The files – in the form of a witness statement from Advocate Ewen Campbell – who is Lord Malcolm’s son – directly contradict statements by Lord Carloway - to the Public Petitions Committee and MSP Alex Neil in a hearing on 29 June 2017.
During the evidence session - Lord Carloway faced questions from Mr Neil on the Court of Session case - where judge & Privy Councillor Lord Malcolm (real name Colin Campbell QC) – heard a land contamination case - up to EIGHT TIMES while his own son represented the defenders - Advance Construction Scotland Ltd in the same court room.
In response to questions from the MSP, Lord Carloway (real name Colin Sutherland) furiously claimed that Lord Malcolm’s son DID NOT have any “active involvement with the case whatsoever.”
However – a witness statement dated May 2013 - signed by Ewen Campbell – covering the time Campbell worked for Glasgow law firm Levy & Mcrae – contains a written admission Mr Campbell confirming he did in-fact represented the construction company, alongside lawyer Peter Black Watson – who was at the time a Sheriff and partner at the same law firm.
During the hearing, Alex Neil - MSP for Airdrie & Shotts - asked Lord Carloway: “If, in any case—without referring to a specific case—a close relative of a judge is participating in the case, rightly or wrongly, the perception is that there may be a degree of prejudice.”
Mr Neil said there were concerns the reputation of the judiciary should be protected and added: “I would argue that, certainly in at least one case recently, which we have referred to briefly, the perception is that there may have been unfairness and prejudice in the way in which the matter was conducted, particularly as the judge concerned was involved in the case not once but on a number of occasions.”
In response – a clearly flustered Lord Carloway claimed no such events had taken place.
Carloway took a strong line against the questions, and replied to the MSP stating: “I disagree entirely with your analysis of that particular case and I repeat what I said earlier. The case that you refer to did not involve the judge’s son having any active involvement with the case whatsoever.”
However - on page one of the released witness statement of Ewen Campbell – Mr Campbell confirms he did work for the defenders – Advance Construction.
Ewen Campbell states: “In September 2011 I was asked by Professor Peter Watson (witness) to assist in a new case in which we were to act for Advance Construction (Scotland) Limited (“Advance”).”
Ewen Campbell goes on to admit he worked on the case for nearly a year: “I assisted with this case until Friday 15th June 2012. At this point I ceased assisting Professor Watson as I was informed by Senior Counsel that I was a potential witness in the matter.”
The exchange between Alex Neil and Lord Carloway can be viewed here:
Alex Neil & Lord Carloway on conflict of interest case Scottish Parliament June 29 2017
The released witness statement of Ewen Campbell – the contents of which call into question the honesty of Lord Carloway’s evidence to MSPs, can be found here: Ewen Campbell - Witness Statement - Nolan v Advance Construction
In just one example, Ewen Campbell states: “At approximately 4 p.m. I left Levy and McRae’s offices and attended at Branchal Road. I was driven by Ian Butler, a colleague at Levy & McRae. On arrival at the site I observed that a number of vehicles were at the gate of the site. Mr Butler and I therefore parked our vehicle just round the comer from the entrance of the site.”
Ewen Campbell is later forced to account for allegations a Grangemouth based firm - IKM Consulting Ltd – employed by Levy and Mcrae as their ‘experts’ in the case – dumped contaminated materials at a site owned by the pursuer – Mr Nolan.
Despite Lord Carloway’s abrupt statement that Lord Malcolm’s son did not have “any active involvement with the case whatsoever” - Ewen Campbell goes on to say in his witness statement he personally talked to a legal representative of the pursuer - and talked the solicitor down from his client’s initial allegation IKM Consulting Ltd dumped contaminated material during their on-site activities for Levy and Mcrae & Advance Construction (Scotland) Ltd.
Ewen Campbell states: “I contacted [solicitor] regarding this who detailed that his clients had originally stated to him that IKM had dumped contaminated materials on the site but after further questioning reduced the allegation to having dumped soil like materials on site.”
