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FROM ROGUES TO RICHES: Scottish Legal Complaints Commission refuse to identify corrupt solicitors in case findings – as derisory payments to executry fraud & legal malpractice victims revealed

‘Independent’ lawyer’s self regulator continues to look after profession. SCOTLAND’S ‘independent’ self regulator of solicitors – the Scottish Legal Complaints Commission (SLCC) has refused to publish the identities of tens of high profile law firms and solicitors across the country involved in serious malpractice resulting in upheld complaints & compensation payments to clients.

The ‘independent’ SLCC – controlled by the Law Society of Scotland and funded by clients legal fees to solicitors – also revealed brief details of case summaries where small payments with a range from a miserly £1 to £299 and up – have been paid out to the bereaved families of deceased loved ones.

The paltry compensation sums were paid out after lawyers look advantage of a regular scam by ripping off the wills & executry estates of dead clients.

Even in cases where tens of thousands of pounds were plundered from bank accounts and assets relating to wills handled by solicitors – a mere few hundred pounds were paid out to families & loved ones who were intended to inherit the possessions of their relatives.

The SLCC has refused to publish figures quoting actual payments or any figures identifying the extent of the actual losses suffered by victims after lawyers fleeced client assets and executry estates.

Instead, the lawyer backed self regulator has set out a vague structure of figures, which allow the lawyer backed regulator to make spurious claims of protecting consumers while in actual fact failing to deliver back to victims what is estimated to be tens of millions of pounds a year defrauded out of the executry estates of deceased Scots and their families – by the legal services industry.

Mired in accusations of pro-lawyer bias and corruption – the SLCC has also announced its latest 4 year strategy to:

* Increasing public awareness of the right to make a complaint about a lawyer and increasing the SLCC’s visibility

* Working to understand the public’s and the legal profession’s expectations of professional standards, including highlighting complaints processes

* Developing a culture of learning, so that  complaints made to the SLCC can be used to improve levels of service, as well as national professional standards and regulation

* Further developing the SLCC as a high performing organisation

* Making sure that compensation or fee refunds awarded by the SLCC are always received by consumers (in a tiny minority of cases this doesn’t happen at present)

Commenting on the strategy announcement, SLCC Chair Bill Brackenridge said: “We’ve finalised our strategy at a time when consumer rights have been climbing the public agenda”

He continued: “And we’re now planning for the years ahead.  We’ll have been running for ten years in 2018 and we now have a path, for then and after, to a more effective and efficient system for legal complaints.  Working in partnership will be crucial to its success and I’d like to thank our stakeholders for an open and challenging debate around the consultation.”

However, a recent media investigation into the Scottish Legal Complaints Commission recently 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.

SOUNDS FAMILIAR? Read on – Your solicitor could be among the guilty:

Determination Decisions

The Scottish Legal Complaints Commission now publishes anonymised Determination decisions – which give a brief description of complaints decided upon by the SLCC.

However, the heavily redacted case summaries crucially exclude the identify of law firms and solicitors involved in the complaints – meaning any consumer could unknowingly be using the same law firm or talking to the same solicitor – who has just been found guilty of dodging complaints investigations and ripping off other clients.

The SLCC claims it believes the information is useful information for both potential complainers and practitioners and “that this demonstrates better transparency of our process”

However, the SLCC goes on to state “We need to balance that transparency with our duty to protect confidentiality. Because of that, we publish anonymous complaint information and have, as far as possible, removed any identifying features.”

The SLCC further stated “It is also important to bear in mind that information given about a complaint is only a brief summary of the Determination Committee’s findings. In making decisions, consideration will have been given to specific facts and circumstances which, again for reasons of confidentiality, cannot be provided here. We hope, however, that the published information is sufficient to benefit both potential complainers and also those who provide legal services.”

Where a complaint has been upheld, the total amount the SLCC can award is capped at £20,000 – a cap set by the Scottish Government & Scottish Parliament after the legal profession lobbied against higher amounts of compensation during the passage of the Legal Profession & Legal Aid (Scotland) Act 2008.

Compensation for actual loss (quantifiable): Level 1 : £1-£299, Level 2:  £300-£649, Level 3: £650-£999, Level 4:  £1,000-£4,999, Level 5: £5,000-£9,999, Level 6: £10,000-£14,999, Level 7: £15,000-£20,000

Compensation for inconvenience, distress and loss of opportunity:Band A £1-£150, Band B: £151-£750, Band C: £751-£1,500, Band D £1,501-£5,000

Determination Decisions: January – March 2016

Upheld and part-upheld decisions

16/1 Residential conveyancing: The complainer complained that the named solicitor had (a) failed to obtain instructions from the complainer’s partner until a week before completion of the sale, and (b) failed to ensure that there was a provision in a Minute of Agreement for the sale proceeds to be held on deposit, rather than distributed on completion of the sale.

