Act : A Cowan, Solicitor Advocate; Simpson & Marwick

Alt: Dunlop; Balfour + Manson LLP

27 February 2009

1. The Petition:

[1] This is a petition, presented under section 54 of the Solicitors (Scotland) Act 1980 and Chapter 68 of the Rules of Court, appealing against a decision of The Scottish Solicitors' Discipline Tribunal dated 14 August 2008 finding the petitioner guilty of professional misconduct and thereafter censuring and fining him. The section provides that:

"(1) Any person aggrieved by a decision of the Tribunal relating to discipline under this Act may within 21 days of the date on which the decision of the Tribunal is intimated to that person, appeal against the decision to the court, and on any such appeal the court may give such directions in the matter as it thinks fit...".

Section 64 provides:

"Any notice or other document which is required or authorised under this Act to be given to, or served on, any person shall be taken to be duly given or served if it is delivered to him or left at, or sent by post to, his last known place of business or residence...".

Chapter 68 of the Rules applies exclusively to applications under the 1980 Act and Rule 68.2.(1) provides that an appeal shall take the form of a petition, which should state (RCS 68.2.(4)) the date upon which the decision appealed against was intimated to the petitioner.

[2] It is agreed that a letter intimating the Tribunal's decision was received at the petitioner's place of business, and signed for by a member of his staff, on 16 September 2008. The petition was lodged on 28 January 2009. It is apparently therefore, in terms of section 54, very late. The motion before the Court is to allow the petition to be received late and for a first order for service and answers.

[3] The petitioner is a solicitor. By letter dated 30 March 2007 a client complained about his conduct in connection with a criminal appeal. On 2 May 2007, the respondents sent to the petitioner, at his business address, details of the complaint and sought his comments thereon. On 25 June 2007, a formal letter of complaint was sent to the petitioner by the respondents, requesting a response and the production of the relevant files. No response was received from the petitioner. Accordingly, on 20 July 2007 the respondents served Notice on the petitioner in terms of sections 15(2) and 42C of the Solicitors (Scotland) Act 1980 requiring production of the files. The respondents telephoned the petitioner's office and were advised that he was on holiday. On 20 August 2007, a further Notice in terms of section 15(2) was served, advising the petitioner that, in light of his failure to respond, the respondents would consider whether he was guilty of professional misconduct. Further letters were sent to the petitioner's business address in the form of reminders and advice that the matter had been remitted to a reporter and then to a Committee. On 10 January 2008, the Committee determined that the petitioner had provided an inadequate professional service in relation to the client and, under section 42A of the 1980 Act, directed, inter alia, that the petitioner pay to the client compensation of £950. This determination was posted to the petitioner along with details of his right to appeal and a request for him to explain what steps he would take to implement the determination. A reminder was sent on 17 March 2008. Still no replies were forthcoming.

[4] On or about 16 May 2008, according to the averment in the petition, the respondents "served upon the petitioner" a complaint alleging professional misconduct. The misconduct consisted of failures: (a) to respond to enquiries made of him by the respondents; (b) to respond to statutory notices sent to him by the respondents; and (c) to comply with a direction to pay compensation. No answers were lodged. A hearing on the complaint took place before the Scottish Solicitors Discipline Tribunal on 14 August 2008. The petitioner was not represented. The petitioner was found guilty, censured, fined £2,500 and found liable in expenses to the respondents and the Tribunal. There was also an order to publicise the decision.

The petition contains the following extraordinary narrative:

"6 ...the petitioner formerly employed a secretary. The secretary opened all of the mail delivered to the petitioner's office. Any mail that required to be dealt with by the petitioner was then to be passed to the petitioner. Unbeknown to the petitioner, the secretary held back correspondence that included correspondence from [the respondents], the Clerk to the Tribunal and the [respondent's] fiscal".

Accordingly, avers the petitioner, he was unaware of the original complaint against him by the client and the subsequent procedure which culminated in the censure and fine. Had he been aware of the complaint by the respondents, he would have lodged answers, appeared at the hearing before the Tribunal and explained why he had not responded to the respondents' requests for information and documents. The petitioner avers that he first became aware of the respondents' complaint and the decision of the Tribunal on or about 8 January 2009. Affidavits from the petitioner and his wife support the content of the petition. That from the petitioner states that the petitioner became aware of the proceedings against him only when a colleague, who was involved with the respondents, telephoned him on 8 January 2009 to say that the respondents were that day to consider suspending his Practising Certificate. On conducting a search on the Internet, the petitioner discovered the Tribunal's findings against him. On confronting his secretary, she initially denied the existence of any correspondence about the matter. Shortly afterwards, however, she was discovered attempting to leave the office with a bag containing fifty seven letters, including some which related to the Tribunal proceedings.

