Wednesday, March 01, 2017

CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times - where his son acted as solicitor for the defenders

Judicial Interests probe - Lord Malcolm heard case involving his own son. AN INVESTIGATION by MSPs into proposals to create a register of judges’ interests has received evidence which contradicts claims by top judges - that members of the judiciary recuse themselves when they have conflicts of interest in court.

Papers lodged with the Scottish Parliament’s Public Petitions Committee in relation to Petition PE1458: Register of Interests for members of Scotland's judiciary - reveal Court of Session judge - Lord Malcolm – real name Colin Malcolm Campbell QC – took part in multiple hearings on a case which began with his son – Ewen Campbell - providing legal representation to building firm Advance Construction Ltd.

However, Lord Malcolm did not recuse himself from any of the hearings, and no one in the court made the pursuers aware of any relationship between Lord Malcolm and Ewen Campbell until years into the court case.

The high value civil damages claim, initially heard in Hamilton Sheriff Court and then transferred to the Court of Session for a ‘speedy’ resolution – involved the dumping of 16,500 tons of contaminated waste by the defenders from a North Lanarkshire Council PPI project on the land of Donal Nolan - the well known & respected former National Hunt jockey & trainer.

At the time, the defenders solicitor - Ewen Campbell - worked for Glasgow based Levy & Mcrae – a  law firm linked to Scotland’s judiciary and more recently named in a writ in relation to the £400million collapse of a Gibraltar based hedge fund - Heather Capital.

Papers now lodged at Holyrood reveal Ewen Campbell reported back to former Levy & Mcrae senior partner and suspended Sheriff Peter Watson on the day to day running of the case for Advance Construction Ltd.

Crucially, answers lodged by the defenders in relation to an appeal by the pursuer in 2016 – finally confirmed the relationship between the judge hearing the case and the defenders solicitor, admitting Ewen Campbell was Malcolm’s son, and had been acting for the defenders in court in earlier hearings.

However, the admission of the relationship between the judge and the defenders solicitor came years into the case, and questions are now being asked as to why the judge, and no one else in court informed the pursuers of this potential conflict of interest at a much earlier stage in the action.

A quote from a motion raised by the defenders in 2016 stated: “Lord Malcolm's son, namely Ewen Campbell, was formerly an assistant solicitor at Messrs Levy & Mcrae, Solicitors, Glasgow. That firm is the principal agent instructed by the Defender and Respondent. Ewen Campbell was formerly involved in the present cause as an assistant to the partner handling the case.”

Pleadings to the court reveal Lord Malcolm heard the case on eight separate occasions, listed as 3 May 2012, 11 May 2012, 24 July 2012, 4 October 2012, 13 March 2013, 11 April 2013, 20 May 2013 and  on 16 March 2016.

However, there is no record of any recusal by Lord Malcolm in the case.

During the 11 April 2013 hearing, a note of the decision written by clerk Kate Todd reveals Lord Malcolm appointed Lord Woolman to hear the proof.

The move to appoint another judge is now subject to debate and questions from the pursuers and legal observers, given the fact Lord Malcolm had already taken part in no less than five hearings in Mr Nolan’s case without any recusal with regard to his son’s interest as legal agent for the defenders.

According to normal procedure, the appointment of Lord Woolman to the proof should instead have been undertaken by the Office of the Keeper of the Rolls of the Court, and not by another judge.

Lord Woolman has since come in for criticism after key parts of his 2014 opinion have been subject to concerns in relation to a lack of evidence and ‘unauthorised’ actions attributable to a senior QC.

However the saga of Lord Malcolm’s appearances in the case did not end with the proof being handed over to Lord Woolman in 2013.

Lord Malcolm returned to the same case during 2016 for another hearing - in order to hear and grant a motion handing money to the defenders - which had been lodged for an appeal by a friend of Mr Nolan.

The return of a judge to a case in which MSPs have been told he should have stood aside due to a conflict of interest - has now prompted concerns over the integrity of information currently supplied by the Judicial Office since 2014 relating to judicial recusals - and previous claims by judicial figures to politicians that judges had recused themselves when required to do so prior to the creation of the recusals register in 2014.

And, it has been pointed out - Lord Malcolm’s position on such an obvious conflict of interest contrasts starkly with action taken by former Lord President Brian Gill – who avoided the same situation when forced to step down from a case in June 2014 when Lord Gill’s son - Advocate Brian Gill – appeared in the same court acting for a party in a hearing.

