Scottish Court of Session Decisions

The Petitioners Gordon Coutts Thomson and Maria Teresa Thomson appeal in terms of section 54 of the Solicitors' (Scotland) Act 1980, against a decision of the Scottish Solicitors' Discipline Tribunal, striking them off the Roll of Solicitors in Scotland. The Petitioners were in practice together as solicitors, and are husband and wife.

On 30 June 1994, a Complaint was issued against the present Petitioners and another solicitor who was a partner with them, making averments of professional misconduct against each of the three Respondents. The Complaint contained 19 numbered Articles, followed by a Conclusion averring that the Respondents had been guilty of professional misconduct and of providing an inadequate professional service, and seeking inter alia the imposition by the Tribunal of suitable penalties. Of the 19 Articles set out under the general heading "Statement of Facts", Article 1 is a Preamble, including at paragraph 1.2 a general account of the Respondents' business and the way in which it was operated. Each of Articles 2 to 15 refers to a particular individual, and contains averments of conduct relating to that individual. Article 16 relates to dealings with Lothian and Borders Police; and Article 17 is a substantial Article, relating to dealings with the Scottish Legal Aid Board. Article 18 contains averments of duty, and Article 19 sets out the averments of professional misconduct, with specific references back to particular preceding Articles and paragraphs within these Articles. Shortly before the conclusion of the proceedings before the Tribunal, a second Complaint was issued, against the present Petitioners, in similar form, with a Preamble, Articles relating to a number of individuals, averments of duty and of professional misconduct, and a Conclusion averring guilt of professional misconduct, and seeking imposition of penalties. This was dealt with by the Tribunal along with the original Complaint.

It is not necessary to go into the procedural history of the matter in any great detail. After certain delays the initial Hearing before the Tribunal took place on 15 November 1994, after which certain parts of the first Complaint were dismissed. On 10 January 1995, and subsequent dates, evidence was heard. On 22 March, following indications that there was a considerable measure of agreement between the Fiscal and the Respondents, the Tribunal adjourned the hearing to 5 April 1995. At the Hearing on that date, the second Complaint came before the Tribunal, and both Complaints were amended in various ways, by consent. The Tribunal were informed that each Respondent admitted specified charges in the two Complaints, and evidence was heard in relation to one outstanding charge. That matter having been dealt with, the Tribunal heard submissions by the Fiscal and the solicitors for Mr. and Mrs. Thomson on Thursday 6 April 1996. The Hearing concluded on 7 April, when the Tribunal issued an Interlocutor which inter alia ordered the names of the Petitioners to be struck off the Roll of Solicitors in Scotland.

Thereafter, on 8 June 1995, the Tribunal issued their formal Findings. The Findings consist of 17 numbered paragraphs. Of these, paragraphs 1 to 9 contain a short account of the background and procedural history. Paragraph 10 states the facts which the Tribunal found to be admitted or established: these are set out in 92 numbered sub-paragraphs, extending to some 60 pages of the Findings. In the remaining paragraphs of the Findings, Finding 11 deals with the particular matter upon which evidence had been heard; Finding 12 finds Mr. Thomson guilty of professional misconduct in respect of certain of the charges specified in paragraph 19 of the original Complaint and paragraph 13 of the second Complaint. Finding 13 finds Mrs. Thomson guilty of professional misconduct of certain charges specified in paragraph 19 of the original Complaint and paragraph 13 of the second Complaint. Finding 14 deals with the third Respondent, finding him guilty of professional misconduct in certain respects. And finally, Findings 15 to 17 set out the Interlocutor and record the intimation of the Interlocutor and Findings. Appended to the formal Findings is a Note by the Tribunal, extending to some 50 pages, certain passages in which, when read with the Tribunal's formal Findings and a Joint Minute lodged by the parties in the course of the Tribunal Hearings, lie at the heart of the present appeals. While the Petition is a single one, in the names of both Mr. and Mrs. Thomson, each of them is of course appealing in respect of the Findings specifically made in relation to him or her. However, the major issues raised by the appeal affect both Mr. and Mrs. Thomson, and in the presentation of the appeals, apart from submitting that certain propositions were perhaps of greater force in her case, Mrs. Thomson simply adopted the contentions advanced by Mr. Thomson.

