RSS

Court of Session hears Legal Defence Union boss who met SLCC complaints Chief stands accused of SEVEN counts of misconduct by Law Society reporter

18 May

Court BrodieCourt of Session’s Lord Brodie hears Legal Defence Union boss accused of misconduct in Law Society report. DETAILS of a court case heard in Scotland’s Court of Session have revealed William Macreath aged 60, who is the head of the LEGAL DEFENCE UNION (LDU), a shady lawyer’s lobby group specialising in defending crooked colleagues has been accused of “five findings of inadequate services” and “seven findings of professional misconduct” by an unnamed reporter acting for the Law Society of Scotland. The stinging accusations against the LDU boss, who it was revealed last year had secret meetings with Jane Irvine, Chair of the Scottish Legal Complaints Commission (SLCC) in expensive Edinburgh hotels, are contained in one of four reports carried out by Law Society reporters investigating complaints originally made SEVEN YEARS AGO in 2005 by a fellow solicitor, Miss Norna Crabbe.

Details of the court case and allegations against Mr Macreath who is also a partner in Glasgow law firm Levy MacRae only came to light after the LDU boss petitioned the Court of Session for a Judicial Review against the Law Society of Scotland which in turn resulted in Miss Crabbe asking leave to enter the process and to lodge answers as additional respondent alongside the Council of the Law Society of Scotland in response to the petition filed by Mr Macreath.

Earlier this week, Miss Crabbe’s motion to the court to enable her to enter the case faced bitter opposition from advocate Helen Watts, acting on behalf of Messrs Simpson & Marwick who are representing Mr Macreath. During the debate on the case, the Judge, Lord Brodie who is known not to be a big fan of the media, heard the case had come about after it had taken the Law Society of Scotland no less than four reporters to wade through, investigate and report back on complaints made against Mr Macreath by Miss Crabbe in relation to litigation & legal services provided by Mr Macreath to Miss Crabbe over the dissolution of a firm in which Miss Crabbe had been a partner.

The court was told of how the third reporter who looked into the complaints made against Mr Macreath recommended that all heads of complaint made by Miss Crabbe against the petitioner be dismissed, with the exception of one finding of inadequate professional services upon which the third reporter recommended that no sanction be imposed on the petitioner in respect of that finding.

Miss Crabbe subsequently complained about the terms of the 2009 Report conducted by the third reporter and it was by way of response to Miss Crabbe’s complaint about the 2009 Report that the respondent made its remit (which the petitioner avers was of a limited nature) to the fourth reporter.

In what appears to be a complete reversal of the third reporter’s findings, the fourth reporter reported in terms of the 2011 Report. In the 2011 Report the fourth reporter made five findings of inadequate services against the petitioner and seven findings of professional misconduct. The fourth reporter did not make a finding of inadequate professional services in relation to the one head of the complaint which had been upheld by the third reporter.

In response to the allegations, the court heard in Mr Macreath’s pleadings that he made detailed written representations to the respondent about the unfairness of the approach adopted in dealing with Miss Crabbe’s complaint which led to the 2011 Report. The petitioner avers that he did not receive a substantive response from the respondents until 10 January 2012 when the respondent wrote to the petitioner advising that it proposed to proceed on the basis of the 2011 Report treating the 2009 Report as a nullity.

Details published by the court reveal Mr Macreath is seeking an interdict ad interim against the Council of the Law Society of Scotland from taking any procedural step to advance the disposal of the complaint by Miss Crabbe pending resolution of the proceedings; reduction of the Law Society’s decision of 10 January 2012 to set aside the 2009 Report and treat it as a nullity; an order by the Court ordaining the Law Society to set aside the terms of the 2011 Report; and an order by the Court ordaining the Law Society to obtain a supplementary report in terms specified at paragraph 14.4 of the petition.

However, after hearing both sides arguments in court, Lord Brodie granted Miss Crabbe’s plea to lodge responses, giving a fourteen day deadline for answers to be received by the court. The full terms of Lord Brodie’s opinion are reprinted below, however it should be noted there does not seem to be any mention of what work if any, the first & second reporters carried out with regard to Miss Crabbe’s complaints.

The opinion of Lord Brodie published by the Scottish Courts website is featured here and reprinted below : OUTER HOUSE, COURT OF SESSION [2012] CSOH 81 P47/12 OPINION OF LORD BRODIE in the Petition of WILLIAM COUPERTHWAITE MACREATH Petitioner; for Judicial Review of a decision taken by the Council of the Law Society of Scotland

Introduction

[1] In this application by motion in terms of rule 58.8(2) by Miss Norma Crabbe for leave to enter the process and to lodge answers as additional respondent to the petition, I heard Miss Crabbe in support of her motion and Miss Watts, Advocate, for the petitioner.

