EXTRA DIVISION, INNER HOUSE, COURT OF
SESSION
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Lord Macfadyen
Lord Kingarth
Lord Eassie
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[2007] CSIH 89
P1018/05
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OPINION OF THE COURT
delivered by LORD MACFADYEN
in
Petition under section 54 of the
Solicitors (Scotland) Act 1980
by
MICHAEL GORDON ROBSON
Petitioner
against
(FIRST) THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND,
and
(SECOND) THE SCOTTISH SOLICITORS' DISCIPLINE
TRIBUNAL
Respondents
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Act: Party
Alt: Dunlop; Balfour & Manson (First Respondents)
7 December 2007
Introduction
[1] By
interlocutor dated 23 March 2005 the second respondents, the Scottish
Solicitors' Discipline Tribunal ("the Tribunal"), in respect of a complaint
dated 14 June 2004 ("the Complaint"), found the petitioner, Michael Gordon
Robson, guilty of professional misconduct, and ordered that his name be struck
off the Roll of Solicitors in Scotland.
By a second interlocutor of the same date, the Tribunal in respect of a
separate complaint, dated 20 February 2004, made no finding of professional
misconduct against the petitioner. By this
petition, presented under Rule 68.2 of the Rules of Court, the petitioner seeks
to appeal under section 54 of the Solicitors (Scotland) Act 1980 ("the 1980
Act") against the decisions of the Tribunal expressed in those interlocutors.
[2] Answers have
been lodged on behalf of the first respondents, the Council of the Law Society
of Scotland ("the Council"). In those
answers, the second plea-in-law is a plea to the competency of the appeal, so
far as it relates to the complaint dated 20 February 2004.
When the petition came before this court for hearing on the summar roll,
the petitioner accepted that it was incompetent for him to appeal against a
decision of the Tribunal which had been in his favour. He therefore did not insist in the appeal
against the interlocutor disposing of the complaint dated 20
February 2004. We shall therefore sustain the Council's
second plea-in-law, and dismiss the petition so far as it relates to that complaint. The prayer of the petition also seeks
interdict against the Tribunal publicising its findings, a remedy which the
Council aver in Answer 3 is incompetent and unnecessary (although they state no
plea to the competency of that part of the prayer). In the event, the petitioner made no
submissions in that connection, and we need say nothing more than that we shall
therefore treat that part of the prayer as not insisted in, and shall refuse it
on that ground.
The Complaint dated 14 June 2004
[3] The Complaint
contained three allegations of professional misconduct within the meaning of
section 53 of the 1980 Act.
[4] The primary
allegation related to work undertaken by the petitioner in connection with the
winding up of the estate of a former client, Charles H. R. Durham. The petitioner and two relatives of the
deceased were executors, and the petitioner acted as solicitor in the
executry. The Complaint narrated that
the respondent agreed with John Durham, one of his co-executors, that he would
charge a fixed fee of £4000 plus VAT in respect of all the work associated with
the executry; that delay in the administration of the estate led to withdrawal
of the petitioner's instructions; and that review of the papers passed by the
petitioner to the new solicitors instructed by the executors disclosed that the
petitioner, without the consent of his co-executors, and without rendering a
fee note, had charged, and deducted from the executry account, fees totalling
£6345 (including VAT). In respect of
those events, the averments of professional misconduct alleged (a) breach of
rule 6(1)(d) of the Solicitors (Scotland) Accounts Rules 1997, and (b) that the
petitioner "acted in a dishonest fashion in that having reached an agreement
with the co-executor in relation to the level of fee that he intended to charge
regarding the administration of the estate, ... [he] ignored the agreement which
was reached and chose to charge a fee which was well in excess of that which he
undertook to charge, which fee he took to account from the executry funds
without intimating a fee note to the executors".
[5] The Complaint
also alleged professional misconduct in respect of the petitioner's failure to
reply timeously, openly and accurately to the enquiries made of him by the
Council concerning the affairs of the executry.
We shall return to the details of that charge later.
The procedural history
(a) Before
service of the Complaint
[6] By letter
dated 3 December 2002 John Durham complained to the Council
about the petitioner's conduct in relation to the executry. The Council formulated the complaint, and
intimated it to the petitioner by recorded delivery and ordinary post on 19
March 2003. No reply was received. A number of reminders were sent, and elicited
no response.
