drafted by counsel and that the original draft may have differed from that which we have before us in the open record, but they make no finding to that effect, and the evidence certainly would not have justified such a finding. The Committee regarded the action of the Lord Ordinary in withdrawing the case from the jury as a confirmation of the conclusion at which they had arrived. In my opinion that view is erroneous, and it would not be permissible to cast doubt on the honour of those responsible for raising an action merely because the action is withdrawn from the jury. The Committee also found on the fact that, on 18th October 1933, B wrote to the solicitor for the defender that, without prejudice and subject to counsel's view, he would be willing to advise the pursuer to accept a sum of between £30 and £40 with expenses in settlement, and they adopt a statement of counsel for the complainers that, where admittedly at the beginning all that is expected is £30, it is necessary to have a cast-iron case, and that A had no right to instruct the action in the Court of Session. Here again the responsibility of counsel for the raising of the action is ignored, and I think, further, that the figure mentioned in negotiations for a settlement without prejudice does not necessarily measure the value of the cause for the purpose of determining whether it could properly be brought in the Court of Session. The real question at issue is whether A honestly believed that the action had a reasonable prospect of success. After he had submitted the papers to counsel on the footing described by counsel, it is impossible to hold that the raising of the action was dishonest on his part._

I turn next to the case against B. The first ground on which the Committee proceed is that he failed to satisfy himself that the statements in the condescendence, when taken along with the papers, disclosed a prima facie case of negligence. I think that the Committee are right in holding that there is a duty on the Edinburgh solicitor to give independent consideration to the case. But the real failure of duty here in question is failure to consider whether the condescendence drawn by counsel disclosed a relevant case, and it appears to be similar to the point taken against A with which I have dealt. B says that, knowing that counsel had advised a case and prepared the summons, he accepted counsel's view, and in cross-examination he adds that he read over the precognitions, checked the summons, and formed the view that the condescendence was supported by the precognitions and that there was a relevant case. It is difficult to see what the failure of duty was if this is true, and there is no contrary evidence.

It is next said that B withheld information from the tutor ad litem, Mr Prain. The material facts bearing on this part of the case require elucidation. Dr Wood had been attending the injured boy professionally, and he came to know that the defenders had offered £15 to settle the case. Dr Wood was not satisfied that the boy had made a full recovery from the accident, and he was, in fact, apprehensive of very serious after-effects. He therefore went spontaneously to see B, whom he had never met before, and explained his view. B informed counsel of what had passed, and in consequence the sum sued for was increased on counsel's advice to £1500. Counsel, however, desired to have expert medical testimony in support of Dr Wood. Dr Ninian Bruce was therefore asked to examine the boy and to report. After the examination Dr Bruce informed B that he could not support Dr Wood, and B then asked Dr Bruce to communicate his views to the pursuer's senior counsel. This Dr Bruce did. Ultimately counsel decided to rely on the medical evidence of Dr Wood alone. When the tutor ad litem had been appointed, B sent to him the closed record and the precognitions, including Dr Wood's written report. Mr Prain, who devoted great care and attention to the interests of his ward, drew up a most able and exhaustive memorandum dealing with the difficulties of the case. This memorandum was addressed to counsel, and submitted specific questions for their consideration. There is no evidence that it was ever shown to B, and he was not present when a consultation took place between Mr Prain and counsel for the pursuer on the 3rd of May 1934. After that consultation the tutor ad litem signed a minute in the usual form adopting the pleadings. In these circumstances the Committee find B guilty of failure of duty, because he did not ascertain whether Mr Prain was satisfied with the documents submitted to him and whether in his opinion there was a reasonable prospect of success. They also find that he deliberately omitted to send certain documents, and withheld the information that Dr Bruce had been consulted and could not support Dr Wood. I have read the evidence without being able to find in it anything which tends to show that B was in any of these matters guilty of deliberate misconduct, and it is with deliberate misconduct that we are concerned. Mr Prain's communications about the merits of the case were with counsel, and senior counsel at least was fully informed of the most material point, that Dr Bruce could not support Dr Wood. The documents which B is said to have deliberately withheld are of no real importance. The first is the letter of Dr Wood which accompanied the written report obtained from him. It discloses nothing which was not apparent to anyone who read the report itself with reasonable care, and I see no reason to think that dishonesty should be inferred from the fact that B did not send it to Mr Prain. The second is the police report on the accident, but this report was not an eye-witness's report and was not evidence. It was no doubt based on statements taken from eye-witnesses, and it was probably obtained for the purpose of ascertaining the names of the eye-witnesses. After these witnesses were precognosced it ceased to be of importance. The third is a sketch which was made by A's brother, who took the precognitions, and gives his impression of the locus and of the situation of the various vehicles at the time of the accident. It is difficult to see what value it possessed. But the complete answer to any charge based upon it is that B seems never to have seen it or to have known of its existence. The last document is a memorandum for counsel drawn by a clerk in A's office, and it is an epitome of the precognitions. It is difficult to understand how a dishonest solicitor could suppose that, if the precognitions were sent, the withholding of this document could mislead Mr Prain. I am therefore of opinion that no charge of dishonesty or professional misconduct can be successfully based on B's dealings with the tutor ad litem.

