Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 7

XA168/14

Lady Dorrian

Lord Drummond Young

Lord Malcolm

OPINION OF LADY DORRIAN

in the appeal

by

McSPARRAN McCORMICK

Applicants;

Under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007

against a decision taken by the Scottish Legal Complaints Commission dated 25 June 2014

 

Applicants: Brown;  Ian Anderson, Solicitors

Respondent: McIlvride, QC;  Harper McLeod LLP

27 January 2016

Introduction

[1]        The appellants are a firm of solicitors who complained to the Scottish Legal Complaints Commission about the conduct of another solicitor, Mr John McGeechan of JBM Solicitors, Airdrie.  In essence, the complaint alleged that Mr McGeechan wrote letters to the appellants, to another firm of solicitors and to a firm of chartered accountants in which it was falsely asserted that the appellants had conspired with a chartered accountant and others to commit fraud, and did indeed commit fraud.  The precise nature of the complaint will be discussed below.  The Scottish Legal Complaints Commission concluded that the complaint was totally without merit in terms of section 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007 (“the 2007 Act”).  Accordingly, the complaint was ruled ineligible, and accordingly not referred to the relevant professional organisation, namely the Law Society of Scotland.

 

Background

[2]        The issue arose in connection with the affairs of a deceased client of the appellants, as explained in the Scottish Legal Complaints Commission determination paras 1.1 to 1.10.  The appellants had acted for Mr Leslie Wilmot who died in March 2008.  His estate was wound up on the basis of intestacy in accordance with a deed of variation agreed by his four children, one of whom was a Justin Wilmot.  Justin Wilmot was the son of the deceased and a former co-habitee, Caroline Callaghan.  The appellants wound up the estate.

[3]        In March 2014 they received a letter, dated 5 March, from Mr McGeechan acting for both Justin Wilmot and Caroline Callaghan.  The letter was headed “Action for reduction of deed of variation”.  It referred to a will of the deceased from 1990, and claimed that at a meeting at which the Deed of Variation was signed, and at which a solicitor from the complainer’s firm was present, Justin Wilmot had given a copy of the 1990 will to Mr O’Hara, who ignored it.  The letter stated:

“The Will of Leslie Wilmot was prepared by your firm and appears to be properly executed.  Your firm would, therefore, be aware of the existence of the Will whilst acting in the Deed of Variation. 

 

It appears that the Deed of Variation was a fraud that resulted in Caroline Callaghan being cheated of her rights under the will……

 

We are instructed to raise an action of reduction and to seek damages against all parties involved.  We are also instructed to lodge complaints with various professional bodies, the police and HMRC.”

 

The letter continues:

“It may be that our clients are misinformed or that there is a genuine and legal explanation or reason.  If this is the case please provide it as soon as possible”. 

 

[4]        In a letter sent the same day to Messrs Clark Boyle, Solicitors, who acted for another member of the family, Mr McGeechan stated that:

“The solicitors who prepared the will and the Deed of Variation, the accountants and your client were aware of the existence of the will.”

 

It asserted that the Deed of Variation:

“…appears …to be evidence of fraud on the part of those who benefited from the Deed significantly and it raises questions about the actions of the law firm… involved.”

 

It concludes by stating:

“We are further instructed to lodge formal complaints with the professional bodies regarding the firm of solicitors and the accountant and will be lodging a formal complaint with HMRC and the police about the deliberate undervaluing of the estate and the theft of moveable items from the estate…………………………We would be interested to know if your client can assist us as a witness in what will be a larger action regarding the Deed of Variation and the will, in order that we can correct the fraudulent distribution of the estate of Leslie Wilmot”

 

It is apparent from this letter that Caroline Callaghan was claiming to have been married to the deceased at the time of his death.

[5]        A third letter was sent to the deceased’s chartered accountant, Mr O’Hara, in which it was stated that “…   Caroline Callaghan has been cheated out of her rights under the will and that a fairly substantial fraud has been committed”. 

[6]        That letter also indicated that complaints would be lodged with professional bodies, the police and HMRC.

[7]        The appellants received a further letter from Mr McGeechan dated 24 March 2014 in which, after referring to the 1990 will, he stated:

“Your firm also thereafter acted for various parties in a Deed of Variation which clearly contradicts the will and which stated in paragraph 1 that Leslie Wilmot died intestate.  He obviously did not die intestate and your firm would have had to be aware of that, having drafted and attended to the execution of his will”

 

He added that Justin Wilmot 

“was deceived into signing the Deed of variation when a solicitor from your office was present……………The Deed of variation would therefore appear to be a fraudulent document by claiming that Leslie Wilmot died intestate”.

 

[8]        On the same date a further letter was also sent to the chartered accountants in terms which stated:

“We also note that you refer to another will and that this appears to have been unsigned.  This may be viewed as a convenient and manufactured document that was created by various parties who were not happy about the will of Leslie Wilmot.  We are concerned to note that the solicitors who acted in the original will and the Deed are the same firm.  It seems very strange that there was no reference to the validly executed will and we note that Caroline Callaghan, who was a beneficiary in that will, is not a signatory to the Deed.  This therefore makes the Deed invalid and the whole circumstances give the impression of a deliberate fraud.”

 

That letter also states

“we hold a valid signed and executed will”

a claim which the appellant asserts is false, Mr McGeechan having had sight only of a copy will. 

[9]        A letter of 24 April was written to the Institute of Chartered Accountants of Scotland intimating a complaint against Mr O’Hara.  In that letter it was asserted that:

“..through a combination of actings of McSparran McCormack ……….he [Justin Wilmot] was deceived into signing a Deed of variation.”

