Wednesday, June 29, 2011

Scottish Legal Complaints Commission pays organisations £20K of YOUR MONEY to spy on Kenny MacAskill, Law Society, its own staff & media

SLCC MacAskillSLCC paid organisations £20k to spy on Kenny MacAskill, Holyrood, Law Society, media & others. CLIENTS of all Scottish solicitors are unwittingly helping to fund a little talked about yet HUGELY EXPENSIVE media monitoring & spying policy operated by the Scottish Legal Complaints Commission (SLCC) which reports back on news & any other reports or references relating to Kenny MacAskill, the Law Society of Scotland, Faculty of Advocates, Scottish Parliament, MSPs and even the SLCC’s own staff, according to documents & admissions disclosed under Freedom of Information legislation yesterday.

So far the SLCC has spent well nearly TWENTY THOUSAND POUNDS on spying on the media, £7555.72 in its first financial year (2009-2009) the same year it received a whopping two million pounds of taxpayers money, with the spying project’s costs increasing to £9863.07 in financial year 2009-2010 and rumoured to be even more for the current financial year. Income received by the SLCC from the levy imposed on all solicitors, which in turn is recovered from clients through increased fees, funds the SLCC’s operating costs including the media spying project. Earlier this year it was revealed the SLCC has only managed to uphold one single complaint in its three years of existence and has made not one single referral to the Scottish Solicitors Discipline Tribunal, a worse record than even the Law Society of Scotland.

SLCC cost admission media monitoring FOIKeeping the SLCC informed of how they, and their targets look to the outside world, at a cost of £10K a year. The bizarre spying policy, the principle aim of which is ‘to keep the SLCC informed of any media activity where the organisation is mentioned’, uses two companies to monitor reports & references relating to : “SLCC (UK), SLCC in all Scottish daily and weekly press, Staff Mentions, Faculty of Advocates, Justice Committee, Law Society of Scotland, The Association of Commercial Attorneys, Alternative Business Structures, Client Relations Partners, and Kenny MacAskill”. The arrangement with two companies, one called Meltwater News, the other so far not identified by the SLCC, provide reports of daily mentions of the SLCC’s search terms from all online sources and has also netted critical stories on Justice Secretary Kenny MacAskill and on disgraced former MSP Bill Aitken, who resigned his position as Convener of the Scottish Parliament’s Justice Committee after he attempted to blame Sunday Herald journalists to cover up comments he made on a rape victim.

The FOI disclosure showing how the SLCC’s media monitoring policy operates, can be viewed or downloaded here : SLCC media monitoring policy

A legal insider speaking this morning on the revelations said : “Have they never heard of using a free search engine like google to find out what's happening on the internet ? For an organisation which is supposed to be saving money, the SLCC seems to have a lot of it to waste on worries of how to maintain its image rather than attending to its duties of regulating complaints about the legal profession”

A Scottish Government source condemned the SLCC’s costly spying project. He said : “I think the 20K might have been better spent on other areas of policy rather than worrying about how they are being reported in the media.”

He also claiming the SLCC “had failed public expectations of cleaning up the poor reputation of complaints regulation in the legal profession” adding that “stalking the Justice Secretary and the Scottish Parliament at a significant cost to solicitors and their clients for signs of criticism from Scottish Ministers & msps does not do the organisation any favours.”

An official from one of Scotland’s consumer organisations braded the SLCC’s media spying policy “a complete waste of money”.

She said : “The SLCC have been so concerned about the cost of consultations such as the report into the Master Policy which happened on a shoestring budget yet we regularly see that the SLCC throws money down the toilet on anything to do with boosting its own image or keeping tabs on its critics.”

She continued : “Is this the way we expected the SLCC to perform as a complaints regulator ? I think the answer to that is a resounding ‘No’.”

While the SLCC claimed websites such as “Diary of Injustice in Scotland” were banned at the organisation’s luxurious half million pound a year Edinburgh HQ located at the Stamp Office, which is populated with staff earning up to £1350 a week & board members receiving up to £300 plus a day with almost unlimited expenses claims schemes & lucrative pension arrangements, copies of articles from this site are apparently regularly printed off from the SLCC’s Head of Communications computer and distributed around the organisation out of concern for rising levels of criticism of the now widely discredited law complaints regulator.

6Reports by Diary of Injustice on Eileen Masterman’s resignation caused grave concern at SLCC. One particular subject covered by Diary of Injustice has, according to insiders, “caused grave concern and much anger among the SLCC’s board members & staff”, relating to reports from April 2010 on the six month disappearance of the SLCC’s now former CEO, Eileen Masterman, which prompted an announcement Ms Masterman had resigned over grounds of “ill health” after less than seven months in her £80,000 a year, £1,350 plus, a week job.  However, enquiries amid a host of refusals by the SLCC to disclose information on Ms Masterman’s resignation revealed there had been bitter & drawn out negotiations with legal teams on the terms of a rumoured-to-be “large ex-gratia” payment to Ms Masterman, approved by the Scottish Government in secret, which I reported on here : HUSH & MONEY : Former SLCC law complaints Chief Executive Eileen Masterman received secret Scottish Government approved payoff in deal with lawyers :

According to insiders, even greater concerns were raised by the SLCC’s board members regarding earlier articles from Diary of Injustice which focussed on the sheer hostility of the board members towards clients of solicitors who were participating in the University of Manchester Law School’s 2009 investigation into the Law Society of Scotland’s Master Policy, the notoriously corrupt Professional Indemnity Insurance scheme which covers all Scottish solicitors for negligence & other client service failures.

Frequent Flyers SLCCFrequent Flyers : SLCC’s David Smith expressed anti-client jibes to Eileen Masterman in emails around the anti-consumer law complaints quango. Among the papers ordered to be disclosed in a decision by the Scottish Information Commissioner, Kevin Dunion and featured in reports on Diary of Injustice were emails containing anti-client jibes,sent by SLCC board member David Smith to Ms Masterman in July 2009. Mr Smith, husband of Court of Session judge Lady Smith, was personally appointed to the SLCC by Justice Secretary Kenny MacAskill. Mr Smith, a lawyer who served much of his career at law firm Shepherd & Wedderburn, who themselves often act for the Master Policy in protection of questionable solicitors against negligence claims, referred to participants in the Master Policy survey & deceased clients who had committed suicide as a direct result of involvement with the Master Policy, as “Frequent flyers”.

An earlier story in the Sunday Mail newspaper, revealing the boozed-up antics of SLCC board members who went on to make bitter hate fuelled remarks against members of the public & consumer groups in their emails to each other, prompted calls by some connected to the organisation “to take action” against Diary of Injustice and “attempt to discredit any reporting of internal goings on or information perceived to be anti-consumer” at the hapless law complaints quango.

Margaret Scanlan - Called to the Bars - Sunday Mail  15 March 2009 emailCalled to the Bars featured in newspapers, pointed to SLCC’s anti client culture among board members & senior officials. Margaret Scanlan’s ‘cross eyed’ email said : ““Was out on the razzle, again, last night so bit cross-eyed this morning. Please excuse any consequent gibberish. Here are my comments on Master Policy and Guarantee Fund…. The consultation should be viewed with some caution. It provides very little by way of a sound evidential basis for us to do anything…. One unidentified responded … reports complaints about difficulty in finding solicitors to pursue a claim under MP (Master Policy). Apart from fundamental misunderstandings about MP which is for benefit of practitioner and in respect of which consumer has no rights ..”  Ms Scanlan's rant against the Master Policy investigation was featured in the Sunday Mail newspaper, depicting a bitter, hate fuelled anti-client culture operating at the highest levels of the Scottish Legal Complaints Commission, which also saw Ms Scanlan rubbish victims of crooked lawyers who tried to recover money misappropriated by their solicitors as “complete chancers”.

