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Cite as: [2024] CSIH 10, [2024] ScotCS CSIH_10

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2024] CSIH 10

P694/23

Lord Malcolm

Lord Pentland

Lady Wise

OPINION OF THE COURT

delivered by LORD MALCOLM

in the petition by

THE SCOTTISH LEGAL COMPLAINTS COMMISSION

Petitioner

against

JANE ELIZABETH ROBISON AND ANOTHER

Respondents

Petitioner; Black; Harper MacLeod LLP

First Respondent; Hamilton KC; Levy & McRae LLP

30 April 2024

Introduction

[1]

The question requiring determination is whether an admitted failure by a solicitor to

comply with an order of the court amounts to a contempt. It arises in the latest of a line of

petitions by the Scottish Legal Complaints Commission (the Commission) designed to enlist

the assistance of the court in compelling solicitors to co-operate with its investigations into

complaints. The solicitor concerned is Jane Robison of Smail & Ewart Ltd, Biggar.

[2]

These petitions are brought only when efforts by the Commission and then its

solicitors have failed to provoke the production of information, typically the relevant file(s)

and a response to the complaint. One might have thought that such proceedings would be

virtually unheard of, but in recent times they have approached double figures.

[3]

Even more surprising is that on occasion, as here, and notwithstanding the service

of the petition, no answers are lodged, the material is not handed over, and at the request

of the Commission the court grants a final order requiring the solicitor to provide it within

a set period, typically 21 days.

[4]

Extraordinary as it may seem, even then there have been instances, again as here,

of the Commission informing the court that there has been a failure to comply with the

terms of the order resulting in a hearing attended by the solicitor to address the question

of contempt of court.

[5]

It has always been a professional obligation to co-operate with the regulatory body.

However, faced with increasing evidence of its members not complying with the

Commission's legitimate requests, in 2022 the Law Society of Scotland introduced Practice

Rule B1.17: "You must deal with the Commission in an open, timely and co-operative

manner, so as to enable the Commission properly to exercise and fulfil its statutory

functions."

[6]

That such a specific rule was necessary is in itself a matter of concern. Unfortunately

it is apparent that in respect of some members of the profession, including Ms Robison, it

has not had the intended effect. Such failures delay the proper investigation of complaints

and bring the profession at large into disrepute.

[7]

It is however a unique feature of these proceedings that they occur against the

background that in respect of an order granted in a previous petition, on 18 May 2023

Ms Robison was found to be in contempt for failings similar to those in the present case.

At the time the court expressed the view that there had been deliberate and serious

misconduct by a solicitor who, as an officer of the court, was under a particular duty to obey

the order. However given that, albeit belatedly, substantial compliance had occurred, and

other matters indicated that Ms Robison had gained a fuller appreciation of her professional

responsibilities, no penalty beyond the finding of contempt was imposed. As will become

apparent the hope of a fuller appreciation has proved to be overly optimistic.

The background circumstances

[8]

In November 2022 the Commission received a services complaint concerning

John Armstrong, a now retired partner of Ms Robison, in respect of his administration of

the executry estate of a person who died in 2012. In summary the concerns relate to undue

delays, a lack of diligence, and poor communication. In March 2023 Ms Robison, as the

client relations manager of the firm, was sent a summary of the complaint and invited to

provide her comments ahead of an eligibility assessment. The following month she sent a

response to the complaint to the Commission.

[9]

In due course the Commission determined that all 15 issues raised in the complaint

were eligible for investigation. The Commission offered the use of its free mediation service

but the firm did not respond. By letter of 28 June the Commission wrote to Ms Robison

explaining that the complaint would be investigated. It served a notice under section 17 of

the Legal Profession and Legal Aid (Scotland) Act 2007 requiring production of the firm's

business file by 19 July. In the absence of a response, on 25 July the Commission intimated

that unless the material was provided within 7 days agents would be instructed to

commence legal proceedings. On 4 August the Commission's solicitors made a further

demand for the files. This provoked a telephone call when Ms Robison advised that the

material would be provided shortly.

[10]

This not having been done the petition was lodged and served. The deadline for

answers, namely 14 September, came and went. There was an attempt at compliance the

previous day when some material was forwarded, however it concerned a separate trust,

not the executry, and was dated from January 2018, several years after the firm's instruction

in the matter which was the subject of complaint. There was an acknowledgment that there

were files for earlier years relating to the complainers which could be provided if required.

No explanation has been offered for the failure to send them along with or shortly after the

trust documentation.

[11]

On 16 November 2023, on the unopposed motion of the Commission and in respect

that no answers had been lodged, the court ordered Ms Robison to provide the case file (or

files) relating to the firm's work in relation to the administration of the deceased's estate

within 21 days of service of the interlocutor. The firm was found liable in the expenses of

the process.

[12]

The interlocutor was served on 6 December, meaning compliance was required by

27 December. A large amount of material was provided to the Commission on 10 January

2024. The previous day the Commission lodged a motion which caused the court to fix a

hearing for 27 February to consider whether there had been a contempt of court. On that

date Ms Robinson appeared unrepresented. She accepted the court's offer of an

adjournment to allow her to seek and obtain legal advice. At the continued hearing she

was represented by solicitors and senior counsel.

The account and explanation tendered by Ms Robinson

[13]

At the outset counsel for Ms Robison acknowledged that the 21 day deadline was

not met. Through counsel she unreservedly apologised for this failure. However the

papers were uploaded on 10 January 2024, 14 days late. It was submitted that in the whole

circumstances this delay did not involve a contempt of court; if it did, it was purged by the

late compliance.