The last paragraph of the report deals with a conversation between B and Mr Ross, the solicitor for the defender, which took place in the Small Debt Court before the closing of the record. Mr Ross says in his evidence that he asked B if he was going to accept a tender of £15 and small debt expenses, which had previously been made by letter. He says that B replied:

"No. Wait till the record is closed and then we will consider £30 or £40."

B's evidence is that he would not say a thing like that, that Mr Ross and he are on friendly terms and sometimes chaffed each other, and that, if a thing like that was said, it could only be a joke. He subsequently says that he would rather settle after the closing of the record than before, because there are more fees after the trial has been fixed. This presumably refers to the regulation then in force that the expenses of taking precognitions are recoverable from the unsuccessful party only after an interlocutor approving of issues or allowing a proof. These expenses, in the event of an earlier settlement by acceptance of tender of a sum with expenses, are recoverable by the solicitor from his client. The evidence does not prove that B seriously said to Mr Ross that he would settle for £30 or £40 after closing, and I think that the probabilities are against his having done so. B's general attitude, as explained by him in the witness-box, does not command my unqualified approval. But it would not justify a finding that B was governed by his own interests and not by the interests of his client in considering whether a case should be settled before or after an issue has been approved. It is certainly in the client's interest that any settlement should be made in terms or upon conditions which entitle him to recover expenses from the opposing party. It may be that B was not uninfluenced by the consideration that a settlement by acceptance of a tender after the approval of issues was also in his interest. But that is a point in which his interest was not in conflict with his client's interest.

There were some matters put forward by counsel for the complainers in support of the general charge of misconduct. These were all presumably before the Committee, and the Committee have not founded on them as evidence of misconduct. It is not necessary to reconsider them now. In my opinion they were all subsidiary to the main issue and inconclusive in themselves.

I therefore reach the conclusion that the appeal should be allowed and that the appellants are entitled to have the findings of the Committee recalled. It is right to add that the Court and the profession at large are greatly indebted to the Committee for the care which they have bestowed on the case and for the report which they have lodged. Had I agreed with the Committee in the result I should have considered the penalty imposed by them by no means too severe, and even that they would have been well warranted, if they had chosen, in taking a graver view.

LORD ANDERSON .—The appellants appeal against the findings of the Discipline Committee set up under the provisions of the Solicitors (Scotland) Act, 1933, whereby each appellant was found guilty of professional misconduct. The Committee, proceeding under the provisions of section 28 of the Act, had censured the appellants for the alleged misconduct. Under the appeal to this Court which the section allows, it is, in my opinion, open to the appellants to challenge the Committee's findings on any ground recognised in law, and in particular to maintain that the evidence which was before the Committee did not warrant them in pronouncing the findings complained of.