It is not necessary to refer in detail to the terms of either the Petition or the Answers. The Petition raises quite a wide range of issues; but when presenting the appeal, Mr. Thomson focused on four specific propositions, and counsel for the Respondents was able to identify a number of principles and issues which were not disputed. In the event, it does not appear to us that there are any real conflicts of principle. Such problems or elements of dispute as remain arise rather from the quite complex nature of the Complaints, the way in which matters came to be resolved after a substantial body of evidence had been heard, and the somewhat intractable problem of relating matters which the parties had in one way or another agreed to matters which remained for consideration and decision by the Tribunal. There is no question of the Tribunal having erred, or having departed from what the parties agreed, in their identification of the specific charges to which Mr. or Mrs. Thomson had pled guilty. Correspondingly, the Petition does not seek to interfere in any way with what one may call the "convictions" - these are as set out in paragraph 12 of the Findings for Mr. Thomson, and in paragraph 13 for Mrs. Thomson. What the Petitioners ask to have quashed is the "sentence" - the decision to strike the names of the Petitioners off the Roll of Solicitors in Scotland. What is said is that in reaching their decision to impose that particular sentence, the Tribunal erred or acted unreasonably in a number of ways, so that the decision represents an unreasonable exercise of their discretion. It is of course accepted that if the decision is quashed, it will remain necessary that an alternative "sentence" be considered and imposed.

In support of the submission that we should quash the Tribunal's decision to strike the Petitioners' names off the Roll, Mr. Thomson advanced the following four propositions:

2. The Tribunal had wrongly included in their Findings of Fact, and had wrongly

3. The Tribunal having heard evidence, had wrongly proceeded to make Findings

4. The Tribunal had failed to take account of certain material and relevant

The first three of these propositions are to some extent interlinked. As regards the fourth proposition, Mr. Thomson acknowledged in the course of his submissions that it was concerned only with a failure to give sufficient weight to certain matters; and he identified the failure in question as a failure which would be in point only if he were unsuccessful in relation to his first proposition. It related to the Tribunal's handling of matters advanced in mitigation, and Mr. Thomson did not in the event expand upon this matter.

The question of personal dishonesty or fraud would plainly be an important one in any proceedings such as these. Article 19.6 of the first Complaint asserts that the Respondents are in breach of the general duty upon solicitors to act honestly at all times (and in breach of Article 7 of the Code of Conduct) under six heads, (a) to (f). Head (a) relates to actings on behalf of Sean McGough, head (b) to misleading John Townsley and head (e) to dealings with Marc Williams, each with references back to earlier Articles. Head (f) relates to dealings with the Scottish Legal Aid Board, referring back inter alia to Article 17.6. But as appears from paragraph 11 of the Findings, Mr. Thomson was found not guilty (after evidence) of the charge under head (a) relating to Mr. McGough; and there is no finding of guilt under any part of Article 19.6, under either paragraph 12 or paragraph 13 of the Findings. Counsel for the Respondents informed us that it was not disputed that Article 19.6 had been departed from. Mr. Thomson submitted that this Article, and the earlier Articles in the Complaint in so far as they were directed to these charges, should accordingly have been entirely ignored by the Tribunal, and could afford no basis for treating Mr. or Mrs. Thomson as personally guilty of dishonesty or fraud. We did not understand counsel for the Respondents to dispute this: his position was rather that the Tribunal had not in any way relied upon Article 19.6 or the earlier factual Articles directed to it.

Mr. Thomson submitted that notwithstanding the Fiscal's departure from these charges, the Tribunal had made, and relied upon, Findings in Fact which had no relevance except in relation to the charges under Article 19.6, and should have had no place in any consideration of the charges of which the Petitioners were guilty. Reference was made to Findings 10(39) to (42), relating to Mr. Townsley; Findings 10(65) to (67) relating to Marc Williams; and a passage in the Tribunal's Note, at pages 80 to 81 of the volume containing the Findings and Note, in which the Tribunal refer to and rely upon these Findings in relation to Marc Williams. Further reliance on this episode was to be found in the Note at pages 121 and 122.

A particular issue in relation to dishonesty or fraud arises in relation to Article 17 of the first Complaint, which is referred to not only in charge 19.6(f), but also in charges 19.4 (referring to Article 17.6) and 19.10, 19.11 and 19.12 - none of these being charges relating to dishonesty. As appears from paragraphs 12 and 13 of the Findings, both Mr. and Mrs. Thomson were guilty of these charges. And that being so, it would be legitimate for the Tribunal to proceed upon the basis of those parts of Article 17 referred to in relation to each such charge. But Article 19.6 having been dropped, it was submitted that it was not open to the Tribunal to rely upon any part of Article 17 as implying personal fraud or dishonesty on the part of either Mr. or Mrs. Thomson. Mr. Thomson referred to passages at pages 109 to 110 of the Note as indicating that inferences of dishonesty had in fact been drawn: we shall return to these.

