Tods Murray v Arakin : Court of Session hears appeal over ruling client must pay former lawyers £90K in legal fees after 16 year battle

Andrew McNamara was ordered to pay £90K to Tods Murray after bitter 16 year court battle. A millionaire pensioner goes into a final battle this week in a war that has lasted 16 years to try to overturn a ruling that he must pay his former lawyers almost £90,000.

Andy McNamara will try to persuade three judges at the Court of Session that Lord Woolman was wrong to find against him and for Tods Murray in February.

By appealing, and risking landing the substantial legal costs of his adversaries, the final bill for failure could be well into six figures.

McNamara earned his reputation as a difficult client by going to war with many of the lawyers who represented his contracting firm, Arakin Ltd, and became known as ‘the client from hell’ in the 1990s.

When Tods Murray sued Arakin in 1996 for payment of fees McNamara had demanded should be taxed, he hit back and managed to get more than £100,000 knocked off their time-and-line accounts, embarrassing the firm by obtaining publicity in a national newspaper.

Amongst other cuts he made, the Auditor of the Court of Session reduced by £26,500 a £34,000 photocopying charge, which had been billed at more than £4 a sheet.

McNamara also refused to take Nigel Emslie QC’s advice to accept an offer of £175,000 to settle a dispute with his former accountants, McLachlan and Brown, despite Emslie _ then about to become Dean and now the high court judge Lord Emslie _ threatening to withdraw.

Emslie reluctantly continued to represent Arakin and the action finally settled for £1,040,000, almost six times the first offer.

More recently, McNamara became one of eight litigants branded ‘vexatious’ by the Scottish courts after the Lord Advocate made an application to that effect, largely because of the allegations McNamara made repeatedly about lawyers in open court.

The outstanding litigation between McNamara and Tods Murray should be a matter of simple arithmetic. Tods Murray’s fees for professional services to Arakin in the 1990s, and the sums paid to account have been examined by lawyers, accountants, law accountants and several judges.

On one hand, Arakin can show an overpayment of more than £2,000 on total fees of £321,000, after taxation by the Auditor.

On the other, Tods Murray’s lawyers show a deficit, accepted by Lord Woolman, by taking into account a sum of about £80,000 in outlays allowed by the Court, as well as interest and an uplift (increase) in fees allowed by the auditor, resulting in a figure of almost £409,600.

Lord Woolman therefore ordered Arakin to pay its former lawyers £86,376.

McNamara’s decision to appeal is the result of his conviction that when Tods Murray sued for £204,000 in 1996, and froze £275,000 of Arakin’s money to ensure he could defend it, the firm had no right to do so.

At the appeal, McNamara, who represents Arakin in court, will point to rules that govern a solicitor’s right to sue a client that say no action should precede taxation of disputed accounts.

He will also argue that his firm had paid Tods Murray considerably more than it had been invoiced for when the writ was lodged.

He will present a document provided by Tods Murray dating back to 1997 in which the firm admits it has always known it was not due £204,000, and a notice to admit, in which Tods Murray acknowledges Arakin had paid £70,817.87 more than sums invoiced for.

He will argue that had all these factors been taken into account, the action would have no basis.

Now aged 70 and trying to live quietly in retirement on Arran with his wife, Janette, McNamara freely admits that if he’d known how long the case would run, and the effect it would have on his health and family life, he would have paid up long ago.

But, after Lord Woolman’s opinion, which established that the lack of invoices did not negate Arakin’s obligation to pay fees, he felt unable to walk away without trying to land a decisive blow.

Having talked recently of calling time on the dispute whatever the outcome, he now admits: ‘I’ve been looking at possible routes to the Supreme Court and even to Europe.

‘I’ve got total faith in our case, but I’ve not been given much reason to date to have faith in our justice system.’

His wife has written to the new Lord President, Lord Gill, to say that the current rules covering party litigants like her husband _ who is partially deaf but must address the court without help from his daughter Carol, who assists him _ appear to breach his human rights.

