Andrew McNamara was ordered to pay £90K to Tods Murray after bitter 16 year court battle. A millionaire pensioner goes into a final battle this week in a war that has lasted 16 years to try to overturn a ruling that he must pay his former lawyers almost £90,000.
Andy McNamara will try to persuade three judges at the Court of Session that Lord Woolman was wrong to find against him and for Tods Murray in February.
By appealing, and risking landing the substantial legal costs of his adversaries, the final bill for failure could be well into six figures.
McNamara earned his reputation as a difficult client by going to war with many of the lawyers who represented his contracting firm, Arakin Ltd, and became known as ‘the client from hell’ in the 1990s.
When Tods Murray sued Arakin in 1996 for payment of fees McNamara had demanded should be taxed, he hit back and managed to get more than £100,000 knocked off their time-and-line accounts, embarrassing the firm by obtaining publicity in a national newspaper.
Amongst other cuts he made, the Auditor of the Court of Session reduced by £26,500 a £34,000 photocopying charge, which had been billed at more than £4 a sheet.
McNamara also refused to take Nigel Emslie QC’s advice to accept an offer of £175,000 to settle a dispute with his former accountants, McLachlan and Brown, despite Emslie _ then about to become Dean and now the high court judge Lord Emslie _ threatening to withdraw.
Emslie reluctantly continued to represent Arakin and the action finally settled for £1,040,000, almost six times the first offer.
More recently, McNamara became one of eight litigants branded ‘vexatious’ by the Scottish courts after the Lord Advocate made an application to that effect, largely because of the allegations McNamara made repeatedly about lawyers in open court.
The outstanding litigation between McNamara and Tods Murray should be a matter of simple arithmetic. Tods Murray’s fees for professional services to Arakin in the 1990s, and the sums paid to account have been examined by lawyers, accountants, law accountants and several judges.
On one hand, Arakin can show an overpayment of more than £2,000 on total fees of £321,000, after taxation by the Auditor.
On the other, Tods Murray’s lawyers show a deficit, accepted by Lord Woolman, by taking into account a sum of about £80,000 in outlays allowed by the Court, as well as interest and an uplift (increase) in fees allowed by the auditor, resulting in a figure of almost £409,600.
Lord Woolman therefore ordered Arakin to pay its former lawyers £86,376.
McNamara’s decision to appeal is the result of his conviction that when Tods Murray sued for £204,000 in 1996, and froze £275,000 of Arakin’s money to ensure he could defend it, the firm had no right to do so.
At the appeal, McNamara, who represents Arakin in court, will point to rules that govern a solicitor’s right to sue a client that say no action should precede taxation of disputed accounts.
He will also argue that his firm had paid Tods Murray considerably more than it had been invoiced for when the writ was lodged.
He will present a document provided by Tods Murray dating back to 1997 in which the firm admits it has always known it was not due £204,000, and a notice to admit, in which Tods Murray acknowledges Arakin had paid £70,817.87 more than sums invoiced for.
He will argue that had all these factors been taken into account, the action would have no basis.
Now aged 70 and trying to live quietly in retirement on Arran with his wife, Janette, McNamara freely admits that if he’d known how long the case would run, and the effect it would have on his health and family life, he would have paid up long ago.
But, after Lord Woolman’s opinion, which established that the lack of invoices did not negate Arakin’s obligation to pay fees, he felt unable to walk away without trying to land a decisive blow.
Having talked recently of calling time on the dispute whatever the outcome, he now admits: ‘I’ve been looking at possible routes to the Supreme Court and even to Europe.
‘I’ve got total faith in our case, but I’ve not been given much reason to date to have faith in our justice system.’
His wife has written to the new Lord President, Lord Gill, to say that the current rules covering party litigants like her husband _ who is partially deaf but must address the court without help from his daughter Carol, who assists him _ appear to breach his human rights.
As Lord Justice Clark, Lord Gill chaired a review commission that recommended McKenzie friends be granted rights of audience in the courts. The Scottish parliament passed enabling legislation, but it has not yet been implemented.