The Determination Committee was satisfied that the solicitor had acted correctly in distributing the funds, but that there was lack of effective communication with the complainer prior to the sale about distribution.  The Committee agreed that the solicitor had failed to act in the best interests of the complainer by failing to clearly explain what would happen in the event of implementation of a Minute of Agreement agreeing to equal division of the sale proceeds.

The Committee decided that both issues amounted to inadequate professional service.  The Committee decided that the firm should pay to the complainer compensation of Band C for distress and  inconvenience on several occasions.  The Committee directed the firm to pay a Complaints Levy of £500.

16/2 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm’s own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/3 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm’s own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/4 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm’s own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/5 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm’s own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/6 Family: The complainer complained that the named solicitor had (a) advised the complainer at the initial meeting that the information relating to the source of the deposit was not required, but later advised that this information was vital and incorrectly alleged that the complainer had failed to provide this information at the initial meeting, (b) failed to communicate effectively by failing to respond to basic questions, (c) failed to proceed with division of assets and sale proceeds when instructed, and (d) failed to deal adequately with the complaint.

The Determination Committee decided that there was sufficient evidence to uphold issues (a) and (c) as inadequate professional service.

Regarding (a), the Committee agreed that the solicitor had failed to identify the client’s objectives at the outset, and thus advised the complainer to pursue an un-necessary course of action.

The Committee decided in respect of (b) that the client had been kept informed during the case.  The fact that the solicitor had not been able to answer very specific questions about matters extraneous to the case had also been explained, and as such, there was no breach of the Service Standards.

In respect of (c), the Committee was satisfied that the solicitor had delayed raising the action for several weeks.

Regarding (d), the Committee agreed that the evidence showed that the solicitor had attempted to address the complainer’s concerns, and that the suggestion to the client to seek alternative representation was unreasonable or unusual where dissatisfaction had been raised.

The Committee decided to uphold the complaint and  ordered the firm to reduce its fees by one third and to pay to the complainer compensation of Band A for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £700.

16/7 Residential conveyancing: The complainer complained that the named solicitors and the firm had (a) unduly delayed registering the disposition, and (b) delayed informing the complainer of the mistake.

The Determination Committee decided that there was sufficient evidence to uphold a finding of inadequate professional service against the firm.

The Committee decided, (a) the solicitor had failed to prepare and register the disposition following settlement and had delayed registration by approx. a year and a half.

In respect of (b), the Committee agreed that the solicitor had failed to inform the client that the disposition had not been registered timeously, and only after a number of months, once the defect had been rectified.

The Committee ordered the firm to refund part of the fees (£100) and outlays (£30), and to pay to the complainer compensation of Band B for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £500.

16/8 Family: The complainer complained that the named solicitor and the firm had (a) delayed/failed to obtain all of the husband’s financial information, failed to set up meetings and failed to follow instructions to communicate with the opposing solicitor, (b) failed to provide consistent advice, (c) included incorrect information in the offer of settlement, (d) failed to thoroughly examine the proposals for settlement, (e) failed to submit cravings on the complainer’s behalf, (f) failed to respond to requests for an interim account and failed to keep updated regarding escalating costs, and (g) delayed settlement negotiations.

The Determination Committee was of the view that there was no evidence to support the complaint, save as for issues (e) and (f) regarding the failure to submit cravings in the Defence, as required by the Ordinary Cause Rules, and the failure to issue an interim account as per the complainer’s request, or communicate adequately with the complainer about the increasing fees.  The Committee was satisfied that these issues could amount to inadequate professional service, as there had clearly been a breach of the Service Standards for diligence and communication.

The Committee ordered the firm to pay compensation to the complainer of Band B for the inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £500.

16/9 Litigation: The complainer complained that the named solicitor and the firm had (a) raised an action incorrectly naming the complainer individually, rather than in the name of the business, (b) failed to lodge the application timeously, (c) failed to lodge a properly framed application and delayed amending the application.

The Determination Committee decided that (a) there was insufficient evidence to reach any conclusion that the court action had been raised in the name of an incorrect party.  However, the Committee was satisfied that (b) the firm had failed to exercise the normal care and diligence expected of a competent solicitor by delaying the lodging of the application, and (c) failing to properly frame and amend the application.

The Committee decided to uphold the complaint and  ordered the firm to pay compensation of Band D for inconvenience and distress.  The Committee directed that no fees or outlays should be charged to the complainer.  The Committee directed the firm to pay a Complaints Levy of £800.

16/10 Litigation: The complainer complained that the opposing named solicitor and the firm had failed to act in the best interests of his client by unduly delaying the conclusion of the dispute for over 2 years.

The Determination Committee was satisfied that the cumulative effect of the identified delays adversely impacted on the service provided by the firm to its own client. Consequently, the complainer suffered as a direct effect of the deficiencies in the service to the client.

