Thursday, February 26, 2015

HEDGE FUND JUDGE SUSPENDED: Sheriff Peter Watson removed from bench by Lord Justice General over multi million pound summons linked to £400m Heather Capital fraud probe

Sheriff Peter Watson kicked off bench. A SHERIFF linked to the collapsed £400m Heather Capital hedge fund probe and multi million pound claims against Scots law firms has been suspended by Scotland’s top judge Lord Brian Gill – in order to maintain public confidence in the judiciary.

PETER BLACK WATSON (61) - known formerly as a ‘top’ media lawyer with close links to political figures such as Alex Salmond, Police, and even prosecutors - has been kicked off the judicial bench by the Lord Justice General Lord Gill – after the judge concluded Watson’s offer to step aside was “not appropriate”.

BUT it can now be revealed – action by Gill (73) only came about after the Judicial Office was asked by the media to comment on allegations against the sheriff contained in a multi million pound claim lodged against Watson’s former law firm – Glasgow based Levy & Mcrae.

Watson, the go-to-lawyer for those who sought to quell media interest in their activities – was based at Levy & Mcrae until last year. He inexplicably departed after a long career at the firm, and started PBWLaw. Watson, a regular to the Cayman Islands tax haven – according to media editorials - claims he wants to make it the "Harley Street of legal advice".

Concerns over his position as a  member of the judiciary arose due to the fact Watson was a director of Mathon Ltd – a key part of the Heather Capital empire run by Gregory King – who is one of four men now the subject of reports by Police Scotland to the Crown Office.

Scotland’s Lord Advocate is currently considering possible criminal charges in connection with the hedge fund probe, but at this time, Watson has not been named by the Crown Office as someone under investigation.

However, the Crown Office may face a conflict of interest dilemma as Watson- known to many ‘independent Crown Counsel’ - has personal links to former Crown Office boss - Lord Advocate Dame Elish Angiolini DBE QC (nee McPhilomy) – who used Watson’s legal services – paid for by the Crown Office & Scottish Ministers - to pursue anti-abuse campaigner Robert Green who called for an inquiry into allegations of mishandled cases relating to historical abuse claims.

The Judicial Office issued the following statement:

Statement from the Judicial Office for Scotland on the suspension of part-time sheriff Peter Watson

Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

Tuesday, February 10, 2015

Law Scandal hits Borders law firm: Lawyer Andrew Penman suspended, Stormonth Darling Solicitors taken over by Law Society in scandal linked to client complaints & Court of Session case

Andrew Penman – suspended by Law Society. A SOLICITOR from the Scottish Borders who was once accused by Law Society investigators of faking up evidence in files and deliberately deceiving banks and the Inland Revenue has been suspended by the Law Society of Scotland after a string of scandals relating to his clients legal affairs and dodgy legal practices.

ANDREW PATERSON PENMAN, solicitor with the Kelso law firm of Stormonth Darling Solicitors was suspended late last year by the Law Society of Scotland, who quietly announced Penman’s suspension in the Gazette: Notice is hereby given that the practising certificate of ANDREW PATERSON PENMAN, solicitor, Stormonth Darling, Bank of Scotland Buildings, 8/9 The Square, Kelso, TD5 7HQ was suspended under Sections 39a and 40 of the Solicitors’ (Scotland) Act 1980 with effect from 2 October 2014.

The order announcing Penman's suspension was ironically signed by James Ness, Deputy Registrar – the same solicitor who once defended Penman during a Complaints Committee hearing. Ness - a partner at Austins Solicitors, Dalbeattie, Dumfries & Galloway - represented Penman at Law Society complaints hearings. Ness gave a submission at the time demanding the Complaints Committee change its decision from one of prosecuting Penman before the Scottish Solicitors Disciplinary Tribunal – to a slap on the wrist. The move was controversial and heavily reported in the national and local press at the time.

Penman has now been linked to a case in the Court of Session - Ladykirk Estates Limited, Academy House, Shedden Park Road, Kelso, (Ledingham Chalmers Llp) V Roxburghshire AG V Stormonth Darling W.S. Solicitors, Drew Penman, Terry Mcnally and Craig Wood, Bank Of Scotland Buildings, The Square, Kelso, Roxburghshire

Court staff have indicated the case is one of a significant financial claim against Penman and other solicitors based at Stormonth Darling in Kelso.

Andrew Paterson Penman was employed as a Director (SOLICITOR) at LADYKIRK ESTATES LIMITED from 01 June 2007 to 17 September 2012 , Company address: LADYKIRK ESTATES LIMITED ACADEMY HOUSE, SHEDDEN PARK ROAD, KELSO, ROXBURGHSHIRE, TD5 7AL

Andrew Paterson Penman was also employed as a Director (SOLICITOR) at S.P.C. BORDERS from 31 January 2006 to 30 November 2014 Company address: S.P.C. BORDERS 27 MARKET STREET, GALASHIELS, TD1 3AF

It has also been revealed Penman and his law firm are being investigated by the Scottish Legal Complaints Commission & Law Society of Scotland in connection with a number of complaints made by clients where substantial sums of money into hundreds of thousands of pounds along with queries regarding unpaid rent and disappeared funds are alleged.

Solicitor Craig Wood - the only remaining solicitor at Stormonth Darling ‘took ill’ leading to the Law Society closing the firm down. It has since been announced another local law firm, Cullen Kilshaw, has agreed to take on some of the business of Stormonth Darling.

In 2009, Scottish Law Reporter covered a story relating to Ladykirk Estates & Andrew ‘Drew’ Penman – after both lost a legal challenge in Scotland’s Land Court. LadyKirk Estates objected to the transfer of a farm tenancy from an elderly tenant to his younger nephew. Ladykirk had also claimed their ECHR rights had been in breach. Full report HERE

CHEQUERED HISTORY OF BORDERS LAWYER WHO RUINED CLIENTS:

Penman – Originally from Hawick then moved to Kelso to work at Stormonth Darling Solicitors, has been subject to numerous complaints from local clients in the Scottish Borders over the years, One investigation carried out by the Law Society of Scotland issued reports finding Penman had deliberately rearranged evidence before investigating officers took possession of the files in an attempt to prevent the Law Society’s own reporter from investigating the circumstances of the losses. The Law Society investigating reporter found there was also evidence of what appeared to be a bungled and unsuccessful attempt to put the file into order

Law Society of Scotland investigation into crooked lawyer Andrew Penman of Stornomth Darling Solciitors Kelso 2Law Society found Andrew Penman deliberately mislead Royal Bank of Scotland, amounting to professional misconduct. Page two of the Law Society report said : “The reporter noted there was a complete failure on the part of Messrs. P. & J. Stormonth-Darling to deal with this matter. They completely failed to acknowledge the instructions they had received from the Royal Bank in this connection and failed to take any steps to deal with the matter. The reporter was of the view that the substantial and unnecessary delays which had taken place in the executry might amount not only to an inadequate professional service on the part of Messrs. P.& J. Stormonth Darling but professional misconduct on the part of Mr Penman the solicitor dealing with the matter up until the time the complaint was lodged with the Law Society on 17th October 1994. Further the reporter was of the view that the apparent deliberate attempt to mislead the Royal Bank in regard to the Banco di Roma account may amount to professional misconduct.”

