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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

06 May

Lord Carloway failed to declare link to judicial conflict case. A REPORT being compiled for an investigation of judges’ conflicts of interest by Holyrood’s Justice Committee – will reveal 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.

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 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.

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.

However – the couple’s £6million damages claim – led by John Campbell QC – ended badly after a series of undeclared conflicts of interest by some of Scotland’s most senior judicial figures, instances where judges were switched from hearing to hearing, a series of refusals of legal costs claims, and denied requests to appeal in Edinburgh, and at the UK Supreme Court in London.

In a sequence of discussions and a meeting between Campbell and defenders counsel Roddy Dunlop QC which took place after Lord Woolman stated in court that Mr Nolan had a valid claim – John Campbell QC embarked on a series of unauthorised actions – and destroyed his own client’s case – by removing most of the financial claim – without consultation or obtaining permission to do so.

A recent probe established John Campbell – who agreed to act on a no-win-no-fee basis in the case – then went on to scam his client Mr Nolan for hundreds of thousands of pounds in unexpected legal fees, while also demanding thousands of pounds at a time – in cash – which the senior QC and now Edinburgh Quaich Project Charity Boss insisted on collecting in person

A full investigation of Campbell’s fee scam and the Faculty of Advocates role in concealing undeclared cash payments to Campbell is reported in further detail here: CASH ADVOCATE: £9K consultations & £75K meetings – Edinburgh Quaich Project Charity QC Boss scammed clients on no-win-no-fee deal – Faculty of Advocates files reveal extent of Advocates cash-for-fees HMRC tax dodge scam

Mr Nolan and his partner remain constituents of MSP Alex Neil – who has followed and supports their efforts to have the case re-opened, as well as an investigation into events.

Since the sequestration of Mr Nolan and his partner took place, after the conclusion of their court case, the couple have been the victim – of what some view as revenge for daring to take on a company with public contracts who illegally dumped hazardous waste on their land, where this same company was and is represented by law firms directly linked to senior figures in Scotland’s judiciary.

Mr Nolan and his partner have been evicted from their own home, lost their farm and land.

And – a deliberate, targeted fire attack on Mr Nolan’s stables at a farm in 2019 which resulted in the death of several horses –  is still under investigation by Police Scotland.

Sources believe the deliberate arson attack on the couple’s Morningside Farm which featured in news reports of the tragic discovery of burned bodies of dead horses – is linked to the couple’s sequestration and setbacks in court.

And, recently, evidence has come to light of burned out vehicles possibly connected to the incident which were photographed located at a premises linked to potential suspects.

Now, there are calls for an independent, public inquiry into events which occurred during the case, the role of Advance Construction, and events in the Court of Session including involvement of certain law firms and members of the judiciary who – according to court files – deliberately concealed conflicts of interest across multiple court hearings in the case.

The case – Nolan v Advance Construction (Scotland) Ltd has attracted significant publicity in the press and is part ongoing probe into judicial conflicts of interest – resulting in the naming of several judges who failed to declare documented conflicts of interest in the case

Holyrood’s Public Petitions Committee, and recently, the Justice Committee have received and considered evidence in relation to the actions of Lord Malcolm (Colin Campbell QC) who himself failed to declare he heard the case up to eight times while his own son – Ewen Campbell – was in the same court, representing the defenders – Advance Construction (Scotland) Ltd.

The investigation into the Lord Malcolm case of 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.

Minutes before Lord Carloway hit out at Alex Neil over suggestions judges declare links to their relatives interests, the top judge snapped at the MSP stating: “I am satisfied that Lord Malcolm’s actions were entirely honourable and that he acted in accordance with the code of judicial ethics.”

However, the court record does show Lord Malcolm heard the case on multiple occasions while his son was in court – and new evidence has emerged from witness statements indicating Lord Malcolm’s son had also visited the site of the land contamination incident – which contradicts claims from the top judge & judicial office that Ewen Campbell had nothing to do with the case.

The original papers from Hamilton Sheriff Court in 2011 indicate that when a Sheriff Millar transferred the case to the Court of Session to be heard by Lord Malcolm – Ewen Campbell – Lord Malcolm’s son – was also present at that same hearing on 30 September 2011, along with Gavin Walker – who is a QC at Axiom Advocates.

An ongoing investigation into the case has now revealed Levy and Mcrae, representing Advance Construction in their pursuit of Mr Nolan & his partner – then sought a hearing on 14 April 2015 – to swap the original appointment of the Accountant in Bankruptcy in the sequestration of the elderly couple – to Begbies Traynor and Mr Pattullo.

That hearing took place at Hamilton Sheriff Court before the SAME Sheriff Millar – who heard the couple’s initial claim against Advance Construction in 2011 and then transferred it to be heard by Lord Malcolm in the Court of Session.

However, records show that by the time of this hearing in 2015 – accountants KPMG had already been appointed by the Accountant in Bankruptcy to handle the sequestration of Mr Nolan and his partner Ms Collins – and it can not be easily explained away by the Accountant in Bankruptcy as to why KPMG were swapped out of the sequestration for Levy and Mcrae’s choice of Begbies Traynor and Kenneth Pattullo.

