Court of Session Judge Lord Drummond Young rules lawyer had his ‘human rights’ breached by Law Society over complaint row. WILLIAM MACREATH, a partner in the well known Glasgow law firm LEVY MCRAE, and also known as the boss of the LEGAL DEFENCE UNION (LDU), had his ‘Human Rights’ violated under article 6 of ECHR by the Law Society of Scotland with regard to an investigation of a client complaint, according to a written opinion from Lord Drummond Young published by the Court of Session.
Macreath (aged 60), who’s firm Levy Mcrae ‘represents’ or ‘advises’ much of Scotland’s media and also counts among its clients former Lord Advocate now Dame Elish Angiolini DBE QC, née McPhilomy and former Glasgow City Council Boss & Cocaine addict Steven Purcell, had raised a Judicial Review against the Law Society of Scotland’s findings of SEVEN COUNTS OF PROFESSIONAL MISCONDUCT and FIVE COUNTS OF INADEQUATE SERVICES relating to an investigation of complaints made some seven years ago against Mr Macreath in 2005 by another solicitor, Ms Norna Crabbe.
Court of Session Judge Lord Drummond Young found there was procedural unfairness at common law, and a breach of Mr Macreath’s right to a fair hearing under article 6 of the European Convention on Human Rights. The judge said in his opinion (reprinted in full, below) that a decision of the Law Society of Scotland on the complaint should be reduced because Mr Macreath had not had sight of material produced by the complainer following the completion of an earlier report by a different reporter; and because he was not informed that the later reporter thought it preferable, rather than prepare a supplementary report as requested, to write a completely new report.
Macreath was represented at the Court of Session by Edinburgh law firm Simpson & Marwick, one of whose partners told MSPs at the Scottish Parliament HERE that ‘asbestos is good for you’. The Law Society of Scotland was represented by Anderson Strathern LLP, and Ms Norna Crabbe represented herself as an ‘interested party’
The long running saga of the Law Society’s investigations of a complaint against Mr Macreath and his subsequent Judicial Review was previously reported by Scottish Law Reporter in June 2012 HERE. At the time, the court was told little of a SEVEN YEAR LONG complaints process, relating to matters involving a law firm in which Ms Crabbe was a partner. Complaints were later made to the Law Society of Scotland by Ms Crabbe who had employed Mr Macreath to unsuccessfully represent her in litigation, which ultimately resulted in FOUR reporters investigating the complaints made by Ms Crabbe against Mr Macreath. Of the unusually high number of reporters working on the case, only two are referred to in Lord Brodie’s opinion, raising questions over why it has taken seven years for details of the complaints to come to light.
In Lord Drummond Young’s opinion issued on Mr Macreath’s Judicial Review, the court heard that more of the saga of the Law Society’s investigations into Mr Macreath, where two reporters initially instructed had been unable to complete their task, a third who produced the earlier of the two reports in question, recommended that all 38 heads of complaint be dismissed apart from one finding of inadequate professional services and then a fourth reporter, who prepared the last report, made eight findings of inadequate professional services and seven that there were grounds for considering professional misconduct.
The court was told that after the third report was completed and sent to all parties, the complainer, solicitor Ms Crabbe, stated that the reporter had not seen all the documentation he was supposed to have. She produced further documents, which were not copied to the solicitor. The third reporter eventually withdrew from acting without having written the supplementary report requested. The fourth reporter considered that in fairness to the parties, and to the committees of the Society that would have to consider the case, an entirely fresh report should be prepared. The complainer was advised that the reporter was free to depart from the recommendations of the previous reporter, but the solicitor was not told of this.
After the report was produced the solicitor asked that it should be set aside for reasons including procedural unfairness. The Society replied that it proposed to proceed on the basis of that report and treat the earlier report as a nullity. It was that decision that the solicitor sought to reduce.
Lord Drummond Young rejected a ground of challenge that the solicitor's legitimate expectations of the procedure that would be followed had been infringed, as once the fourth reporter considered they differed from the conclusions of the third in the light of the material before them, there was no practical alternative to the preparation of a fresh report.
However there was a failure to observe the principles of natural justice, in the lack of opportunity for the solicitor to consider the additional evidence, which was clearly important. The solicitor had been shown the papers at an earlier stage, some three years before, but they were not available to him for the purpose of making representations to the fourth reporter. This amounted to a breach of the principle audi alteram partem. That taken with the failure to inform the solicitor of the change in the fourth reporter's task vitiated the Society's decision.
Article 6 was also engaged, as the reporter's conclusions were liable to have a substantial influence on the later stages of the case, in particular the decision whether to prosecute before the Discipline Tribunal. The fact that the solicitor was given misleading information about the role of the fourth reporter was a clear breach of article 6. However an argument of a further breach due to delay was inconsistent with binding Inner House decisions that the relevant date was the making of a complaint to the Discipline Tribunal.
An argument for the Law Society claimed Macreath’s petition was premature as there would be subsequent opportunities to remedy any defect in procedure, was rejected by the judge, given the likely influence of the report before the committees: there was "an imminent legal wrong which the court may correct even at this stage".
The letter challenged was reduced but Lord Drummond Young left it to a further hearing to consider what should happen next while indicating his view that a further reporter might be appointed to consider the earlier report and the further material produced, in the light of detailed submissions from both parties.
Act: Ferguson QC, Watts; Simpson & Marwick, Alt: Lindsay QC; Anderson Strathern LLP (Law Society of Scotland) Alt: Miss C, personally (Interested Party) 20 February 2013
[1] The petitioner seeks judicial review of a decision of the Law Society of Scotland dated 10 January 2012. The Law Society appear as respondents to the petition. The petitioner is a solicitor, against whom the interested party made a complaint in August 2005. The complaint was intimated to the petitioner in September 2006. It contained 38 allegations. In order to investigate the complaint the respondents instructed a series of reporters. The first two reporters were unable to complete their task. A third reporter produced a report dated 28 September 2009, in which he recommended that all of the heads of complaint made by the interested party should be dismissed apart from one finding of inadequate professional services. The interested party complained about the terms of the 2009 report; she alleged that the third reporter had not seen all of the necessary papers, that the petitioner's firm had submitted a file which contained fabricated evidence, and that the petitioner's firm had removed letters from files which were incriminatory or adverse to their interests. The respondents instructed the third reporter to prepare a supplementary report, but he intimated that he was unable to do so. The respondents then instructed a fourth reporter to consider matters; initially he was instructed to prepare a supplementary report, but this became a completely fresh report, involving a total reconsideration of the complaints against the petitioner. The fourth reporter produced a report dated June 2011. His conclusions differed radically from those of the third reporter, in that he made eight findings of inadequate professional services against the petitioner and seven findings of professional misconduct.
[2] On 10 January 2012 the respondents wrote to the petitioner to intimate that they proposed to proceed on the basis of the 2011 report, treating the 2009 report as a nullity. They invited comments on the 2011 report. In the present petition the petitioner seeks reduction of that decision and certain ancillary orders. The petition founded on a number of legal grounds including the proposition that the 2011 report and the decision of 10 January 2012 were ultra vires and that the respondents failed to give adequate reasons for their decision, but those two grounds were not argued at the first hearing. At that hearing four grounds remained. First, it was said that the procedures followed by the respondents breached the rules of natural justice, in particular the principle audi alteram partem. Secondly, it was said that the procedures followed by the respondents following the receipt of the 2009 report contravened the pursuer's legitimate expectations, in that the initial instruction to prepare a supplementary report metamorphosed into a completely fresh report. Thirdly, it was said that the procedures followed by the respondents had violated the petitioner's right to a fair trial under article 6 of the European Convention on Human Rights: he had been denied a fair hearing as required by that article in that he had not been informed of the change in the fourth reporter's instructions and was therefore unable to present proper submissions to the fourth reporter. Fourthly, the disciplinary proceedings had not been completed within a reasonable time, as required by article 6 of the Convention. All of those grounds were resisted by the respondents, and also by the interested party. The respondents also claimed that the petition was premature and should be dismissed because the alleged procedural improprieties were capable of being remedied within their disciplinary procedures without intervention by the court. The interested party essentially adopted the same position as the respondents, but she also advanced a claim that the petition was fundamentally incompetent, in that the requirements for judicial review were not satisfied.
[3] I propose first to set out the legal provisions that govern the respondents' procedures in disciplinary matters together with the practice that was followed in respect of such complaints at the relevant time. I will then set out the factual history of the complaint against the petitioner so far as that is necessary for the purposes of judicial review. After that I will consider the four grounds on which the petitioner seeks judicial review, both generally and individually, and thereafter the plea of prematurity taken by both the respondents and the interested party and the wider plea to competency taken by the interested party.
Legislation
[4] At the time when the complaint was made against the petitioner, the respondents' disciplinary procedures were governed by section 33 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. That section, which is headed "Complaints in relation to legal services", provides as follows:
[4] At the time when the complaint was made against the petitioner, the respondents' disciplinary procedures were governed by section 33 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. That section, which is headed "Complaints in relation to legal services", provides as follows:
"(1) Where any person with an interest has made a complaint (a 'conduct complaint') to a professional organisation that a practitioner has -
(a) been guilty of professional misconduct; or
(b) provided inadequate professional services, the organisation shall investigate the matter, and shall thereafter make a written report to the complainer and the practitioner concerned of -
(i) the facts of the matter as found by the organisation; and
(ii) what action the organisation propose to take, or have taken in the matter".
So far as the present case is concerned, "professional organisation" is defined in subsection (5) as being the Council of the Law Society of Scotland, and "practitioner" is defined in the same subsection as a solicitor. I should record that that legislation has now been superseded by the Legal Services (Scotland) Act 2010. Under the transitional provisions in that Act, however, section 33 continues to apply to the complaint against the petitioner.
[5] The procedure followed by the respondents in dealing with conduct complaints is to appoint a reporter to investigate the complaint, to report on the facts and to make a recommendation as to what grounds if any exist upon which the respondents might take action. Normally the reporter is a solicitor. The respondents' practice, which is set out in a document known as "The Society's Complaints Process" (no. 7/4 of process), is that the issues of the complaint are agreed with the complainer and the solicitor is given fair notice of the allegations. Thus a solicitor against whom a complaint is made will know the evidence against him and will be given an opportunity to comment on it before the report is produced. Thereafter the report is considered by the relevant committee of the respondents. In the case of inadequate services, the report goes to the Client Relations Sub-Committee. From that Sub-Committee there is an appeal to the Scottish Solicitors Discipline Tribunal, and from there an appeal to the Inner House. In the case of professional misconduct, the report goes to the Professional Conduct Sub-Committee, which may decide that it should be prosecuted before the Scottish Solicitors' Discipline Tribunal. In that event the matter is heard by the Discipline Tribunal, from which there is a right of appeal to the Inner House.
The complaint against the petitioner :
[6] The petitioner had acted for the interested party in connection with the dissolution and winding up of the affairs of the former partnership of West Anderson & Co, the firm of solicitors in which the interested party was a partner. (A firm of the same name exists today, and the interested party is a partner, but it is the affairs of the old firm that form the subject matter of this petition). On 16 August 2005 the interested party made a complaint to the respondents about the petitioner's conduct. The complaint contained thirty eight separate heads. Three of these were complaints of inadequate professional service in relation to an arbitration arising out of the dissolution and winding up of the former firm of West Anderson & Co; twelve were complaints of inadequate professional service in relation to a commercial action raised in Glasgow Sheriff Court in connection with the dissolution and winding up of the firm; nine were complaints of professional misconduct in relation to the same commercial action; and one was a complaint of inadequate professional service in relation to the dissolution of the partnership and the provisions of the contract governing the consequences of such dissolution. In accordance with their usual practice the respondents in September 2007 appointed a solicitor as reporter, but in May 2008 he withdrew because of pressure of work and problems with his records. In June 2008 a second reporter was appointed, but in September of that year it became necessary for the second reporter to withdraw because his identity had been discovered by the interested party, and the third reporter was appointed. The third reporter then prepared a report on the complaint; the report (no. 6/69 of process) was dated 28 September 2009, and was sent to the petitioner and the interested party. The petitioner states that he had an opportunity to comment on all the evidence before the third reporter before the 2009 report was prepared. As I have already mentioned, the third reporter found only one of the thirty eight heads of complaint against the petitioner to be established, and he recommended that no sanctions should be imposed in respect of that head, which related to a failure to disclose to the interested party that the petitioner's firm had failed to lodge defences timeously in the commercial action in Glasgow Sheriff Court.
[7] On 9 November 2009 the interested party wrote to the respondents to complain about the 2009 report. In her letter (no. 6/73 of process, page 1) she stated that the third reporter had not seen all of the relevant documentation that he was supposed to have seen, and she also complained that documents had been removed from the files by the petitioner or his firm and that evidence had been fabricated by them. The latter two heads of complaint were rejected by the fourth reporter, and it is unnecessary to say anything more about them. On 16 November 2009 the respondents' Complaints Investigator replied to the interested party (no. 6/73 of process, page 5) to ask that she should produce the relevant documentation and any additional comments in order that these might be reviewed and a supplementary report prepared. Also on 16 November 2009 the respondents wrote to the petitioner enclosing a copy of the interested party's comments on the 2009 report. The letter informed the petitioner that the respondents had required to remove the complaint from the agenda of the forthcoming Client Relations Committee meeting. It continued,
"I have invited the complainer to submit those files ..., and any additional comment she may wish the Reporter to review, in order that a Supplementary Report may be prepared".
After a reminder the interested party produced certain documentation in February 2010 (no. 6/80 of process). The petitioner claims, and it is not disputed, that this documentation was not disclosed to him at this time and that he was not given an opportunity in 2010 or 2011 to make representations or comment on it.
[8] The third reporter appears to have been sent the additional documentation, which he retained until January 2011, when he withdrew from acting. The respondents then appointed a fourth reporter. On 31 January they wrote to the petitioner (no. 6/82 of process) to state that the new reporter had been engaged in a consultancy position to review the matter on a full-time basis. The letter then stated:
"The reporter shall review the material in the files which we hold and compare whether new information is available. This is in line with the position explained to you in my colleague's letter of 16 November 2009".
The respondents then gave instructions to the fourth reporter. These are set out in his report (no. 6/80 of process, page 6, paragraph 4) as follows:
"As a result of these statements [from the interested party], the 2009 reporter was asked to prepare a Supplementary Report in the light of consideration of further papers referred to by Miss C, including the file containing allegedly faked papers. After considerable delay, the 2009 reporter indicated that other commitments prevented him/her from undertaking the preparation of a Supplementary Report. The Society therefore requested that the new Reporter consider the 2009 report, the response by Miss C, and the further papers referred to by her, in order to prepare a Supplementary Report".
On 23 February 2011 the respondents wrote to the interested party informing her that the fourth reporter was entirely free to reach whatever view of the merits of the complaint he considered appropriate, and that he was free to depart from the recommendations of the third reporter if he considered that the evidence supported a different view. The petitioner was not informed of this letter.
[9] When he considered the material made available to him, the fourth reporter decided that, rather than preparing a supplementary report, he should prepare a completely fresh report. That is the fourth report (no. 6/84 of process), which was issued on 15 June 2011. In that report, the fourth reporter acknowledged that he was instructed to prepare a supplementary report (see the quotation in paragraph [8] above), but went on to state the following:
"The new Reporter ... has therefore had access to the Society's electronic file dating from August 2007, the Society's earlier paper files, and the files provided by Miss C and the [petitioner's] Firm. On examining the evidential material and the 2009 report, the Reporter concluded, for the reasons set out below, that in fairness to the parties, and taking into account the burden on the Committees which would require to consider the matter, an entirely fresh comprehensive Report, as opposed to a Supplementary Report, should be prepared".
In that report the fourth reporter found fifteen of the heads of complaint against the petitioner to have been established; these do not include the sole complaint that was found established by the third reporter. The fourth reporter made recommendations as to the sanctions that should be applied.
[10] On 16 September 2011 the petitioner made detailed representations to the respondents in relation to the fourth report. These included issues of procedural fairness. The petitioner asked that the fourth report should be set aside. On 10 January 2012 the respondents replied, in the following terms:
"The Society proposes to proceed on the basis of the '2011' report, treating the '2009' report as a nullity. In the circumstances, I should be obliged if you could provide me with comments on the '2011' report which you are content to be disclosed to the complainer, reporter and a Client Relations Sub-Committee. Once I have received your comments I shall copy these to the complainer, and I shall provide you with a copy of the comments which I have already received from the complainer. I shall also refer this matter to the '2011' reporter in order that he might provide a supplementary report on the comments for the benefit of the Sub-Committee".
It is that decision that the petitioner now seeks to reduce.
The general nature of the petitioner's grounds of challenge
[11] The petitioner contends that he was not aware that the fourth reporter was going to prepare a fresh report, and that only some of the documentation produced by the interested party was disclosed to him. He was not, he says, given an opportunity to make proper representations in relation to that documentation before the completion and issue of the 2011 report. Subsequently, he contends, he required to seek to recover the documentation produced by the interested party by means of a commission and diligence in the present judicial review proceedings. (The report of the commission is no. 6/89 of process). The respondents had produced two bundles of documentation, but the petitioner contends that it cannot be established with any certainty whether this is new material or whether some or all of that was before the third reporter when the 2009 report was produced. It is against that background that he has raised the present petition for judicial review, proceeding on the grounds summarized in paragraph [2] above.
[11] The petitioner contends that he was not aware that the fourth reporter was going to prepare a fresh report, and that only some of the documentation produced by the interested party was disclosed to him. He was not, he says, given an opportunity to make proper representations in relation to that documentation before the completion and issue of the 2011 report. Subsequently, he contends, he required to seek to recover the documentation produced by the interested party by means of a commission and diligence in the present judicial review proceedings. (The report of the commission is no. 6/89 of process). The respondents had produced two bundles of documentation, but the petitioner contends that it cannot be established with any certainty whether this is new material or whether some or all of that was before the third reporter when the 2009 report was produced. It is against that background that he has raised the present petition for judicial review, proceeding on the grounds summarized in paragraph [2] above.
[12] Normally the respondents' argument that the petitioner's challenge is premature would fall to be considered at the outset. In the present case, however, I am of opinion that in order to consider the question of prematurity properly it is necessary to understand the precise nature of the petitioner's grounds of challenge, and accordingly I propose to consider those first. As indicated above (paragraph [2]), the petitioner is insisting on four grounds of challenge. The first of these is a breach of the principle audi alteram partem, in that the material produced by the interested party following the production of the 2009 report was not made available for his comments. The second is that, following the time when the third reporter was instructed, he had a legitimate expectation that the new report to be produced would be a supplementary report, based on the conclusions in the 2009 report, and not completely fresh report, and that that expectation was not fulfilled. Thirdly, the petitioner contends that he was not informed about the change in the fourth reporter's instructions, from a supplementary report to a completely fresh report, and was therefore unable to present proper submissions; this is presented as a breach of article 6 of the Human Rights Convention. Article 6 is also said to extend to be failure to make available the new documentation produced by the interested party. Fourthly, he contends that the respondents' disciplinary proceedings had not been completed with a reasonable time; this is again set to amount to a breach of article 6.
[13] At this point certain comments seem pertinent.
1. The first three grounds of challenge raise question of procedural unfairness. In considering such allegations, flexible standards must apply. In R v Home Secretary, ex parte Doody, [1994] 1 AC 531, at 560D, Lord Mustill described the evaluation of fairness as "essentially an intuitive judgment". Essentially, the court must evaluate the overall fairness of the proceedings. That is a question of judgment rather than the application of hard and fast rules. In applying its judgment, the court must always bear in mind the underlying purpose of the principles governing procedural fairness and consider how that purpose may best be satisfied in the particular context that has arisen.
2. For this reason clear distinctions between different grounds of challenge are not always appropriate. In this case that applies to the first and third grounds, which seem to me to run together. In summary, these amount to a complaint that substantial new material was produced and sent to the reporter, and it was decided that in consequence he should produce a completely new report, but the petitioner was not sent the new material, was not given an adequate opportunity to comment on that material, and was not even told of the change in procedure from a supplementary report to a fresh report; the latter point was critical because if matters were being looked at de novo it was plainly important to make detailed submissions on all relevant matters, including both old and new material. These elements all run together into a general complaint of procedural unfairness, and it seems to me to be inappropriate to treat them independently of one another.
3. The second ground of challenge is distinct, in that it relates to the substance of the decision to change the task of the reporter from producing a supplementary report to producing a fresh report; the first and third complaints, by contrast, relate to the procedures followed by the respondents in carrying out that transition. The fourth ground of challenge is also clearly distinct.
4. Although the third ground of challenge is formulated as a breach of article 6 of the Human Rights Convention, I am doubtful whether that provision adds very much to the well-established principles of the common law. Provided that they are interpreted in a flexible manner, taking account of the particular context of the case, it seems to me that the common-law grounds are easily capable of encompassing every case where a serious complaint of procedural unfairness is made.
[14] I have come to the conclusion that the first and third grounds of challenge are well founded, both individually and, especially, taken together. The second ground must be rejected, however, as must the fourth. The interested party produced a substantial quantity of documentation in February 2010. This had not been considered by the third reporter and consequently was not taken into account in the 2009 report. It was not, however, sent to the petitioner at this stage (although most if not all of it had probably been seen by the petitioner three years previously). Consequently the petitioner did not know what new information was being considered by the fourth reporter. That obviously prevented him from commenting on either the accuracy or the relevance of such new information. Perhaps more importantly, the petitioner had been told that the third and subsequently the fourth reporter was charged with producing a supplementary report, founding on the 2009 report and its conclusions. What happened in practice, however, was that the fourth reporter decided that he had no option but to produce a completely fresh report. The interested party was told about this but, in stark contrast, the petitioner was not. That was clearly of very major significance, because if the reporter is to look at matters afresh much more comprehensive submissions would be required then if he is merely reviewing the conclusions reached in the 2009 report; in essence, what is required in the former case is a comprehensive commentary on the facts underlying the complaint and the manner in which those facts should be evaluated. The failure to inform the petitioner of the change in the reporter's task prevented him from making such comprehensive submissions. That seems to me to be a particularly important feature of his grounds of challenge. When it is taken together with the failure to give the petitioner proper access to the information produced by the interested party, I conclude that the petitioner was placed at a serious procedural disadvantage in dealing with the investigation by the fourth reporter.
[15] So far as the second ground of challenge is concerned, I am of opinion that the reasons given by the fourth reporter for changing the basis of his instructions are sound; I accordingly reject this ground. So far as delay is concerned, I am bound by authority to the effect that the relevant period for the application of article 6 only starts to run when the Council of the Law Society takes a complaint to the Scottish Solicitors' Discipline Tribunal. That has not happened yet, and consequently there does not appear to be any scope for holding that there has been unreasonable delay within the meaning of article 6. Against the foregoing background, my comments on the individual grounds of challenge are as follows; I have considered the third immediately after the first because they run together as explained above. For the sake of clarity I have adopted the headings used by counsel in argument, although the first and third grounds should be considered together as a general complaint of procedural unfairness.
Natural justice: audi alteram partem
[16] The petitioner's first argument on the merits is that, following the production of the 2009 report, the respondents adopted unfair procedures in two respects. First, the respondents ignored the 2009 report, which had all but exonerated the petitioner from the charges against him. Secondly, it was said that additional documents containing new information were produced to the fourth reporter but the petitioner was not given an opportunity, or at least an adequate opportunity, to comment on that information. This is an example of the principle audi alteram partem, and is a very elementary aspect of basic procedural fairness. That principle was considered in R v Home Secretary, ex parte Doody, [1994] 1 AC 531, where Lord Mustill (at 560D): described the evaluation of fairness as "essentially an intuitive judgment". He continued:
[16] The petitioner's first argument on the merits is that, following the production of the 2009 report, the respondents adopted unfair procedures in two respects. First, the respondents ignored the 2009 report, which had all but exonerated the petitioner from the charges against him. Secondly, it was said that additional documents containing new information were produced to the fourth reporter but the petitioner was not given an opportunity, or at least an adequate opportunity, to comment on that information. This is an example of the principle audi alteram partem, and is a very elementary aspect of basic procedural fairness. That principle was considered in R v Home Secretary, ex parte Doody, [1994] 1 AC 531, where Lord Mustill (at 560D): described the evaluation of fairness as "essentially an intuitive judgment". He continued:
"(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interest fairness will very often require that he is informed of the gist of the case which he has to answer".
Another well-known statement of principle is found in Barrs v British Wool Marketing Board, 1957 SC 72, where LP Clyde stated (at 82):
"Although quasi-judicial bodies such as this tribunal are not Courts of law in the full sense, it has always been the law of Scotland that they must conform to certain standards of fair play, and their failure to do so entitles a Court of law to reduce their decisions ... The principle is well illustrated in reference to arbitrations, which are at least as much judicial proceedings as those of this tribunal. In Mitchell v Cable, 1848, 10 D 1297, Lord Jeffrey says of an arbiter (at p. 1309): 'The true principle is, that his decree-arbitral can stand only when he has done his duty fairly. I do not mean fairly, in reference to his moral dispositions; but he is bound to show this Supreme Court that he has dealt fairly, that is equally, with both parties. ... ..'...
It is important to observe the width of this principle. It is not a question of whether the tribunal has arrived at a fair result; for in most cases that would involve an examination into the merits of the case, upon which the tribunal is final. The question is whether the tribunal has dealt fairly and equally with the parties before it in arriving at that result. The test is not 'Has an unjust result been reached?' But 'Was there an opportunity afforded for injustice to be done?' If there was such an opportunity, the decision cannot stand. Hence, if one party is allowed to give evidence, and this is denied to another, the decision would be reduced, not because the evidence led had convinced the tribunal, for this could hardly ever be established, but because the standards of fair play which underlie all such proceedings had not been satisfied".
The latter quotation emphasizes that the concern of the court conducting a judicial review is with the procedures that have been followed rather than the substance of the underlying dispute.
