RSS

Category Archives: Consumer Protection

“Transparency is part of accountability” says Law Professor to MSPs – as General Pinochet case, failures to recuse and a judge presiding over cases defended by his own son in the Court of Session – add to calls register of judges’ interests

MSPs hear top judges need register of interests. A SENIOR Scots Law Academic – Professor Alan Paterson – has told the Scottish Parliament there is an expectation accountability applies to the judiciary as a branch of the state, and there is a need for judges in the highest courts to declare their interests.

In evidence to the Scottish Parliament’s Public Petitions Committee during the latest hearing of Petition PE1458: Register of Interests for members of Scotland’s judiciary Professor Alan Paterson of the University of Strathclyde told MSPs “..the question of a register of interests comes back to the role of the judiciary in a democracy. It is a branch of government or the state and, in a democracy, we expect the wielders of state power to have a form of accountability.”

Professor Patterson later added: “To me, transparency is part of accountability. The prime things that we require for accountability, generally speaking, are that judges give reasons for their decisions and that they identify who is making the decisions. That is part of transparency, and the question of a register of interests is part of the issue of transparency.”

MSPs also heard from the legal academic on one of the “shakiest moments” of judicial interests and recusals – in relation to the General Pinochet case – now the standard example of what went wrong when a judge in the House of Lords – Lord Hoffman – failed to declare an interest.

In responses to questions, Professor Paterson said he thought if a register of judicial interests had existed, it would have caught Lord Hoffman’s chairmanship of the Amnesty International Committee – the undeclared interest which sparked an appeal by General Pinochet’s lawyers against extradition to Spain in 1998.

Significant concerns were raised by the Committee in relation to the ‘Recusals Register’ created by former Lord President Lord Gill in the spring of 2014 – a move at the time Gill had hoped would closed down calls for judges to declare their vast interests and wealth in a publicly available register of interests.

In a key moment during the meeting, Deputy Convener Angus Macdonald MSP (SNP) raised a hypothetical scenario of a judge in the Court of Session failing to recuse himself after discovering his own son was acting as a litigation solicitor for one of the parties.

Quizzing the Law Professor, Angus Macdonald enquired: “On the issue of recusals, let me throw a hypothetical example at you. The son of a judge is the litigation solicitor for a defendant in, for example, the Court of Session, but the judge fails to recuse himself and to highlight the family connection to all interested parties. Clearly such a situation could be avoided were the decision on recusal not to be taken by the judge presiding over the hearing himself. We would look to avoid such a situation, and the register would help.”

An awkward response from Professor Paterson suggested this scenario had occurred “in the past” and that “As long as everybody knows about it and it is declared, it should not mean an automatic disqualification.” In such situations, all the parties usually know and no objection will be made.”

However, it has since emerged new evidence from the Court of Session is set to reveal more judges have failed to recuse themselves on numerous occasions where direct family members appeared in cases heard by their own parents.

In one key case which may significantly impact on calls to create a register of judicial interests, several MSPs are now believed to be aware of a series of failures by a judge to recuse himself in a case where a solicitor – acting on behalf of a law firm linked to the multi million pound collapse of a Gibraltar based Hedge Fund – appeared in front of a judge who turned out to be his own father – on multiple occasions.

The case – details of which are to be made public – has the potential to blow apart the integrity of Lord Gill’s ‘Recusals Register’ due to the sheer number of appearances by the same judge in the Court of Session – while his own son was the acting solicitor for the defenders.

Documents from the case now being studied also reveal a shocking fact – it has now been established millions of pounds of public money was paid out by a Scottish local authority to the defender’s main contractor after a ruling by Lord Woolman in January 2014.

The public cash was then to be paid to the defenders under a sub-contract agreement in an issue relating to why the case was brought to court in the first place.

However, the pursuer received not a penny despite the defenders admitting in court papers to illegal dumping of contaminated waste on someone else’s land.

Construction firms who hold contracts with numerous local authorities, and Scottish Government agencies including the Scottish Environmental Protection Agency (SEPA) are known to be heavily involved in events which led to the case ending up in the Court of Session – yet for some reason, opinions by several judges involved in hearings have not been published and are “difficult to obtain” from the Scottish Courts Service.

Tackling the issue of costs, over the issue of ensuring a fair hearing – MSP Maurice Corry (West Scotland) Scottish Conservative) asked Professor Paterson if he thought developing the recusal system in a way which required someone other than the judge hearing the case to decide on a recusal would add extra costs and delays to cases being heard in the courts.

Responding to Mr Corry, Professor Paterson said it could, but pointed out the failings of the current recusal register where little information is given away on the actual recusal and whether a judge refused to recuse himself in a case.

Professor Paterson told Mr Corry: “We have a register of how often judges recuse themselves but, as I have pointed out, we do not know how often they do not recuse themselves, so we cannot form a view on whether they have always got it right or whether there are situations in which they did not get it right.”

Mr Corry – who had earlier moved the petition be closed down at the meeting of the Petitions Committee on 29 September 2016 – also asked Professor Paterson for examples where a case may have been caught by a register of interests.

Professor Paterson replied stating “The Hoffmann case is the standard example of something going wrong.”

At the conclusion of the most recent evidence heard in relation to Petition PE1458, the Public Petitions Committee agreed to write to the Lord President Lord Carloway and the Judicial Complaints Reviewer – Gillian Thompson OBE.

Video footage and full transcript of Petition PE1458 – Scottish Parliament 17 January 2017

Judiciary (Register of Interests) (PE1458)

The Convener: Agenda item 2 is consideration of continued petitions. First, we will take evidence from Professor Alan Paterson on petition PE1458, on a register of interests for Scotland’s judiciary. As members will recall, the petitioner suggested that the committee might wish to invite oral evidence from Professor Paterson, and he has agreed to appear this morning.

Welcome to the meeting, Professor Paterson—we appreciate your attendance. If you wish to make some opening comments, you may do so for up to five minutes. After that, we will take questions from members.

Professor Alan Paterson: Thank you, convener. I am happy to answer any questions that the committee might have on this topic.

I see a register of interests for the judiciary in Scotland as an important issue but, as I have said in my written evidence, it is an issue on which I have not reached a concluded opinion. I have expressed an opinion in relation to the Supreme Court, where the balance probably tips towards the need for a register of interests. I have explained why I think that both in my written evidence and in the Hamlyn lecture.

For me, the question of a register of interests comes back to the role of the judiciary in a democracy. It is a branch of government or the state and, in a democracy, we expect the wielders of state power to have a form of accountability. It is also very important that, in a democracy, the judiciary is independent; judicial independence is a vital part of any democracy. We must therefore balance those issues of judicial independence and accountability. Indeed, issues such as recusal, criticism of judges, discipline of judges, complaints against judges and a register of interests are all areas where we try to strike that balance between accountability and independence.

The Convener: Thank you. Do you think that there is a third factor—simple transparency? That is not in conflict with independence; it is just about basic standards and reasonable expectations of openness.

Professor Paterson: To me, transparency is part of accountability. The prime things that we require for accountability, generally speaking, are that judges give reasons for their decisions and that they identify who is making the decisions. That is part of transparency, and the question of a register of interests is part of the issue of transparency.

The Convener: Do you have a view on what types of information should be included in a register of pecuniary or other interests?

Professor Paterson: As I have said, I do not have a concluded view on whether we should have a register of interests for the Scottish courts but, as far as the Supreme Court is concerned, there is the example of the American Supreme Court. Some might say that that is a slightly more political court than our courts but, nonetheless, its judges have to register their interests. They have to declare their financial interests, their shareholdings, their hospitality, what gifts they receive and what tickets to American football matches they get. All sorts of things have to be declared including membership of golf clubs and so on. At the start of their Supreme Court career, they also have to provide a detailed account of the clubs they are members of, their trusteeships, whether they are masons and all those issues. From time to time, the system throws up issues, but it works.

The House of Lords was the precursor to the Supreme Court, which started in 2009. Before that, the judges in the House of Lords formed a supreme court, and they had a register of interests. The judges who were members of the House of Lords then became Supreme Court judges. For example, we had Lord Hope of Craighead, who has since gone back to the House of Lords and is now on that register of interests. People can look up the register on the website and see what his interests are, but they could not do that when he was in the Supreme Court.

The Supreme Court has been very good at transparency, and rightly so; in general, it has been much better at transparency than the House of Lords was. It is much more open. Moreover, the proceedings are televised; when the Brexit judgment comes down on Tuesday, we will be able to see it. We will be able to watch everything happening. It just does not have a register of interests, even though the judges had one before—and will have it again if they go back to the House of Lords.

The Convener: That is interesting. Thank you.

Maurice Corry (West Scotland) (Con): Good morning, Professor Paterson. An issue that has been raised in evidence is whether a register would capture circumstances in which a conflict would make it inappropriate for a judge to hear a case. However, a judge might become aware of a conflict only when they saw a witness list and were able to identify a social relationship with a witness. Do you have any views on that?