Carol McNamara has written to all MSPs to remind them of this point.
At a preliminary hearing last month, three judges, led by Lord Bonomy, agreed that Tods Murray should produce, prior to proof this week, invoices covering the additional outlays allowed by the court, which the law firm says are already lodged in the lengthy process. Mr McNamara maintains those documents have never been entered in the process.
Tods Murray’s chairman, Graham Burnside, is relaxed about the outcome. He said: "At every stage of the process we have trusted to the judgement of the courts and on every occasion to date they have found in our favour."
An earlier report on the case can be read HERE and more on the history of Arakin Ltd’s dispute with Tods Murray can be found at a website on the case, here : Tods Murray v Arakin
18 comments:
"When Tods Murray sued Arakin in 1996 for payment of fees McNamara had demanded should be taxed, he hit back and managed to get more than £100,000 knocked off their time-and-line accounts, embarrassing the firm by obtaining publicity in a national newspaper.
Amongst other cuts he made, the Auditor of the Court of Session reduced by £26,500 a £34,000 photocopying charge, which had been billed at more than £4 a sheet."
This syas it all really, not only is Mr McNamara up against those allegedly representing his best interests he also has the inequalities every party litigant is forced to face.
I hope he has his application to the Supreme Court in London andor Europe ready and waiting to be posted.
Call me obvious but I'd rather hear of a pensioner who cant afford his heating and something being done about it than a millionaire pensioner clogging up the courts for 16 years over a photocopying bill
Anonymous said...
"When Tods Murray sued Arakin in 1996 for payment of fees McNamara had demanded should be taxed, he hit back and managed to get more than £100,000 knocked off their time-and-line accounts, embarrassing the firm by obtaining publicity in a national newspaper.
Amongst other cuts he made, the Auditor of the Court of Session reduced by £26,500 a £34,000 photocopying charge, which had been billed at more than £4 a sheet."
This says it all really, not only is Mr McNamara up against those allegedly representing his best interests he also has the inequalities every party litigant is forced to face.
I hope he has his application to the Supreme Court in London andor Europe ready and waiting to be posted.
July 04, 2012
What this shows is that the Scottish law firm were found in Court no less of openly and willfully committing fraud by seeking to extort money from their client under false pretences?
I was brought up to believe that Fraud was a crime?
Obviously not if you are a Scottish Lawyer who get away with acting 'above the law'?
Obviously the Chairman of the Scottish Lawyers was relaxed about the Court case because he knows that there is no prospect of him losing the case because he is a Scottish Lawyer?
[quote]Call me obvious but I'd rather hear of a pensioner who cant afford his heating and something being done about it than a millionaire pensioner clogging up the courts for 16 years over a photocopying bill[/quote]
No I wouldn’t call you obvious I’d call you either naive or obtuse if you think this was a fight about a photocopying bill. (Perhaps I'd even call you a lawyer - no I couldn't go [i]that[/i] far). What has pensioners and heating bills got to do with the legal establishment and its ills in Scotland?
My dad is the defender in the Tods Murray v Arakin dispute NOT the pursuer. It is Tods Murray who have clogged up the courts by raising an unnecessary, premature and indeed fraudulent (*gasp* I used the ‘f’ word) action against us.
When Tods Murray stopped acting for my dad in 1994 he raised complaints with the Law Society about the service and conduct of the two solicitors (Michael Simpson and Robert Dobie) who had acted for Arakin in two separate disputes. The first dispute being against Glasgow District Council (as it then was) in which Simpson represented Arakin, and the second with his former accountants (McLachlan & Brown) who were themselves put out of business by Dobie’s legal shenanigans.
The Law Society appointed a Reporter to investigate our well founded complaints. (As a family we wanted nothing more to do with Tods Murray. We simply raised the complaints expecting them to be dealt with. Unfortunately Tods Murray have now been in my life since 1986 - more than half of it.)