Despite the bitter tirades of Scanlan & Smith against consumers & victimised clients, the University of Manchester’s report published by the SLCC in 2009 linked the Master Policy to the deaths of clients, more on which can be read here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

The Scottish Legal Complaints Commission was asked to justify their expenditure on spying on the media in the face of requirements by all public bodies to save money and whether they considered this is money wisely spent. The SLCC were also asked if their media monitoring spy service brought any benefits to regulation of the legal profession. A spokesperson for the SLCC said : “The SLCC has no comment.”


Sources in late 2009 had informed Diary of Injustice that Ms Masterman had failed to respond to correspondence from consumers & msps, however it was not until early 2010, firm evidence was made available Ms Masterman had been missing from her role as the SLCC’s Chief Executive for some time, as I revealed in an article on April 13 2010, here : £70K Chief Executive ‘missing for 6 months’ at Scottish Legal Complaints Commission as Justice Secretary dodges questions on scandal-hit law quango The day after my initial article on Ms Masterman’s disappearance from  work, April 4, 2010, the SLCC were forced to announce the resignation of Ms Masterman from her post on grounds of “ill health”, which I reported on, here : SLCC’s Eileen Masterman resigns, questions remain on attempt to mislead Cabinet Finance Chief John Swinney over secret meetings with insurers Marsh

John SwinneyCabinet Finance Chief John Swinney revealed he felt Ms Masterman had mislead him over accounts of meetings. However, Eileen Masterman’s resignation leaves questions over increasingly bitter exchanges between the Scottish Legal Complaints Commission & the Scottish Government’s Finance Chief, John Swinney, on a matter which I have previously reported where further documents obtained under Freedom of Information legislation revealed the SLCC had clearly mislead Mr Swinney over secret meetings between its officials including Ms Masterman and officials from Marsh, the Law Society’s Master Policy insurers.

Ian GordonFrequent Fryers of FOI : SLCC Board Member ex-Deputy Chief Constable Ian Gordon, also the Convener of the Standards Commission for Scotland refused disclosure on Masterman. Given the many questions raised over the resignation of Ms Masterman, and the lack of progress the Scottish Legal Complaints Commission had made on key issues including scrutiny of the Master Policy, Freedom of Information requests were made to the SLCC asking for details surrounding the resignation. They were refused. Upon a request for a review of the SLCC’s refusal to disclose information through Freedom of Information legislation, one of its board members, former Tayside Deputy Chief Constable Ian Gordon, who is also, amazingly, the Convener of the Standards Commission for Scotland, abruptly refused the Freedom of Information review, as did the SLCC’s new Chief Executive, Rosemary Agnew, who considered and again abruptly refused a second request for an FOI review.

The Scottish Information Commissioner, Kevin Dunion was asked to investigate the SLCC’s refusal to hand over information on Ms Masterman’s resignation. He has found the SLCC must release some details although has allowed other information to remain secret. His decision can be read here : Decision 114/2011 Resignation of the former Chief Executive Officer

Monday, June 27, 2011

Supreme Court judge Lord Rodger who found Law Society lied over dishonesty claims in stitch-up of former solicitors ‘who championed underdog’, dies

LordRodger1Former Lord President who became Supreme Court judge, Lord Rodger dies after a short illness. LORD RODGER, the former Lord President of the Court of Session who found the Law Society lied over dishonesty claims in a famous case involving former Edinburgh solicitors Gordon & Maria Thomson who were hounded out the profession for taking too much legal aid business, and who went on to become a judge in the UK Supreme Court, itself recently involved in controversial rulings on Scottish Human Rights cases which have changed the face of Scotland’s notoriously corrupt, antiquated legal system, has died after a short illness, it has been announced.

Lord Alan Rodger studied at the University of Glasgow, graduating with an MA, and at the University's School of Law, taking an LLB. He became an advocate in 1974 and was Clerk of the Faculty of Advocates from 1976 to 1979. He was a Member of the Mental Welfare Commission for Scotland from 1981 to 1984, and was appointed Queen's Counsel in 1985.He was an Advocate Depute from 1985 to 1988 and was appointed Solicitor General for Scotland in 1989, being promoted to Lord Advocate in 1992, at which time he became a life peer as Lord Rodger of Earlsferry, of Earlsferry in the District of North East Fife, and was appointed to the Privy Council.

Lord Rodger was appointed a Senator of the College of Justice, a judge of the High Court of Justiciary and Court of Session, in 1995, and became Lord Justice General and Lord President in 1996. He was appointed a Lord of Appeal in Ordinary in 2001, upon the retirement of Lord Clyde. He and nine other Lords of Appeal in Ordinary became Justices of the Supreme Court upon that body's inauguration on 1 October 2009.

Among the many rulings Lord Rodger will be remembered for, is that of the famous case where former Edinburgh solicitors, Gordon & Maria Thomson, who were hounded out of the Scottish legal profession by establishment elements and the Law Society of Scotland for taking ‘too much’ of the legal aid business. In a ruling on a petition to the nobile officium, Lord Rodger, then the Lord President, along with Lords Coulsfield & Marnoch, found the Law Society of Scotland, who had rigged an investigation into the Thomsons, and subsequent hearings before the Scottish Solicitors Discipline Tribunal which struck off the Thomsons as solicitors, had not removed allegations of dishonesty which were part of the Law Society’s concerted effort to strike down the Thomson’s popular legal business. The ruling from Lord Rodger and his colleagues on the bench stated :

This petition to the nobile officium by Gordon Thomson and Maria Thomson comes before the court on a motion for a first order for service. Among those upon whom service is sought are the President and Council of the Law Society of Scotland. It appears, however, that a copy of the petition was faxed to the Law Society some days ago and in any event the existence of the petition was reported in the press. The Law Society were accordingly represented at the hearing by Mr. Macdonald, Q.C.

The petitioners were the subject of proceedings in the Solicitors Discipline Tribunal, the hearing in which took place over several days in 1994 and 1995. On 22 March the Fiscal and the petitioners reached a substantial measure of agreement and the proceedings were adjourned until 5 April 1995. After sundry procedure, the Tribunal issued an interlocutor on 7 April and on 8 June 1995 they issued their formal Findings which comprised seventeen numbered paragraphs. In due course the petitioners appealed to this court. Their appeal came before an Extra Division who allowed it and remitted the matter to the Tribunal. In the opinion delivered by Lord Prosser, in a passage which we do not repeat but which was based on the submissions made at the hearing of the appeal, the court indicated that they were not satisfied that all the allegations of personal dishonesty against the petitioners had been withdrawn. In the present petition the petitioners state that the position of the Fiscal at the original hearing before the Tribunal was, and the position of the Fiscal at the new hearing is, that all such allegations have been withdrawn. The petitioners therefore ask the court to exercise the nobile officium and inter alia: "to hold that the Opinion of the Court should be recalled and re-written omitting any imputation of personal dishonesty by either Petitioner and publicised accordingly...."

However great the powers of this court may be, we cannot rewrite history. Nor can any interlocutor recall the words of an opinion or unsay what the court has said in an opinion which has been issued. The petition is therefore self-evidently incompetent.