 

[10]      In a final letter, dated 7 May and sent to Mr Ian Anderson, solicitor, by then acting for the appellants, Mr McGeechan stated:

“There appears to be collusion between professional parties and other members of the family”.

 

[11]      The appellants aver that at the time of the 1990 will the deceased was co-habiting with Caroline Callaghan who was named as a beneficiary in the will.  That relationship foundered in acrimonious circumstances in 1994, apparently in consequence of Caroline Callaghan commencing a relationship with a friend of the deceased, one Benjamin Biddle whom she married in 1999.  In about December 1997 the deceased contacted the appellants to make further testamentary arrangements.  He considered that the provision for Caroline Callaghan was no longer appropriate, and that provision should be made for Justin Wilmot who had not been born until after the execution of the 1990 will.  Accordingly, on 18 December 1997 he instructed the appellants to destroy the 1990 will and gave instructions for preparation of a new will.  In accordance with those instructions the old will was destroyed and a new will prepared and sent to the deceased who kept it with his papers but did not sign it.  He contacted the appellants shortly before his death to review his will.  They read over to him the terms of the 1997 will, but failed to notice that it had not been signed, with the result that he died intestate. 

[12]      The appellants further aver that prior to the letter of 24 April 2014 they had informed Mr.  McGeechan (i) that Caroline Callaghan had never been married to the deceased; (ii) that at the time of the death she was in fact married to someone else; and (iii) that the 1990 will had been destroyed animo revocandi.

[13]      The appellants complained to the Scottish Legal Complaints Commission on the basis that Mr McGeechan may have been guilty of professional misconduct, or at least unsatisfactory professional conduct, by making allegations of serious impropriety on the part of the appellants with no proper basis to do so.  The complaint opens by stating:

“We are complaining about the conduct of John McGeechan of JBM Solicitors Limited in respect of letters written to our firm …and to another firm of solicitors and to a firm of Chartered Accountants containing untrue allegations that solicitors at this firm conspired with a chartered accountant and members of a family to commit a fraud and carried out the fraud.”

 

The complaint refers to the letters of 5 March and adds:

“Copes of the letters of 5 March 2014 and subsequent letters from JBM …are enclosed”

 

[14]      It is said that there had been no contact made prior to the letters of 5 March being sent, and no attempt to obtain information from the appellants, who maintain that the allegations made by JBM were made without properly checking the facts, recklessly, and without proper belief in their truth.  The complaint maintains that “it is clear from the correspondence” that JBM had no proper knowledge of the background facts, and concludes:

“A solicitor has a duty to act ethically and with restraint and it was at least unsatisfactory professional conduct for such a serious allegation to have been made recklessly in intemperate language without any proper basis.”

 

[15]      The Commission sent a summary of the complaint to the appellants on 2 June 2014, in which reference is made only to the letters of 5 March.  The Commission proceeded to treat the complaint as restricted to the contents of the letters of 5 March.  They noted that two of those letters concluded:

“It may be that our clients are misinformed or that there is a genuine and legal explanation or reason.  If this is the case please provide it as soon as possible”.

 

They referred to a response from JBM dated 7 March 2014 in which

“The firm confirmed that their communications in this matter were on the basis of their client’s instruction and they have thereafter sought counsel’s opinion.  The firm stated that having reviewed their letters, they accepted that the issues were contentious and that they were asking difficult questions but they denied that they had been unprofessional or inappropriate”

 

[16]      The determination noted that there was no suggestion that the letters were sent other than in accordance with their client’s instructions or that the factual assertions were based on anything other than the version of events provided by their clients, and that the letters were seeking information and comment from the recipients.  It concluded that in writing such a letter a solicitor did not warrant the truth of the allegations and that:

“...provided that he has information to support the allegations, in this case his client’s instructions, witnesses to the handing over of the will to Mr O’Hara of the accountancy firm and Counsel’s opinion, there is no duty to conduct further investigation before writing such a letter...the solicitor was plainly entitled without further enquiry to accept the account of his clients and to write the letter on that basis.”

 

The Commission therefore dismissed the complaint as being totally without merit.

 

Submissions for appellants

[17]      The appellants contended first, that the Commission, in seeking to follow the guidance in Law Society of Scotland v The Scottish Legal Complaints Commission 2011 SC 94, did so erroneously; and secondly, that it erred in considering only the terms of the letters of 5 March; and that in any event its determination was not supported by the facts.  In terms of section 2(4) of the 2007 Act, after classifying a complaint as either a conduct complaint or a services complaint, the Commission required

“(a) to determine whether or not the complaint is frivolous, vexatious or totally without merit”

 

[18]      On such a determination the complaint would be dismissed; otherwise it would be remitted to the Law Society of Scotland for investigation.  The sifting role of the Commission was considered in Law Society of Scotland v Scottish Legal Complaints Commission 2011 SC 94, in which a solicitor had written, on the instructions of his clients, asserting that the complainers had taken unauthorised access over his clients’ land, threatening interdict if they did not cease to do so.  A complaint regarding the tone of the letter, and that it was factually inaccurate, was admitted and referred to the Law Society of Scotland, who appealed against the determination.  At para 27 of his opinion Lord Kingarth said that the Commission’s reasoning proceeded:

“..upon a fundamental misunderstanding of the relevant role and duty of the solicitor in the circumstances in which the letter of 6 July 2009 was written.  It is accepted in para 3.5 that the solicitor was acting on his clients' instructions.  In the circumstances his duty, acting on those instructions and on information provided by his clients, was to report his clients' concerns.  There is no suggestion in the respondents' determination that he did anything other (a matter to which I will revert).  In no sense could the solicitor, in these circumstances, be said to warrant, or be personally responsible for, the accuracy of what he was told.  Nor could it be said that he had any duty to carry out any independent check or checks as to whether the information he received was true.”