The Committee ordered the firm to pay compensation to the complainer of Level 4 for actual loss and Band B for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £300.

16/11 Residential conveyancing: The complainers complained that the named solicitor had (a) failed to ensure that a Completion/Habitation Certificate was available at conclusion of the purchase, (b) failed to advise of the consequences of completing without the Certificate, (c) failed to take instructions/obtain informed consent before agreeing a retention sum with the builder’s solicitors, and (d) failed to advise prior to completion that the property had not been passed as fit for habitation.

The Determination Committee was satisfied that the firm (a) did not take all reasonable steps to ensure that their clients’ interests were protected at settlement, and (b) & (d) failed to clearly and fully explain the significance of settling without the relevant Completion and Habitation certificates. The Committee accepted that the firm had not investigated why the Certificate had not been issued or asked about any underlying issues.

Regarding (c), although the Committee was satisfied that the firm had sought instructions about the retention of £10,000, there appeared to be no evidence to show that the consequences of proceeding in the way suggested by the developers was explained to the complainers, and that they were not advised about what a Completion Certificate was or the implications of proceeding without one.

The Committee ordered the firm to pay to each the complainers compensation of Band D for inconvenience and distress.  The Committee directed that fees in the sum of £660 (plus VAT) should be refunded to the complainers.  The Committee directed the firm to pay a Complaints Levy of £3,000.

16/12 Family: The complainer complained that the named solicitor and the firm had prepared an initial writ which contained a number of serious errors, including incorrect details of the children’s address and what was in the children’s best interests.     The Determination Committee was satisfied that the evidence showed that the firm had failed to ensure that the writ contained the necessary averments and fundamental flaws, which resulted in the action having to be dismissed and resurrected by newly instructed agents.

The Committee ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress.  The Committee directed that there should be a full refund of fees (£700) and no further fees charged to the complainer.  The Committee directed the firm to pay a Complaints Levy of £400.

16/13 Family: The complainer complained that the named solicitor had (a) failed to deal with a Motion to recall the Sist and request a Proof, contrary to numerous requests, (b) failed to submit the Motion to Court and charged inappropriately for doing so, (c) unduly delayed sending the Motion to the opposing solicitors, despite confirming that this would be carried out the following week, (d) unduly delayed updating on the position regarding the failed submission of the Motion, despite having given an undertaking to do so, (e) unduly delayed reminding the opposing solicitors that a response was still outstanding, despite two reminders to do so, (f) unduly delayed forwarding correspondence from the opposing solicitors, despite being reminded and advised of the urgency of the matter, (g) failed to raise various financial issues with the opposing solicitors, despite numerous requests to do so, (h) failed to confirm advice provided in writing, despite having agreed to do so, (i) failed to challenge a report, despite having accepted instructions to do so, (j) declined to provide further advice until the outstanding account had been settled, despite this being contrary to the terms of business, and (k) failed to deal adequately with the complaint, by ignoring concerns.

The Determination Committee was satisfied that (a) & (b) the solicitor had failed to enrol a Motion, despite having undertaken to do so and charged the complainer for having done so.

Regarding (c), although the Committee was content that the complainer had been advised of a timescale, there was only a 4 day delay.  The Committee was not satisfied that this short delay amounted to an inadequate professional service.

In respect of (d), the Committee noted that there had been a 4 week period between the date when the solicitor intended to enrol the Motion and the failure to do so being advised to the complainer.  The Committee’s view was that the solicitor should know the client’s business at all times, regardless of when he actually remembered the oversight.  The Committee’s view was that the delay was a breach of the standards of both diligence and communication and amounted to inadequate professional service.

Regarding (e), the Committee was satisfied that there had been a 5 week delay, despite 5 prompts by the complainer.

As regards (f), the Committee was satisfied that there had been a 4 week delay in the information being provided to the complainer, despite the solicitor being aware of the urgency.

In respect of (g), the Committee agreed that the solicitor had failed to follow instructions in this regard on at least 4 occasions.

Regarding (h), the Committee was satisfied that the evidence showed that the complainer had requested the information on a number of occasions, and that this had not been provided.  The solicitor had the opportunity of clarifying the information sought after the meeting, as subsequent requests were made.

In respect of (i), the Committee agreed that the evidence did not support the complaint that the solicitor had been asked to challenge the content of the report, other than in relation to fees.  Accordingly, this issue was not upheld.

Regarding (j), the Committee agreed that the solicitor had acted unreasonably by refusing to continue to provide advice to the complainer prior to the expiry of 30 days for settlement of the account, as allowed for in the terms of business letter.

Finally, in respect of (k), the Committee noted that there was no evidence to support the solicitor’s indication that the complainer had been invited to discuss the complaint, as per the terms of business letter.  The Committee was satisfied that without written confirmation and the complainer having denied having received any such invitation, that there had been a failure to comply with the terms of business and that this failure amounted to an inadequate professional service.