[17] Of the two grounds on which the petitioner alleges a failure to observe the principles of natural justice, the second, the lack of ability to comment on evidence, appears to me to be the more significant. The first ground, that the respondents decided to ignore the 2009 report, has I think considerably less importance. The fourth reporter decided that he could not simply prepare a supplementary report, and in the light of that view it is difficult to see how he could be held bound to the terms of the 2009 report. In any event he had new material before him, which might persuade him to reach a different decision from the third reporter. Once it was decided that the fourth reporter should prepare a wholly new report (a matter discussed below at paragraph [32]), it is difficult to see how the respondents could do anything other than treat the 2011 report as superseding the third report. That does not mean that the 2009 report is irrelevant. Indeed, if the petitioner wanted to rely on that report in submissions to the respondents, in particular to their Sub-Committees, there is no reason why he should not do so, and in that event the 2009 report would be material that the respondents were bound to take into account in their overall assessment of the complaints against the petitioner, although there would be practical difficulties when it conflicted with the 2011 report. Essentially, once the fourth reporter decided that he had to start afresh, it was not unfair to treat his report, the 2011 report, as the report to be considered by the Sub-Committees in dealing with the complaint.
[18] The petitioner's inability to comment on the new material raises much more significant issues. In order to satisfy basic standards of fairness, two conditions must be fulfilled. First, the petitioner must be given proper notice of the allegations against him. Secondly, he must be given an adequate opportunity to respond to those allegations, by commenting on them and the supporting material and if necessary producing new material. In the present case the interested party produced further documentation in February 2010. The additional papers appear to have been substantial and were clearly important, because the point of the interested party's criticism of the 2009 report was that significant information had not been made available to the third reporter. In addition, the fourth reporter came to radically different conclusions from the third reporter, and it seems likely that in part at least this was the result of considering the additional material. The petitioner contends that this documentation was not disclosed to him and that he was not given an opportunity to make representations about it.
[19] The response of the respondents is that the material produced by the interested party was not "new" material. The position was explained to the petitioner in the respondents' letter of 16 November 2009 (no. 6/73 of process, page 7, referred to above at paragraph [7]). With that letter the respondents enclosed the interested party's comments on the 2009 report and referred to the fact that she had questioned the extent of the material that had been reviewed by the reporter. The letter then continued:
"Having checked the position, Miss C's argument in this regard does seem to have at least some merit, inasmuch as the files which she submitted in the context of defending Mr MacR's complaint against her were returned to her, rather than being included in the papers which were presented to the Reporter in the instant case for review. [The petitioner had also made a complaint against the interested party, and part of the documentary material was relevant to both sets of complaints].
That being the case, I have required to remove the complaint from the agenda for the forthcoming Client Relations Committee meeting. I have invited Miss C to submit those files (which I understand to have previously been disclosed to Mr MacR), and any additional comment she may wish the Reporter to review, in order that a Supplementary Report may be prepared. I enclose for your records a copy of my letter to Miss C in order that you may be aware of the position in this regard".
Consequently, it was said, there was no "new material" produced by the interested party. All of the material that she produced had been before the first reporter and had been fully disclosed to the petitioner when the complaints were being considered at that time. The petitioner had an opportunity to comment upon all of this material when it was being considered by the first reporter. The files constituting that material were sent by the respondents to the petitioner for his comments under cover of a letter dated 7 December 2006. The petitioner commented upon the material in a letter of 13 September 2007 to the respondents. The difficulty was therefore not that new material had been produced by the interested party but that the third reporter had not had regard to all the material that had been before the first reporter.
[20] The problem with this argument is that, although the files produced by the interested party had been before the petitioner at an earlier stage, more than three years before the 2011 report was prepared, they were not made available to him for the purpose of making representations to the fourth reporter when he embarked upon his report early in 2011. It may well be that the petitioner was able to comment on these files at the time when the first reporter was considering matters, but it is not apparent whether the comments made then were sent to the fourth reporter nor, if they were so sent, whether the fourth reporter took those comments into account. In 2011, when the fourth reporter was working on his report, the petitioner did not have the additional material, and it is therefore extremely difficult to see how he could have made representations about that material to the fourth reporter.
[21] The respondents also refer to the commission and diligence procedure that has been followed in respect of the present petition. This involved a lengthy specification of documents followed by a commission, which was held on 20 June 2012. The procedure was designed to recover all of the documentation relating to the complaints against the petitioner that was in the possession of the respondents. The respondents complied with the specification, and produced all of the relevant documents in their possession. To the best of their knowledge, this comprised all of the material that had been put before the fourth reporter, but the respondents were unable to say whether or not any particular item had been before the third reporter; essentially they acted as a post box, forwarding the files received directly to the reporter without making an inventory of the documents contained in those files. In relation to this material, the respondents submitted that the petitioner had failed to identify any document that had not been disclosed to him prior to the preparation of the 2011 report, and had failed to identify any additional submissions that he would have wanted to make to the fourth reporter prior to the preparation of that report.
[22] The obvious comment on the commission and diligence procedure is that the documentation was not made available until June 2012, well after the 2011 report was produced. At the very least, that documentation should be made available to the petitioner at the time when it was sent to the fourth reporter. As to the point that the petitioner had not identified documents that had not been disclosed to him prior to the preparation of the 2011 report, it seems clear that a substantial number of the documents had not been disclosed at that stage, although they may have been made available at the very much earlier stage where matters were considered by the first reporter. Identifying those documents would be a laborious task, and pointless, because it is clear that material new documentation was made available. As to the argument that the petitioner had failed to identify any additional submissions that he would have wanted to make, the critical point, as indicated in the passage quoted above from Barrs, is that in considering procedural unfairness the court is not concerned with the substance of the process that is under review but with the procedure that was followed in that process: the test is not whether an unjust result has been reached but whether there was an opportunity afforded for injustice to be done.
[23] Overall, I am of opinion that the failure to disclose to the petitioner the material made available by the interested party in February 2010 amounts to a breach of the principle audi alteram partem. In general, any material that is relied upon to make a case against a practitioner in disciplinary proceedings must be disclosed to the practitioner in order that he can prepare his defence properly. It seems to me that a failure to follow that rule will almost inevitably result in the reduction of any decision based on such material, unless it appears that the material was not significant in arriving at the ultimate decision. Moreover, for reasons discussed in the following section of this opinion, I am of opinion that the respondents failed to inform the petitioner of the change in the fourth reporter's task from a supplementary report to a new report. That failure must in my opinion be taken together with the failure to make the new material available; the critical point is that a person facing allegations of misconduct must be given an adequate opportunity to respond to them, and if he does not have all of the factual material relied upon and does not know of the precise procedure that is being followed he is denied such an opportunity. That appears to me to vitiate the respondents' decision to set aside the 2009 report and proceed on the basis of the 2011 report.
Right to a fair trial
[24] The petitioner contends that the procedures followed by the respondents in relation to allegations of professional misconduct infringed his right to a fair trial under article 6(1) of the European Convention on Human Rights. This applied only to allegations of professional misconduct, and not to allegations of inadequate professional service. The reason is that it was only the former that affected the petitioner's ability to practise and thus affected his fundamental legal rights. It is not in dispute that article 6 applies to the respondents' disciplinary procedures relating to professional misconduct; that is the result of section 6 of the Human Rights Act 1988, which makes it unlawful for a public authority to act in a way that is incompatible with a Convention right. Article 6(1) provides:
[24] The petitioner contends that the procedures followed by the respondents in relation to allegations of professional misconduct infringed his right to a fair trial under article 6(1) of the European Convention on Human Rights. This applied only to allegations of professional misconduct, and not to allegations of inadequate professional service. The reason is that it was only the former that affected the petitioner's ability to practise and thus affected his fundamental legal rights. It is not in dispute that article 6 applies to the respondents' disciplinary procedures relating to professional misconduct; that is the result of section 6 of the Human Rights Act 1988, which makes it unlawful for a public authority to act in a way that is incompatible with a Convention right. Article 6(1) provides:
"In the determination of the civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...".
It is not disputed that the right to continue in professional practice is a civil right, and that disciplinary proceedings that may lead to suspension or expulsion from a profession fall within the ambit of article 6(1).