 

The appellants accepted the reasoning in that case as a generality, but argued that it was not apt to cover a situation which involved imputations of fraud or dishonesty, particularly against a professional person, for whom the preservation of a reputation for probity and honesty was of the utmost importance. 

[19]      There was an important distinction between an assertion of primary fact and an assertion of inference drawn from primary fact.  In Law Society of Scotland v Scottish Legal Complaints Commission the central assertion was of primary fact which the solicitor was entitled to take at face value.  The present case was quite different.  On the basis of the facts known to Mr McGeechan one might reasonably infer that there had been a valid will in 1990, but it was quite another matter to proceed to the inference that the same will remained in existence at the date of death, that a valid will had deliberately been suppressed, that the deed of variation amounted to a fraud and that the appellants had been a party to that.

[20]      The fact that a solicitor had no duty to act as a neutral inquisitor seeking some objective truth did not mean that the solicitor was thereby rendered free to say anything at all, provided that the assertions came from his client.  In Law Society of Scotland v Scottish Legal Complaints Commission Lord Kingarth observed (para 26) that in the circumstances of that case:

“There could be no question of any boundary, whether in terms of intemperate language or inappropriate threat, having been overstepped”.

 

This acknowledged that there was a dividing line and that the rules of professional conduct established clear limitations upon what a solicitor may or may not say in correspondence.  That accords with the approach of the Scottish Solicitors Discipline Tribunal (SSDT) which, in its decision 806/90, expressly endorsed the following statement from the then current Guide to the Professional Conduct of Solicitors published by the Law Society of England and Wales:

“A solicitor must at all times maintain his personal integrity and observe the requirements of good manners and courtesy towards other members of the profession or their staff, no matter how bitter the feelings between clients.  He must not behave in a manner which is acrimonious or offensive or otherwise inconsistent with his position as a solicitor.”

 

To the same effect are the decisions of the SSDT in Lochiel Cushnie (SSDT 19.2.02) and Grant Docherty (SSDT 24.4.13) that unbridled, intemperate or abusive language and the offensive and unprofessional tone of certain letters was sufficient to amount to misconduct, membership of the profession carrying with it obligations of dignity and restraint.  The Law Society of Scotland Practice Rules 2011 provide (Rule B1 para 1.14.1) that a solicitor must deal with other regulated persons, including other solicitors “in a manner consistent with persons having mutual trust and confidence in each other.”  Counsel submitted that solicitors were obliged to take particular care to identify the basis underlying accusations of dishonesty, and to refrain from making such accusations unless a proper basis for them existed. 

[21]      Against that background it would be impossible to conclude that the act of sending the letters in the present case could never amount even to unsatisfactory professional conduct.  It was reasonable to assert that a substantial body of competent and reputable solicitors would regard the accusations made in the letters as outrageous, disgraceful and improper unless there was clear evidence of fraud to support them. 

[22]      The responsibilities on a pleader in respect of allegations of dishonesty were well understood, as noted by Lord Hodge in Grant Estates plc v Royal Bank of Scotland plc [2012] CSOH 133, para 93.  It was acknowledged that the obligations in relation to correspondence may be less exacting, but it should be for the Law Society upon investigation to define the scope of the duty, whether it had been breached, if so to what extent, and whether the breach amounted to either professional misconduct or unsatisfactory professional conduct.  The sifting exercise carried out by the Commission was one of very limited scope, where the threshold to be crossed by the complainer was a low one.   The Commission should be slow to withdraw a conduct complaint from investigation on the basis of its own superficial assessment of the proper scope of professional duty.

[23]      As to the scope of the complaint, there was a distinction between the complaint itself and a summary of it.  The complaint fell to be determined according to a fair reading of what the complaint was actually about, based upon all of the material submitted by the complainer to the Commission or otherwise before it. 

[24]      The Commission’s view that the fact that a solicitor acted upon client’s instructions rendered the solicitor immune to disciplinary sanction in respect of his correspondence was an unwarranted gloss upon the decision in Law Society of Scotland v Scottish Legal Complaints Commission.   

 

Submissions for respondent

[25]      For the respondent it was submitted that the Commission was entitled (i) to treat the terms of the complaint as restricted to the letters of 5 March; and (ii) to dismiss the complaint as being totally without merit.  Senior counsel for the respondents advanced the following propositions:

1. In writing the letters on clients’ instructions the solicitor did not warrant, or have responsibility for, the accuracy of what he had been told
2. He had no duty to carry out an independent investigation as to its truth
3. The respondent’s duty was restricted to considering the complaint actually made, and
4. The respondent had no duty to attempt to resolve any material dispute of fact bearing upon the complaint

[26]      The first three principles were derived from Law Society of Scotland v Scottish Legal Complaints Commission.  The letters contained assertions of fact, made on instruction.  The solicitor expressly represented that he was acting on behalf of named clients.  He was not personally responsible for the accuracy of the information upon which the letters were based and was under no duty to carry out any investigation to establish whether the information was true: Law Society of Scotland v Scottish Legal Complaints Commission, (Lord Kingarth at para 27).  The correspondence did not suggest that the appellants themselves were party to a fraud.  The writer expressly accepted the possibility that his clients were misinformed, and invited the appellants to provide their explanation of events.  It was no part of the appellants’ complaint that the language used by the solicitor was intemperate. 