None the less, as the petitioners point out, the opinion of the court has been published on the Internet and elsewhere. If the Law Society's position is actually that the Fiscal at the original hearing withdrew the allegations of personal dishonesty and that the Society do not allege personal dishonesty, then it is proper that this state of affairs should be given equivalent publicity. In the course of the short hearing we accordingly asked Mr. Macdonald to clarify the position of the Law Society. He readily did so. Based on what he told us, for the avoidance of doubt, we record that the Law Society of Scotland agree that the findings of the Discipline Tribunal issued on 8 June 1995, so far as inferring personal dishonesty on the part of the petitioners, did not reflect the pleas tendered by the petitioners and accepted by the Fiscal and those findings should therefore not have been made by the Tribunal.

Struck off mavericks celebrate legal victoryFormer solicitors Gordon & Maria Thomson were targeted in a fit up by the Law Society of Scotland over their law business. Gordon and Maria Thomson were originally struck off in 1995 after a 16-day tribunal hearing over what many now see as widely fabricated allegations by the Law Society of Scotland of a "substantial catalogue" of professional misconduct. The couple had become widely known through television commercials which featured Mr Thomson in biking leathers, astride a Harley- Davidson motor cycle. They were judged by the Law Society to have been too hungry for fees and to have run their Edinburgh practice in a manner which allegedly brought the profession into disrepute. Their firm, Gordon Thomson & Co, operated from the Sighthill shopping centre in Edinburgh. It also had branch offices, dubbed "law cafes", in Methil and Glenrothes in Fife. In his advertising Thomson portrayed himself as a champion of the underdog, and clients were called "friends". His theme tune was Tina Turner's Simply The Best. The offices were run almost as drop-in centres where members of the public could go for a coffee and a talk with one of the staff. The Law Society condemned this as soliciting clients of other lawyers and thus decided to kill off their business, and practising certificates.

Unbeknown to myself at the time, a firm of Edinburgh solicitors who were representing me in the case of the crooked Scottish Borders solicitor, Andrew Penman, and my attempt to take the Law Society of Scotland to court, had been appointed to wind up the Thomson’s legal practice by the Law Society. One of the firm’s solicitors went onto confess the whole thing had been about money, because many Edinburgh law firms were anxious the Thomson’s were taking their business, and particularly the legal aid money which effectively subsidises some of Edinburgh's most noted, if most useless and sometimes most crooked, law firms.

421Law Society’s Chief Executive Douglas Mill & Philip Yelland, head of Client Relations during the fit up of the Thomsons. It is worth noting that throughout the Law Society of Scotland’s determined pursuit of the Thomsons, its Chief Executive was Douglas Mill, who was forced to resign his position after video footage of a confrontation between Mill & the Scottish Government’s Finance Secretary John Swinney at a 2006 meeting of Holyrood’s Justice 2 Committee was published on the internet. It is also worth noting the same individuals who were wrapped up in the Thomson case, Mr Mill & Philip Yelland, the Law Society of Scotland’s Client Relations & Regulation Chief at the time of the Thomson case, were both also involved in the same highly personalised & bitter pursuit of myself, blocking all my attempts to take Andrew Penman, his law firm Stormonth Darling, the Master Policy,  and the Law Society of Scotland to the Court of Session.

Scotland’s serving & previous Lord Advocates issued their own tribute to Lord Rodger in a Press Release from the Crown Office :

Following the sad death of Alan Rodger, Lord Advocates past and present have paid tribute.

Speaking of Mr Rodger, Frank Mulholland QC, Dame Elish Angiolini QC and Lord Boyd of Duncansby QC issued a joint statement saying: "It is with great sadness that we have learnt of Alan Rodger's death. Those of us who have had the privilege of working with or appearing before him held him in the highest regard.”

"His sharp intellect allied to his humanity and humility made him one of the great Lord Advocate and Lord Presidents. Scotland's legal profession is poorer for his passing. He bore his illness with great courage and has left a legacy of significant jurisprudential thinking which will stand Scotland well for many years to come. Our thoughts are with his family at this sad time."

The Law Society of Scotland issued its own tribute to Lord Rodger

In tribute to Lord Rodger, Cameron Ritchie, President of the Law Society of Scotland said: "Lord Rodger was an eminent and distinguished figure within the Scottish legal profession. He held some of Scotland's most distinguished positions, including Lord Advocate and Lord President, where he demonstrated immense ability and intellect. "His more recent role as a member of the UK Supreme Court; one of only two Scottish Judges served to underline his considerable contribution, not only to the justice system but to society as a whole. Above all he was a great ambassador for the Scottish legal profession and someone who will be greatly missed."

Scotland’s First Minister Alex Salmond, who recently launched highly personalised attacks on the Supreme Court judges over their ruling in the Nat Fraser case, delivered his own commentary on Lord Rodger’s death, saying : “Lord Rodger made an outstanding contribution to public life in Scotland over many years both as a judge and as Lord Advocate. He was held in the highest regard by all those who worked with him in public service, and dedicated himself to the interests of justice during a long and hugely influential career."

Yet in early June, the First Minister and his Justice Secretary, Kenny MacAskill publicly criticised the Supreme Court & its judges, (two of whom were Scottish, Lord Hope and Lord Rodger, now deceased) of being part of a ”court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival”.

Mr MacAskill went on to threaten to withdraw funding for the Supreme Court, saying : “When I go to the Law Society I say that I will not routinely fund ambulance-chasing lawyers. It should be said that I am not going to pay for ambulance-chasing courts. As a Government we have to pay for the Supreme Court of the UK and I think they should recognise that we’ll pay for our fair share of what goes there. But I am not paying money that would come out of the police budget, or prison budget or community payback budget because they are routinely taking cases that we as a country do not think should be going there. He who pays the piper, as they say, calls the tune.”

Sunday, June 26, 2011

Having difficulties, problems with the Scottish Legal Complaints Commission and your solicitor ? You are not alone. Its time you tell someone about it

SLCCHave you complained about a lawyer ? The Scottish Legal Complaints Commission deals with nearly 1000 people a year, most cases are unresolved. AROUND ONE THOUSAND PEOPLE A YEAR since October 2008 who have been ripped off by Scotland’s legal profession have been placed in the unenviable position of having to complain about their solicitor to the Scottish Legal Complaints Commission (SLCC), the so-called ‘independent’ regulator of complaints against Scottish solicitors which has, in its three years of existence, upheld only one single complaint against an unidentified solicitor, and has made not one single referral to the Scottish Solicitors Discipline Tribunal, a worse record than even the Law Society of Scotland.

Many of these complaints to the SLCC come from individuals with families or dependants, who are also caught in whatever sting, rip-off or embezzlement their solicitor has committed against them, thus greatly enlarging the numbers of people affected by the actions of ‘crooked lawyers’ in Scotland every year, well into the thousands, yet no statistics are kept, no help is given to these people, there is no one to speak for them against the legal profession, and worst of all, the legal profession will see to it most or all complaints are buried, and never reach a court, where, lets face it, the chances of obtaining a fair hearing against a pack of lawyers in a Scottish court is almost impossible to achieve.

Scottish Law Reporter are currently looking at the Scottish Legal Complaints Commission and its many failures in the field of complaints against solicitors and are looking to hear from people who have dealings with, have been treated  or have been sent to the Law Society of Scotland by the SLCC. I am part of the project, so you can be assured of its pro-consumer intentions.

Given my coverage of the SLCC and many investigations which have revealed a notoriously anti-client culture at the law complaints quango, I would encourage anyone who has previous or current dealings with the Scottish Legal Complaints Commission to contact Scottish Law Reporter at, giving them a summary of your case, how you have been treated and what happened with your complaint, if anything. Your information will be treated in the strictest confidence. If however you wish your case to be published, make sure you say so in whatever information you send in.