It is important, at the outset, to note who were the complainers and why they complained. The complaint was not brought by the client, nor by the tutor ad litem who represented him, alleging neglect of the interests of the pursuer. Nor was it made at the instance of the Court on the footing that the forms and procedure of the Court had been abused. The complaint was made by the Insurance Company who were defending the action on behalf of the insured defender. This Company suggest that the complaint was made in the public interest, but the evidence rather indicates that the real reason for the complaint was that it was thought the defence had been prejudiced by the actings of the appellants in raising and prosecuting the action. The Company were, of course, quite entitled on this ground to bring their complaint, but they cannot expect it to receive the same respect and sympathy as if it had the disinterested origin which is alleged.

A charge of professional misconduct involves an accusation of dishonour, and may import an act of crime. A finding of professional misconduct almost inevitably spells professional ruin to the person convicted. Such a charge ought therefore, in my opinion, to be established by such evidence as would have been essential had it been formally charged as a crime. The question for the Court thus, seems to be this—Had the Committee such evidence before them as would have warranted a judge or a jury in convicting of crime? I have been unable to find in the proof any positive evidence which justifies the finding of the Committee. Mr Patrick practically conceded that this was so, but he endeavoured to justify the finding as being a legitimate inference from certain irregularities which in themselves did not constitute professional misconduct. Each of these irregularities, however, was capable of an explanation which was consistent with innocence, and therefore any sinister inference based on these acts was nothing better than suspicion, which can never substantiate a quasi-criminal charge.

I have no doubt that the complainers conceived that, on a recovery of documents, a case similar to that of Mackersy might be disclosed. When, however, the complainers ascertained that precognitions had been duly taken, and that thereafter the case had been placed in the hands of counsel, they ought, in my opinion, to have abandoned the complaint. Again, when the Discipline Committee ascertained that the conduct of counsel was being considered by the Dean of Faculty and his Council, I think that they should have sisted procedure to await the result of that investigation. Had they done so, I can scarcely conceive that they would have condemned the subordinates after they had learned that the principals had been exonerated.

The charge of initiating proceedings without any precognitions having been taken was the most serious allegation made against A, but several other charges were also made against him. It was said that, on the precognitions, he was not justified in instructing an action to be brought in any Court. I do not agree. The precognitions disclose a case in which, in broad daylight, at a quiet hour of the day, the boy Low was knocked down by the defender's motor lorry. This raised a presumption of negligence—Clark—and called for an explanation from the motorman. It was, in my opinion, a proper case in which to invoke the judgment of a Court of law. Next, it was suggested that the case was unsuited, on the ground of value, for trial by jury, and that the object of choosing the Court of Session was to concuss the defender into settling. A explains that it would have paid him better to take the case in the Sheriff Court, but that he chose the Court of Session because he thought his client would get a larger award from a jury. I see no reason to doubt the honesty of this explanation.

The only other matter with which A is charged is also made a point of dittay against B. The Discipline Committee hold both agents responsible for the pleadings in condescendence 3 as finally adjusted, and express the view that these pleadings were not justified by the precognitions. Two rejoinders were made by the accused. They maintained, and in my opinion rightly, that the precogenitions did justify the form of the pleadings; they also pleaded that counsel, and counsel alone, were responsible for the pleadings as ultimately adjusted. This latter answer is, in my opinion, conclusive. No doubt the agents, both town and country, ought to read the adjusted pleadings to ensure that no mistaken averment of fact has been made; but, after counsel has been instructed to adjust, the agents have neither a right nor a duty to alter the form of the pleadings, as that has been determined by counsel. In short, the employment of counsel, so far as the form of the pleadings is concerned, is a complete protection to the agents. As regards A, therefore, the complaint fails.