[27]      It was not the function of the respondent to resolve any material dispute of fact, or to carry out an independent investigation to establish the truth or falsity of the information provided, or to attempt to evaluate the strength of the solicitor’s clients’ case: Saville-Smith v Scottish Legal Complaints Commission [2012] CSIH 99. 

[28]      In response to the appellant’s contention that the solicitor should have considered that the will might have been revoked, his instructions were that his client had produced a copy of the 1990 will at the meeting and that it was wilfully ignored.  It was on the basis of this instruction in particular that the solicitor drew the legal inference that there was a scheme defrauding his clients of their share of the estate.  In two of the letters he added a rider saying that his clients may be misinformed, in which case he was asking the solicitors to provide further information. 

[29]      The complaint made is about lack of investigation: there was no error in considering whether a complaint that the letter was written without investigation would be rejected by Law Society of Scotland.  There was nothing wrong with a solicitor subjecting the facts to legal analysis and reaching a legal conclusion.  The fact of doing so did not mean that he was warranting the legal conclusion.

[30]      Although the complaint was capable of covering the subsequent letters, the Commission could reasonably have read it as being restricted to the letters of 5 March.  The summary which was sent to the complainers was revised by them but did not contain reference to any letters beyond those of 5 March. 

[31]      The determination of the Commission displays none of the errors upon which this court could reverse the decision.  Reference was made to Savile Smith v Scottish Legal Complaints Commission [2012] CSIH 99 in which the following was observed:

“17  At the outset, we should note that in cases such as the present it is not the court's function to substitute its decision for that of the Commission.  The court's task is rather to ensure that the decision made by the Commission is one that such a body, properly directed in law, might reasonably make.  If the decision of the Commission is lacking in rationality, as the appellant submits, it will of course fail that test and fall to be reduced.  In the present case, however, we are of opinion that the Commission's decision cannot be criticised as irrational.  In so holding, we recognize that the question facing the Commission is whether a complaint is ‘totally without merit’, the test specified in section 2(4) of the 2007 Act.  That is clearly a low threshold.  In the present case, however, when the involvement of Mr Brown with the internal appeal tribunal is properly analysed, we are of opinion that the Commission's decision that the appellant's first two heads of complaint were totally without merit is one that such a body could properly make.

 

…

 

25  The appellant further contends that the Commission's decision was not supported by the facts found by them.  In considering this question, it is necessary to consider the whole of the Commission's Reasons for Decision.  The critical question is whether, on the facts found, the reasons given by the Commission are adequate to enable a reader to determine why the matter had been decided as it was: Wordie Property Co Ltd v Secretary of State for Scotland, 1984 SLT 345 .  It is not necessary that the reasons given by the Commission should be drafted to a particularly high standard; a document intimating a decision of this nature may be relatively informal, and all that is required is that it should meet the test just described.  It is not fatal to the validity of such a document that some of the passages in it are badly expressed, or indeed incorrect, provided that the findings of fact and reasons taken as a whole satisfy the basic test of making the reasons for the decision intelligible.  Subject to these matters, the weight of any particular consideration is a matter for the Commission as decision-maker; it is not the court's function to substitute its decision for that of the Commission.”

 

It would always be a matter of degree whether there was sufficient material to justify a statement being made on a client’s behalf, but neither the solicitor nor the Commission was required to investigate whether the facts were true or not.  The ultimate question was whether there was adequate material to make the allegation. 

 

Discussion

[32]      The grounds upon which an appeal against a decision of the Commission may be based are to be found in section 21(4) of the Legal Profession and Legal Aid (Scotland) Act 2007, namely:

“(a) that the Commission's decision was based on an error of law;

(b) that there has been a procedural impropriety in the conduct of any hearing by the Commission on the complaint;

(c) that the Commission has acted irrationally in the exercise of its discretion;

(d) that the Commission's decision was not supported by the facts found to be established by the Commission”

 

[33]      The Commission proceeded on the basis that whether the allegations contained in the letter were true or false was irrelevant, so long as the allegations were made on the instructions of the client, and were not based on anything other than “the version of events provided by the client” (para 2.11).  The Commission considered that even if the allegations turn out to be unfounded, a solicitor was entitled to make the allegations “provided he has information to support the allegations” (para 2.12). In this case, the solicitor did have such information, namely “his client’s instructions, witnesses to the handing over of the will to Mr.  O’Hara of the accountancy firm” (para 2.12).  In my view in reaching these conclusions the Commission erred in law; its decision was not supported by the facts and was irrational.  If the Commission’s determination is to be read as proceeding on the basis that the letters did not assert fraud on the part of the complainers, that is a further error. 

[34]      On that last matter, it was suggested by Mr McIlvride that the letters did not in fact assert fraud on the part of the complainers.  That is in no way a reasonable reading of the letters, even those of 5 March, and in any event, it is not clear that it was a view reached by the Commission in relation to the correspondence in general.  It is in my view impossible to read these letters as other than asserting fraud on the part of the complainers.  The letter written to the complainers asserts that the deed of variation which they drew up in the knowledge of the existence of a prior will, appears to be a fraud resulting in Caroline Callaghan being cheated of her rights.  The letter to Clark Boyle also asserts that the solicitors who drew up the deed of variation were aware of the existence of the will, having drafted it, and that the deed of variation would not be valid since one of the beneficiaries was not a party to that “pretended” deed.  It concludes by asking whether Clark Boyle’s client would assist them “to correct the fraudulent distribution of the estate”. I accept that no such allegation is made in the letter to the accountants.  In the subsequent correspondence the assertions of fraudulent conduct by the solicitors appear to be even clearer. 