The Committee decided to uphold the complaint in part and ordered the firm to pay compensation to the complainer of Band C for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £700.

16/14 Residential conveyancing: The complainer complained that the named solicitors and the firm had (a) failed to advise that a more in depth survey report should be obtained, (b) failed to obtain/discuss the terms of a timber report, (c) failed to follow up the issue of guarantees for damp treatment and woodworm, and (d) failed to advise of notification of timber infestation requiring full chemical works being undertaken.

The Determination Committee agreed that the firm had failed to provide the complainer with documents relating to previous investigations of damp and timber defects and failed to advise the complainer that further investigations should be carried out given the terms of those documents.  The Committee also agreed that one of the named solicitors had failed to obtain a copy of the report instructed by the complainer and did not advise about its terms prior to the conclusion of the missives.  The Committee was satisfied that one of the named solicitors had failed to follow up the issues of guarantees and that the firm had failed to advise of the terms of a letter from the sellers advising that there was an infestation of woodworm and that full chemical works should be carried out.

The Committee ordered the firm to pay compensation to the complainer of Band C for the distress and inconvenience caused by the inadequate professional service.  The Committee also decided that the firm’s fees should be reduced by 35% (approx. £250 plus VAT) and refunded to the complainer.  The Committee directed the firm to pay a Complaints Levy of £1,000.

16/15 Residential conveyancing: The complainer complained that the opposing named solicitor and/or the firm had failed to register the sale of the ground or have the title deeds updated in relation to the part of the complainer’s garden that the firm’s client had purchased.

The Determination Committee agreed that the solicitor had failed to record the title deed in favour of the firm’s own client (the complainer’s neighbour), resulting in an inadequate professional service to their own client and which had a direct adverse impact on the complainer.

The Committee ordered the firm to pay to the complainer compensation of Band A for the inconvenience and distress and level 2 for actual loss, due to the need for a new deed plan to be prepared.  The Committee directed the firm to pay a Complaints Levy of £200.

16/16 Family law; failing to respond: The complainer complained about the named solicitor and/or the firm had (a) failed to include information required in a Pensions Sharing Order and failed to ensure that the Schedule was attached to the Minute of Agreement, (b) failed to ensure that the Minute of Agreement was sufficiently robust regarding the pension entitlement and net proceeds of sale, (c) failed to intimate the Agreement and Decree to the pension trustees within the appropriate statutory timescale, (d) failed to distribute the proceeds of sale in accordance with the Minute of Agreement and unduly delayed discharging the bank loan, (e) inappropriately and without authority, deducted the fee note from the proceeds of sale without having issued a fee note, (f) erroneously withheld the balance of the proceeds of sale, (g) failed to raise a court action, despite having been instructed to do so, (h) failed to respond to the letter of complaint and failed to provide a breakdown of fees, and (i) failed to implement a mandate.

The Determination Committee was satisfied that the evidence showed that the firm had (a) failed to ensure that the pension plan details were contained in the document sent to the pension trustees, (d) failed to distribute funds timeously, and (e) deducted fees from retained funds without the knowledge of the complainer. The Committee was not satisfied that the evidence supported the remaining issues of complaint or that there was lack of evidence to prove these issues on the balance of probabilities.

The Committee ordered the firm to pay compensation to the complainer of Band B for inconvenience and distress, and that fees charged should be reduced by £100.  The Committee directed the firm to pay a Complaints Levy of £400.

16/17 Residential conveyancing: The complainer complained that the named solicitor and the firm had (a) failed to obtain a Letter of Comfort from the Council and/or failed to determine the exact amount of the liabilities owed by the sellers in respect of outstanding Statutory  Notices, and (b) failed to negotiate an appropriate retention amount in the missives.

The Determination Committee decided that (a) there was evidence that the firm failed to take adequate steps to determine the liabilities of the sellers, and (b) that the firm failed to negotiate an appropriate retention.  The Committee decided that the complaint should be upheld to this extent.

The Committee ordered the firm to pay to the complainer compensation of Band C for distress and inconvenience and Level 4 for actual loss.  The Committee directed the firm to pay a Complaints Levy of £800.

16/18 Litigation: The complainers complained that the named solicitor and/or the firm had (a) systematically lied regarding the action being taken in connection with the claim, and (b) falsely charged the complainers for costs in relation to water and planning applications.

The Determination Committee decided that (a) there was sufficient evidence to support the complainers’ contention that the solicitor had incorrectly advised them that various steps had taken place to progress the action, and (b) the solicitor falsely advised the complainers that the sellers would pay for the costs of the work, despite having obtained no undertaking that they would do so.

The Committee ordered the firm to pay to each of the complainers compensation of Band D for distress and inconvenience, and that no fee note should be rendered.  The Committee directed the firm to pay a Complaints Levy of £1,000.

