Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 21

P385/15

Lord Justice Clerk

Lord Drummond Young

Lord Glennie

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the petition of

by

ALISTAIR KENNY SMITH HOOD

Petitioner

for

Review of a Decision of the Scottish Solicitors’ Discipline Tribunal made on

12 February 2015

 

Appellant:  Davies; T C Young Wilson Terris

First Respondents (Council of the Law Society of Scotland):  Dunlop, QC; Balfour & Manson LLP

 

7 March 2017

[1]        In January 2014 the petitioner made a complaint of unsatisfactory professional conduct to the Scottish Legal Complaints Commission against WR, a solicitor and a partner of WR & Co Ltd, solicitors, Glasgow.  The Commission referred the conduct part of the complaint to the respondents, the Council of the Law Society of Scotland.  On 29 May 2014 the respondents intimated that they had decided not to uphold the complaint.  The petitioner appealed that determination in part to the Scottish Solicitors’ Discipline Tribunal, which by interlocutor dated 12 February 2015 confirmed the decision of the respondents.  The petitioner has appealed to the Court against that interlocutor of the Tribunal.  He submits that the Tribunal should have upheld issues 1 and 3 in the complaint against WR and should accordingly have found WR guilty of unsatisfactory professional conduct.

[2]        In 2013 WR was acting for the petitioner’s wife in a divorce action and an action for division and sale of the former matrimonial home in Glasgow (referred to as “the Property”), which was jointly owned by the petitioner and his wife.  The allegations in issues 1 and 3 of the complaint were as follows:

1.         WR and the firm of WR & Co Ltd commenced marketing the Property for sale without obtaining the petitioner’s consent or instructions as a joint owner of the Property and in the absence of any minute of agreement between the petitioner and his wife, the co-proprietor, concerning the arrangements for sale of the Property and division of the net proceeds of sale.

3.         WR purported to act for the petitioner in the marketing of the Property for sale without issuing a terms of engagement letter or marketing agreement to the petitioner in a situation where that was an actual or potential conflict of interest in WR’s acting for both the petitioner and his wife.

 

Factual background to the complaint

[3]        The factual background to the petitioner’s complaint is as follows.  In March 2013 the petitioner and his wife were engaged in contentious divorce proceedings.  Their principal asset was the former matrimonial home, which was a suburban house in Baillieston, in the eastern part of Glasgow.  Negotiations with a view to the petitioner’s acquiring his wife’s interest in the house broke down during 2012, and it is a matter of agreement that thereafter it was essential that the house should be sold.  On 12 July 2012 WR wrote to the petitioner’s solicitors enclosing a draft minute of agreement to allow the early marketing of the property.  Nothing of note happened thereafter until March 2013, when WR and the petitioner’s solicitor met and discussed inter alia the sale of the house.  On 22 March the petitioner’s solicitor wrote to WR to state that the petitioner would allow his wife to market the property through the agency of WR’s firm for whatever sum she thought appropriate for a period of three months.  Thereafter any offer of £105,000 or more should be accepted.  On 17 April WR replied, offering to sell the property to the petitioner, but if that were not accepted it was proposed that WR’s firm would arrange for the immediate marketing of the property in terms of an agreement concluded between the petitioner’s solicitor and WR.  It was further indicated that WR’s firm would prepare a minute of agreement for immediate execution by the two firms’ respective clients to allow marketing of the matrimonial home to take place.

[4]        Between April and August 2013 no material developments occurred in relation to the sale of the property.  On 29 August WR wrote to the petitioner’s solicitor regarding the draft minute of agreement, and stated that he believed that any delay in the marketing of the property had been entirely due to the petitioner’s failure to approve or adjust a draft schedule of sale.   A copy of the draft minute of agreement as revised was available to the Tribunal.  It provided that the matrimonial home should be marketed for sale, with WR’s firm to be instructed in the estate agency work involved.  Provision was made for the disposal of the sale proceeds of the property; a loan from Abbey National was to be paid off; all estate agency costs or fees and outlays incurred by WR & Co Ltd were to be paid; all costs, fees and outlays incurred by the petitioner’s solicitors in the conveyancing of the property were to be paid; and thereafter the proceeds of sale were to be divided equally between the parties.  Clause 6 of the draft minute of agreement, which had been added at revisal, provided as follows:

“6.       With regard to said estate agency, it is an essential term of this Agreement that the party shall act in accordance with the following provisions.

