EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 11
Lord Menzies Lady Clark of Calton Lord Clarke	P1101/12   OPINION OF THE COURT   delivered by LORD MENZIES   in the Petition of   Alan Cowan Petitioner;   For the quashing of a decision of the Scottish Solicitors' Discipline Tribunal, insofar as it relates to complaint 1A therein, dated 27 September 2012 and intimated to the petitioner on 1 October 2012. _______________

 

Act: Dunlop QC; Simpson & Marwick WS

First Respondent: Party

Second Respondents (The Council of the Law Society of Scotland): Ellis QC;

Balfour + Manson

Third Respondents (The Scottish Solicitors' Discipline Tribunal): Non participating party

 

3 October 2013

 

[1] In June 2005 Mr Hardey (the first respondent) raised an action in the Court of Session seeking inter alia interdict against his then neighbour Caroline Boles. Ms Boles instructed Messrs Simpson & Marwick to represent her in those proceedings. The petitioner was subsequently instructed to conduct the defence of those proceedings as solicitor advocate for Ms Boles. For at least part of these proceedings Mr Hardey was represented by solicitors (Messrs Brodies) and counsel (Ms Manjit Ram).

[2] In January 2007 three motions enrolled in said proceedings were due to be considered by the court on separate days in the space of one week. It was suggested that all three motions be addressed at the same hearing, and by letter dated 11 January 2007 to Messrs Brodies, the petitioner indicated that if the court required an appearance to arrange for all three motions to be heard together, he would appear on behalf of both parties and so move the court. On 12 January 2007 the petitioner moved the court to continue the motions to a hearing on 16 January 2007; the interlocutor pronounced on 12 January 2007 did not record the petitioner as having appeared for both parties, but rather recorded that there had been no appearance for the first respondent.

[3] In due course the proceedings were concluded, and by interlocutor dated 11 July 2008 the action was dismissed and continued for discussion of the question of expenses. This question was not resolved by agreement, and the court heard submissions on expenses on 3 and 4 December 2008. At this hearing counsel for the first respondent lodged written submissions, which contained a complaint that the petitioner had not appeared for both parties on 12 January 2007. This complaint had not previously been made. In answer to this complaint, the petitioner erroneously stated to the court that there could not have been any undertaking on his behalf to appear for both parties on 12 January 2007. In response, counsel produced to the court the petitioner's letter dated 11 January 2007. The court sought no further response from the petitioner in this regard, and found no expenses due to or by any party.

[4] In January 2009 the first respondent made various complaints to the Scottish Legal Complaints Commission ("SLCC") regarding the conduct of the petitioner. The first respondent submitted a complaint regarding what had happened at the hearing on 12 January 2007 (in that the petitioner had not appeared for both parties) and 4 December 2008 (in that the petitioner had said that he had not agreed to appear for both parties on 12 January 2007). The SLCC remitted the matter to the second respondents, who determined that the complaints about January 2007 and December 2008 required to be considered separately. By letter dated 10 February 2009 the second respondents told the first respondent that his complaint relating to the events in January 2007 was out of time, and was dismissed. That dismissal has not been challenged by the first respondent. So far as the complaint regarding the hearing in December 2008, the second respondents remitted that to be addressed by the SLCC in the first instance.

[5] Thereafter several further complaints were made by the first respondent to the SLCC about the petitioner's conduct. The complaint about what happened on 12 January 2007 having been dismissed, there remained a further seven complaints which were remitted by SLCC for consideration by the second respondents.

[6] By decision dated 3 March 2011 the second respondents' professional conduct committee determined not to uphold any of the seven complaints. In April 2011 the first respondent appealed, in terms of section 42ZA(10) of the Solicitors (Scotland) Act 1980 ("the 1980 Act") this decision to the Scottish Solicitors Discipline Tribunal (the third respondents).