16/19 Residential conveyancing: The complainer complained that the named solicitor and/or the firm had failed to advise about the Capital Gains Tax liability on the transfer of title.

The Determination Committee upheld the complaint on the basis that the options available to the complainer should have been explored, and the complainer had not been advised of the tax liability and/or was not advised to seek tax advice from another source.  The Committee’s view was that the complainer had suffered a loss of opportunity to consider all available options and was not fully informed as a result of the inadequate professional service.

The Committee ordered the firm to pay compensation to the complainer of Band D for worry and distress. The Committee directed the firm to pay a Complaints Levy of £850.

16/20 Litigation: The complainer complained that the named solicitor and/or the firm had (a) failed to advise him at any time about the strength of his claim, (b) failed to advise him of the potential for a costs order being made if the case was lost, and (c) failed to keep the complainer updated or advised about what SLAB required for the funding application.

The Determination Committee decided in respect of (a) that the firm had failed to give appropriate advice, either in writing or otherwise, about the strength of the claim. Such advice should have been provided in writing before court proceedings were raised.  In respect of (b), the Committee was satisfied that the evidence indicated that the firm had failed to provide appropriate advice regarding potential liability for expenses if the action was unsuccessful, or the potential magnitude of that liability.  The Committee agreed that the evidence did not support (c), that the firm had advised the complainer of the date of the hearing, that the firm had passed on any requests received from SLAB, or that SLAB had been in touch with the complainer directly.

The Committee ordered the firm to pay to the complainer compensation of Level 5 for actual loss and Band C for inconvenience and distress resulting from the inadequate professional service.  Additionally, the Committee decided that the firm should not be entitled to charge any fees or outlays for the service provided.  The Committee directed the firm to pay a Complaints Levy of £1,500.

16/21 Executry: The complainer complained that the named solicitor and/or the firm had failed to ensure prompt and transparent fee arrangements, having issued a final fee note in June 2014, for work carried out between 2008 and 2013, without any prior warning or discussion.

The Determination Committee decided that there was evidence of a failure to set out the basis upon which fees would be charged from the outset and the delay issuing the fee note at the conclusion of the instruction amounted to inadequate professional service.

The Committee ordered the firm to pay compensation to the complainer of Band A for inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £50.

16/22 Executry: The complainer complained that the named solicitor and/or the firm had (a) failed/delayed to respond to telephone calls and keep the complainer updated, (b) failed to explain the increase in fees, despite numerous requests, and (c) failed to provide adequate advice regarding an insurance policy claim.

The Determination Committee decided regarding (b) that the failure by the firm to keep the complainer updated regarding increasing costs and that the fees had exceeded the original amount quoted amounted to an inadequate professional service.  The Committee noted that the firm had failed to provided the complainer with a copy of the Law Accountants fee note, despite there having been a fee rendered for the service and that the letter of engagement was unclear and difficult to understand.

The Committee decided that the evidence showed that the firm had (a) been in regular communication with the complainer who had been kept up to date.  The Committee could find no evidence to support complaint (c).

The Committee ordered the firm to pay to the complainer compensation of Band B for distress and inconvenience and to refund excess fees (approx. £5000).  The Committee directed the firm to pay a Complaints Levy of £250.

16/23 Residential conveyancing: The complainer complained that the named solicitors and/or the firm had (a) failed to adequately advise of the position regarding the alterations to the attic space, (b) failed to check/advise the complainer to ensure that the attic alterations were in line with building regulations, and (c) failed to fully advise of the risks proceeding with the purchase without verifying the position regarding the alterations.

The Determination Committee decided to uphold all 3 issues as inadequate professional service, as the evidence supported the complaint that the firm had failed to address all 3 matters adequately.  The Committee was satisfied that the firm had failed to fully advise the complainer about the potential issues regarding the building control documentation for the alterations, there was a failure to communicate throughout the transaction, despite requests for clarification, and that the firm had not alerted the complainer to the potential risks or consequences of proceeding without the adequate documentation.

The Committee ordered the firm to pay compensation to the complainer of Level 2 for actual loss and Band D for distress and inconvenience.  The Committee also ordered a full fee refund (approx. £600 plus VAT).  The Committee directed the firm to pay a Complaints Levy of £2,000.

16/24 Family: The complainer complained that the opposing solicitor and/or the firm had failed to obtemper an Interlocutor (which ordered the firm to notify the complainer of a court hearing date), by sending the notice to an address where the complainer had not lived for a number of years.

The Determination Committee decided that the firm had failed to fulfil the commitment to the Court, to the client and to the complainer, to prepare the case diligently and to communicate effectively.  The Committee accepted that the firm had served papers at an incorrect address, which did not match the address on the Court Record for the action.  As a result, the Committee was satisfied that the firm had provided their own client with an inadequate professional service, as a client would expect the firm to properly designate the parties and the failure to do so, could have led to additional time and cost to the client for the rectification of any errors. The Committee agreed that there had been a direct adverse impact on the complainer and on that basis, the complaint was upheld.