[35]      In relation to the Commission’s decision that there can be no complaint where a solicitor writes a letter in accordance with his client’s instructions, I consider that the Commission has erred in considering that the observations in Law Society of Scotland v Scottish Legal Complaints Commission in relation to assertions of primary fact have equal validity in relation to inferences of fact or law.  In relation to imputations of dishonesty it is not enough to entitle a solicitor to write letters of the type in this case that his client says “on these facts I assert I was cheated”.  The solicitor must be able to conclude that on a reasonable interpretation of the facts it would be reasonable to draw an inference of dishonesty.  In so far as the Commission’s decision proceeded on the basis that a solicitor would be entitled to make any assertion in correspondence, so long as it was made on the instructions of his client, that is an error in law. 

[36]      Furthermore, the Commission concluded that the solicitor did have “information to support the allegations” from his clients who were “witnesses to handing over the will to Mr.  O’Hara of the accountancy firm.”  This factor appears to have been highly significant in the Commission’s decision and was invoked as providing the link which was necessary to allow an inference of fraud to be drawn.  It was not, of course, the will which was handed over, but a copy of it.  The nub of the information given to JMB was that (1) an apparently validly executed will had existed in 1990; (2) that in 2008 the estate was wound up on the basis of intestacy by means of a Deed of Variation; and (3) that the accountant had been given a copy of the will at the time of the signing of the Deed of Variation but had paid no heed to it.  In my opinion that information is not sufficient to “support the allegations” as the Commission put it, or to provide the basis for the allegations of fraud on the part of McSparran McCormack as contained in the letters complained of (and that  is so even if the complaint is restricted to the letters of 5 March).  There was no appreciation that what the solicitors had been shown was merely a copy of the will, and not the original deed.  There was no appreciation that the conclusion involved the drawing of inferences from a chain of asserted facts, and that there was a clear gap in that chain.  It was suggested that the decision maker had taken the view there was no missing link in the chain of facts leading to an inference of fraud, but it seems clear that the decision maker has not even appreciated that this case involved not simply a repetition of asserted fact but the drawing of an inference, far less that there was a link missing in the chain of reasoning which led to the inference.   

[37]      Mr McIlvride submitted that a solicitor was entitled to apply a legal analysis to the facts presented by his clients and to write accordingly.  In general I accept that to be the case.  However, applying a legal analysis to the facts presented would not lead to an inference of fraud, in the absence of facts indicating, or making it a necessary inference, that the will which had been prepared in 1990 remained in force at the time of death and had not been destroyed or revoked on the testator’s instructions.  If the facts do not give rise to such a clear inference, an analysis proceeding on the basis of fraud would not be justified, and the facts provided by the client would not constitute “information to support the allegations”. 

[38]      In my view, counsel for the appellant was correct to draw a distinction between assertions of primary fact and inferences drawn from primary fact.  In the present case the allegations made by the solicitors required the drawing of the inferences that (a) the 1990 will must have remained in force at the time of death; (b) that the solicitors knew that; and (c) that they nevertheless wound up the estate according to intestacy, thus making themselves a party to fraud.  The factual information provided to the solicitor did not provide any reasonable basis for drawing such inferences, and the Commission’s conclusion that it did so is not supported by the facts upon which it relies.  The actions of the solicitors in this case went far beyond the mere factual assertions which had been made in Law Society of Scotland v Scottish Legal Complaints Commission.

[39]      As counsel for the appellants recognised, a key part of a solicitor’s duty is to represent his client without fear or favour, even when to do so involves imputations of serious wrongdoing against others.  To enable a solicitor to carry out that duty properly, his correspondence carries qualified privilege, but allegations of dishonesty should be made only where there is a clear justification for doing so.  The obligations resting on solicitors in relation to their correspondence are less exacting than those which rest upon a pleader, but I am nevertheless of the view that allegations of fraud should not be lightly made or inferred even in the course of correspondence. 

[40]      The fact that two of the letters contains a rider that the clients may be under a misapprehension does not answer the matter.  In the first place this is because, as I have noted, the allegations do not stem from primary facts provided by the client but from the unwarranted drawing by the solicitors themselves of conclusions of fraud.  Secondly, only two of the letters contain the rider.  The third letter, to Clark Boyle, in which clear allegations of fraud by the complainers are made in paragraphs numbered 2 and 3, contains no such rider, proceeds on the basis that these allegations are factually correct, and asks for Clark Boyle’s client to be a witness in assisting them to “correct the fraudulent distribution of the estate”. 

[41]      As to the scope of the complaint, this is a more delicate matter.  I think that on a fair reading of the complaint it is indeed a complaint about the subsequent correspondence, not merely the letters of 5 March.  It is perhaps unfortunate that the summary was not revised to make reference to the later letters, but these had clearly been alluded to in the original complaint.  It rather seems as if the complainers assumed that the complaint would require to be remitted to the Law Society of Scotland for investigation in any event.  However, this matter may be of little moment, since I understand that there has been a further complaint which covers not only those letters but subsequent averments made in court pleadings.  The present complaint is a complaint in general terms about allegations of fraud being made against the complainer with no proper basis for doing so; recklessly; and in intemperate language.  It is not correct to classify it merely as one which asserts the allegations were made “without investigation”.

