BUT, the case was not just any ordinary case – it was an appeal linked to a multi million pound damages claim involving defenders represented by a then serving member of the judiciary – (now former Sheriff) Peter Watson - who was later suspended for a record three years plus over his links to a £28M writ involving the £400M Heather Capital Hedge Fund collapse - and then resigned in 2019.
AND – in the SAME case representing the SAME defenders – was solicitor Ewen Campbell – the son of another Court of Session judge - Lord Malcolm (real name Colin Campbell QC) – who, like Lord Hodge – is also a Privy Councillor.
However, as DOJ has previously investigated and reported – Lord Malcolm ruled on the same case up to EIGHT TIMES - while failing to declare his own son – Ewen Campbell – acted for the defenders in the same court before his own father – Lord Malcolm.
The information revealing Lord Hodge blocked the appeal to the UK Supreme Court - came to light in a letter from UKSC Registrar - Louise Di Mambro.
The brief letter from the Registrar of the Supreme Court reveals no court procedure for any UKSC appeal was followed, and that simply – the Registrar had shown the papers to Lord Hodge who had claimed the UKSC had no jurisdiction over the case.
In fact – so confident was Loise Di Mambro and Lord Hodge of blocking the appeal – they sent a copy of their letter to solicitor Richard Cullen at the respondent’s law firm – Levy and McRae - where Ewen Campbell & Peter Watson had represented the defenders – Advance Construction Ltd.
When enquiries were made of UKSC media after the papers were discovered in case files some time ago - a long and protracted debate took place over the validity of an appeal, and counter claims were received in response to media queries on the case and how Lord Hodge came to a conclusion the Supreme Court had no jurisdiction.
However when the existence of the Registrar’s letter and it was pointed out – Lord Hodge had failed to declare he had heard the case up to sixteen times in the Court of Session – a different tone was struck from UKSC media chiefs in emails now being studied for further publication.
It should be noted the pursuer and his legal backers contended at the time - the UK Supreme Court did have jurisdiction over how badly the case had been manipulated in the Court of Session – however a noticeable and deliberate effort by the judiciary to put the case to one side, and even reopen hearings to channel funds to the defenders – struck a bad chord in Scotland’s courts – particularly with the background of what many connected to the case was a judge deliberately concealing his links to family members in court.
AND - there are significant grounds for a re-examination of the case – and other cases heard by Lord Malcolm – given the inescapable conclusion the judge could not have forgotten over eight hearings – that his own son was a legal representative of the pursuers in the exact same courtroom.
Patrick Stewart Hodge, Lord Hodge became a Justice of The Supreme Court in October 2013.
Lord Hodge was admitted to the Faculty of Advocates in 1983 and appointed a Queen's Counsel in 1996. From 1997 - 2003, he was a part time Law Commissioner at the Scottish Law Commission.
Prior to his appointment to the Supreme Court in April 2013, Lord Hodge was the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He was also a Judge in the Lands Valuation Appeal Court and a Commercial Judge.
Lord Hodge is one of the two Scottish Justices of The Supreme Court.
Bio: Louise di Mambro Registrar
Louise has been Registrar of The Supreme Court since 1 October 2009 and Registrar of the Privy Council since 1 April 2011.
As Registrar, she exercises judicial and administrative functions under the two sets of Rules and Practice Directions which provide the procedure for these Courts.
From June 2008 until September 2009, Louise was Deputy Head of the Judicial Office of the House of Lords, supporting the Law Lords in their judicial functions. Before that, Louise was a deputy master in the Court of Appeal, Civil Division, working in the Royal Courts of Justice from December 1997 to May 2008.
From September 1977 to December 1997, Louise held various posts as a member of the Government Legal Service in the Treasury Solicitor’s Department and the Lord Chancellor’s Department. Louise was called to the Bar in July 1976.
It should be noted this is the second case of a top UK Supreme Court judge failing to declare their interests in previous cases and hearings.