Bizarrely, Lord Malcolm’s son adds within his statement he did not instruct IKM Consulting Ltd to dump any materials during their on-site activities under his supervision.
Campbell also admits to accepting additional instructions to work on the case in which Carloway claimed he played no active role in.
Ewen Campbell further stated: “Before I ceased assisting Professor Peter Watson in relation to this case, I was instructed on a number of occasions to prepare and send letters and emails to those acting on behalf of Mr Nolan.”
It should be noted that despite Ewen Campbell’s ‘account’ of events around the IKM Consulting incident - Advance Construction were subsequently forced to admit in the Court of Session before Lord Woolman that they had in-fact illegally dumped contaminated materials on Mr Nolan’s land.
Melanie Collins, partner of Mr Donal Nolan – who was the pursuer in Nolan v Advance - said: “I found Lord Carloway’s evidence to be entirely dishonest during his responses to out MSP Alex Neil. I was astounded by how he misled Mr Neil and the entire committee on what happened in our case and how we were treated very badly by Lord Malcolm and others.”
Last night, a legal expert who viewed the material and video footage from the Committee hearing, suggested it was difficult to see how Lord Carloway could make such a false statement to the Scottish Parliament and not expect to be asked to explain himself.
Commenting on the new evidence, the legal expert said: “I am concerned Scotland’s top judge feels secure enough in the environment of a Scottish Parliament hearing – and public expectation of transparency - to make such false and egregiously misleading claims.”
He continued: “The written evidence and records of multiple court hearings suggest Lord Carloway is entirely wrong, and is determinedly at odds with the facts of this case, in his account of events to the Public Petitions Committee and Mr Alex Neil.”
Now, Carloway’s account of events to Mr Neil and the Petitions Committee is to be submitted to the Scottish Parliament’s Justice Committee alongside a report on conflicts of interest of key stakeholders in Scotland’s justice system.
A full investigation into Ewen Campbells's father - Lord Malcolm - and his role in the Nolan v Advance case – including serious failures to declare conflicts of interest, is reported in further detail 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.
The further revelations of Lord Carloway’s links to the land contamination case come after an earlier investigation revealed Lord Carloway failed to declare his own son – Alexander Colin Maclean Sutherland – also worked for the merged law firm of Addleshaw Goddard-HBJ Gateley - which was trying to evict a couple at the centre of the case raised by Mr Alex Neil during the Committee hearing in 2017.
Mr Neil was invited to attend Committee hearing to quiz Lord Carloway on what legal experts say is one of the most serious cases of judicial conflict of interest in Scotland’s courts – Nolan v Advance Construction Scotland Ltd [2014] CSOH 4 CA132/11.
In the outburst from the top judge, Lord Carloway said to Mr Neil: “The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.”
Alex Neil replied to Lord Carloway, stating: “No—we have to register what close relatives do.”
Lord Carloway - clearly rattled by questions from Alex Neil and fellow MSPs about another top judge who concealed he heard a case involving his own son - hit out at Mr Neil and members of the Public Petitions Committee in video footage which can be viewed here: Lord Carloway - Judges should not declare relatives interests Scottish Parliament 29 June 2017
The terse exchange – one of many in the evidence session - led to material obtained during a probe by journalists which revealed Lord Carloway’s son – Colin Alexander Maclean Sutherland – worked at the time for the merged law firm Addleshaw Goddard & HBJ Gateley - who became key players in the aftermath of Nolan v Advance Construction (Scotland) Ltd.
However – Lord Carloway did not declare this conflict of interest during the Holyrood hearing.
Instead; the top judge went on to attack other Committee members and Mr Neil - over their backing for a cross party supported petition to require judges to declare and register all their interests.
Minutes before the exchange, Carloway had even denied even receiving any communications from the couple at the centre of the case - however records show Carloway’s legal secretary - Roddy Flinn – now himself a Sheriff – sent acknowledgements to the couple on 24 May 2016.