The Law Society investigating lawyer went onto demand a prosecution of Andrew Penman, saying : “In respect of the extraordinary delays and the repeated failures to respond to correspondence and the apparent, deliberate attempt to mislead the Royal Bank the reporter was of the view that the professional misconduct was such that it would warrant prosecution before the Scottish Solicitors Discipline Tribunal The reporter was or the view that there had clearly been an inadequate professional service but in the, event of a referral to the Scottish Solicitors Discipline Tribunal this would be incorporated into the complaint.”

In several damning verdicts, the Law Society’s investigating officer found that Penman had DELIBERATELY MISLED the Royal Bank of Scotland, while documents involving correspondence from the then INLAND REVENUE now Her Majesty’s Revenue & Custons (HMRC) showed Penman had also deliberately misled tax inspectors after vast sums of money disappeared from the deceased’s estate in an organised attempt by the Executor, a Borders Accountant identified as Norman Howitt to pay the monies over to the deceased’s wife and then into a SECRET TRUST FUND controlled by Howitt himself and revealed in an article on Scottish Law Reporter in 2007, HERE where evidence revealed Howitt had INCREDIBLY even taken possession of the deceased’s widow’s pension book.

Law Society of Scotland investigation into crooked lawyer Andrew Penman of Stornomth Darling Solciitors Kelso 3Law Society Complaints Committee said Andrew Penman mislead the Royal Bank, was a failure at handling an executry. The Committee’s consideration of the investigating lawyer’s findings revealed : “The Committee expressed grave concern at the way that this executry had been handled by Mr. Penman and the extraordinary delays and the complete failure to deal with correspondence in an adequate manner, The Committee were of the: view that there: had been very poor attention paid to the administration of this estate and that whilst the complainer's uncertainty in certain matters might have caused some confusion there was a general lack of effort on the part of the solicitors to deal with matters in a reasonable manner.. It was noted in connection with the proposed loan by the Royal Bank. to the complainer there was a complete and utter failure to deal with the matter in any way or even to acknowledge the instructions. In connection with the Banco di Roma account the Committee noted the failure on the part of Mr. Penman to deal with matters in a reasonable way. They were particularly concerned at the terms of the letter written by Mr. Penman to the Royal Bank on 29th September 1992 which appeared to be an attempt to mislead the Royal Bank into believing that matters were being actively dealt with when they were not.”

“The Committee concurred with the views of the reporter in this matter indicating that the apparent attempt to mislead the Royal Bank persuaded them that Mr Penman's acting in the matter were so serious and reprehensible as to amount to professional misconduct. The Committee thereafter considered whether the professional misconduct was such that it would warrant referral to the Scottish Solicitors Discipline Tribunal. The Committee were of the view that the administration of the executry had been so appallingly badly done as to take the issue out of service into that of conduct and coupled with the apparent attempt to mislead the Royal Bank the conduct was such that it would warrant prosecution before the Scottish Solicitors Discipline Tribunal. The Committee were of the view that Mr, Penman's acting in respect of the extra-ordinary delays and failure to progress the administration of the executry and in apparently misleading the Royal Bank of Scotland were so serious and reprehensible as to amount to professional misconduct. The Committee determined to recommend to Council that Mr. Penman be prosecuted before the Scottish Solicitors Discipline Tribunal in relation to the professional misconduct and the service provided and any other matter which the Fiscal feels appropriate.”

The actions of Penman were so severe the Law Society’s reporter demanded Penman be prosecuted before the SCOTTISH SOLICITORS DISCIPLINE TRIBUNAL and struck off due to the seriousness of his actions, however a secret deal was brokered between a key Law Society official, James Ness and the then Complaints Committee to commute Penman’s punishment and reverse the prosecution, thought to be the first & only case of its kind ever happening at the Law Society. The deal to reverse the prosecution was branded “corrupt” by many legal insiders and the wider media.

Saturday, January 31, 2015

Matthew Vickers heads to Ombudsman Services as Scottish Legal Complaints Commission lose another Chief Executive

Matthew Vickers, SLCC CEO resigns for mediation role. THE Scottish Legal Complaints Commission (SLCC) – the ever popular sinkhole of the £320 a year complaints levy - has announced the resignation of it’s current Chief Executive - Matthew Vickers - who steps down in March 2015 for a post in the world of big business mediation.

Mr Vickers took on the CEO role at the SLCC during summer of 2012 making him the third ‘appointed’ Chief Executive not counting two civil servants who filled the post before the SLCC became operational in 2008. Vickers is leaving to take up the role of Deputy Chief Ombudsman at Ombudsman Services - a not-for-profit organisation which provides independent dispute resolution for the communication, energy and property sectors.

Commenting on the resignation SLCC chair, Bill Brackenridge said: “We are grateful to Matt for his leadership and contribution since he joined the SLCC as CEO in June 2012. He and the management and staff have worked hard to make the SLCC a more efficient, effective and influential organisation. We are now well established as an independent and impartial body. Of course, we recognise that there is a great deal of work to be done and we have started our search to find a CEO who will help us to tackle it."

Friday, January 30, 2015

FRACKS AWAY: Scottish Government fracking ban hits problem as top judge promotes shale gas retrieval, says “resources should be served by the court system”

Slant drilling coming to a house near you – courtesy of courts. SCOTLAND’S top judge Lord Brian Gill has given his own view of fracking for shale gas on the same day the Scottish Government announced a moratorium on new fracking licenses. In what many view as an opposite opinion to the ban on fracking in Scotland, Lord Gill gave an optimistic appraisal of the retrieval of shale gas in his words, saying “if that should  be allowed” on the same day Energy Minister Fergus Ewing sought to quell protests by announcing a temporary ban on fracking – with the promise of a ‘public consultation’.

Ominously, Gill also indicated the courts should be there to serve opportunities presented by natural resources, and went on to chide the legal profession for not taking enough notice of the North Sea oil boom.

Speaking on the issue of fracking, Gill said: “Our resources of energy may be increased by the retrieval of shale gas, if that should be allowed. It seems to me therefore that the opportunity that our natural resources present should be served by the court system.”

However, Gill’s own views on the nation’s energy policy and how the legal sector should exploit it for their own ends was delivered the very same day the Scottish Government grudgingly announced a ban on new shale gas fracking schemes.

Making a statement announcing the ban on fracking for shale gas after it emerged Energy Minister Fergus Ewing had criticised MSP Joan McAlpine for assisting constituents against plans by the Duke of Buccleuch to mine coalbed methane at Canonbie in Dumfries and Galloway, Mr Ewing told the Parliament: "I want to ensure that the voices of the communities likely to be most affected are heard, and are heard in a more formal and structured way.I am therefore announcing today that in addition to the technical work I've referred to on planning, environmental regulation and upon assessing the impact on public health, Scottish ministers will also launch a full public consultation on unconventional oil and gas extraction."

Speech by Lord Gill on Digital Justice, Fracking & Big Oil. During the speech, Lord Gill also chastised his own judicial colleagues & lawyers for missing out on exploitation of Scotland’s oil boom.