[7] In the course of the appeal proceedings before the third respondents, the first respondent abandoned his appeal regarding all of the complaints with the exception of complaints 1A and 1B. Complaint 1A, as amended by the first respondent and adjudicated upon by the third respondents was in the following terms:

"On 3 December 2008 at a hearing on expenses before temporary Judge Wise, [the petitioner] incorrectly claimed to the court that he had not undertaken to appear for Mr Hardey. When [the petitioner's] letter of 11 January 2007 was then produced to the court, he was completely contradicted by it and sat silent before temporary Judge Wise."

 

[8] The third respondents heard evidence and adjudicated on the first respondent's appeal regarding complaints 1A and 1B. With regard to complaint 1B, the third respondents refused the appeal and confirmed the decision of the professional conduct committee. However, in their decision dated 27 September 2012 the third respondents allowed the first respondent's appeal regarding complaint 1A and the complaint was thereby upheld. This amounted to a finding that, with regard to complaint 1A (in the terms set out above) the petitioner was guilty of unsatisfactory professional conduct. The third respondents declined to make any award of compensation.

[9] The petition presently before the court was presented under section 54A of the 1980 Act, and appeals the finding of unsatisfactory professional conduct on three grounds - (1) that the decision was contrary to the evidence; (2) that the third respondents took into account matter which was not the subject of complaint and was not properly before them; and (3) that the third respondents misapplied the law.

[10] Written notes of argument were helpfully provided to the court on behalf of the petitioners, the first respondent and the second respondents. We do not find it necessary to repeat the submissions at length. They may be summarised as follows.

Submissions for the petitioner

[11] Senior counsel for the petitioner observed that the statutory concept of "unsatisfactory professional conduct" first came into effect on 1 October 2008, as a result of section 2 of the Legal Profession and Legal Aid (Scotland) Act 2007. Under reference to section 46 of the 1980 Act, it was professional conduct which was not of the standard reasonably to be expected of a competent and reputable solicitor; it was more than merely inadequate professional services, but did not amount to professional misconduct. This was the first occasion on which the concept had been considered by the third respondents.

[12] With regard to the first ground of appeal, Mr Dunlop QC accepted that there were limited circumstances in which an appellate court would interfere with a fact finder's decision on the evidence; however, under reference to the well-known dictum of Lord MacMillan in Thomas v Thomas [1947] AC 484 at 491, he submitted that in the present case the third respondents had misunderstood the evidence or otherwise gone plainly wrong. He adopted the submissions contained in his written note of arguments. In support of the second ground of appeal, he placed particular reliance on Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386, at paragraphs [26] to [29]. With regard to the third ground of appeal, he submitted that as the statutory concept of unsatisfactory professional conduct did not come into force until 1 October 2008, the Tribunal could not rely on matters occurring before that date in reaching its decision. He reminded the court of the judgment of the Privy Council delivered by Lord Brightman in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 558.

[13] Mr Dunlop accepted that the third respondents were a specialist tribunal, and that an appellate court should exercise caution when considering the decision of such a tribunal. However, it is clear that the court will intervene where there is a patent error by the tribunal. Moreover, having regard to the particular circumstances of the present case this court is arguably better placed than the third respondents to know what happens in practice in court. He pointed out that the second respondents did not seek to support this decision. The court should quash this decision and there was no need for the court to remit the matter back to the third respondents.

 

Submissions for the second respondents

[14] Senior counsel for the second respondents did not seek to uphold the decision of the third respondents. He adopted his written note of argument. With regard to the statutory concept of unsatisfactory professional conduct, and whether this touched on the reputation of the legal profession as a whole, he observed that it was not phrased in terms of bringing the profession into disrepute.

[15] Mr Ellis QC stated that the Law Society of Scotland wished an expeditious and fair disposal of this matter. This court had the power to dispose of it under sections 54A and 55A of the 1980 Act; nothing was to be gained by a rehearing before the Tribunal. He submitted that the interests of justice favoured a determination by this court, which was in as good a position as the Tribunal to assess what amounts to unsatisfactory professional conduct in these circumstances.