Last month, Lord Reed – another Scottish judge – assumed the presidency of the UK Supreme Court after his appointment in the last days of Theresa May’s Government.
DOJ reported more on Lord Reed’s undeclared interests in further detail here: SUPREME COURT INTERESTS : Prorogation case judge Lord Reed who failed to declare role in appointment of Scotland’s Prorogation Judicial Review ruling top judge Lord Carloway - takes over as new President of UK Supreme Court
The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest, is reprinted here: 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
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
33 comments:
The Scottish Raj of Blair and Brown utterly destroyed the fabric of society in the United Kingdom and we all know it
So WHY are we now having to put up with a new Scottish Raj of the Supreme Court with Lords Reed and Hodge?
The Supreme Court has done NOTHING positive for the people of the United Kingdom while judges line up for their gigantic salary and pensions no one else can hope to receive
Time to CALL TIME on the Tony Blair project of crooked justice in OUR courts
WOW!Scottish judges are rotten and corrupt!
Who else but a judge can sit there for all that time and not admit his own son is talking in front of him in court
What a bunch of crooks!
OH LOOK THE OLD BOYS CLUB IN ACTION AGAIN IN SCOTLAND
JUDGE BLOCKS APPEAL AGAINST GOOD FRIEND JUDGE WHO HAS A SON IN SAME COURT NOTHING TO SEE HERE OF COURSE SAYS THE SUPREME COURT JUDGE!
Two Scottish judges heading the Supreme Court is very unfair probably rigged by the sounds of this case
Dont forget the very same Lord Hodge protected the banks from mis-selling litigation
His ruling against businesses who took an action against RBS mis-selling of IRSAs to thousands of business customers is here https://www.scotcourts.gov.uk/search-judgments/judgment?id=b48e86a6-8980-69d2-b500-ff0000d74aa7
http://www.scotland-judiciary.org.uk/9/930/Grant-Estates-Limited-v-The-Royal-Bank-of-Scotland-plc
Grant Estates Limited v The Royal Bank of Scotland plc
Summary of the Opinion issued by Lord Hodge.
Grant Estates Limited (GEL) and its two directors raised an action against The Royal Bank of Scotland plc (RBS) in which they alleged the mis-selling of an interest rate swap derivative.
GEL was a developer of property in Elie which was funded by a loan from RBS which it took out in October 2007. The funding arrangement involved GEL entering into an interest rate hedging arrangement with RBS which had the effect of fixing the rate of interest due on the loan. The arrangement protected GEL from the risk of rising interest rates; but it also prevented the company from benefitting from falling interest rates.
The subsequent financial crisis caused interest rates to fall sharply in 2008 and rates have remained low ever since. As a result GEL had to pay considerably more as interest (or its equivalent) on its loan than it would have if it had had a floating rate of interest.
GEL got into financial difficulty and on 25 February 2011 RBS placed it into administration. GEL challenged that decision and has sought to have the administration suspended. In this action GEL alleged that employees of RBS in giving unsound advice to its directors had breached the regulatory rules in the Conduct of Business Sourcebook (the COBS rules) which the Financial Services Authority issued. It sought among other things damages resulting from the alleged breach of the COBS rules, breach of contract, and misrepresentation. RBS challenged the relevancy of the allegations in a legal debate.
In an opinion issued today Lord Hodge dismissed the action. He held that GEL had no right to pursue a civil action in the courts for the breach of the COBS rules and that it should seek any remedy for breach of those rules through the Financial Services Authority (FSA). He also rejected GEL’s claims (i) that RBS had broken its contract in the way its employees presented the transaction to it (ii) that RBS owed GEL a duty of care at common law to give proper investment advice and (iii) that RBS’s employees had been guilty of either fraudulent or negligent misrepresentation. Lord Hodge held that GEL had agreed a contract with RBS which governed their relationship and that that agreement excluded its common law claims. The agreement did not impinge on GEL’s right to seek a remedy from the FSA. Accordingly, if GEL could establish its allegation of mis-selling in breach of the COBS rules, its remedy lay with the FSA.