Papers show Addleshaw Goddard & HBJ Gateley were acting on behalf of Kenneth Pattullo of insolvency practitioners Begbies Traynor – who were appointed by Advance Construction’s lawyers – Levy and Mcrae – to seize the home, land, a farm, and all assets of Ms Melanie Collins & retired National Hunt jockey Donal Nolan.
The couple took on Advance Construction (Scotland) Ltd - over a land contamination incident on their land in Wishaw.
The construction company - owned by businessman Seamus Shields was ultimately forced to admit illegal dumping of material in the Court of Session case before judge Lord Woolman.
Roderick William Dunlop QC of Axiom Advocates, Ewen Campbell of Axiom Advocates and Peter Watson – now formerly of Glasgow based Levy & Mcrae - represented Advance Construction (Scotland) Ltd.
It should be noted Peter Watson - who ran the case for Advance Construction (Scotland) Ltd 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.
An earlier investigation of this case revealed when Lord Woolman (who heard the proof after the case was passed to him by Lord Malcolm) - stated in court papers that Mr Nolan had a case, John Campbell QC removed – without instruction – most of his client’s own case including over £4million and a claim for legal costs – after he had discussions with the current vice dean of the Faculty of Advocates – Roddy Dunlop QC.
A full report on how the couple’s legal representative in court - John Campbell QC reduced his own client’s financial claim almost to zero and without any instruction or consultation - can be found here: CASHBACK QC: Legal regulator’s files reveal senior QC reduced claim without instructions, withheld key evidence & witnesses including Cabinet Secretary from Court of Session case
A full report on Watson’s suspension from the judicial bench can be found here: CAPITAL JUDGE: As top judge suspends sheriff over £28m law firm writ alleging links to £400m Heather Capital collapse, what now for Lord Gill’s battle against a register of interests & transparency for Scotland’s judiciary
Watson’s suspension from the judicial bench lasted for over three years – a record term of suspension of a member of Scotland’s judiciary and ended with Watson’s resignation in 2019, reported in further detail here: SHERIFF WALKS: Scottish Courts confirm lawyer & part-time Sheriff Peter Watson - who was named in £28M Heather Capital writ linked to collapsed £400M hedge fund – resigned from the judiciary in 2018
The full exchange between Lord Carloway (real name Colin Sutherland) and Alex Neil MSP at the Public Petitions Committee can be viewed, with transcript, below:
Alex Neil questions to Lord Carloway Register of Judges interests Scottish Parliament 29 June 2017
Alex Neil (Airdrie and Shotts) (SNP): I apologise for being slightly late. I had to go to the Public Audit and Post-legislative Scrutiny Committee. I apologise in advance if I cover ground that has already been covered.
Lord Carloway, as an issue of principle, do you think that it should be left only to a judge to decide whether they are going to recuse themselves, or should you or the keeper of the rolls be able to insist on recusal if you believe that there is a potential conflict of interest?
Lord Carloway: The short answer is that I do not believe that there is any problem with the current system, which is that the judge, who knows what his connection is to the case or the parties to it, should make the initial decision. That decision is made in open court, when the parties are present, and it is subject to review on appeal. In other words, if somebody is dissatisfied with that decision and if the litigant eventually loses the case, the decision will come before three judges who will review whether it was correct. If it was incorrect, the decision on the case would fall.
Alex Neil: The person bringing the case to court may not be aware of any conflict of interest that the judge may have and may never find out that there was one, but the judge may well have been influenced by a particular interest. Surely that is not right. If there is any potential conflict of interest, surely there should be a declaration or commitment by the judge, making an explicit statement that there is no conflict of interest. People may not have the resources to appeal, for example. Is the system not balanced against people who come to court for justice?