With reference to B, the Discipline Committee have found him guilty of professional misconduct in respect of two matters which were not charged against him in the complaint. One was that he deliberately concealed from the tutor ad litem the existence of four documents which he had in his possession, and that he did this for the purpose of influencing Mr Prain's mind. This is a very serious charge, which could be substantiated only on clear evidence. In my opinion, there is no evidence to support it. B depones that he was asked to send the tutor ad litem the closed record and precognitions (including Dr Wood's report), and these were duly sent. It was suggested that he ought also to have sent (1) a rough sketch of the locus; (2) Dr Wood's covering letter forwarding his report; (3) the police report; and (4) A's memorandum of instruction to counsel. As to (1), it is proved that it never was in B's possession; as to (2), this letter was of no use unless it qualified the report, which no one maintains that it did; as to (3), the police report was not evidence, but was merely the conclusion drawn by the officer who saw the witnesses; as to (4), the original memorandum was superseded by the revised precognitions. The four documents were thus manifestly useless for the purposes of the tutor ad litem. But, even if they were not, where is the evidence that they were wilfully and deliberately retained and concealed by B? There is none; there is nothing but surmise and suspicion.

The other act of misconduct on the part of B is based on an alleged statement by him to Mr Ross to the effect that he would consider a settlement only after the record had been closed. On this foundation, which is not admitted by B, the Discipline Committee have based the conclusion that B "was considering the case from his own point of view and not from that of his client." The record was closed on 28th November 1933. On 18th October 1933 B made an offer for settlement of the action. This seems to show that any remark made to Mr Ross must have been of a general nature and not referable to the pending action.

It follows that the complaint against B also fails.

In the earlier cases, such as Mackersy and Officer, there is no difficulty in pointing to the positive evidence of misconduct. There is, in these cases, proof of such abnormality in the matter of practice that the conclusion of misconduct cannot be avoided. In the present case, apart from two alleged irregularities to which I shall advert, there is nothing abnormal; everything is usual and normal in the conduct of the cause. The action was speculative, but quite honest and honourable, and of a type familiar to everyday practice. Precognitions were taken at the outset by one who had skill in precognoscing, and the papers were passed on to counsel, who took charge of the case until the jury gave their verdict. If there was misconduct, it certainly did not obtrude itself. These features seem to differentiate this case from all others where misconduct has been found.

The two irregularities—or apparent irregularities—to which I alluded were these: (1) That it does not appear from the books of the accused nor from the oral evidence how A came to be instructed to take proceedings. This, however, was not made a point of dittay, and the accused accordingly did not adduce the evidence of his brother, who could have given the necessary explanations. Nor did the Committee insist (as they might have done) on A's brother, who was in attendance, going into the witness-box. This matter thus remains unexplained. (2) The other suggested irregularity consisted in this—that A, who was not qualified to practice in the Court of Session, instructed junior counsel to prepare a summons instead of employing B to give the instructions. But these, if indeed they were irregularities, were mere irregularities of practice, and such a case as In re Mayor Cooke shows to what distance irregularities may be carried before they are transformed into misconduct.

Although I am for recalling the finding of the Discipline Committee, I am far from thinking that their investigation has been useless. On the contrary, it has been the means of directing attention to those irregularities of practice which have been dealt with by your Lordship. These are matters with which, in my opinion, the Discipline Committee under their statutory powers may competently deal, and, had they contented themselves with expressing disapproval of these irregularities, I should have had no difficulty in supporting their decision.

LORD MORISON [In his Lordship's absence his opinion was read by Lord Fleming].—I agree with your Lordship. In particular, I respectfully agree with your Lordship's observations in regard to the functions and duties of the Discipline Committee established under the Solicitors Act of 1933. I desire to add a few observations in regard to this appeal.