Also on IRSAs and the impact of the Lord Hodge ruling against businesses mis-sold financial products.
https://mbmcommercial.co.uk/grant-estates-ltd-v-rbs-a-knockout-blow-for-mis-sold-customers.html
Grant Estates Ltd v RBS: A Knockout Blow for Mis-sold Customers?
Posted on Aug 21, 2012
Lord Hodge delivered his much anticipated judgement yesterday which found in favour of RBS’ position and dismissed Grant Estates’ claim as irrelevant. The Court of Session decision is a serious blow to thousands of business customers who have suffered losses through the sale of interest rate swap agreements (IRSAs).
The case concerned a property company, Grant Estates (GEL), who entered into a swap agreement with RBS which fixed the interest rate on the company’s borrowings of £777,000. If interest rates had increased the swap agreement would have protected the company and saved it thousands of pounds but unfortunately it was entered into just before a significant fall in interest rates. The burden of paying the interest rates under the IRSA ultimately pushed the company into administration.
GEL argued that they had been given financial advice when they were told by the bank that interest rates were likely to rise and that the IRSA would protect the company. They further argued that they relied on the advice given by RBS in deciding to enter into the IRSA. However when entering into the IRSA, GEL had acknowledged reading RBS’ terms and conditions which stated that the bank was not giving advice. In addition there was a letter from the bank setting out the terms of the IRSA which contained warranties deemed to have been given by GEL that it had not received advice from RBS.
The following arguments were advanced by Grant Estates:
Breach of FSA’s Conduct of Business Rules (COBS)
GEL argued that all of RBS’ documentation containing waivers and disclaimers did not protect it from actions for breach of the FSA’s Conduct of Business Rules. However s.150 of the relevant Act (Financial Services and Markets Act 2000 (“FSMA”)) states that COBS only applies to contracts between the bank and a “private person”.
GEL argued that as there was no distinction in the European Directive between an individual person and a corporate person then the UK legislation should be interpreted in that way so companies such as GEL are entitled to sue the bank for a breach of COBS.
Lord Hodge held that the Directive did not require the UK to give customers the right to a civil action against the bank and the UK didn’t give the customers that right either in the legislation implementing the Directive. Accordingly, he concluded that GEL was not a private person and could not sue for breach of COBS.
Breach of Contract
GEL argued that their director had asked RBS employees for advice and they had provided him with financial advice so there was a contract to give advice from the parties’ actions. However Lord Hodge observed that there was a contract in existence (RBS terms and conditions) so there was no business necessity to imply a contract.
Negligent Misrepresentation & Negligent Advice
The basis for this remedy was that representations had been made by the bank that interest rates were likely to rise and the IRSA was protection which would limit GEL’s exposure to falling interest rates. GEL argued that the representations taken together gave the impression there was no other way of limiting GEL’s exposure.
However Lord Hodge took the view that where parties have agreed terms in a contract then a common law duty of care cannot be imposed which conflicts with the contractual terms. GEL, by signing the contracts agreeing that RBS would not give advice and they would not rely upon any statement as advice had contractually barred themselves from asserting that advice had been given and relied on.
The contractual terms gave RBS the power to give information and opinions which may well amount to advice and the customer was effectively hamstrung by the contract if action was ever taken for negligent advice.
more on the IRSA ruling by Lord Hodge
https://mbmcommercial.co.uk/grant-estates-ltd-v-rbs-a-knockout-blow-for-mis-sold-customers.html
While acknowledging the unequal bargaining power between RBS and GEL, Lord Hodge emphasised that customers could not rely on the COBS rules to create a common law duty of care in relation to giving financial advice. Moreover he asserted that statutory duties and remedies already exist under the FSMA so there is no need for common law remedies. Furthermore he argued that if a failure to follow COBS rules amounted to negligence then companies would be able to get round the “private person” statutory restriction in the FSMA.