[14]

Prior to service of the order, on 4 December Mr Armstrong attended at the office

to assist with identification of the necessary material. He spent that day and the next

identifying the papers relating to the executry. They consisted of a large and disordered

collection of loose leaf papers in folders. These were organised and uploaded to the

Commission on 6 December. When scanning them Ms Robison realised that there was

missing documentation. This consisted of three files which had been deposited with a local

offsite storage business.

[15]

Thereafter Ms Robison, by now the sole solicitor in the firm, became involved in

managing the practice and progressing existing work prior to Christmas. This included

urgent matters for two clients who had each received a terminal diagnosis. She was also

involved in meetings with the complainers relating to the outstanding issues in the executry.

She anticipates that this work is nearing completion. The pressure was increased by the loss

of staff post pandemic and the aftermath of a banking scam. Additionally Ms Robison was

trying to cope with the strain of certain family issues, including health concerns relating to

family members.

[16]

By the time Ms Robison reverted to recovery of the three files she discovered that

the business holding them had closed on 23 December and did not re-open till 9 January, a

matter which has been confirmed by an email from a director. As a result she was unable

to access the files in order to meet the 27 December deadline. Surprisingly, she he did not

inform the Commission or its agents of this problem. She recovered the documentation on

9 January and uploaded it to the Commission the following day.

The submissions for the parties

Ms Robison

[17]

The failure to meet the 21 day deadline was not due to "a deliberate lack of respect

for or defiance of the authority of the court" (AB and CD v AT 2015 SC 545 at paragraph 29).

It was a result of the unforeseen inability to access the files on the closure of the storage

facility on 23 December. The identification of files held by the firm on 4 and 5 December

and their transmission the next day demonstrated an understanding that the order had to be

obeyed. Ms Robison did delay matters until it was too late to obtain the missing files before

27 December, but the reasons for this have been explained. She always intended to comply

but was thwarted by matters beyond her control.

The Commission

[18]

Counsel for the Commission indicated that it was neutral on the question of

contempt. Its motivation was to obtain the material necessary for its investigations. Having

had time to go through the voluminous material received on 10 January, and in the light of

the subsequent provision of a report and an assurance that further correspondence could

not be traced, it was satisfied that there had now been substantial compliance with the

statutory notice of 28 June 2023 and the court's order. In that notice, as replicated in the

order, the Commission also sought a detailed response to the complaint; however it had

now been confirmed that the firm did not wish to add anything to the response sent at the

pre-eligibility stage. Thus the only problematic issue concerns the late production of the

outstanding files. In all probability active engagement by Ms Robison with the Commission

would have prevented the involvement of the court, or at least the need to serve the final

order. Even very belated engagement explaining her situation might well have avoided the

court being asked to consider whether there had been a contempt.

Decision on contempt

[19]

The documentation available to the court supports Ms Robinson's account and we

are prepared to proceed on that basis. The overall picture is of casual indifference towards

professional responsibilities owed to the regulatory body and the complainers, who despite

everything have remained clients of the firm. The foolishness demonstrated by

Ms Robinson's failure to take basic and obvious steps, if only in her own interests, causes

concern for unsuspecting clients entrusting important matters to her stewardship. This is all

the more remarkable given the previous finding of contempt. However any consequences of

this broader picture are a matter for the Law Society of Scotland, which we assume will have

this opinion drawn to its attention.

[20]

The only substantive question for the court is whether Ms Robinson's conduct after

receipt of the interlocutor requiring delivery of the files within 21 days amounts to a

contempt of court. The court's inherent contempt jurisdiction is designed to uphold the

due administration of justice. Thus, if proven to the criminal standard, disregard for the

authority of the court is punishable. Absent an exculpatory explanation, such as a medical

condition, a deliberate failure to obey an order of the court will be a contempt. Given that

the court is proceeding on the circumstances explained by counsel for Ms Robinson, no issue

regarding proof of the facts arises. The only question is whether they demonstrate the

necessary wilful non-compliance.

[21]

Whatever other pressures she was under, Ms Robinson's decision to postpone

completion of the exercise until the eleventh hour, and especially over the Christmas period,

was cavalier and fraught with risk. Even without the context of a previous contempt

finding, we would expect a solicitor served with an order of this kind to do all that was

necessary to ensure that it was met without delay. Instead Ms Robinson gave priority to

other matters and then discovered that she was unable to access the files because of a festive

season closure at the storage facility where they had been deposited. However we are

prepared to accept that she did intend to meet the deadline, and that the failure to do so was

caused by the unanticipated shutdown and did not involve the necessary deliberate affront

to the court's authority for a finding of contempt.

Expenses

[22]

Counsel for the petitioner sought the expenses of the contempt proceedings on the

agent and client, client paying scale; in other words on an indemnity basis. If no contempt

order was made, counsel for Ms Robison moved for no expenses due to or by either party,

failing which any award of expenses against her should be on the usual scale.

[23]

It was suggested that it was premature for the Commission to apply for final orders

when in September she had asked whether the earlier files were required. We disagree. No

answers had been lodged and Ms Robison had been given every opportunity to do the right

thing. The court was doing no more than enforcing an obligation resting upon her and

giving her a generous latitude of time in which to do so.

[24]

It was Ms Robison's unprofessional conduct which provoked the petition

proceedings. It was her failure to meet the deadline in the court's order which caused

the Commission to raise the question of contempt of court. She was responsible for all

the consequential expense, including of two hearings. That ultimately we have not made

a finding of contempt does not alter that state of affairs.

[25]

We are almost as concerned about Ms Robison's overall behaviour since she was

served with the statutory demand as we would have been had she been deliberately defiant

of the final order. We shall mark our disapproval by granting the petitioner's motion and

making an award of expenses against her on the agent and client, client paying scale.