[25] For the petitioner, it was submitted that the right to a fair trial requires procedural equality or "equality of arms". This implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage to his opponent. Following the appointment of the fourth reporter, the petitioner had no opportunity to make representations on crucial matters, in particular on any new information that was contained within the additional material available to the fourth reporter. By contrast, the interested party had such an opportunity. The respondents had on 23 February 2011 informed the interested party but not the petitioner that the fourth reporter was free to consider the whole matter afresh. The petitioner was not so informed, however. The interested party had sight of all the evidence that was before the fourth reporter, and in particular the documentation produced by her and the information it contained. She had the opportunity to make representations and to comment on that documentation and its potential relevance for the conclusions of the 2009 report. The petitioner was not given sight of that documentation, and did not have an opportunity to make meaningful representations in relation to it. That placed him at a substantial disadvantage by comparison with the interested party. That it was said was a breach of the petitioner's Convention right to a fair hearing. That right extended beyond the right simply to see all the evidence against him; it also included the right to comment upon all of the evidence that had been produced and to make observations on that evidence with a view to influencing the fact-finding exercise and hence the decision. Reference was made to the decision of the United Kingdom Supreme Court in R (G) v Governors of X School, [2012] 1 AC 187, at paragraphs 63-69 per Lord Dyson, and to Craig, Administrative Law, 7th ed, at 354.
[26] For the respondent it was submitted that there had been no unlawful infringement of the petitioner's article 6 rights. In considering the application of that article, it was important to look at the respondents' complaints procedure in its entirety rather than examining individual stages in isolation from other stages.
[27] In relation to complaints of procedural fairness under article 6, the criterion for applicability of the article to the preliminary stages of disciplinary proceedings, such as the provision of a report in the circumstances of the present case, is that those proceedings have a substantial influence on later proceedings, or are dispositive of the result in later proceedings, where those later proceedings are subject to the article: Craig, Administrative Law, 7th ed, page 354, following R (G) v Governors of X School, supra, per Lord Dyson at paragraphs 69. In my opinion that test applies in the present case. The function of the reporter is to find the facts underlying a complaint and to make recommendations as to the facts so found. On that basis, it is clear in my opinion that the reporter's conclusions will inevitably have a substantial influence on the later hearing before the respondents' Professional Conduct Sub-Committee. It is on the basis of the report that that Sub-Committee is likely to act in deciding whether to initiate proceedings before the Scottish Solicitors' Discipline Tribunal, and the prosecution before that Tribunal is obviously likely to be based on the findings of the reporter. For that reason I consider that article 6 is engaged so far as the complaints of professional misconduct are concerned.
[28] As to the substance of this ground, the correspondence in February 2011 appears to me to be decisive. First, the respondent wrote to the interested party on 23 February 2011 (no. 6/91 of process). In that letter, they stated
"Our current reporter is independent, he is entirely free to reach whatever view on the merits of the complaint that he considers appropriate. He is free to depart from the recommendations of the previous reporter if he considers that the evidence supports a different view".
That clearly indicates that the fourth reporter was considering the matter afresh. The following day, the respondents wrote to the petitioner in the following terms (no. 6/80 of process, page 2):
"I have referred matters back to the Reporter in order that he may prepare a Supplementary Report addressing this additional information. Upon receiving the Supplementary Report, I would propose to issue it to you for comment, and schedule matters for consideration by the Client Relations Committee, with a view to drawing matters to a conclusion".
There is a significant contrast between the two letters; the letter sent to the petitioner indicated that what was contemplated was a supplementary report, which would obviously found upon the findings of the 2009 report. That was liable in my opinion to mislead the petitioner into thinking that the fourth reporter was conducting a relatively limited exercise. On that basis, there would not appear to be any reason for him to make detailed and comprehensive submissions upon the whole gamut of complaints; the petitioner could reasonably assume that the findings in the 2009 report would remain intact unless something in the new material led to a different conclusion. In that event, I consider that the petitioner could reasonably expect the reporter to refer the matter to him for his comments. The petitioner did not in fact make any further representations at this stage, and in view of what was said to him in the letter of 24 February 2011 I do not find this surprising. The petitioner was misled by that letter into believing that the exercise proposed for the fourth reporter was relatively limited, whereas in fact by this time it had been decided that it should be a completely comprehensive reconsideration of the complaints. In my opinion that is a clear breach of article 6.
[29] In any event, I consider that the misleading information in the letter of 24 February, especially taken with the failure to provide the petitioner with the new material supplied by the interested party, was almost certainly a breach of the principles of natural justice at common law. A person who is subject to disciplinary proceedings is entitled to present his case effectively; that is the fundamental objective of the principle audi alteram partem. In order to do so, the party must have access to the full material that is used against him, as discussed in the last section of this opinion, but he must also know precisely what is happening procedurally at any given stage. To suggest that a remit to a reporter is substantially more limited than is actually the case is misleading, and inevitably means that the person concerned does not have a full understanding of the procedure that is being used. In conclusion, I should observe that this aspect of the case illustrates the importance in a dispute involving two or more parties of copying both or all of them into all material correspondence. Had that been done on 23 or 24 February 2011, the position would have been made clear to the petitioner.
Legitimate expectations
[30] The remaining ground on which the petitioner seeks to challenge the procedure followed by the respondents is that it involved an infringement of his legitimate expectations as to the procedure to be followed. In essence, what the petitioner says is that he was informed that the fourth reporter would be charged with the task of considering the 2009 report and producing a supplementary report. He thus had a legitimate expectation that the fourth reporter would do precisely that, and would not proceed to re-examine the case from the beginning. In the event, the fourth reporter produced a completely fresh report which differed radically from the 2009 report. That, it is said, was a breach of the petitioner's legitimate expectations as to the procedure that would be followed following the appointment of the fourth reporter.
[30] The remaining ground on which the petitioner seeks to challenge the procedure followed by the respondents is that it involved an infringement of his legitimate expectations as to the procedure to be followed. In essence, what the petitioner says is that he was informed that the fourth reporter would be charged with the task of considering the 2009 report and producing a supplementary report. He thus had a legitimate expectation that the fourth reporter would do precisely that, and would not proceed to re-examine the case from the beginning. In the event, the fourth reporter produced a completely fresh report which differed radically from the 2009 report. That, it is said, was a breach of the petitioner's legitimate expectations as to the procedure that would be followed following the appointment of the fourth reporter.
[31] The expression "legitimate expectation" was described by Lord Fraser of Tullybelton in Attorney General of Hong Kong v NgYuen Shiu, [1983] 2 AC 269, at 636, where he stated that the word "legitimate" falls to be read as meaning "reasonable", and that the expression as a whole is capable of including expectations which go beyond enforceable legal rights, provided that they have some reasonable basis. In R (Manik Bibi) v Newham LBC, [2002] 1 WLR 237, Schiemann LJ, delivering the opinion of the Court of Appeal, stated (at paragraph 19) that in all legitimate expectation cases, whether substantive or procedural, three practical questions arise:
"The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do".
The first of these questions is a matter of analyzing the evidence. As to the second, the court in that case held (at paragraph 28) that reliance, though potentially relevant in most cases, is not essential. The court approved (paragraph 29) a passage from Craig, Administrative Law, 4th ed, at 619:
"Detrimental reliance will normally be required in order for the claimant to show that it would be unlawful to go back and representation. This is in accord with policy, since the individual has suffered no hardship there is no reason based on legal certainty to hold the agency to this representation. It should not, however, it be necessary to show any monetary loss, or any equivalent thereto".
The court went on to hold (paragraph 31) that the significance of reliance and consequent detriment was factual, not legal.
[32] The present complaint relates to the decision to transform the exercise carried out by the fourth reporter from the preparation of a supplementary report to the preparation of a completely fresh report. It is not concerned with the failure of the respondents to intimate to the petitioner that such a change had been carried out, as discussed in the preceding section of this opinion; the complaint here relates to the substance of the decision itself. The fundamental problem arose out of the third reporter's inability to complete his task by reviewing the additional documentation made available by the interested party and the subsequent decision by the respondents to send the papers to a fourth reporter. When the fourth reporter received the papers, he realized that his view of the facts and of the possible inadequacy of professional services or professional misconduct was different from that of the third reporter. That presented a fundamental problem, in that the fourth reporter thought that it was impossible for him to proceed on the basis of the findings of 2009 report and to provide a supplementary report. What he says in the 2011 report is this (no. 6/84 of process, paragraphs 4 and 5):
"4. After considerable delay, the 2009 report indicated that other commitments prevented him/her from undertaking the preparation of a Supplementary Report. The Society there for requested the new Reporter consider the 2009 report, the response by Miss C, and a further papers referred to by her, in order to prepare a Supplementary Report .... On examining the evidential material and the 2009 report, the Report concluded, for the reasons set out below, but in fairness to the parties, and taking into account the burden on the Committees which would require to consider the matter, an entirely fresh comprehensive Report, as opposed to a Supplementary Report, should be prepared.
5. These reasons are:
(a) If the matter proceeded by way of the 2009 report plus an entry Report, the relevant committees of the Law Society would require to consider both of those reports must be observations of the parties ... on each report .... They would face the task of mentally 'merging' the 2009 report and the Supplementary Report into a hybrid report, and constantly referring back and forwards between the two, and reconciling any perceived differences between them ....