Lord Gill said: “In the 1960s and 1970s the economy of Scotland was transformed by the discovery of North Sea oil. The judges and lawyers of that time were not alert to the opportunity that Scotland could be an international forum for resolving disputes in the oil and gas industry. We paid a price for our complacency when the international oil and gas industry passed us by.”

Gill continued: “Half a century on we should look at Scotland's economic opportunities and see how the courts can best serve them. In recent years a commitment to renewable energy has brought wind power to the fore as an energy source. Other forms of renewable energy may follow.”

The full text of Lord Gill’s speech follows: The focus of today's discussion will be the use of digital innovation and technology in the administration of justice. Until recently, a discussion of that subject would have been futile. There would have been no point in superimposing new technology on a justice system that was in failure. Things are different now.

The background to my speech today is the Courts Reform (Scotland) act 2014 which came into law on 10 November last. It is the single most important piece of legislation in the field of civil justice for over a century. The purposes of the Act are best understood in the context of the Scottish Government's Making Justice Work programme. This programme has made it possible for reform in the entire justice system to be implemented according to a systematic, integrated plan. It is an outstanding example of public administration in Scotland.

It has been a privilege for me to lead the Scottish Civil Courts Review and to see its key principles transformed into law.

On the whole, the public, the politicians, the litigants' interest groups, the commercial sector, and above all, those who work in the system and know it from the inside, were enthusiastic in their reaction to the recommendations of

the Review and to the Courts Reform Bill through which the prospect of a modern civil justice system became a reality.

Future generations will be surprised to learn that in the early years of the 21st century there were sections of the legal profession who thought it right to conduct civil litigations of a value of £5000 in the highest civil court in the land; or that we tolerated a system in which the legal costs of the first day of an action could exceed the value of the claim.

It is my impression that those lawyers who opposed change assumed that the profession was living in a static legal world. Events have disproved that assumption. In the Scottish legal world change is all around. Solicitor firms of high repute have gone to the wall. Famous legal names have disappeared as a result of the entry of international law firms into Scotland.

Even without the civil justice reforms the profession would have faced the prospect of radical change. Consider the changes that have occurred in the profession since we reported in 2009. Would anyone now contend that, for example, the structure of the solicitor profession or the system of legal aid will be the same in ten years' time as it is now?

All of the controversy over civil justice reform must now be put behind us. The Scottish Parliament has passed the Act. What was the subject of debate is now the law of the land.

So, now that the tumult and the shouting has died, as Kipling put it, it is time to look ahead in a positive way. I am pleased to announce that the timetable for commencement of the provisions of the Act has now been finalised.

By July next the lengthy process of appointment of the first summary sheriffs will be put in hand. In time, those summary sheriffs will deal with the new simple procedure, which will come into force in the Spring of 2016.

In September, at the start of the new legal year, a number of the key reforms will take effect, namely:

• the establishment in Edinburgh of a sheriff court with a Scotland-wide jurisdiction for personal injury cases;

• the extension of the exclusive jurisdiction of the sheriff court to actions with a value of up to £100,000;

• the establishment of the Sheriff Appeal Court, at first with jurisdiction for criminal cases and after January 2016 with jurisdiction also in civil cases;

• and finally, the introduction of the permission stage to judicial review proceedings.

The reforms present opportunities to litigants, to the profession and to judicial office holders at every level. In the Court of Session our administration will no longer bear the burden of low-value litigations.

At sheriff court level solicitors will have the opportunity to deal with claims of significant value and to exercise skilled advocacy in cases that in former days would have been litigated in the higher courts. But litigants should have a choice of representation; and therefore should have also access to the services of the Bar. There will be many important and complex sheriff court litigations where the services of counsel should be available to either side. Whether at first instance or in the Sheriff Appeal Court, section 108 of the 2014 Act imposes a positive duty on the court to sanction the employment of counsel if it considers that in all the circumstances it is reasonable to do so. In making that judgment the court must have particular regard to the difficulty or complexity, or the likely difficulty or complexity, of the proceedings; the importance or value of any claim in the proceedings; and the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel. The court may also have regard to such other matters as it considers appropriate. This provision reflects the expectation underlying the Report of the Civil Courts Review that counsel would have a real and meaningful role in the work of the sheriff court in its expanded jurisdiction.

In consequence of the reforms, the shrieval bench will be relieved of the burden of minor criminal work. The sheriffs will have the opportunity to pursue specialisms in the field of civil law, such as family law and commercial law, and to specialise in the criminal field in cases of serious crime under solemn procedure. This will present the sheriffs with the demanding task of improving their judicial skills and in accepting a high degree of responsibility; but that is a challenge that any sheriff should be glad to accept.

At the third tier level the new office of summary sheriff will lead to the recruitment of a group of sheriffs, who will be specialists in their own way, dealing with lower value cases that presently occupy much of a sheriff's time - small claims, small debts, housing repossessions, family disputes, child- related matters, children's hearing referrals and the bulk of summary prosecutions throughout Scotland.

Finally, the sheriff appeal court will achieve efficiencies at the appellate level by removing business from the Inner House and the Appeal Court respectively; by expediting cases through the first tier of the appeal process and by preventing unmeritorious claims from being pursued in the higher courts.

When the relevant provision comes into force, I intend to appoint Sheriff Principal Mhairi Stephen QC to be President of the Sheriff Appeal Court. She will be the first woman to be appointed as president of an appellate court in Scotland. I am confident of the court's success under her expert leadership.

The reforms seek to remedy one of the besetting problems in our courts in modern times - that of maximising the productive use of available court time. The three keys to the successful implementation of the reforms will be judicial specialisation; judicial case management and flexibility of shrieval deployment.

Under the new system sheriffs will be expected to be flexible in response to the needs of the courts. Efficiency will no longer be impeded by the traditional boundaries between sheriffdoms or by rigid procedural rules whose justification has long been forgotten.

The summary sheriffs will be expected to sit in different courts and in different sheriffdoms - on the same day, if need be.

The whole purpose of these reforms is to maximise the efficiency and the output of the courts. We can no longer allow the progress of an action to be dictated by the convenience of the parties or their lawyers. The court has interests and responsibilities of its own.

The new regime is logical and rational. It is long overdue. I am confident that the legal profession will adapt to it and contribute to its success.

Today's theme is how we bring the court system into the modern world and, perhaps more importantly, how we bring the modern world into the court system. It was recognised in the Scottish Civil Courts Review that improvements in information and communication technology were fundamental to the success of the court reforms. My prediction is that we will move quickly towards the paperless court, towards the filing of writs from the lawyer's desk; towards the virtual court with remote access by judges, lawyers, clerks and witnesses and towards hearings that are no longer based on oral evidence.

In July last year, I had the pleasure of opening the new Civil Justice Centre and Commercial Court in Aberdeen. It is an example of the installation of new technology in a new justice centre. It has been using much of the technology that is being introduced throughout the Scottish court system, including improved video link technology. With it, we are edging nearer to the prospect of a 'virtual court'. Eric McQueen will explain the technology in more detail.

These processes may seem to be innovative and state-of-the-art, but the individuals and businesses who deal with our court system are already well

practised in utilising such technology. Digital innovation is essential if we are to improve access to justice, reduce time and expense for the litigant and ease the administrative burden on our court staff.