[2] Miss Crabbe objected to my hearing Miss Watts on the ground that, contrary to what appears on the Form 23.4 lodged on behalf of the petitioner, written intimation of opposition had not been given to her on the day that the opposition was lodged with the General Department, as required by rule 23.4(4). The relevant timetable of events, according to Miss Crabbe, was that she intimated her intention to enrol the motion by fax on Monday 30 April 2012. She enrolled the motion on Wednesday 2 May. Those acting for the petitioner lodged a form of opposition to motion (Form 23.4) with the General Department on 2 May but only intimated that opposition in writing to Miss Crabbe by way of letter which arrived on Thursday 3 May. The motion came before me on Friday 4 May. While I understood Miss Watts to dispute that there had been a failure to intimate opposition on 2 May, she accepted that she had handed an amended Form 23.4 to Miss Crabbe on the morning of 4 May prior to the motion calling before me. The amended Form 23.4 stated that the motion should be refused on the basis that the applicant was not directly affected by the issues raised in the petition and lacked the necessary interest and standing to justify her participating in the proceedings.

[3] Rather than taking further time to explore the factual dispute, I proceeded on the basis that, as Miss Crabbe claimed, written opposition to her motion had only been intimated to her on 3 May 2012 and that therefore there had been a failure to comply with rule 23.4(4). Rule 2.1 gives power to the Court to relieve a party from the consequences of failure to comply with the Rules of Courts. It is not entirely clear to me that there are necessary consequences of a failure to comply with the requirement to give written notice of opposition on the day of lodging it, at least where the motion is starred, the other party is on notice that the motion is opposed and the other party has attended to make her motion. But, assuming that it was open to me to refuse to hear Miss Watts or to grant the motion irrespective of its merits, I decided that it was entirely inappropriate for me to do so andto the extent that my hearing Miss Watts required me to exercise my powers under rule 2.1, I did so. In my experience at least, a motion such as this is unusual. It did not appear to me free from all difficulty. I welcomed the assistance which might be provided from either side of the bar and Miss Crabbe did not suggest that she had suffered any prejudice from having a shorter rather than longer period of notice of opposition.

The petition

[4] The petitioner is a solicitor. The respondent is the Law Society of Scotland. The petitioner seeks judicial review of a decision taken by the Council of the respondent, acting through its Regulation Department, and intimated by letter dated January 2011, to treat its report dated 28 September 2009, on a complaint against the petitioner (by Miss Crabbe) as a nullity and to proceed on the basis of the report, dated June 2011, on the same subject.

[5] Miss Crabbe is also a solicitor. The petitioner acted on her behalf between 1998 and 2005 in relation to litigation arising out of the dissolution of the firm of which Miss Crabbe had been a partner. Miss Crabbe became dissatisfied with the services provided to her by the petitioner in relation to this matter and in August 2005 intimated the complaint to the respondent which is referred to in the petition. The then statutory provision regulating such complaints was section 33 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Section 33 requires the respondent to investigate a complaint made by any person with an interest and thereafter make a written report to the complainer and the practitioner concerned. It is averred in the petition that the respondent has appointed a series of four separate reporters to deal with Miss Crabbe’s complaint. The report dated 28 September 2009 (“the 2009 Report”) was a report by the third reporter and the report dated June 2011 (“the 2011 Report”) was a report by the fourth reporter.

[6] The 2009 report by the third reporter recommended that all heads of complaint made by Miss Crabbe against the petitioner be dismissed, with the exception of one finding of inadequate professional services. The third reporter recommended that no sanction be imposed on the petitioner in respect of that finding. Miss Crabbe subsequently complained about the terms of the 2009 Report. It was by way of response to Miss Crabbe’s complaint about the 2009 Report that the respondent made its remit (which the petitioner avers was of a limited nature) to the fourth reporter. The fourth reporter reported in terms of the 2011 Report. In the 2011 Report the fourth reporter made five findings of inadequate services against the petitioner and seven findings of professional misconduct. The fourth reporter did not make a finding of inadequate professional services in relation to the one head of the complaint which had been upheld by the third reporter.

[7] The petitioner avers that he made detailed written representations to the respondent about the unfairness of the approach adopted in dealing with Miss Crabbe’s complaint which led to the 2011 Report. The petitioner avers that he did not receive a substantive response from the respondents until 10 January 2012 when the respondent wrote to the petitioner advising that it proposed to proceed on the basis of the 2011 Report treating the 2009 Report as a nullity.