As Lord Justice Clark, Lord Gill chaired a review commission that recommended McKenzie friends be granted rights of audience in the courts. The Scottish parliament passed enabling legislation, but it has not yet been implemented.

Carol McNamara has written to all MSPs to remind them of this point.

At a preliminary hearing last month, three judges, led by Lord Bonomy, agreed that Tods Murray should produce, prior to proof this week, invoices covering the additional outlays allowed by the court, which the law firm says are already lodged in the lengthy process. Mr McNamara maintains those documents have never been entered in the process.

Tods Murray’s chairman, Graham Burnside, is relaxed about the outcome. He said: "At every stage of the process we have trusted to the judgement of the courts and on every occasion to date they have found in our favour."

An earlier report on the case can be read HERE and more on the history of Arakin Ltd’s dispute with Tods Murray can be found at a website on the case, here : Tods Murray v Arakin

Ruling awaited in 16 year civil damages claim against Motherwell College and North Lanarkshire Council

Finally, after some 8 weeks of hearings over a period of almost 2 years, a ruling is awaited regarding a workplace injury which occurred in 1995.  Yet questions remain over who or what delayed a civil damages claim for approximately 16 years against scandal hit Motherwell College. A RULING from Scotland’s Court of Session is awaited in what is the longest case of its kind on record - and which has taken SIXTEEN YEARS out of the life of Mr Martin Wilson, a Music Lecturer who suffered severe back injuries after help was denied to him in the course of his duties by its now former Principal Richard Millham. Mr Millham was dubbed a “Bully Boss” by national newspapers after Motherwell College lost a string of unfair dismissal claims brought by College staff, one of several unanimous decisions by Employment Tribunals confirming that Mr Wilson was Unfairly Dismissed while on long term sickness leave.

Lord Woolman is the presiding judge in the present claim of  M.Wilson v North Lanarkshire Council & Others (A1628/01). Investigations reveal the case has already generated thousands of pages of transcripts, numerous hearings where internationally acclaimed expert medical witnesses from the UK and abroad disputed the testimony of Motherwell College’s own ‘experts’, with many legal observers stating the case could have been resolved years ago and appears to have been prolonged solely for the purpose of generating massive bills for legal fees from Motherwell College - paid in turn out of taxpayer funds.

An in depth investigation into the case, compiled with the help of observers to the legal proceedings and senior legal insiders, berated Motherwell College and its legal representatives for wilfully delaying for THIRTEEN YEARS after Mr Wilson’s injury before commissioning an expert ergonomics report in this manual handling claim, and then only after Mr Wilson had managed to gain access to the defenders premises - something no fewer than four 'normally reliable' firms of solicitors previously 'representing his best interests' had failed to do during the  THIRTEEN YEARS since the summons was served on Motherwell College.

Damning evidence from interviews with legal observers to the proceedings has revealed instances where despite the court suggesting the defenders make the “expert ergonomics report” available to Mr Wilson as soon as possible, the legal agents acting for Motherwell College - Simpson and Marwick - withheld the report until approximately 72 hours before the Proof was scheduled to begin in June of 2008, and then only handing it over on Court premises during a procedural hearing before Lord Penrose.

After being told of the report being withheld from the pursuer, Lord Penrose claimed that the defenders had been “playing fast and loose with due process in an attempt to gain an unfair advantage” and “had rendered the scheduled proof hearing unsafe”. Lord Penrose then invited Motherwell College representatives to apply for a postponement, which they did, and despite the party litigant being prepared to continue regardless - he had paid for distinguished expert witnesses to travel from destinations as far afield as the Western United States.

Taking the defenders legal representatives conduct into account, Lord Penrose described the situation as 'unfortunate' yet amazingly, no penalty was imposed on the defenders and these tactics, widely viewed as cynical delaying tactics, led to a further delay of over a year, the hearings finally getting started in November 2009 at the Court of Session under Lord Woolman. Later that month, and only after the Proof had begun, a ruling in the case brought about Scotland’s first Civil Law McKenzie Friend to appear in the Court of Session - a request which had previously been refused on more than one occasion.