But access to justice should not operate solely in favour of those already using the system. Access to justice encompasses a broader aim - to open our courts to public scrutiny and to public understanding and, in that way, to de-mystify our law and its procedures.

In recent years there has been considerable pressure from the media for the televising of proceedings in the courts. On one or two occasions my predecessors have allowed there to be cameras in court.

When I became Lord President it was clear to me that there was no overall policy in the matter. We simply could not go on making ad hoc decisions on individual applications to film or to televise. I therefore appointed a committee under the leadership of my colleague Lady Dorrian to consider the matter in depth, to carry out a public consultation and to report to me with findings and proposals.

I have now received the report of Lady Dorrian's committee. I thank her for having conducted this study so skilfully and thoroughly and I thank her Committee for their good judgment and their openness to change. This morning, Lady Dorrian's Report has been made public. The conclusions of

her Committee represent the consensus view of my colleagues in the Court of Session. They are as follows:

- Filming of civil and criminal appeals and legal debates in civil first instance proceedings, such as judicial review or hearings on the Procedure Roll should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines.

- In certain circumstances and subject to certain safeguards, criminal trials may be filmed for documentary purposes, but not in cases involving children, sexual offences and vulnerable witnesses.

However, no live transmission should be allowed for any criminal first instance business, or for first instance civil proceedings involving witnesses.

- For subsequent news broadcasts, the delivery of the sentencing remarks of the judge should be permissible, with filming focused only on the judge.

- Similarly, in first instance civil business filming for documentary purposes may be allowed, but should exclude certain cases such as those involving family and immigration matters.

- Filming should be subject to robust, clear and comprehensive guidelines.

- Journalists who register with the Scottish Court Service to gain access to the electronic portal-based system, should also be required to undertake compliance with the Contempt of Court Act. Journalists so registered should be permitted to use live text-based communication. Any person who is not on the register should require the permission of the presiding judge.

I am happy to announce that I accept all of Lady Dorrian's recommendations.

Lady Dorrian's recommendations deal with matters of principle. Our task now will be to translate these principles into practice. I therefore intend to issue guidance to the media to indicate the approach that will be taken in relation to the televising of court proceedings. This may involve further consultation with the media on practical points.

Scotland prides itself on the independence of its legal system. That independence is worth defending. We have a system to be proud of. But we are inevitably subject to the influences of a much larger legal system that is our neighbour. Much of our statutory law nowadays is common throughout the United Kingdom.

If the continued independence of the Scottish legal system is a cause worth fighting for, our courts must meet the needs of the litigant. Unless the courts can provide a justice system that is expeditious, economical and excellent, Scots law faces atrophy and our independent legal profession faces an uncertain future.

A legal system develops through its case law. If Scots law is to be a vigorous system it has to provide a forum that attracts important litigations on important points of law.

But in addition to serving the litigant, the legal system should serve the wider community and its needs.

Our legal system should be a driver for economic progress in Scotland. Our courts and our judges can and should contribute to the prosperity of our country. We can do that if, by the excellence of our judges, and our legal profession and the efficiency of our courts, we make Scotland a forum of litigation that not only retains litigations that at present go elsewhere but also becomes a forum of choice for litigations from abroad.

In the 1960s and 1970s the economy of Scotland was transformed by the discovery of North Sea oil. The judges and lawyers of that time were not alert to the opportunity that Scotland could be an international forum for resolving
disputes in the oil and gas industry. We paid a price for our complacency when the international oil and gas industry passed us by.

Half a century on we should look at Scotland's economic opportunities and see how the courts can best serve them. In recent years a commitment to renewable energy has brought wind power to the fore as an energy source. Other forms of renewable energy may follow. Our resources of energy may be increased by the retrieval of shale gas, if that should be allowed. It seems to me therefore that the opportunity that our natural resources present should be served by the court system.

Twenty years ago my distinguished colleague Lord Penrose single-handedly created within the Court of Session a specialist commercial court. Today it is a prestigious and efficient court that enjoys the confidence of the profession and of the commercial world. I wish to build on that.

It is therefore my intention to launch a feasibility study into the creation of an Energy and Natural Resources Court in the Court of Session to provide a specialist forum for litigations in these fields. I shall look to the advice and assistance of the Scottish Civil Justice Council in that study. In keeping with my view that the courts must serve the litigant, I propose that if such a court should be established, it should sit in other centres, Glasgow or Aberdeen for example, if the need should arise.

We have the courts. We have the manpower. We have the skills of our judges and of our lawyers. My ambition is that we should create a court of international renown that will make its own contribution to Scotland's prosperity.

For the last 40 years, to my own knowledge, the Court of Session and the Appeal Court have suffered from the chronic problem of backlogs and lengthy waiting times for diets. Part of the problem was that the court did not actively manage cases or curtail the length of oral advocacy. The theory was that the judges knew nothing about the case until counsel read the pleadings and other documents and explained what the issues were. There followed a detailed reading of the statutory materials and the case law. Only then did counsel make their submissions.

In less than a year and a half we solved the backlog problem. That has been achieved through careful judicial case management, judicial preparation in advance of the hearing and by the requirement of written submissions: - in short, by judicial efficiency. I am grateful to my judicial and administrative colleagues for what has been achieved.

We have an opportunity now to improve upon these efficiencies and to avoid a relapse into the bad old ways. More importantly, we have a responsibility to litigants, to the public, and to the profession to ensure that our judiciary

has control of the business of our courts. That responsibility is great. It will be achieved only through a concerted effort by all judicial office holders. In the public's eyes, we are one, whether we are summary sheriffs, sheriffs or senators of the College of Justice. We take the same oath. We serve the same society. And we, like the lawyers and the public, are now on the road to the new digital world. It is the pathway to a modern justice system of which we can be proud.

Tuesday, December 16, 2014

Latest annual report of Scottish Legal Complaints Commission shows rise in compensation awards, mediation between clients & solicitors

THE latest annual report of the Scottish Legal Complaints Commission (SLCC) shows a rise in compensation & fee reductions awarded to clients in the year 2013-2014. Figures of £365,000 announced by the SLCC’s Chief Executive – Matthew Vickers, reveals complaints are costing the legal profession around £1000 a day.

SLCC 2014 Annual Report

The Scottish Legal Complaints Commission laid its Annual Report and Annual Accounts before the Scottish Parliament on 15 December 2014.

Over £1000 a day was agreed or awarded to complainers dissatisfied with the service provided by the legal profession in Scotland last year. The Scottish Legal Complaints Commission (SLCC), agreed or awarded more than £365,000 in compensation or fee reductions in its 2013/14 operating year.

Launching the Annual Report, the SLCC’s CEO, Matthew Vickers, commented “The vast majority of the legal profession in Scotland provide great service to the public, but where things do go wrong the SLCC takes firm and decisive action to put things right.” Conveyancing, family law and executries, wills and trusts are the three biggest areas of complaint. Vickers points out that cases touching on home and family life can have a huge impact on people’s lives (yes yes, where there’s a will there’s a crook – Ed)

“We’re ready to use the full extent of our powers to enforce our decisions and make sure awards are paid out where they are due. 65% of the complaints about service which we accept are resolved or upheld” says Vickers. But the Annual Report also highlights the growing importance of informal techniques such as the SLCC’s free and confidential mediation service in finding solutions to complaints. Consequently, the SLCC’s process has become quicker and more efficient and complaint handling times have halved since 2012."