The Committee ordered the firm to pay compensation to the complainer of Band B for the inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £200.

Not upheld decisions:

16/25 Litigation: The complainer complained that the named solicitor and the firm had (a) failed to conduct the court case adequately by ignoring expert opinions, reports, evidence and failing to call specific witnesses and had quoted an incorrect name in the court documents, (b) failed to provide adequate advice about the settlement, by failing to advise that the opponent was obliged to issue a VAT receipt, despite instructions that the offer was to be inclusive of VAT, and (c) acted in an aggressive manner and threatened to cease acting on multiple occasions.

The Determination Committee was satisfied that the solicitor had exercised professional judgement and there was no evidence to show that this was unreasonable.  The Committee agreed that the solicitor followed clear instructions and there was no evidence that the solicitor failed to advise adequately about the terms of the settlement.  The Committee agreed that the evidence showed effective and clear communication by the solicitor and there was no evidence to support the complaint that the solicitor had acted in an aggressive manner.

The Committee decided not to uphold the complaint.

16/26 Family: The complainer complained that the named solicitors had (a) failed to provide adequate information about fees, (b) failed to keep the bank informed of a significant overspend, despite being aware of the limitations in funding, (c) failed to follow instructions by allowing 3 staff members to attend at court, thus incurring unnecessary costs, (d) failed to pay Counsel’s fees before taking the firm’s fees, and (e) failed to advise Counsel to withdraw from acting.

The Determination Committee decided that (a) sufficient information about fees had been provided before the offer was rejected, (b) the bank had been kept up to date and advised of the reasons for the increases in funding, (c) the firm did not accept the instruction to only have 1 person at the court hearing.  The firm did not, therefore, fail to fulfil a commitment to the complainer and fees were not unnecessarily incurred, as the need for additional staff was explained and professional judgement in this regard was exercised reasonably.

Regarding (d), the Committee could find no evidence to support the complaint that an instruction had been given or accepted that Counsel should be paid in the first instance.

In respect of (e), again the Committee could find no evidence to support the complaint about the withdrawal of Senior Counsel from the case.

The Committee decided not to uphold the complaint.

16/27 Family: The complainer complained that the named solicitor and/or the firm had provided inadequate and inconsistent advice about the availability of Legal Aid within the firm.

The Determination Committee was satisfied that the evidence showed that the advice provided was clear, consistent and in accordance with the firm’s policy on Legal Aid.  The Committee did not consider that there was any contradictory information provided, or that the quality of communication from the solicitor and/or the firm was inadequate.

The Committee decided not to uphold the complaint.

16/28 Residential conveyancing: The complainer complained that the named solicitor of the firm had failed to advise the complainer to take steps to confirm the validity of a Letter of Comfort or advise the complainer to insist on a Certificate of Completion from the sellers.

The Determination Committee was satisfied that the evidence showed that the firm had adequately advised the complainer of the available options and how to protect the position.  The Committee agreed that there was no requirement for the firm to insist on a Completion Certificate.

The Committee decided not to uphold the complaint.

 

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REGULATION ROBBER: Lawyer who ripped off clients & embezzled £1.04m from Bank escapes Proceeds of Crime prosecution – thanks to solicitors’ self regulation stitch-up

No charges for lawyer who stole from clients & bank – Crown Office. A SOLICITOR who embezzled over £1 million from a bank has escaped criminal charges – because the Law Society of Scotland – who control self regulation of solicitors and the tribunals who ‘prosecute’ rogue lawyers – did not call for the case to be taken up by Police or prosecutors.

David Lyons (64) – who has appeared numerous times before the Scottish Solicitors Discipline Tribunal (SSDT) was struck off from the roll of solicitors after the tribunal heard in a recent case Lyons had consistently ripped-off clients and executry estates by charging excessive amounts for work and fees.

It also emerged during an investigation Lyons had secured a £1,010,000 property loan from the Bank of Ireland – but kept the cash for himself.

His business partner – Duncan Drummond, of Pollokshields, Glasgow, who was also found guilty of ripping off clients – was struck off at the same hearing.

In one case Drummond charged £15,700 for work he’d carried out which auditors calculated should actually have totalled £2,350 – a mark up of 568%. In another case he sent out a £4,000 bill for £1,125 worth of work.

Despite the severity of fraud and consistent breach of client trust,  there is no mention in the tribunal’s findings of any move to refer the case to Police Scotland or the Crown Office – who have both since confirmed no action is being taken against Mr Lyons or anyone from the now defunct law firm of Lyons Laing, which had offices in Greenock and Glasgow.

The ‘independent’ Scottish Legal Complaints Commission (SLCC) has also not issued any comment on the case or the lack of action against Lyons and his business partner.