[7] In view of
the petitioner's failure to respond, the Council, in June 2003, served on the
petitioner statutory notices under sections 15(2)(i)(i) and 42C of the 1980 Act.
The latter notice required the petitioner inter alia to provide an explanation regarding the matters to which
the complaint related. The petitioner
did not respond to the notices, and did not provide any such explanation.
(b) Proceedings before
the Tribunal
[8] On 14
June 2004
the Council's Fiscal presented the Complaint to the Tribunal. On 11 August 2004, on the instructions of the Clerk to
the Tribunal, the Complaint was served on the petitioner by Sheriff
Officer. The Notice served with the
Complaint appointed answers to be lodged within fourteen days.
[9] The Complaint
was sisted on joint motion to await the outcome of an appeal to this court in
respect of an earlier complaint. That
appeal was disposed of by interlocutor dated 24
November 2004
(Robson v Council of the Law Society of Scotland 2005 SC 125 ("Robson (2005)")). The Tribunal recalled the sist on 16
December 2004,
and allowed the petitioner the unusually long period of eight weeks within
which to lodge answers. The petitioner
did not lodge answers within that period.
On 10 February 2005 he requested prorogation of the time
for lodging answers by six weeks. On 18
February the Clerk to the Tribunal intimated that the Tribunal refused that
application, but pointed out that any Answers lodged prior to the date of the
hearing might be considered by the Tribunal.
[10] The Tribunal
appointed the Complaint to be heard on 23 March 2005.
Notice of that diet was served on the petitioner on 18
February 2005.
[11] On 3
March 2005
the Council's Fiscal applied to the Tribunal for leave to take the evidence of
witnesses by affidavit. Rule 10 of the
Scottish Solicitors' Discipline Tribunal Procedure Rules 2002 authorises the
Tribunal to proceed on affidavit evidence if they determine to proceed in
absence against a solicitor who does not appear. The letter by which the application was
intimated to the Clerk to the Tribunal noted that the petitioner had not lodged
Answers. It also identified the intended
witnesses as J. Durham and a representative of the Law Society of Scotland to
speak to the alleged failure to respond.
That application was on the same date intimated to the petitioner so
that he might make representations regarding it. He did not do so.
[12] On 16
March 2005
the Clerk to the Tribunal wrote to the petitioner expressing the Tribunal's
concern that no Answers had been lodged.
In view of the terms of the petitioner's letter of 10 February, which
had referred to certain health difficulties which he had experienced, the Clerk
advised him that, should he request any adjournment of the hearing on the basis
of ill health, the Tribunal would require a soul and conscience certificate
from his doctor.
[13] On 22
March 2005
the petitioner wrote to the Clerk to the Tribunal intimating that he had been
unable to prepare his defence, and seeking an adjournment of the hearing set
for the following day. He set out a
number of grounds for his motion, including the assertions that he was
suffering from a depressive mood disorder, and that he had been handicapped in
his preparation for the hearing by his being bankrupt, and reference to aspects
of his family circumstances. He produced
a medical certificate dated 22 March 2005 by a Dr Ralph Kruger, a locum
general practitioner, who had not seen him before that day. Dr Kruger expressed the view, "that [the
petitioner's] avoidance strategy is very likely to be due to depressive mood
disorder."
[14] When the case
called on 23 March 2005 the petitioner was not present. The Tribunal adjourned briefly to allow the
Fiscal to contact the petitioner by telephone.
The petitioner indicated that he did not intend to attend the hearing,
and would appeal if his motion to adjourn were refused. He indicated that he had a tennis coaching
commitment which he was obliged to honour.
The Tribunal considered and refused the petitioner's motion to adjourn. Thereafter, it proceeded with the substantive
hearing in absence. It entertained Mr
Durham's evidence in affidavit form.
Having considered the evidence and the Fiscal's submissions, it found
the petitioner guilty of professional misconduct in the respects alleged in the
Complaint. It ordered that the
petitioner be struck off the Roll of Solicitors in Scotland.
(c) Proceedings
in this court
[15] The petition
to this court was presented on 8 June 2005.
Answers were lodged by the Council.