Monday, June 20, 2011

Supreme Court to decide if Asbestos related Pleural Plaques ‘are good for you’ as Insurers challenge Scottish Govt & Holyrood's law making powers

sgspInsurers challenge over asbestos compensation law may provoke new rift over Supreme Court powers say experts. A NEW RIFT between the Scottish Government & the UK Supreme Court over the extent of the London based court’s powers to affect Scottish cases & law making powers may come in the next few weeks (as reported in the Sunday Herald : Hammer of the Scots) if a ruling in the latest stage of the Insurers challenge against the Damages (Asbestos-related  Conditions) (Scotland) Act 2009, now before the Supreme Court, goes against the Scottish Parliament’s ‘honourably intended’ law to allow victims of asbestos contamination in Scotland who have developed the condition known as PLEURAL PLAQUES to receive compensation after a 2007 House of Lords ruling in the Insurance companies favour ended the right to compensation for pleural plaques across the UK.

The Insurance companies took issue with the Scottish Government’s introduction of legislation in the Scottish Parliament to reverse the House of Lords decision, lobbying against its passage through the Scottish Parliament and then unsuccessfully fighting to have it overturned in the Scottish Courts. This latest challenge by the Insurers to have the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 overturned on Human Rights (ECHR) grounds or on common law grounds, asks the Supreme Court :

(1) Whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (“the 2009 Act”) infringes the appellant insurance companies’ right under Article 1 of Protocol 1 of the European Convention on Human Rights and is thereby outwith the legislative competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act 1998 (“the 1998 Act”);
(2) Whether the Court of Session as part of its supervisory jurisdiction may review and reduce legislation passed by the Scottish Parliament on grounds other than those set out in the 1998 Act;
(3) If such review is available, whether the 2009 Act is invalid on irrationality grounds.

The ruling from the Supreme Court, expected in August will be interesting in that even if its judges find the Scottish 2009 act competent in terms of ECHR legislation and find no breeches of the insurance companies rights under Article 1, the Supreme Court may be put in a position on ruling whether the 2009 Damages Act, or indeed any legislation passed by the Scottish Parliament can be challenged under common law, a nightmare scenario which is bound to stir up more controversial comments about the Supreme Court’s role by Scottish politicians and the First Minister when the Supreme Court eventually makes known its decision in the case.

More information on the bitter, costly battle over the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 was revealed today in a response to  a Freedom of Information request to the Scottish Government who have revealed a massive £341,857.79 of public funds have been spent on legal fees defending against the Insurers, who have already lost two challenges against the new law at Scotland’s Court of Session. The cost to taxpayers is likely to rise whatever the outcome, especially if the UK Supreme Court rules in the Insurance companies favour.

I reported earlier on the Insurers failure to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009 HERE, the first hearing of the case in the Court of Session’s Outer House (Lord Emslie’s 2010 dismissal of the Insurers case) and the second challenge in the Inner House (Lord Hamilton’s dismissal of the reclaiming motion).

Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy) were represented at the Court of Session by the Dean of Faculty himself, Richard Keen, and Scots law firm Brodies LLP. However, the big name legal team proved to be the big failure in the Scottish Courts which most people had hoped for and the Insurers failed to have the 2009 act of the Scottish Parliament struck down.

The Judiciary of Scotland website reported on the Lord President's final ruling of earlier this year, stating : The First Division of the Court of Session has issued its judgment in the above case, in which the petitioning insurers (AXA and Others) challenge the lawfulness of an Act of the Scottish Parliament – the Damages (Asbestos-related Conditions) (Scotland) Act 2009.  That Act provides that asbestos-related pleural plaques, and certain other asbestos-related conditions, constitute personal injury which is not negligible and is therefore actionable under Scots law.  This statutory provision in effect reverses, for Scotland, the decision of the House of Lords in Rothwell v Chemical Insulating Co Ltd.

The challenge was on two bases:  first, that the legislation was unlawful at common law and, secondly, that it infringed the insurers’ property rights under Article 1 of Protocol 1 to the European Convention of Human Rights.  The court has rejected the challenge at common law.  As to the challenge based on the Convention rights, it has held that the insurers’ rights are interfered with, but that in the whole circumstances that interference was justified.  It has, accordingly, rejected the challenge also on that ground.

The passage of the asbestos compensation laws at Holyrood during 2008 saw legal representatives for the Insurers tell MSPs at the Justice Committee that Pleural Plaques, an asbestos related condition “were good for you”, a statement widely reported in the media along with VIDEO FOOTAGE from the Scottish Parliament.

Dr Pamela Abernethy of Edinburgh law firm Simpson & Marwick & the Forum of Insurance Lawyers told MSPs : ‘plaques are a good thing'


Asked for comment on the Insurers Supreme Court challenge to widely supported & what many regard as a positive piece of legislation from the Scottish Government & Scottish Parliament, a Scottish Government spokesman said: "The Damages (Asbestos-related Conditions) (Scotland) Act was passed with overwhelming support in the Scottish Parliament, offering comfort to people with pleural plaques that they can claim compensation for the condition. The Act was found to be legal by the the Court of Session and has now been referred to the UK Supreme Court.”

The spokesperson continued : “Given that the case is currently live, it would be inappropriate to comment further."

Should the UK Supreme Court be able to rule on the eligibility of the Scottish Parliament to make legislation particularly when the vested interests of big business with easy access to legal teams and never ending finance can buy access to justice and possible changes to Scots law when others cannot ? One thing is for sure, if it does, we can expect a barrage of criticism from all quarters against its authority.

Here we certainly have a case which may prove to some there is no clear cut position on whether the Supreme Court is good or bad for Scotland in its current format .. and indeed, some may be left wondering whether the Human Rights of big business to keep its profits instead of paying out compensation to victims is indeed, a human rights issue or not.

Personally, I can think of a few other Human Rights cases in Scotland more deserving of the courts time, but then again, the people I am thinking of have little or no access to legal representation … unlike the Insurers who have.

My previous coverage of the Scottish Government’s 2009 asbestos compensation legislation is here : Damages (Asbestos-related Conditions) (Scotland) Act 2009 - The story so far

Friday, June 17, 2011

First Minister Alex Salmond ‘could rely on Crown Immunity’ in row over Supreme Court comments & legal action threat from Human Rights solicitor

Alex_SalmondScotland’s First Minister may rely on Crown Immunity to avoid possible court challenge by solicitor. THE ROW over Alex Salmond’s comments on rulings from the UK’s Supreme Court took another twist today as senior legal figures claimed CROWN IMMUNITY for Scottish Ministers may come to the rescue of Scotland’s First Minister, Alex Salmond in the issue over comments the First Minister made against Professor Tony Kelly, who Mr Salmond accused in an interview for Holyrood magazine of making “an incredibly comfortable living by trailing around the prison cells and other establishments of Scotland trying to find what might be construed as a breach of human rights of an unlimited liability back to 1999”.

Mr Kelly, a solicitor whose clients have included the man convicted of the bombing of Pan Am Flight 103 over Lockerbie Scotland in December 1988, has threatened to bring legal action in the English courts against the First Minister as reported in yesterday’s Herald newspaper. However if Crown Immunity is claimed by the First Minister, it is unclear if the case could proceed.

The Herald newspaper yesterday reported : “Human rights solicitor Professor Tony Kelly claims Mr Salmond “has called into question my professional integrity”. And he added: “With regret, I have had to take legal advice and following upon that, given the nature of attacks upon me, I have decided to formalise my opinion.”. Today’s Herald newspaper reports Mr Salmond has refused to apologise for any of his comments made on the Supreme Court, its judges, rulings and comments made against Mr Kelly.