Professor Paterson: The judicial oath and the judicial code of conduct, which are very important in Scotland, mean that a judge who knows that they have an interest—for example, a relative who is a party in a case is going to appear before them—will be expected to stand down. At its best, a register of interests would identify some conflicts and either remind the judge or alert others to the fact that they potentially have an interest, although not necessarily in the case of relatives.

One of the curiosities of the American Supreme Court is that, once or twice a year, the justices, including the chief justice, overlook a shareholding that they have. A corporation in which the shares are held comes up in litigation; they get involved in the litigation, only for somebody to suddenly remember that they have shareholdings in the corporation. That is not venal or deliberate and there is no attempt at bias; instead, someone has made a mistake and overlooked something. The strength of a judicial register is that it allows fair-minded, independent and external observers to say, “Haven’t you got a potential interest here?” and the matter can be aired before the case starts. If you do not have a judicial register of interests, everything is left to the judge and the judge’s memory. Even at the level of the American Supreme Court, the judicial memory occasionally fails—although not very often.

Maurice Corry: Thank you.

Rona Mackay (Strathkelvin and Bearsden) (SNP): Good morning. Can you expand a wee bit on examples of judicial office-holders registering their interests in connection with other roles? The petitioner has noted that in connection with the board of the Scottish Courts and Tribunals Service and you have mentioned the Supreme Court. Are you aware of any issues that have arisen for those judicial office-holders in being able to hear cases in connection with registered interests? What precedents are there that you know of in that field?

Professor Paterson: I am not sure that I have an answer to that question. Do you know what the petitioner was getting at and can you elaborate a little more on what was troubling him? Nothing springs to mind.

Rona Mackay: I think that he raised the whole subject in connection with the board of the Scottish Courts and Tribunals Service. You mentioned the similarity between those on the Supreme Court and the former law lords, so I wanted to tease out your opinion on what issues could arise from that.

Professor Paterson: I apologise for being unhelpful, but nothing on that immediately springs to mind.

Rona Mackay: That is fine.

Brian Whittle (South Scotland) (Con): Good morning. The former judicial complaints reviewer commented on the possible implications of the publication of recusal information in respect of possible conflicts of interests only becoming apparent after a case has been heard. Her view was that a register of interests could avert complaints by enabling any perceived conflicts to be addressed before or at the time when a case was heard. What are your views on that?

Professor Paterson: Let me go back to the House of Lords and the Supreme Court. One reason why I raise an eyebrow at the stance of the Supreme Court on this issue is that one of its shakiest moments was the General Pinochet affair. General Pinochet came to the UK for medical treatment and a Spanish judge using appropriate international processes arranged for him to be arrested for alleged crimes in the junta in Chile. His case then went up to the House of Lords. At relatively short notice, the membership of the panel that was to hear the case had to change and Lord Hoffmann was brought in as the next most senior judge. The fact that Lord Hoffmann’s wife worked for Amnesty International in some capacity was—we think—known by the senior law lord when they organised the panel. However, it was all done with some haste, and it is not at all clear that the panel was aware—they said that they were not aware—that Lord Hoffmann acted on a committee that raised funds for Amnesty International.

Amnesty International is relevant here because of its views on torture; it had asked to become an intervener in the House of Lords, and this was the very first case in which an intervener had been allowed. That meant that Amnesty International, although not technically a party to the case, was allowed to address the court on issues to do with torture and what had happened in Chile. Lord Hoffmann did not declare that he chaired a committee that raised funds for Amnesty International although his wife’s position, as someone who worked for Amnesty International, was known to the authorities.

Anyway, the case went ahead, and the vote went three to two against General Pinochet, with Lord Hoffmann in the majority. A little while later, General Pinochet’s lawyers discovered that Lord Hoffmann had that interest but had not declared it, and they asked for a rehearing. It had never happened before, but they got a rehearing, and the court very strongly made it clear that Lord Hoffmann should have declared the interest. Indeed, as I read it, even if he had declared the interest, the parties could not have waived it—it would have led to an automatic disqualification. That is the line that the court took, and another court had to be convened to rehear the whole case.

It all meant a lot of time being taken up, a lot of concern and a lot of bad publicity for Britain and for the House of Lords. Relations among the judges in the House of Lords were quite strained for a number of years thereafter. That one failure to declare an interest had a very substantial impact on a whole variety of issues, and I have never quite understood why the Supreme Court, knowing that lesson—which was hardly 10 years old by the time the court was set up—did not decide that it should have a register of interests.

We can have a debate about whether a register of interests would have caught Lord Hoffmann’s chairmanship of the committee, but I think that it would have, certainly under the rules under which the House of Lords now operates. It is not entirely appropriate, but if you want to see what a possible register of pecuniary interests might look like, you can look on the House of Lords website, where you will find a very detailed series of 12 headings under which interests can be recorded. Not all are appropriate for judges, but some of them certainly are.

The Convener: A second interesting point arising from the Lord Hoffmann case is not the judge’s own involvement but the spouse’s occupation. That would not go on a register, would it?

Professor Paterson: Possibly not, but, as I understand it, that was known about in the Hoffmann case.

The Convener: So that was not the issue.

Professor Paterson: That is my understanding of the case.

The Convener: That is very helpful. Thank you.

Angus MacDonald (Falkirk East) (SNP): Good morning, Professor Paterson. The example that you have just given backs up the suggestion in your written submission that the decision on recusals should not be taken by the judge who has been challenged. Would you expand on that?

Professor Paterson: Again, that is an area on which I do not have a fully formed mind. Like the author R Grant Hammond, who has written the standard work on judicial recusal, I take the view that, as far as appellate courts are concerned, there is an argument for saying that if one member of the court is challenged, he or she should not be the one that makes the decision. However, that might be the counsel of perfection. When it comes to a sheriff in a rural part of Scotland, it might be quite impractical to suggest that another person make that decision. As I have said, I do not have a concluded view on it.

I can see the case for such a move, and it would be easier at the appellate level. There are examples where courts have, when challenged on a particular interest, excluded that interest from the body deciding that interest. I can see the argument for that, but there are issues of practicality to be borne in mind.

Angus MacDonald: On the issue of recusals, let me throw a hypothetical example at you. The son of a judge is the litigation solicitor for a defendant in, for example, the Court of Session, but the judge fails to recuse himself and to highlight the family connection to all interested parties. Clearly such a situation could be avoided were the decision on recusal not to be taken by the judge presiding over the hearing himself. We would look to avoid such a situation, and the register would help.

Professor Paterson: It might—and if we are talking about a criminal defendant, it would be the High Court. Generally speaking, a relationship would be known to the parties. In the past, it was not unknown for an advocate who was a relative—a son or daughter—of a judge to appear before that judge. In a small country such as Scotland, saying that such a thing could not happen would make things a bit tough. It used to happen. As long as everybody knows about it and it is declared, it should not mean an automatic disqualification. In such situations, all the parties usually know and no objection will be made.

Maurice Corry: What consideration have you given to the potential for additional costs or delays to cases being heard if the recusal system were to be developed in the way that is proposed?

Professor Paterson: You are right to raise the issue—that is why I highlighted the practicality issues. Recusal is one of those areas in which it is necessary to have an appropriate balance between transparency, accountability and independence. We have a register of how often judges recuse themselves but, as I have pointed out, we do not know how often they do not recuse themselves, so we cannot form a view on whether they have always got it right or whether there are situations in which they did not get it right.

The test to be applied is whether a fair-minded, fully informed independent observer would think that there was a possibility of bias. It is a case not of whether the judge thinks that there is a possibility of bias, but of whether an independent, fair-minded, reasonable observer—probably a layperson—would think that there was a possibility of the tribunal being biased. It is therefore possible for a judge to take one view and an independent person to take a different one, which is why we must take a hard look at the issue of recusal.

Do I think that the introduction of a register of interests at appellate level would lead to a massive number of challenges and cause real problems? If a system were introduced whereby somebody else had to decide that, I think that it might. As I have said, I think that practical considerations might make my counsel of perfection, whereby in the ideal world somebody else would make the decision, unrealistic. I think that it is more possible at the appellate level.

Maurice Corry: Are you aware of any serious examples of cases in which the issue has been a significant problem, indicating that the setting up of such a register is necessary?

Professor Paterson: The Hoffmann case is the standard example of something going wrong. From time to time, challenges to the courts receive a degree of publicity, but I am not aware of any that were as significant as that one.

The Convener: There are no further questions. Thank you for your helpful and balanced evidence, which has given us an interesting insight into the issues.

Does the committee have a view on what further action we might take?

Angus MacDonald: Given the evidence that we have heard this morning, I think that we need to seek a further response from the Lord President, Lord Carloway. I, for one, would like to hear his views on today’s evidence, either by letter or in person, and I am particularly keen to find out his view on whether the recusal decision should not be taken by the judge who has the interest that has been challenged. Another suggestion has been put into the pot that would be well worth our consideration.

The Convener: We can look at the most convenient way for the Lord President to provide that response, because we do not want to cause unnecessary inconvenience.

Rona Mackay: We would not be re-asking the previous question. We would be going back to him with a new request.

The Convener: Is there anything else that we might do?

Angus MacDonald: There was also the suggestion that we ask the judicial complaints reviewer for her view on the evidence that has been given today. We should go down that route, too.

The Convener: Do members agree to take those actions?

Members indicated agreement.

The Convener: Again, I thank Professor Paterson for coming to the meeting. It has been very helpful.

I suspend the meeting for a couple of minutes. 09:25 Meeting suspended.

RECUSALS REGISTER – Scottish Judges are failing to disclose interests, and even when they do, some continue to hear cases where there are measurable conflicts of interest:

A number of additional cases documented on the petition webpage maintained by the Scottish Parliament aired in written submissions also provide evidence where litigants and defendants in Scotland’s civil and criminal courts are not being made aware of judicial relationships or conflicts of interest.

The frequency by which court users are not being made aware of such conflicts of interest within the judiciary appears to suggest such omissions are not happening by accident.

Misgivings on the attitude of members of the judiciary to reveal conflicts of interest are on the rise – particularly after one case revealed a senior judge – Lord Osborne – heard (and denied) the appeal against conviction of a man he had earlier prosecuted while working at the Crown Office.

Asked to comment on the matter, Lord Osborne claimed to a Sunday Mail investigation that he “forgot” he was the Prosecutor who put the man away for an alleged crime – which has been the subject of a long running and widely supported miscarriage of justice appeal.

Another case revealing the limitations of allowing judges to decide themselves whether to recuse from a case or not, was revealed in an investigation by the Sunday Herald newspaper after it emerged Sheriff Principal R Alistair Dunlop heard a case involving supermarket giant Tesco – while he held shares in the same company.

A a further investigation by the Scottish Sun newspaper revealed the same Sheriff Principal R Alistair Dunlop – held shares in a number of companies convicted of criminal offences at home and abroad, including Weir Group – subject of Scotland largest Proceeds of Crime cash seizure after the company was convicted of bribing their way into contracts with Saddam Hussein’s regime in Iraq.

Dunlop – who formerly sat on the Scottish Courts and Tribunals Service Board retired after the headlines, but was then brought back into service by the Lord President – to sit in the new Sheriff Appeals Court.

Recusals and the General Pinochet effect on proposals to require judges to register their interests:

In early 1999, Law Lords from the House of Lords who handled judicial functions now assigned to the UK Supreme Court – attacked their colleague Lord Hoffmann who failed to declare links with a human rights group before ruling in a key hearing on General Augusto Pinochet.

In the Law Lords written judgement on the Pinochet Appeal – Opinions of the Lords of Appeal for Judgement in the cause RE: Pinochet, they give their detailed reasoning for overturning a ruling by a previous panel of Law Lords which had denied the former Chilean dictator freedom from prosecution.

The Law Lords said the links between Lord Hoffmann – who sat on the original panel that ruled to allow General Pinochet’s extradition in November – and the human rights group Amnesty International were too close to allow the verdict to stand.

One of the lords who ruled in the appeal case, Lord Hope, said: “In view of his links with Amnesty International as the chairman and a director of Amnesty International Charity Limited he could not be seen to be impartial.”

At the conclusion of the latest consideration of Petition PE1458, MSPs who sit on the Public Petitions Committee agreed to write to the Lord President Lord Carloway and the Judicial Complaints Reviewer – Gillian Thompson OBE.

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

 

Tags: , , , , , , , , ,

JUDICIAL REGISTER: Evidence lodged by Judicial Investigators, campaigners, judges & journalists in four year Holyrood probe on judges’ interests – points to increased public awareness of judiciary, expectation of transparency in court

Judicial register required for openness in court. EVIDENCE accumulated as a result of a four year probe by the Scottish Parliament on proposals to require judges to register their interests – points to the inescapable conclusion there is a need for a fully published and publicly available register of interests for the judiciary.

The overall impression reached by many involved in the debate around judicial interests is that creating such a register with full declarations by judges will enhance public trust in judges, and bring the judiciary into line with transparency rules which apply to all other branches of Government.

The proposal to bring greater transparency to Scotland’s judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on 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.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

A full history, list of evidence, Parliamentary hearings and submissions from all sides of the debate including campaigners, legal academics, both of Scotland’s Judicial Complaints Reviewers, law related organisations, the Scottish Government and Scotland’s top judges in relation to Petition PE1458: Register of Interests for members of Scotland’s judiciary is published for readers and those with an interest in how the judiciary operate, below:

Date Petition Lodged: 07 December 2012

Petition aim: Calling on the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

Petition History:

Summary:

8 January 2013: The Committee agreed to write to the Scottish Government, the Lord President, the Faculty of Advocates and the Law Society of Scotland. Link to Media report – Declare your interests M’Lords

5 March 2013: The Committee agreed to invite the Lord President to give evidence at a future meeting and seek further information on the proposed New Zealand legislation. Link to Media report – ‘Methinks the Lord President doth protest too much’

16 April 2013: The Committee agreed to write again to the Lord President and seek views from the Judicial Appointments Board for Scotland and the Judicial Complaints Reviewer. Link to Media report – What is there to hide?

25 June 2013: The Committee agreed to invite the Judicial Complaints Reviewer to give evidence at a future meeting. The Committee also agreed to write to Dr Kennedy Graham MP, New Zealand Parliament. Link to Media report – top judge ‘should reconsider his position on Scotland Act’

17 September 2013: The Committee took evidence from Moi Ali, Judicial Complaints Reviewer. The Committee agreed to write to Dr Kennedy Graham MP, New Zealand Parliament, the Crown Office and Procurator Fiscal Service, the Scottish Court Service and the Scottish Government. The Committee also agreed to consider the debate that took place during the passage of the Scotland Act 1998 on section 23. Link to Media report – evidence of Moi Ali, Judicial Complaints Reviewer

JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests

26 November 2013: The Committee agreed to defer future consideration of the petition until after the meeting between the Convener, Deputy Convener and the Lord President. Link to Official Report 26 November 2013

28 January 2014: The Committee agreed to defer consideration of the petition pending receipt of a letter from the Lord President. Link to Media report – Private Parly

4 March 2014: The Committee agreed to seek time in the Chamber for a debate on the petition. The Committee also agreed to write to the Lord President and the Scottish Government. Link to Media report – Recuse me not

6 May 2014: The Committee agreed to write to the Lord President and the Scottish Government. Link to Media report – MSPs seek views from scripted top judge

9 October 2014: The Committee held a debate in the Chamber on the subject of the petition. Link to Media report – Debating the judges – full debate at Holyrood, video & official report

28 October 2014: The Committee agreed to write to the Lord President and the Judicial Complaints Reviewer. The Committee also agreed to invite the Cabinet Secretary for Justice to give evidence at a future meeting. Link to Media report – Secretary for the judge

9 December 2014: The Committee took evidence from Paul Wheelhouse, Minister for Community Safety and Legal Affairs, and Kay McCorquodale, Civil Law and Legal Systems Division, Scottish Government. The Committee agreed to consider the petition again in the new year to reflect on the evidence received today, the annual report of the previous Judicial Complaints Reviewer and the new rules and guidance to be published by the Lord President. The Committee also agreed to write to the new Judicial Complaints Reviewer. Link to Media report – Too many secrets

12 May 2015: The Committee agreed to invite the Judicial Complaints Reviewer to give evidence at a future meeting. Link to Media report – You ran M’Lord

23 June 2015: The Committee took evidence from Gillian Thompson OBE, Judicial Complaints Reviewer. The Committee agreed to write to the Scottish Government, Lord Gill and, when appointed, the new Lord President. Link to Media report – Register, M’Lord

JCR Gillian Thompson OBE evidence to Scottish Parliament: Register of Interests for Judges Petition PE1458 Scottish Parliament 23 June 2015

10 November 2015: The Committee took evidence from Rt Hon Lord Gill, former Lord President of the Court of Session. The Committee agreed to reflect on the evidence heard at a future meeting. Link to Media report – Judge Another Day

Evidence of Lord Gill before the Scottish Parliament 10 November 2015

1 December 2015: The Committee agreed to write to the new Lord President once appointed. Link to Media report – Evidence, M’Lord

23 February 2016: The Committee agreed to include the petition in its legacy paper for consideration by the Session 5 Public Petitions Committee. In doing so, the Committee agreed to write to Professor Alan Paterson, University of Strathclyde. Link to Media report – Declare it, M’Lord

29 September 2016: The Committee agreed to invite the Lord President and Professor Alan Paterson to give oral evidence at a future meeting. Link to Media report – Question Time, M’Lord

Click on each link to view written Submissions to the Scottish Parliament:

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.

 

Tags: , , , , , , , ,

LEGAL COSTS: Ask your solicitor ten questions about costs before your legal expenses run up thousands in unnecessary work & bills – or result in your lawyer taking your home & savings to pay for it

Questions to ask your solicitor – walk if you don’t like the replies. IN SCOTLAND, there are few, if any non lawyer controlled sources of advice to legal services consumers on how to manage client relationships with solicitors, how to control legal costs, and what to do when something goes wrong and your lawyer rips you off.

Client protection – is a myth. Given three decades of evidence that thousands of clients have been ripped off every year by their once trusted solicitors, the only people who believe a complaints system run by lawyers, managed by lawyers and protected by lawyers –  are fantasists, and the Law Society of Scotland.

There are no background record checks available on Scottish solicitors, and the only ‘help’ on offer to clients when their relationship with their solicitor breaks down – is provided by the pro-lawyer Scottish Legal Complaints Commission (SLCC), a regulator backed by the Law Society of Scotland, staffed by members of the Law Society of Scotland. You get the picture.

However, in England & Wales, the landscape is a little more consumer friendly, with the Legal Ombudsman (LeO) and Solicitors Regulation Authority (SRA) providing a more independent form of advice and help to consumers.

The Solicitors Regulation Authority also publish complaints and regulatory data on solicitors and law firms – a must have service for anyone considering using a solicitor which does not currently exist in Scotland.

As things currently stand in Scotland – if you are unable to check up on your solicitor’s regulatory history via an independent source, the best advice is to walk away – or what happens next is your own fault.

Self regulation by lawyers, pleas to the Scottish Government and Scottish Parliament for help will not put right your legal problems or what your solicitor did to you.

A handy guide published by the Legal Ombudsman, reprinted by DOI in this article, gives a list of ten questions consumers and clients of solicitors should ask their legal representatives before taking on representation and expensive legal services.

There are further tips in the full LeO leaflet, so please download it and read thoroughly before engaging legal representation.

This guide was written for the English legal services market, and you may be an English reader, so go right ahead and ask you solicitor these ten basic questions on costs.

However, the same questions apply as much in Scotland as anywhere else –  and anyone using a Scottish solicitor should consider asking these same questions.

If you don’t like the answers you receive, or don’t get any answers at all – then the best consumer advice possible is to protect yourself and walk away.

At the very least, you will have saved yourself hundreds, or thousands or tens of thousands of pounds for something involving a lawyer which may well have ended up going wrong anyway.

Why put yourselves through a five year heartache losing your savings to a lawyer, when ten little questions and answers may save you a whole lot of trouble.

The introduction to the leaflet from the Legal Ombudsman states: “If you use a lawyer, he or she should talk to you about the cost of their services. But you should also understand their charges. We have come up with ten questions to ask your lawyer about the cost of your service. We’ve also included some top tips and explained the terms used to help you get the most from conversations with lawyers about costs.

As a consumer, you have the right to expect your lawyer to be clear about how much they are likely to charge you, and for the final bill to be clearly explained and in the range you expected.

Legal services can be complex and the final cost can depend on things such as the type of service, individual details of the case, and how events develop. The expertise and experience of the lawyer may affect things too. However, most services are straightforward and your lawyer should give you a clear idea of what you will be charged from the start. Even if things do get complicated, your lawyer should warn you when this happens, so there shouldn’t be any surprises in your final bill.

A lawyer who values good service will happily answer your cost-related questions. Lawyers also have a duty to provide you with a client care letter when you appoint them. This letter should clearly explain the costs for the service and any terms and conditions that may affect the final price.”

Question 1  Will I be charged for a consultation?

Finding the lawyer who is right for you and the service you need is important. A consultation by phone, face-to-face, letter or online can help you make your decision. A lawyer can charge you for a consultation but they should tell you before you book and explain any conditions. For example, they may offer the first 30 minutes free but charge for time above that.

A lawyer should speak to you about costs and provide the best possible information so you can make an informed choice.

If you have a consultation, make the most of the opportunity. Do your research to find the right lawyer – you can check online, talk to friends and family, or speak to consumer organisations to help you make your choice.

Question 2  “How do you cost your service?”

This question can help you shop around to get best value for money. Two lawyers may provide very different estimates for the same service. Understanding why the quotes differ can help you make the right decision. For example, one lawyer may be more experienced or an expert in the area of law your case involves. If you have a complex case, you might think it’s better to pay more as it may improve the outcome and cost you less in the long run. With a fairly simple case you might decide you don’t need that level of expertise, so it may be better value to go with the cheaper estimate.

Experience and skill are just two reasons why costs may differ. There are now more ways than ever to provide a legal service which can have an impact on what you pay. For example, you can now buy services that are phone or web based rather than face-to-face. Providers who offer this type of service may save on rent and backroom costs and might therefore offer a cheaper price to customers. Understanding if this type of service works for you will help you decide if it is, or isn’t, value for money.

Estimates may vary for a whole host of reasons. Ask questions until you understand enough about the services on offer so you can pick one that suits you.

Question 3 “Can you tell me more about the way you charge?”

Lawyers have different ways of charging and their charging method may also vary according to the service. For example, they may offer a fixed fee for writing a will, but an hourly rate for a probate service (the administration of a will when someone has died). Find out what charging method the lawyer will use and ask them to explain it to you in detail. Questions 4 and 5 help with understanding fixed fee and hourly rate charges.

Conditional fee arrangements (CFAs) are also known as ‘no win, no fee’ arrangements. If you lose, you won’t, in general, have to pay your lawyer’s fees, but may need to pay some out of pocket expenses such as barrister’s fees or court fees. You may also be liable to pay some of the other side’s costs but it is possible to get insurance to protect against this. If you win, you will have to pay your lawyer’s fees and in addition there is usually a success fee which is intended to cover the risk that the firm are entering into with this type of agreement. You should in most cases, however, be able to recover your fees (including any success fee) from the other side. If you are thinking about entering into one of these arrangements, make sure you ask detailed questions so that you fully understand the terms and conditions.

Contingency fee agreements are also a type of ‘no win no fee’ agreement. If your lawyer agrees to represent you under a contingency fee agreement — which should not be confused with a conditional fee arrangement – they will be able to claim a percentage of any money they win on your behalf plus expenses. If you lose the case, you won’t be charged a fee, but you might still have to pay other costs (which could include the other side’s legal costs too).

The contingency fee percentage must be agreed in advance. You should also check whether the lawyer will deduct any expenses before they take their contingency fee or after as this can make a significant difference to the amount you finally receive. If the percentage you are asked to pay is very high, you could end up with very little – even if you win.

Question 4 “What is a fixed fee and what does it cover?  Will I be charged for any other costs?

The term ‘fixed fee’ can be used in different ways. It can be easy to assume that it covers all costs for the service you need. In some cases that may be true, but it may also just refer to the lawyer’s fees. For example, a ‘fixed fee’ in a property case may, or may not, include charges related to searches. Sometimes a lawyer may offer a ‘fixed fee’ for a stage of the case, so don’t feel embarrassed about asking your lawyer exactly what they mean by ‘fixed fee’. It’s not a silly question; the term isn’t self-explanatory.

Lawyers will sometimes give you an estimate of the costs. This isn’t the same as a ‘fixed fee’, so check what your lawyer means. This can be important as sometimes a lawyer may charge a fixed fee for a particular stage but give an estimate for the next stage. If that happens, or you aren’t sure, check what your lawyer means and ask for an estimate for the total cost of the case.

Question 5  “You charge an hourly rate but I’d like an estimate for the cost of the whole service. What will my final bill look like?”

If your lawyer charges an hourly rate, they must give you an estimate of how much the overall service will be. This should compare reasonably with your final bill. If you aren’t sure, then ask your lawyer to give you an estimate for the whole service. Sometimes it can be hard to predict how much it will all cost. Ask so you know how certain the estimate is. Having a range of costs might be more helpful than a single number, which could shift up or down. The important thing is to understand how much the total bill could be.

You are entitled to ask the lawyer to set a limit on the costs. This means your lawyer has to check that you are happy to continue if the spend approaches the agreed threshold. Setting a limit can help you make sure you don’t spend more than you can afford.

Ask questions to understand exactly when the clock starts. For example, if you call your lawyer for an update on your case will you be charged for the call? Ask if, and how, your lawyer rounds up their charges. Many lawyers charge in six minute blocks – check if that’s how your lawyer works. Make sure you feel comfortable with the way they charge.

As with ‘fixed fees’, ask if there are any other costs that won’t be covered in the hourly rate.

Question 6 “Could my costs change? How will you let me know if they do?”