On 16 August, 21 October and 20 December the court allowed periods for
adjustment of the petition and answers.
On the last mentioned date the petition was appointed to the summar roll
for hearing. A diet was fixed for 16 and
17 May 2006. When the case called
by order on 13 April 2006 the petitioner was not present. At a continued by order hearing on 26
April 2006
the summar roll diet was discharged on the petitioner's motion. A new summar roll diet was fixed for 3 and 4
October 2006. When the case called by order on 6
September 2006 the petitioner was not present.
At the continuation of that hearing on 8 September 2006 the petitioner was allowed to lodge
a minute of amendment. On 22
September 2006 the petition was amended in terms of the minute of amendment.
[16] On 3
October 2006
the petitioner, who had until then been unrepresented, was represented by
counsel and solicitors who had only just been instructed. The petitioner's motion to discharge the diet
because his representatives were not ready to proceed was granted
unopposed. The petitioner was found
liable in the expenses occasioned by the discharge, and payment of the expenses
was made a condition precedent to further procedure.
[17] On 13
February 2007
there was laid before the court a letter dated 30 January
2007 from
the solicitors who had been instructed just before the summar roll hearing on 3
October 2006
intimating that they had withdrawn from acting for the petitioner. The petitioner was ordained, under
certification that if he failed to do so the petition might be dismissed, to
intimate whether he intended to insist in the petition. On 28 February he intimated that he did.
[18] On 26
April 2007,
on the Council's motion to dismiss the petition, the petitioner was ordained to
make payment of the expenses awarded on 3 October 2006 within six weeks, failing which the
petition would be dismissed. The
expenses were paid on 6 June 2007.
[19] On 15
June 2007 on
the Council's motion the petitioner was ordained to find caution for expenses
in the sum of £8000 within six weeks. On
20 July the time for finding caution was prorogated until 13 August. The requisite sum was consigned (in lieu of
caution). On 17 October
2007 the
amount of consignation was reduced to £5000.
A new summar roll diet was fixed for 23 November 2007.
[20] On 21
November 2007
the petitioner's motion to discharge the summar roll diet fixed for 23 November
came before the court, and was continued until 23 November.
The motion to discharge
the summar roll diet
[21] The continued
motion to discharge the summar roll hearing fixed for 23
November 2007
was heard on that date. The basis of the
motion was that the petitioner had been unable to find solicitors willing to
act for him in the appeal. He laid
before the court a written list of the various solicitors whom he had
approached in the period from 11 October to 22 November 2007 with an account of their reasons for
not accepting instructions. He indicated
that counsel had been identified who was willing to act if duly
instructed. No solicitor had accepted
instructions, although with more time it might be that one of those contacted
would do so. The petitioner invited the
court to discharge the diet in order to allow him further time to instruct
solicitors and counsel to conduct the appeal on his behalf. He did not offer any particular explanation
of the steps he had taken prior to 11 October to obtain representation. He referred to the fact that during the
period following his previous solicitors' withdrawal from acting in January 2007,
he had been concerned to deal with the matter of the expenses payment of which
was a condition precedent of further procedure, and thereafter with the finding
of caution. He did not explain why these
matters affected his ability to obtain representation.
[22] Mr Dunlop, who
appeared for the Council, opposed
the motion to discharge the diet. He
drew our attention to the fact that this was the third such appeal in which the
petitioner had been involved. He pointed
to the procedural history, which we have set out in detail above, and in
particular a written chronology of proceedings in this appeal, which disclosed
various occasions on which the petitioner had failed to appear, and two
previous discharges of summar roll diets.
He pointed out that the petitioner had never disputed the factual basis
of the Complaint.
[23] We refused the
motion to discharge the diet. Having
regard to the procedural history, we formed the opinion that the petitioner had
had ample opportunity to obtain representation.
Further, the scope of the appeal which would require to be argued
appeared to be limited. The petitioner's
interests had to be balanced against the public interest that the proceedings
be brought to a conclusion. We concluded
that it would not be in the interests of justice to discharge the summar roll
diet for a third time, and incur the inevitable further delay of several
months.
The motion to amend the
petition
[24] Having refused
the motion to discharge the diet, we proceeded to the hearing on the summar
roll. At the joint suggestion of
parties, we agreed to hear Mr Dunlop first.
