Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 104
Lady Paton Lord Brodie Lord Wheatley	P294/13 OPINION OF THE COURT delivered by LADY PATON in the petition of NORMAN CATHCART Petitioner; against THE LAW SOCIETY OF SCOTLAND Respondents: _______________

Petitioner: Watts; Simpson & Marwick

Respondents: A J Duncan QC; Balfour + Manson LLP

3 December 2013

Solicitors Discipline Tribunal: sentence appeal

[1] The petitioner enrolled as a solicitor on 30 January 1976. He became a partner in Wright Johnston & Mackenzie. On 6 May 1994 he joined Donald Campbell in partnership as Campbell Cathcart, Glasgow. The petitioner had a chamber practice, while his partner Mr Campbell had a court practice.

[2] On 25 January 2007 the petitioner appeared before the Solicitors Discipline Tribunal ("the tribunal"). He was found guilty of professional misconduct in respect of his failure to have a standard security registered, and his failure to respond to correspondence from his clients and the Law Society. The penalty imposed was a censure and a fine of £3,000.

[3] On 17 June 2008 the petitioner again appeared before the tribunal. He was found guilty of professional misconduct in respect of his failure to have a standard security registered (in fact a replacement standard security relating to the same client and heritable property). The penalty imposed was a fine of £2,000.

[4] On 24 May 2012 the petitioner appeared for a third time before the tribunal, chaired by Malcolm McPherson. He was found guilty of misconduct in respect of his failure to communicate effectively and appropriately with a liquidator, Mr McGruther of Mazars, Glasgow, and also in respect of his failure and/or unreasonable delay in responding to the Law Society and their Financial Compliance Department. The liquidator had incurred costs and expenses of about £45,000 as a result of the petitioner's conduct. Mr Macreath of Levy & McRae made a plea in mitigation on the petitioner's behalf. While acknowledging the gravity of the offence, Mr Macreath inter alia emphasised the petitioner's personal difficulties, including his wife's serious illness and the petitioner's own ill-health. Further Mr Macreath advised the tribunal that he himself, together with the petitioner's partner, would be working with, and supervising, the petitioner in future. He invited the tribunal to allow the petitioner the privilege of remaining as an enrolled solicitor under appropriate supervision - in other words, to restrict the petitioner's practising certificate rather than suspending him from practice. The penalty ultimately imposed was a censure, a restriction of the petitioner's practising certificate for a period of 5 years such that he was permitted to work only as a qualified assistant for an employer approved by the Law Society or their Practising Certificate Sub-Committee, and payment to the liquidator of the maximum compensation which could be ordered, namely £5,000. The tribunal allowed 6 months' grace before the restriction on the practising certificate took effect, to enable the petitioner to put his affairs in order.

[5] On 28 August 2012 the petitioner was advised that at the time of the hearing on 24 May 2012, the chairman Mr McPherson had not been a valid member of the tribunal, his appointment having expired. The petitioner's case and certain other cases were affected by this constitutional flaw. Those affected were invited to waive any objection to the proceedings which had taken place. As was recorded at page 20 of a Note appended to the findings of a second tribunal (see below):

" ... To cure this defect it was suggested that the matter be re-heard before the same tribunal [properly constituted] so that the previous findings could be validated. The [petitioner] however did not agree to this course of action, and accordingly the matter was set down before a completely different tribunal on this date ..."

Accordingly a second validly constituted tribunal was convened ("the second tribunal").

[6] The petitioner appeared before the second tribunal on 23 January 2013. His counsel's primary submission was that the tribunal did not have the power to reduce the defective decision and begin again: that was a matter for the Court of Session. The fiscal for the Law Society responded by contending that there were no valid findings or interlocutors, and accordingly nothing to appeal or reduce. The second tribunal accepted the fiscal's submissions, and rejected counsel's argument. As the events constituting the petitioner's professional misconduct were a matter of admission (subject to one minor amendment), the next stage in the procedure was the plea in mitigation. At that point there was an adjournment for lunch, from about 12 noon until 1.30 pm. Mr Macreath was present, and accordingly there was an opportunity for the petitioner, counsel and Mr Macreath to consult on the question of the plea in mitigation. The second tribunal knew that earlier proceedings had been vitiated by the lapsed appointment of the chair, but were given no details of these earlier proceedings, and in particular were not told what penalty had then been imposed.

[7] The plea in mitigation presented to the second tribunal was not the same as that presented to the first tribunal. In particular it was not submitted that the petitioner would in the future be assisted and supervised by Mr Macreath and by Mr Campbell (then aged 67 and working towards winding up his professional career). It was explained that the petitioner had been negotiating with another firm with a view to transferring his client base to them and becoming a consultant with them for a few years. However that firm had been approached by another firm with a view to a merger. As a result, the petitioner's negotiations were temporarily suspended, and in counsel's words he was "in something of a state of limbo". It was submitted that the appropriate penalty might be a censure and a fine. While the option of restricting the petitioner's certificate was mentioned, it appears from the transcript (pages 70-71) that such a disposal was not advanced with any confidence.