 

6.1       During a period of three calendar months commencing upon the later date of signature hereof, the first party shall not be obliged to accept any offer for the purchase of the property.

 

6.2       Following the expiry of the said period, upon receipt of any offer as aforesaid at a price of or in excess of £100,000 [the wife] at her option shall either accept said offer or forthwith shall convene a closing date for offers, to be held no later than seven days thereafter.  At such a closing date, the parties shall accept the highest offer received providing that said offer is at a price [of] or in excess of £100,000.

 

6.3       Upon receipt of any offer for the purchase of the property at a price of or in excess of £100,000, [the wife] shall be entitled to purchase the property at a price equivalent to the price contained in said offer….  If [the wife] does not exercise said right, [the husband] shall be entitled to exercise said right [on identical terms]”.

 

[5]        Further correspondence passed in September 2013.  On 18 September the petitioner’s solicitors wrote to WR & Co Ltd to say that the matter could not progress until there was in place a minute of agreement executed by their respective clients.  On 16 October WR wrote to the petitioner’s solicitors about a number of outstanding matters, including the division and sale of the matrimonial home.  It was stated that the property would be on the market no later than Wednesday 23 October.  On that basis it was suggested that there would be no need to lodge defences in the action of division and sale that had been raised.  It should be noted that in that letter WR was quite open about his intention to start marketing the property, by 23 October at the latest.  On 21 October WR wrote to the petitioner’s solicitors to state that his firm’s property manageress was due to visit the property that day to take photographs and prepare the schedule of sale, and that it was hoped that the property would be marketed during the course of the week.  A further suggestion was made that the wife might transfer her interest in the matrimonial home to the petitioner based on a sale price of £117,500.  Once again, WR was quite open about his intention to market the property.

[6]        The petitioner’s solicitor replied on 22 October, asking for defences in the action of division and sale, if they were to be lodged, by return.  It was suggested that there was no defence to that action.  Further reference was made to the wife’s failure to respond to the revised minute of agreement that had been forwarded on 6 September.  The letter then stated

“Obviously if steps are now taken belatedly to market the property, this will be welcomed and we look forward to receiving the engrossed Minute of Agreement for execution”.

 

We note that in that letter the petitioner’s solicitors clearly expressed support for the marketing of the property;  this is a matter that we consider important, for reasons discussed below.  No minute of agreement was produced at that stage, but shortly thereafter WR’s firm began to market the property through the Glasgow Solicitors Property Centre.  When the petitioner discovered this, he attempted to contact WR directly to complain that he had not agreed to the marketing of the property, and his solicitor wrote to WR’s firm on 13 November.  The letter stated:

“We refer to [an employee’s] telephone call to this office advising that the matrimonial home was now being marketed at a fixed price of £115,000.

It is necessary for there to be in place a signed Agreement for the property to be marketed.  Please revert to us as a matter of urgency in relation to this matter.  An earlier Minute of Agreement in draft form was revised and returned to you in early September 2013”.

 

[7]        WR responded to that letter by means of a handwritten note sent by fax shortly after the letter was received.  The note stated:

“Agreement only needs to be in place before accepting any offer not for marketing.  Given your client’s action we would have thought he would be pleased @ property being marketed.  We did write about Agreement but you have not responded.  We trust we can now get that in place but in the meantime… no offer will be accepted until then”.

 

On 20 November WR sent a letter to the petitioner’s solicitors to similar effect, stating that the actual minute of agreement did not require to be finalized unless an offer were received and accepted.  The letter confirmed that that would not be done without the petitioner’s consent.  The letter further stated:

“We would respectfully submit that we gave you and your client clear intimation that the property was going to be marketed at the end of October and at no time did either you or your client intimate not to do so”.

 

[8]        On 22 November the petitioner’s solicitors wrote to WR’s firm to ask for confirmation by close of business that in the absence of contractual authority from the petitioner the matrimonial home was no longer being marketed for sale.  An employee in WR’s firm replied on the same day that they were unable to confirm by close of business that the property had been taken off the market; WR was out of the office that day and would not return until the following Monday.  Thereafter, on Tuesday 26 November the petitioner contacted the Chief Executive of the Glasgow Solicitors Property Centre to have marketing of the property suspended.  The Chief Executive contacted WR’s firm to ask them to suspend marketing, and they agreed to that in the course of the day.