There may be circumstances where costs do change. This is most likely if new information or developments make a case more difficult. For example, in a divorce case much is dependent on the other person’s cooperation to resolve it quickly. Even if both people intend to behave amicably, sometimes that resolve breaks down. If your costs look like they are changing, ask your lawyer about it. In general, your lawyer should tell you as soon as they are aware of any changes, but you don’t have to wait to ask for an explanation. Another option is to ask, when you choose your lawyer, if their original estimate is likely to be breached. If you have agreed a spending limit (see question 5), then your lawyer should stop work until you confirm that you want to continue.

If a case gets complicated even a ‘fixed fee’ arrangement can change. Your lawyer should explain when this might happen and also set out the terms and conditions in your client care letter. Make sure you understand and ask if there is a ‘get out’ clause to say if additional costs can be charged.

Remember, you always have options, even in the middle of a legal transaction. If there is a big hike in the costs of using a lawyer, then your lawyer should tell you about them and let you know what your options are. You could use a different specialist who might cost less but take longer, or only use email to contact your lawyer. There might also be some stages in the process that can be missed out. Ask your lawyer how you can work with them to reduce costs.

Question 7 Are there any extra costs?

This really is a catch-all question to help you budget for your service. You are basically asking your lawyer if they have given you all the information they reasonably can to make sure there aren’t any nasty surprises in the future. Examples of the sort of information this question might raise are additional costs for things like expert reports (such as from a doctor), or photocopying. Some firms use premium rate phone numbers, which could add unexpected costs to the final amount you spend for your service. Use these examples as a prompt to discuss this issue. Your lawyer should also tell you if you are likely to incur any bank charges. For example, you might need to make a CHAPs payment (same day electronic transfer) which can cost over £20 in a property transaction.

Finally, don’t forget to check if your estimate is inclusive of VAT. Your lawyer should tell you, but check so that you don’t get a higher bill than you’re expecting.

Question 8 “Can I get help with the cost of my legal service?”

A lawyer should always talk to you about how the service will be paid for and discuss options such as insurance or membership of a union that might help cover the costs. There can be some fine-print with different insurance options that you need to understand, so ask lots of questions to make sure you know what you are signing up to. Some insurances, like ‘after the event’ or ‘before the event’ insurance, could cover you for some things but not for others. Ask your lawyer for more information.

If you receive benefits or are on a low income you might qualify for help that may reduce or cover all of your costs. There are different programmes for different types of help but the best known is legal aid, which provides free legal advice from lawyers who are registered with the service. Even if your lawyer isn’t registered to provide legal aid they should tell you about it so you have the option of going to a lawyer who can.

Question 9 “When will I be billed and how long will I have to pay? Do you offer payment options?”

A lawyer should give you clear information on their billing process and offer reasonable time for you to make payments. They should also let you know if there are penalty charges if you don’t pay on time. You may be asked to pay some money at the start either to cover certain expenses or as an advance payment of fees. Lawyers aren’t obliged to offer you payment options, but some may be willing to negotiate. Asking the question might help you find a lawyer whose service fits your personal circumstances.

Question 10 “What happens if I disagree with the amount I’ve been charged?”

Your lawyer should tell you their approach to resolving billing disagreements. Every lawyer should have a complaints handling system in place, so find out how their system works. You should not be charged by a lawyer for looking at your complaint – it is very poor service if they do. When you appoint a lawyer they are also obliged to let you know about the Legal Ombudsman who can help you to resolve your complaint if you and your lawyer can’t reach an agreement.

Note – if you disagree with legal bills in Scotland, cases have revealed solicitors often employ threats and legal action for demands to be met within seven days. In some cases solicitors have applied to sequestrate their clients for disagreements on legal bills, and willing, compliant local sheriff courts staffed by familiar clerks and members of the judiciary often grant such orders with little regard for the facts or any representations from clients who question the integrity of legal fees.

SCOTLAND – Consumer protection against rogue solicitors and law firms does not exist.

How bad is the Law Society of Scotland when it comes to protecting consumers? The answer is  very bad. The Law Society of Scotland is a lobby group for the legal profession which puts lawyers interests first, before clients, the public, or anyone else. Do not expect client protection from a system where lawyers regulate themselves.

Read previous articles on the Law Society of Scotland here: Law Society of Scotland – A history of control of the legal profession, and no client protection.

Previous reports on the Scottish Solicitors Discipline Tribunal – The pro-lawyer tribunal which determines ‘punishments’ for solicitors after complaints have endured an eternity at the Law Society & SLCC, can be found here: Scottish Solicitors Discipline Tribunal – Pro-lawyer protection against client complaints

Previous media investigations, reports and coverage of issues relating to the pro-lawyer Scottish Legal Complaints Commission (SLCC) can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

 

Tags: , , , , , ,

NAME & SHAME: Scots consumers denied records checks on lawyers – as Solicitors Regulation Authority propose detailed public register of lawyers in England & Wales

UK Solicitors regulator plans to publish more data on lawyers. A PROPOSAL to publish more detailed information about law firms and solicitors in a public register has been launched by the Solicitors Regulation Authority (SRA) – the body charged with investigating solicitors in England & Wales.

The move to advance consumer protection south of the border by the English legal regulator could help consumers make more informed choices on the use of legal services, and result in a more competitive legal sector with higher standards of service and client care.

However, this is in stark contrast to Scotland, where DOI recently reported on the Scottish Legal Complaints Commission (SLCC) who refuse to publish any useable information to Scots consumers which could help clients steer clear from corrupt lawyers and law firms.

The report, available here: FROM ROGUES TO RICHES: SLCC refuse to identify corrupt solicitors in case findings revealed SLCC determination decisions are heavily redacted and only published after being approved by the Law Society of Scotland, leaving Scots consumers at a considerable disadvantage to consumers in England & Wales.

However, and with the advantage of not being held back in the middle ages by the Law Society of Scotland, the England based Solicitors Regulation Authority has launched a discussion paper, “Regulatory data and consumer choice in legal services” exploring what information the SRA could publish through a public register.

The proposed public register already allows consumers to check up on lawyers via the SRA’s Check your solicitor’s record service reported earlier here:  INSPECT YOUR ROGUE: Check your solicitors’ record in England.

The SRA suggests that consumers could benefit from information such as a solicitor’s qualifications or practice restrictions, and complaints data and insurance claims. The SRA also considers what information law firms might want to publish voluntarily, such as quality marks and service prices.

The proposals echo recent calls by the Competition and Markets Authority’s (CMA), in its interim report on its market study, as well as from the Legal Services Consumers Panel (LSCP), to improve the level of information available for consumers. The SRA agrees that a lack of clear, targeted information means it is difficult for consumers to compare providers and make informed choices. This is dampening competition in the sector.

Better information could help tackle the problem that the legal needs of individuals and small businesses are not being met.

Only one in ten people use a solicitor when they have a legal problem. And legal problems are estimated to cause small businesses almost £10 billion of losses a year, yet 83 percent of the population see legal services as unaffordable.

Greater transparency would also bring legal services more in line with other sectors, such as financial services and energy, where regulators are already making sure consumer-focused information, such as complaints data, is available.

The SRA recognises that there needs to be careful consideration of the implications of publishing more information. Risks to consider include increased burdens on firms and a one-size-fits-all approach working well for some and not others. For example, the needs of corporate clients will be different to those of an individual consumer.

Paul Philip, SRA Chief Executive, said: “Most people and small businesses are still not accessing legal services. When they do, they are not shopping around. It is unsurprising when the information out there is so limited.

“We want to help consumers, so they are not left making blind choices. Information such as enforcement action, complaints and claims data are exactly the type of things I would want to know when choosing a solicitor.

“We know that the public look to the regulators to provide credible, authoritative, objective information.

“If we get this right, we could help create a more competitive market, where consumers can make better choices and forward-thinking firms thrive. It will also help small businesses access the legal services that could help them succeed and grow.

“Yet we need to think carefully about what we publish and how. More information will not benefit consumers if they find it confusing, hard to access, or it is unhelpful. We have also made good progress on getting rid of unnecessary burdens on firms. We will not ask firms to do more in this area, unless there is a clear benefit.

“This is just the start of a discussion, so we are keen to hear what everyone thinks.”

The SRA has already taken steps to improve the information available to consumers by publishing its law firm search in April. And it already publishes details of enforcement action. Publishing useful data in one place would not only help consumers directly, but indirectly as data re-publishers could use it to develop comparison tools that could help make the market more competitive.

The SRA plans to consult on proposals in this area next year. Its discussion paper can be found at: www.sra.org.uk/choice. Closing date for submissions to the consultation is 26 January 2017 submissions.

SRA law firm search can be found here: www.sra.org.uk/consumers/using-solicitor/law-firm-search/about-search.page

The CMA’s interim report looking at ways to improve competition in legal services by increasing information for consumers is available at: www.gov.uk/government/news/cma-seeks-views-on-ways-to-help-legal-services-customers.