A final argument advanced by GEL was that it was not fair or reasonable to include RBS’ terms of business restricting liability into the IRSA under the Unfair Contract Terms Act 1977. However in Lord Hodge’s opinion the terms of business agreed before the IRSA was entered into made clear that there was no advisory relationship between RBS and GEL so this argument failed.
In conclusion, Lord Hodge reached the view that the remedies of negligent misrepresentation and negligent advice were irrelevant.
Where does this leave mis-selling victims?
It is plain from the judgement that if customers have agreed the bank’s terms of business and entered into waivers and deemed warranties then there is little if any scope for arguing any of the legal remedies that were advanced by GEL. The devil really is in the detail and unfortunately the mass of small print excluding all forms of liability and warnings of risk has resulted in GEL coming unstuck in this case.
However there may be cases where owing to administrative difficulties or an oversight, the bank’s terms of business were never entered into which would greatly strengthen a customer’s position. If no terms of business were agreed and the IRSA was entered into then despite deemed warranties in the IRSA the customer may still be able to successfully argue the negligent misrepresentation and negligent advice remedies.
What needs to be borne in mind is that each case turns on its own facts; in another case terms of business may inexplicably not have been agreed prior to the IRSA or the bank have used illegitimate bargaining pressure to force the customer to enter into the IRSA. So while many mis-selling victims may be disappointed following the Grant Estates judgment, they should keep in mind that all hope is not lost.
I posted several comments in relation to the IRSA ruling by Lord Hodge.
For the sake of completeness a bank I will not name in my comment used the Lord Hodge ruling to sequestrate our business and strip my family of everything we worked for.There are many people who ended up like us and were ruined by this ruling.
The judiciary turned a blind eye to banks who lied to their customers time and again.
@ 28 January 2020 at 10:19
Thanks for the reminder, will look into this and would like to hear more about what happened in your case - please make contact via the blog email contact.
Good article Peter
Any reasonable person would not expect a judge who previously heard a case on so many occasions to decide the fate of an appeal related to the same case.This is completely unfair.
Also the letter from Louise di Mambro is addressed to the pursuer in person rather than a law firm or solicitor therefore unsure as to the format of appeal however the decision to send a copy of the response to Levy Mcrae seems odd almost vindictive given the circumstances quoted of this case.
Good God!
Why are MSPs allowing this travesty to continue? A blind man on a dark night could see that the Court of Session is plainly not fit for purpose.
Presently allowed to continue are;
1. A failed recusal register system.
2. A stubborn refusal by the Scottish Parliament to remedy the dire situation after EIGHT YEARS and make a judicial register of interests law.
3. The passing of a case by one judge with questions to answer to another of similar ilk.
4. The refusal by the Scottish Courts Service to publish a Court of Session decision regarding hearings considered to have been heard in public but kept from the self same public.
The legal system in Scotland is a travesty, as is the Scottish Parliament which allows this to continue unchecked.
This excellent report lays that bare for all to see, congratulations!
How is it judges get away with lying about their relatives in the same court and anyone else would be sacked?This is downright wrong there is no justification for something so sleazy
If the Supreme Court has no jurisdiction then why send a copy of the reply to the defenders law firm?
Its as Peter says this is more to do with judges protecting judges and their secrets than whatever was in the appeal and whatever really happened in that damages claim against Advance Construction.
re 15:35 comment
Obviously more to it than this single case because there are reports of judges deliberately concealing their interests all the time and make no mistake Lord Malcolm or whatever he wants to change his name to do as he pleases in the court will not be the only one hiding the fact his own kids are in the same court
The letter sounds as if they had a right good laugh at throwing out the case before it got any further
Be warned people this is our Supreme Court where the judges rule over us and interfere in politics at their leisure
Scottish Cherbi always posts the evidence so we can decide for ourselves.Good chap!
Eat your hard out all others who tell us a yarn and never publish what you are talking about!
@ 28 January 2020 at 13:08
Yes, there are pertinent questions as to why the time delay of eight years in the introduction of a register of judicial interests - although certainly the time passed has brought in substantial intel while also allowing the public to see for themselves the anger and bitterness of the judiciary after being asked the simple question of transparency - and to declare their interests as all others in public life are required to do.
