Scottish Court of Session Decisions

This petition to the nobile officium by Gordon Thomson and Maria Thomson comes before the court on a motion for a first order for service. Among those upon whom service is sought are the President and Council of the Law Society of Scotland. It appears, however, that a copy of the petition was faxed to the Law Society some days ago and in any event the existence of the petition was reported in the press. The Law Society were accordingly represented at the hearing by Mr. Macdonald, Q.C.

The petitioners were the subject of proceedings in the Solicitors Discipline Tribunal, the hearing in which took place over several days in 1994 and 1995. On 22 March the Fiscal and the petitioners reached a substantial measure of agreement and the proceedings were adjourned until 5 April 1995. After sundry procedure, the Tribunal issued an interlocutor on 7 April and on 8 June 1995 they issued their formal Findings which comprised seventeen numbered paragraphs. In due course the petitioners appealed to this court. Their appeal came before an Extra Division who allowed it and remitted the matter to the Tribunal. In the opinion delivered by Lord Prosser, in a passage which we do not repeat but which was based on the submissions made at the hearing of the appeal, the court indicated that they were not satisfied that all the allegations of personal dishonesty against the petitioners had been withdrawn. In the present petition the petitioners state that the position of the Fiscal at the original hearing before the Tribunal was, and the position of the Fiscal at the new hearing is, that all such allegations have been withdrawn. The petitioners therefore ask the court to exercise the nobile officium and inter alia:

However great the powers of this court may be, we cannot rewrite history. Nor can any interlocutor recall the words of an opinion or unsay what the court has said in an opinion which has been issued. The petition is therefore self-evidently incompetent.

None the less, as the petitioners point out, the opinion of the court has been published on the Internet and elsewhere. If the Law Society's position is actually that the Fiscal at the original hearing withdrew the allegations of personal dishonesty and that the Society do not allege personal dishonesty, then it is proper that this state of affairs should be given equivalent publicity. In the course of the short hearing we accordingly asked Mr. Macdonald to clarify the position of the Law Society. He readily did so. Based on what he told us, for the avoidance of doubt, we record that the Law Society of Scotland agree that the findings of the Discipline Tribunal issued on 8 June 1995, so far as inferring personal dishonesty on the part of the petitioners, did not reflect the pleas tendered by the petitioners and accepted by the Fiscal and those findings should therefore not have been made by the Tribunal.

When we explained that we would issue an opinion recording the stated position of the Law Society, Mr. Mayer, who appeared for the petitioners, indicated that he would not insist in his motion for a first order.