Anyhow, I now have the Law Society’s file (received by me in 2009) and one letter in that file (dated 1996) states that the Reporter appointed to investigate our complaints sought sight of Tods Murray’s files and records relating to our disputes. The Reporter never did see their files.
Shortly after Tods Murray received that Law Society letter, in May 1996, the current action was raised against us. The Law Society then wrote to my dad claiming that, as matters were now ‘sub-judice’, they could no longer continue with their investigations, ‘but’, they emphasised, any matters not dealt with by the court could be brought back before them upon conclusion of the litigation. That was 16 years ago, and, last year, when I did attempt to have someone from the Law Society look at Tods Murray’s files they informed me that my complaint was time-barred!!!
Dobie initially sued Arakin in May 1996 for £32k which was increased to £42k within a few weeks. When my dad offered to lodge funds (£60k) on joint deposit to await the outcome of taxation (audit)
cont’d.....
of their accounts ‘out of the blue’ Tods Murray increased the sum they sued for by another £204k (that amount being the total of all of Simpson’s fees and outlays while he was our agent but which took no account of the sums invoiced and paid over the course of his agency). Tods Murray demanded, and received, a punitive £275k Bank Guarantee for the release of the arrestments they had in place. The amount sued for gave us no option but to defend the action.
My dad was not born a millionaire. He left school at 15, trained as an electrician and, in the year I was born (1966) established his first business (an electrical contractors which rapidly grew into a main contracting building company).
Tods Murray’s ‘expert’ legal advice destroyed all of that (including the 150 jobs created by my dad in the east end of Glasgow which was, at the time, one of the most deprived areas in Europe).
When they sued my dad’s company they well knew that after destroying his core business, and having being doing nothing but spending time and money dishing out his hard earned cash on exorbitant professional fees for the preceding 10 years – he could ill afford the £275k demanded of him. He is an astute businessman and by his efforts has managed to restore financial security to the skeletal company that remains over the course of the past 16 years while this litigation has been ongoing. His money was earned with honest hard work – not skulduggery and cheating. There were no silver spoons in our family heirlooms.
Back on point. Albeit my dad had been seeking taxation of both solicitors’ fees from 1994 (per his right to do so) neither solicitor ever submitted their accounts to taxation (despite their DUTY to do so). Simpson said he would but didn't - and Dobie entered into protracted correspondence with my dad ,two other solicitors writing on my dad’s behalf, and even with the Law Society, citing erroneous reasons why he would not submit his whole fees to taxation. In short he outright refused.
Even after the action was raised Robert Dobie refused to submit accounts for the whole of his fees to taxation....decree cannot be granted when a solicitor sues for payment without first having their fees taxed...nevertheless it took Dobie until 1999 to lodge accounts for ALL work in which he attempted to claim a 75% increase in fee rate. The Auditor indulged him and awarded him a mere 60% increase.
That increase brought the total of his account to something like the inflated invoices he’d originally rendered.
Cont’d....
At the initial 1997 taxation of Simpson’s account we got over £100k taxed off the erroneous account he lodged (including that piddling little photocopying bill - howzat for overcharging?)
It wasn’t until 2004 that Tods Murray finally admitted that they had sued for the sums they did ‘in error’ having taken no account of sums paid to them. We had in fact paid Robert Dobie an admitted £70,817.87 in excess of the invoices he had rendered. The fee element of £8k was outstanding on Michael Simpson’s final invoice – that amount being outstanding at Simpson’s behest because my dad had requested taxation of his fees. Simpson wrote to my dad in July 1994 saying he would not ‘press for payment’ of that fee before the outcome of taxation was known.
Even though they admitted that they were not due £244k in 2004, the amount claimed in the Record remained unaltered until 2008. That is, when Simpson won the right to apply for a fee increase from the Auditor of Court (who at that time was one Mr. Neil Chrichton). Chrichton awarded Simpson a 100% increase in fee rate (understand that this was on invoices that had been rendered and paid 20 years earlier) and only then did Tods Murray amend the sums concluded for to the £87k now being sought.