The appellant A was the local agent and the appellant B was the Edinburgh agent in an action of damages raised on behalf of a minor named Arthur James Low against James Bruce. It was alleged that the boy—eight years of age—had been knocked down and injured, through the fault of Bruce's servant, while crossing a road. It is not clear how the appellants came to act for this boy and his father, but no suggestion of professional misconduct is made in that regard. Immediately after the accident A's brother obtained an excerpt of the police report and took precognitions of the eye-witnesses of the accident, Thomson and M'Ghee, and two others. Towards the end of August or beginning of September 1933 A laid these papers before junior counsel for his opinion and advice. There was some doubt as to whether there was a reasonable prospect of success in the proposed action, and as to whether the case was to be brought in the Court of Session. The junior counsel consulted considered both points and prepared a summons for the Court of Session. Although no opinion was expressed in the precognitions as to the cause of the accident, junior counsel considered there were facts and circumstances, in the precognitions, which warranted the inference that Bruce's servant's negligence was the cause of the accident. There is room for some doubt, I think, on both points; but there is no suggestion, and no room for the suggestion, that junior counsel did not, in drafting the summons, act in good faith and in the discharge of his duty as he conceived it to be. Thereafter the conduct of the case passed into the hands of the appellant B. The record was adjusted and amended in accordance with the directions of senior counsel. A tutor ad litem (Mr Prain) was appointed to the pupil pursuer by the Court. He wished to be satisfied as to the case, and consulted the pursuer's counsel on this subject. He made no request for information from B. In point of fact Mr Prain says that he never had any conversation with either of the appellants. As the result of Mr Prain's conferences with the pursuer's counsel he was sisted as tutor, and the case proceeded to trial in ordinary course, B acting throughout the conduct of the case on the directions of counsel. The pursuer's counsel led the evidence of the witnesses who had been precognosed, and they spoke to the facts contained in their precognitions, as taken by A's brother.

At the conclusion of the pursuer's evidence the learned Lord Ordinary refused to allow the case to go to the jury, and directed them to return a verdict for the defender. I think it was unfortunate that all the facts connected with the accident were not brought out for the jury's consideration. Modern practice in running-down cases is certainly in favour of hearing the evidence out—especially having regard to the views of the law applicable to such cases laid down in the recent case of M'Lean v. Bell .

After the verdict had been applied and expenses awarded against the pursuer, the Insurance Company who had acted for the defender Bruce made a demand upon B that he should pay them the sum of £105 in name of expenses, and they thereafter intimated that, if he paid this sum, the Insurance Company would accept it and take no proceedings of any kind against him. It is plain from Mr Ross's evidence that this offer was an offer to accept the sum as "hush money." I consider the Insurance Company's conduct in this matter was extremely discreditable, and, were it not that your Lordships are to absolve B from the allegations made against him, I should not have been prepared to allow this matter of the £105 to rest without some further investigation. B ignored the Insurance Company's requests for money. They thereafter, without either notice or additional inquiry, lodged this application with the Discipline Committee, in which they make serious charges of professional misconduct against both appellants.

In support of this application an official of the Insurance Company deponed, inter alia, as follows:

"There was in fact no information in the hands of either of the said [B] or the said [A] which could in any way warrant the … statement [that Bruce was liable in damages]. … It is believed that the said proceedings were commenced by the said [B] and [A], who were both engaged in the preparation thereof, without taking any steps to see whether any statements secured from witnesses justified the averments made in the summons."

Statement 10 of the official's affidavit proceeds:

"The raising and prosecution of the said action was a gross abuse of process deliberately designed and persisted in by the said [B] and [A] in an endeavour to extract from the defender's Insurance Company a settlement which would cost them less than the successful defence of the said action. The precognitions originally obtained by them demonstrated, it is believed and averred, that there was no justification for the initiation of said proceedings, and, on the contrary, that the case ultimately made in defence was substantially accurate."

It is, in my opinion, plain that these statements—so far as substantial—are quite untrue. I think they ought not to have been made. I am not surprised that learned counsel for the Insurance Company, at the outset of the inquiry, gave up all complaint in regard to the precognitions taken on the instructions of A, while it is established, by uncontradicted evidence, that the summons was advised and drawn by junior counsel on the information contained in precognitions which accurately expressed the evidence which the witnesses were to give. I think the attention of the Committee had not been sufficiently directed to the importance of these facts. In my opinion, these facts entirely exonerated the appellants from the responsibility of raising an action in the Court of Session. In dealing with the responsibility of a law agent conducting a litigation Lord President Inglis said:

"But above all in importance, as affecting the present question, is the undoubted special rule that when the conduct of a cause is in the hands of counsel, the agent is bound to act according to his directions, and will not be answerable to his client for what he does bona fidein obedience to such directions"

—Batchelor v. Pattison and Mackersy, at p. 918. It is interesting to observe that this case was recently quoted with approval by Lord Atkin in the Privy Council in Sourendra Nath Mitra v. Srimati Tarubala Dasi, at p. 193.