@ 28 January 2020 at 15:16
Judges often grant themselves the power to do as they please - while ensuring any legislation relating to courts and justice are approved by the judiciary and the money making legal profession.
It is not really about justice, it is about lining the pockets of judges who say one thing in Scotland or the UK, then go on to work for and assist Human Rights abusing dictatorships, swearing multiple judicial oaths around the world and enriching themselves in the process.
You have the best handle on the judiciary Peter ..... it really is all about money and nothing to do with justice
I know of the son.No wonder daddy reluctant to disclose :D
I saw this on your twitter feed about judges lining their wallets in Kazakhstan
https://www.theguardian.com/law/2020/jan/25/lord-faulks-ipso-head-kazakhstan-under-fire
Head of press regulator advised Kazakh regime that suppresses free speech
New Ipso chief Lord Faulks worked at commercial court under former authoritarian leader Nursultan Nazarbayev
Mark Townsend
Sat 25 Jan 2020 17.05 GMT
The new head of the UK’s independent press regulator has been criticised for providing legal assistance to an authoritarian regime notorious for the arbitrary arrests of journalists, shutting down of newspapers and state censorship.
Lord Faulks QC, who became chair of the Independent Press Standards Organisation (Ipso) this month, was among a number of the judiciary hired in 2018 to help run a commercial court in Kazakhstan under the authoritarian leadership of the then president, Nursultan Nazarbayev.
Critics say the central Asian republic is plagued by corruption and human rights abuses and, in sharp contrast to Ipso’s ambition to “maintain freedom of expression for the press”, is classified as among the worst countries in protecting the media from interference.
The latest assessment by Reporters without Border ranked Kazakhstan 158 out of 180 countries, chastising its government for jailing journalists, controlling the internet and presiding over a “heritage of censorship”.
Human Rights Watch, in its recent annual update, cited “54 detentions, arrests, convictions, or limits on the freedom of journalists” between January and September 2019.
Hugh Williamson, director of Human Rights Watch’s Europe and central Asia division, said it was important that Faulks, a peer and former justice minister who was appointed a justice at a commercial court in Kazakhstan’s capital, Nur-Sultan, understood that accepting such a role meant he risked legitimising the regime. “Kazakhstan imposes severe limits on freedom of expression. We would expect him to be aware of the dangers of his role being used to legitimise an authoritarian government,” said Williamson.
Steve Goodrich, senior research manager at Transparency International UK, which campaigns against corruption, echoed the concerns. “Although some silks might see opportunities for reform when an autocrat asks for their assistance, they should be cautious that their work does not merely serve to launder the reputation of a corrupt and repressive regime,” he said.
In 2018, along with eight other judges and senior lawyers from the UK, Faulks began helping to run the Astana international financial centre court, which refers to the capital’s previous name. Faulks was contacted for comment on Friday but did not respond and it is not clear if the 69-year-old, who served as justice minister for three years from 2013, is still working for the Kazakh authorities.
When his role as chair of Ipso was first announced last year, Faulks said: “The freedom of the press is a crucial part of our democracy.”
It is also not known how much Faulks was paid for his work which is understood to have involved five visits a year.
When former prime minister Tony Blair began advising Kazakhstan’s president, leaked documents revealed he wanted more than £5m a year to advise Nazarbayev through his consulting business.
Williamson said: “He is likely to be getting lucrative consultancy fees for this work. Kazakhstan is very keen on attracting senior international figures to polish its image.”
Continued
Other notable figures among the eight-strong team of the judiciary include the former most senior judge in England, Lord Woolf, who was appointed head of the Kazakhstan court.
Williamson also said the court appeared not to be an attempt to raise legal standards in a country where last year’s successor to Nazarbayev, Kassym-Jomart Tokayev, has made little difference.
“We have very serious concerns about the independence of the judiciary and the courts system. Woolf and the other British judges are presiding over an island of high legal standards in a sea of much lower legal standards in a country where there’s no clear independent judiciary,” said Williamson.