(b) It was clear that, not only were there files containing evidence which the 2009 reporter had not seen, there was also evidence which the 2009 reporter said he/she had not seen, but which was in fact contained in the files are available to him/her. The Reporter could therefore not assume that where the 2009 reporter had had access to a file, he/she had seen all the evidence it contained. Further, the Reporter had no way of knowing what value the 2009 reporter had attached to particular adminicles of evidence which he/she had in fact seen. The 2009 Reporter might have decided that certain items carry little weight or no weight at all, whereas the present Reporter, whether with or without the benefit of additional material, might come to the view that they were more significant. The reverse is also true. There was therefore a clear risk, where the Supplementary Report was not being prepared by the original reporter, of inconsistency arising from differing views as to the strength of the evidence, and whether it met the required standard of proof, when all the available material was taken into account. In some instances, consideration of the whole available material led the Reporter to a different conclusion from the 2009 reporter".
[33] For the petitioner it was suggested that those reasons were spurious, and that a supplementary report could address the merging of the whole material in such a way as to present a coherent conclusion. While that might be so in relation to the difficulty identified in paragraph 5(a), I am of opinion that the matters mentioned in paragraph 5(b) present a much more serious difficulty. The fundamental point that is made there is that the fourth reporter could not reconstruct the intellectual processes that lead to the conclusions contained in the 2009 report; in particular, he could not know how much of the documentary material that was now available had been seen by the third reporter, and it was impossible to know how much importance was attached by the third reporter to any particular item of evidence. I consider those considerations to be powerful: if he was to be intellectually consistent, the fourth reporter could not make any assumptions about the particular pieces of evidence on which the third reporter had based his views. That meant that he could not simply take up the third reporter's conclusions, because his view as to the importance of particular items of evidence and the overall strength of that evidence on any particular matter might well differ from the third reporter; there was no way of knowing how far that was so. For this reason I am of opinion that there was no practical alternative to the preparation of a fresh report, in the light of the provision of new material by the interested party. Consequently I reject the present ground of challenge. The decision to proceed with a fresh report rather than a supplementary report is rather relevant to issues of procedural fairness, in that the petitioner was not informed of the change and was thus prevented from making effective representations to the fourth reporter.
Delay
[34] The final ground on which the petitioner founds is delay. Article 6(1) of the European Convention on Human Rights requires that a hearing should take place within "a reasonable time". What constitutes a reasonable time will depend on the circumstances of the particular case. For the petitioner, it was submitted that the reasonable time began when he was first made aware of the allegations against him, on 8 September 2006. The difficulty with this argument, which counsel acknowledged, arises out of two decisions of the First Division delivered on the same day in 2002, Council of the Law Society of Scotland v Hall, 2002 SC 620, and Council of the Law Society of Scotland v McPherson, 2002 SC 628. Those cases were concerned with the respondents' disciplinary procedures, including the usual remit to a reporter. In each case a complaint was made that the reasonable time requirement in article 6 had been infringed. It was held that the relevant date for the application of that provision was the date when the Council of the Law Society made a complaint to the Scottish Solicitors' Discipline Tribunal: Hall, at paragraphs [28] and [24]. Those cases are of course binding.
[34] The final ground on which the petitioner founds is delay. Article 6(1) of the European Convention on Human Rights requires that a hearing should take place within "a reasonable time". What constitutes a reasonable time will depend on the circumstances of the particular case. For the petitioner, it was submitted that the reasonable time began when he was first made aware of the allegations against him, on 8 September 2006. The difficulty with this argument, which counsel acknowledged, arises out of two decisions of the First Division delivered on the same day in 2002, Council of the Law Society of Scotland v Hall, 2002 SC 620, and Council of the Law Society of Scotland v McPherson, 2002 SC 628. Those cases were concerned with the respondents' disciplinary procedures, including the usual remit to a reporter. In each case a complaint was made that the reasonable time requirement in article 6 had been infringed. It was held that the relevant date for the application of that provision was the date when the Council of the Law Society made a complaint to the Scottish Solicitors' Discipline Tribunal: Hall, at paragraphs [28] and [24]. Those cases are of course binding.
[35] For the petitioner it was submitted that those decisions were incorrect, and might require to be reconsidered. In particular, it had not been argued for the solicitors involved that the date for the start of the relevant period was when the complaint was first intimated to the solicitor; the argument had rather been that the period began to run when the complaint was made. That observation is correct, but it is obvious that intimation to the solicitor concerned is likely to take place in a very short time after the complaint is made. Counsel further submitted that it was quite artificial to suggest that a delay of 51/2 years after the investigation of a complaint of professional misconduct had begun was not relevant to whether a reasonable time had elapsed. Moreover, in Gray v Nursing and Midwifery Council, 2010 SC 75, it had been held in an analogous situation involving a registered nurse that time began to run for the purposes of article 6 on the date when intimation of the complaint was sent to the practitioner. Lord Nimmo Smith, delivering the opinion of the Court, stated (at paragraph [26]):
"This is because that was the point at which the appellant was first made aware that an allegation of misconduct had been received which the council's officer considered might lead to removal from the register, and a procedure which might lead to that result was thereby triggered".
Counsel for the petitioner also drew my attention to the position in criminal proceedings, where it has been held that the relevant time period begins at the earliest time at which an accused person is officially alerted to the likelihood of criminal proceedings against him: Attorney-General's Reference (No 2 of 2001), [2004] 2 AC 72, at paragraph 29. It seems to me that there is some force in this argument. Nevertheless, I am bound by the earlier decisions, which deal directly with the respondents' disciplinary procedures. Consequently I am driven to conclude that I must reject this ground of challenge to the respondents' disciplinary procedures as applied to the petitioner.
Prematurity
[36] For the reasons stated above, I am of opinion that the petitioner's first and third grounds of challenge are well founded. It is against that background that I must consider the primary argument taken by the respondents, namely that the petition is premature and should accordingly be dismissed. The respondents contend that no action is necessary or appropriate at this stage because the alleged procedural improprieties are capable of being remedied within the respondents' disciplinary system without court intervention.
[36] For the reasons stated above, I am of opinion that the petitioner's first and third grounds of challenge are well founded. It is against that background that I must consider the primary argument taken by the respondents, namely that the petition is premature and should accordingly be dismissed. The respondents contend that no action is necessary or appropriate at this stage because the alleged procedural improprieties are capable of being remedied within the respondents' disciplinary system without court intervention.
[37] The law on prematurity in judicial review is reasonably well established. It is set out in Clyde and Edward on Judicial Review, at paragraph 13.11, where the authors state
"Where it is feared that a decision maker may exceed his jurisdiction but he has not yet entered upon the matter a challenge to his actings may be premature. Where an appeal was currently proceeding under the statutory process for appeal and no evident excess of jurisdiction had occurred such as could take the matter outside the scope of the statute the court refused to intervene .... But where there is a real anticipation that an authority will fail to consider a factor relevant to the decision the court may intervene even before the process leading up to the decision has formally commenced".
A number of authorities are cited. I was also referred to a very recent example where a plea of prematurity was sustained, the decision of Lord Brailsford in William Morrison Supermarkets PLC v South Aberdeenshire Licensing Board, [2010] CSOH 66, where it was stated (at paragraph [13]):
"I acknowledge that there may as a matter of practice be some scope for a degree of flexibility in the approach to be taken to consideration of preliminary pleas in relation to judicial review .... [O]ne area where the court has repeatedly made it clear that it will not adjudicate is where there is no immediate issue between parties or where the issue is, at the time the matter is brought before the court, hypothetical. It is not ... sufficient to advance as justification for engaging the court's judicial review jurisdiction a plea that the matter at issue is of 'immense practical importance' and may have 'immediate and practical effect' on the way parties conduct their business. Another clear principle is that the court will not intervene if there is another legal avenue, a jurisdiction, in existence to adjudicate on the issue before the court".
[38] Four factors are of some importance in the circumstances of the present case. The first is that the question of prematurity does not depend on rigid rules, but is rather based on a straightforward principle which must be applied in a manner appropriate to the particular factual and legal context that is in issue. The underlying principle is that the court should not deal with hypothetical or academic questions, but should confine its activity to issues that have a practical bearing on the rights and obligations of litigants. The second factor is that context is critical; this applies both to the factual and to the legal context. The third factor is that, as the quotation from Clyde and Edward indicates, even if a ground for judicial review has not yet occurred, if there is a significant likelihood that it will occur in the immediate future the court will act. The law of judicial review must be practical in its application, and that includes preventing an imminent wrong as well as correcting a wrong that has already taken place. The fourth factor is that, even if procedures are available in future to deal with such matters as irregularities in procedure, overriding practical considerations may cause the court to act at an earlier stage. Where, for example, the petitioner complains of a procedural irregularity that can be corrected, there is no point in allowing elaborate legal procedures to be acted out in the knowledge that they are fundamentally flawed and then corrected by means of, say, an appeal to the Court of Session. That would involve a serious waste of time and effort. In such a case it is better that the irregularity should be considered and corrected as soon as possible, so that future procedure may be soundly based.