Lord Carloway: No, it is not. I go back to something that I mentioned earlier, which is very important. Scotland does not have a corrupt judiciary. The matter has been examined by independent persons, notably the GRECO anti-corruption body that operates under the auspices of the Council of Europe, which examined the UK judiciary, including the Scottish judiciary. It was clear that, fortunately, we, as distinct from many other countries, do not suffer from corruption in the judiciary. For that reason, it did not consider that a register of interests was necessary. If one introduces such a measure, one has to be satisfied that it is necessary and also that it is proportionate. If one analyses its proportionality, one has to look at what exactly we are guarding against. If the situation were to be that there was corruption in the Scottish judiciary—which we would discover at some point or another—of course we would have to consider measures to prevent that, one of which might be a register of certain interests. Until such time as it is demonstrated that there is corruption in the Scottish judiciary, I am entirely satisfied that there is no requirement for a register of interests and that it would be positively detrimental to the administration of justice, particularly in relation to the recruitment of judges and especially at the higher level of the judiciary.
Alex Neil: I want to draw a parallel with the register of interests that members of the Scottish Parliament have to sign and regularly update. That came about not because of any allegations or belief that the system was corrupt or that members of the Scottish Parliament are corrupt. In the 18 years that we have been here, I have not heard one allegation of corruption. The register is there not because of allegations of corruption but to ensure that there is no prejudice. If I participate in a debate and I have an interest that I have not declared, I will be open to an allegation not of corruption but of prejudice. Because there is a register of interests and because I have to declare interests in a debate or in a committee meeting such as this one, there is a transparency to ensure that I do not act in a prejudicial fashion.
To go back to the case that Mr MacDonald cited as I came in—the case of Advance Construction and Donal Nolan, in which Lord Malcolm’s son was involved as a lawyer for one of the parties—the issue there was not an allegation of corruption but one of possible prejudice or perception of prejudice. That is a very good example of why either a register of interests or a more robust system of recusal—or perhaps both—might serve the judiciary very well.
Lord Carloway: I am satisfied that Lord Malcolm’s actions were entirely honourable and that he acted in accordance with the code of judicial ethics. I am not sure what is—
Alex Neil: Have you investigated it?
Lord Carloway: I am aware of the background to it.
Alex Neil: No, but have you investigated it?
Lord Carloway: I have read the papers that it involves.
Alex Neil: With all due respect, Melanie Collins and Donal Nolan have written to you on numerous occasions, and at no time have you replied to them, let alone met them, so you have not heard the other side of the case.
Lord Carloway: I am sorry, but I am not aware of letters to me by those particular persons.
Alex Neil: Your office—
The Convener: Alex, let us be careful that we do not get into anything specific on that.
Alex Neil: Yes—absolutely. My point is about how Lord Carloway can reach that conclusion if he has not heard the other side.
Lord Carloway: I have read documents emanating from the persons that you have mentioned. As far as I am aware, they were not addressed to me, but I could be wrong about that. The position is that I am aware of the circumstances of the case. I am satisfied that Lord Malcolm’s conduct was entirely correct in the circumstances. That is part of the problem that you have perhaps highlighted. That case has nothing to do with a register of pecuniary interests. The suggestion is that we should start registering what our relatives are doing, where they are working and matters of that sort, which I suspect would go way beyond even what is expected of politicians.
Alex Neil: No—we have to register what close relatives do.
Lord Carloway: Can I deal with the difference between MSPs and the judiciary, which I think I dealt with earlier this morning? It is quite a different function. A politician is by nature someone who is not independent in the sense that the public expect the judiciary to be. That is not a criticism; it is a reality. As a generality, judges do not deal with the type of issues that politicians deal with. Politicians have executive power. They are dealing with major economic interests of one sort or another. As a generality, judges are not dealing with that type of thing. They are dealing with issues that are usually between private individuals but can be between private individuals and Government or others. Judges are not dealing with the type of issues that politicians are dealing with such as planning inquiries and so on at a local level or major economic development in society as a whole.
The need for independence in the judiciary is different from the kind of independence that a politician requires, because with a politician it is primarily, as Alex Neil has pointed out, about issues of a pecuniary nature. Those are not the issues that arise in most of the recusal cases with which we are concerned. What we are concerned with as judges is that we appear to be independent of all connection with the case. It is not a question of having a pecuniary interest.