Hearings in the case continued, according to court observers “sporadically” and one year later in November 2010 Motherwell College’s legal team told the court they were withdrawing their “expert ergonomics report” and would not be relying on it,.leading many observers to view the defender’s case as being “unsustainable”.

It can also now be revealed that out of a total of some SIXTEEN LAY WITNESSES to be called by Motherwell College, only FOUR eventually appeared, and none of those included the key player in Mr Wilson’s earlier successful Employment Tribunal Decision against the College, it’s disgraced former Principal, Richard Millham.

Astonishingly the defenders also suddenly decided at the last minute in January 2011 not to call the College's former Health and Safety Officer -  in a manual handling claim! - a consequence perhaps of the defenders failure to produce a single risk assessment or manual handling record. Observers to hearings of the case described the testimony of Motherwell College’s expert witnesses as “lacking any credibility whatsoever”, “highly scripted”, and “unusually combative”.

North Lanarkshire Council & Motherwell College were represented in court by Edinburgh law firm Simpson & Marwick. Senior Counsel for Simpson & Marwick was Ian MacKay QC, Junior Counsel was Calum Wilson both of Compass Chambers.

Motherwell College squandered £300K of taxpayers money fighting a string of Tribunal hearings involving bullying allegations against lecturers which the College lost. A number of media reports, referred to in earlier coverage, show Motherwell College were involved in a string of Employment Tribunal decisions the college lost during Richard Millham’s term as Principal of Motherwell College. Allegations in newspapers including the Sunday Mail reported that “In 1999, lecturer Martin Wilson won £4000 after a tribunal ruled he had been unfairly fired. He had a back injury and could not work. A close friend said : "He was targeted by Millham. There was a strong climate of fear, which is still there ."  We reported in earlier coverage that : “From 1995-1998 Motherwell College opposed Mr Wilson's claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.”

Law Journalist Peter Cherbi’s Diary of Injustice law blog also investigated the case, revealing in an article HERE that Marsh UK, the UK subsidiary of the US insurance firm Marsh & McLennan companies which saw some of its directors plead guilty as a result of an investigation by the New York District Attorney's Office of bid-rigging and price-fixing in the insurance industry had been linked to the case, after North Lanarkshire Council released details in response to a Freedom of Information request confirming it had recently taken on Marsh UK as its insurers.

Spotlight on 16 year Court of Session civil damages claim against Motherwell College as Lord Woolman declares “avizandum”

Avizandum : Court of Session judge Lord Woolman to rule on Scotland’s longest running civil damages claim. COURT OF SESSION judge LORD WOOLMAN, after listening to evidence for the past three years in this long running long civil damages claim against Motherwell College by Mr Martin Wilson a Music lecturer has declared “avizandum” (the private consideration of a case by a judge before reaching judgment) in the SIXTEEN YEAR old case. An earlier unanimous decision by an Employment Tribunal confirmed that Mr Wilson was unfairly forced out of his job while on long term sickness leave

The final set of hearings in the case, commonly known as M.Wilson v North Lanarkshire Council & Others (A1628/01) which has generated thousands of pages of transcripts, numerous hearings where internationally acclaimed medical expert witnesses rubbished the testimony of Motherwell College’s own ‘experts’, and more recently brought about Scotland’s first civil law McKenzie Friend in late 2009. It has led to “significant concerns” from legal insiders over the treatment of Party Litigants in the Scottish Courts system.

Concerns over how a civil damages claim of this nature can effectively get stuck in the Scottish legal system for an unprecedented sixteen years have also been expressed by consumer organisations and the media, where some journalists who attended the hearings were reported “to have been staggered” by the conduct of defending counsel in some matters they witnessed.

Closing submissions were made in the absence of a transcript of the most recent hearings and, while Mr Wilson has been given no option but to proceed as a Party litigant, the defenders North Lanarkshire Council and Motherwell College appointed Mr. Ian MacKay QC and his Junior Mr Calum Wilson - both defenders also being represented by Simpson & Marwick.

Scottish Law Reporter has previously covered the case here : Record 15 year wait for justice approaches for lecturer in Court of Session showdown with former Motherwell college ‘Bully Boss’ principal

Further developments in the final days of the long running case exposed the involvement of Marsh, who are now the insurers of North Lanarkshire Council who operate Motherwell College.

The latest developments along with some quite startling revelations were recently reported by Independent Law Journalist Peter Cherbi’s Diary of Injustice law blog, in an article reprinted below : Access to Justice ? Law Society's insurers Marsh UK linked to SIXTEEN YEAR Court of Session civil damages claim against Motherwell College 

Marsh UK, the UK subsidiary of the US insurance firm Marsh & McLennan companies which saw some of its directors plead guilty as a result of an investigation by the New York District Attorney's Office of bid-rigging and price-fixing in the insurance industry has now been linked to Scotland's longest running civil damages action claim, now in its SIXTEENTH YEAR in the Court of Session, involving Motherwell College & North Lanarkshire Council after the local authority released details in response to a Freedom of Information request.

Court of Session judge Lord Woolman hears Scotland’s longest running civil damages claim. Now in its Sixteenth year in the Court of Session, fresh hearings in the long running civil damages claim in front of judge Lord Woolman began earlier on Tuesday of this week. M.Wilson v North Lanarkshire Council & Others (A1628/01) which has its origins in the mid 1990’s and brought about Scotland’s first civil law McKenzie Friend in late 2009, involves a sole party litigant, Mr Martin Wilson, a former Music lecturer of Motherwell College who, according to media reports was forced out of his job after sustaining severe back injuries during the course of his duties as a music lecturer during his time at the College in the 1990’s.

Responses obtained by Diary of Injustice in reply to Freedom of Information enquiries reveal that Marsh, the insurance firm who insure all members of Scotland’s legal profession without exception, now also insure North Lanarkshire Council, who operate Motherwell College.

An official from North Lanarkshire Council replying to an FOI request admitted : “I can advise that North Lanarkshire Council’s Insurance Brokers until 30 September 2007 were AON, and from 1 October 2007 this service has been provided by Marsh. I can advise also that Travellers Insurance Company Limited have provided employers liability cover for the whole period of your request.”

In what is now Scotland’s longest running civil damages claim, Mr Wilson, the party litigant, has been forced to represent himself after several of Scotland’s leading law firms suspiciously abandoned his case at the very last minute. Mr Wilson is facing North Lanarkshire Council and their indemnity insurers, Travelers Insurance Co Ltd who are both being represented in court by Edinburgh law firm Simpson & Marwick. Senior Counsel for Simpson & Marwick is Ian MacKay QC, Junior Counsel being Calum Wilson both of Compass Chambers.

Now, following further investigations by Diary of Injustice and despite the outrageous time it has taken for Scotland’s civil justice system to hear their testimony, hearings in the Court of Session have shown that many internationally acclaimed experts have supported the party litigant’s claims.

I first reported on Mr Wilson’s case late last year, here : FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day where legal insiders who attended previous court hearings reported that Mr Wilson, who had been put in the position of having to represent himself after several big name law firms, who were at the time & are currently all insured with Marsh UK, withdrew from Mr Wilson’s case at the last minute prior to scheduled hearings of the Proof. Mr Wilson had also encountered repeated & numerous refusals of ‘expert witnesses’ from Scotland to assist his case as long as he was unrepresented. As a party litigant without representation, Mr Wilson was, according to court observers, forced abroad to Japan and the United States for supportive expert medical reports.