"The legal services sector is worth over £1 billion to the Scottish economy and the report notes recent research which indicates that law firms can increase their profitability by around 3% through better complaint handling. The report also sets out the work of the SLCC on training and guidance for the profession. Vickers added “we’ve published guidance for the public on using legal services and on conveyancing in particular as part of our efforts to prevent complaints from happening in the first place.”

Tuesday, December 02, 2014

Solicitor Michael Wright found guilty of attempt to blackmail his childhood abuser

SOLICITOR Michael Wright was found guilty of extortion at the last jury trial held at Haddington Sheriff Court. The court heard in evidence lawyer Wright had sent threatening letters to his childhood abuser demanding £25K for silence otherwise he would tell his employers. In an update to the story (January 20 2015) it has been reported Mr Wright was jailed.

Daily record: Shamed solicitor found guilty of trying to blackmail his childhood sex abuser

LAWYER Michael Wright sent an anonymous letter threatening to tell the convicted abuser's employers about his sordid past unless he was paid £25,000.

A SOLICITOR has been convicted of trying to blackmail his childhood sex abuser.

Michael Wright, 39, sent an anonymous letter threatening to tell the man’s employers about his conviction for abusing three boys in the 1980s.

And he demanded £25,000 as the price of his silence.

But instead of paying up, the elderly man, who preyed on boys who came to him for music lessons, went to the police.

During a three-day trial at Haddington Sheriff Court, Wright claimed he believed he had a legitimate claim for compensation and planned to give the money to charity.

But the father of two was found guilty of attempted extortion.

Sheriff Peter Braid deferred sentence to January and released Wright on bail.

The abuser, who cannot be named for legal reasons, said his mind was a blank about his sex offences.

He added: “I accept he (Wright) was a victim of what I was doing. But I felt it had to be done (informing the police) as whatever happens you cannot be blackmailed.”

Wright was working as a legal adviser at Livingston JP Court at the time he wrote the letter, which was franked with a court stamp.

The letter contained details of his bank account for the money to be deposited.

Wright, who broke down in the dock several times as he relived the abuse, said the sexual assaults against him went on for six to 18 months.

He added neither he nor his family had ever received an apology.

Wright said: “I genuinely believe I had a legitimate claim against the man. I never intended to threaten him and I knew I wasn’t going to (personally) benefit financially.

“I wanted to see some contrition.

“The letter was pure and raw emotion.”

He insisted that the lack of signature on the letter was an oversight when he wrote it in a state of anxiety.

Lorna Harrison, prosecuting, told the court the demand was “a standard threatening letter of blackmail”.

Saturday, November 29, 2014

Soul & Conscience letter was false said Doctor as Lord Docherty orders businessman to pay £6.5m to former employers

A BUSINESSMAN has been ordered to hand over £6.5 million to his former employers after falsely claiming via a Doctor’s Soul & Conscience letter that he was suffering from depression to avoid appearing in court.

Paul McKenzie sent the document, known in Scots Law as a soul and conscious certificate, to a judge at the Court of Session in Edinburgh after being being sued for breaking the terms of a severance package.

Mr McKenzie had sold his debt collection agency Mackenzie Hall Holdings Ltd for £33.5 million to a US-based company January 2012 but eventually left to work for a rival in breach of agreement. The company brought the action against Mr McKenzie, a member of the Blue Knights consortium that failed to become the preferred bidder for Rangers after it went into administration in 2012.

Lord Doherty, in a ruling on the case on Wednesday, said the entrepreneur sent the sick note to avoid appearing before him. However, when the court clerk with medical staff at NHS Lanarkshire in East Kilbride - they denied either treating the businessman or signing the communication.

Mr McKenzie, of Strathaven, South Lanarkshire, then obtained a sick note from his GP – suggesting he had depression.

But after being contacted, the GP - Dr Craig Smith told Lord Doherty he withdrew the note. Dr Smith said his patient told him "untruths" about his actual condition.

The doctor said that he would not have agreed to it had he known the situation.

On hearing this, Lord Doherty called the document invalid. He said Mr McKenzie has failed to provide any proof that he was too ill to attend court.

Lord Doherty wrote: "It does not emanate from a clinician at the Psychological Therapies team. No satisfactory explanation has been provided by the defender in relation to that important and remarkable matter.

"In particular, no explanation has been proffered to the effect that he consulted a qualified and clearly identified medical practitioner elsewhere and that indeed a doctor is the signatory of the document."

Mr McKenzie sold Kilmarnock-based Mackenzie Hall Holdings Ltd in 2012 to Virginia-based Portfiolio Recovery Assets for $51 million (£33.5m). He stayed on with the business but the new owners terminated Mr McKenzie's employment after he had said he would sign an agreement that he would not do anything to negatively affect the company if he left. Mr McKenzie then began working for a rival.

In December 2012, Mackenzie Hall obtained an interim interdict from a court which was designed to stop him from working for the new company but Mr McKenzie ignored the order. He tried to get the court action against him postponed for a year, but Lord Doherty refused to grant the request.

Mr McKenzie then faced a court action at the Edinburgh court. He had been due to appear at a hearing last week.

Mr McKenzie claimed he lost most of the millions he made from selling shares in his old business through spread betting on the financial markets and gambling. He also said that despite owning two properties in Cape Verde, they could not be sold.

In his ruling, Lord Doherty added: "While I recognise the sum sued for is a very large one and that the proper measures of damages is in issue, the defender has only himself to blame for not appearing at the proof."

Full opinion :

http://www.scotcourts.gov.uk/search-judgments/judgment?id=a5cdb7a6-8980-69d2-b500-ff0000d74aa7

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 169 CA73/13

OPINION OF LORD DOHERTY In the cause (FIRST) A LIMITED (SECOND) B LIMITED (THIRD) C LIMITED (FOURTH) D LIMITED (FIFTH) E LIMITED Pursuers;

against F Defender:Pursuers:  Sandison QC, Watt;  Shepherd & WedderburnDefender:  Party Litigant

27 November 2014

Introduction
[1]        The defender was employed by the fifth pursuer between 1 September 2003 and 8 October 2012.  He founded the business.  He was its Chief Executive Officer and he was a substantial shareholder.  He was a director of that company until 21 September 2012.  The first and second pursuers are wholly owned subsidiaries of the fifth pursuer.  The defender was a director of the first pursuer between 12 September 2003 and 21 September 2012.  He was a director of the second pursuer between 30 November 2006 and 21 November 2012.  The companies’ business was the provision of debt collection services.  On or around 16 January 2012, in terms of a Share Purchase Agreement dated 16 January 2012, the defender sold his shares in the fifth pursuer to the fourth pursuer for in excess of £10 million.  On the same date the defender entered into a Service Agreement with the fifth pursuer.  On 22 July 2012, in accordance with the Service Agreement, the fifth pursuer gave the defender twelve months notice of the termination of his employment.  It exercised its rights under clause 17.5 of the Service Agreement to place him on garden leave; to direct the defender not to contact specified persons, including customers; and to require him to resign as a director of the fifth pursuer.  He refused to resign as a director.  On 8 October 2012 the fifth pursuer served notice on him terminating his employment with immediate effect.