[42]      The test for professional misconduct is set out in Sharp & ors v Council of the Law Society of Scotland 1984 SC 129 in the opinion of the court delivered by the Lord President (pp134-135):

“There are certain standards of conduct to be expected of competent and reputable solicitors.  A departure from these standards which would be regarded by competent and reputable solicitors as serious and reprehensible may properly be categorised as professional misconduct.  Whether or not the conduct complained of is a breach of rules or some other actings or omissions the same question falls to be asked and answered and 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.”

 

Unsatisfactory professional conduct, signifying a lower degree of culpability, has a statutory definition, found in section 46 of the 2007 Act:

“ ‘unsatisfactory professional conduct’” means, as respects a practitioner who is—

…….

(d) a solicitor, professional conduct which is not of the standard which could reasonably be expected of a competent and reputable solicitor;”

[43]      I agree with counsel for the appellant that rejection of a complaint at the sift stage implies that it would not be open to the Law Society of Scotland to conclude that the conduct amounted even to unsatisfactory professional conduct.   That decision is vitiated as having been reached on the basis of errors in law and being in certain respects unsupported by the facts found to be established by the Commission.  The Commission’s decision is in my view irrational, in the sense that it is not one which a body such as the Commission might reasonably make.  Accordingly, I propose to your Lordships that the appeal be allowed and the case remitted to the Commission to proceed as accords. 

 

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 7

XA168/14

Lady Dorrian

Lord Drummond Young

Lord Malcolm

OPINION OF LORD DRUMMOND YOUNG

in the appeal

by

McSPARRAN McCORMICK

Applicants;

Under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007

against a decision taken by the Scottish Legal Complaints Commission dated 25 June 2014

 

Applicants: Brown; Ian Anderson, Solicitors

Respondent: McIlvride, QC; Harper McLeod LLP

27 January 2016

[44]      I agree that this appeal should be upheld.  Nevertheless, the issues involved are of general importance, and I therefore propose to write my own concurring opinion.

[45]      The Scottish Legal Complaints Commission rejected the applicants’ complaint as totally without merit on the ground that the letters complained of were sent in accordance with instructions given to a solicitor by his client.  In its determination, the Commission states that it is not suggested that the factual assertions made in the letters were based on anything other than the version of events provided to the solicitor by his clients (paragraph 2.11).  Consequently two general propositions were operative:  first, if a solicitor accepts an instruction and writes a letter repeating allegations made by his client, he does not give any implied warranty of the truth of the allegations;  and secondly, provided that a solicitor has information to support the allegations, in the present case his client’s instructions, certain witnesses and counsel’s opinion, there was no duty to conduct further investigation before writing letters such as those complained of (paragraph 2.12).

[46]      In my opinion the approach taken by the Commission is too simplistic:  it is not a complete answer to a complaint about a letter written by a solicitor to say that the letter merely represented a client’s instructions.  In cases such as the present, a number of additional factors appear to me to be important, and I will discuss three of these.  Before I do so, however, I would emphasize that the Commission’s function is to sift complaints, not to determine them;  if a complaint is remitted the latter task falls to the Law Society, which conducts its own investigation of the case.  It is the Law Society that is, generally speaking, the body best placed to evaluate whether a solicitor has been guilty of professional misconduct or unsatisfactory professional conduct.  It follows that the threshold for remitting a complaint to the Law Society is relatively low.  I would endorse the statements of your ladyship and your lordship that the test for rejection of a complaint as totally without merit is that it would not be open to the Law Society to conclude that the conduct complained of amounted to professional misconduct or unsatisfactory professional conduct.

[47]      The first of the additional factors that I consider important in the present case is this:  when a complaint is made about a letter written by solicitor on behalf of a client, it is essential to consider the seriousness of the allegations that are made in the letter.  If the allegations amount to criminal conduct, or involve significant moral turpitude, the solicitor writing the letter should not merely take his client’s contentions at face value, but should ensure that some evidence exists to support them.  The reason for this is obvious:  the graver the allegation that is made, the more care should be taken before making it.  This is an important point of distinction between the present case and Law Society v Scottish Legal Complaints Commission, supra.  In that case a letter had been written by a solicitor on behalf of his client to assert that the complainers had taken unauthorized access over the client’s land and to warn that if such conduct did not stop legal proceedings could be raised.  There is no suggestion of moral turpitude in such a letter.  All that was involved was a straightforward, and possibly disputed, case of trespass over another person’s land.  In the event that the allegations in the letter were disputed, a letter of rebuttal could have been sent, and if proceedings were thereafter raised in court they could be defended.  The present case, by contrast, involves allegations of fraud, a much more serious matter.  In any such case, I consider that care must be taken before allegations are made.

[48]      Secondly, the allegations made in a typical solicitor’s letter are frequently – perhaps normally – not simple allegations of fact.  They involve the application of the law to the facts of the case, or the drawing of legal inferences from those facts.  Indeed, as is perhaps obvious, the purpose of employing a solicitor is to obtain the benefit of legal advice and analysis and to put the results of that analysis to other persons – the person with whom the client is in dispute, or the other parties to a transaction.  In giving advice as to the legal consequences of a factual scenario, it is to be expected that a solicitor will subject the facts to an appropriate degree of critical scrutiny before giving advice about the legal position.  That is especially so where the inference that is contemplated involves criminal or seriously unethical conduct.  When an allegation of fraud is made, that amounts to the drawing of a legal inference.  In such a case, it can be expected that a responsible solicitor will examine the facts with considerable care before advising that a case of fraud exists, and certainly before writing a letter making such an allegation in forthright terms.  In this respect there is a distinction from Law Society v Scottish Legal Complaints Commission, supra, where the allegation that the complainers had taken unauthorized access over the solicitors’ clients’ land on a regular basis was essentially factual in nature:  the fact of taking access and the absence of any authority.