The Legal Services Consumer Panel’s research, “Opening up data in legal services (PDF 36 pages, 625K)

SCOTLAND: Legal Services Consumers held back by Law Society of Scotland & self regulation.

Away from the fantastical claims of the Law Society of Scotland, the oh-so-easy free pr and spin of how the Law Society protects access to justice while offering client protection, the fact is, consumers of legal services in Scotland have no chance whatsoever of selecting a legal representative based on their regulatory history – because the Law Society of Scotland refuse to publish any detailed regulation histories of their members.

Just how bad is the Law Society of Scotland when it comes to protecting consumers? The answer is very bad. Read previous articles on the Law Society of Scotland here: Law Society of Scotland – A history of control of the legal profession, and no client protection.

A BBC Scotland investigation “Lawyers Behaving Badly” exposed further weaknesses in the Law Society of Scotland’s system of control freakery self regulation. The BBC programme lifted the lid once more on lawyers investigating their own, how dishonesty plays out at the Scottish Solicitors Discipline Tribunal, and legal aid fraud.

A recent DOI investigation into the Scottish Legal Complaints Commission revealed most of the SLCC’s key staff and investigators are in-fact families, friends & business associates of solicitors, reported here: ‘Independent’ Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

Previous reports on the Scottish Solicitors Discipline Tribunal – The pro-lawyer tribunal which determines ‘punishments’ for solicitors after complaints have endured an eternity at the Law Society & SLCC, can be found here: Scottish Solicitors Discipline Tribunal – Pro-lawyer protection against client complaints

 

Tags: , , , ,

DISHONESTY RULES: Rogue solicitors guilty of fraud, embezzlement and theft from wills receive soft censures from pro-lawyer Scottish Solicitors Discipline Tribunal and courts

Consumers are not protected by lawyers regulating lawyers. SCOTLAND’S legal profession and anyone connected to it – including the judiciary –  often praise the system of self regulation where lawyers look after their own – to the point of taking over and closing any public debate on creating independent regulation of solicitors.

And, of course lawyers will continue to regulate themselves in Scotland – because self regulation is too protected by vested legal interests, because it allows a solicitor to rip off their client, to be judged by his colleagues and to walk away from it, no matter what was done to the client.

Time and again, lawyers look after their own, investigate themselves, appear in front of their friends at the Scottish Legal Complaints Commission (SLCC), and, at most, receive a censure, or slap on the wrist from the Scottish Solicitors Discipline Tribunal (SSDT).

Diary of Injustice recently reported on how the SLCC refuses to identify corrupt lawyers within determination decisions which are only published after being approved by the Law Society of Scotland, featured here: FROM ROGUES TO RICHES: SLCC refuse to identify corrupt solicitors in case findings.

The SLCC print lists of doctored histories of complaints against lawyers, and then refuse to identify the solicitors who ripped off their clients – how corrupt is that!

Compare this to England & Wales, where decisions made by the Solicitors Regulation Authority in relation to identified law firms and names of solicitors can easily be found here Recent Decisions – Solicitors Regulation Authority.

Striking’s off rarely occur, only as a last resort for the members of Scotland’s legal profession must protect their own.

The slick SSDT website invites you, the public – to have confidence in the ways lawyers look after their own.

Yet in decision after decision, the extent of dishonesty during proceedings renders much of what is published in Tribunal ‘interlocutors’ as clever forgeries of the acts of wilful, determined and well practiced thieves – far more determined than will ever be told in public.

The noticeable lack of action by the SSDT to report solicitors to the Police & Crown Office for prosecution, does, as the years go by, verify the position that the SSDT seeks to protect solicitors from the full weight of criminal law – which applies to everyone else.

However, on that rare occasion where solicitors do appear in court, you just know they are not going to jail.

In a prime example of the above, earlier this week Scotland was meant to weep like a child after the Law Society sought to publicise the fact Paul O’Donnell – a solicitor from the law firm of Thorley Stephenson, in South Bridge – had sold his house to repay more than £21,000 he pled guilty to embezzling from the Edinburgh law firm Thorley Stephenson, in South Bridge .

O’Donnell, 35, had previously been warned he was facing jail for the embezzlement but the judge – Sheriff Frank Crowe – allowed him to remain free as he had repaid the £21,485 he had obtained dishonestly.

In court –  O’Donnell’s defence lawyer –  Murray Robertson told Sheriff Crowe that his client had sold his house, moved in with relatives, and the money had been repaid to Thorley Stephenson.

Sheriff Crowe was also told O’Donnell had been sequestrated, was declared bankrupt and is no longer practising as a solicitor.

In response, Sheriff Crowe told O’Donnell that cases of this nature usually involved a sentence of imprisonment but, as  O’Donnell had co-operated and admitted his guilt, arranged the sale of his house and returned the money to Thorley Stephenson, Sheriff Crowe avoided sending O’Donnell to jail and instead confined him to his current address from 9pm to 6am for six months.

You may be forgiven for thinking how amazing a lawyer who stole, avoided jail.

However, in the rare occurrences when solicitors do come before our courts, jail is always a last resort for the judge – who are themselves, lawyers.

So, with facts in hand that our courts take a shine to lawyers with tears in their eyes, it should be of little surprise the latest rulings by the Scottish Solicitors Discipline Tribunal offer mere censures and fines for executry and will fraud, theft and embezzlement – which are crimes to ordinary people in the real world.

Law Society-v-Euan Maxwell Terras

This case involved a solicitor in his writing and executing a Will in which his family were the Primary Beneficiaries. An amazing story, yet only punishment is a fine.

Read the ‘published’ details of the hearing here Council of the Law Society of Scotland v Euan Maxwell Terras

Edinburgh 29 August 2016.  The Tribunal having considered the Complaint at the instance of the Council of the Law Society of Scotland against Euan Maxwell Terras, Sprang Terras, 64 Kyle Street, Ayr; Find the Respondent guilty of professional misconduct in respect of his acting in the purchase of a property with the ancillary execution of a Minute of Agreement and the drafting of a Will where his son was the residuary beneficiary and found that in doing so (1) he acted in an actual conflict of interest situation in the purchase of the property and the execution of the Minute of Agreement where he had a personal and/or financial interest in both; (2) he did not insist that Miss MM consult other solicitors either in the purchase of the property or the execution of the Minute of Agreement when both were actual conflicts of interests; (3) he could not discharge his professional obligations to solely look after the interests of Miss MM both in the purchase of the property and the execution of the Minute of Agreement given the actual conflict of interest in both between him and Miss MM; (4) he called into question his personal integrity/independence in taking instructions and/or drafting the second Will which benefitted members of his family and in terms of which they would derive significant benefit; and (5) his advice, given the terms of the draft second Will, was not free from external influence and placed him in a conflict of interest; Censure the Respondent; Fine the Respondent the sum of £8,000 to be forfeit to Her Majesty; Find the Respondent liable in the expenses of the Complainers and of the Tribunal.

Law Society-v-Philip Simon Hogg

Philip Hogg was one of a two-partner Kirkintilloch firm – Alder Hogg. His co-partner was his twin sister Alison Hazel Margaret Greer. The case relates to massive overcharging of clients. – usually defined as fraud if not involving a solicitor.

The following is for one client: The Interlocutor final amount is that for £129K of legal work they charged £219K for £90K more than they should have. So, for this one client, in relation to Mr A’s executry, it is accepted that £90K was overcharged, however the Tribunal does not explain why a staggering £129K of executry fees was deemed acceptable.

Read the full ‘published’ version of events in this shocking case here: Council of the Law Society of Scotland v Philip Simon Hogg

Edinburgh 25 August 2016.  The Tribunal having considered the Complaint dated 22 April 2016 as substituted by the Complaint dated 25 August 2016 at the instance of the Council of the Law Society of Scotland against Philip Simon Hogg, residing at 9 Crossdykes, Kirkintilloch, as amended; Find the Respondent guilty of professional misconduct in respect of his failure in his obligation to see that the firm in which he was a partner complied with the accounts rules, his failure in his duty to supervise the firm’s office manager and cashier, his failure in his duty to take steps to satisfy himself that fees being charged to executries were properly so charged, his failure to see that at all times the sums at credit of the client account exceeded the sums due to the clients and his continuing to draw from the firm while it was being financed by the overcharges to clients; Suspend the Respondent from practice for a period of five years and Direct in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 that the suspension shall take effect on the date on which these findings are intimated to the Respondent;

Law Society-v-Jane Elizabeth Steer

Elizabeth Steer worked for a Falkirk firm RMS Law. She previously worked for Russell & Aitken and now works for Allan McDougall & Co.

Ms Steer was accused of falsifying an Affidavit.

Affidavits MUST adhere to the following: 1. both parties must be physically present at the signing i.e. the solicitor (notary public) and their client 2.it must be signed at the locus specified in the Affidavit

The affidavit complied with neither of these tests, instead Ms Steer sent it to her client in England to sign and return.