In addition to the fact that Article 19.6 was no longer in point, Mr. Thomson submitted that no implication of fraud or dishonesty could properly be read into any of the other charges to which the Petitioners had pled guilty on agreed terms: by letter of 18 April 1995, the Fiscal acknowledged "that I departed from all allegations of fraud having been committed by your clients", and that "I departed from any allegation of dishonesty by any of the partners" except in the case of the allegation which was found not proven. Moreover, by letter of 29 May 1995, the Secretary of the Law Society of Scotland had said that he entirely accepted that at the time of the final Hearing, the Society's Fiscal withdrew any allegations of fraud. While these statements were of course after the end of the Hearing, they showed that even if some other charge might in theory be construed as implying some kind of dishonesty, that implication should not be drawn, as it was no part of the agreed basis upon which matters had been resolved. One other post-Hearing matter which was relied upon by Mr. Thomson, as indicating that the Tribunal had been thinking in terms of personal fraud or dishonesty, was a press release issued by the Tribunal, referring to £30,000 of fees claimed as having been "repaid" to the Legal Aid Board. This was admitted in the Answers to have been inaccurate.

In addition to these submissions falling under his first and second propositions, Mr. Thomson submitted that there was a wider and somewhat different defect in what the Tribunal had done. This was expressed in his third proposition. In considering and reaching their decision to strike the Petitioners off the Roll the Tribunal had not limited themselves to what had been agreed between the Fiscal and Mr. and Mrs. Thomson. Quite apart from the specific issue of dishonesty and fraud, they had in their general assessment of the Petitioners' culpability relied upon evidence which they had heard, detrimental to and not accepted by the Petitioners, which had never been rebutted, because evidence was brought to an end when matters were resolved by agreement. It was submitted that the inferences which the Tribunal had drawn were in effect inferences of dishonesty, so that this third proposition effectively merged with Mr. Thomson's first proposition. But even if the inferences were not inferences of personal dishonesty or fraud, they were nonetheless detrimental to the Petitioners, and improper in so far as flowing from evidence which the Petitioners had not accepted, and which the agreement did not cover. The decision to strike the Petitioners off the Roll should therefore be quashed, and the matter sent back to a differently composed Tribunal, who should consider those charges of which the Petitioners were guilty having regard to the agreed terms upon which they had acknowledged their guilt, and upon nothing else.

As is apparent from the record of the proceedings, reaching agreement, and intimating the agreement to the Tribunal, was a quite complicated process. The position of the parties was presented to the Tribunal by a number of different mechanisms, which counsel for the respondents usefully described in some detail, but which we can summarise fairly briefly. The first element to be noted is of course that the Fiscal departed from certain of the charges contained in the Complaint. Secondly, however, it is to be noted that the Fiscal made numerous and substantial agreed amendments to the Complaint. As we have noted, the actual charges contained in Article 19 refer back to earlier factual Articles, or parts of such Articles, so that guilt of any charge, as charged, would entail guilt upon the basis of the alleged facts thus referred to in the charge. Amendments having been made, it would of course be inappropriate, in relation to any charge, for the Tribunal to proceed upon any basis other than the Complaint as thus amended. Thirdly, however, in addition to the amended Complaint, the Tribunal would be entitled to have regard to the matters which the parties had expressly agreed in the Joint Minute. In so far as these agreed matters are either incorporated in the Tribunal's Findings, or relied upon in their Note, Mr. Thomson did not suggest that there would be any problem other than that of matching the Tribunal's Findings and comments to their sources. Fourthly, however, it is apparent that both the Fiscal and the Petitioners' agent, in addressing the Tribunal, directed their attention to passages in the evidence itself. Counsel for the Respondents submitted that this confirmed what would in any event be the position, that a Tribunal is entitled to look at evidence which it has heard, notwithstanding that matters are resolved by the acceptance of pleas. He conceded, however, that where, as here, pleas had been accepted on a quite intricate basis of amendment to the Complaint, coupled with a Joint Minute, the Tribunal would not be entitled to supplement the agreed material by considering and relying upon passages in the evidence which had not been thus referred to in submissions, if these had been controversial and if the conclusion they were disposed to draw was contrary to the interests of the accused.