With increasing calls for transparency on judges’ declarations and interests, questions are also being asked why a judge was allowed to sit unchecked so many times on a case in which his own son provided legal representation for the defenders.

The case involving Lord Malcolm - has now been brought to the attention of members of the Scottish Parliament’s Public Petitions Committee – who are involved in a five year probe on the judiciary and proposals put forward to require judges to register their interests.

Writing in a submission to MSPs, Mr Nolan’s partner - Melanie Collins - said had a register of interests for judges existed in Scotland, the existence of such a register would have resulted in Lord Malcolm recusing himself from hearing the case.

Ms Collins also highlighted links between the same judge – Lord Malcolm – and a ruling affecting hundreds of solicitors and members of the public which toppled over 700 investigations by the Scottish Legal Complaints Commission against solicitors and law firms accused of wrongdoing.

Ms Collins informed MSPs the SLCC were at the time investigating a complaint in relation to issues surrounding Mr Nolan’s case.

However, the ruling by Lord Malcolm ‘coincidentally’ closed down the legal regulator’s investigation into solicitors involved in the case, and hundreds of other cases after the judge struck down a 30 year policy where the Law Society of Scotland and SLCC investigated “hybrid complaints’ comprising of conduct and service issues against solicitors since before 1980.

Now, Ms Collins and her partner Mr Nolan both have the support of their constituency MSP Alex Neil and backing to bring their experiences to the Scottish Parliament.

The full submission from Melanie Collins: PE1458/CCC: SUBMISSION FROM MELANIE COLLINS 

I would like to make the following submission in relation to the current system of judicial recusals.

In my view the system is not transparent about the circumstances in which judges should recuse themselves, such as circumstances in which a judge could be perceived as having a potential bias, or the instances in which a judge may be asked to consider recusing themselves but decide not to do so. My experience demonstrates that the recusal register is not working and that a register of interests being put in place is both necessary and correct to allow the public to have faith in the judiciary and transparency of the judicial system.

My views arise from a case raised on my partner's behalf and in which a senior judge did not recuse himself, in circumstances in which the existence of a register of interests may have resulted in him having done so.

The matter, which I note has already been mentioned in a submission by the petitioner and has been aired by Committee members, has relevance to a recent ruling in the Court of Session a recent ruling in the Court of Session carried out by the Scottish Legal Complaints Commission .

In a civil case raised in the Court of Session, on behalf of my partner, Mr Donal Nolan, Lord Malcolm (Colin Campbell QC) heard and ruled on evidence in the case.

His son, Ewen Campbell, who at the time was with Levy & McRae, was an assistant solicitor involved in the day-to-day running of the case, providing the defenders with advice and representation in court. Ewen Campbell reported back to Peter Watson, formerly a senior partner of Levy & Mcrae, and (at the date of this submission) currently suspended as a temporary sheriff.

In the case raised on behalf of my partner Mr Nolan, had a register of interests for members of the judiciary existed prior to the case coming to court, this may in my view have resulted in Lord Malcolm having recused himself.

In relation to the impact of this on the ruling in the case involving the Scottish Legal Complaints Commission, the SLCC were investigating matters in relation to this case which the ruling by Lord Malcolm had the effect of changing the hybrid complaints process which resulted in numerous cases not being concluded.

There are examples in the judicial recusals register of judges recusing themselves, particularly the instance where former Lord President, Lord Brian Gill, recused himself on 26 June 2014, after his son appeared in the same court acting for a respondent.

It is not clear to me how this instance differed from my case where Lord Malcolm did not recuse himself and on which Lord Brodie’s opinion concluded that the circumstances did not satisfy the test for apparent bias or that there was a question of interest on the part of Lord Malcolm. This lack of clarity about when recusal is appropriate does not help in assuring public faith in the judiciary and transparency of the judicial system .

Members may also wish to note I have written to the current Lord President Lord

Carloway, to make him aware of concerns in relation to my own experience before the Court of Session.

No action has been taken by Lord Carloway to address the matter, which in my view is of significant concern where there is a potential conflict of interest, and where the transparency of the judicial system could be improved. In a response from the Lord President’s Office, information about the complaints mechanism for judges was not provided.

As members of the Committee have previously been made aware of certain details of this case, I would very much welcome the opportunity to give evidence in a public session, and also that my MSP, Alex Neil whose assistance has been invaluable in advancing matters, be invited to give evidence before the Committee.