Problems with the affidavit only came to light when the client gave evidence stating that she had not been in Scotland for a while – but when at Avizandum the Sheriff realised that the Affidavit was signed in Scotland at a time when the client swore she was in England.

To make matter worse, Miss Steer also tried to mislead the Law Society during the Investigation. Read the full published Interlocutor here: Council of the Law Society of Scotland v Jane Elizabeth Steer

Edinburgh 16 August 2016.  The Tribunal having considered the Complaint dated 31 May 2016 at the instance of the Council of the Law Society of Scotland against Jane Elizabeth Steer, Messrs Allan McDougall, 3 Coates Crescent, Edinburgh as amended; Find the Respondent guilty of professional misconduct in respect of her failure to act with trust and personal integrity in connection with the preparation of an affidavit which she purported to notarise on 29 October 2012, submission to the court for lodging an affidavit which contained false or misleading information on 5 November 2012 and subsequent failure on 29 June 2014 to provide a full and candid explanation to the Law Society in connection with the preparation of the affidavit and its sending to the Secondary Complainer; Censure the Respondent;

And remember, readers – wherever there is dishonesty, there is a Scottish solicitor, and the Scottish Solicitors Discipline Tribunal.

THE DISHONESTY FACTOR:

An investigation by BBC Panorama –  Lawyers Behaving Badly – featured the case of John O’Donnell, and went on to reveal the startling differences in how dishonesty in the Scottish legal profession is treated lightly compared to England & Wales – where dishonesty is automatically a striking off offence.

Alistair Cockburn, Chair, Scottish Solicitors Discipline Tribunal. Featured in the investigation was the Scottish Solicitors Discipline Tribunal (SSDT) Chairman’s attitude towards solicitors accused of dishonesty in their representation of clients legal affairs. During the programme, it became clear that dishonesty among lawyers in Scotland is treated less severely, compared to how English regulators treat dishonesty.

Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?

Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society.  We are mindful, particularly when reminded of the lay members, of a duty to the public.

One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct. 

Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?

Alistair Cockburn: No it’s not a question of saying sitting comfortably with me.  I’ve told you…

Sam Poling: OK that you would accept?

Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty.  One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.  But you make it sound as if it’s commonplace.  It isn’t.  Normally dishonesty will result in striking-off.

English QC’s agree ‘dishonesty’ is a striking off offence. The SSDT Chairman’s comments on dishonesty compared starkly with the comments of the English QC’s – who said dishonesty was undoubtedly a striking off offence.

Andrew Hopper QC: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”

Andrew Boon Professor of Law, City University, London: “They actually say in the judgement they would have struck him off but the client hadn’t complained.”

Andrew Hopper QC “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law: “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

As Sam Poling went on to report: “but he [O’Donnell] wasn’t stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”

Previous reports on the Scottish Solicitors Discipline Tribunal can be found here: Scottish Solicitors Discipline Tribunal – Pro-lawyer protection against client complaints

 

Tags: , , , , , ,

AXIS TO JUSTICE: ‘Treat lawyers like Hospitals & Police’, Democracy ‘at risk’ if state refuses to fund litigants – Law Society & Faculty of Advocates attack plans to make secretive, slow Scots courts self funding

Fund lawyers like nurses & public services – say lawyers. DURING TIMES of financial crisis, Brexit woes and growing demands on nurses, doctors, the NHS, Police, education and everything else. public services should be forced to take an equal seat to the spiralling billions of pounds of public cash lavished on lawyers, the courts and legal aid – according to claims from the legal profession.

The demand for equal treatment to public cash comes from the Law Society of Scotland and the Faculty of Advocates – who, along with other legal vested interests – are calling for the state to fund all court actions and treat lawyers in the same ‘deserving of public funds’ category as medical care provided by the National Health Service, education, social care and Police.

The latest call from the Law Society of Scotland to increase – by millions more – the flow of public cash into legal business and struggling lawyers pockets – comes in answer to plans by the Scottish Government to hike court fees by up to 25% and turn the closed shop, secretive, slow and unjustly expensive Scottish courts run by the Scottish Courts and Tribunals Service (SCTS) into a self funding operation.

However, under the guise of defending ‘access to justice’ – loosely translated to ‘public cash for lawyers’ – the Law Society state in their response: “Plans to introduce the full recovery of civil court costs in Scotland would be damaging to access to justice, particularly for those bringing forward personal injury cases and more vulnerable people.”

The Law Society of Scotland’s response to the Scottish Government’s consultation on Court Fees goes on to state “any move towards full cost recovery should be avoided” and “that the state has a duty to help people in achieve ‘equality of arms’ in the courtroom.”

The Law Society also claims that a proposal to introduce a 24% rise in court fees would be ‘unjust and unjustifiable’.

Syd Smith, from the Law Society of Scotland’s Remuneration Committee, representing the views of pursuers’ solicitors, said: “We believe it is essential that the courts should provide an independent and impartial forum for resolving disputes between people or organisations and that the state has a duty to help those involved have equality of arms when their cases go to court.”

The Law Society has said that any new system for court fees would have to ensure they were proportionate, taking into account Lord Gill’s Review of the Scottish Civil Courts, and the findings of Sheriff Taylor in his Review of Expenses and Funding of Civil Litigation in Scotland.

Mr Smith said: “We think the focus of any review of court fees should be on redressing the balance between claimants and defenders in personal injury cases. However if the government’s aim is to have a system where 100% of the cost of the courts are covered by fees paid by those involved in the actions lodged, it will be vital to have proportionate fee levels.

“The consultation option to introduce a 24% rise in court fees would represent an unjust and unjustifiable increase which would create a very real barrier to access to justice for claimants especially vulnerable people who have suffered life changing personal injuries.

“Any change to the current system also needs to recognise that there is not a level playing field between personal injury claimants and the insurance companies who are the defenders in those claims. Any changes which fail to recognise this problem risk widening the existing gap.”

Going a little further, and backing up their legal vested interest colleagues, the Faculty of Advocates response to the Court Fees consultation claims democracy could not function if the state did not pay for litigants to sue everyone under the sun in the same way convicted mass murderers and fraudsters empty hundreds of millions of pounds of Criminal legal aid from the public purse.

A submission from the Faculty of Advocates to the Court Fees consultation states: “The civil justice system should be funded by the state from general taxation…(it) is a cornerstone of a democratic state…(and) is vital to every citizen, whether or not he or she ever becomes a litigant,”

“No part of our democratic society could function without our civil law being maintained by the operation of our courts. There is no warrant to shift the cost of the courts entirely on to litigants when the whole of society benefits from them,”

“As a matter of principle, the civil justice system should be funded by the state, not litigants,” it said.

“The civil justice system is a cornerstone of a democratic state. It is the duty of the state to provide an accessible civil justice system…To the benefit of society at large, the law is made, declared or clarified daily by the civil courts. The civil justice system is vital to every citizen, whether or not he or she ever becomes a litigant. The benefits to society justify it being funded in full from general taxation.

“Many state-provided services are funded from general revenue, on the basis that these services benefit the whole of society, and not just those in immediate need of them. Our society accepts that, without regard to their means to pay, individuals should have access to medical care, and that every sort of person should be served by the police and emergency services.

“The Scottish Government has recognised that charging tuition fees to students limits access to higher education for many and that charging for prescriptions might deter people from seeking medical assistance. The Faculty considers that access to the courts is of equal importance.”

The Faculty believed that the proposed increases would be likely to impede access to justice, and that requiring a person to pay expensive court fees could be a breach of Article 6 of the European Convention on Human Rights, which protects access to a court.

“The funding of the civil justice system by litigants rather than the state does not protect access to justice, it hinders it.

“If even a few people are deterred from litigating a good claim or defence, that is seriously damaging justice. There may be many more than a few who are so deterred, of course,” said the Faculty.

“The system of court fees exemptions is inadequate to protect access to justice…the thresholds for exemptions are set very low.”

So, the next time you need emergency medical care, the Police, education for your children, help with homelessness or any other public service – remember not to call the well trained and dedicated people who staff these vital arteries of life.

Instead, call a lawyer and insist your taxes, your hard earned savings (if any) and dwindling assets are handed over to fund a solicitor, court clerks, a struggling Sheriff on £160K a year or a £230K a year Court of Session judge – just like the Law Society of Scotland said – because you know – lawyers have your interests and ‘access to justice’ as their priority.

GIVE CROWN OFFICE MORE MONEY – Law Society to MSPs.

In a second take on the more public cash for lawyers approach, earlier this week the Law Society of Scotland also demanded more public cash be given to the struggling Crown Office & Procurator Fiscal Service (COPFS) – who are forced to eek out an existence on a staggering £112 million a year.