[39] In the present case the respondents contended that there was no immediate issue between the parties, and indeed no justiciable issue might ever develop. The disciplinary procedure was at an early stage, and the alleged procedural improprieties were capable of being remedied within that procedure without court intervention. The third and fourth reporters had only made recommendations as to the perceived merits of the complaint. The delegated power of the Council of the Law Society to determine complaints of inadequate professional service, or to appoint a fiscal to prosecute a complaint of professional misconduct before the Scottish Solicitors' Discipline Tribunal, vests in the Client Relations Sub-Committee and the Professional Conduct Sub-Committee, neither of which had yet considered the complaint. The petitioner would be entitled to make representations to those two Sub-Committees, including representations as to the weight that should be placed on the 2011 report. It was possible that these Sub-Committees would decide to take no further action once they had considered the 2011 report. Alternatively, if they were to take further action, the petitioner would have an opportunity to make representations before any final decision was made. Thereafter the petitioner would have a right of appeal to the Scottish Solicitors' Discipline Tribunal against any adverse finding made by the Client Relations Sub-Committee in respect of the service complaints; that right of appeal is conferred by section 53B of the Solicitors (Scotland) Act 1980. If any adverse finding is made by the Scottish Solicitors' Discipline Tribunal, the petitioner has a statutory right of appeal to the Inner House under section 54 of the 1980 Act. Thus there was ample opportunity for any procedural errors to be put right. An example of that was found in Sutherland-Fisher v Law Society of Scotland, 2003 SC 562, where the court considered whether the appellant solicitor had received a fair hearing before the Scottish Solicitors' Discipline Tribunal.
[40] For the petitioner, it was submitted that the petition was not premature, and the court might intervene at this stage. Counsel emphasized that there was no absolute rule that a petition would be premature at a stage when a final decision had not been taken. Prematurity depended on context, and the context included the particular form of procedure that was involved and the nature of the unfairness that was said to have occurred. In the present case, the petitioner had not been given a fair opportunity to make comments to the fourth reporter on the new information that was available following the completion of the 2009 report. That unfairness tainted the process indelibly, in that the 2011 report would normally constitute the respondents' fact-finding process in investigating the complaint. In view of the fact that the 2011 report involved allegations of professional misconduct, it was inconceivable that the respondents' Professional Conduct Sub-Committee would not take action. In reality, once the 2011 report was before the two relevant Sub-Committees, it was likely to be accepted as an accurate account of the facts, and it would then be too late for the petitioner to put matters right. The reporter was the fact-finder, and the facts found by him would form the basis for the decision-making process.
[41] In my opinion it cannot be said that the present proceedings are premature. The essence of the petitioner's claim is that he has not been given a fair opportunity to present his case to the fourth reporter, and that accordingly his position was not properly taken into account when the 2011 report was prepared. That arises both from the failure to disclose the whole of the new material to him and from the failure to indicate that the fourth reporter had decided to embark on a wholly new report rather than to prepare a report supplementary to the 2009 report. It is clear in my view that the preparation of a report is normally the critical fact-finding exercise in the respondents' disciplinary procedures. It is true that the report must then go before the appropriate Sub-Committee, and it is the Sub-Committee that makes the final decision. Consequently the petitioner could make representations to each of the relevant Sub-Committees to present his case. Counsel for the respondents emphasized that proceedings before the Sub-Committees are not a rubber-stamping exercise, which I accept. There are two difficulties with this, however. The first is that the Sub-Committees are obviously likely in practice to attach great importance to the report that has been prepared for them. The reporter has been appointed by the respondents, and is expected to act, and always invariably will act, in a wholly objective manner after giving due consideration to all the available evidence. By contrast, the submissions for the solicitor who is subject to the disciplinary procedure are, inevitably, partisan. The reporter's conclusions must therefore carry great weight. The second difficulty is that, at least in the present case, the fact-finding exercise is of considerable complexity. Large numbers of documents are involved, and some of the issues may be difficult to resolve; that is perhaps emphasized by the fact that the third and fourth reporters came to radically different conclusions. It is extremely unlikely in practice that the respondents' Sub-Committees will have the time or energy to go through the facts in detail. Instead, it seems likely that they will rely in substantial measure on the exercise carried out by the respondents' reporter, an experienced solicitor who is expected to act in a wholly objective and impartial manner. In these circumstances I am of opinion that there is an imminent legal wrong which the court may correct even at this stage.
[42] The petitioner's present challenge relates, of course, to the procedures that have been followed rather than the substance of the complaints. It could be said that that is an inherently simpler matter, and would not require the same degree of factual investigation. Nevertheless, I return to the fundamental principle that judicial review is a flexible procedure that must be applied in a particular factual and legal context. In the present case the defects in procedure appear to me to be obvious. It is quite likely that they can be corrected. If they are not corrected, they will vitiate the procedure before the two relevant Sub-Committees and all subsequent procedure, should those Sub-Committees find against the petitioner. There is nothing that either Sub-Committee can do, whether by way of factual investigation or consideration of the legal issues, that the court cannot do in the course of the present application for judicial review. In these circumstances it seems to me that practical considerations strongly favour action at this stage: the procedural irregularities appear to me to be clear; they can be corrected; and it is better that they should be corrected sooner rather than later. I should also observe that the act that is challenged by the present petition is the respondents' decision intimated on 10 January 2012 that they proposed to proceed on the basis of the 2011 report, treating the 2009 report as a nullity. That might be regarded as foreclosing matters before the two Sub-Committees, obliging them to proceed on the basis of the 2011 report and ignoring the 2009 report. Even if the Sub-Committees did not come to such a conclusion, however, it seems to me that the 2011 report must carry great weight with them, and the procedural irregularities involved in its preparation call for immediate rather than delayed action.
Expertise of the respondents
[43] For the respondents it was submitted that the court should afford respect to decisions made by them in their capacity as a specialist and expert professional disciplinary body. Reference was made to a number of cases in England, notably Cooke v Secretary of State for Social Security, [2001] EWCA Civ 734, at paragraph [16]; Napp Pharmaceutical v Director General of Fair Trading (No 5), [2002] 4 All ER 376, at paragraphs [34] and [63]; and AH (Sudan) v Secretary of State for the Home Department, [2008] 1 AC 678, at paragraphs [18] and [30]. The same principle has been followed in Scotland in Mooney v Secretary of State for Work & Pensions, 2004 SLT 1141, at paragraph [30]; and Murnin v Scottish Legal Complaints Commission, 2012 SLT 65, at paragraph [31]. The principle referred to is clearly correct and well vouched by authority. It applies primarily, however, to the consideration of the substance of factual and legal issues by such a tribunal. It is obvious that, in considering those issues, the tribunal is likely to have a degree of specialist expertise that the court does not have. In questions of procedural fairness, by contrast, all tribunals are subject to certain basic principles of fairness, such as audi alteram partem, and many are subject to the rules of fairness derived from article 6 of the Human Rights Convention. That is clear, for example, from the passage in Barrs v British Wool Marketing Board, supra, quoted at paragraph [16] above. Those principles of fairness are of fundamental importance, and they must apply indifferently to tribunals of every sort. In that context the argument based on specialist expertise appears to me to be much less strong.
[43] For the respondents it was submitted that the court should afford respect to decisions made by them in their capacity as a specialist and expert professional disciplinary body. Reference was made to a number of cases in England, notably Cooke v Secretary of State for Social Security, [2001] EWCA Civ 734, at paragraph [16]; Napp Pharmaceutical v Director General of Fair Trading (No 5), [2002] 4 All ER 376, at paragraphs [34] and [63]; and AH (Sudan) v Secretary of State for the Home Department, [2008] 1 AC 678, at paragraphs [18] and [30]. The same principle has been followed in Scotland in Mooney v Secretary of State for Work & Pensions, 2004 SLT 1141, at paragraph [30]; and Murnin v Scottish Legal Complaints Commission, 2012 SLT 65, at paragraph [31]. The principle referred to is clearly correct and well vouched by authority. It applies primarily, however, to the consideration of the substance of factual and legal issues by such a tribunal. It is obvious that, in considering those issues, the tribunal is likely to have a degree of specialist expertise that the court does not have. In questions of procedural fairness, by contrast, all tribunals are subject to certain basic principles of fairness, such as audi alteram partem, and many are subject to the rules of fairness derived from article 6 of the Human Rights Convention. That is clear, for example, from the passage in Barrs v British Wool Marketing Board, supra, quoted at paragraph [16] above. Those principles of fairness are of fundamental importance, and they must apply indifferently to tribunals of every sort. In that context the argument based on specialist expertise appears to me to be much less strong.