THE UNRECUSED: The judge, his son, conflicts of interest and failure to recuse - undermines public confidence in Court of Session:

An ongoing investigation into a case in which a judge did not recuse himself from seven hearings on a case where his own son represented the defenders, and returned for a eighth hearing in 2016 to hand over sums lodged as cation for an appeal – is eroding confidence in Scotland’s top court -  the Court of Session.

Journalists examining papers relating to Lord Malcolm’s eighth appearance to the case of Nolan v Advance Construction Ltd - have revealed a motion lodged by pursuer Mr Nolan for permission to appeal the decision by Lord Malcolm to hand over the £5,000 lodged as caution for expenses was blocked by Lord Brodie – but only after the judge appeared to be talked out of considering the pleadings by the defender’s QC.

The appeal raised by Mr Nolan against Lord Malcolm’s decision to hand over the cation - raised a conflict of interest and human rights, stating “grounds of justice and all persons who have an interest in the case should have been declared”.

This appeal was lodged during 2016 - only after the pursuer had been alerted to the fact a solicitor – Ewen Campbell – who acted for the defenders was actually the son of the judge - Lord Malcolm – who had presided over the case on seven previous hearings.

During hearings in relation to the initial lodging of the £5K cation by a friend of Mr Nolan – the QC, Roddy Dunlop acting for defenders Advance Construction Lrd asked Lord Menzies to increase the amount of the cation to around £35K.

However, Lord Menzies denied the defenders their motion to increase, and thought £5K was sufficient for to advance the appeal.

Then, in a later hearing, Lord Brodie said the money for the appeal should have been left in situ after the pursuer entered pleadings - requesting the cation be returned to the third party.

However Balfour & Manson - acting on behalf of Levy & Mcrae - for Advance Construction Ltd – presented a motion requesting the money be handed over to the defenders.

It was at this hearing, Lord Malcolm returned for the eighth occasion after earlier recusing himself from the case – to hand over the cash to the defenders.

The pursuer - Mr Nolan – then sought a written opinion from Lord Malcolm for his decision on 16 March 2016 to hand over the cation – however none was forthcoming from the judge or his clerks.

An opinion by Lord Brodie from the Court of Session – dated 20 May 2016 which the Scottish Courts Service has refused to publish – reveals Lord Brodie - who previously ruled on parts of the case, returned to hear Mr Nolan’s motion requesting for leave to appeal Lord Malcolm’s decision to the UK Supreme Court.

In the difficult to obtain opinion, Lord Brodie appeared to be going for the pursuer’s pleadings in that the test was met for a fair minded observer to conclude a conflict of interest existed on the part of Lord Malcolm.

However, as Lord Brodie’s opinion continues, the judge is then persuaded against granting the pursuer’s request for leave to appeal by the defender’s QC – Roddy Dunlop.

Commenting on the developments at the Scottish Parliament, the petitioner suggested the rules around judicial recusals should be improved to ensure a judge who has already recused themselves from a case should not be allowed to return to the same case at any later date.

The petitioner further stated: ”It appears Mr Nolan had no chance of obtaining justice at the Court of Session in a situation where the father of the defender’s legal agent was the presiding judge, the law firm acting for the defenders had senior partners who were judicial office holders and therefore colleagues of the presiding judge, and a QC who was representing the defenders has family links to the judiciary.”

“Had a register of judicial interests already existed, most or all of these relationships should have been caught and properly dealt with if public scrutiny and the test of fair mindedness of external observers were able to be applied to events in this case.”

As investigations into the case continue, papers currently being studied by journalists are set to reveal further issues:

* a senior QC sent emails to the pursuer and his partner demanding cash payments outside of the process where Advocate’s fees are normally paid through solicitors to Faculty Services. At the time of these demands for cash payments, the current Lord Advocate – James Wolffe QC – was the Dean of the Faculty of Advocates and fully aware of the QC’s irregular requests for cash.

* a set of desperate emails from a senior QC demanding possession of a recorded consultation during which, among other issues the pursuer’s legal team seem aloof of developments in major contamination & planning related cases.

* Evidence of Advocates’ demands for cash payments and falsified documents handed to James Wolffe QC – the then Dean of the Faculty of Advocates and now Scotland's top prosecutor – the Lord Advocate – were not acted upon or properly investigated.