On behalf of the Respondents, counsel referred to Sharp v. The Council of the Law Society of Scotland 1984 S.L.T. 313, and in particular the passage at page 317 where the Lord President expresses the opinion, in relation to issues of professional misconduct, that "in every case it will be essential to consider the whole circumstances and the degree of culpability which ought properly to be attached to the individual against whom the complaint is made". This duty to look at all the circumstances, and to consider the degree of culpability, lay upon the Tribunal, whatever the parties might wish. It was a duty that they must fulfil, when carrying out their statutory responsibilities in terms of section 53(1) of the Solicitors (Scotland) Act 1980. Even if there was a "plea of guilty", it was for the Tribunal to be satisfied that any solicitor against whom a complaint had been brought was indeed guilty of professional misconduct. Their powers under section 53(2), including the power to order that the name of a solicitor be struck off the Roll, were exerciseable only if the Tribunal itself was satisfied, in terms of section 53(1)(a) that the solicitor had been guilty of professional misconduct (or that the requirements of subsection (1)(b) were fulfilled). The matters was thus not simply one of what the Fiscal and Mr. and Mrs. Thomson had agreed. It was for the Tribunal to make Findings of Fact, upon which their findings of guilt and their assessment of the degree of culpability could properly be based. The difficult question in the present case was as to what constituted a proper base for any Findings.

In relation to the question of dishonesty, counsel referred to the charge contained in Article 19.13, to the effect that Mr. and Mrs. Thomson were "in breach of their duty to respond promptly, fully and accurately to complaints correspondence from the Law Society" in respect of matters listed at heads (a) to (g) of that charge. This was not of course expressly a charge of dishonesty; but head (b) was "their response to A.C. Miller and Mackay's complaint set out in Article 5.4". Article 5.4 quotes from a letter written to the Law Society by another firm, which Article 5.4 states is believed and averred to have been written on the authority of Mr. Thomson and based on information supplied by him. The Article continues "Averred that this information was untrue. Averred that it was transmitted with a view to misleading the Society in relation to their handling of this complaint". Article 5.4 was the source of the Tribunal's Finding 10(42); and the passage in that Finding, where the letter in question was quoted and followed with a Finding that "This information was untrue. It was transmitted with a view to misleading the Law Society in relation to their handling of this complaint..." was a correct and indeed unavoidable Finding, in the light of Mr. Thomson's acceptance that he was guilty of charge 19.13, including head (b). While these were matters related to Mr. Townsley, they were not related to charge 19.6(b), which was concerned with a quite different matter of misleading Mr. Townsley himself, as set out in Article 5.2. And while the letter in question, containing untrue information, had been found to have been transmitted with a view to misleading the Law Society, that was again a quite separate matter from charge 19.6(f), which was concerned with those dealings with the Scottish Legal Aid Board outlined in Article 17.

Counsel accepted that the Tribunal could not make a finding of dishonesty, in relation to a charge where that element was not present or had been removed by the Fiscal, from the fact of guilt on another charge where dishonesty was involved. But that was not what the Tribunal had done. In relation to charge 19.13(b) the guilt flowed from the facts set out originally in Article 5.4 of the Complaint, and held to be facts in terms of paragraph 10.42 of the Tribunal's own Findings. They did involve personal dishonesty on the part of Mr. Thomson. It was acknowledged that the Fiscal, in his letter of 18 April 1995, said that he had departed from any allegation of dishonesty. But in relation to Article 5.4 and charge 19.13, he was wrong. As was plain from the record of proceedings for 6 April 1996, at pages 29 to 30, it was expressly in relation to "the Legal Aid Board Complaint" that the Fiscal in his submissions had said that he had departed from the allegations that there was fraud that could be imputed to the Respondents. That had led to some discussion of the particular issue of the altering of dates (a matter covered in Article 17.2 of the Complaint and Finding 10(7)). But the passage at the end of Finding 10(7) was to the effect that the dates in question were "fraudulently altered by someone within the Respondents' firm" and that "none of the forms was altered by any of the Respondents or with their knowledge". While the alteration of the dates "was done with a view to misleading the Board", this misleading and fraudulent conduct by others, without knowledge on the part of Mr. or Mrs. Thomson, was plainly not a finding that either of them had personally been guilty of dishonesty or fraud. And when that passage concluded with the sentence "The changing of each of the dates represented, in the circumstances, unconscionable behaviour by the Respondents", it was clear from the context that the Tribunal were not holding that Mr. or Mrs. Thomson had themselves changed any of the dates or been guilty of fraud. They were adopting what had been alleged as an alternative to fraud in Article 17(2) of the Complaint - that "Esto the changing of the date was not fraudulent it represented in the circumstances an unconscionable practice by the Respondents". (The word "represented" which is used both in the Complaint and in the Finding seems to us to be inappropriate: what is evidently being said is that the changing of the dates by others demonstrated or reflected unconscionable behaviour by the correspondents). It was clear from pages 35 to 36 of the Fiscal's submission that it was in this particular respect, rather than universally, that he was abandoning any allegation of fraud of dishonesty. The matter received further clarification at page 72 and page 86 ff., at the end of the Fiscal's submissions. None of this reduced the import of Article 5.4 and charge 19.13(b). And none of it indicated that the Tribunal (who had themselves raised doubts on the matter) regarded the alteration of dates as involving any personal dishonesty on the part of Mr. or Mrs. Thomson.