In the interview for Holyrood magazine, Mr Salmond said of Mr Kelly : “You are talking about giving thousands of pounds going to people like Beggs, for example. If a system does that then it falls into total and utter disrepute because there is not a single person, outwith Professor Kelly [Tony Kelly, the human rights lawyer] who was the instigator of many of the actions, that believes that the judicial system is there to serve their interests and to make sure they can make an incredibly comfortable living by trailing around the prison cells and other establishments of Scotland trying to find what might be construed as a breach of human rights of an unlimited liability back to 1999 and that is what we were faced with.”

Mr Salmond continued : “The judicial system does not exist to serve Professor Kelly, it exists to serve the people and any judicial system which allows that to happen would fall into disrepute and what’s more, it costs lives because if you take £100m out of the justice budget you cost lives; less police, less courts, less effective justice and incidentally, less Legal Aid and it is an inevitable consequence of that sort of thing.”

In the same interview, Mr Salmond also attacked Lord Hope, a Scottish judge on the Supreme Court, saying : “All I would say to Lord Hope is that I probably know a wee bit about the legal system and he probably knows a wee bit about politics but politics and the law intertwine and the political consequences of Lord Hope’s judgements are extreme and when the citizens of Scotland understandably vent their fury about the prospect of some of the vilest people on the planet getting lots of money off the public purse, they don’t go chapping at Lord Hope’s door, they ask their Parliament what they are doing about it. I am perfectly happy if Lord Hopes wishes to exercise his freedom of speech and I hope he is happy with mine but at least I went to the bother of being elected, it may be an inconvenience but none the less has to count for something.”

In response to continuing criticisms over the First Minister’s comments on the Supreme Court and Lord Hope, and Professor Kelly, the First Minister said : "I conducted the interview with Holyrood magazine two weeks ago when we were engaged in a vigorous debate on these matters. Since then I have appointed, under Lord McCluskey, a panel of people of eminence and expertise to advise this Parliament, and then to have their views debated in this Parliament so we can address the underlying issue. I think this is the way we should do this.”

Mr Salmond continued : "The integrity of the criminal law of Scotland is a matter of concern. It was never meant to be second guessed in the way that's happening at the present moment. "As well as a right of free speech, we have a duty as parliamentarians to articulate the public concerns and try and bring proper remedy. It is not, as Iain Gray represents it, that everyone should have human rights. It is whether this Parliament, this jurisdiction, this legal system stands in equality with every other jurisdiction in Western Europe."

Legal insiders today claimed Mr Salmond as a Scottish Minister may rely on “Crown Immunity” from any court action brought against him, alleging the issue had already been discussed at senior levels of the Government.

A legal source said : “Mr Salmond like all Scottish Ministers, has the availability of Crown Immunity open to him should he require to use it. However the irony of Scotland’s First Minister who has an ultimate goal of independence relying on Crown Immunity to walk away from litigation brought by a solicitor who did nothing other than represent his clients on Human Rights issues will be a sad reflection on the legal system and leave Mr Salmond open to continuing widespread criticism on legal issues.”

The legal source pointed out Mr Kelly’s law firm, Taylor & Kelly already have a track record on cases involving Crown Immunity in post-devolution Scotland where the Scottish Government had lost rulings on its use of Crown Immunity defending previous cases brought by Taylor & Kelly.

Pressed on a statement the use of Crown Immunity amid rumours in legal circles Mr Salmond would claim it if faced with legal action from Professor Kelly, the Scottish Government said : “We do not wish to be drawn on the issue of Crown immunity.”

Yesterday, the Law Society of Scotland & Faculty of Advocates issued a joint statement condemning the First Minister’s remarks against senior members of Scotland’s legal profession and the judiciary.

Responding to recent comments from the First Minister; Richard Keen, dean of the faculty of advocates and Cameron Ritchie, president of the Law Society of Scotland said : "The independence of our judicial system and the need to respect the rule of law are fundamental aspects of Scottish society, as they must be of any democratic society. This is affirmed by the Judiciary and Courts (Scotland) Act, an Act of the Scottish Parliament which obliges the First Minister and the Justice Secretary to uphold the independence of the judiciary, including the Supreme Court of the United Kingdom . Our judges must be free to decide cases independently, according to law and upon evidence. Any attempt to influence the outcome of litigation by reference to political wishes or a politician's perception of popular opinion is a challenge not only to the courts but to the rule of law.

The statement continued : "The Scottish Government talks about the unintended consequences of establishing the UK Supreme Court. The First Minister and the Justice Secretary need to carefully reflect on the consequences of what are perceived to be repeated and now highly personal attacks on respected members of the legal profession. Such comments contribute nothing to any sensible debate on how best to provide a justice system that properly and effectively meets the needs of our changing society."

Mr Salmond’s attack on the legal profession and members of the judiciary on issues of Human Rights rulings & criminal law may well strike a chord with some, however as a journalist & long time law reform campaigner, I have to wonder why does the First Minister not make similar criticisms or public attacks on the now very obvious corruption at the Law Society of Scotland who, as the regulator of Scotland’s legal profession continue to allow rogue solicitors to work as normal while hundreds, now thousands of ruined clients are denied any justice, any access to justice and any chance of recovery of millions of pounds stolen each year by solicitors from their clients.

John SwinneyJohn Swinney’s constructive criticism of the Law Society over corruption at the Master Policy earned him much respect. Perhaps Mr Salmond can learn a thing or two about criticising the legal profession from his number two, John Swinney, who, very singularly, took on the Law Society of Scotland at its highest levels at the Justice 2 Committee in 2006 and exposed the word of the Law Society’s Master Insurance Policy and its targeting of solicitors clients who attempted to pursue their crooked lawyers to the courts. The scandal revealed by Mr Swinney eventually led to the resignation of the Law Society’s then Chief Executive Douglas Mill. Mr Mill announced his resignation in January 2008 which I reported on HERE after video footage of the heated exchanges between Mr Swinney & Mr Mill were published on video sharing website You Tube in December 2007.

John Swinney’s attack on the Scottish legal profession’s handling of client complaints & damages claims was far more relevant & to the mark than Mr Salmond’s raging against the Supreme Court.

If Mr Salmond wants to take on the Scottish legal profession, there are far more important issues & scandals for the First Minister to raise in public of how the legal profession & the Law Society affects & treats Scots when it comes to access to justice, than his current criticisms of Human Rights rulings of the Supreme Court in London.

If Mr Salmond did choose to use his office & Holyrood majority to clean up Scotland’s legal profession, cure its corrupt regulatory practices (including the useless Scottish Legal Complaints Commission) and resolve the legal profession’s injustice against thousands of clients over the decades, a matter I once brought before Holyrood’s Petitions Committee, which was in turn killed off by Law Society demands, well, that would be another subject entirely .. and one worthy of considerable support.

Mr Salmond would also do well to bring forward the full implementation of the Lord Justice Clerk Lord Gill’s recommendations in the Scottish Civil Courts Review, which for now, is itself under review as I reported HERE.

Wednesday, June 15, 2011

COVER UP : Reduce accountability, FOI compliance for complaints bodies says Scottish Legal Complaints Commission Chair Jane Irvine

Jane IrvineNo records were kept of SLCC Chair Jane Irvine’s presentation to delegates which targeted Freedom of Information requests, media & complaints evidence. JANE IRVINE, the Chair of the Scottish Scottish Legal Complaints Commission (SLCC) has told a conference composed of delegates there should be a reduction in Freedom of Information requirements for complaints handling bodies such as the Scottish Legal Complaints Commission and also there should be a ‘drive to resolution & standards improvement rather than gathering statistics & evidence from complaints made by members of the public against Scottish solicitors & law firms.