[8] In these circumstances the petitioner seeks interdict ad interim against the respondent from taking any procedural step to advance the disposal of the complaint by Miss Crabbe pending resolution of the proceedings; reduction of the respondent’s decision of 10 January 2012 to set aside the 2009 Report and treat it as a nullity; an order by the Court ordaining the respondent to set aside the terms of the 2011 Report; and an order by the Court ordaining the respondent to obtain a supplementary report in terms specified at paragraph 14.4 of the petition.

Rule of Court 58.8(2)

[9] Rule 58.8(2) provides as follows:

“Any person not specified in the first order made under Rule 58.7 as a person on whom service requires to be made, and who is directly affected by any issue raised, may apply by motion for leave to enter the process; and if the motion is granted, the provisions of this chapter shall apply to that person as they apply to a person specified in the first order”.

Discussion

[10] It was Miss Watts’s submission on behalf of the petitioner that Miss Crabbe was not a person “directly affected” by any issue raised in the petition. The petition would not resolve Miss Crabbe’s complaint against the petitioner. To the extent that Miss Crabbe’s patrimonial interests had been adversely affected by the petitioner’s conduct of her affairs then her remedy was an action for damages. Moreover, it was not in the interests of expedient determination of the petition that Miss Crabbe should be allowed to participate. A two day first hearing had been fixed in the petition for 14 and 15 June 2012. It was likely that that hearing would have to be discharged if Miss Crabbe were to be added as a party.

[11] Miss Crabbe and Miss Watts were agreed that authoritative guidance as to what is meant by “directly affected” for the purposes of Rule 58.8(2) is to be found in the judgment of Lord Reed in AXA General Insurance Ltd v The Lord Advocate 2011 SLT 1061 at paras.170 to 175. In that passage, Lord Reed explains that the traditional analysis in terms of title and interest as a requisite for locus standi in a private law context, as set out in D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 712, is inappropriate where what is in issue are questions of public law, which is likely to be the case with an exercise of the supervisory jurisdiction. At para.174 of his judgment in AXA Lord Reed considers the terms of Rule 58.8(2). He explains that stipulation in the rule that a person must be directly affected by any issue raised, is no more than a reflection of the pre-existing requirement that a person must have sufficient interest. It is no more restrictive than that.

[12] There may be instances where having made a complaint to a regulatory authority the complainer should be taken to have surrendered any private interest in the matter to that authority but on the admittedly fairly superficial understanding of the scheme under the 1990 Act which I was able to glean from the parties’ necessarily brief submissions, I do not see this to be such a case. It would appear from the petitioner’s averments that the respondent involved Miss Crabbe in the complaints process. It entertained Miss Crabbe’s complaint about the 2009 Report. It invited her to submit material which she claimed had not been considered by the third reporter. The petitioner complains of lack of procedural fairness on the part of the respondent in its consideration of the complaint. It is at the very least arguable that just as the petitioner had an expectation of procedural fairness, so did Miss Crabbe. The petitioner complains of delay on the part of the respondent. So did Miss Crabbe when she came to address me. It may be that, in contrast to the petitioner, Miss Crabbe has no direct patrimonial interest in the outcome of the complaint, but I consider that I am entitled to have regard to her interest in being vindicated in the event of her complaint being upheld just as the petitioner has an interest (additional to any purely patrimonial interest) in being vindicated by the complaint being dismissed, either in whole or in part. Depending on the outcome of the complaint, I would expect parties to consider that they had “won” or “lost” to a greater or lesser extent. The terms of the operative reporter’s report may not be determinative of the complaint but any final decision will have to be based on that report, hence the petitioner’s wish for the 2011 Report to be set aside in favour of the 2009 Report with any further report being limited to an identification of the documentation which was not available to the third reporter and a decision on the significance, if any, of such additional documentation. If it is clear that the petitioner has an interest in setting aside the 2011 Report in favour of the 2009 Report, then, conversely, I would see Miss Crabbe as having an interest, albeit perhaps not a patrimonial interest, in the 2011 Report remaining as the operative report.

[13] Were it to be suggested (and Miss Watts did not so suggest), I would not be satisfied that it would be an answer to Miss Crabbe’s wish to participate that her interests can be adequately protected by the respondent’s opposition to the petition. It may be that the respondent will take and maintain all relevant points available in answer to the petition but Miss Crabbe has no guarantee that that will be so. It may be that with a view to the economical conduct of the litigation, Miss Crabbe will not choose to add anything to what is put forward on behalf of the respondent, but she cannot know in advance whether the points which are to be insisted upon on behalf of the respondent and the way in which the proceedings are conducted will exactly coincide with her view of her interests.