Analysis from Reporters Without Borders, which noted press freedom in Kazakhstan is declining, found that while most of the major opposition national newspapers were banned in 2013, the remaining few “are collapsing under the impact of judicial proceedings”.
The Human Rights Watch report also highlighted direct attacks against the press, citing eight incidents including during a press conference in July last year hosted by a human rights group in which five journalists had equipment damaged or stolen. A radio station complained of repeated interference in its work, including attacks with pepper spray.
Woolf, who was lord chief justice of England and Wales from 2000 until 2005, was also contacted for comment.
After reading your excellent blog and this post I have no doubt UK/British judges are totally corrupt and the Scottish judges are the most corrupt of all.
Regarding the Kazakhstan story in the Guardian
You may be interested to know the judges were more interested in meeting and swaying politicians in Kazakhstan with a wider aim to stall trade and contacts with countries such as Russia, China and also US firms who were bidding for contracts.
You wont find this in any freedom of information response.
@ 29 January 2020 at 14:47
Thanks, and interesting - have seen similar before - members of the judiciary being used to project soft power and sanction biz deals, mix with big biz and politicians.
One example was Lord Brian Gill jetting off to Qatar and the lack of any information declared by the Judicial Office in relation to his trip and dealings there.
Can anyone tell me why judges are allowed to give themselves all the top jobs and no one ever gets to see how they do it?
The letter from the registrar states Lord Hodge says the UKSC has no jurisdiction.
So if Lord Hodge is correct them why did the Registrar copy her response to Richard Cullen of Levy and Mcrae if the court has no jurisdiction.
As someone said earlier the response and the copying of it to Cullen does look bitter and out of place, particularly as Lord Hodge will know all about the case having heard it so many times in the Court of Session.
@ 3 February 2020 at 13:07
Judges give their friends & allies judicial jobs via a 'Judicial Appointments' club front, which is stashed with the legal profession, their friends, vested interests and big money.
@ 3 February 2020 at 14:11
Yes, worth noting for anyone who is considering an appeal to the UK Supreme Court.
Anonymous Anonymous said...
Can anyone tell me why judges are allowed to give themselves all the top jobs and no one ever gets to see how they do it?
3 February 2020 at 13:07
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It's called corruption.
Just to let you know there is a raging pedo and groomer from the Scottish Courts and Tribunals Service who is following you on twitter and just like Yes Minister he spends his time on fb and instashag talking up kids and arranging meets
My line manager knows all about him but too afraid to speak up as he is a bully and mixes with a gang of pervs incl politicians who go to drug parties at lawyers fancy homes in Edinburgh and Glasgow.Please publish this comment and read the email I sent u
Levy Mcrae Heather Capital law firm in the news
https://www.dailyrecord.co.uk/news/scottish-news/judge-savages-law-firm-over-21457921
Judge savages law firm over £6 million bill for oil tycoon
Levy & McRae had billed businessman Robert Kidd the seven-figure sum after representing him in a successful damages claim against another firm of solicitors.
By Norman Silvester 9 FEB 2020
A massive £6million fee charged by blue chip lawyers to their oil tycoon client has been declared illegal by a judge.
Levy & McRae had billed businessman Robert Kidd the seven-figure sum after representing him in a successful damages claim against another firm of solicitors.
The £19 million settlement figure was paid to the Glasgow firm – which passed it on to Kidd minus its hefty bill – which included £3million of “success fees” for winning the case.
Kidd, from Aberdeen, then launched a legal action against Levy & McRae, claiming it should not have charged him the success fees on top of its basic bill.
Now, in a published judgment, Lord Doherty has confirmed that the fees were “illegal and unenforceable”.
He said the fees breached a legal principle designed to prevent conflict of interest when a lawyer has a financial stake in the amount a client gets in compensation.
His 41-page judgment follows a £3million action raised by Kidd and his firm A & E Investments in 2018 at the Court of Session in Edinburgh against Levy & McRae and advocate Jonathan Brown over their fees.