Ms Irvine’s presentation on some of the ‘hot topics’ which have marred the SLCC’s three years of complaints handling (or lack of it) came to light in a recently published online document where the SLCC Chair gave a presentation prepared by the White Paper Conference Company on complaints handling to an undisclosed audience on 18 June 2010. The full presentation can be viewed or downloaded here : Jane Irvine Presentation on SLCC June 2010

Among a series of discussion points, Ms Irvine said to the gathered audience “finality” should be promoted in complaints handling as the SLCC could not expect everyone to be happy with outcomes and there should be “Faster, firm but fair endings to complaint services”. Ms Irvine went onto say there should be a “drive to resolution & standards improvement - not gathering stats & evidence”, which may leave some in the consumer world wondering if the SLCC is more interested in wiping the slate clean each time it resolves a complaint, rather than maintaining a database of statistics & evidence which could be made available to protect consumers who have yet to fall into a solicitor-client relationship gone sour.

Margaret Scanlan - Called to the Bars - Sunday Mail  15 March 2009 emailJane Irvine anxious to avoid further FOI scandals at the SLCC including boozed up & prejudiced board members. During the presentation, the thorny topic of Freedom of Information came up, and unsurprisingly, given the many scandals at the Scottish Legal Complaints Commission which have been revealed through very resistant Freedom of Information disclosures, some ordered by the Scottish Information Commissioner, Kevin Dunion, Ms Irvine came down hard on FOI legislation and put forward proposals to lower the the requirements of Freedom of Information for complaints handling bodies such as the SLCC, to keep out the prying eyes of the media into the world of ‘crooked lawyers’ and poor complaints regulation.

In an example of information ordered by Scotland’s Information Commissioner, it was revealed the Scottish Legal Complaints Commission's board members regularly operated on an anti-client bases, feeling so free to do so they even included insults in their email banter between colleagues : FOI Chief Dunion orders Scottish Legal Complaints Commission to release board member’s anti-client jibes, Master Policy study details

In another instance, FOI revealed some of the SLCC’s board members had admitted to being too drunk to know what was going on : MacAskill must clean up law complaints body as members 'booze culture conduct' reflects lack of discipline & will to investigate crooked lawyers although while being out on the razzle, they still managed a few more insults towards clients ruined by their solicitors.

0011Margaret Scanlan was ‘on the razzle again’ while clients of ‘crooked lawyers’ burned. Email correspondence obtained under Freedom of Information laws revealed SLCC board member Margaret Scanlan, a solicitor with Russells Gibson McCaffrey in Glasgow, confessed to the Commission she was suffering from the effects of a hangover after being “'out on the razzle again last night”. Stunningly Scanlan in her emails then went on to tear apart consumers hopes the SLCC would fulfil its intended monitoring role of the ‘crooked lawyer compensation schemes, operated by the Law Society of Scotland, known as the Guarantee Fund & Master Insurance Policy which are designed to (but do not) protect consumers funds from crooked lawyers who steal money or mishandling client’s legal affairs. Margaret Scanlan : “Was out on the razzle, again, last night so bit cross-eyed this morning. Please excuse any consequent gibberish. Here are my comments on Master Policy and Guarantee Fund…. The consultation should be viewed with some caution. It provides very little by way of a sound evidential basis for us to do anything…. One unidentified responded … reports complaints about difficulty in finding solicitors to pursue a claim under MP (Master Policy). Apart from fundamental misunderstandings about MP which is for benefit of practitioner and in respect of which consumer has no rights ..”

0012Margaret Scanlan condemned Guarantee Fund claimants as “chancers”. However, further emails from Margaret Scanlan have now emerged which depict the same Law Society style 'anti-consumer-anti-claims culture' operating at the supposedly independent Legal Complaints Commission, where Scanlan stunningly labels claimants to the Guarantee Fund as "chancers" indicating she may have personal knowledge of cases, despite the fact that claims to the Guarantee Fund are supposedly confidential. Margaret Scanlan : "The only complaints I am aware of on the functioning and extent of the GF have come from corporate bodies eg lending Institutions whose claims have largely not been entertained on basis that is not what GF is for. This includes our friend **** (censored) whose cause is vigorously esposed by **** (censored) but is a complete chancer in my opinion."

Frequent Flyers SLCCSLCC’s David Smith expressed anti-client jibes in emails around the anti-consumer law complaints quango. Among the papers ordered to be disclosed in a decision published by Scotland's Information Commissioner Kevin Dunion are emails containing anti-client jibes from one of the SLCC’s board members, David Smith who was personally appointed to the SLCC by Justice Secretary Kenny MacAskill. Mr Smith, a lawyer who served much of his career at law firm Shepherd & Wedderburn, who themselves often act for the Master Policy in protection of questionable solicitors against negligence claims, referred to participants in the Master Policy survey & deceased clients who had committed suicide as a direct result of involvement with the Master Policy, as “Frequent flyers”, a term (among many unprintable) apparently widely used among SLCC Board members & staff against anyone who submits complaints against solicitors.

A legal insider said today there were rumours the Scottish Legal Complaints Commission were pushing the Scottish Government to take them out of compliance with Freedom of Information legislation, a move apparently supported by the Law Society of Scotland which itself is conveniently exempt from FOI laws.

He said : “I think you will find the situation with regards to the SLCC’s compliance with FOI legislation has moved on in the past year and there have been informal discussions on how to limit & reduce FOI requests as well as discussions to remove its FOI compliance.”

An official with one of Scotland’s consumer organisations, commenting on the idea to reduce or remove the SLCC’s FOI compliance said : “Any attempt to pull the SLCC out of FOI laws would understandably be viewed by most consumers as a cover up of a very unfair complaints process against the legal profession.”

She continued : “Perhaps the SLCC should get on with what the public expected it to be doing instead of shirking from its responsibilities at every turn. We are now in its third year yet there is still no monitoring of the Master Policy or Guarantee Fund and as we have seen from their own statistics, the SLCC have a very small success rate on upholding complaints which must be questioned after all this time & effort was put into creating it in the first place.”

Ms Irvine also put forward a list of exclusions of complaints where issues such as Time limits, Vexatious, Frivolous, Totally without merit, Trivial, Low value, Unlikely to provide public value, all of which were identified as issues to be considered for closing complaints. Several times during the presentation, Ms Irvine promoted bringing back terms into the SLCC’s ‘mission’ such as “may” or “may deal” for the SLCC to cope with consumer complaints and its responsibilities under the Legal Profession & Legal Aid (Scotland) Act 2007.

A Scottish Government insider today pointed out it was the use of the word “may” in Section 39 of the Legal Profession & Legal Aid (Scotland) Act 2007, which has effectively rendered the SLCC’s prized monitoring powers of the Master Policy & Guarantee Fund as “a useless gesture”.

He said : “Here we have a case of the use of a single word effectively writing off a key public expectation of the SLCC. The SLCC has talked about monitoring the Master Policy & Guarantee Fund for the past three years yet each time enquiries have been made to the SLCC about its monitoring role, the SLCC have responded by claiming it is a discretionary power and that they “may” monitor the issues under discussion rather than having any obligation to oversee the highly contentious Master Policy.”

He continued : “Clearly after three years and lengthy discussions at the SLCC on the Master Policy, they dont want to monitor it in any way whatsoever.”

Section 39 of the Legal Profession & Legal Aid (Scotland) Act 2007 states :

(1) The Commission may monitor the effectiveness of—

(a) the Scottish Solicitors Guarantee Fund vested in the Society and controlled and managed by the Council under section 43(1) of the 1980 Act (“the Guarantee Fund”);

(b) arrangements carried into effect by the Society under section 44(2) of that Act (“the professional indemnity arrangements”);

(c) any funds or arrangements maintained by any relevant professional organisation which are for purposes analogous to those of the Guarantee Fund or the professional indemnity arrangements as respects its members.