2. Submissions

[5] Despite the terms of the motion and the petition, the petitioner began by advancing an argument that the petition was not late. The basis for this was that the decision could not be said to have been "intimated" to the petitioner before the date upon which he became aware of that decision. The ordinary meaning of "intimate" was "make known". It was recognised that where, as here, there had admittedly been receipt at the petitioner's office of a recorded delivery letter intimating the decision, such an argument, were it to be successful, might lead to uncertainty. However, the alternative was that a person could lose a right of appeal against a decision about which he was unaware.

[6] Thereafter, the petitioner maintained that the Court had power to allow an appeal to be received late under the common law, the 1980 Act and the Rules of Court. At common law, the power was said to exist by the annotators of Rule of Court 41.2 in the Parliament House Book (para 41.2.3). However, it was acknowledged that the case quoted (National Commercial Bank of Scotland v Assessor for Fife 1963 SC 197) did not support that proposition and there was English House of Lords authority to the opposite effect (Mucelli v Government of Albania [2009] 1 WLR 276, Lord Brown of Eaton-under-Heywood at paras 38-39, Lord Neuberger of Abbotsbury at para 74). Under section 54 of the 1980, the Court had power, on an appeal, to give such directions as it thought fit and this could permit a late appeal, even if the section did state that the power was "on any such appeal". In that regard, the right to a fair trial under article 6 of the European Convention on Human Rights and Fundamental Freedoms might be invoked to aid the construction sought. That was so even if the petitioner did retain a right to apply to the court for a reduction of the Tribunal's decision. Finally, there was authority for the proposition that the court could allow an appeal to proceed late where the statutory time limit had been incorporated into the Rules of Court, failure to comply with which was subject to the general dispensing power (RCS 2.1) (Graham v John Tullis & Son (Plastics) (No. 1) 1992 SLT 507). In this connection, although Chapter 68 of the Rules dealt with appeals under the 1980 Act, Chapter 41 also applied to statutory appeals and Rule 41.20 incorporated the statutory time limits into the Rules generally in the same way as the provision had been incorporated in Graham (supra).

[7] The respondents expressed sympathy for the petitioner's plight as set out in the petition. However, they submitted that the petitioner's position was unworkable in practical terms. It would cause real practical difficulties if the respondents were required to intimate all necessary documents personally to the person concerned. Section 64 of the 1980 Act put the matter beyond doubt; that intimation was effected by either delivering the item personally or leaving it at, or posting it to, the potential recipient's last known place of business or residence. Delivery to an "agent", such as a relative at a residence or an employee at an office was sufficient (Tanham v Nicholson (1872) LR 5 HL 561, Lord Hatherley LC at 571, Lord Westbury at 574). There was no power at common law to extend deadlines specified in Acts of Parliament (Mucelli v Government of Albania (supra); R v Weir [2001] 1 WLR 421, Lord Bingham of Cornhill at paras 13 - 14 following Petch v Gurney [1994] 3 All ER 731, Millett LJ at 738). Before the Court could exercise its right to make directions under section 54, there would require to be an extant appeal and the petition, without an order for service, did not constitute such an appeal. In relation to the European Convention, the petitioner continued to have a remedy in the form of a reduction. Article 6 could not apply in these circumstances. Furthermore, the Convention did not confer a right to appeal decisions. Were the Convention applicable, then it is odd that it was not considered in Mucelli v Government of Albania (supra). Chapter 41 of the Rules of Court was not applicable to appeals such as the present, since Chapter 68 made it clear that the mode of appeal was by way of petition.

3. Decision

[8] It is agreed that the decision of the Tribunal was sent to the petitioner by recorded delivery post and taken in by a member of his staff at his business premises. The case falls directly within the terms of section 64, which refers to situations where a document requires to be "given to" a person. That is what intimation is. The decision must therefore be taken to have been duly intimated to the petitioner. It is not a requirement of "intimation" that the document be put directly into the hands of the potential recipient. That would impose far too exacting a standard. It would not be practicable, in that it would require considerable extra expense, and possibly investigation, to achieve such delivery. It would also introduce an element of uncertainty. Provisions of the type found in section 64 are not uncommon (see RCS Chapter 16). They are designed to provide a method by which a person charged with a duty of intimation can be sure that he has done so effectively. It is sufficient, in terms of the section, that the document is sent by post to the person's last known place of business. That is what was done here. The petition is accordingly late.