The £6million sum included a basic fee to Levy & McRae of £2.1million plus a success fee
of £1.89million. Jonathan Brown was paid £1.1million plus a success fee of £990,000.
Levy & McRae, which has a number of high-profile clients including ex-first minister
Alex Salmond, plans to appeal.
A spokesman said: “The damages case we were asked to undertake by Mr Kidd was among the most challenging and highly complex seen in the Scottish courts for many years. For that reason, before proceeding with the case, detailed discussions took place
and advice was sought on proposed fee arrangements to ensure they complied with all necessary legislation.
“We were satisfied our billing agreement, which was the subject of negotiation between this firm and independent legal advisers for Mr Kidd, was appropriate.”
Kidd has reported the firm and Brown to the Scottish Legal Complaints Commission (SLCC) and the Faculty of Advocates.
Lord Doherty said: “The substance of what was agreed was that the defenders’ (Levy & McRae and Jonathan Brown) remuneration would increase in proportion to the sum recovered.
“That gave them a clear pecuniary interest – a stake – in the amount recovered.
“In my view, that pecuniary interest created a conflict of interest which gave rise to
an unacceptable risk that the proper administration of justice might be obstructed.”
In October 2018, we reported how Kidd had hired legal costs expert Jim Diamond to assess the fees charged by Levy & McRae and Brown.
His report said: “This is the worst case I have encountered for unjustified overbilling and/or lack of legal costs information and/or costs control.”
Levy & McRae and Brown were originally hired by Kidd in 2015 in a claim against Edinburgh solicitors Paull and Williamson.
The firm acted for him in the sale of his share of an Aberdeen-based oil services company, ITS Tubular Solutions, to US private equity firm Lime Rock Partners.
Kidd claims he suffered financial losses as a result of advice they gave him.
The businessman said he was delighted with the Court of Session judgment in his favour.
Spokesman Diamond revealed he will be applying to recover the £2.9million in success fees. He added: “Mr Kidd is confident he will succeed at any such hearing.”
The SLCC and the Faculty of Advocates declined to comment.Jonathan Brown did not respond to our request for a comment.
saw this on your twitter timeline Crown Office lawyer suing her own boss!
https://www.glasgowtimes.co.uk/news/18221413.glasgow-lawyer-sues-lord-advocate-psychiatric-injury-claims-1-3m-case/
8th February
Glasgow lawyer sues Lord Advocate for 'psychiatric injury' claims in £1.3m case
By Ruth Suter
A Glasgow lawyer who is claiming to have suffered 'psychiartic injury' while working for the Crown Office will have her £1.3 million damages claim heard in Scotland's highest civil court.
Fifty-three year-old Laura Malone from Shawlands, is suing Scotland's most senior prosecutor, the Lord Advocate James Wolffe QC, at the Court of Session in Edinburgh.
She will be putting forward claims that she had to step down from her senior role as procurator fiscal after she became ill with depression. Lawyers for Malone will claim that as her former boss, Lord Advocate Wolffe did not do enough to stop her from suffering with poor mental health which was a result of the stress of her workload.
Malone is now looking to recomponsate for the loss of her earnings.
Legal papers in 2017 showed that Miss Malone had inititally sued the former Lord Advocate at the time Frank Mulholland QC. He was appointed a high court judge in 2016 and the case will continue against the current holder of the position, James Wolffe QC.
Miss Malone says that her bosses ignored her frequent complaints and requests for help and as a result, started to drink heavily. She says her bosses should have understood she suffered from workplace stress because she was displaying physical symptoms of the condition.
Her case will be heard in September.
"It must always be remembered that all laws are naturally and inevitably evolved by the strongest force in a community, and in the last analysis made for the protection of the dominant class."
Clarence Darrow.
It seems some judges don't even need a law degree to get a job, or know what the word recusal means;
https://www.rt.com/op-ed/481651-george-soros-european-court-judges/
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