[49]      Thirdly, a distinction exists between a letter containing allegations about a particular person that is sent to that person and a letter containing such allegations that is sent to a third party.  In the former case, the recipient can refute the allegations before anyone else becomes aware of them.  In that way his reputation may be preserved.  If the allegation is made directly to a third party, however, that is not possible.  In my opinion this is a factor that may be relevant to a complaint of professional misconduct that involves the sending of letters implying criminal conduct or moral turpitude.  This is a further distinction from Law Society v Scottish Legal Complaints Commission, supra;  in that case the only letter was sent directly to the persons against whom the allegation of trespass was made.

[50]      The allegations complained of in the present case were contained in three letters sent on 5 March 2014, one to the present applicants, one to Clarke Boyle, the solicitors who acted for one of the primary beneficiaries of the deed of variation, and one to the accountants who acted for the deceased.  In the letter sent to the present applicants it was stated that at the meeting at which the deed of variation was agreed Justin Wilmot, a son of the deceased, gave a copy of the deceased’s will to Mr O’Hara, the accountant, but that that was ignored.  The letter continued:

“It appears that the Deed of Variation was a fraud that resulted in Caroline Callaghan being cheated of her rights under the will of Leslie Wilmot and that she has sustained significant financial loss”.

 

That was a clear allegation of fraud.  The letter to Clarke Boyle referred to the deed of variation and stated that:

 “This Deed appears therefore to be evidence of fraud on the part of those who benefited from the Deed significantly and it raises questions about the actions of the law firm [the present applicants] and accountancy firm involved”.

 

At a later stage it referred to correcting the “fraudulent distribution” of the deceased’s estate.  The letter to the accountants referred to Miss Callaghan’s being “cheated out of her rights under the will”, and stated that “a fairly substantial fraud has been committed”.

[51]      Those are serious allegations; they amount to an assertion that the deed of variation was fraudulent, and it is plainly implied that the present applicants, who drafted the deed of variation, were parties to the fraud.  According to the applicants’ averments, the evidence that was available to support an inference of fraud was weak.  The will in question had been executed 24 years previously, at a time when the deceased was cohabiting with Miss Callaghan.  They had ceased to cohabit in 1994 and Miss Callaghan had married another man in 1999.  Miss Callaghan was Mr McGeechan’s client, and it is therefore conceivable that they were aware of her present status.  In those circumstances the possibility that the will had been revoked might appear a reasonable matter for consideration.  If the will had been revoked, of course, the allegation of fraud or dishonesty would be completely unfounded, because the deceased’s other children would simply have agreed by the deed of variation to deal with estate that passed to them on intestacy.  Thus not only were the allegations serious; facts that were known to the writer of the letters that might be thought to merit deeper consideration.

[52]      Furthermore, the allegations of fraud and “cheating” are not simple allegations of fact;  they involve not only the collation of various primary facts but also the application of a legal standard to those facts.  In particular, for fraud to exist there must be some kind of dishonesty.  The writer of the letters of 5 March 2014 appears to have considered that the legal inference of dishonesty could be drawn from the facts that, first, Justin Wilmot produced a copy of the will at the meeting to discuss the deed of variation and secondly, the other children of the deceased and their professional advisers, including McSparran McCormick, ignored the copy will, proceeded with the deed of variation and distributed the estate on the basis that there was no will, thus depriving Miss Callaghan of her rights.  The inference of fraud depends on a number of propositions: that the 1990 will (of which only a copy was available) remained valid, that the parties to the deed of variation and their professional advisers were aware that it was valid, and that in this knowledge they proceeded to execute and implement the deed of variation.  All of these are matters that should arguably have been subjected to critical scrutiny, in view of the time that had elapsed since the original will was executed, the termination of Miss Callaghan’s relationship with the deceased and her subsequent marriage, and, it has to be said, the inherent improbability that any responsible professional firm would agree to such a transaction.  It appears, however, that the Commission did not consider these matters in dismissing the complaint as totally without merit; instead they proceeded on the simple proposition that, because Miss Callaghan and Justin Wilmot had told them that the deceased’s will (of which the principal was not available) had been ignored, that was enough to justify an allegation of fraud. 

[53]      It is not of course the Commission’s function to determine whether a complaint is well founded;  that is a matter ultimately for the Law Society in the event that a complaint is referred to it.  Nevertheless, I am of opinion that Commission erred in law when it rejected the applicants’ complaint as being totally without merit.  It treated the existence of assertions

by a client as sufficient by itself to justify a letter notwithstanding the seriousness of the allegations made in that letter.  Moreover, it did so without subjecting the allegations to reasonable scrutiny, in a situation where a degree of legal analysis was plainly required.  Finally, the allegations were repeated to third parties.  In those circumstances I am of opinion that it cannot be said that the complaint was “totally without merit”, in view of the low threshold that applies.

[54]      The letter sent to the applicants and that sent to O’Haras concluded by stating that it was possible that Justin Wilmot and Caroline Callaghan were misinformed, or that there was a genuine and legal explanation or reason for what had happened.  In my opinion such a qualification is not an answer to the complaint at the sifting stage.  The substantive part of the letters is in unqualified terms; in the letter to the appellants it is stated that “It appears that the Deed of Variation was a fraud that resulted in Caroline Callaghan being cheated of her rights”, and the allegations of outright fraud are repeated in the other two letters.  Furthermore, immediate legal action is threatened.  In view of the seriousness of the allegations and the obvious difficulties created by the lapse of time and the change in Miss Callaghan’s relationship with the deceased, I consider that it is impossible to say that the rider at the end of the letters to the appellants and O’Haras necessarily had the result that the complaint was totally without merit.