In written evidence to a Scottish Parliament Justice Committee inquiry into the workings of Scotland’s “Institutionally corrupt” Crown Office, the Law Society of Scotland has said that consideration will be needed to ensure that the service provided by Crown Office and Procurator Fiscal Service (COPFS) and others is accessible and inclusive for all members of society.

In its response to an Inquiry on the role and purpose of the COPFS, the Society also stated that all participants involved in the criminal justice system have responded to a number of reforms during a time of significant financial pressure.

Ian Cruickshank, convener of the Law Society of Scotland Criminal Law Committee, said: “It’s important that the criminal justice system evolves and makes use of new technology which can help improve the service particularly when there continues to be financial pressures alongside increasing numbers of serious crime reported to the COPFS and legislative developments.

“However it is important to be aware of the potential impact on core services at a local level and on access to justice. There will need to be careful consideration on how best to ensure the service provided by the COPFS and others within the criminal justice system is accessible and inclusive to all member of society.

“Lack of resources has had an impact on the preparation and the time available for presenting criminal prosecutions in our courts. The number of prosecutions resulting in court disposals has decreased in the past five years, however the complexity of the impact of recent legislation, and the complexity of certain types of cases reported, means more preparation and court time is required.”

Previous reports on how much the Law Society of Scotland values your ‘access to justice’ and their vested interests, can be found in the archive of reports, here: Law Society of Scotland

 

Tags: , , , , , , ,

NO MONEY NO JUSTICE: Slow, costly courts, £220K a year judges on junkets & justice staff on the take prompt Scottish Government proposal for 25% hike in court fees

Scotland’s courts to become 25% more rip-off than before. EVERYONE knows the Scottish Courts and Tribunals Service (SCTS) and our powerhouse Sheriff Courts & the fabled Court of Session teeter on the brink of consternation, calamity, comedy and collapse at the end of each working legal week.

Every time a member of the judiciary takes time off their busy schedule of frequently flying £5K international holidays on the taxpayer – to perform the actual £200,000 a year job of being a judge and sit and listen to the daily farce and often dodgy evidence presented by Crown Office prosecutors before the Criminal Courts – you would honestly think from their faces – the end of the world had arrived.

Judges are so rich poorly paid these days, they have to conceal their vast wealth with the threat of constitutional calamity if it were revealed – or flog their multi million pound Victorian villas, properties in the country, undeclared holiday homes in Dubai or wherever – to members of their own family – for millions of pounds and avoiding those awful taxes which apply to the rest of us.

Let’s not even talk about the others … week long holidays in Qatar, North America, the far east, or jetting off to New Zealand for a week, then retiring a few days later, the gold Rolexes, collections of valuable items, taxpayer funded security fit for Royalty, extra ermine gowns & hanging around the works of Leonardo Da Vinci in the hope of life eternal.

How about the well paid poorly paid overworked court staff you say? Well, not really.

‘Hospitality’, undeclared deals on the side with law firms and other less talked about financial arrangements for increasing numbers of court staff compensate for the daily struggle of putting pen to paper and reminding the elderly sheriff the one before him ‘is a bad yin’.

So, where does all the money come from to pay for your access to justice and the privilege of appearing before someone festooned in 18th Century fancy dress and surrounded by wood panelling and enormously expensive digital recording equipment – conveniently unplugged so as not to record the daily courtroom farce or your expert witness disagreeing with Lord know-it-all.

The Scottish Government gave the Scottish Court Service a whopping £88.9million of your cash in the 2016-2017 budget. Plenty there to go around.

The judiciary on it’s own receive a staggering £40million of public cash, to groan, grizzle, gloat & giggle as they listen to counsel after counsel, litigant after litigant – while dreaming of appearances & junkets to warmer, wealthier climes.

The Legal Aid budget – once standing at over £160million a year and now allegedly a very very very dodgy £136.9million in the 2016-2017 budget – your cash going on lawyers, criminals and some of the most laughable, inept court hearings in existence.

The Crown Office & Procurator Fiscal Service (COPFS) – widely regarded by all sides as the pre-eminently most corrupt institution in the entire Scottish justice system – received a staggering £112.5million of your cash. To do what? to cover up it’s own staff and prosecutors leaking case files and evidence to criminals, or snorting cocaine and beating up Police Officers.

And, let’s not forget the £58 million of public cash spent by the Scottish Court & Tribunal Service on new doorknobs, a lick of paint and new scones for the Court of Session ‘powerhouse’ – which must rank as Europe’s slowest, most distorted, most expensive & interest ridden seat of justice, ever.

All this must be paid for, somehow. Loads-a-money. Your money. Certainly not theirs, for they are all public servants paid for by you.

So we come to the Scottish Government’s proposal to go for ‘full cost recovery’, buried in the now familiar loaded consultation papers issued by the Justice Directorate of the Scottish Government.

And, instead of blaming the fee rises on our slow, difficult and inaccessible courts, the Scottish Government instead has chosen to blame budgetary cuts imposed by Westminster.

The Scottish Government Consultation on Court Fees 2016 sets out proposals for fees in the Court of Session, the High Court of the Justiciary, the Sheriff Appeal Court, the sheriff court, the Sheriff Personal Injury Court, and the justice of the peace court. Court fees are a major source of income for the Scottish Courts and Tribunals Service and it has become necessary to increase fees in order to achieve full cost recovery. It seeks views on two options each of which is aimed at providing full cost recovery.

Fee hikes across the board of almost 25% for civil actions in Scotland and alternative targeted rises are being proposed by Scottish ministers – as part of a consultation on Scottish court fees which runs until October.

Court fees have generally been reviewed every three years, with the last round being implemented in 2015, however this time around “the Scottish Government has decided to accelerate the move towards full cost recovery“.

The Consultation on Court Fees – open until 12 October 2016 – sets out proposals for fees in the Court of Session, the High Court of the Justiciary, the Sheriff Appeal Court, the sheriff court, the Sheriff Personal Injury Court, and the justice of the peace court. Court fees are a major source of income for the Scottish Courts and Tribunals Service and it has become necessary to increase fees in order to achieve full cost recovery. It seeks views on two options each of which is aimed at providing full cost recovery.

The Scottish Government states “It is necessary to raise fees so that the Scottish Court and Tribunals Service is able to achieve full cost recovery from its courts. We are consulting on two options seeking the views of stakeholders on the best way to achieve this. Stakeholders will be able to provide their opinions on which option is better from the point of view of their own court actions and, if they are an organisation, of their clients. This will help the Scottish Government’s decision on which option should be incorporated into the necessary Scottish Statutory Instruments.”

“A review is justified both by the need to end the cost to the public purse of subsidising the civil justice system, and by the introduction of the new simple procedure which replaces the current small claims and summary cause procedures.”

Simple procedure will be phased in from 28 November for actions worth not more than £5,000. It is planned to retain existing fee levels for summary cause and small claims actions, so that at present levels lodging a claim for up to £200 under simple procedure would mean a fee of £18, and £78 for a claim above that level and up to £5,000.

If a flat rise is the option chosen, all Court of Session and sheriff court fees will rise by 24%, the amount needed to fund a deficit of £5.4m on gross fee income of £22.2m in 2014-15. That would mean lodging fees of £22 or £97 for simple procedure cases, £119 (from £96) for summary applications and ordinary sheriff court actions, £187 (from £150) for non-simple divorces, and £266 (from £214) for Court of Session or Sheriff Personal Injury Court actions. Hearing fees would jump from £227 to £282 in the sheriff court, and from £96 to £119 per half hour (single judge), or from £239 to £297 per half hour (bench of three) in the Court of Session.

Suggested targeted fee rises, the other option, would raise more money overall. The £18 simple procedure lodging fee would remain unchanged, as would the £150 divorce lodging fee and the £227 sheriff court hearing fees, as well as fees in the recently introduced Sheriff Appeal Court. However there would be a £100 lodging fee for a simple procedure claim for more than £200, £120 for summary applications and ordinary causes, and £300 for a Court of Session action. In that court the cost of lodging a record would almost double from £107 to £200, and hearing fees more than double to £200 for every half hour before a single judge, and £500 per half hour before a bench of three.

The alternative scheme would also see the introduction of graded fees in commissary court proceedings for authorising executors to handle a deceased person’s estate. Whereas at present for all estates worth more than £10,000 there is a flat fee of £225, it is proposed to exempt estates worth less than £50,000 but to charge £250 for estates between £50,000 and £250,000, and £500 for larger estates.

The consultation paper states on Page 8: “We are aware that there will be a tipping point where fee increases may deter people from raising actions”, the paper observes. “We do not believe that the level of rises in either option 1 or 2 as proposed will have a deterrent effect as individual fees will still be relatively low, particularly when viewed against the total costs of taking legal action including the cost of legal advice.”

Be sure to enter your thoughts in the Scottish Government’s consultation. Go here to do so: Consultation on Court Fees You have until 12 October 2016.

 

Tags: , , , , , , , , ,