[9]        The petitioner then complained to the Scottish Legal Complaints Commission.  Issues 1 and 3 in the complaint were as indicated in paragraph [2] above.  Those issues were considered by the Commission to be a conduct complaint, and accordingly they were passed to the respondents.  The respondents decided not to uphold the complaint, and there followed appeals to the Scottish Solicitors’ Discipline Tribunal, which confirmed the determination, and in due course to the Court.

 

Determination of the Scottish Solicitors’ Discipline Tribunal
[10]      In relation to the first head of complaint, the Tribunal decided as follows:

“[T]he Tribunal was of the view that the terms of letter dated 12 July 2012 were not significant.  It was clear from the 2013 correspondence that there was an initial expectation that a Minute of Agreement be drawn up and signed by the parties prior to the marketing of the property.  However, the Tribunal considered that it could be inferred from the correspondence in October and November [2013] that by that time matters had moved on and it was no longer necessary for the document to be signed prior to the commencement of marketing.  The Tribunal was of the view that the correspondence relied upon by the sub-committee [of the Law Society] in deciding that authority had been given to market the property was capable of more than one interpretation.  However, the Tribunal was satisfied that the sub-committee had applied the correct test and that it was reasonable to come to the view that authority to market the property was provided by the correspondence when considered as a whole”.

 

The argument advanced on behalf of the petitioner was based on a different interpretation of the correspondence, but the Tribunal thought that that was not sufficient to determine that the Law Society’s decision was unreasonable, that being the test that applied to Law Society decisions in conduct cases.

[11]      In relation to the third head of complaint, the Tribunal decided as follows:

“[T]he Tribunal was again of the view that the sub-committee took the correct approach in making its decision on this matter.  It considered the relevant guidance and applied the correct test.  It was not unreasonable of the sub-committee to reach the conclusion that in all the circumstances, including the short period that the property was marketed before it was withdrawn from the market, a single failure to issue a terms of business letter did not amount to unsatisfactory professional conduct.  In relation to the issue of a potential conflict the Tribunal again considered that the sub-committee had approached their decision making correctly and had given clear reasons for their decision which was that it was clear from the correspondence at the time the property was marketed both parties wished the property to be sold and there was therefore no conflict of interest”.

 

Grounds of appeal

[12]      The petitioner has appealed against the Tribunal’s interlocutor on three grounds.  First, it is said that in relation to issue 1 of the complaint the Tribunal erred in upholding the respondents’ finding that the petitioner had given instructions to WR to market the property, given that both parties had agreed that a minute of agreement regulating the marketing and sale of the property would have to be signed before the property could be marketed.  No such terms had been agreed at the time when marketing began.  When asked to cease marketing the property by the petitioner, WR had refused, stating that he did not need such authority until an offer had been received.  In these circumstances it is said that no reasonable Tribunal could have upheld such a finding, nor could the respondents acting reasonably have made such a finding, having regard to the agreed evidence. 

[13]      Secondly, in relation to issue 1, it is said that the Tribunal erred in law in upholding the respondent’s finding that, so far as the marketing was concerned, there did not require to be an agreement in place relating to the disposal of the free proceeds of sale, as the parties had agreed that there should be such an agreement.

[14]      Thirdly, in relation to issue 3 of the complaint, the petitioner contends that, esto the letter of 22 October 2013 (see paragraph [6] above) constituted authority for WR to act on behalf of the petitioner in marketing the property, the Tribunal erred in law in upholding the respondents’ finding that WR had not failed to issue an “terms of engagement” letter to the petitioner at earliest practical opportunity.  It is a requirement of rule B4.2 of the respondents’ Practice Rules 2011 that the solicitor should issue such a letter at the earliest practical opportunity after being instructed to act for a client.  No such letter had been issued by WR, notwithstanding that marketing had only begun three weeks after 22 October 2011, which allowed ample time to issue such a letter before marketing began.  Without such a letter there was no agreement as to who should bear the costs of marketing the property.  In all the circumstances the petitioner contends that the Tribunal, and the respondents, erred in failing to find that WR was guilty of unsatisfactory professional conduct in relation to each of the issues.

 

Legal analysis

Unsatisfactory professional conduct

[15]      In our opinion the appeal must be refused.  The petitioner’s complaint against WR was one of unsatisfactory professional conduct.  “Unsatisfactory professional conduct” is defined in section 46, the interpretation section, of the Legal Profession and Legal Aid (Scotland) Act 2007, in the following terms:

“’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;

 

… but which does not amount to professional misconduct and which does not comprise merely inadequate professional services…”.

