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Cite as: [2007] ScotCS CSIH_1, [2007] CSIH 1

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Eassie

Lord Marnoch

[2007] CSIH 1

P1145/05

OPINION OF THE COURT

delivered by LORD MARNOCH

PETITION

(As Amended)

CAMPBELL RIDDELL BREEZE PATERSON

Petitioners;

against

(FIRST) THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND; (SECOND) HENRY JAMES LLOYD

First and Second Respondents:

for

An Order under Section 54(1) of the Solicitors (Scotland) Act 1980

_______

Act: Ellis, Q.C., Brown; Lawford Kidd (for Levy McRae, Glasgow) (Petitioners)

Alt: Duncan; Anderson Strathern (Respondents)

4 January 2007

[1] This is an appeal, by way of petition, against a decision of the Scottish Solicitors Discipline Tribunal under section 54(1) of the Solicitors (Scotland) Act 1980. The decision in question related to a prior finding by the first respondents to the effect that the petitioners had provided an inadequate professional service to the second respondent in respect of, inter alia, a "failure to advise that two opinions had been received from Messrs Biggart Baillie and failure to exhibit both opinions to (the second respondent)".

[2 ] As to the facts giving rise to that finding the petitioners set out their position in Article 5 as follows:

"Biggart Baillie were originally instructed by the petitioners on behalf of the second respondent to provide an independent expert opinion on the standard of certain conveyancing work carried out by the second respondent's previous solicitor. The opinion was sought to allow consideration of a claim for negligence by the second respondent against that solicitor. By separate letter to Biggart Baillie the petitioners asked Biggart Baillie to advise the petitioners as to the petitioners' own position. Biggart Baillie responded to both letters of instruction with a single composite reply. One paragraph thereof dealt with the petitioners' position. The petitioners asked Biggart Baillie to re-issue their reply with that paragraph deleted, and Biggart Baillie complied with this request. The re-issued letter was sent to the second respondent but the original letter was not."

[3 ] Because the matters complained of relate to a period in 1990 the documentary record is far from complete but there was nonetheless before the Tribunal certain correspondence, particularly a letter of 5 October 1990 (p. 24 of the Appendix), which went some considerable way towards supporting the petitioners' contentions as set out above. At all events, nothing was said or produced to counter these contentions and, before us, counsel for the first respondents was not disposed to challenge their validity.

[4 ] Unfortunately the significance of two separate opinions having been sought by the petitioners appears to have been lost on the first respondents' fiscal in that before the Tribunal he asserted (at p. 199 of the transcript) that "the opinions instructed from Biggart Baillie were instructed at the behest or behalf of the client, Mr. Lloyd". At p. 208 of the transcript he develops this theme as follows:

"My submission would be that in a case such as this where a formal opinion is delivered and it sets alarm bells ringing the proper course to have been followed would have been to have passed the first opinion to Mr. Lloyd and either to justify why that opinion is wrong or to invite Mr. Lloyd to obtain alternative representation, not to concoct a separate opinion which makes no reference to the difficulty or the potential difficulty, given that that opinion is instructed on behalf of Mr. Lloyd. This was not a confidential communication, this was not the solicitor privately discussing matters or obtaining assistance from a solicitor, this was an opinion instructed on behalf of their client and when the alarm bells are set ringing at that point the client should be made aware as to the potential difficulty, and if the appellants felt that they could justify their position then they should advance argument to the client."

[5 ] All this overlooks the fact that if, as appears to be the case, the petitioners did indeed write a separate letter to Biggart Baillie asking for advice on their own position, then clearly that would not have been advice sought on behalf of the second respondent. It also runs together the concept of inadequate professional services by failure to disclose to the client an opinion allegedly obtained on his behalf and the quite distinct and separate concept of a possible conflict of interest arising from the terms of the opinion received. As to that last matter it is, we think, surprising that the fiscal made the submission in question because much earlier, at p. 185 of the transcript, it had been made quite clear by the fiscal that the only issue properly before the Tribunal was whether the petitioners were under an obligation to disclose the original opinion received from Messrs Biggart Baillie. As a result the question of whether there was truly any conflict of interest and, if so, what should be its consequences, was never fully explored.

[6 ] In light of the foregoing it is now necessary to examine the decision of the Tribunal which, so far as relevant to this appeal, is expressed in the following terms:

" ... the Tribunal accept that there may have been no obligation on the Appellants to disclose an opinion which indicated that they were at fault. However the Appellants argue that the paragraph in the first opinion is not prejudicial to them as there was nothing in the planning permission which put them on notice that they needed to look at the plans. If this was the case there should have been no difficulty in the Appellants providing the Lay Complainer with a copy of the first opinion but explaining that they had done nothing wrong. What the Appellants did do however was to provide the Lay Complainer with a sanitised copy of the opinion. The Tribunal consider that they set out to deceive the Lay Complainer by providing him with this doctored opinion. This is contrary to the duty to properly communicate with the client and is damaging to the relationship of trust between the solicitor and client. There was some suggestion that there were two letters sent to Messrs Biggart Baillie one asking for advice for the Lay Complainer and one asking for advice concerning the Appellants position. This would however not seem logical as it would suggest that the Appellants were already aware that there may be a conflict of interest situation. The Tribunal was satisfied on the balance of probabilities that the Appellants failure to communicate to the Lay Complainer that the opinion sent was a sanitized version of an opinion which had been issued thereby depriving the client of the knowledge of a potential conflict of interest situation between the client and the Appellants amounted to provision of an inadequate professional service. The Tribunal accordingly varied the determination of the Law Society and found that the Appellants provided an inadequate professional service in that they issued an abridged version of an expert report and deprived the client of knowledge of potential conflict of interest."

[7 ] From the foregoing it will be seen that the Tribunal, in common with the fiscal, quite failed to appreciate the significance of the contention that there had been two letters sent to Messrs Biggart Baillie - to the extent, indeed, that they appear to have thought it unnecessary to make any clear findings on that matter. In so doing the Tribunal, in our opinion, fell into error which in turn led to unjustified and hurtful references to sanitisation, deceit and "doctoring". We must add, with all due respect, that we are unable to understand the only reason given by the Tribunal for apparently doubting the existence of these two letters. In addition, there is the even more serious criticism that, in varying the determination of the first respondents, the Tribunal appears to have departed from the issue of whether there was an obligation to disclose to the second respondent the first opinion received from Messrs Biggart Baillie and instead to have decided that there had been some failure on the part of the petitioner to disclose to the client a "potential conflict of interest". We are not entirely clear as to what is meant by the reference to a potential conflict of interest but for the reasons given above we are clear that the existence of a conflict of interest, potential or otherwise, was not an issue properly before the Tribunal.

[8 ] Mr. Duncan, who appeared for the first respondents, conceded that the Tribunal was not entitled to rest their decision on conflict of interest but submitted that, on a true construction of their decision, the Tribunal had done no more than conclude that the advice given by Messrs Biggart Baillie to the petitioners reflected "a developing picture of concern" which should in some way have been made known to the second respondent. In our opinion, however, despite its ingenuity, this submission has no real foundation and for all the reasons given above we shall allow the appeal, quash, so far as relevant, the decision of the Discipline Tribunal and dismiss the complaint forming the subject matter of those proceedings. Despite Mr. Duncan's submissions to the contrary, we shall also find the first respondents liable to the petitioners in the expenses of the hearing before the Tribunal.