Having heard him, we proceeded to hear the petitioner. In the course of his submissions, the
petitioner began to assert that the complaint was ill-founded in fact, and that
the fees charged had been taken after his accounts had been audited by the Sheriff Court auditor, on a joint submission
signed by him and his co-executor, John Durham.
He made reference to the fact that the accounts disclosed a fee paid to
the auditor. When it became evident that
the petitioner was seeking to argue that the factual basis on which the
Tribunal had upheld the complaint was incorrect, we interrupted the petitioner
and pointed out to him that no such point had been focused in the petition. We suggested that if such an argument was to
be advanced the petitioner would require to obtain leave to amend the petition
to provide the proper foundation for the argument. The petitioner therefore moved at the bar for
leave to amend.
[25] Mr Dunlop
opposed that motion. He pointed out that
the petitioner had never previously disputed the factual basis of the
Complaint. He had failed to respond to
the initial correspondence from the Council.
He had made no response to the section 42C notice. He had not lodged Answers to the
Complaint. He had not appeared before
the Tribunal. He had not made the point
he now sought to argue in the petition.
That had remained the position, despite his having adjusted the petition
on four occasions and amended it on 22 September 2006.
In doing so he had not answered the call in Answer 1 of the Council's
Answers which sought that, esto he
disputed any material fact upon which the Complaint proceeded, he specify the
facts he disputed and his basis for doing so. That was all despite his having
had sight, shortly after the Tribunal hearing, of John Durham's affidavit,
which concluded with the unequivocal statement, "At no stage after having
reached an agreement regarding the level of fee did I receive any representation from [the petitioner] indicating that
he wished to recover a greater sum in respect of fees". The petitioner had said nothing to counsel or
the solicitors for the Council to warn them that he intended to dispute the
factual basis of the Complaint. In these
circumstances, it was too late for him to seek to amend to take that point in
the course of the summar roll hearing.
[26] We refused the
motion to amend. The petitioner was
quite unable to explain to us why, if his contention was that that the
Complaint was ill-founded in fact, he had never previously expressed that
position. He had had ample opportunity
to do so. He had not responded to the
Council's correspondence or the statutory notice. In the proceedings before the Tribunal he had
not lodged Answers. In this process,
although he set out various grounds of challenge to the Tribunal's decision,
and elaborated these in the course of adjustment of the pleadings and by
amendment, no hint was given that he disputed the facts which underlay the
Complaint. That was in face of the call
made in the Council's pleadings, and despite the clear and straightforward
terms of the Complaint, and the facts that he was aware of the terms of the
accounts and had seen Mr Durham's affidavit shortly after the Tribunal hearing. He did not even mention his intention to
dispute the factual basis of the Complaint when Mr Dunlop, in responding to the
motion to discharge the diet, mentioned that the petitioner did not do so. It was now four years and eight months since
the matter had first been raised with him, and two years and five months since
this petition was presented. The point
which the petitioner sought to raise was clearly contradicted by the sworn
evidence of Mr Durham, which was before the court. In all these circumstances, we came to the
conclusion that the petitioner's motion to amend came much too late.
The substantive appeal
[27] Mr Dunlop in
his submissions identified three points taken by the petitioner on which he
addressed us. When the petitioner
responded to Mr Dunlop's submissions, although he made some submissions about
what he described as the background, we did not understand him to raise (apart
from the matter discussed above at paragraphs [24] to [26]) any issue other
than those identified by Mr Dunlop. The
three points which we require to consider are therefore (1) whether the
Tribunal erred in refusing the petitioner's motion to adjourn the hearing on 23
March 2005, (2) whether the Tribunal was an independent and impartial tribunal
as guaranteed by Article 6 of the European Convention on Human Rights ("the
Convention"), and (3) whether the penalty imposed by the Tribunal was excessive
or inappropriate.
(a) Adjournment
[28] Mr Dunlop
submitted that the Tribunal's decision to refuse the petitioner's motion to
adjourn the hearing was a reasonable decision within the scope of the
Tribunal's discretion.