[8] The second tribunal were very concerned about the gravity of the offence taken with the earlier matters in 2007 and 2008, and the apparent lack of insight or remorse demonstrated by the petitioner. As was recorded at page 29 of the Note to the second tribunal's findings:

"The [petitioner's] representative asked the tribunal to deal with the matter by way of a censure and a fine. His representative however did not in any way address the tribunal in connection with the risk to the public if the petitioner was allowed to continue in practice. The tribunal considered that the [petitioner] had not shown any real insight into what went wrong and has not expressed remorse. The [petitioner] has also not made any constructive suggestions about how he would ensure that nothing like this would happen again if he continued in practice. The tribunal consider that this complaint on its own would merit a restriction on the [petitioner's] practising certificate. However when taken together with the two previous findings of professional misconduct, from which it appears that the [petitioner] has not learnt anything, the tribunal consider that public confidence in the profession would be undermined if the [petitioner] was not suspended from practice. The tribunal also directed under section 53(6) of the Solicitors (Scotland) Act 1980 that the suspension will take effect on the date that the findings are intimated to the [petitioner]. This is to ensure protection of the public from the danger of the [petitioner] continuing in practice any longer ..."

[9] The second tribunal duly imposed a penalty of immediate suspension from practice for a period of 3 years, and payment of £5,000 compensation to the liquidator Mr McGruther. They dealt with expenses, and made the usual order with regard to publicity.

[10] The petitioner appealed to the Court of Session in terms of section 54 of the Solicitors (Scotland) Act 1980. The appeal is directed to the immediate suspension from practice for a period of 3 years.

Submissions for the petitioner

[11] Counsel advised that the petitioner had in fact continued to practise as a solicitor in the firm Campbell Cathcart following upon the hearing on 23 January 2013. Unfortunately advice that he should not be practising unless the court had suspended the penalty had not been communicated to him, and he had assumed that his suspension from practice would not take effect pending the outcome of the appeal. He had been horrified to learn of the true position. A motion for interim suspension had recently been granted by the Court of Session.

[12] Counsel also advised that the compensation of £5,000 had not been paid. Again the petitioner had mistakenly assumed that this had been suspended. The £5,000 would be paid on Monday 28 October 2013.

[13] It was accepted that there was no formal competency point to put forward. But what had happened was relevant to this court's consideration of all the circumstances. Counsel invited the court to look at the whole circumstances in the round, including the petitioner's personal circumstances. It was a matter of concern that two tribunals could come to such different sentencing disposals. The present challenge was to the imposition of immediate suspension from practice for 3 years (rather than the first tribunal's restriction of the practising certificate, with a period of grace of 6 months before the restriction came into effect). Reference was made to McMahon v Council of the Law Society of Scotland 2002 SC 475, paragraphs [13] to [16]; Robson v Council of the Law Society of Scotland 2005 SC 125, paragraph [36]. Not only was the penalty more severe than that imposed by the first tribunal, but immediate suspension for 3 years was in itself unduly harsh and excessive, bearing in mind all the circumstances of the case, including the petitioner's age (64), his largely unmarred career since 1976, the fact that there had been no dishonesty, and the serious personal and financial consequences of the penalty imposed. The court was invited to quash the decision to suspend the petitioner, and also to allow a period of grace. Reference was made to section 54(2)(a) of the Solicitors (Scotland) Act 1980. Not only would a period of grace permit the petitioner to pass on his cases and clients, but the goodwill in the firm would be realisable in monetary terms, providing a contribution to the petitioner's retirement, rather than being lost. The petitioner would seek to find a firm who would take over his practice, with the petitioner acting as a consultant with that firm for a year or two.

[14] Miss Watts also sought interim suspension of the tribunal's orders until these proceedings were resolved.

Submissions for the respondents

[15] Mr Duncan invited the court to refuse the appeal, and to adhere to the tribunal's decision. The tribunal was a specialist tribunal with particular expertise. Their decisions were entitled to respect. No error on their part had been identified. Membership of the solicitors' profession was a privilege and required high standards of integrity and trustworthiness. The tribunal had both to vindicate the reputation of the profession, and to protect the public (for example, from any repeat conduct). Reference was made to Salsbury v Law Society [2009] 1 WLR 1286, McMahon and Robson.

[16] It was inappropriate to attempt any exercise in comparative justice. The second tribunal had no knowledge of the first tribunal's disposal. The two pleas in mitigation were significantly different, with the second not addressing the aspect of containment of risk to the public. The second tribunal were concerned in that the petitioner appeared to show no insight or remorse, and had not learned from his previous experiences. The tribunal wished to achieve protection of the public, and were not satisfied that any other method of providing protection was open to them.

As for the "stand-alone" challenge to the penalty independently of any comparison between the two tribunals, bearing in mind the previous proceedings in 2007 and 2008, the conduct complained of in the current proceedings (resulting in considerable inconvenience and costs of £45,000 for the liquidator), it could not reasonably be contended that the penalty imposed was harsh and excessive.