[2]        The Service Agreement contained covenants in terms of which the defender agreed not to be employed, engaged, concerned or interested in any other business or undertaking (cl.14.1), or to compete with the pursuers (cl.14.2) during his employment with the fifth pursuer;  and he obliged himself not to divulge or use the pursuers’ trade secrets or confidential information for any purposes other than those of the pursuers (cl.15).  In terms of clause 17.5 of that Agreement the fifth pursuer was entitled during any period of notice of termination to exclude the defender from its premises and to direct that he refrain from contacting customers, suppliers, agents, professional advisers or employees of the pursuers .  In terms of the Share Purchase Agreement the defender bound himself for a period of three years from 16 January 2012 to abide by similar further restrictive covenants (cl.7).

[3]        The defender breached the covenants in both Agreements.  The breach included acting to the detriment of the pursuers and for the benefit of a company M Ltd, whose whole share capital was registered in the name of a woman G with whom the defender had a personal relationship and a child.  On 31 July 2012 the fourth and fifth pursuers presented a petition for interdict and obtained interim interdict against him continuing to breach the covenants.  On 26 September 2012 part of the interlocutor of 31 July 2012 was recalled and was replaced by a further interlocutor.  By interlocutor of 6 December 2012  interdict was pronounced in materially the same terms as the interim interdict.  Notwithstanding the interim interdict, and then the interdict, the defender continued the prohibited conduct.  In April 2013 the fourth and fifth pursuers served upon the defender a petition and complaint for breach of interdict.

[4]        In the present action the pursuers seek damages from the defender for breach of the obligations incumbent upon him in terms of the Service Agreement and the Share Purchase Agreement.  The sum first concluded for (by the fourth pursuer) is £6,507,000 with interest from the date of citation.

[5]        By interlocutors of 25 April 2014 a proof before answer was allowed in the damages action and in the petition and complaint proceedings.  The defender was represented by solicitors and counsel until 5 August 2014.  On that date his solicitors withdrew from acting.  Since then the defender has represented himself.

[6]        On 2 September 2014 I refused a motion by the defender to discharge the diet of proof.  The basis of the motion had been that he wanted to have a year to prepare for proof.  At that time the defender also indicated that he wished to admit the breach of interdict, and the breach of covenants complained of in the damages action.  That matter was continued to give the defender an opportunity to consider entering into joint minutes of admissions.  I advised him to consider obtaining advice.

[7]        On 18 September 2014 both cases came before me once more and the defender again appeared on his own behalf.  In terms of a joint minute of admissions (No.  58 of process) the defender admitted the pursuers’ averments in the damages action anent breach of the covenants under the Service Agreement and the Share Purchase Agreement.  In terms of a joint minute of admissions (No. 31 of Process) he admitted the breach of interdict and interim interdict averred in the petition and complaint proceedings.  I pronounced an interlocutor finding the defender to be in breach of the interim interdict and the interdict.  I continued the question of disposal of the petition and complaint until after the conclusion of the damages action.

[8]        A pre-proof by order took place on 23 October 2014 at which arrangements and preparations for the proof were discussed.  On 31 October 2014 I heard two opposed motions which had been enrolled by the defender, the first being for recall of an arrestment on the dependence, and the second being to discharge the proof to allow the defender time to make a legal aid application.  The defender submitted that his financial resources had “run out” three to four weeks earlier.  It was only then that he had realised he might be eligible for legal aid.  He had now applied for income support.  There was a “95% chance” of his insolvency.  £38,000 in his bank account had been arrested.  If the arrestment was recalled he proposed to use the money released to fund the litigation.  He had not yet instructed a solicitor or submitted a legal aid application.

[9]        The defender claimed that most of the purchase price of £10 million for his shares had been lost through spread betting on the financial markets and through gambling.  £440,000 had been used for the purchase of his house.  £500,000 had been paid to his former wife as a divorce settlement.  £3,000 a month had been paid for maintenance of his children.  Brokers’ fees in relation to the share sale had accounted for £400,000 and £100,000 had gone towards payments to company staff.  Repayment of debts and taxes accounted for another £100,000.  He had two properties in Cape Verde which were worth £50,000, but he maintained it was not possible sell them.  He had disponed a house to G.  He maintained that he had concluded missives to do that before the inhibition.  Mr Sandison observed that if that were so it was very curious that his counsel had not raised that matter on 8 January 2013 when a previous motion for recall of the inhibition and the arrestment on the dependence had been heard.

[10]      I refused the motion for recall of the arrestment.  Standing the admission of liability, the defender’s own estimate of the risk of insolvency, and the lack of full and appropriate vouching of his resources, it appeared to me to be reasonable in all the circumstances that the arrestment should continue.

[11]      I also refused the motion for a discharge of the proof.  The motion came at a very late stage.  The material placed before me by the defender was unsatisfactory.  The possibility of discharging the diet had not been raised at the hearings on 18 September or 23 October: nor had there been any mention of making a legal aid application.  As at 31 October no solicitor had even been instructed to consider or prepare a legal aid application.  I indicated that the refusal was in hoc statu; and that if a stage was reached where a solicitor was satisfied that the defender was eligible for legal aid, and that there were grounds for submitting a legal aid application, the matter could be reconsidered.

Events of 17 and 18 November
[12]      The diet of proof had been set down for 18-21 November 2014 and 11 and 12 December 2014.  At lunchtime on Monday 17 November 2014 an envelope was delivered by hand to the reception at Parliament House with a request that it be passed to my clerk.  The contents were a single sheet (6/67 of process).  There was no covering note or letter.  The document is a single sheet which is partly printed and partly written in manuscript.  The printed parts are represented below in regular font and the manuscript parts are in italic font:

“Psychological Therapies Team  NHS Lanarkshire 4th Floor PRIVATE    Atholl House Churchill Avenue East Kilbride G74 1LU

CHI [A 10 digit number] Date:  14/11/14

[The defender’s name]  Our Ref:  

[The defender’s address and postcode] Your ref:   PD/RM D.O.B   [Date]

TO WHOM IT MAY CONCERN

IN SOUL AND CONSCIENCE

I can confirm the above patient is suffering from severe anxiety and depression, and is not fit enough to attend court at this time.  I would suggest a review after a period of 3-6 months.

Signature [indecipherable]

[NHS pro forma printed information]

GP Notified\Referral”

[13]      The document’s appearance is odd.  The “printed” parts of the document look as if they have been photocopied or scanned.  This feature, and the absence of a doctor’s name on the document, were brought to my attention by my clerk.  On my instructions she emailed the defender at 15.16.  She indicated that the hand delivered letter had been received, and she asked him for the name of the practitioner he had attended and where that consultation had taken place.  The defender did not reply until 20.11.  His email stated:

“…  I got a referral to Dr McCabe on the 14th Nov.  …  Should the courts wish a report from the Psychological Therapies Team then please send me the appropriate mandate which I will sign for authorisation …”

[14]      On the morning of 18 November my clerk contacted the Psychological Therapies Team at Atholl House to seek confirmation that the document emanated from them.  She was advised that it did not, and that the defender was not a patient of the Team.  My clerk reverted to the defender advising him of this information and repeating the request for the full name of the doctor who signed the letter and the place where the defender had attended that doctor.  The defender replied that his appointment “was a Private Consultation on 14th Nov 2014” but he provided no further details.