Altogether, when TM sued us we engaged six firms of solicitors, two senior and two junior counsel to protect our interests all of whom failed to do so (all the while being paid yet more exorbitant fees) It was in 2001, when our last solicitor resigned agency, and Tods Murray sought decree for want of insistence for the entire £244k sued for (in the full knowledge that they were not due those sums ) that my dad was forced into the unenviable position of becoming a party litigant to protect our family’s interests.
And yes he has been marked ‘vexatious’( a label the legal establishment uses to avert attention from the wrongs perpetrated by its members against him) mainly on the grounds that he failed to comprehend or follow court procedure – but note that opinion expressly excluded the dispute with Tods Murray. I have previously stated that the Inner House was correct – none of us comprehend how a firm of solicitors can sue without rendering invoice3s, or making demands for payment, can receive posthumous uplifts in fee rates for shoddy (negligent and fraudulent work in fact), can fail to comply with VAT legislation and admit to suing for hundreds of thousands in error – and the courts let them get away with it.
The first solicitor engaged to protect our interests was one William Macreath (of Levy & McRae) who, unknown to us, was a member of the now infamous Legal Defense Union and is currently facing five findings of inadequate services” and “seven findings of professional misconduct”. Given it took Bill Macreath almost 9 months before he even lodged skeletal defences on our behalf I’m comfortable in the knowledge that I can add to the list of accusations of IPS against the man.
Cont’d...
This action was raised (in my humble but informed opinion) to avert the Law Society investigation that was underway and to stop them perusing Dobie’s files which would have exposed the fraud (that unspeakable word again) that Dobie in particular committed against our family firm. The details are to be found at http://todsmurrayvarakin.com/history-of-the-mclachlan-and-brown-dispute/fraud/ where I have taken the time and gone to the trouble of scanning and posting the early contents of Dobie’s first file. (this is what Dobie didn't want the Reporter to see - and if you read it you will understand why). We only received their files in 2009 – after Simpson had received a 100% uplift in fee rate in 2008 which allowed them to finally amend the Record. Of course had I had access to the files from the outset our objections to their accounts before the Auditor would have been of an entirely different hue.
So before you rest back on your complacent emerald laurels take a good hard look at what has really been going on here and perhaps reflect on the complicity of a legal establishment that has allowed its own system to be abused by its own members as it has been in our case.
cont’d.....
of their accounts ‘out of the blue’ Tods Murray increased the sum they sued for by another £204k (that amount being the total of all of Simpson’s fees and outlays while he was our agent but which took no account of the sums invoiced and paid over the course of his agency). Tods Murray demanded, and received, a punitive £275k Bank Guarantee for the release of the arrestments they had in place. The amount sued for gave us no option but to defend the action.
My dad was not born a millionaire. He left school at 15, trained as an electrician and, in the year I was born (1966) established his first business (an electrical contractors which rapidly grew into a main contracting building company).
Tods Murray’s ‘expert’ legal advice destroyed all of that (including the 150 jobs created by my dad in the east end of Glasgow which was, at the time, one of the most deprived areas in Europe).
When they sued my dad’s company they well knew that after destroying his core business, and having being doing nothing but spending time and money dishing out his hard earned cash on exorbitant professional fees for the preceding 10 years – he could ill afford the £275k demanded of him. He is an astute businessman and by his efforts has managed to restore financial security to the skeletal company that remains over the course of the past 16 years while this litigation has been ongoing. His money was earned with honest hard work – not skulduggery and cheating. There were no silver spoons in our family heirlooms.
Back on point. Albeit my dad had been seeking taxation of both solicitors’ fees from 1994 (per his right to do so) neither solicitor ever submitted their accounts to taxation (despite their DUTY to do so). Simpson said he would but didn't - and Dobie entered into protracted correspondence with my dad ,two other solicitors writing on my dad’s behalf, and even with the Law Society, citing erroneous reasons why he would not submit his whole fees to taxation. In short he outright refused.