Throughout the conduct of the case the appellants acted exclusively on the advice and directions of counsel. I was not surprised to learn that, in the complaint which this Insurance Company made to the Dean of Faculty and his Council against the counsel who had advised the appellants, the Dean and his Council completely exonerated them.

The Discipline Committee themselves very properly made some inquiry ex proprio motu, and pointed out some irregularities in the conduct of the litigation. It will be the duty of law agents who conduct speculative actions to give effect in future to the Discipline Committee's rulings on these subjects. But, as Mr Patrick candidly admitted, mere irregularity or mere negligence is not misconduct within the meaning of the statute. The cases show that some dishonourable act or improper motive is essential in an act of professional misconduct.

In this case I desire to express my regret that I feel bound to differ from the Committee. I think the Insurance Company's affidavit was most misleading, and that, after their counsel had withdrawn the most serious allegations contained in it, the Committee should have called upon the Company to formulate definite allegations of misconduct.

LORD FLEMING .—The Discipline Committee constituted under Part V of the Solicitors (Scotland) Act, 1933, have entrusted to them duties of great importance and responsibility. I agree with your Lordship that the Court and the public are indebted to the Committee for the care and attention they have given to this case. But against the decisions of the Committee on disciplinary questions an appeal is given to this Court, and in such an appeal it is our duty to review their decision, and, if we are unable to agree with it, to give the appellant the relief to which he is entitled. No doubt the Court will not readily or lightly interfere with the Committee's decisions, particularly in cases raising questions with regard to the propriety of professional conduct in connexion with legal business of a character of which the members of the Court have little or no personal knowledge. This appeal relates, however, to the conduct of solicitors in relation to an action in this Court, and raises questions with regard to the relative duties and responsibilities of counsel and agents.

The action which gave rise to the present proceedings was of a speculative character. Such actions are well known in our practice, and they have repeatedly received judicial recognition. Properly conducted, they are, I believe, to the public benefit, and their abolition might result in a denial of justice to many litigants. But it is, I think, well understood in the legal profession that the conduct of such actions imposes special duties upon counsel and agents. In the first place, it is the duty of counsel and agents, before giving their professional assistance in the conduct of such actions, to satisfy themselves that there is a reasonable prospect of success. In general, the agent's first duty is to take careful precognitions from the material witnesses. It is then the duty of counsel and agent to consider whether the facts spoken to by the witnesses in their precognitions render success probable. If it is intended to take proceedings in the Court of Session, it is also necessary for them to consider whether the action is suitable for trial in that Court. A speculative action may be used as an engine of oppression, and it is the duty of both counsel and agent to see that any such action in which they are engaged is not so used. It is not proper to raise an action of damages in this Court unless there is a reasonable prospect that the verdict will be for more than £50. If, however, the conditions which I have referred to are satisfied, it is quite legitimate to give weight to the fact that in the Court of Session the action will probably be tried by a jury, whereas in the Sheriff Court it would be tried by way of proof. If it is deemed proper to raise the action in this Court, the next question that requires consideration is the averments to be made in the condescendence. Neither agent nor counsel is entitled to make any averment without reasonable grounds therefor. This, however, does not mean that every averment must be warranted by a specific statement in a witness's precognition. A witness to a road accident may quite honestly express the opinion that the driver of a motor vehicle did everything possible to avert a collision, and yet a judge or a jury may properly infer from the facts and circumstances to which that witness speaks that the driver was at fault in one or more respects. Specific fault may sometimes be inferred from precognitions which never mention that fault in terms. As regards the relative functions and duties of agents and counsel, it is the exclusive function of the agent to inquire into and ascertain the facts, and counsel has no responsibility in this matter. But, if counsel is instructed to draw or revise the summons, it is his duty to consider not only whether it is a proper action to raise, but also whether the averments are justified by the information before him. The averments in the summons, the adjustments, and in particular the inferences of fault which may be drawn from the facts, and the pleas in law, are peculiarly the province of counsel. If, however, the agent observes anything in the pleadings which he conceives to be an error or mistake, I think it is his duty to call the attention of counsel to it. But, in the last resort, the responsibility for the pleadings is with counsel and not with the agent, and the agent is exempted from responsibility by having acted under counsel's instructions. The same remark applies to the question of whether the action is suitable for this Court.