[29] The Tribunal's
reasons for refusing the motion were set out in the Note attached to the
interlocutor of 23 March 2005 in the following terms:
"The Tribunal took account of the
fact that the allegations against the Respondent could affect his right to be a
solicitor but the Tribunal had to weigh the interests of the Respondent against
the public interest in having matters dealt with. The matters had been outstanding for some
time and the Respondent had been given the unusually long period of eight weeks
for lodging Answers which he had failed to comply with. The Respondent had left it until the day of
the hearing to move for an adjournment and the Tribunal considered that he had
been given enough latitude and that the matter should proceed. The Tribunal took account of the doctor's
letter produced by the Respondent but this letter did not say that the
Respondent was unfit to attend the Tribunal.
The Tribunal was of the view that even if the case was adjourned it was
unlikely that the Respondent would co-operate with the process. Although the Respondent had an avoidance
strategy difficulty he was still clearly able to write letters and articulate a
view and appeared to be able to work as a tennis coach. The Notice of Hearing sent to the Respondent
warned him that if he did not attend matters could proceed in his absence. The Tribunal accordingly refused the
Respondent's motion to adjourn."
[30] Mr Dunlop
dealt first with the medical certificate on which the petitioner relied in
seeking an adjournment. He pointed out
that although it attributed the petitioner's "avoidance strategy" (by which we
understand the doctor to mean the steps taken by the petitioner with a view to
avoiding the Complaint coming to a hearing) to "depressive mood disorder", it
did not express an opinion that the petitioner was physically or mentally
unable to attend the hearing. Mr Dunlop
pointed to the petitioner's ability to make lengthy written submissions in
support of his position (see the letters of 10 February and 22
March 2005). He emphasised that one reason given by the
petitioner for not attending the hearing was his tennis coaching commitment
(see Statement 1 of the petition, Appeal Print, page 7A-B, and the second of
the two letters written by the petitioner on 22 March 2005).
The motion to adjourn had to be considered in the context that the
petitioner had not challenged the factual basis of the Complaint, either in response
to the Council's correspondence and statutory notices, or by lodging
Answers. The factual basis of the
Complaint was simple, and could readily have been challenged, if that had been
the petitioner's position. That,
however, had not been done, and the motion to adjourn therefore came in the
context of a Complaint the factual basis of which was undisputed. There was no reason to adjourn when there was
no challenge to the factual basis of the Complaint. The refusal to adjourn was only material if adjournment
would have made a difference. In the
absence of any stated defence on the merits of the Complaint in this appeal
process (Mr Dunlop making this submission before the petitioner made his
attempt to introduce his argument going to the merits of the Complaint), it
could not be said that adjournment would have made a difference. Mr Dunlop acknowledged that, even without a
challenge to the merits of the Complaint, the petitioner would have been
entitled to make, at an adjourned diet, submissions in mitigation of penalty,
but submitted that the fact that the petitioner had been deprived of that
opportunity did not prejudice him, because anything that he might have said at
an adjourned diet could be said in the course of this appeal (McMahon v Council of the Law Society of Scotland 2002 SC 475). The Tribunal had been entitled to take the
public interest into account in determining whether to grant the motion to
adjourn. Mr Dunlop pointed out that
history was repeating itself; in the proceedings which gave rise to the
previous appeal (Robson (2005)) the
petitioner had similarly failed to lodge Answers and had, on the day before the
Tribunal hearing, requested an adjournment.
In all the circumstances the Tribunal had been entitled to refuse the
motion for adjournment.
[31] The petitioner
in response on this issue referred to his letter to the Clerk to the Tribunal
dated 10 February 2005 in which he referred to various
alleged health problems which he had experienced, and to his letter of 22 March
requesting the adjournment. He said that
on the day of the Tribunal hearing he was in no fit state to appear and present
his case to the Tribunal. The date of
the hearing had been fixed unilaterally by the Tribunal. The Fiscal had made application to rely on affidavit
evidence. He thought that the Tribunal
should have fixed a date for a hearing on that application. The Fiscal should have intimated a list of
witnesses. The Tribunal had stated no
cogent reasons for refusing the motion for adjournment.
[32] In our opinion
the motion to adjourn has to be viewed in the context of the position adopted
by the petitioner in relation to the Complaint.