* North Lanarkshire Council paid out £2 million pounds of public cash which ended up with the defenders after they were paid in a subcontract agreement – yet the contaminated material dumped by the defenders on Mr Nolan’s land is still there and no action has been taken to remove it while the Scottish Environmental Protection Agency (SEPA) ‘looked the other way’.

* Mr Nolan had obtained a Soul & Conscience letter from his doctor due to ill health, lodged as document 148 of the process. The existence of the Soul and Conscience letter meant Mr Nolan should never have been put a position to address a court under the circumstances but was forced to do so.

* the blocking of an appeal to the UK Supreme Court by Lord Hodge – who failed to declare he previously sat on the Nolan v Advance Construction Ltd case at least eighteen times while he served as a judge in the Court of Session.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Herald and Sunday Mail newspapers, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland's Judiciary


Anonymous said...

Sitting once on a case where your own son shows up in front of you is once too often as demonstrated by Lord Brian Gill.
Although to be fair we do not know if he ever did it before now you have exposed a judge who should have stood down on the first hearing if the defenders own pleadings are to be believed.

More of these reports please as I have a funny feeling this is going on more often than anyone cares to admit including the good Professor who told msps the other week everyone is knows about solicitor kids in front of their dads and the whole scenario is just fine NOT!

Anonymous said...

is there anyone left who really believes you can obtain justice at the court of session?
just a court of crooks if you ask me!

Anonymous said...

Pleadings to the court reveal Lord Malcolm heard the case on eight separate occasions, listed as 3 May 2012, 11 May 2012, 24 July 2012, 4 October 2012, 13 March 2013, 11 April 2013, 20 May 2013 and on 16 March 2016.

However, there is no record of any recusal by Lord Malcolm in the case.

So much for declaring their interests as Gill said they do

Long past time we had your register of interest for the judges.Tell the msps to get on with it now we have this out in the open!

AlanR said...

Donal Nolan the jockey?Watched him race many times!
Very sad to see such a great guy treated so badly by the justice system.
Best wishes to Donal and hope this is put right for him soon.

Anonymous said...

How does a judge manage to get away hearing a case 8 times when his son was around in the court at the same time!

Big Wullie Beck said...

They are all filling their families pockets with loads of cash at our expenses.
Independent and Impartial do not feature in Scots law.

Big Wullie Beck said...

The decision ought to be set aside3 with reference to Hoekstra and Pinochet.
I also believe that the UK Parliament ought to be made aware of these multiple infractions by the Scottish courts who refuse to act to rectify these corrupt decisions

Big Wullie Beck said...

Pinochet got better justice from house of lords.
Lord Hoffman was not impatial or independent because he had links to Amnesty who opposed Pinochet.
Surely father son relationships are less independent.
No-one will convince me this father and son did not have private conversations about this case over dinner or that the father never gave the son advice of how to proceed in front of him in court.

Anonymous said...

Going by the dates all this was happening while Gill was trying to avoid appearing in front of msps and your petition..

Anonymous said...

What happens now?Surely the committee must now order a full investigation into the judiciary and Mr Nolan finally get some justice instead of having to sit by while all the lawyers line their pockets courtesy of the judiciary!

Anonymous said...

If Malcolm had resigned/recused/whatever on 3 May 2012 another judge could have taken over the case.So because this did not happen someone's interests were well served and now the question has to be asked who's interests were served,certainly not the pursuer.

Anonymous said...

Little point in spending zillions going to the Court of Session expecting to be heard when the entire procedure is stage managed between parents and relatives shielded by Brian Gill's hard working clerks..How often is this occurring and why is the only other example referred to as Lord Gill standing aside when his son shows up in court.Everyone knows most of the judges have children and relatives in the legal profession so this has to be occurring much more frequently than Lord Malcolm and Lord Gill.

From now on there should also be a rule put in place no children of judges are made a judge.This way you cut out all these dynasties in the legal world and sons/daughters ruling on cases where their parents have sent people to jail or whatever.Legal dynasties are as toxic to justice as political dynasties are toxic to democracy.

btw good work on the story,at least someone is attentive!

Anonymous said...

"From now on there should also be a rule put in place no children of judges are made a judge.This way you cut out all these dynasties in the legal world and sons/daughters ruling on cases where their parents have sent people to jail or whatever.Legal dynasties are as toxic to justice as political dynasties are toxic to democracy."