[15]      Given the questions which arose as to the document I did not convene the court until the enquiries already mentioned had been made.  When the Court convened Mr Sandison moved for decree by default in terms of rule of court 20.1 in respect of the defender’s failure to appear at the proof diet.  Given the history the defender’s conduct and his recent attempts to discharge the proof, and the considerable doubt as to the purported soul and conscience certificate’s authenticity, the court ought to be very sceptical of his claim - made on the eve of the proof - that he was unfit to attend.  The pursuers had incurred substantial outlays.  The attendance of lay and expert witnesses (some from the United States) had been arranged at considerable expense.

[16]      I wished further clarification as to the provenance and authenticity of the soul and conscience letter.  I continued the pursuers’ motion until 21 November to enable further inquiries to be made.

Developments after the hearing on 18 November
[17]      Between 18 and 21 November the defender was requested again on a number of occasions to provide the full name of the doctor who signed the letter and the place where he consulted that doctor.  He did not provide that information.

[18]      At 18.23 on Wednesday 19 November the defender emailed my clerk attaching a letter from Dr Craig Smith (6/73 of process):

“…19th November 2014

TO WHOM IT MAY CONCERN

Dear Sir/Madam

RE: [Defender’s name, address and date of birth]

As General Practitioner to the above I can confirm that he has been suffering from anxiety and depression and has been reviewed by my colleague and has been commenced on antidepressants.  Due to this ongoing low mood and anxiety I do not feel that it would be suitable for him to appear in court at the present moment and I would be grateful if he could be excused this on medical grounds.

If you require further information please feel free to contact myself.

On Soul and Conscience

Yours sincerely

[signature]

Dr Craig J Smith”

[19]      On the morning of 20 November my clerk emailed the defender:

“…  The Court still awaits the full name of the doctor who signed the letter dated 14 November 2014 and the location of where you attended to obtain the letter.

If you now intend to rely upon the letter from [the GPs’ practice], please can you send the original hard copy marked for my attention …

As previously advised the case will call again tomorrow at 10 am …”

The defender indicated by email that he wished to rely upon both 6/67 and 6/73.  A copy of Dr Smith’s letter was forwarded by my clerk to the pursuers’ solicitors.

[20]      On 19 November 2014 the pursuers obtained affidavits from Patrick Dolan (the Team Co-ordinator of the Psychological Therapies Team at Atholl House) and from Kenneth Ewing-Day (the Deputy Team Co-ordinator).  Both affirmed “clearly and categorically” that the letter 6/67 of process was not produced by the Psychological Therapies Team.  Both gave full explanations - which are set out in their affidavits (6/69 and 6/70 of process) - in support of their conclusion.

[21]      On 20 November the pursuers’ solicitors contacted Dr Smith by telephone.  Thereafter they emailed him setting out an account of the background to the litigation and attaching copies of the affidavits from Mr Dolan and Mr Ewing-Day.  At 15.14 that day Dr Smith faxed the following letter to my clerk: …

20th November 2014

TO WHOM IT MAY CONCERN

Dear Sir/Madam

RE: [Defender’s name, address and date of birth]

As General Practitioner to the above I was asked on 19th November to provide him with a soul and conscience letter for him so that he could be excused from a court appearance due to his recent diagnosis of anxiety and low mood having seen my colleague Dr Godley on 11th November who has commenced him on antidepressants because of this.  He told me at the time that the court was of [sic] a minor civil matter and one which he was not greatly involved in.  He has also told me that he had consulted a private psychologist about his ongoing symptoms who has also provided a soul and conscience letter but this had been rejected and [sic] as it had not been done by a general practitioner.  He showed me a copy of this letter on his phone.

I have subsequently been made aware that the original soul and conscience letter was a forgery and obtained dishonestly and that his appearance at the Court of Session is much more serious than the “minor matter” which he initially described to me.

I now feel that the whole consultation with me has been dishonest and if I had known the true facts I would not have agreed to provide him with a soul and conscience letter.  As the consultation was based on deception and untruths I cannot guarantee how much of his symptomology and complaints concerning his low mood and anxiety are truthful and feel there has been a breakdown in the doctor patient relationship a relationship which we have to build on trust with each other and one which generally practitioners value highly.

To that extent I am withdrawing my original soul and conscience letter because of the way I was asked to provide this and due to the fact that I am now unable to state confidently whether or note [sic] [the defender’s] symptoms are genuine  because of the dishonesty he was involved in during the consultation.  I can no longer provide a soul and conscience letter excusing him from court appearance on medical grounds and I feel he is well enough to attend court.

If you require further information please feel free to contact myself.

Yours sincerely,

[signature]

Dr Craig J Smith

On soul and conscience.”

My clerk immediately contacted the defender and the pursuers’ solicitors and forwarded Dr Smith’s letter to them.

The continued motion on 21 November
[22]      On 21 November Mr Sandison renewed his motion for decree by default in terms of the first and fifth conclusions of the summons.  The defender had failed to attend the proof on 18th November.  The proof was a peremptory diet.  It was clear, he submitted, that the soul and conscience letter of 14 November was a forgery.  That was amply vouched by the affidavits of Mr Dolan and Mr Ewing-Day.  Even if that had not been clear, there would have been every reason to conclude (given the history of the defender’s wilful breach of the contractual covenants and of the interim and permanent interdicts, and his repeated unsuccessful attempts to discharge the proof) that the obtaining of the certificate had just been a further example of the defender’s manipulative and dishonest conduct.  In the result, the facts spoke for themselves.

Decision and reasons
[23]      The defender did not appear for the proof diet.  No indication of any health problems had been given at any previous calling of the case.  It seems that he first attended at the GP practice complaining of symptoms of anxiety and depression on Tuesday 11 November - a week before the proof.  He was unknown to the practice before that date.  He was prescribed anti-depressant medication.  No soul and conscience certificate appears to have been either sought or obtained at that stage.  Nothing was done to alert the court or the pursuers to any suggestion that the defender would be unfit to attend the proof until the letter of 14 November was hand delivered to Parliament House on the afternoon of 17 November.  Standing (i) the history of the defender’s conduct in relation to wilful breach of his contractual obligations and wilful breach of the interim and permanent interdicts (ii) his previous unsuccessful attempts to discharge the proof diet (iii) the events leading up to and following 18 November, I think it likely that the defender deliberately left raising the issue of his fitness to attend court until the very last minute because he knew that by doing so it would leave the pursuers and the court with little or no time to investigate the issue properly before the proof was due to commence.

[24]      The soul and conscience certificate 6/67 of process cried out for further scrutiny.  It appears to be written in manuscript on scanned or photocopied paper headed Psychological Therapies Team, NHS Lanarkshire, the address given for the Team being Atholl House in East Kilbride.  The signature of the author of the document is illegible.