The Scottish Sun newspaper reports:

‘Untouchable’ lawyer fury: Bent brief in £1m bank theft let-off

CROOK DODGES CASH GRAB

EXCLUSIVE by RUSSELL FINDLAY 14 Feb 2016

A CROOKED lawyer dodged prosecution despite nicking more than £1million.

David Lyons, 64, was struck off after embezzling the money from the Bank of Ireland.

But the Crown Office will not put him in the dock or use proceeds of crime laws to claw back the cash.

Former Labour minister Brian Wilson blasted the decision.

He said: “There are people in jail for embezzling £1,000 but as a lawyer he’s untouchable.

“It’s an example of the madness where lawyers are treated as a separate class of citizen.”

Lyons, of Kilmacolm, Renfrewshire, was struck off over eight counts of professional misconduct, including pocketing the £1.04million in a commercial property deal.

The Dublin-based bank — bailed out with 3.5billion euros of taxpayers’ cash after the 2008 economic crash — would not discuss the case.

But Fergus O’Dowd, who is on the Irish parliament’s justice committee, said: “If they won’t pursue him in Scotland’s criminal courts they should go after the money.”

He added: “It’s a disgrace the bank won’t comment.”

Lyons ran Lyons Laing in Greenock, where clients were ripped off with hugely inflated fees over a decade.

His colleague Duncan Drummond, of Pollokshields, Glasgow, was also struck off over four counts of misconduct.

Mr Wilson is also calling for an end to self-regulation by legal watchdog the Law Society of Scotland.

An LSS spokesman said a judicial factor was appointed in 2009 to run Lyons’ company.

He added: “The factor has an obligation to report findings to the Law Society and Crown Office.”

The Crown said: “There are no criminal or civil recovery proceedings against someone of that name.”

Scottish Solicitors Discipline Tribunal Hearing & Decision: Having heard submissions on behalf of the Complainers and the Second Respondent in mitigation and having noted three previous Findings of professional misconduct against the First Respondent and one previous Finding of professional misconduct against the Second Respondent, the Tribunal pronounced an Interlocutor in the following terms:-

The Tribunal having considered the Complaint dated 9 April 2015 at the instance of the Council of the Law Society of Scotland against David Richard Blair Lyons, residing at Greenways, Pacemuir Road, Kilmalcolm (“the First Respondent”) and Duncan Hugh Drummond, residing at Flat 1/2, 80 Kirkcaldy Road, Pollockshields, Glasgow (“the Second Respondent”);

Find the First Respondent guilty of professional misconduct in respect of his failure to respond to correspondence from the Complainers, his failure to obtemper statutory notices, his taking of grossly excessive fees from executry estates, his failure to comply with the requirements of the Accounts Rules, his taking of fees from the sale proceeds of a property to which he was not entitled, his failure to obtemper letters of obligation, his taking of fees without rendering fee notes, and his embezzlement of the sum of £1,040,000 from the Bank of Ireland;

Find the Second Respondent guilty of professional misconduct in respect of his taking of grossly excessive fees from executry estates, his taking of fees without rendering fee notes, his failure to comply with the requirements of the Accounts Rules and his failure to supervise his firm’s assistant, in breach of the undertaking given by him to the Complainers; Order that the name of the First Respondent be Struck Off the Roll of Solicitors in Scotland; Order that the name of the Second Respondent be Struck Off the Roll of Solicitors in Scotland.

THE LYONS SHARE – How law firm employed legal industry’s commonly used overcharging scams to rip off wills & executry estates:

In the executry of Mr E, the Respondents took fees totaling £15,950.00 excluding VAT during the period 21 June 2007 to 7 April 2009. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £8,597.00 excluding VAT. The overcharge was 86%. The Second Respondent was principally in charge of this case.

In the executry of Mr AE, the Respondents took fees totaling £12,500.00 excluding VAT during the period 6 December 2004 and 26 June 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £4,338.05 excluding VAT. The overcharge was 188%. The First Respondent was principally in charge of this case.

In the executry of Mr F, the Respondents took fees totalling £15,700 excluding VAT during the period 3 April 2007 to 23 December 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £2,350.00 excluding VAT. The overcharge was 568%. The Second Respondent was principally in charge of this case.

In the executry of Mrs G, the Respondents took fees totalling £13,100.00 excluding VAT during the period 12 April 2006 and 4 August 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £5,917.03 excluding VAT. The overcharge was 121%. The Second Respondent was principally in charge of this case.

In the executry of Mrs H, the Respondents took fees totalling £8,000.00 excluding VAT during the period 5 July 2007 and 6 April 2009. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £4,642 excluding VAT. The overcharge was 72%. The Second Respondent was principally in charge of this case.

In the executry of Mr I, the Respondents took fees totalling £4,000.00 excluding VAT during the period 26 February 2008 to April 2009. A file audit by the Auditor of Court at Glasgow assessed the fees due to the firm for that period to be £1,125 excluding VAT. The overcharge was 256%. The Second Respondent was principally in charge of this case.