Best comment for awhile and should be made into law.This situation where next of kin follow their parents onto the bench is out of step with what people refer to as a "modern democracy".

Same can be said of politicians however we have the chance to vote them in or out.

However, this is not so with the judiciary who grant their own a seat on the bench for generation after generation adding in a quick name change so everyone is none the wiser.

You should add this to your petition.

Anonymous said...

A blind man on a dark night could soon see the very pressing need for your petition to made law................NOW!

Anonymous said...

I wouldn't bother going to the Court of Session for anything.Well known you get ripped off at the front door and lose your life going out the back door.

And it has not escaped my attention Scots Law is internationally known as a major con.

One of the reasons international litigation prefer the London courts and a more fearless press in England who take on judges when cases get out of hand such as this latest you wrote about.

Diary of Injustice said...

@ 4 March 2017 at 15:57

From now on there should also be a rule put in place no children of judges are made a judge.This way you cut out all these dynasties in the legal world and sons/daughters ruling on cases where their parents have sent people to jail or whatever.Legal dynasties are as toxic to justice as political dynasties are toxic to democracy.

A good suggestion for tackling the well known problem of diversity in Scotland's 'small' judiciary ...

It may also be worth bearing in mind Scotland's 'small' yet powerful judiciary numbering around 700 or so members, is many times the size of the number of MSPs (129) in the Scottish Parliament, who like many others in public life are required to declare their interests.

Anonymous said...

From now on there should also be a rule put in place no children of judges are made a judge.This way you cut out all these dynasties in the legal world and sons/daughters ruling on cases where their parents have sent people to jail or whatever.Legal dynasties are as toxic to justice as political dynasties are toxic to democracy.


The thing is where do you stop? A master carpenter's son wants to be a joiner so he gets a job with his dad at the same firm, the same can be said for a plumbers son and a car mechanic son & so on.

What happened to me with the judiciary was disgusting and if you really want to sort this out, you first of all close Holyrood & sack all those useless bastards that do nothing for anyone, nothing. I have dealt with six of them in the past & they are all big LSS & SLCC supporters.

Afterwards you sack the whole complete judiciary, and seek judicial services from another country with no ties because thats how it all works, clerks got stuff on the judges, judges have stuff on clerks and so on.

This is the only way forward.

Anonymous said...

The Scottish legal establishment is corrupt from top to bottom.

Anonymous said...

In answer to the person who said litigation prefers the London courts did you bother to read the following? "the blocking of an appeal to the UK Supreme Court by Lord Hodge – who failed to declare he previously sat on the Nolan v Advance Construction Ltd case at least eighteen times while he served as a judge in the Court of Session."

How exactly does Lord Hodge blocking a case he previously heard in Edinburgh 18 times and failing to mention anything about it fit in with Professor Paterson's shaky moments of the UK Supreme Court! Hoffman x 18!

No wonder they dont want a register of interests or any details published about their non recusals!

Doesn't say much for the UK Supreme Court does it when a Scottish judge who sits on a case all those times then stops an appeal going ahead in London not that it will make much difference anyway because from the sounds of it the judiciary had the whole case worked out in advance before it was ever heard for proof.

And I for one did not miss the point you made in your article about the action being moved from Hamilton Sheriff Court to the CoS for a "speedy resolution".

Since when has CoS offered anyone a speedy resolution unless there is some pressing need by the legal establishment to cover up scandal for one of their own characters!

The investigation should start with the Hamilton Sheriff Court.They may put out a lot of blurb about amounts and the claim but this is where the skulduggery started from whoever wanted it into the CoS to be played along to their own tune.Given some of the names and law firms you mention I doubt there are any prizes for guessing who was behind this.

Anonymous said...

Another revelatory report from DOI - great to have you back!

Anonymous said...

This a story which I suspect will run and run...........good work!

Anonymous said...

The petition is probably regarded as the thin end of the wedge by the judiciary - hence the dogged obstruction and delaying tactics. Whatever next I hear them muttering, mandatory recording of civil claims - with copies made available to all parties - television cameras in the Courts!

Anonymous said...

same Lord Malcolm?

Ex-boxing bigshot Barry Hughes appeals proceeds of crime rap forcing him to surrender £53k luxury goods haul

ByAlan McEwen 12:57, 24 MAY 2017Updated21:00, 25 MAY 2017

Convicted fraudster Barry Hughes is appealing against a £53,000 order forcing him to surrender a cache of luxury items.