I now turn to consider briefly the grounds upon which the Committee considered that the appellants' conduct was deserving of censure. As regards A, they are: (1) that the precognitions disclosed no case of negligence and did not warrant the raising of any action; (2) that the statements made in the condescendence were not consistent with the precognitions; and (3) that the raising of the action was done deliberately for the purpose of concussing the defender into settling. It was originally alleged by the complainers that the methods adopted in taking the precognitions were reckless and inadequate, but this allegation was withdrawn before the Committee. It is now admitted that they were carefully and skilfully taken. In my opinion this admission goes a long way to exonerate the appellants from the charges against them. With regard, however, to the charges still remaining against A, I have come to the conclusion that it was reasonable for him to take the view (1) that the action would succeed; (2) that the averments made were consistent with the precognitions; and (3) that the action was suitable for the Court of Session and that a conclusion for £100 was appropriate. To my thinking, upon the precognitions the action was on the border line both as regards its merits and as regards its suitability for trial in this Court; but I think an agent or counsel might quite reasonably believe that it would succeed, and that a verdict for more than £50 would be obtained. It is, of course, true that the action was ultimately withdrawn by the presiding judge from the jury, but it by no means follows that there was any failure of duty on the part of either agents or counsel. I do not consider it necessary to consider in further detail the complaint against A, for in my opinion he is completely freed from all responsibility by the facts (1) that he took satisfactory precognitions, and (2) that thereafter he acted under the advice of counsel. It is to be borne in mind that junior counsel accepted the complete responsibility for the conduct of the action from the time that he was instructed to draw the summons. I am accordingly of opinion that the appeal of A must succeed.

As regards the appellant B, much of what I have already said applies to his case also. There are two points, however, which require special mention. The first is that it is alleged that he failed to send a number of documents to Mr Prain, the tutor ad litem appointed by the Lord Ordinary. Mr Prain, who seems to have felt some doubt about the case, prepared a very careful memorial for counsel in which he raised a number of questions. The memorial was handed by him to counsel, and he had a meeting with both senior and junior counsel which resulted in an amendment of the record. Thereafter he signed the usual minute to the effect that he had obtained all necessary information, that he adopted the pleadings, and that he had no further remarks to make at that stage. B knew that Mr Prain had had a meeting with counsel in the case, and, as the usual minute was signed by him as tutor ad litem, I think he was justified in assuming that Mr Prain did not desire any further information. The Committee have, however, held that B deliberately withheld the following documents from the tutor ad litem—the sketch, A's memorandum, the police report, and Dr Wood's covering letter. As regards the sketch and the memorandum as it is admitted that entirely satisfactory precognitions were before Mr Prain, I fail to understand the significance attached to them. As regards the sketch, there is the additional point that it appears never to have been in B's hands. The police report was not evidence, and I am unable to see that it would have been of any real assistance to Mr Prain. No good purpose could have been served by precognoscing the police, for it is not suggested that any member of the police force witnessed the accident. As regards Dr Wood's report, it is not usual to send to counsel the covering letter which an expert witness sends to the agents along with his report, and here I can find no reason why B should have thought it necessary to send it to Mr Prain. The covering letter no doubt shows that Dr Wood had derived his information, not from the injured boy himself, but from his relatives; but Mr Prain had no difficulty in inferring this from the report itself. Nor can I hold that B was blameworthy because he did not inform Mr Prain that Dr Bruce had been consulted and had refused to support Dr Wood's views. The question of further medical evidence was raised by Mr Prain's memorial, and I think B was justified in supposing that that matter had been dealt with at the consultation which Mr Prain had with counsel in the case. Another point which is made against B is that he expressed himself as not anxious to settle the case until after the record was closed. I think the language used by B with reference to this matter was rather unfortunate; but it is not alleged, and it is certainly not proved, that a settlement of the action was delayed for the purpose of conferring a benefit upon the solicitors. I am accordingly of opinion that B's appeal succeeds.