Submissions for the first respondent

[16] Mr Hardey adopted the note of arguments which he had already submitted. In addition, he provided the court with a lengthy note of submissions extending to some 36 pages. The court received this note, and took time to read it and consider it. It contains detailed arguments in support of the third respondent's decision and maintains that the Tribunal was entitled to reach the conclusion which it did.

[17] Mr Hardey submitted that the Tribunal had the advantage of seeing and hearing the witnesses who gave evidence - an advantage which this court does not have. This court should not interfere with the Tribunal's decision unless it is clearly wrong or unreasonable - and this decision is neither.

[18] Although he has made no appeal to this court to this effect, Mr Hardey submitted that the Tribunal's decision not to award him compensation was unsatisfactory, and that it may be that some additional penalty is appropriate. In the event that this court quashes the decision of the Tribunal he invited us to remit back to the Tribunal for reconsideration.

Discussion

[19] It is clearly of the greatest importance that a tribunal such as the Scottish Solicitors' Discipline Tribunal, when considering a complaint involving a statutory concept such as unsatisfactory professional conduct by a practitioner who is a solicitor, should have at the forefront of its collective mind the terms of the statute which create the ground of complaint and which regulate its own powers, jurisdiction and procedures. It must focus on the subject matter of the complaint, and not on extraneous or peripheral matters which are not the subject of complaint. It must consider carefully the evidence placed before it and proceed to an equally careful analysis of that evidence in order to determine whether or not the complaint has been established.

[20] In the present case we do not consider that the third respondents exercised the careful, rigorous and focused consideration and analysis of the evidence and the relevant law in relation to the first respondent's complaint 1A that they required to exercise. That complaint related only to what happened in a hearing in court on 3 December 2008. It did not relate to anything which may have occurred or not occurred before that date. Another complaint about what occurred at a hearing on 12 January 2007 had already been dismissed, and that dismissal was not challenged. Notwithstanding this, and the fact that the statutory concept of unsatisfactory professional conduct only came into effect on 1 October 2008, the Tribunal appears to have been distracted by, and to have had regard to, matters which predate both 1 October 2008 and 3 December 2008. It made findings in fact which related to a "history" between the petitioner and the first respondent which predated January 2007, as a result of which the petitioner "would have known on 12 January 2007 that he had undertaken to appear on behalf of Mr Hardey in terms of his letter of 11 January 2007". The Tribunal went on to consider matters which have no bearing on the issue focused in complaint 1A. The Tribunal expressly took account of what it describes as "the history between Mr Cowan and Mr Hardey" in the reasons for its decision.

[21] By way of example, the following passage of the decision illustrates the point:

"In respect of the facts found the Tribunal considered that Mr Cowan should not have dealt with and responded to Mr Hardey in the way that he did. The Tribunal felt that he had let his animosity overflow into his professional life. His reaction to the situation was a human reaction but not a professional reaction. Mr Cowan did not accept in his oral evidence that there was any animosity between him and Mr Hardey. However it was clear from Ms Ram's evidence about the comments made between them at the court doors that there was indeed a great deal of animosity between Mr Hardey and Mr Cowan."

 

[22] These observations would have been relevant if the complaint which the Tribunal was considering related to unsatisfactory professional conduct by the petitioner by being rude, discourteous or showing animosity towards the first respondent coming in and out of court in January 2007. However, this was not the complaint before the Tribunal, which related solely to the petitioner's incorrect statement to the court on 3 December 2008 and his subsequent silence.

[23] It appears that the Tribunal was influenced in its decision on complaint 1A by its conclusion that there was a history of animosity between Mr Cowan and Mr Hardey. For example, at page 164 of the decision it is stated that "the Tribunal do not accept, given the history between Mr Cowan and Mr Hardey, that Mr Cowan would have forgotten that he had given the undertaking...", and further down that page, having indicated that it could not be satisfied on the balance of probabilities that Mr Cowan deliberately lied to the court, the Tribunal "consider that the whole way in which he had dealt with the matter was not the way that a competent and reputable solicitor should have dealt with it and accordingly made a finding of unsatisfactory professional conduct".