 

It is apparent from this definition that unsatisfactory professional conduct must be contrasted with inadequate professional services.  These are defined in the same section as follows

“’inadequate professional services’… means, as respects a practitioner who is…

(v)       a solicitor, professional services which are in any respect not of the quality which could reasonably be expected of a competent solicitor”.

 

[16]      So far as the language of section 46 is concerned, the difference between unsatisfactory professional conduct and inadequate professional services lies primarily in the use of the word “reputable”; unsatisfactory professional conduct is measured against the standard of the competent and reputable solicitor, whereas inadequate professional services are services not of the quality reasonably to be expected of a competent solicitor.  As a matter of substance, however, the difference involves a process of evaluation.  Unsatisfactory professional conduct lies on a spectrum that runs from professional misconduct at the more serious end to inadequate professional services at the lesser end, and determining where the conduct complained of lies on that spectrum is a question for evaluation by the relevant disciplinary tribunal, either the Council of the respondents or the Scottish Solicitors’ Discipline Tribunal.  This process was explained, in relation to a question of professional misconduct, in Sharp v The Law Society of Scotland, 1984 SC 129, by LP Emslie at 134:

“A failure on the part of a solicitor to comply with a relevant rule may be treated as professional misconduct.… [W]hether such a failure should be treated as professional misconduct must depend upon the gravity of the failure and a consideration of the whole circumstances in which the failure occurred, including the part played by the individual solicitor in question”.

 

Status of a disciplinary tribunal’s decision

[17]      When a professional disciplinary body considers a question of that nature, it must bring professional expertise to bear.  The body may also, deliberately, have lay members included, so that questions of professional discipline do not become a matter solely for the profession but take account of the views of those with a different experience of the world.  We were informed that the relevant subcommittee of the respondents had nine members, five lay members and four solicitors.  The Discipline Tribunal had four members, two solicitors and two lay members.  Given the composition of the two bodies, we are of opinion that the Court should be slow to interfere with their decision on an evaluative question.  Cases where the Court may interfere occur in three main situations.  The first is where the Tribunal’s or sub-committee’s reasoning discloses an error of law, which may be an error of general law or an error in the application of the law to the facts.  The second is where the Tribunal or sub-committee has made a finding for which there is no evidence, or which is contradictory of the evidence.  The third is where the Tribunal or sub-committee has made a fundamental error in its approach to the case, as by asking the wrong question, or taking account of manifestly irrelevant considerations, or arriving at a decision that no reasonable Tribunal or sub-committee could properly reach.

[18]      Apart from those cases, the scope for interference is much less.  This undoubtedly applies to findings of primary fact, and it also applies to inferences of fact, albeit to a somewhat lesser extent than the primary facts.  One case where the reasons for deference to the Tribunal or sub-committee are especially strong is where the exercise involved is the evaluation of professional conduct.  In such a case the combination of professional expertise, on the part of the professional members of the disciplinary body, and lay input is deliberately chosen to permit the evaluative exercise to be properly carried out.  Support for such an approach is found in a substantial number of decided cases; we were referred to Hamilton v Allied Domecq PLC, 2006 SC 221, at paragraph [84], C v Gordonstoun Schools Ltd, [2016] CSIH 32, at paragraph [56], and McMahon v Council of the Law Society of Scotland, 2002 SC 475, at paragraph [16].  The general principles are well established.

 

The nature of the decision made by the Tribunal

[19]      It is important in our opinion to have regard to the nature of the decision made by the Scottish Solicitors’ Discipline Tribunal.  The Tribunal’s task was not to decide whether WR was correct in his legal and factual analysis of the transaction involving the sale of the petitioner and his wife’s matrimonial home.  It was rather to decide whether or not WR was guilty of unsatisfactory professional conduct: whether or not his conduct was “of the standard which could reasonably be expected of a competent and reputable solicitor”.  In analysing a legal transaction, a solicitor may make an error of law, or may be mistaken as to factual matters.  Errors of that nature do not necessarily amount to unsatisfactory professional conduct.  They may amount to professional negligence, although in some cases they may not even reach that standard.  The present case concerns aspects of the law of agency: whether WR and his firm had authority to market the property.  We do not think that it was necessary for either the Tribunal or the respondents’ sub-committee to embark on a detailed analysis of whether as a matter of law WR had authority at any particular time to proceed with marketing.  What matters is whether a competent and reputable solicitor in his position would have considered that he did have sufficient authority to market the property.