Events around Levy & Mcrae’s motivated appointment of Begbies Traynor and Mr Pattullo – are now the subject of calls for an investigation by the couple’s MSP and legal experts – after it emerged assets owned by the couple which were held by the Clydesdale Bank, were transferred without notification to an offshore vulture fund known as Promantoria Ltd.

And – information has now come to light that land and assets formerly owned by the couple which were seized by Mr Pattullo & Begbies Traynor on behalf of Advance Construction (Scotland) Ltd – are now in the ownership of several persons of interest in relation to ongoing investigations of events which have occurred around Mr Nolan and his partner as a result of the collapse of their valid Court of Session claim.

The Judicial Office for Scotland were asked for comment on the following media enquiry:

“In relation to claims made by Lord Carloway to MSP Alex Neil at yesterday’s Public Petitions Committee in relation to declaring the interests of close relatives, and Lord Carloway’s mention of a son in the legal profession, can the Judicial Office confirm if Lord Carloway’s son currently works at Addleshaw Goddard LLP which has merged with HBJ Gateley.”

“On being provided with information HBJ Gateley is a pursuer in relation to obtaining decree with a view to evicting a Ms Melanie Collins & a Mr Donal Nolan from properties in Wishaw, does the Judicial Office or Lord President wish to comment on Lord Carloway’s testimony yesterday that entering the details of close relatives work in a register is going way beyond what is being proposed in terms of a register of interests for members of Scotland’s Judiciary.”

“And, in view of the claims made in relation to above, does the Judicial Office or Lord President see this as a matter which should be made clearer to the Petitions Committee after yesterday’s mention of the case during open session and Lord Carloway’s comments?”

“Finally, does the Judicial Office or Lord President have any further comment on Lord Carloway’s evidence to the Petitions Committee, and any further comment on the Petition itself?

Baktosch Gillan, who was the Acting Head of Judicial Communications at the time, gave the following reply: “In relation to your first question, the Judicial Office does not hold that information.”

Mr Gillan added: “We have nothing further to add to the Lord President’s evidence to the committee.”

To confirm Mr Sutherland’s position at Addleshaw Goddard during the time Lord Carloway gave his evidence to Holyrood in 2017, a search of the Law Society of Scotland’s online database of solicitors was made.

Days before the query to the Judicial Office in relation to Lord Carloway’s son – the name of Alexander Sutherland appeared in the Law Society of Scotland’s online search results.

However, some time after the Judicial Office issued the statement denying they held any information on the Lord President’s son’s involvement with HBJ Gateley & Addleshaw Goddard, and a potential conflict of interest – a new search of the Law Society of Scotland’s database revealed they had removed the name of Alexander Sutherland and references to his service at Addleshaw Goddard from their online database search results – which are now published as part of this report here:

The full exchange between 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.

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

Ampersand is delighted to welcome Alexander Sutherland to the stable who called at the Bar today.

Before calling to the Bar, Alex trained with Addleshaw Goddard LLP, formerly HBJ Gateley. During his seat in the firm’s dispute resolution department, he gained experience of a wide range of litigation in both the Court of Session and the sheriff court, including real estate and insolvency litigation. He also had seats in the real estate and corporate recovery departments.

Alex 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.

Alex’s interests lie primarily in the fields of commercial and public law. As a devil he also gained experience of planning. His principal devilmaster was Ampersand’s Laura-Anne van der Westhuizen.

He speaks fluent French and German and is well placed to undertake work involving consideration of documents in those languages.

On Alex’s arrival, Head Clerk Alan Moffat said “I am delighted that Alex has joined us. He comes with a great reputation from his time at a top firm and has been highly praised during his time on the devils course. I am very sure he will continue to impress at the Bar and expect him to be a great addition to the stable.”

In the first part of the time-honoured two-stage admission ceremony, the Dean of Faculty, Gordon Jackson, QC, said the public office of advocate carried real privileges and corresponding responsibilities.

“You have become part of a great national institution which has played, throughout its existence, a very significant role in the legal and cultural life of this nation. As a member of Faculty you will play your own particular part in the future of that institution,” he added.

In the second part of the ceremony, before Lord Clark in the Court of Session, Alex along with 6 other new calls made the declaration of allegiance.

Lord Clark said: “It is a genuine pleasure and a privilege to welcome you as members of the Faculty of Advocates and to congratulate you on this great achievement. The Faculty has long been an important and distinguished organisation. It has commonly attracted some of the ablest minds of each generation, and it continues to thrive.

“It is truly one of the great features of our society that the general public, businesses and other organisations have at their disposal people like you – independently-minded advocates who will take on and fight their causes.

“I very much hope that you thoroughly enjoy your work at the Bar and the camaraderie of your colleagues.”

Alex is a welcome addition to the depth of counsel on offer at Ampersand.

HOLYROOD QUEST FOR A 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.

 

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