Having failed to answer the Council's correspondence and the statutory
notices, he had not lodged Answers, in spite of being allowed an unusually long
time within which to do so. The Tribunal
was therefore dealing with a motion to adjourn a hearing into an uncontested
Complaint. In so far as refusal of the
motion to adjourn would deprive the petitioner of the opportunity of putting
forward a plea in mitigation of penalty before the Tribunal, we accept the
submission that the unrestricted scope of the appeal to this court (McMahon) means that any resulting
prejudice can be elided by submissions in the course of the appeal.
[33] In the light
of the terms of the letter of 10 February, the Tribunal had given the
petitioner fair warning that any motion to adjourn for health reasons would
have to be supported by a soul and conscience certificate from a medical
practitioner. Although the petitioner
did submit such a certificate, it came not from a medical practitioner who had
been involved in investigating the conditions which the petitioner claimed to
have, but from a locum practitioner who had not seen him until the day before
the hearing. The certificate showed that
the doctor recognised that the petitioner was indulging in an avoidance
strategy, although he expressed the view (on what basis, if any other than the
petitioner's assertion, is not clear) that it "was likely to be due to
depressive mood disorder". The Tribunal
was in our opinion entitled to note that the certificate did not say that the
petitioner was unfit to attend the hearing.
The petitioner's claim to have been "in no fit state" to appear at the
hearing is not borne out by the medical certificate. If he felt unable to conduct his own case, he
could have appeared to make that point to the Tribunal. In any event, one reason given by the
petitioner for his not attending the hearing was his contractual commitment to
tennis coaching.
[34] We see no
force in the procedural points mentioned by the petitioner in his submissions
to us. The Tribunal did fix the date of
the hearing unilaterally, but it was entitled to do so. The petitioner was given over a month's
notice of the date, and did not suggest until the eve of the hearing that the
date was unsuitable or inconvenient. The
Fiscal gave almost three weeks notice of his application to lead affidavit
evidence. In the Fiscal's letter of 3
March the petitioner's attention was drawn to the possibility of his making
representations against the application.
The petitioner had no reason to suppose that a separate hearing on that
application would be arranged. The terms
of the last paragraph of his letter of 22 March do not suggest that he had
expected there to be a separate hearing.
Had he applied his mind to Rule 10 of the Scottish Solicitors'
Discipline Tribunal Procedure Rules 2002, he would have seen that that Rule
authorises the Tribunal to proceed on affidavit evidence if they determine to
proceed in absence against a solicitor who does not appear. So far as the petitioner's complaint about
the absence of a list of witnesses is concerned, it took no account of the terms
of the Fiscal's letter to the Clerk to the Tribunal dated 3 March 2005, which
was copied to the petitioner on the same date, and which identified the
witnesses whom the Fiscal intended to lead.
[35] The Tribunal
rightly took account of the seriousness of the hearing from the petitioner's
point of view. They also rightly took
into account the public interest in expeditious disposal of such disciplinary
proceedings. The reasons given by the
Tribunal for refusing the motion to adjourn were in our opinion coherent. We reject the petitioner's submission that
they lacked cogency. The Tribunal's
decision on the point was, in our opinion, within the proper scope of the
Tribunal's discretion. In the light of
the submissions made to us, we have reviewed the merits of the motion to
adjourn, and have concluded that, for the reasons which we have set out, it was
rightly refused.
(b) An
independent and impartial tribunal
[36] In Statement 2
of the petition the petitioner advanced the submission that the Tribunal is not
an independent and impartial tribunal, as required by Article 6 of the Convention.
Mr Dunlop in his submissions therefore addressed that issue and referred
inter alia to the fact that a similar
submission by the petitioner had been rejected in Robson (2005). When the
petitioner came to address us, he was asked whether he maintained the position
expressed in the petition. He indicated
that he would leave the matter to the court.
We understood that to be an indication that, while he did not abandon
the point, he did not wish to make any oral submissions in support of it. In these circumstances, we can deal with the
point briefly.
[37] Mr Dunlop drew
our attention to the passage in the opinion of the court delivered by Lord
Kirkwood in Robson (2005) at
paragraphs 26 to 30 in which a similar argument advanced by counsel on the
petitioner's behalf had been rejected.