We return to the passages contained in the Tribunal's Note at pages 109 and 110, which in Mr. Thomson's submission implied personal dishonesty on the part of the Petitioners. It is appropriate to quote these passages fully:

After commenting on the matter of date-changing, the Tribunal continue at page 110 as follows:

Counsel for the Respondents submitted that the second of these passages did not show the Tribunal to have treated Mr. and Mrs. Thomson as having been personally dishonest in the matter of the altered dates. What they were concerned about in relation to the admitted "unconscionable practice" was lack of organisation, an aggressive approach which might have influenced an assistant to alter documents, and a culpable lack of supervision which made it possible for these forms to be lodged in their altered state. The word "permitted" could not, in context, be read as implying a personal permission, since it had been held that there was no personal knowledge. It was clear that in this context the word implied no knowledge or intention in relation to the changing of the dates: what was being criticised was a lack of supervision which, in fact but not in intention, left it open to others to behave in this dishonest way.

So far as the first of these quoted passages was concerned, counsel submitted that it could only be judged once one had traced its origins. This section of the Note was concerned with the way in which the Respondents ran their business. The underlying Findings in Fact were to be found at paragraph 10(2) to (5) of the Findings. The Tribunal's approach was stated near the beginning of their Note (page 77 of the Findings): it was the methods which the Respondents adopted which gave rise to the general averments set out in the introductory Article of the first Complaint. "The content of the introductory Article as amended was admitted by the Respondents and has been adopted for the purposes of paragraph 10(2) to (5) of these Findings". However the Tribunal had heard the evidence of the former employees of the Respondents' firm prior to these preliminary averments being admitted and it was appropriate to comment on certain aspects of their evidence. The Tribunal in their Note proceed to make certain comments about the evidence. While counsel for the Respondents accepted that Article 1.2 of the Complaint had been amended (by the making of certain deletions) he submitted that Findings 10(2) to (5) did not go beyond the terms of Article 1.2 as amended; and that the passage at page 109, in turn, did not go beyond Findings 10(2) to (5) as regards the facts, and contained legitimate comment on those facts, which was within the discretion of the Tribunal. It was accepted that Article 1.2 and the Findings in question did not assert or establish dishonesty on the part of Mr. or Mrs. Thomson; but it was submitted that this passage from the Note did not do so either. What was said as to the "prime motivation" for the procedure did not imply dishonesty. And while the failure to produce files or other records was treated as not having been "a mere omission", the description of it as a significant element in a "calculated scheme" was not an assertion of dishonesty: the scheme in question was described as a scheme "to maximise the payment to them from the Legal Aid Fund". The description was no doubt a highly critical one, and the Tribunal expressly took a serious view of the Respondents' conduct in the matter. But it was not said that either the adoption of the scheme, or its operation or its aims, had been dishonest, and no such implication should be read into the Tribunal's words.

Counsel acknowledged that, as we have mentioned, the Tribunal in their Note had thought it appropriate to comment on certain aspects of evidence from former employees, and this evidence was set out at some length over pages 78 to 86 of the Note. Since they had set it out, one must assume that they had had some regard to it in the picture which they had formed of the way in which the office was run. That was therefore perhaps part of the background to this paragraph at page 109, but in so far as that was the case, it was submitted that this was merely filling in the background to what was contained in Article 1.2 as amended. It bore out Article 1.2, and should not be regarded as the kind of evidence which the Tribunal should ignore, as controversial and detrimental. In this connection, it is worth noting that in charge 19.11, to the effect that the Respondents were in breach of their duty not to act in a manner which brought the profession of solicitor into disrepute, head (a), relating to the general manner in which they operated their firm "as outlined in Article 1.2 hereof" had been dismissed, as is recorded at page 58 in the record of proceedings for 5 April 1996. However, charge 19.11(d), dealing with failure adequately to supervise assistants, also refers back inter alia to Article 1.2. The Tribunal were thus entitled to look at that Article (as amended) in this connection.

Counsel for the Respondents very helpfully identified for us certain passages in paragraph 10(2) to (5) which appeared to derive from evidence, rather than having a basis, which both sides would regard as appropriate, in the Complaint and the pleas. In Article 10(2), the first four sentences have an acceptable basis of that kind. The remainder of Article 10(2), however, was identified as derived from evidence. The final sentence of paragraph 10(3) was likewise derived from evidence. And in Article 10(4), while the first four sentences had a basis which was plainly acceptable, the next three sentences might be, and the remainder of paragraph 10(4) was, based upon evidence. These were therefore the passages which ought not to have been included as Findings of Fact, if (a) the evidence upon which they were based was to be regarded as controversial, and had not been relied upon without objection by the Fiscal in his submissions, and (b) the Findings were regarded as detrimental to the Petitioners. Counsel for the Respondents referred us to a number of passages in the submissions made by the Fiscal, in which he directed the Tribunal's attention to the evidence; and it does not appear that the agent for Mr. and Mrs. Thomson suggested that this was inappropriate or incompetent. He himself made a substantial number of references to the evidence, and overall it does not appear that at the time any very precise or purist view was taken by either side as to what the Tribunal might have to do in relation to evidence. On the other hand, the passages identified in paragraphs 10(2) to (5) as derived from evidence do not appear to relate at all specifically to matters raised by the Fiscal in his submissions.

Counsel for the Respondents acknowledged that there was a problem in relation to the Findings concerning Marc Williams. In the Joint Minute agreed by the parties, paragraphs 13.1, 13.2 and 13.3 relate to Marc Williams. In so far as these might be relevant to any remaining charges, it would be legitimate for the Tribunal to have regard to such agreed material. The Tribunal had made Findings in relation to Marc Williams at paragraph 10(65), (66) and (67) of their Findings. But these paragraphs in their Findings repeated Article 13.1, 13.2 and 13.3 of the first Complaint, not paragraphs 13.1, 13.2 and 13.3 of the Joint Minute. There was thus a Finding that Mr. Williams was induced to sign a blank piece of paper, and that this piece of paper later had words added. These were not matters agreed in the Joint Minute. In their assessment of Mrs. Thomson's responsibility, at pages 121 to 122 of their Note, the Tribunal had relied expressly on admissions made in relation to Marc Williams. Moreover, this matter had been referred to at considerable length at page 81 of their Note, with a reference to Mrs. Thomson inducing Mr. Williams to sign a blank piece of paper on a particular "pretext" and with references to the involvement of Mr. Thomson as well as Mrs. Thomson in causing Mr. Williams to be visited by one of their employees despite knowledge of a mandate in favour of another firm. The seriousness of having Mr. Williams sign a blank piece of paper is said to be evidenced by the fact that later words were added to it. While counsel for the Respondents submitted that the material in question was essentially being used only against Mrs. Thomson, and not Mr. Thomson, and that in so far as used, it was only bolstering material already available in the form of the pleas given, he could not and did not dispute that the Tribunal should not have gone beyond what was covered by the Joint Minute.

As regards Mr. Thomson's first proposition, it is true that nothing remained of charge 19.6, and it would not be open to the Tribunal to draw any conclusion that Mr. or Mrs. Thomson was guilty of personal dishonesty or fraud on the basis of those factual Articles which constituted the basis for that charge or any part of it. But we are not persuaded that the Tribunal has taken the view that either Mr. or Mrs. Thomson was dishonest in any of these respects, subject to what we say in relation to head (e) and Marc Williams, below. Moreover, even if there had been a general withdrawal of all allegations of personal dishonesty, we are not persuaded that in relation to the alteration of dates, the Tribunal have proceeded upon the basis that there was any personal dishonesty on the part of either Mr. or Mrs. Thomson. Their conduct in that respect was treated as unconscionable, but not as personally dishonest.

We are not, however, persuaded that any universal withdrawal of allegations of personal dishonesty was effected. If intended by the Fiscal, we are not persuaded that such a universal withdrawal was effectively communicated to the Tribunal. We note the terms of the letters written at subsequent dates by both the Fiscal and the Secretary of the Law Society; but it appears to us that the writers of those letters have not appreciated or remembered that charge 19.13, at head (b), referred back to Article 5.4, and that Article 5.4, with its averments of untrue information, and the transmission of a letter with a view to misleading the Society, provided a valid basis for Finding in Fact 10(42). It appears to us that these Findings are to be regarded as involving personal dishonesty on the part of Mr. Thomson. It may be that the Fiscal intended to depart from that aspect of charge 19.13(b) and Article 5.4; or that he saw Finding 42 as amounting to something less than personal dishonesty. But as matters presently stand, it appears to us that the Tribunal cannot be criticised for making the Finding which they did make, or for taking it into account when assessing culpability.

The Findings in relation to Marc Williams, at paragraph 10(65) to (67) are perhaps also to be read as involving personal dishonesty. But those Findings were inappropriate not because any such element of personal dishonesty had been departed from, but because the charges in relation to Marc Williams were no longer live, and any Findings in relation to Marc Williams, if relevant at all, could not properly be based upon the charges relating to him, or the prior factual Articles referred to in those charges, but could be derived only from the terms of the Joint Minute. As we have indicated, Findings 10(65) to (67) go beyond the terms of the Joint Minute, and in so far as they do so, they should not have been made.

Moreover, it is clear from the terms of the Tribunal's Note that they have in significant measure relied upon those Findings, in relation to both Mr. and Mrs. Thomson. In these circumstances, we are satisfied that in this respect, Mr. Thomson's second proposition is sound, and that the Tribunal have wrongly proceeded on the basis that these particular Findings in Fact were accepted by the Respondents, when they were not. We would add that the charges relating to Marc Williams having been dropped, and the terms of the Joint Minute being more limited than the terms of Findings 10(65) to (67), it does not appear to us that the material in relation to Marc Williams contained in the Joint Minute has any material bearing in relation to the remaining charges.

We have mentioned the passages in paragraphs 10(2), (3) and (4) of the Findings which derive, or may derive, from the Tribunal's assessment of evidence, rather than from agreed material. On general principle, we do not consider that a Tribunal such as this, with the statutory duties which are incumbent upon it, is debarred entirely from considering and assessing evidence, merely because matters have been resolved by guilt being admitted in relation to particular charges and on particular factual grounds. Nonetheless, if a matter upon which evidence has been given was controversial, and if the conclusion which the Tribunal are disposed to draw from it is to the detriment of the solicitor concerned, the fact that no evidence in rebuttal has been heard makes it inappropriate to reach a conclusion of fact upon the evidence in question. Having regard to the terms of the relevant passages in paragraph 10(2), (3) and (4), and what is said by the Tribunal in their Note when considering the evidence of former employees, we are satisfied that these passages in these Findings should not have been made or taken into account. In this respect Mr. Thomson's third proposition appears to us to be well-founded.

In these circumstances, any decision as to the appropriate penalty must be considered and reached without regard to these parts of paragraph 10(2), (3) and (4), or Finding 10(65), (66) and (67). Counsel for the Respondents submitted that notwithstanding any unsound elements in the basis for the Tribunal's decision to strike Mr. and Mrs. Thomson off the Roll, we should not disturb that decision, since any error vitiated only a small part of a very substantial catalogue of guilt. We cannot regard that as an appropriate course. It is true that there is a very substantial catalogue of guilt. But it is not for us to consider or reach a conclusion as to its gravity, or the significance of the matters wrongly founded upon; or to decide what would be an appropriate punishment. These matters require a new Tribunal. It is a matter for the parties whether on remit the new Tribunal could be given a clearer documentary basis on which to work. Certainly we would hope that the parties could ensure in advance of the new Hearing that there was an agreed factual basis for the new Tribunal's consideration of the appropriate punishment; and that any submissions in addition to, or in substitution for, those set out in the record of the earlier Hearing could be presented in as convenient a manner as possible to the new Tribunal.

In the circumstances, both appeals are upheld, and the orders striking Mr. and Mrs. Thomson off the Roll are quashed. The matter is remitted to a new Tribunal to proceed as accords.