[25]      The defender was asked repeatedly to clarify the full name of the signatory and where the consultation with him took place.  He was evasive and did not answer those questions.

[26]      When the defender was asked to comment on the fact that the Psychological Therapies Team at Atholl House indicated that he was not a patient and that the letter did not emanate from any clinician there, he provided no explanation.  Instead his response was to make an appointment with Dr Smith.

[27]      It is clear from Dr Smith’s letter of 20 November that the account which the defender gave of his circumstances when he attended at the surgery on 19 November was inaccurate and misleading; and that it included reliance by him on the letter of 14 November.

[28]      Whatever else it is, it is clear that 6/67 of process is not what it bears to be.  It does not emanate from a clinician at the Psychological Therapies Team.  No satisfactory explanation has been provided by the defender in relation to that important and remarkable matter.  In particular, no explanation has been proffered to the effect that he consulted a qualified, and clearly identified, medical practitioner elsewhere and that that doctor is the signatory of the document.

[29]      Dr Smith’s letter of 19 November was obtained at a consultation on what ought to have been the second day of the proof.  He has withdrawn it in the circumstances explained in his letter of 20 November.

[30]      The upshot is that there was, and is, no valid soul and conscience certificate certifying that the defender was unfit to attend court on 18 November.  I am not satisfied that he was unfit to attend.

[31]      The defender failed to attend a peremptory diet.  The proof was restricted to the issue of damages.  While I recognise that the sum sued for is a very large one, and that the proper measure of damages is in issue, the defender has only himself to blame for not appearing at the proof.  I agree with Mr Sandison that in the circumstances of this case the consequences of that failure should be that decree by default is pronounced.

[32]      Even if 6/67 had been signed by a duly qualified medical practitioner I would not have accepted it as a basis for excusing the defender’s non-appearance without making further inquiry, particularly in view of the factors I have outlined at paragraph 23 supra.  As the Second Division observed in The Scottish Ministers v Smith 2010 SLT 1100, at paragraph 7:

“[7]      A medical certificate to the effect that a person is unfit to attend court is not conclusive evidence of that fact.  In every case it is for the court to decide, from the certificate and any other relevant circumstances, whether it is persuaded that the person concerned is unfit to attend and, if so, what the consequences of that should be.”

Disposal
[33]      I shall grant decree by default by pronouncing decree for payment by the defender to the fourth pursuer of the sum of £6,507,000 with interest thereon at the rate of 8 per cent per year from the date of citation until payment, all in terms of the first conclusion; and for payment by the defender to the pursuers of the expenses of the action. 

Sunday, November 23, 2014

Edinburgh solicitor Clive Franks commits suicide as Law Society of Scotland investigates dodgy accounting & missing client funds

Clive Franks, Franks Macadam Brown solicitors, Edinburgh. A SOLICITOR who sat on a Law Society of Scotland Complaints Committee and acted as a ‘Reporter’ for the society in complaints investigations against corrupt lawyers, killed himself the same week the Law Society launched an investigation into missing client funds and faulty accounting.

CLIVE FRANKS (60), a partner in Edinburgh law firm, Franks Macdam Brown.was found dead in the garage of his home in Dalgety Bay, Fife, at around 4.30pm on Monday, November 10.

Franks had been under Investigation by the Law Society, after concerns were raised over his firm's accounts. It is reported he was facing suspension of his practicing certificate.

After reports of irregularities, reports from inside the Law Society suggest client money was either missing, or the accounting records were so poor or had been faked up to cover possible fraud, it was hard to tell whether cash had disappeared.

Mr Franks last year defended a high profile case involving building tycoon Alfred Stewart, who cut his four children out of his £6.7mllllon will and left the bulk of the money to charity when he died In 2008. The will was changed 28 days before Stewart died, and named Franks as his personal solicitor and executor.

During the case, evidence was heard revealing millionaire Alfred Stewart – who was given an MBE by the Queen, was alleged to have been involved in abuse of his family members.

The Court of Session opinion issued by Lord Brailsford and available on the Scottish Courts website HERE reveals: “Mr Stewart described his father as being strict and controlling and possessing a short temper. He appears to have been particularly unpleasant towards his wife, Mr Stewart's mother. According to Mr Stewart, he displayed no patience towards the lady. On a number of occasions this "stepped over into physical abuse".

“According to Mr Stewart, when his mother returned home later that evening, his father "went ballistic". Mr Stewart and his siblings were terrified and ran to their bedrooms. He could hear what he believed was his father assaulting his mother. He said that his grandfather tried to intervene and prevent the physical abuse being perpetrated by the testator.”

Franks was also a trustee of the Alfred Stewart Trust, the charity established in the will and won against the challenge brought by Stewart’s family.

A spokesman for the society said: "We were very saddened to hear about the death of Mr Franks and offer our sympathies to his friends and family during what must be a distressing time."

"We can confirm that Mr Franks was subject to an Investigation by the Law Society. A Judicial factor was appointed by the courts on Friday, November 14. The application to appoint a judicial factor was made to the court to protect clients' interests after the Law Society raised concerns about the firm's accounting records."

The Law Society have not issued a press release on the case. Franks Macadam Brown could not be contacted for comment.

In a submission Clive Franks made to the Scottish Parliament some years ago to lobby against legal reforms of the complaints system, he revealed he acted as a “reporter” for the Law Society of Scotland. A “reporter” is a solicitor who investigates complaints made against other solicitors.

Mr Franks wrote: I qualified as a solicitor in the service of the Bank of Scotland in 1980, and remained an employed solicitor within the Bank of Scotland, prior to setting up my own practice in 1985. I was appointed a Reporter to the Client Relations Office of the Law Society of Scotland in 1998, becoming a Committee Member in 1999. As a Reporter I have completed over 100 Reports for the Law Society. In 2004 I was appointed Convenor of Client Relations Committee A, the first non-council member of the Law Society of Scotland to be appointed to a convenorship.

Until quite recently, neither Reporters nor Committee Members were paid for their work. Nowadays Reporters receive an honorarium of £100 per Report satisfactorily completed, and Committee Members receive a payment of £50 per meeting attended. I have yet to do a Report that took less than 2 hours, and some take a considerable amount of time, usually outwith office hours, i.e. in my spare time.Committee Meetings usually take 2 hours or more, with as much time again, if not more, being spent in preparation work - reading the Committee papers and familiarising oneself with their contents, so that one is thoroughly briefed by the time of attendance at Committee.I think it will be seen that, although a small payment is now received, Reporters and Committee Members are hardly well paid, and it might be said that their much dedicated work is a contribution of good will to the Law Society.

Coincidentally, Clive Franks suicide came the same week the Law Society of Scotland and Scottish Legal Complaints Commission (SLCC) launched a 'How to' complaint against a lawyer video in an attempt to curb rising numbers of complaints against corrupt solicitors and poor legal services in Scotland.

The latest suicide of a lawyer comes a few years after a case where solicitor James Muir, based in Bothwell, Lanarkshire committed suicide in 2005 after it was revealed he was being investigated by the Scottish Legal Aid Board for stealing £1.8 million in Legal Aid.