[20]      In this connection, we note that the submissions for the petitioner focused in large measure on the details of the correspondence and whether, construed narrowly, it could be said to confer authority on WR to market the property.  In our opinion that is not the correct approach.  What is required is rather the approach that was in fact taken by the Tribunal, concentrating on what a reputable and competent solicitor ought to have done in a situation where a sale that both parties wanted to take place had been the subject of sporadic correspondence and discussion and where neither party had applied itself fully to the preparation of a detailed document regulating the terms on which the sale was to take place.

[21]      Although we take the view that it was not necessary for the sub-committee and the Tribunal to embark upon detailed legal analysis of WR’s authority to market the property, we should note that agency is a flexible and versatile concept, and that an agent’s authority can arise by implication from circumstances.  Furthermore, an agent who proceeds without authority can have his actings ratified retrospectively; that is not an unusual situation in commercial practice.  Even in a case where there is no retrospective ratification, the general law can provide remedies to put matters right: for example, by providing a remedy such as repetition or recompense, based on unjustified enrichment.  On other occasions an implied trust may provide a suitable remedy.  The critical point here is that even if a supposed agent acts without authority the consequences may not be serious.  That is especially the case where the objective that the agent tries to achieve is one that is agreed to be necessary.  That is the present case.  For these reasons the existence or otherwise of authority to put the property on the market at any particular time is not a matter that is likely to be of great consequence.

 

Conduct forming the subject of the complaint

Issue 1

[22]      In the present case, two issues in the complaint remain live.  The first of these is that WR and his firm began marketing the property for sale without obtaining the petitioner’s consent or instructions as a joint owner, and in the absence of any minute of agreement between the petitioner and WR’s client, the petitioner’s wife, concerning the arrangements for sale of the property and division of the proceeds.  The Tribunal decided that, on the basis of the correspondence that was available, it was reasonable for the sub-committee to take the view that authority to market the property was provided by the correspondence considered as a whole.  In our opinion that conclusion is clearly justified.

[23]      The correspondence is set out above at paragraphs [3]-[9].  It was a matter of agreement that the matrimonial home required to be sold for financial reasons, and in July 2012 WR provided a draft minute of agreement to allow the marketing of the property.  Thereafter, following a lengthy gap, the solicitors for the two spouses met in March 2013 and discussed how the property might be sold.  The petitioner’s solicitor wrote to say that WR’s client might market the property for a period of three months.  That was taken up in the letter of 17 April 2013, which again contemplated the marketing of the property and the preparation of the minute of agreement.  Discussions between the solicitors resumed again in August, with further reference to the draft minute of agreement and the delay in marketing the property.  The draft minute of agreement, the material terms of which are set out above, makes provision for most of the standard elements that would arise in the sale of matrimonial home owned in common by the spouses.  Further correspondence ensued in September and October, and it was following that correspondence that WR’s firm put the property on the market.  While on 18 September the petitioner’s solicitors indicated that matters could not progress until a minute of agreement was in place, the correspondence in October indicated clear proposals to put the property on the market in the immediate future.  In particular, the letter of 16 October was open about WR’s intention to start marketing the property within a few days.  This was followed up by the letter of 21 October, which gave notice of a visit by WR’s property manager and the preparation of a schedule of sale; it was stated that it was hoped that marketing would start within a week.  Once again, the intention to begin marketing was very clear.

[24]      This was followed by the letter of 22 October from the petitioners’ solicitor, in which he stated that if steps were taken “belatedly” to market the property that would be welcomed.  That letter clearly indicates willingness to have the property marketed in the immediate future.  It was following that letter that marketing began.  No minute of agreement had been prepared.  Nevertheless, we are of opinion that the Tribunal was clearly entitled to hold that the correspondence, taken as a whole, provided authority to market the property.  The correspondence can be described as confused, and the requirement for a formal minute of agreement was raised at times and then apparently dropped.  Nevertheless, in the critical letters of 16 and 21 October WR made it plain that he intended to proceed to marketing the property.  If the petitioner or his solicitors objected to marketing by WR, that was the time when they should have made their objection clear.  They did not do so, and that appears to us to provide ample justification for the decision.

