TRIBUNAL ROLE PROBE: Judge-appointed Vice-Chair of Scottish Solicitors Discipline Tribunal asks Court of Session to block Legal regulator probe of his conduct & role in “inappropriately brought” discipline case at Institute and Faculty of Actuaries

Tribunal Judge asks Court to block probe of his conduct. A SIGNIFICANT conflict of interest in how the legal profession investigates itself may play a role in one of three appeals to the Court of Session – after details emerged the Scottish Legal Complaints Commission (SLCC) – is facing legal action to block a regulatory investigation of three members of the Institute and Faculty of Actuaries (IFoA) – one of whom is Benjamin Kemp – the Vice-Chair of the Scottish Solicitors Discipline Tribunal (SSDT).

Material obtained by journalists reveal three separate appeals to the Court of Session against the Scottish Legal Complaints Commission’s decision to investigate Mr Benjamin John Tizzard Kemp and two additional members of the Institute and Faculty of Actuaries. Mr Kemp is represented by Brodies LLP

The two additional IFoA members - Ms Emma Gilpin (Head of Regulation) and Mr Michael Scott (Head of Disciplinary) who also face investigation by the Scottish Legal Complaints Commission in the same complaint – have launched their own, separate appeals to the Court of Session which seek to overturn the SLCC's decision to commence an investigation of their professional conduct.

Details of the complaints lodged against the three Institute and Faculty of Actuaries members appear to relate to IFoA Disciplinary action which was thrown out by a Tribunal, which then awarded costs against the Institute and Faculty of Actuaries for bringing the case.

The complaints, submitted by Mr Rhodri Tomos, former Fellow of the Institute and Faculty of Actuaries to the Scottish Legal Complaints Commission - relate to the bringing of a disciplinary action against Mr Tomos, from October 2019 to January 2021 after which the Disciplinary Tribunal Panel made a final determination the original disciplinary action was "inappropriately brought", "unconscionable" and "not in the public interest".

It has also emerged the Institute and Faculty of Actuaries were required to pay costs for the "inappropriately brought” disciplinary action.

Commenting on the case - Mr Rhodri Tomos, former fellow of the IFoA who submitted the complaints to the Scottish Legal Complaints Commission in relation to the conduct of Mr Kemp and the other IFOA members, said:

"The IFoA Disciplinary Tribunal Panel threw out the IFoA's case against me very quickly in just a couple of hours, when the hearing was listed for 3 days.

The panel, chaired by an experienced Court Judge, criticised the disciplinary as inappropriately brought, unconscionable and not in the public interest. That's the exact opposite of what the IFoA disciplinary scheme is supposed to be there for. The panel awarded costs against IFoA in my favour.

No member of the public had complained about me or my work. It was an internal "executive referral" from IFoA, which triggered my resignation from IFoA in Oct 2019 after working so hard since 2001 to qualify as a Fellow. I then suffered a long and stressful 16 months disciplinary process from IFoA, who used internal and external lawyers, including a QC against me, an unrepresented individual, yet they still lost.

My complaint to SLCC about the lawyers involved is entirely reasonable based on the DTP's findings, which are final, and deserves a full investigation in the public interest. This matter is entirely self-inflicted by IFoA, who along with their oversight body the Financial Reporting Council have failed to investigate my complaints throughout. "

Earlier today, a potentially serious conflict of interest in the appeal by the Institute and Faculty of Actuaries members has been identified by legal sources – where one of the three IFoA members – Mr Benjamin Kemp now under investigation by the SLCC – also holds the position of Vice-Chair of the Scottish Solicitors Discipline Tribunal (SSDT).

The Scottish Solicitors Discipline Tribunal is the third, and effectively the judicial tier of legal regulation in Scotland - which acts on investigations carried out by the Scottish Legal Complaints Commission and hears ‘prosecutions’ of solicitors and advocates - undertaken by the Law Society of Scotland & Faculty of Advocates.

The appointment of Solicitors Discipline Tribunal members by Scotland’s top judge the Lord President, currently Lord Carloway (Colin Sutherland) - effectively makes all Tribunal members including Mr Kemp - judicial appointees.

Commenting on court challenge, a legal source said: “We have a situation developing in this appeal where the Vice Chair of the SSDT, the senior tier of legal regulation in Scotland whose members are appointed by Scotland’s top judge – is now asking the same judiciary to overturn a decision of Scotland’s statutory legal regulator to investigate complaints about his own professional conduct.”

The Scottish Solicitors Discipline Tribunal website confirms the role of Scotland’s top judge in appointing members of the SSDT, stating: “The Tribunal has both solicitor and lay members. All are appointed by the Lord President of the Court of Session – Scotland’s most senior judge. Solicitor members are nominated by the Law Society of Scotland, but may not also be members of the Council of the Law Society. Lay members are drawn from all backgrounds and walks of life, following open advertisement The principles of public appointment are followed by the Scottish Government in making recommendations to the Lord President.”

The Scottish Legal Complaints Commission were asked for comment and issued the following response: “As you are aware, we are legally quite restricted in what we can say – under s43 of our Act we can’t comment on any complaint, with the law making it a criminal offence. This includes confirming or denying whether a specific complaint has been received.  We are lobbying for this to be changed so we can be more transparent, but need to abide by the current legislation.”

The Judicial Office and Lord President were asked for comment on the position of Mr Kemp in this Court of Session appeal against the Scottish Legal Complaints Commission, given the inherent conflict of interest of Mr Kemp – effectively a judicial appointee, and Vice Chair of the SSDT - a key organisation in the regulation of solicitors, now asking the judiciary which appointed him - to overturn an investigation of the statutory body the SLCC to investigate complaints against himself.

No statement has been issued by the Judicial Office prior to publication, however any further statement or response will be added to the article.

It has not been confirmed by the Institute and Faculty of Actuaries as to whether the individual lawyers or the Institute and Faculty of Actuaries itself - is funding this appeal in the Court of Session.

In response to media enquiries, the Institute and Faculty of Actuaries said: “The IFoA does not comment on any live proceedings.”

It should be noted that cost orders have been awarded against the Institute and Faculty of Actuaries (IFoA) for investigations previously dismissed by the Disciplinary Tribunal.

These cost orders are referred to in the 2020-2021 Annual report of the Institute and Faculty of Actuaries Disciplinary Board, which states:

“Three cases were dismissed by the Tribunal panel without a hearing of the parties. Determinations where findings of misconduct are not made are not usually published by the Tribunal panels unless requested by the Respondent. Costs were awarded against the IFoA in respect of two of the dismissed cases. The total costs awarded against the IFoA was £69,248.73.”

The Institute and Faculty of Actuaries Disciplinary Board cost guidance states costs are awarded when IFoA bring cases inappropriately or negligently.