[14] Miss Watts argued that it was not in the interests of the expedient determination of the petition that Miss Crabbe be allowed to participate. Miss Watts envisaged that the hearing fixed for 14 and 15 June 2012 would have to be discharged. I am not satisfied that this is necessarily so but were it to be so I do not see it as a consideration which could prevent a directly affected person being granted leave to enter the process.

Decision

[15] I shall therefore grant Miss Crabbe leave to enter the process. Miss Crabbe sought leave to lodge answers and I would grant leave for her to do so, ordaining that these be lodged within 14 days of the date of the interlocutor granting leave. [16] I reserve all questions of expenses.

LEGAL DEFENCE UNION – DEFENDING CROOKED LAWYERS, ACTING AGAINST CLIENTS :

The LEGAL DEFENCE UNION (LDU) is a small, yet powerful organisation which regularly represents crooked lawyers against investigations of client complaints which are carried out by the Law Society of Scotland & the Scottish Legal Complaints Commission (SLCC). It is now well known the LDU regularly intervene in cases and make submissions to both the Law Society & SLCC on solicitors behalf while the clients who have made the complaints are routinely refused access to the LDU’s submissions, dubbed by some complaints insiders as “more often than not, threatening & intimidatory”.

A report into the Law Society of Scotland’s Master Policy carried out by the University of Manchester Law School in 2009 for the Scottish Legal Complaints Commission was handed documents linking the Legal Defence Union to suicides of clients who had complained about their solicitors. Details of the cases were referred to in the report, which can be read in an article by Diary of Injustice here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society’s Master Policy which ‘allows solicitors to sleep at night’

SLCC Lockhart montageInvestigation revealed Legal Defence Union rushed to aid £600K dodgy legal aid claims lawyer. Diary of Injustice conducted an in depth investigation into dealings between the Legal Defence Union and the Scottish Legal Aid Board (SLAB), revealing James McCann, a solicitor acting for the LDU brokered a deal between SLAB and the Law Society to deter action on complaints filed by SLAB against sole practitioner Niels S Lockhart, a solicitor who SLAB accused of making inflated claims for legal aid work after raking in SIX HUNDRED & SEVENTY TWO THOUSAND POUNDS of legal aid funds between April 2002 to March 2005.

Diary of Injustice reported on the secret deal struck between the Legal Defence Union, Scottish Legal Aid Board and the Law Society of Scotland to get Niels Lockhart off the hook from potentially being struck off, in an earlier article, here : One law for lawyers : Secret Report reveals Legal Aid Board, Law Society & Legal Defence Union ‘cosy relationship’ in Lockhart case

The secret SLAB report on Niels S Lockhart, obtained in 2011 by Diary of Injustice under Freedom of Information laws, can be viewed online here : SCOTTISH LEGAL AID BOARD S31 COMPLAINT REPORT TO THE LAW SOCIETY OF SCOTLAND : NIELS S LOCKHART

Jane Irvine SLCC ChairLegal Defence Union boss secretly met SLCC Chair Jane Irvine in no notes meetings at posh Edinburgh hotel. A further investigation carried out by Diary of Injustice into dealings between the Legal Defence Union and the Scottish Legal Complaints Commission revealed a series of secret off the record meetings at the plush Balmoral hotel in Edinburgh between Jane Irvine, the Chair of the SLCC and William Macreath, despite the fact Mr Macreath was under investigation by the Law Society of Scotland at the same time over complaints filed by solicitor Miss Crabbe. That report can be read here : Investigation reveals Scottish Legal Complaints Commission’s links, secret ‘off the record’ dealings with lawyers lobby group Legal Defence Union

Documents obtained from the SLCC under Freedom of Information disclosures revealed Mr Macreath and the SLCC Chair exchanged correspondence and letters agreeing that no notes of their meetings would be kept. The FOI disclosures can be viewed online or downloaded here : Legal Defence Union & Law Care involvement in complaints to SLCC & here : FOI Disclosure : Involvement & meetings between Scottish Legal Complaints Commission & Legal Defence Union

The Scottish Legal Complaints Commission was asked for their reaction over the allegations against Mr Macreath and what impact it may have on any discussions held between the SLCC’s Chair, Jane Irvine and the LDU Boss. No response has been received at time of publication.

Advertisements
 

Tags: , , , , , ,

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: