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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Abernethy
Lord Johnston
Lord Carloway
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[2006] CSIH 27
P2412/05
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
APPEAL
in the petition of
DERYCK DE MAINE BEAUMONT
Petitioner and Appellant:
for
Review of a decision of
the Scottish Solicitors Discipline Tribunal dated 28 September
2005
and intimated to the Petitioner on 31 October
2005
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Act: MacLeod, Q.C.; Beaumont & Co
Alt: R. Dunlop; Balfour & Manson
26 May 2006
[1] This
is a reclaiming motion at the instance of the petitioner and appellant for a
review of a decision of the Scottish Solicitors Discipline Tribunal dated 28 September 2005, which was
in the following terms:
"Edinburgh 28th September 2005. The Tribunal having considered the Complaints
dated 25th April 2005 and 8th June 2005 at the instance of the
Council of the Law Society of Scotland against Deryck De Maine Beaumont,
Solicitor, Balnagard, Pitlochry; Find the
Respondent guilty of Professional Misconduct in respect of his failure to
timeously settle the business account of a Reporter whom he had instructed to
carry out work on behalf of his client and his failure to reply to
correspondence from the Reporter concerning the payment of her business
account; Find the Respondent not guilty
of professional misconduct in respect of his failure to settle the sum of
£616.88 due by him to Faculty Services Limited;
Censure the Respondent and Direct in terms of Section 53(5) of the
Solicitors (Scotland) Act 1980 that for a period of three years with effect
from 31st March 2006, any practising certificate held or issued to the
Respondent shall be subject to such restriction as will limit him to acting as
a qualified assistant to such employer as may be approved by the Council or the
Practising Certificate Committee of the Council of the Law Society of
Scotland; Find the Respondent liable in
50% of the expenses of the Complainers and of the Tribunal as the same may be
taxed by the auditor of the Court of Session on a solicitor and client
indemnity basis in terms of the last published Law Society's Table of Fees for
general business with a unit rate of £11.85;
and Direct that publicity will be given to this decision and that this
publicity should include the name of the Respondent."
[2] The
background to the matter related to the ordering by the Sheriff
Court at Dunoon, in respect of a
consistorial action in which the appellant was acting for a party, for a report
to be obtained by an independent person in respect of the welfare of the
children involved in the action. The
person nominated by the court was a solicitor, a Mrs MacLeod, who
practised from Lochgilphead. By letter
dated 11 September 2001 the appellant
instructed Mrs MacLeod to prepare a report. She duly accepted those instructions and did
so. Thereafter she sought payment of her
business account in respect of the piece of work from the appellant, who
neither made such payment nor responded to her various letters over the
following period of almost four years in respect of her demand. As a matter of fact the debt was eventually
settled partly by the appellant in 2004 and partly by the Scottish Legal Aid
Board. The complaint brought against the
appellant related to his failure to settle that account over the relevant
period and equally his failure to respond in any way to the various letters
written by Mrs MacLeod.
[3] In
this respect the findings of the Tribunal are as follows:
"DECISION
The
Tribunal found the witnesses for the Complainers to be credible and reliable
and accepted their evidence.
Mrs MacLeod was clearly of the opinion that the Respondent had
instructed her to carry out the report.
The reference to Regulation 18 in the Respondent's letter understandably
led Mrs MacLeod to believe that legal aid cover was in place. It was also clear from the evidence that the
Respondent did not expressly exclude his liability, to pay. The Tribunal found that Mrs MacLeod had
every right to assume from the correspondence received from the Respondent and
from her knowledge of general practice that the Respondent would meet her
costs. The Respondent made no attempt to
dissuade her from this view. The
Respondent also sent cheques in settlement of her account without making any
disclaimer. In professional circles
there is very little difference between instruct and employ and when a
solicitor instructs a report it is usually assumed that he will pay for it
unless he states otherwise. The Tribunal
was accordingly satisfied beyond reasonable doubt that the Respondent had
instructed Mrs MacLeod in the preparation of the report and was liable for
her fee. He failed to make payment of
this fee for a period of 3 years 8 months and this clearly amounts to
professional misconduct. The Respondent
also failed to reply to her correspondence between 2001 and 2004 which is
clearly an unwarranted failure and a professional discourtesy and amounts to
professional misconduct."
[4] There
was a separate issue before the Tribunal which was not raised before us.
[5] Mr MacLeod, Q.C., appearing for the appellant, did not attempt
to suggest that the failure to respond to the correspondence, which is one of
the two findings of professional misconduct established by the Tribunal, was
defensible and could not amount to professional misconduct. However he attacked the first finding with
regard to the non-payment of Mrs MacLeod's fees and outlays upon the basis
that essentially the appellant did not accept that he was personally liable for
such fees and therefore was not obliged to make any payment. In essence Mr MacLeod's position was
that the appellant was entitled and indeed correct to reach that view and
therefore had not been guilty of any professional misconduct.
[6] He
founded upon Regulation (10) to be found in the Schedule to the Act of Sederunt
(Fees of Solicitors in the Sheriff Court (Amendment and Further Provisions)
1993 (SI 1993 No.3080)).
[7] That
Regulation is in the following terms:
"When a
remit is made by the court regarding matters in the Record between the parties
to an accountant, engineer or other reporter the solicitor shall not without
special agreement, be personally responsible to the reporter for his
remuneration, the parties alone being liable therefor."
Mr MacLeod accepted that
unless he could persuade us that this Regulation applied in the present case
the appeal must fail.
[8] At
this point it is also worth recording that the Regulations, as a matter of
construction, do not apply if the case in question is governed by legal
aid. In this case it was stated to us an
application for legal aid on behalf of the appellant's client was made as a
matter of an emergency application under the relevant Regulations to cover inter alia the costs of the report, but
legal aid was never in fact granted. We
understand that the fees were eventually settled by determination by the
Secretary of State effectively on an ex
gratia basis. Accordingly, insofar
as the issue of legal aid was raised in this case, it is not relevant since it
was never in force. The issue therefore
turns entirely upon the relevance or otherwise of Regulation 10.
[9] It
has to be stated at once that this matter was not raised by the appellant who
represented himself before the Tribunal which merely proceeded upon the basis
that there was an obligation on the part of the petitioner to settle the fees
and he had not done so, a situation which amounted to professional
misconduct. We regard it as unfortunate
that this matter is raised for the first time before us, although we understand
that this has arisen only because Mr MacLeod had recently come into the
case. We are therefore prepared to
entertain the argument, albeit that it was not canvassed before the Tribunal at
first instance.
[10] In the end of the day the issue was in fairly narrow compass
and depended upon a construction of the Regulation which Mr MacLeod stated
clearly amounted to an exception to what might otherwise be a general rule that
a solicitor would be liable on instruction of an expert for settling the fees,
because this case was related to an order of the court to appoint a
reporter. This, he submitted, fell
squarely within the terms of the Regulation in question. Accordingly he submitted the appellant was
correct in his view that he was not responsible for the fees in question and
therefore had not been guilty of any professional misconduct because there was
no intention on his part so to act unprofessionally. We put aside for the moment the question of
intention, which may raise a separate issue.
[11] Mr Dunlop, appearing for the Tribunal, submitted that
there were two answers to the point being put forward in terms of Regulation 10. Firstly since the Government had eventually
settled the fee, the legal aid exemption applied and therefore removed the Regulation
from the scope of this action. However
fundamentally more importantly he submitted that there was a historical
distinction which was still in force as between a formal remit by the court in
a particular case to a man of skill which would effectively amount to a
determination of the issues of fact on the one hand, and on the other the
appointment of an investigatory agent for the court, such as a commissioner, or
in this case a reporter, who was merely to provide information for the court to
assist in its determination of the factual issues. He submitted that the present case fell into
the latter situation. Thus the matter of
construction of the Regulation did not apply.
He concentrated particularly on the word "remit".
[12] As we already have indicated we do not consider that the legal
aid issue arises and we put that to one side.
[13] In support of his submissions Mr Dunlop referred us to a
number of authorities, namely AB v CD (1943) 6 D. 95; Shand
on the Practice of the Court of Session pages 406-7; Maclaren,
Court of Session Practice particularly at page 503; Sheriff
Macphail's Sheriff Court Practice, and in particular
paragraph 1333; Wilkinson & Norrie on the Law Relating to Parent & Child
at page 295; Oliver v Oliver 1988 S.C.L.R.
285; The
Stair Memorial Encyclopaedia Vol.13, paragraph 1201 et.seq.;
Groenius BV v Smith 2002 SCLR 1084.
[14] It is clear to us from these authorities that for many years
the court has recognised the distinction between the appointment of a
commissioner or, in more modern times, a reporter to enquire into matters of
fact and report on the one hand, and on the other a remit to a man of skill to
determine finally issues of fact, which the court must be obliged to
accept. We are therefore satisfied that
the word "remit" which is contained in the Regulation applies to the latter
situation and not the former. On the
simple issue of construction we therefore consider that the Regulation does not
apply in relation to the appointment by the court of a reporter as happened in
the present case. On the basis of
Mr MacLeod's concession if we reached this view, this appeal therefore
cannot succeed.
[15] However, we consider that the general rule, whereby a solicitor
is liable for the fees of an expert whom he instructs, plainly applies in this
case both generally because the reporter was instructed by the appellant in
that capacity and secondly, and in any event, she was simply instructed by
letter and that created the obligation on the part of the appellant to meet the
fee. Either of these two reasons are also sufficient to defeat this appeal.
[16] Before the Tribunal reference was made to section 30 of
the Solicitors (Scotland) Act 1980,
in particular as part of the submission made by the fiscal to the
Tribunal. However, the Tribunal do not
appear to have been influenced by this submission correctly in our view because
it is clear that that section has nothing to do with the present situation,
being concerned with when one firm of solicitors instructs another in the same
case to act for the same client. We
therefore put this issue to one side.
[17] As we have indicated this is sufficient to dispose of the
appeal, but Mr MacLeod also argued that given his client's state of mind
with regard to his understanding that he was not required to
meet this fee as a matter of professional obligation, there should be no
finding of professional misconduct.
[18] With that proposition we cannot agree. There was an obligation on the part of the
solicitor to meet the fees and whatever his motivation, that amounted to
professional misconduct in failing to do so.
If there was any question of lack of intent or a bona fide reason for not meeting the fees, that went to mitigation,
in our opinion, and not to the issue of professional misconduct.
[19] Since Mr MacLeod did not attack the finding of
professional misconduct with regard to the failure to respond to
Mrs MacLeod's correspondence, we need not specifically deal with the
matter, but we feel obliged to point out that even if we had been convinced by
the argument presented by Mr MacLeod as to the effect or otherwise of Regulation
10, the level of professional misconduct by the appellant in declining to make
any response over a period of some four years to Mrs MacLeod's letters
would in itself amount to serious professional misconduct, properly justifying
the penalty imposed on its own. On the
assumption that the appellant was under the misapprehension genuinely that he
was not obliged to meet the fees he was, in any event, in our opinion, as a
solicitor, obliged to respond to Mrs MacLeod's correspondence and so
inform her. This failure in itself would
in our view warrant a finding of professional misconduct sufficient to justify
the penalty imposed by the Tribunal.
[20] We therefore do not consider it appropriate for us to interfere
with the findings of the Tribunal nor with the penalty, although we would leave
in place a period of six months grace to enable the
reclaimer to put his affairs in order to comply with the penalty.
[21] For these reasons this appeal is refused.