[24] Turning to the particular grounds of appeal, we consider that there is force in the first ground of appeal, namely that the Tribunal misunderstood the evidence and has plainly gone wrong. It is stated at page 162 of the decision:

"The Tribunal considered that due to the animosity between Mr Cowan and Mr Hardey the Tribunal did not believe that Mr Cowan would have forgotten when he appeared on 12 January 2007 that he had written a letter on 11 January 2007 undertaking to appear on behalf of Mr Hardey on 12 January 2007."

 

This appears to be a misunderstanding of the evidence given by the petitioner. There is no suggestion in the record of the evidence that he stated that he had forgotten when he appeared on 12 January 2007 that he had written a letter on the previous day. In any event, this is irrelevant to the issue before the Tribunal, which was the conduct of the petitioner on 3 December 2008. The same observations apply to the passage further down page 162:

"Mr Cowan would have been reminded that he had given this agreement to appear on behalf of Mr Hardey by Mr Hardey's absence on 12 January. The Tribunal accordingly made a finding in fact that when Mr Cowan appeared in court on 12 January 2007 he would have been aware that he had given an undertaking to also appear on behalf of Mr Hardey."

 

[25] Both the passages quoted above suggest that the Tribunal misunderstood the evidence, and also took into account a factor which was not relevant to the issue before them. Their misunderstanding of the evidence, at least in their analysis and the reasoning for their decision, extended to the evidence of another witness, namely Ms Ram. At page 162 of its decision, the Tribunal made the following statement:

"It was clear from the evidence that when the case called on 16 January Lord Brailsford was still under the impression that Mr Cowan had not appeared on behalf of Mr Hardey on 12 January and Mr Cowan does not appear to have done anything to correct him."

 

However, at page 28 of its decision the Tribunal noted that "Ms Ram stated that she thought that Lord Brailsford at the hearing on 16 January 2007 praised Mr Cowan for agreeing to appear for both parties on the 12 January 2007."

[26] This record of Ms Ram's evidence appears to be accurate from the transcripts with which we have been provided (see No. 7/4 of process at page 56 and No. 7/5 of process at page 38). This is inconsistent with the statement in the Tribunal's reasoning at page 162; the basis for that statement is not apparent.

[27] There are other inconsistencies in the Tribunal's analysis of the evidence. At pages 163/164 of the decision the following statements are made:

"The Tribunal considered that if Mr Cowan had genuinely forgotten the undertaking, or genuinely got the dates mixed up, he would have reacted differently and immediately apologised...

 

The Tribunal consider that if Mr Cowan's actions had been purely accidental he would have apologised...

 

The Tribunal do not accept, given the history between Mr Cowan and Mr Hardey that Mr Cowan would have forgotten that he had given the undertaking or that he would have not checked the matter prior to the hearing, especially as the letter of 11 January 2007 had been in the productions since April 2008. The Tribunal did not consider that Mr Cowan had adequately explained why he stated when he appeared in court in December 2008 that he had not given the undertaking."

 

[28] However, further down page 164 the following statement is made:

"Given the length of time that passed between 12 January 2007 and the hearing on expenses in December 2008 the Tribunal cannot be satisfied on the balance of probabilities that Mr Cowan deliberately lied to the court but consider that the whole way in which he had dealt with the matter was not the way that a competent and reputable solicitor should have dealt with it and accordingly make a finding of unsatisfactory professional conduct."

 

[29] We find it difficult to reconcile these passages in the decision. The first three passages support the conclusion that Mr Cowan deliberately lied to the court. The last passage departs from this line, and states that on the relevant standard of proof Mr Cowan was not shown to have lied to the court.