As regards the minor irregularities alleged against the appellants, I agree that these do not amount to professional misconduct, nor do they justify the inference that the appellants were throughout acting from an improper motive. It is, however, proper that, so far as is possible, the ordinary practice which obtains between agents and counsel should be strictly followed in speculative actions, and that, in particular, formal letters of instructions should be sent to counsel.

Counsel for the appellants thereupon moved the Court to find the respondents liable to the appellants in the expenses of (1) the appeal, and (2) the proceedings before the Discipline Committee. Counsel for the respondents opposed the motion.

LORD PRESIDENT (Normand).—Questions of expenses have been raised, and the first question is whether the expenses of the proceedings before the Committee ought to be awarded against the complaining Insurance Company.

Now, the Discipline Committee are a statutory body, and their powers must be those, and those only, which are conferred upon them by the Act of Parliament which constitutes them. There is given to the Discipline Committee by the Act of Parliament an express power to award expenses against a solicitor if the Committee have found him guilty of professional misconduct, but there is no express power given to the Discipline Committee to award expenses against a complainer who has been unsuccessful in his complaint. We were asked, either as a matter of justice or fairness, or as a matter of implication, to read into the Act a power to award expenses against the complainers; but I am afraid that that is not a legitimate methods of construing the Act of Parliament. The express conferring of a power to award expenses against a solicitor makes it clear, I think, that we cannot imply a power to award expenses against other persons.

We were referred to a rule relating to procedure before the Committee which dealt with one aspect of expenses when a complaint is withdrawn. I do not express, in this case, any opinion on the question whether that rule is intra vires or ultra vires, because it is not fully before us. But I am satisfied that the Committee have no statutory power to award expenses against an unsuccessful complainer after the conclusion of the investigation; and if there is no power in the Discipline Committee to do that, there is equally no power given to us to award expenses of the proceedings before the Discipline Committee against the complainers.

On the other hand, I think that we are masters of the expenses of the appeal before us, and if there was any doubt about it, it appears clear from the Rules of Court that this power is intended to be vested in us. I accordingly move your Lordships to allow to the two solicitors their expenses against the complaining Insurance Company in the proceedings which have taken place before this Court.

LORD ANDERSON .—I am of the same opinion. I have no doubt that this Court, as the supreme Scottish Court, has an inherent power either to review judgments as to expenses or to declare how expenses should be awarded in all inferior or subordinate Courts of law in Scotland. But the Discipline Committee are not a Court of law but an administrative body, and therefore our inherent power to which I have alluded does not seem to apply to that body. It appears to me that the powers both of this Court and of the Discipline Committee as to expenses have been expressly prescribed by the Act of 1933 in the sections to which we were referred, and in particular sections 25 and 28.

Now, if these powers as to expenses conferred upon the Committee and upon the Court are looked at, it would seem that neither the Committee nor the Court has power to grant the expenses incurred before the Discipline Committee which are now moved for by Mr Duffes. Therefore I agree with your Lordship in holding that it has not been made out that we have jurisdiction to deal with those expenses, and that we ought not to do so, but ought to confine our judgment to the expenses incurred in this appeal.

LORD FLEMING .—I am of the same opinion, and for the same reason.