If one looks at the register of recusals in the past year, I do not think that any of them were to do with pecuniary interest at all. They were to do with social connections with people—whether someone is a friend; whether a party to the litigation is a friend of a friend; and matters of that sort. Those are the types of situations that are raised by people in the practical reality of litigation and those are the issues that are being dealt with. Unless you are suggesting a register of one’s friends—and presumably, therefore, one’s enemies—the real issue with recusal in the judicial system would not be addressed.
The Convener: Last question, please, Mr Neil.
Alex Neil: If I can just finally draw the parallel between our register and what has been talked about in terms of either recusal or financial interest, MSPs—as individuals and collectively—do not have executive power per se unless they are ministers, but what is very important is the perception of fairness and the perception that justice is being carried out.
If, in any case—without referring to a specific case—a close relative of a judge is participating in the case, rightly or wrongly, the perception is that there may be a degree of prejudice. It might be very unfair, but the point is to try to ensure that the excellent reputation of the judiciary down the years in Scotland is retained. That reputation is not just for not being corrupt, which we all accept—we are not accusing anybody of corruption. The perception of fairness and the perception of not being prejudiced are also extremely important. I would argue that, certainly in at least one case recently, which we have referred to briefly, the perception is that there may have been unfairness and prejudice in the way in which the matter was conducted, particularly as the judge concerned was involved in the case not once but on a number of occasions.
Lord Carloway: I disagree entirely with your analysis of that particular case and I repeat what I said earlier. The case that you refer to did not involve the judge’s son having any active involvement with the case whatsoever. We have very clear rules in our statement of principles of judicial ethics on how to deal with such matters and it is made very clear in that statement that if a relative is the advocate in the case before one, the modern approach is that the judge should not hear the case, or one could put it another way round—the relative should not be presenting the case. Whichever way it happens to be put, the situation that we had 20 or 30 years ago, when it was commonplace for the relatives of judges of one sort or another to be advocating the case, no longer exists.
That practice no longer exists not because it was thought that there was any actual problem with the decision making but, as you say, because of a perception of unfairness. There is a clear judicial rule about that and I am not aware of any case in which it has been breached. I myself have been in a situation in which my son was involved in a firm that was litigating before me. In such a case, the judge would be expected to declare it and the parties would then decide whether to take the point. However, if they took the point and the relative just happened to be a member of the same firm operating in a different department, I would not encourage the judge to recuse himself.
The Convener: There are no final questions, so I thank you very much for your evidence. It has been helpful to clarify many of the issues that you presented to us in written evidence and to have an opportunity to explore some of the issues around prejudice, for instance.
An earlier investigation revealed Lord Carloway failed to declare his son was linked to the same case: JUDGE OF CONFLICT: Top judge who attacked MSPs over judicial interests probe – failed to declare relative’s role at law firm targeting MSP’s constituents’ home & farm in £6M court case linked to Lord Malcolm conflict of interest scandal
A report being compiled for an investigation of judges’ conflicts of interest by Holyrood’s Justice Committee – has revealed Scotland’s top judge – Lord Carloway - concealed a critical conflict of interest while giving evidence to the Scottish Parliament on a proposal to create a register of judges’ interests.
Lord Carloway’s failure to declare his own link to a case he initially claimed to know little of - while answering questions from MSP Alex Neil - was made all the more serious after the top judge himself openly attacked Mr Neil and other members of a Holyrood committee - for daring to suggest judges should declare their relatives interests in a planned register of judges’ interests.
The report on Lord Carloway’s testimony to Holryood’s Public Petitions Committee will reveal that Lord Carloway (real name Colin Sutherland) did NOT declare to MSPs that his own son – Alexander Colin Maclean Sutherland – also worked for the merged law firm of Addleshaw Goddard-HBJ Gateley - which was trying to evict a couple at the centre of the case raised by Mr Alex Neil during the Committee hearing in 2017.