The shamed former boxing promoter wants to keep his hands on goods including Rolex watches and a mobile phone worth £5600.

Hughes was slapped with the confiscation order by a sheriff as part of a dirty money probe.

The 39-year-old appeared at the Court of Criminal Appeal in Edinburgh today to contest the move, which he argues was unjust.

His lawyer, Gordon Jackson QC, and prosecutors agreed to make written submissions in the case.

Judge Lord Malcolm set the hearing for August in Glasgow ’s appeal court.

Hughes was ordered to pay up in February as a complex £6 million proceeds of crime action against him was due to get under way.

It was expected to last up to 150 days, but Hughes’ legal team withdrew after a sheriff refused an adjournment.

Hughes, who was left representing himself, elected not to give evidence at Glasgow Sheriff Court.

Prosecutor Blair Speed invited Sheriff Paul Crozier to make a confiscation order for £53,412.21 of realisable assets.

Sheriff Crozier granted the order, allowing six months for the dad-of-five to stump up. The court had heard the “benefit figure” from Hughes’ crimes was £5,394,202.49.

The order for the lesser amount allows prosecutors to try to seize more from Hughes in the future.

Hughes’ realisable assets included a £5600 Vertu Constellation Pure Collection mobile phone, a Rolex Gent’s Daytona Cosmograph Oyster watch valued at £6170, a Rolex Gent’s Daytona Cosmograph Black Dial watch worth £6310, a Cartier Gent’s Quartz Santos watch valued at £2200, and a Cartier Gent’s Stainless Steel Automatic Santos 100 watch valued at £3250.

Hughes, who lives in the Glasgow area, had offered to repay £500,000 to bring the matter “to a complete end”.

The businessman was jailed in March 2014 for 43 months over mortgage frauds worth nearly £1.3m. but his sentence was later overturned and he was fined £45,000.

He claimed his wife Jacqueline made £160,000 from her business McDonald Interiors - but divorce papers lodged by her in 2006 stated that she was “financially dependent” on her husband.

Hughes lied about his wife’s income on mortgage applications in 2004 for a property in Bridge of Weir and in 2006 for a second in Kilmacolm, both in Renfrewshire.

He admitted laundering money by receiving £128,885 after selling the first property and spending £30,000 towards a Rolex watch.

Hughes went bankrupt in December 2014 with a tax debt totalling £10m.

Following his mortgage fraud conviction, we revealed how Hughes carried £15,000 in dirty money in a Sugar Puffs cereal box as part of a money-laundering operation.

Hughes turned up in a flashy motor to buy a £148,000 fleet of Skoda cars on behalf of gangsters Russell Stirton and Alexander Anderson.

During a proceeds of crime case against Stirton and the estate of Anderson, who died in 2012, a judge detailed how the Skodas Hughes bought from a Glasgow dealer were sold on to taxi firm Spring Radio Cars - for approximately twice the normal retail price.

Lady Stacey said it had “the air of a money laundering exercise” and she believed evidence from tax officials who said they were told the taxi firm was paying protection money.

Hughes, who has convictions for carrying a knife and for assault, is known for his love of top-range cars, including Rolls Royces, Lamborghinis and Bentleys.

Anonymous said...

Lord Malcolm takes out the SLCC complaints system then in the second story the same Lord Malcolm tries to balance it up with some duff comments in a case involving a lawyer who switched sides.Clearly a lot of dirty deals going on in the judiciary and their supporters/recruits in the legal profession

SLCC "disappointed" at court ruling against hybrid complaints

The longstanding practice of treating certain complaints against legal practitioners as "hybrid" – capable of being treated as raising issues of both inadequate professional service and professional misconduct – has been ruled improper by the Inner House of the Court of Session.

The complaint had previously been appealed twice (by the complainer) and was then appealed by the law firm complained about. The SLCC had determined that three of the issues within the complaint were hybrid, but the judges ruuled that two of the issues concerned service only and the remaining issue purely conduct. Further, Lord Malcolm, delivering the opinion of the court, in which he sat with Lord Justice Clerk Lady Dorrian and Lady Clark of Calton, held that complaint issues in general could not be classified as hybrid.