He submitted that for the same reasons the submission should be rejected
in the present case. For the reasons
given by the court in paragraphs 26 to 28 in Robson (2005) the petitioner had not made out his contentions that
the Tribunal was not independent because the members of it lacked security of
tenure, and lacked the appearance of impartiality because the Council nominated
the solicitor members of the Tribunal, and were at the same time the prosecutor
before it. For the reasons given in paragraph
30, the fact that two members of the Tribunal had been members of the Tribunal
which dealt with previous proceedings against the petitioner (Robson v The Council of the Law Society of Scotland 2002 SC 487 ("Robson (2002)")) did not yield the
inference that they lacked the appearance of impartiality.
[38] Mr Dunlop
further submitted that, if, contrary to his primary submission, the Tribunal
was not in itself an independent and impartial tribunal, this court was now
recognised as having full jurisdiction in an appeal under section 54 of the
1980 Act and the availability of such an appeal therefore satisfied the
requirements of Article 6. In that
connection he referred to Tehrani v United Kingdom Central Council for Nursing,
Midwifery and Health Visiting 2001 SLT 879 at 890-91, paragraphs 56 to 61; Ghosh v General Medical Council [2001] 1 WLR 1915 at 1923, paragraphs 32
and 34; McMahon at 479C-H, paragraphs
13 to 16; Robson (2002) at 492,
paragraph 12; Sutherland-Fisher v Law Society of Scotland 2003 SC 562 at
569, paragraph 22; and Robson (2005)
at 136, paragraph 29.
[39] We see no
material difference between the contentions under Article 6 formulated in the
present petition and those rejected by the court in Robson (2005). We hold that
the Tribunal is an independent and impartial tribunal which complies with the
requirements of Article 6. If that were
not so, the requirements of Article 6 would be met by the right of appeal to
this court, a court of full jurisdiction.
The authorities cited by Mr Dunlop amply bear out that alternative
submission. This aspect of the appeal
therefore fails.
(c) Penalty
[40] The petition
contains no averments directed against the penalty imposed by the Tribunal,
although the prayer invites the court to "impose such other penalty" as it
thinks fit. Mr Dunlop proceeded on the
basis that the question of whether the penalty imposed was excessive or
inappropriate was before the court in the appeal. The petitioner made brief submissions on the
point.
[41] Having
explained its grounds for finding the petitioner guilty of professional
misconduct, the Tribunal, in the Note appended to the interlocutor of 23
March 2006
explained its approach to penalty as follows:
"It is imperative if the public is to
have confidence in the legal profession that solicitors act honestly at all
times and in such a way as to put their personal integrity beyond
question. In this case the Respondent
deliberately acted in breach of an agreement with his client. His conduct is regrettably disgraceful and
dishonourable and brings the profession into disrepute. The Respondent further took fees to account
without intimating a fee note to the executors in breach of Rule 6 of the
Solicitors (Scotland) Accounts Rules 1997. The Tribunal has also made it clear on
numerous occasions that failure to respond to the Law Society hampers the Law
Society in the performance of their statutory duty and brings the profession
into disrepute. The Tribunal was
particularly concerned to note two previous Findings of professional misconduct
against the Respondent where he had failed to respond to the Law Society. The Tribunal noted that the failures to
respond to the Law Society in this case arose in December 2002 which was after
the Tribunal findings issued on 8 October 2002 when the Tribunal had taken a
very serious view of the Respondent's failure to respond to the Law Society and
failure to comply with previous undertakings given on his behalf to the Tribunal
that he would comply in future. Even
after two previous Findings against the Respondent he still failed to respond
to the Law Society. This taken together
with the Respondent's acting in a dishonest fashion in charging fees in excess
of that agreed with his client brings the Tribunal to conclude that the
Respondent is not a fit and proper person to remain on the Roll of Solicitors
in Scotland."
[42] Mr Dunlop
submitted that the proper approach in relation to penalty was for this court to
look at the tribunal's decision in the whole circumstances of the case, always
having due respect for the expertise of the Tribunal and giving to their
decision such weight as was thought appropriate; respect for the views of the
specialist tribunal was particularly important where the case related to
specialist matters of professional practice (McMahon, page 479, paragraphs 14 and 16). The present case did not, however, involve
any such specialist matters of professional practice. There were, he submitted, four important
factors pointing to the penalty selected being appropriate and necessary in the
public interest.
