Law Society accused of closing ranks as claim fails
William Chisholm The Scotsman 5 June Friday 1998
An unprecendented attempt to force the Law Society of Scotland to prosecute a solicitor for professional misconduct will continue, even though an application for legal aid has been rejected.
Peter Cherbi from Jedburgh, claims that his late father's ￡300,000 estate has been ruined and rendered worthless becuse of the way a Borders lawyer, Andrew Penman, handled the affairs of Gino Cherbi who died in 1990.
A Law Society investigation found that the solicitor, a partner in the law form P & J Stormonth Darling, should be prosecuted before a disciplinary tribunal because of the serious nature of the case.
But the decision was later overturned in favour of a reprimand after representations were made on Mr Penman's behalf.
Mr Cherbi, who is calling for " more than a slap on the wrist" then took the case to Garry Watson, the legal services ombudsman.
He critisised the society's handling of the complaint and said it was unclear why its committee had changed its vew about prosecution. Mr Watson asked for the case to be re-opened so that the question of loss to Mr Cherbi could be fully addressed.
But the society decided that course of action was not competent in terms of the law, which emant the ombudsman's recommendation could not be acted upon.
Instead, Mr Cherbi received a cheque for ￡250 to compensate him for delays in processing the inquiry.
Mr Cherbi revealed yesterday that Henry Mcleish, the Scottish Home Affairs Minsiter, had twice advised him to seek independent legal advice about any further action he might wish to take.
"The advice I received was to apply for a judicial review, challenging the Law Society's refusal to prosecute Mr Penman", said Mr Cherbi" "Its been impossoble to get justice via the society which simply closed ranks to defend its own. Now the Scottish Legal Aid Board seems to be holding justice to ransom, by refusing my legitimate application for legal aid"
The board told Mr Cherbi that his request had been turned down becuase it was not satisfied the application showed he had a probably cause of action.
He believes the board's decision may have been influenced by a letter from Douglas Mill, the secretary of the society. Although no formal objection to Mr Cherbi's application was taken, Mr Mill felt it proper to draw certain issues to the attention of SLAB.
Mr Mill wrote "Mr Cherbi is clearly a person with an interest to complain and was entitled to make his complaint. It is for the Law Society in terms of the relevant legislation, to determine firstly whether the complaint can be upheld and then determine the appropriate penalty. The complainer does not have a part to play in determining penalty"
Mr Cherbi claims the society is keen to head off any judicial interference in its procedures. If his case were to succeed, it would set a precedent in Scots law. He would also be seeking costs.
In a statement to the legal aid board, Mr Cherbi said the interference of Mr Penman's representative at a complaints committee hearing was unfair.
He had not been given access to the evidence and was not allowed to appeal before the committee "commuted the solicitors sentence"
Mr Cherbi's action has the backing of Injured By The law, an organisation which seeks to help individuals who believe they have been denied legal justice. Ray Keddie, it's director said "I am extremely concerned by the actions and conduct of the Scottish Legal Aid Board in denying civil legal aid to Peter Cherbi"
He also critisised the Scottish Office for its "ambiguous advice" inrecommending action that required people to apply for legal aid. He claimed it was then rejected on concocted grounds to maintain the status quo of the society and protect positions within the profession.
Injured By The Law was also calling into question the conduct and motives of mr Mill in his letter to the legal aid board and SLAB's acceptance of the contents. Mr Keddie said ;" The contents are highly unusual and irregular to procedure"
But Fiona Shaw, SLAB's spokeswoman said it was the statutory right of any opponent in a civil case to object to an application for legal aid. She added "We have treated the society's letter in the same way as any other correspondence we receive."
She confirmed that Mr Cherbi's solicitor had asked the board to review the application for legal aid,, and that review was now under way.
In a statement, the society said Mr Mill's letter to SLAB was not irregular in its terms, nor was it an attempt to stall the course of justice.
"Mr Cherbi is entitled to seek judicial review if he wishes to do so. If he does, the society will defend it" . There was no question of the process of judicial review being a dangerous precedent. It was an ordinary legal process and the society had been involved in judicial review proceedings before.
"Any suggestion that in some way the society is interfering with the process of justice is wholly unfounded", the statement concluded.