Even after the action was raised Robert Dobie refused to submit accounts for the whole of his fees to taxation....decree cannot be granted when a solicitor sues for payment without first having their fees taxed...nevertheless it took Dobie until 1999 to lodge accounts for ALL work in which he attempted to claim a 75% increase in fee rate. The Auditor indulged him and awarded him a mere 60% increase.
That increase brought the total of his account to something like the inflated invoices he’d originally rendered.
Well this is a long running expensive saga indeed. But if one of Mr McNamara's employees got an invisible injury and tried to sue him for damages he would be delighted that all lawyers, doctors and his company shared the same insurers.
I can see why he is angry at the legal profession but I can also see how the lawyers would leave an injured employee with no damages.
Perhaps this one is a sort of what comes around goes around. But on a positive note Mr McNamara I do not trust lawyers either. Lawyers hammer businesses, families inheritance, litigants, and anyone their steamroller [slow and extortionate] machine happen to come in contact with. Vexatious litigant or vexatious employee same thing. This is what happens when we trust lawyers.
My dad is the defender in the Tods Murray v Arakin dispute NOT the pursuer. It is Tods Murray who have clogged up the courts by raising an unnecessary, premature and indeed fraudulent (*gasp* I used the ‘f’ word) action against us.
=================================
Please note I understand your anger, but the pensioner who losses her house is relevant [mabe not to you] as are people who are robbed of their inheritance [possibly you]. I will tell you something about lawyers. My sister was injured at work [not relevant to you] but her GP stopped her medical certificates which was arranged by the GP and her so called lawyer, her employer would not let her back into work and she had no money for five months to live on. What linked them all financially? Royal Sun Alliance. We had no chance of stopping this because we would have needed a lawyer to challence a lawyer.
Put simply I do not want or expect your sympathy. The way I see it is that you are being tortured by the courts and you would not bother if one of your employees got zero damages if genuinley injured in your father's employment.
Employers have much in common with lawyers because the former throw injured people on the scrapheep after injuring them. Oh employers do not complain about the legal profession when they save them, but want the lawyers dealt with as you do. Pure hypocrisy. The injured employee is kicked aside and employers do not care if they starve. If your company have done this to employees you are receiving a dose of your own medicine. If you have never had employees injuries covered I apologise to you.
The system is not about justice, it is about money. If the Law Society have no compassion for homeless pensioners due to a Lawyers £100.00 legal bill, and they do not care about a human being having no money for five months due to lawyer and GP collusion what chance do you have? If your dad was the defender against one of his office staff suing for being injured at work the legal profession would be his best friend for covering everything up.
I do not think any court will ever side with anyone who is not a lawyer when lawyers or law firms are in battle with them. To me it is just like the Law Society of Scotland. The legal profession are a band of brothers.
The lawyers protect the employers insurers if an employee is injured and not the court is protecting the lawyers against Arakin.
I do not like lawyers but to be honest Arakin are the same as lawyers, they are just on the receiving end this time. "Mr McNamara up against those allegedly representing his best interests he also has the inequalities every party litigant is forced to face". Yes it is all a matter of power, the employee the weakest, Mr McNamara a lot stronger and the Lawyers are the omnipotent. When employers injure people and use lawyers and doctors who share the employers insurers to cover it up they don't care about someone if they cannot work again. But they care when they become vexatious litigants. So if Arakin have injured people and thrown them on the scrapheep I see this as poetic justice, because for me lawyers and employers in many respects are the same. They both treat human beings as superfluous as they see fit. Not nice Mr McNamara when the snake bites back.
‘Please note I understand your anger, but the pensioner who losses her house is relevant [mabe not to you] as are people who are robbed of their inheritance [possibly you]. I will tell you something about lawyers.’
Of course these matters are relevant to life in Scotland today...but we are discussing the abusive self serving legal system here not the rip off that is the power company or the banking sector.