(1) There was a
clear element of lack of integrity and probity.
Of that, the Tribunal was entitled to take a serious view. In McMahon
at 480F, paragraph 21, the court said:
"where money is taken from the client
account dishonestly, we find it difficulty to see how the penalty can be
anything other than striking off.
(See also Bolton v Law Society [1994] 1 WLR 512 at 518B-E.)
(2) The second
aspect of the behaviour of the petitioner in respect of which he had been found
guilty of professional misconduct was in respect of failure to respond to
correspondence from the Council. That
had repeatedly been recognised by the court as a serious matter (Robson (2002) at 491-50, paragraphs 7 to
9; and Robson (2005) at 138,
paragraph 36).
(3) There was a
lamentable history of analogous misconduct.
In both the previous cases, an element of the misconduct of which the
petitioner was found guilty was failure to respond to correspondence from the
Council.
(4) The purpose
of the sanction imposed by the Tribunal was not primarily punitive, but rather
was designed for the protection of the public and the preservation of public
confidence in the profession (Bolton at 518H). That the effect of a striking off order on
the solicitor or his family will be "little short of tragic" does not make a
striking off order wrong if it is otherwise right; "The reputation of the
profession is more important than the fortunes of any individual member" (Bolton at 519E).
In all these circumstances the striking off order made by the
Tribunal was the right order for it to have made.
[43] In brief
submissions on this aspect of the case, the petitioner referred to the fact
that he had been a member of the solicitors' profession for twenty five years
before any complaint was made against him.
He had brought the appeal with a view to salvaging some vestige of his
reputation. He felt "hard done by" by
the profession. The previous order
restricting his practicing certificate had in practice meant that he was
precluded from practicing as a solicitor.
That would be put beyond doubt by the striking off order. The effect was seriously to restrict his
ability to earn an income and support his family. The proceedings had cost him £17,000.
[44] In our opinion
the sanction imposed by the Tribunal was one which they were justified in
imposing. The charges of professional
misconduct of which the petitioner was found guilty must be seen against the
background that on 7 November 2001 the petitioner had been found guilty
by an earlier Tribunal of professional misconduct in respect of repeated
failure to respond to requirements for information from the Council. He was fined £5,000 and it was directed that
for a period of three years any practising certificate would be subject to a
restriction limiting him to acting as a qualified assistant. On 15 March 2002 that disposal was upheld on appeal
in this court (Robson (2002)). On 8 October 2002 the petitioner was again found
guilty of professional misconduct in respect of further failures to respond to
requests for information from the Council.
Although the Tribunal on that occasion ordered that his name be struck
off the Roll of Solicitors in Scotland, that sanction was, with some
hesitation, quashed on 24 November 2004 on appeal to this court, and replaced
with a further direction that for five years any practising certificate would
be subject to a restriction limiting him to acting as a qualified assistant (Robson (2005)).
[45] The charge
relating to the fees taken from the executry, although it did not involve the
charging of an excessive fee, did involve a clear element of dishonesty in that
it involved the taking of a larger fee than had been agreed with the client, in
breach of that agreement and without notice to the client by the issuing of a
fee note as required by the Accounts Rules.
We note the observation of the court in Robson (2005) that in cases of dishonest appropriation of funds
from the client account, striking off can rarely be inappropriate. In this case there was the important additional
element of failure to respond to correspondence about the complaint from the
Council. That is, in itself, a serious
matter for the reason expressed by the Tribunal in its Note. It is particularly
serious in the context of the history outlined in paragraph [44] above. It has been recognised as serious by the
court, particularly in Robson (2005). The petitioner's submissions related to the
impact of the striking off order on his personal circumstances. We appreciate that striking off may have
unfortunate consequences for the circumstances of the petitioner and his
family. It seemed to us that the adverse
consequences had largely flowed from the sanction imposed in Robson (2005). In any event, while we do not go so far as to
hold that personal circumstances are irrelevant, we agree with the view
expressed in Bolton that adverse
personal circumstances may have to yield to the public interest. This is such a case. In all the circumstances, we are of opinion
that the sanction imposed by the Tribunal was the appropriate one to mark the
gravity of the petitioner's professional misconduct.
Result
[46] We therefore
refuse the prayer of the petition.