Referring to an earlier case in which the propriety of hybrid complaints was raised but not decided, Lord Malcolm commented: "However, in Bartos, the result was that the Faculty, after investigation, held that counsel did not mislead the court, while the Commission, after a separate investigation, reached the view that he had. The Commission’s decision was described as a finding of inadequate professional services, but clearly it was also a finding of at least unsatisfactory professional conduct. It could not reasonably be seen as anything else, the Commission having already sent the allegation to the Faculty on the basis that it raised a matter concerning conduct. This exemplifies the problematic consequences when a complaint which raises one sharp issue of alleged fact is sent down both the conduct and services tracks."

He added: "It would seem undesirable to have separate inquiries by different bodies into (a) whether there was a conflict of interest, and (b) the impact it had on the quality of the service provided, especially since the latter could be relevant to the proper sanction for any finding of misconduct. In short we are of the opinion that if a complaint, or a part of a complaint, suggests a failure in proper professional conduct, a view taken by the Commission that it could also be seen as raising a services issue does not justify the course taken in Bartos. Instead the Commission must decide whether to classify it as a conduct or a services complaint. The real mischief, which may need addressing, is the disparity between the compensation powers available to, on the one hand the professional organisations, and, on the other hand, to the Commission.

SLCC chief executive Neil Stevenson expressed his disappointment in the decision: “However, the categorisation of whether a complaint is either conduct, service, or both is not just an academic one.While the clarity the opinion brings is welcome, this decision could have a huge impact on our process and, unfortunately, our ability to provide swift redress to those who bring a valid complaint. We will continue to study the judgment and work closely with others to ensure that legal consumers don’t lose out. Once the judgment has been fully considered, we will communicate with the profession and public further about current cases."

Anonymous said...

Call for code of conduct review after solicitor switches sides
Martin Hannan Journalist 28 May 2017

A HIGH Court judge has called on the Law Society of Scotland and other legal professional bodies to “reflect” on their codes of conduct after a case in which a lawyer represented a client only for his firm to be merged into a new large legal company that represented the other side.

In a dissenting judgment, Lord Malcolm disagreed with Lords Bracadale and McGhie in the case of Ecclesiastical Insurance Plc against Lady Iam Hazel Virginia Whitehouse-Grant-Christ.

She had formally objected on grounds of confidentiality to the law firm BLM representing Ecclesiastical at a previous court hearing in the long-running case, which concerns an insurance claim following a fire that destroyed Whitehouse-Grant-Christ’s art gallery in a converted church in Banffshire in 2000.

Whitehouse-Grant-Christ’s first solicitor on the case was George Moore, now a QC, who had then worked with HBM Sayers, and with whom she dealt for six weeks. HBM Sayers merged with Berrymanss Lace Mawer in 2014 to form BLM, the firm that took over representing Ecclesiastical Insurance last year.

It was stated in court that Moore continues to work as a consultant for BLM, and the bench of three judges at the Court of Session split two to one in favour of BLM being allowed to continue to represent the insurer.

Lord Malcolm stated in his minority opinion: “The question posed in this application is as follows — can a firm of solicitors act for a party in a litigation, and then, that retainer having ended, at a subsequent stage accept instructions from the former client’s opponent in the same proceedings?

“All the judges who have had any involvement have entertained immediate concerns. Intuitively, it seems wrong. While not excluding the exceptional case, for my part I am of the view that it would be a sound general rule if a firm of solicitors, having acted on one side of a litigation, was disabled from thereafter changing sides. I would apply such a rule to the present case.”

He added: “I would expect any litigant to be unhappy if a firm of solicitors who had formerly acted for them, at a later stage of the same proceedings advised and represented the other side; and this no matter that a court was persuaded that there was no real risk of a disclosure of confidential information.

“In such circumstances, no amount of assurances or undertakings are likely to satisfy the former client, who might well, especially if ultimately unsuccessful, harbour suspicions and a grievance, and form a poor impression as to the fairness and integrity of the judicial and regulatory processes.”

Lord Malcolm concluded: “Whatever else, this case may prompt the professional bodies to reflect on their codes of conduct.”

full opinion here if you want to read up

You can see the point about Malcolm (Colin Campbell QC) here supposedly concerns about conflict of interest he did not bother to communicate in this case you write about!

Diary of Injustice said...

@ 29 May 2017 at 08:49

Thanks, interesting choice of judge given the case ... will look into this thanks.

@ 29 May 2017 at 09:20 & 09:25

Noted.Good detail in the National story, thanks ...