The exchange between Lord Carloway and Alex Neil – one of many in the evidence session - led to material obtained during a probe by journalists which revealed Lord Carloway’s son – Colin Alexander Maclean Sutherland – worked at the time for the merged law firm Addleshaw Goddard & HBJ Gateley - who became key players in the aftermath of Nolan v Advance Construction (Scotland) Ltd.
However – Lord Carloway did not declare this conflict of interest during the Holyrood hearing.
Instead; the top judge went on to attack other Committee members and Mr Neil - over their backing for a cross party supported petition to require judges to declare and register all their interests.
Minutes before the exchange, Carloway had even denied even receiving any communications from the couple at the centre of the case - however records show Carloway’s legal secretary - Roddy Flinn – now himself a Sheriff – sent acknowledgements to the couple on 24 May 2016.
Papers show Addleshaw Goddard & HBJ Gateley were acting on behalf of Kenneth Pattullo of insolvancy practitioners Begbies Traynor – who were appointed by Advance Construction’s lawyers – Levy and Mcrae – to seize the home, land, a farm, and all assets of Ms Melanie Collins & retired National Hunt jockey Donal Nolan.
A recent perusal of Mr Sutherland’s online legal biography at Ampersand Advocates and the Faculty of Advocates - does not mention his time at the merged firm of Addleshaw Goddard-HBJ Gateley in his online legal career:
Alexander Colin MacLean Sutherland BIO:
Year of Call: 2018; Since calling to the Bar in June 2018, Alex has developed a general practice centred on commercial law and public law, including judicial review and planning. He has appeared in the Court of Session, sheriff court and Scottish Solicitors’ Discipline Tribunal. He has also provided Opinions on a wide range of matters, including contractual disputes, insolvency and property.
Before calling to the Bar, Alex trained with a commercial firm in Edinburgh. He completed his LLB at Glasgow University in 2014 and the Diploma in Professional Legal Practice at Edinburgh University in 2015. Before then, he studied German and English Language at Edinburgh University, during which time he spent a year studying in Vienna.
He speaks fluent French and German and is well placed to undertake work involving consideration of documents in those languages.
Selected recent cases: Community Windpower Ltd v Scottish Ministers (ongoing): Inner House, Court of Session; For the appellants. Appeal against a Reporter’s decision. With Ailsa Wilson QC.
Tasmina Ahmed-Sheikh v (1) Scottish Solicitors’ Discipline Tribunal and (2) Council of the Law Society of Scotland [2019] CSOH 104; 2020 SLT 1: Outer House, Court of Session; For the petitioner. Judicial review of the first respondent’s decision on expenses.
Saadi v Whiterock Investments Ltd: Outer House, Court of Session; For the defenders. Pursuer seeking reduction of the decree awarding his sequestration.
Ford v The Firm of W&AS Bruce [2020] SC KIR 9: Kirkcaldy Sheriff Court; For the pursuer. Action of damages against a firm of solicitors for failing to advise the pursuer to include a survivorship destination when disponing half of his property to his partner. Debate on prescription.
NCS Office Services (Scotland) Ltd v Emtelle UK Ltd: Glasgow Sheriff Court (Commercial Action); For the defenders. Proof before answer on whether one of the defenders’ employees had authority to enter into a contract with the pursuers on behalf of the defenders.
Law Society of Scotland v WM: Scottish Solicitors’ Discipline Tribunal; For the respondent. Preliminary hearing on whether the complaint should be dismissed due to excessive delay.
However, when Ampersand Advocates welcomed Alexander Sutherland to their stable in 2018 – Mr Sutherlands spell at Addleshaw Goddard did gain a mention, without reference to his father being Scotland’s top judge - here: Ampersand welcomes Alexander Sutherland
HOLYROOD SUPPORT FOR REGISTER OF JUDGES’ INTERESTS:
Petition PE1458: Register of Interests for members of Scotland's judiciary – originally lodged at the Scottish Parliament in 2012 – calls for the creation of a publicly available register of judicial interests – containing information on all judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.
Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, 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.