(2) The Commission may make recommendations to the relevant professional organisation concerned about the effectiveness (including improvement) of the Guarantee Fund, the professional indemnity arrangements or any such funds or arrangements as are referred to in subsection (1)(c).

(3) The Commission may request from the relevant professional organisation such information as the Commission considers relevant to its functions under subsections (1) and (2).

(4) Where a relevant professional organisation fails to provide information requested under subsection (3), it must give reasons to the Commission in respect of that failure.

John SwinneyHad John Swinney had his way in 2006, the SLCC would have been monitoring the Law Society’s corrupt Master Policy. Clearly an overuse of the word “may'” has allowed the SLCC to maintain a distance from doing any serious monitoring work of the Law Society of Scotland’s notoriously corrupt Master Policy. However, had the now Cabinet Secretary for Finance John Swinney’s amendments to the LPLA Bill been accepted when he proposed them during his time in opposition at Holyrood in late 2006, the SLCC would have had statutory monitoring powers of a much more robust nature than are now contained in the LPLA (Scotland) Act the vagueness of which the SLCC are effectively using to stay away from the root of the regulation problem.

On a more positive note, the presentation by Ms Irvine also debated  the use of publicity to name & shame where poor complaints handling exists, although in the past three years, the SLCC has not named any solicitor or law firm for poor complaints handling. The media came in for criticism during discussion of “Naming both parties – Confidentiality, WEB blogs & media dramas v transparency”, although to-date, one year on, again the SLCC has chosen not to identify any ‘crooked lawyers’ brought to its attention, despite the organisation taking in around 1000 complaints a year.

A Freedom of Information request was made to the Scottish Legal Complaints Commission asking for more information about the presentation and some of its key elements, including Ms Irvine’s ideas to restrict or interfere with Freedom of Information requests from the media or other sources.

The SLCC responded, claiming it held no information on the discussions contained in Ms Irvine’s presentation.

Upon a request for a review of the decision, the SLCC admitted it did not hold a delegate list for the conference which their Chair was speaking to, nor did the SLCC hold any notes or records of the conference expect the presentation provided online by the White Paper Conference Company.

Ms Irvine’s presentation listed improvements to the SLCC, now in its third year of complaints handling, as “Accessibility – complaints are valued & recorded at every level. General recognition of three tier system principle. Gateway systems, case handling sophistication, expertise in resolution & investigation, recognition lessons can be learned – all much improved.” yet the SLCC has still only managed to uphold one single complaint to-date and consumers who have contacted the SLCC in attempts to file complaints against their solicitors all tell a story of an organisation which is “very consumer unfriendly” to the point many have expressed a feeling of hostility towards clients.

Clearly this is the way the Law Society of Scotland want regulation of complaints against the legal profession to be – very consumer unfriendly, anti client, and light touch with no powers, three statements of fact which describe the Scottish Legal Complaints Commission very effectively.

Friday, June 10, 2011

Scottish Arbitration : A ‘World Class Disaster’ with Law Society, Advocates, Surveyors, Marsh & Fettesgate justice, backed by Scottish Government

Law Society & Scottish GovernmentScottish arbitration backed by Law Society & Scottish Govt of no use to clients, say insiders. SCOTTISH ARBITRATION, a new ‘business’ which has sprung up in the wake of the Arbitration (Scotland) Act 2010 backed by the Scottish Government, with participants such as the Faculty of Advocates, the Law Society of Scotland and the Royal Institute of Chartered Surveyors, is “a seedy world full of unaccountable self regulators, dishonest insurance companies and suspect individuals” say legal insiders & consumer groups, warning those who may be considering using arbitration or bringing their arbitration business to Scotland “to forget it and look elsewhere”.

john_murray_qcScottish Arbitration Centre appointed ex Court of Session judge who resigned over ‘officially unexplained allegations’. The recommendation to avoid using the very much self regulator dominated arbitration market in Scotland comes in the wake of a recent report by Scottish Law Reporter, revealing a former Court of Session judge, Lord Dervaird, aka Prof. John Murray QC the judge who STUNNED the Scots legal establishment in the early 1990s by resigning in a cloud of rumours connected to the FETTESGATE ‘Gay Justice Conspiracy' scandal in which several journalists were arrested to cover up allegations against senior members of Scotland’s judiciary, has been appointed as an Honorary Vice President of the Scottish Arbitration Centre, a ‘joint venture’ opened by the SNP’s Fergus Ewing and backed by the Scottish Government, the Chartered Institute of Arbitrators, the Faculty of Advocates, the Law Society of Scotland and the Royal Institute of Chartered Surveyors.

marshDisgraced US insurers Marsh operating here as Marsh UK insure many backers of Scottish Arbitration Centre. It can also be revealed that most or all of the organisations participating in Scottish Arbitration market have links to the disgraced insurers, Marsh, who were convicted in the United States of market rigging. Marsh also arrange professional indemnity insurance for the Law Society of Scotland through its notoriously corrupt Master Insurance Policy, itself linked to deaths in an independent report, and also provides the same insurance to Scotland’s Faculty of Advocates. Marsh are also used by many departments of the Scottish Government, local government and the private sector in Scotland for insurance coverage so if your dispute involves a profession insured by Marsh, a fair hearing in arbitration may be very hard to obtain.

Fergus Ewing Jim Mather Scottish Arbitration CentreFergus Ewing, Jim Mather & Brandon Malone nab create the arbitration business. The Scottish Arbitration Centre made the announcement of the appointment of ex judge Lord Dervaird, stating “A former Court of Session judge, Lord Dervaird has experience as an arbitrator and as counsel in numerous international arbitration proceedings. He wrote the National Report, Scotland, in the ICCA International Handbook on Commercial Arbitration in 1995. He is Emeritus Professor at the University of Edinburgh, and lectures on international arbitration at London (King’s College) and Strathclyde Universities.” No mention of exactly why Lord Dervaird was “a former Court of Session judge” was made in the Arbitration Centre’s media release, something potential clients may wish to know.

According to Scottish Law Reporter : The Scottish Arbitration Centre came about after a specific proposal for an arbitration centre was presented by Brandon Malone, solicitor advocate, on behalf of the Scottish Government’s steering group at a meeting last year between Fergus Ewing and representatives of the bodies authorised to act as Arbitral Appointments Referees (AARs) under the Arbitration (Scotland) Act 2010. Mr Malone, who also happens to be Chairman of the Scottish Arbitration Centre, has been involved with the SNP for many years and was the party’s “Assistant Spokesperson on Justice & Equality” in the late 90’s, famed among other things yet to be published, for writing letters in the Scotsman newspaper defending the legal profession and its stance on regulation.

The much hyped Arbitration (Scotland) Act 2010 pushed through by the SNP Scottish Government aimed to promote domestic & international arbitration under Scots Law and seeks to promote Scotland as a place to arbitrate disputes, legal & otherwise. In the over hyped campaign, the then Communities & Justice Minister Fergus Ewing claimed : “Scotland is now well positioned to be a 'world leader in the lucrative international arbitration scene”.

This latest move on the part of the SNP Scottish Government to create a new business dominated and almost exclusively controlled by Scotland’s closed shop legal services sector, comes on the heels of a FAILED campaign in 2008 by Justice Secretary Kenny MacAskill to encourage foreign firms & clients to bring litigation to Scotland. Wisely, international clientele heeded warnings on the perils of the Scottish justice system and stayed away from Mr MacAskill’s bid to attract litigants to the Scottish courts, a campaign which flopped within a few months.