Discussion

[17] The petitioner, having taken advice, chose to have his case decided afresh by a second properly constituted tribunal. He, or his advisers, rejected other options such as having proceedings to date validated retrospectively by a properly constituted tribunal. We understand that the second tribunal knew that there had been earlier proceedings vitiated by a procedural flaw. However the second tribunal were not aware of any details relating to the earlier proceedings; nor were they aware what disposal had been selected.

[18] Against that background, we agree with Mr Duncan's submissions (a) that there was no reason for the second tribunal to be restricted in their choice of disposal by anything which had occurred at the first tribunal; and (b) that the first tribunal's disposal was not necessarily more appropriate than the second tribunal's disposal. Accordingly we are persuaded that any attempt at a comparative exercise is valueless.

[19] Nevertheless, lest we are wrong in that conclusion, we turn to compare the pleas in mitigation and the disposals on each occasion. We were provided with transcripts of the two sets of proceedings. On each occasion, the charges against the petitioner were the same, they were admitted, and thus the findings of professional misconduct were the same. However in our view there were significant differences between the plea in mitigation made on the first occasion, and that made on the second. The plea presented to the first tribunal inter alia specifically sought the penalty of a restricted practising certificate, and emphasised the degree of assistance, monitoring and supervision which would be available to the petitioner in the future from his partner Mr Campbell and from Mr Macreath of Levy & McRae, who presented the plea. The plea made to the second tribunal, while touching on the possibility of a restricted certificate, did not advance that option with any confidence. Nor was there any mention of assistance or supervision from others. The second tribunal were advised that the petitioner had been in discussions with another firm of solicitors with a view to transferring his client base to them and acting as a consultant with them for a few years. However they were further advised that the firm in question had been approached by another firm about a merger and accordingly that negotiations were temporarily suspended and that the petitioner was "in something of a state of limbo". The tribunal were invited to impose a censure and payment of compensation of £5,000, leaving the petitioner practising as a principal with no restrictions.

[20] In our opinion, those differences undermine any contention that the disposal adopted by the second tribunal should have been the same as that adopted by the first. But the matter does not end there. As is clear from their Note, the second tribunal formed the impression that there was a lack of insight and a lack of remorse on the part of the petitioner. They were also concerned about the protection of the public, bearing in mind the two earlier analogous disciplinary matters in 2007 and 2008, and the fact that a censure and payment of compensation would return the petitioner to practice as a principal with no obvious protection for the public.

[21] In the result therefore we are not persuaded that the disposal adopted by the second tribunal should have been the same as, or more similar to, that adopted by the first.

[22] Finally there was the "stand-alone" challenge to the penalty imposed by the second tribunal so far as relating to immediate suspension from practice for 3 years, without any period of grace. The penalty selected was submitted to be unduly harsh and excessive, for the reasons noted in paragraph [13] above. Reference was made to the mitigating factors which were placed before the tribunal, including the petitioner's wife's serious ill-health, the petitioner's own ill-health, the long period of unmarred service as a solicitor, and the serious financial consequences for the petitioner of immediate suspension from practice.

[23] We accept all those matters. However we are unable to conclude that the disposal selected fell outwith the range of reasonable disposals available to the Solicitors Discipline Tribunal. In other words, we are not persuaded that this specialist tribunal erred in any way. The tribunal had to bear in mind inter alia the reputation of the solicitors' profession, in particular for integrity and trustworthiness. They had to consider the protection of the public, against a background of previous misconduct in 2007 and 2008. Weighing up all the circumstances of the case, including the matters referred to in paragraph [20] above (lack of remorse, lack of insight, repetition of conduct, and risk to the public) they reached a conclusion in relation to penalty which, in our opinion, cannot be criticised.

[24] The only issue which seems to us to have some substance is that of a period of grace. It is true that none was sought in the submissions made to the second tribunal on the petitioner's behalf. It is also accepted that where the tribunal were sufficiently concerned to order immediate suspension from practice for 3 years, in large part to protect the public, it is somewhat contradictory to permit the solicitor in question to continue in practice for any time at all. However we have reached the view that it would be preferable if the petitioner (who has, apparently per incuriam, been practising since the second tribunal's ruling on 23 January 2013) should be allowed a period within which to organise his affairs and transfer such clients as he is able to. Accordingly we shall allow the appeal to the limited extent of varying the tribunal's interlocutor of 23 January 2013 in terms of section 54(2)(a) of the Solicitors (Scotland) Act 1980 by allowing a period of grace of 3 months before the suspension takes effect, the 3 months to run from the date of the By Order hearing which will be arranged following the issuing of this opinion. Quoad ultra the second tribunal's interlocutor of 23 January 2013 remains unaltered.

Decision

[25] For the reasons given above, we refuse the prayer of the petition, with one exception, and that is the granting of a period of grace of 3 months before the suspension takes effect, as outlined above.