[30] In light of these passages in the decision, we are satisfied that the Tribunal's judgment on the facts has been demonstrated to be affected by material inconsistencies and inaccuracies to such an extent that their conclusion is unsupported. We consider that the first ground in the petition is made out.

[31] There is a substantial degree of overlap between the first and second grounds. The second ground is that the Tribunal took into account matter which was not subject of the complaint and thus not properly before them. We have already made observations about this (at paragraphs [20] - [23] above). It is apparent from the terms of the decision that the Tribunal had regard to the passage in Ms Ram's evidence that the petitioner and the first respondent had "traded insults" at the door to the court in January 2007, and that there was a previous history of animosity between them. Having concluded that it could not be satisfied on the balance of probabilities that Mr Cowan deliberately lied to the court in December 2008 (which was the subject of complaint 1A), the Tribunal went on to state that it considered that the whole way in which he had dealt with the matter was not the way that a competent and reputable solicitor should have dealt with it, and accordingly made a finding of unsatisfactory professional conduct. This is indicative of the Tribunal taking into account matters other than what Mr Cowan did in court on 3 December 2008.

[32] The Tribunal appears to have focused on the events in January 2007 when it considered the issue of compensation, in the last paragraph of page 164 of its decision:

"The result of Mr Cowan failing to appear on behalf of both parties was just to have the case continued which would have happened if he had appeared on behalf of both parties in any case. There was accordingly no harm caused to Mr Hardey. Although Mr Hardey was annoyed by this it was only a small aspect of the whole animosity between Mr Hardey and Mr Cowan. The Tribunal note that Mr Hardey saw the interlocutor of 12 January 2007 in May 2007 but did not complain about it at this time. The Tribunal do not consider that there was any significant loss or inconvenience or distress caused to Mr Hardey by this particular incident and therefore do not consider it appropriate to make any award of compensation."

 

[33] The entire focus of the Tribunal's reasoning with regard to compensation is on the events in January 2007. The Tribunal does not apply its mind at all to the consequences for Mr Hardey of what Mr Cowan did or did not do in December 2008. That was the only issue before the Tribunal in respect of complaint 1A, but it was not addressed at all. The Tribunal focused on the consequences of events which were not the subject of a complaint before them.

[34] No notice was given to the petitioner that the Tribunal would be considering, in its determination of the issue of unsatisfactory professional conduct or of the consequences of such conduct and remedy therefore, the hearing on 12 January 2007. We agree with the observations of Lady Smith in Irvine v Royal Burgess Golfing Society of Edinburgh, and the authorities to which she referred. We consider that the third respondents took into account matter which was not the subject of complaint 1A and was not properly before them.

[35] Although Mr Dunlop did not press his third ground as forcefully as the others, and it is not necessary for our determination of this matter, we consider that there is force in the submission that when the third respondents made a finding against the petitioner of unsatisfactory professional conduct they did so having regard to matters which predated 1 October 2008, when the statutory concept of unsatisfactory professional conduct came into effect. In this regard, the observations of the Privy Council in Yew Bon Tew at page 558 are relevant:

"Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past."

 

[36] We do not consider that it was open to the third respondents to make a finding of unsatisfactory professional conduct on the basis of conduct which predated 1 October 2008.

[37] We have given careful consideration to the contents of the written submissions made by the first respondent, but we do not find them to be persuasive. For the reasons given above, we quash the decision of the third respondents dated 27 September 2012 insofar as it relates to complaint 1A therein. We see no purpose to be gained by remitting this matter back to the Tribunal, and we refuse to do so. We consider that it is clear in this case that the judge dealing with the issues considered the error by the petitioner as a genuine mistake in recollection which merited no further investigation or response by the petitioner. Having considered all the information, we agree with that approach. We have difficulty in understanding how this error in the circumstances of this case could have been considered to merit a full disciplinary hearing. We shall continue all questions of expenses to be considered at a future date.