Royal Sun Alliance is certainly a key player here. Indeed, since TM raised their fraudulent action against Arakin they have incurred not one penny in fees. RSA has funded the lot. What hope is there against pockets that deep?
Perhaps try to be just a little bit objective and recognise that the TM v Arakin case is simply an extreme manifestation of the corruption within Scotland’s legal establishment. You are on the same side.
‘I do not think any court will ever side with anyone who is not a lawyer when lawyers or law firms are in battle with them. To me it is just like the Law Society of Scotland. The legal profession are a band of brothers.’
The court may well take upon itself to ignore every law, regulation and safeguard in place to stop such abuses but cases like this are making it increasingly difficult to ignore the self serving nature of Scotland’s justice system.
Currently we Scottish plebeians entrust the governance of justice to a solicitor (Kenny MacAskill) who oversees the solicitors (the Law Society) who regulates the solicitors - a system with a blatant bias that must surely be of acute embarrassment to tptb.
‘I do not like lawyers but to be honest Arakin are the same as lawyers, they are just on the receiving end this time.’
Well well well – who got out of bed on the wrong side this morning then? You think McNamara was never an employee in his life? You think because he has been an employer he somehow deserves all he gets? Tell me please where would this country be without employers? Ah yes....we’d be living with chronic state of affairs we find ourselves with now. Inter-generational unemployment; dependency culture; a massive unacknowledged drug problem (get stoned and miss the rot); subsequential thriving black market; an inflated public sector (with all those fair and reasonable council tax bills paying for it) and a country whose citizenship have simply lost interest. We have become a ‘statist little nation’ and that is nothing to be proud of.
Your attitude is Dickensian – not the attitude of a citizen living in a country which seeks to declare itself mature and ready for independence.
"Well well well – who got out of bed on the wrong side this morning then"?
I appreciate what you say but the fact remains that Mr McNamara as an employer had Health & Safety obligations to his employees. Now if one was injured and the injury was not patent, that person would need medical reports. The Lawyers, doctors, and Arakin will certainly share the same insurers. So even if the doctors know the employee has been injured they will cover it up in their reports. Now this may never have happened at Arakin, who knows.
I am not trying to torture Mr McNamara, I am simply pointing out that he would want an employees injuries covered up [in his interests and his insurers] by the lawyers and doctors, but he is in a battle now with the lawyers over his business. If the injured employee could never work again would Mr McNamara care about that? I rest my case. The lawyers and doctors would side with him just the same as the Court is now siding with the Law Firm. The legal system is not about justice. It is about maximising the legal and insurance professions bank balances.
MacAskill would rather boil a voter in oil before he would ruin a lawyers career. As I have said before the Scottish Parliament belongs to The Law Society of Scotland. MacAskill is the most political Justice Minister ever, a lawyer by profession and they only see lawyers rights.
MSP's are a disgrace to Scotland.
Your attitude is Dickensian – not the attitude of a citizen living in a country which seeks to declare itself mature and ready for independence.
Well I do not mind your criticism at all [good on you] but after the Lockerbie Trial the international observer Hans Kochler said Scotland's justice system was similar to that of a banana republic. Hardly mature and ready for independence eh. It is actually a legal dictatorship where factions of lawyers, the Crown Office etc control policymaking at the Scottish Parliament. That is why Mr McNamara is having all this hell, he is fighting an anchronistic profession who operate in secret and carry out so called independent investigations. As you know the Arakin case is civil law not criminal, and the Law Society control everything in Scotland. The Scottish Parliament was paid for by us and lawyers, but in all matters legal it is the Law Societies Parliament.
Most MSP's bend over and let them do what they want to the people who voted for the MSP's in the first place. Like many of us Mr McNamara has learned the hard way that the Legal Profession are a faction of criminals answerable to no one. We have McKenzie friends now due to campainers such as Peter and MSP's like Margo McDondald. But they cannot be renumerated. It is a pity Mr McNamara had to deal with them in the first place. Good luck to him, he will need it.
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