Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 74
P47/12	SUPPLEMENTARY OPINION OF LORD DRUMMOND YOUNG in the Petition of Mr MacR Petitioner; for Judicial review of a decision of the Law Society of Scotland ________________

Petitioner: Ferguson, QC; Watts; Simpson & Marwick

Respondent: (Law Society of Scotland): Lindsay, QC; Anderson Strathern LLP

(Interested Party): Miss C, personally

2 May 2013

[1] The petitioner raised proceedings for judicial review of a decision of the Law Society of Scotland dated 10 January 2012 regarding the investigation of a complaint made by the interested party against the petitioner. The Law Society appeared as respondents to the petition. A first hearing in the petition took place before me between 22 and 24 January 2013. On 20 February I issued an opinion and on the same date I pronounced an interlocutor reducing the respondents' decision of 10 January 2012. In my opinion I discussed the question of the appropriate remedy at some length (at paragraphs [48]-[50] of the opinion).

[2] In investigating the complaint made by the interested party against the petitioner, the respondents had ordered four separate reports. The first two are not relevant. The third, produced in 2009, largely exonerated the petitioner, but the interested party complained that significant material had not been considered by the third reporter. The third reporter was unwilling to act further in investigating the complaint, and consequently the respondents instructed a fourth report from a different reporter. The fourth reporter in a report produced in 2011 came to conclusions that were radically different from those of the third reporter. The respondents' decision of 10 January 2012 was that they should proceed on the basis of the 2011 report and treat the 2009 report as a nullity.

[3] As to the appropriate remedy, counsel for the petitioner sought an order for reduction of the respondents' decision of 10 January 2012, and a further order that a supplementary report should be prepared reconsidering the 2009 report in the light of the new material that had been produced by the interested party. That report should not be produced by the fourth reporter but by either the third reporter or a wholly new fifth reporter. The exercise contemplated was that the reporter should examine the 2009 report and the new material produced since then and, in the light of parties' representations, consider whether any of the conclusions in the 2009 report should be altered in the light of the new information.

[4] Counsel for the respondents submitted that a fair decision on the complaint against the petitioner was still possible, and that they should be permitted to continue with their ordinary procedures. It was not clear that the third reporter would be willing to prepare a supplementary report, and it might therefore be necessary to appoint a fifth reporter. In that event, it would be appropriate to have the petition put out By Order to discuss further procedure.

[5] As I have indicated, I decided to reduce the decision of 10 January 2012 on the basis that the procedures that led to the 2011 report were flawed. As to what should happen thereafter, I agreed generally with the submissions for the respondents. Consequently I decided that the case should call By Order in order to discuss what further orders or procedures might be appropriate. It was not clear, in particular, that the third reporter would be willing to return to the case; nor was it clear what alternatives might be available. It was also unclear whether a new reporter should prepare a wholly fresh report or a supplementary report.

[6] When the case called By Order, I heard counsel for the petitioner and respondents and the interested party personally. Counsel for the petitioner maintained his earlier position that either the third reporter or a new reporter should consider what revisals were necessary to the 2009 report in the light of such new information as had been made available. Counsel for the respondents indicated that the third reporter had been unwilling to act further, and that there was no alternative to the appointment of a fifth reporter. A particular individual had been identified for this purpose. Counsel submitted that the fifth reporter should be requested to produce a further report, taking account of all the documentation that had been produced.

[7] I decided that the exercise suggested by counsel for the petitioner was not likely to be practicable, essentially for the reasons given by the fourth reporter for not producing a supplementary report: these are set out at paragraph [32] of my earlier opinion, and I comment on them at paragraph [33]. In essence, the fundamental problem is that a new reporter could not reconstruct the intellectual processes that led to the conclusions contained in the 2009 report, and in particular could not know how much of the documentary material now available had been seen by the third reporter. Furthermore, it was impossible to know how much importance was attached by the third reporter to any particular item of evidence. Those considerations seem to me to be valid, and they were likely to apply to a fifth reporter just as much as they applied to the fourth reporter. I accordingly consider that there is no alternative to the instruction of a new report from a fifth reporter, and I will so direct the respondents. All of the documentation made available to the respondents must obviously be supplied to the fifth reporter. The petitioner, and the interested party, will both be entitled to make submissions to the new reporter. The petitioner, in particular, may make submissions about the 2009 report and the conclusions reached by the third reporter in that report. This means that the views of the third reporter, which favoured the petitioner, will be fully put before the fifth reporter. Beyond that, I do not think that it is necessary for me to make any detailed orders about procedure; I consider that the respondents, as the body with statutory responsibility for disciplinary procedures involving solicitors, can be trusted to act in a sensible manner.

[8] Finally, I should notice two errors in my earlier opinion that have been drawn to my attention. First, at paragraphs [28] and [29] I made reference to a letter written by the respondents to the interested party on 23 February 2011 (no. 6/91 of process), in which the interested party was informed that the fourth reporter was free to depart from the recommendations of the previous reporter if he considered that the evidence supported a different view. I further referred to a letter written by the respondents to the petitioner (no. 6/80 of process) in which they stated that the reporter was to produce a supplementary report rather than a completely fresh report. I described that letter, no. 6/80, as having been written the day following the letter to the interested party, no.6/9, that is, on 24 February 2011. In fact the letter no. 6/80 was written on 24 February 2010, a year previously. Thus the respondents did not present inconsistent accounts of the procedure to the interested party and to the petitioner on successive days; the statement to the petitioner had been made at an earlier stage, when the respondents thought that a reporter would be able to prepare a supplementary report rather than a new report. I regret any difficulties that may have been caused to the respondents by this error regarding the date of the letter no.6/80 of process.

[9] Nevertheless, this does not affect the underlying reasoning in paragraphs [28] and [29] of my opinion. The petitioner was not sent any letter equivalent to no. 6/91 of process, to inform him that a decision had been taken to prepare a new report rather than a supplementary report. Thus the steps taken by him to present his case would be based on a belief that a relatively limited exercise was being undertaken; it would not be necessary for him to make detailed and comprehensive submissions upon the whole of the complaints made against him, and he could reasonably assume that the findings in the 2009 report would remain intact unless something in the new material led to a different conclusion. It appeared to me important that the petitioner should know precisely what was happening procedurally at any particular stage, and not to inform the petitioner of the wider task being undertaken by the fourth reporter was misleading and inevitably meant that the petitioner did not have a full understanding of the procedure being used.

[10] Secondly, it was pointed out to me that paragraph [46] of the opinion begins by stating that the petitioner made certain representations regarding disciplinary procedures. As is clear from the context, the reference to the petitioner should be a reference to the interested party, as in the preceding and following paragraphs.