Critics of the Arbitration (Scotland) Act 2010 and its passage through the Scottish Parliament point out the legislation was put through Hollyrood at the suggestion of the Scottish legal establishment to corner the arbitration market, seen as a lucrative business to be controlled before ‘outside elements’ took it over. The legislation seeks to increase the number of arbitrations under Scots Law while also increasing the level of business for arbitration advisers and the number of appointments of arbitrators based in Scotland, as long as they are agreeable to, or members of, or are under the control of the same organisations who are in partnership with the Scottish Arbitration Centre.

jamie_millarFormer President Jamie Millar welcomed Law Society’s new business venture in the guise of independent arbitration. Speaking at the time of the Scottish Arbitration Centre’s opening, Jamie Millar, the former President of the Law Society of Scotland admitted the whole idea of Scottish arbitration was a Law Society sponsored operation. Mr Millar said : "At the request of our members, the Society campaigned for new arbitration laws and was actively involved in the passage of the Arbitration (Scotland) Act 2010 through the Scottish Parliament. We have long supported the idea of having a focal point to promote the value of arbitration to Scottish businesses so are delighted to see that the new opportunities the act presents are being seized, and that international arbitrations are being encouraged to locate in Scotland."

Faculty of Advocates crestThe Faculty of Advocates were also keen to corner lucrative arbitration business. Alan Dewar QC, Treasurer of the Faculty of Advocates, welcomed the plan, saying : "The Faculty of Advocates is pleased to have participated in the planning and preparations leading to today's launch of the Scottish Arbitration Centre. It looks forward to playing its part in promoting arbitration (both domestic and international) as a useful, cost-effective alternative to litigation. Quite apart from being a beautiful country to visit, Scotland is ideally placed to offer a first class arbitration service in terms of expertise, facilities and surroundings. The Faculty is delighted that the Centre is to be located at Dolphin House in the Old Town of Edinburgh, very close to the Faculty's base."

An official from one of Scotland’s consumer organisations said today the arbitration market in Scotland appears to be cornered & controlled by the legal profession and elements of other professions who themselves are the biggest causes of cases which end up requiring arbitration.

She said : “This is clearly an attempt by a few professions to control the arbitration market for themselves.”

She continued : “There is a danger here where consumers may be fooled into thinking that taking their case to arbitration is a faster, cheaper way of obtaining a resolution to their problem rather than embarking on costly litigation in Scotland’s courts. However those same consumers may not be aware those who are in the arbitration market are backed by the same professions and even the same indemnity insurance companies they already have problems with.  I would therefore advise consumers to view arbitration with a degree of suspicion otherwise they may end up being bitten twice.”

A client who contacted Diary of Injustice about a long running high value negligence case against an Edinburgh law firm has recently been urged by his own solicitors to take his case to arbitration instead of going to court. He was suspicious of the move and asked for advice.

He said : “My own lawyers now want me to take my case to arbitration instead of the Court of Session but I don't believe arbitration will reveal the extent of my solicitor’s negligence and how a large sum of money disappeared from my business. I want a ruling because my former lawyer is a thief and a liar. I also don't want my huge financial loss turned into a paltry settlement.The money is missing and it is my first lawyer’s fault, it should be repaid and he should be found out in court.”

He continued : “I wondered why this sudden rush after my own lawyers worked on my case for three years and said I had a good chance of winning. After I found out the Law Society of Scotland were involved in the arbitration scheme and that it has something to do with the Master Policy insurers who are the defenders in my court action, I asked my lawyer who very reluctantly confirmed the facts. He admitted they were all tied up with the same insurers. I will be staying well away from this so-called arbitration, thanks.”

A Scottish Courts insider said today it would be foolhardy for foreign litigants to come to Scotland on the back of claims of legal expertise which do not exist.

He said : “If the Scottish Government wish to attract litigation or arbitration to Scotland they should first address the important recommendations raised by Scotland’s Lord Justice Clerk, Lord Gill in the Civil Courts Review to ensure Scots civil law is fit for purpose. Currently it is not and we now have a situation where the Scottish Government would rather rush through legislation to suit the ends of business & vested interests than reform the civil justice system upon which the likes of civil litigation & arbitration depends.”

Whether you are a company, or an individual, make sure you know the full facts before becoming involved in the Scottish version of arbitration, which more often than not is controlled & financially supported by the same industry or profession you case or dispute involves. Disputes arbitrated by vested interests do not guarantee a fair hearing, rather they guarantee only an unfair outcome.

If you are being pushed into arbitration in Scotland by professionals who themselves stand to make a lot of money out of it, or perhaps want something covered up while making sure you don't really get the full measure of what a court ruling will provide, stay away from it. Just remember which particular industries & self regulators control the Scottish arbitration market, a state of affairs which clearly makes Scottish arbitration nothing less than a World Class Disaster.

Background of Fettesgate :

Fettes thief cons gay judges probe The SunProbe into gay justice scandal was itself discredited after further newspaper allegations. Fettesgate was the term given to a major scandal involving the Lothian and Borders Police force in the 1990s, from its Fettes Avenue headquarters near Fettes College in Edinburgh.The "Fettesgate scandal", as the incident was quickly called, began in the early hours of 19 July 1992, when burglars spent three hours in the Fettes headquarters of the police force. The break-in, through an unsecured window of the Scottish Crime Squad’s ground-floor offices in the HQ building, led to several confidential documents being stolen and Animal Liberation Front slogans being sprayed on the walls.

Cases for ConcernMany claimed Police were directed to arrest journalists to cover up scandal in the judiciary. Two journalists who reported on the incident after receiving tip-offs were arrested; Alan Muir, a reporter for The Sun, wrote a story based on an anonymous telephone call on the day of the incident, and was detained for six hours, and Ron McKay, a journalist for Scotland on Sunday found documents after another anonymous call six days later. When he wrote a story based on the documents, he was arrested at dawn, while at his girlfriend's house in Chatham, Kent. He was held overnight, and charged with reset, the crime under Scots law of receiving stolen property. The charges were dropped six months later. The stolen documents concerned the police's use of "telephone metering"; recording the destination and duration of suspects' telephone calls, without listening in on them. Although this was regarded as legal, the controversy led to a debate about privacy and what safeguards were needed regarding information gathered in this way.

How I Mugged Man from the Crown Office the Sun 18 December 1992Lothian & Borders Police were branded incompetent and Animal Liberation Front were blamed to take heat off scandal hit judiciary. The theft of such sensitive material from what should have been such a secure place, under the very noses of the police, led to questions being asked about the competence of the Lothian and Borders force to take charge of the European summit in Edinburgh later that year. It transpired that the Animal Liberation Front had not been involved in the break-in. The chief constable later admitted that the treatment of Mr McKay was tactless and apologised to the editor of Scotland on Sunday.

Aggrieved PoliceScots judiciary & Police were thrown into significant disrepute by gay conspiracy allegations. Nobody has yet been charged with the break-in, leading some journalists who have covered the story to believe that the burglar's identity (allegedly a police informer) is known to the police, but that they fear he might embarrass the force in court. The return of the sensitive files was allegedly the result of senior detectives reaching an immunity deal with a man close to the city’s gay criminal underworld. An internal report is believed to have been completed by the police force on the matter, but has never been released to the public.

In a typically Scottish move, an investigation & subsequent report was written by members of the Scots legal establishment on the Fettesgate allegations, clearing everyone That report, widely disputed & discredited since its publication, can be read online or downloaded here : the report on an inquiry into an allegation of a conspiracy to pervert the course of justice in scotland by WA Nimmo Smith QC & JD Friel