[9] In Simpson v Assessor for Selkirkshire 1948 SC 270 the Court was concerned with section 9 of the Lands Valuation (Scotland) Act 1854 and section 7 of the Valuation of Lands (Scotland) Amendment Act 1867. Section 9 of the 1854 Act conferred a general right of appeal subject to a proviso that an appellant intimate an intention to maintain the appeal six days prior to the appeal hearing. Section 7 of the 1867 Act provided that all appeals required to be lodged by 10 September in the relevant year. The appellant had lodged his appeal on 12 September, two days late. The Court held that the time limit in the 1867 Act was imperative and that therefore the appeal was incompetent. Lord Jamieson expressed the straightforward view (p 272) that:

"...where the Act says that appeals are to be lodged not later than a certain date, ...it means just what it says, and that, if an appeal is not lodged by that time, then it is not a competent appeal".

Lord Keith was of the same view (p 275). Although the law reporter records Lord Sorn as doubting the decision of the majority, Lord Sorn did not disagree with it (p 276). He did, however, express the view that, if it were possible, a case for excusing the failure to comply with the time limit had been made out. It was recognised by all three judges that the proviso in the 1854 Act, which had been complied with, was directory and not imperative.

[10] Simpson (supra) was considered in National Commercial Bank of Scotland v Assessor for Fife (supra). In the rubric, the reporter states that it disapproved of the earlier decision. However, by the time of this case the terms of section 7 of the 1867 Act, which had been deemed imperative in Simpson (supra), were no longer applicable. The time limit for lodging an appeal was not expressed in primary legislation. Rather it had been regulated by section 13 of the Valuation and Rating (Scotland) Act 1956, which permitted the Secretary of State to prescribe the relevant date. He had done so in the Valuation Timetable (Scotland) No 2 Order 1962 by making the relevant date 15 September (a Saturday). Lord Patrick analysed the reasoning of the three judges in Simpson (supra) before pointing out that the terms of the original section 7 of the 1867 Act were no longer under consideration. Rather, the right of appeal under section 9 of the 1854 carried with it no time limit set within the main body of the primary legislation. The limits were contained in a Schedule and subject to alteration by the Secretary of State. In these circumstances, he considered (p 202) the provisions to be "directory and regulative of procedure" and not imperative. It is only Lord Kilbrandon who states specifically that Simpson (supra) was wrongly decided and, even then, he acknowledges that it was dealing with different provisions. In short, National Commercial Bank of Scotland v Assessor for Fife (supra) cannot be taken as stating that the Court, or other relevant body, has a power to override time limits for appeals contained in the primary sections of Acts of Parliament. Simpson (supra), on the other hand is clear authority that they cannot. That is also the highly persuasive view of the House of Lords in the English cases of Mucelli v Government of Albania (supra) (Lord Brown at paras 38-39, Lord Neuberger at para 74) and R v Weir (supra) (Lord Bingham at paras 13 - 14 following Petch v Gurney (supra), Millett LJ at 738).

[11] The Court's powers to give directions under section 54 of the 1980 presuppose the existence of a competent, including a timeous, appeal.

[12] The Court has not found it easy to grapple with the reasoning in Graham v John Tullis & Son (Plastics) (No. 1) (supra). It appears to be authority for the proposition that the provisions of the Court of Session Rules of Court (now promulgated under section 5 of the Court of Session Act 1988) concerning the time limits for lodging appeals from inferior Courts, override the earlier limits set in the Sheriff Court Rules contained in the Schedule to the Sheriff Courts (Scotland) Act 1907. Therefore, the Court can also use its general dispensing power to allow an appeal to be received late, even where the limit set by Parliament has been exceeded. The petitioner's argument under cover of this case must be commended for its ingeniousness. The fatal problem for it is that the relevant Rules of Court covering this appeal (Chapter 68) do not set out any time limits which might have superseded those in the 1980 Act. Chapter 68 makes it clear that appeals under that Act must proceed by way of petition; thereby providing a summary process in which the Court can exercise its wide powers of direction under section 54 of the Act. Chapter 41, which is applicable to statutory appeals in general, does not apply since it is dealing with a different form of process, namely an appeal in the shape of Form 41.19.

[13] For all of these reasons, the motion to allow the petition to be received late and for first orders must be refused. That does not leave the petitioner without a remedy, since he may proceed by way of reduction; a form of process probably more appropriate in any event to this type of case where it is not sought to bring the merits of a decision under review. However, the Court is conscious that, in other cases, the absence of a general power to relieve parties from the consequences of their failures to comply with strict statutory time limits may lead to injustice. But it is a matter for the Parliament which sets these limits to decide whether such a power should be conferred upon the Courts. At present, no such power exists.