According to court documents seen by Diary of Injustice last October, Mr Wilson was previously represented by the well known Edinburgh law firm of Balfour & Manson, who were appointed by Scotland’s largest teachers & lecturers Union, the Educational Institute for Scotland (EIS), who spent tens of thousands of pounds assessing Mr Wilson’s injury as a valid claim, and that it should proceed to court. Amazingly it took the EIS almost THREE YEARS to lodge the summons against Motherwell College.

Papers studied by legal insiders reporting on the case revealed that Balfour & Manson, after being appointed by the EIS spent a staggering EIGHT YEARS working on Mr Wilson’s injury claim, and then at the last minute, decided to withdraw from acting for their client with only weeks to go before scheduled Proof Hearings in the Court of Session.

Balfour & Manson’s withdrawal from acting for Mr Wilson then became a suspicious pattern followed by further four law firms, including the Glasgow based Harper Macleod also withdrawing at the last minute, some eighteen months after representing Mr Wilson. Harper McLeod claimed they had ‘suddenly discovered’ “a commercial difficulty” in that they had an annual retainer from Motherwell College for several years, and had represented the College in Mr Wilson’s Employment Tribunal hearing over his unfair dismissal, which Mr Wilson won on a unanimous decision. Motherwell College also appealed the Employment Tribunal decision on Mr Wilson’s case and lost again.

A further two legal firms took on Mr Wilson’s case and then were apparently persuaded to drop their client, amazingly even returning fees paid to them for their service.

Motherwell College squandered £300K of taxpayers money fighting a string of Tribunal hearings involving bullying allegations against lecturers which the College lost. A number of media reports, referred to in recent coverage of the case by Scottish Law Reporter, show Motherwell College were involved in a string of Employment Tribunal decisions the college lost during Richard Millham’s term as Principal of Motherwell College. Allegations in newspapers including the Sunday Mail reported that “In 1999, lecturer Martin Wilson won £4000 after a tribunal ruled he had been unfairly fired. He had a back injury and could not work. A close friend said : "He was targeted by Millham. There was a strong climate of fear, which is still there ."

According to Scottish Law Reporter who last year reported on the case, “From 1995-1998 Motherwell College opposed Mr Wilson's claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.”

Simpson & Marwick, who are representing Motherwell College & North Lanarkshire Council, are themselves famed for their representation of solicitors accused of professional negligence & client swindling, all supposedly covered by the Law Society of Scotland’s Master Policy Professional Indemnity Insurance Scheme, operated by Marsh to defend against negligence claims raised by clients. The Master Policy and its administration, operation was linked in 2009 to client suicides in an independent report published by the University of Manchester’s Law School.

One of Simpson & Marwick’s partners, Dr Pamela Abernethy famously appeared at the Scottish Parliament’s Justice Committee during 2008, telling msps that pleural plaques, an asbestos related condition, could actually be good for people. I reported on Dr Abernethy’s incredulous claims in September 2008, here : Insurance lawyers argue against laws to help asbestos victims asserting part of their suffering 'is a good thing'

Marsh UK, the British end of the gigantic US insurance operation appear to be linked to many insurance deals in the public & private sector, ranging from multiple services provided by local & national government including law & order, to the private sector. Marsh also enjoy a monopoly on the insurance of all solicitors in Scotland through the Law Society of Scotland’s ‘brutal enforcement’ of the Master Insurance Policy arrangements where all solicitors are required to pay into the professional indemnity insurance scheme if they want to practice any form of law.

Marsh appear to have heavy political influence in the UK, with Conservative Lord Ian Lang now the Chairman elect of Marsh & McLennan companies, according to his register of interests published as per his duties as Chairman of the Advisory Committee on Business Appointments. Lord Lang joined the Marsh & McLennan board in 1997 and has assiduously refused all invitations to comment since news of the 'Marsh Frauds' broke, frauds which were accompanied by valid injury and disability claims being routinely denied. More on Lord Lang’s position at Marsh & McLennan and his career history, along with documents detailing serious allegations against many directors of Marsh including Lord Lang, can be viewed at Scottish Law Reporter, HERE