[25]      The petitioner further claims that, so far as marketing was concerned, the Tribunal erred in law in upholding a finding by the respondents’ sub-committee that there did not require to be a minute of agreement in place relating to the disposal of the free proceeds of sale “given that the parties had agreed that there should be such an agreement”.  The Tribunal took the view that, by the time of the correspondence in October and November 2013, it could be inferred that it was no longer necessary for any minute of agreement to be signed prior to the commencement of marketing.  Thus the respondents’ sub-committee was justified in so holding.  In our opinion that conclusion cannot be faulted.  As we have indicated, the correspondence was somewhat confusing, and the indications by WR in letters of 16 and 21 October that he intended to market the property in the immediate future clearly discloses an intention not to conclude a formal minute of agreement before marketing started.  In this connection, the function of the minute of agreement appears to us to be significant.  The petitioner claims that the agreement that was lacking was one relating to the disposal of the free proceeds of sale.  That, however, is a matter that would be regulated by the general law.  When common property is sold, the proceeds of sale will normally be used in the first place to pay the expenses of marketing and selling the property; and thereafter the proceeds will be divided equally between the co-proprietors.  Thus the law provides effective default rules that will apply in the absence of formal agreement.  That means that the failure to conclude an agreement regarding the proceeds of sale was not a matter of obvious importance.

[26]      The correspondence in November once again raised the question of a signed minute of agreement.  The petitioner’s solicitors raised this matter on 13 November, and received a reply to the effect that agreement was only required before an offer was accepted and not for marketing.  In this connection, it is significant that WR had indicated his intention to proceed to marketing in October and no objection had been taken; indeed the initiative had been “welcomed”.  Furthermore, the complaint in issue 3 relates to the disposal of the sale proceeds.  It is not obvious why such an agreement would be required before marketing could take place.  It is not unusual to find that the early stages of marketing are designed merely to discover what sort of price might reasonably be expected, and that is information that might obviously be of significance in concluding an agreement as to the disposal of the proceeds of sale.  In these circumstances we consider that the Tribunal and the sub-committee were justified in holding that the attitude taken by WR at this stage did not amount to unsatisfactory professional conduct.

 

Issue 3

[27]      Issue 3 related to WR’s purporting to act for the petitioner in marketing the property without issuing a terms of engagement letter or marketing agreement, in a situation where there was an actual or potential conflict of interest.  The Discipline Tribunal held that the sub-committee had taken a correct approach in making its decision on this matter.  The property had been on the market for a short period before it was withdrawn from the market, and the Tribunal thought that it was reasonable to hold that a single failure to issue a terms of business letter did not amount to unsatisfactory professional conduct.  So far as potential conflict was concerned, the sub-committee had given adequate reasons: both parties wanted the property to be sold and therefore there was no conflict of interest.

[28]      In our opinion the Tribunal’s reasoning on this matter cannot be faulted.  It involved an evaluative judgment as to whether the failure to issue a terms of business letter, in the particular circumstances of the case, amounted to unsatisfactory professional conduct.  That was a matter that fell particularly within the expertise of a professional disciplinary body, and we can see no reason to interfere with its decision.  Even if WR’s firm had proceeded to market the property without authority, the default rules provided by the law, described at paragraphs [21] and (in relation to the disposal of sale proceeds) [25] above, should have ensured that there was no significant risk of prejudice as a result of the marketing of the property.  Furthermore, it is a matter of concession that both parties realized that the property had to be sold, and there were obvious advantages in marketing it as quickly as possible.

[29]      So far as an allegation is made of conflict of interest, we are of opinion that the Tribunal and the respondents’ subcommittee were entitled to hold that there was no such conflict in view of the fact that both parties wanted the property to be sold.  Once the property was put on the market, both parties obviously have a common interest in achieving the maximum price possible.  There was no possible conflict in that respect.  Sale by one party to the other had been discussed, but by October and November 2013 that was no longer a live issue.  So far as the disposal of the proceeds of sale was concerned, as indicated above, the default rules provided for payment of expenses and then the equal division of the free proceeds.  Once again it is impossible to see how any conflict could have arisen.

 

Conclusion

[30]      For the foregoing reasons, we are of opinion that the grounds of appeal advanced by the petitioner are not well founded.  We will accordingly refuse the appeal.