[55]      For the foregoing reasons I agree that the application must be allowed and the case remitted to the Commission to proceed as accords.

 

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 7

XA168/14

Lady Dorrian

Lord Drummond Young

Lord Malcolm

OPINION OF LORD MALCOLM

in the appeal

by

McSPARRAN McCORMICK

Applicants;

Under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007

against a decision taken by the Scottish Legal Complaints Commission dated 25 June 2014

 

Applicants: Brown; Ian Anderson, Solicitors

Respondent: McIlvride, QC;  Harper McLeod LLP

27 January 2016

[56]      I agree with your Ladyship in the chair that this appeal should be upheld.  I wish to add only a few observations of my own.  In the course of the discussion it became clear that the Commission’s view is that the effect of the decision in Law Society of Scotland v Scottish Legal Complaints Commission, 2011 SC 94, is that there is no prospect of the complaint being upheld by the professional body.  I consider that this was an error of law which entitles this court to interfere and impose its own decision on the question of whether the complaint is or is not totally without merit.  While it is true that a solicitor can act only on the instructions of a client, there is no absolute obligation to do so whatever the circumstances.  It is not difficult to think of cases where it would be wrong to do so.  It is of the essence of being an independent professional person that duties are owed to interests beyond that of the client and the solicitor’s own business.

[57]      The context of the Law Society case was a complaint that certain persons were trespassing on another’s land.  The factual situation was not complex.  The author had clear evidence upon which to base his letter.  In the present case it seems that it did not occur to the consulted solicitor that the original will might have been revoked, or, if it did, he chose to ignore that possibility.  The allegation of fraudulent dishonesty on the part of various persons, including a solicitor and an accountant, involved an inferential leap which assumed only the most unfavourable construction of events.  And the allegations were communicated to other parties, in this case solicitors acting for a member of the deceased’s family.

[58]      All that said, it is important to stress that this court cannot and is not ruling upon the merits of the complaint.  The only question is whether it can properly be categorised as totally without merit and therefore rejected as ineligible in terms of section 2 of the 2007 Act.  The intention of Parliament was that the question of what is and what is not professional misconduct or unsatisfactory professional conduct is to be adjudicated upon by the relevant professional body.  Thus it is only when it is clear that a reference would be a waste of time that the Commission should rule that a complaint is ineligible.  It is unfortunate if the Law Society decision has engendered a view that a solicitor can never be impugned so long as his actions were supported by instructions from the client.  Counsel for the Commission observed, in my view correctly, that a solicitor should not be put under improper pressure which might prevent the pursuit of the client’s best interests, if necessary by writing to another party in robust and critical terms.  However, there is a balance to be struck, and sometimes, perhaps especially in the context of proper professional conduct, much will depend upon the full circumstances of the case, with a value judgment being taken upon them;  a judgment which has been delegated to the relevant professional body.

[59]      As mentioned earlier, the Commission proceeded upon the basis that their decision was pre‑determined by the majority opinion in the Law Society case.  In my view, so far as relevant to the present circumstances, all that can be taken from that decision is the following.  Section 2(4)(a) of the 2007 Act presents the complainer with a “low threshold to meet to avoid rejection of his or her complaint before investigation …” (paragraph 23).  The letter at the heart of the complaint was in standard and measured terms in an adversarial situation.  There was no question of a boundary having been overstepped (paragraph 26).  The Commission had misunderstood the role and duty of the solicitor in the circumstances to report his client’s concerns.  The solicitor did not warrant the accuracy of the terms of the letter;  had no personal responsibility for them;  and had no duty to carry out an independent check of their veracity (paragraphs 27/29).

[60]      No doubt it is the latter passage which has been interpreted as determinative of the present matter.  However, I am satisfied that the court did not intend to send out a message that a solicitor can never be criticised so long as he acts on the basis of instructions given by a client.  A solicitor is not under a general duty to report any and all allegations made by a client.  There will be cases when it is necessary to ask ‑ what is the proper professional course of action?  Sometimes this may be to refrain from the worst inference, especially in respect of an allegation such as fraud, unless there is clear evidence in support of it.  This is in line with the discussion in Law Practice and Conduct for Solicitors, Paterson & Ritchie 2^nd edition, at paragraph 12.09.  In the Law Society case the court was dealing with the particular circumstances of that complaint and the specific terms of the determination by the Commission.  The reference to a duty to report the client’s concerns should not be elevated to a general principle applicable whatever the circumstances.

[61]      In Law Society, I said that the test of “totally without merit” is different from that of “without merit”:

“The latter would require consideration of the substance of the matter, allied to any necessary investigation.  The statutory formula does not require this.  It allows the sifting of complaints which, on their face, are obviously unworthy of any consideration or investigation by the professional body.  It covers hopeless complaints where it is clear that further enquiries could make no difference.  … the hurdle set by the phrase ‘totally without merit’ is very low.”  (paragraph 49)

 

I note that in the present case, on the face of it, the Commission’s determination ignores this distinction.  Rather than ask whether the professional body might consider the complaint worthy of investigation, the author enters into and resolves the merits of the complaint.  This was another error in the Commission’s decision.

[62]      In my view it cannot be said that the present complaint is totally without merit.  I agree that the appeal should be upheld, the Commission’s decision quashed, and the matter remitted to the Commission to proceed as accords.