The underlying competency of the petition
[44] As I have mentioned, the interested party also presented submissions. In large measure those repeated the position of the respondents, especially in relation to prematurity. I have attempted to deal with those issues in the earlier part of this opinion. She also made substantial submissions about the underlying dispute between her and the petitioner which had resulted in the complaints made by her to the respondents. It was clear that she feels very strongly about the underlying dispute. Nevertheless, as I sought to explain to her, when the court conducts a judicial review of disciplinary proceedings, it is not concerned with the underlying merits of the case. Those are emphatically a matter for the bodies charged with administering the disciplinary procedures, in this case the respondents acting through their reporters and the relevant Sub-Committees. The court is solely concerned with the manner in which the decision has been reached, including matters such as procedural fairness and rights derived from article 6 of the Human Rights Convention. This point is made clearly by LP Clyde in in Barrs v British Wool Marketing Board, supra, where he states (at 1957 SC 82):
[44] As I have mentioned, the interested party also presented submissions. In large measure those repeated the position of the respondents, especially in relation to prematurity. I have attempted to deal with those issues in the earlier part of this opinion. She also made substantial submissions about the underlying dispute between her and the petitioner which had resulted in the complaints made by her to the respondents. It was clear that she feels very strongly about the underlying dispute. Nevertheless, as I sought to explain to her, when the court conducts a judicial review of disciplinary proceedings, it is not concerned with the underlying merits of the case. Those are emphatically a matter for the bodies charged with administering the disciplinary procedures, in this case the respondents acting through their reporters and the relevant Sub-Committees. The court is solely concerned with the manner in which the decision has been reached, including matters such as procedural fairness and rights derived from article 6 of the Human Rights Convention. This point is made clearly by LP Clyde in in Barrs v British Wool Marketing Board, supra, where he states (at 1957 SC 82):
"It is not a question of whether the tribunal has arrived at a fair result; for in most cases that would involve an examination into the merits of the case, upon which the tribunal is final. The question is whether the tribunal has dealt fairly and equally with the parties before it in arriving at that result. The test is not 'Has an unjust result been reached?' but 'Was there an opportunity afforded for injustice to be done?' If there was such an opportunity, the decision cannot stand".
For this reason I cannot go into the merits of complaints that the interested party has made.
[45] The interested party also presented an argument that the proceedings were fundamentally incompetent; this was not adopted by the respondents. The argument was in essence that the "tripartite" test for the competency of judicial review, laid down in cases such as West v Secretary of State for Scotland, 1992 SC 385, was not satisfied. She also referred to St Johnstone Football Club Ltd v Scottish Football Association Ltd, 1965 SLT 171; Crockett v Tantallon Golf Club, [2005] CSOH 37; Fraser v Professional Golfers Association, [1999] CSOH 129; and Kelly v Law Society of Scotland, [2011] CSOH 184. The essence of this principle is that the court's power of judicial review is not available in an ordinary contractual dispute between the parties to a contract. It is, however, available when a body is charged by statute with the exercise of disciplinary functions. That is the position that the respondents are in in the present case. Under section 33 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 the respondents are given express statutory responsibility for investigating complaints made against solicitors. That is precisely the sort of case where the supervisory jurisdiction of the court is exercised, to ensure that basic standards of fairness are upheld. That statutory responsibility exists from the moment when a complaint is made. At one point I understood the interested party to submit that at that stage the issue between the petitioner and the respondents was merely a matter of contract; it was only at a later stage, when the Scottish Solicitors' Discipline Tribunal became involved, that the necessary tripartite relationship existed. In my opinion that cannot be correct. Matters move out of the sphere of contract and into that of judicial review once the disciplinary proceedings are initiated. At that stage the "tripartite" test is satisfied, in that three parties are involved: the interested party, as the person making the complaint; the petitioner, as the person against whom the complaint is made; and the respondents, as the body charged with investigating the complaint.
[46] The petitioner stressed the distinction between the initial investigation of complaints by a reporter and subsequent proceedings, whether before the respondents' Sub-Committees, before the Scottish Solicitors' Disciplinary Tribunal or elsewhere; she submitted that the two are distinct, and it is only at the second stage that judicial review might be competent. In my view, however, the disciplinary procedures must be treated as a unified whole. They begin with the investigation of the complaint. It should perhaps be observed that the respondents' disciplinary proceedings are not conducted in the same way as court proceedings in Scotland and elsewhere in the English-speaking world, where the parties present their arguments and the court adjudicates between them. Instead, the respondents conduct their own fact-finding exercise through the appointment of a reporter. As will be clear from earlier discussion, I consider that the investigation by a reporter is a critical part of the process, and it is susceptible to judicial review just as much as the later stages, where proceedings are more adversarial in nature.
[47] The interested party also emphasized that the delay in dealing with her complaints had had an adverse effect on her as well as on the petitioner. I do not doubt that that is correct. As I have already mentioned, it was quite clear that she feels extremely strongly about the complaints. The failure to resolve those complaints must be matter of concern to her, as it is to the petitioner. Nevertheless, this is relevant to the issue of delay, and I have already indicated that I do not consider that the requirement under article 6 of the Human Rights Convention that proceedings be completed within a reasonable time has yet been engaged.
Remedy
[48] That leaves the question of the appropriate remedy. For the petitioner it was submitted that, if I found in his favour on the question of delay, I should grant an interdict against the respondents' taking further steps to determine the complaint. I have not so held, and consequently this remedy does not arise. If the other grounds of challenge were upheld, it was submitted that I should reduce the respondents' decision of 10 January 2012 to proceed on the basis of the 2011 report and treat the 2009 report as a nullity. Counsel further submitted that I should order that a supplementary report should be prepared as originally envisaged; that should be done not by the fourth reporter but by either the third reporter or a wholly new, fifth, reporter. The report should be available within a short period fixed by the court. Ideally, counsel submitted, the new reporter should be instructed in preparing the supplementary report to compare the additional material produced in February 2010 with the material that was before the third reporter, to determine whether it contained new information. The new material should be sent to both the petitioner and the interested party in order that they might make meaningful representations on the significance of any new information contained in it for the findings in the 2009 report. The reporter should consider whether any of the conclusions in the 2009 report should be altered in the light of the new information, and why that should be the case. Thereafter, the parties should be given an opportunity to comment on the report before it went to the relevant Sub-Committees.
[49] For the respondents, it was submitted that a fair decision was still possible, and that they should be permitted to continue with the procedures designed to arrive at such a conclusion. There was no need for the court to intervene in detail in the procedures followed by the respondents. They were acting under section 33 of the 1990 Act, and statutory rights of appeal were available. There were also practical considerations, in that it was by no means clear that the third reporter would be willing to prepare a supplementary report at this stage. If a fifth reporter were appointed, it might be necessary to discuss time scales and the like, and it would be appropriate to have the petition put out by order to discuss the need for further procedure. In particular, in that situation it might be necessary to reduce the 2009 and 2011 reports. Moreover, a fifth reporter might find himself in similar difficulties to the fourth reporter.
[50] In the first place I will reduce the decision of 10 January 2012. That decision is that the respondents should proceed on the basis of the 2011 report and treat the 2009 report as a nullity. For the reasons already given, I consider that the procedures that led to the 2011 report were flawed, and consequently the respondents may not proceed on the basis of that report. As to what should happen thereafter, I am not satisfied that it is necessary for me to lay down detailed procedures. The respondents are the body with statutory responsibility for disciplinary procedures, and they can be trusted to act in a sensible manner. Nevertheless, the question of future procedure must be addressed properly. It is not clear that the third reporter would be willing to return to the case, nor is it clear what alternatives might be available. It is also unclear whether any new reporter should prepare a fresh report or a supplementary report; indeed this may be a matter that cannot be determined at this stage, as the problems referred to by the fourth reporter in the 2011 report may still hold good. I will accordingly have the case put out by order so that parties may address me on the question of further procedure. In general terms, what I have in mind is that a further reporter should be appointed to consider the 2009 report and the further material that was made available in February 2010. Both the petitioner and the interested party should have access to that material and should be able to make detailed submissions to the reporter. The basis on which the report is prepared, whether as a supplementary report or as a new report, is not, however, a matter that I think can be determined conclusively at this stage. Beyond reducing the decision of 10 January 2012 and having the case put out by order, I will make no further order at this stage
2 comments:
As I recall one of the many unfair aspects of making a complaint is that a solicitor is allowed to see all material presented by a 'complainer' but the 'complainer' is not allowed sight of a solicitor's productions.
Clearly Mr Macreath is playing for time and no-one with any sense would go within a mile of him or Levy Macrae.
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