In the executry of Mr J the Respondents took fees between November 2004 and May 2008 which exceeded by £90,000 or thereby the value of the work as assessed by the Auditor of Greenock sheriff court. The Second Respondent was principally in charge of this case.

In the executry of Mr M, the Respondents took fees of £2,000.00 plus VAT in December 2006 and £2,500.00 plus VAT in November 2007. On neither occasion did the Respondents issue a fee note. The Auditor of Court assessed the fees due to the Respondents as £3,397.00 plus VAT. The overcharge is therefore £603.00 plus VAT. The First Respondent was principally in charge of this case.

Also in relation to this case, the assistance of the Complainers having been invoked by Ms N, the executor, and the files having been provided to the Complainers, on 15 August 2008 the First Respondent wrote to the Complainers asking for the files to be returned for Taxation. The files were sent to the First Respondent on 1 September 2008. Thereafter the Complainers wrote to the First Respondent requesting return of the files on 10 and 21 October 2008, 10 November 2008 and 7 January 2009. No response was ever sent by the First Respondent. On 16 January 2009 the Complainers issued a notice under Section 42C of the Solicitors (Scotland) Act 1980 requiring return of the file. The First Respondent did not return the file. The Complainers wrote with a list of conduct issues to the First Respondent on 25 February 2009 arising out of this executry. No response was ever received from the First Respondent. The files were eventually recovered from the Judicial Factor.

In the executry of Ms O between 20 May 2008 and 28 May the Respondents deducted fees without rendering fee notes to the executor, Mr P, in breach of Rule 6(d) of the Solicitors (Scotland) Accounts etc Rules 2001. The Second Respondent was principally in charge of this case.

 

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LORD, FIRST CLASS: Scotland’s former Lord President demands expenses from Scottish Parliament – after challenging MSPs to close three year Holyrood probe to create register of judges’ interests

Anti-transparency judge demands MSPs foot bill for rain travel & meals. SCOTLAND’S former top judge has demanded taxpayers pay his dining expenses & travel to Edinburgh – after he was forced to face MSPs over a three year Scottish Parliament investigation of plans to create a register of judges’ interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Lord Brian Gill (73) – who twice refused to attend earlier hearings of the Scottish Parliament’s Public Petitions Committee who are considering proposals to require judges to register their interests – submitted a £225.05 claim for first class return rail fare from London, a £19.50 claim for taxis and a £23.20 claim for a meal the former Lord President treated himself to the night before he finally showed up to face MSPs at Holryood on 10 November, 2015.

Gill – who was dubbed “Lord No-No” for his refusals to give evidence to MSPs on judges’ undeclared links to big business, secret criminal records & hidden wealth, handed the claim to the Scottish Parliament after a stormy session at the Scottish Parliament – where the former top judge demanded MSPs halt their public debate on the judiciary’s interests and close down a long running public petition calling for transparency on judges’ wealth – which is backed by both of Scotland’s independent judicial investigators.

The proposals, backed by cross party MSPs during a debate in the Parliament’s main chamber on 9 October 2014 – Debating the Judges – call for the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, 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.

As the petition was debated at Holyrood in the Lord President’s absence, it was revealed Lord Gill billed taxpayers for a five day state visit to Qatar. The top judge also travelled to numerous other international destinations – all charged to taxpayers.

An investigation by the Scottish Sun newspaper also revealed Scotland’s top judges spent £26,000 on thirty three international trips funded by taxpayers – including journeys to destinations such as Russia, Israel, Switzerland,Germany, France, Bulgaria, Lithuania.

Previously, Lord Gill refused to give evidence to MSPs on their probe of the petition, instead, the top judge sent a series of letters to MSPs – demanding the judiciary remain exempt from the public’s expectation of transparency in Government and those in public life.

The Scottish Sun reports:

FIRST CLASS FURY – MSPs blast parly quiz judge expenses

Lord Gill claimed £267.75 expenses bill

By RUSSELL FINDLAY, Scottish Sun.

A SENIOR judge is being challenged over claiming first class rail travel to a Scottish Parliament grilling.

Lord Gill, 73 — who stood down from his £220,655-a-year post as Lord President in May — has been asked by MSPs to explain a £267.75 expenses bill.

It covers a £225.05 first class return rail fare from London, £19.50 on taxis and £23.20 for a meal the night ahead of appearing before Holyrood’s Public Petitions Committee last month.

The committee discussed the claim on Tuesday and its convener, Labour’s Michael McMahon, is now writing to Scotland’s former top judge about it. Last night, Mr McMahon declined to reveal the contents of the letter, saying: “I can’t discuss this as it was in private.”

But a source said: “There were raised eyebrows at the claim, and they intend to ask why he needed to claim for first class return rail travel. They may also ask about claiming for a meal the day prior to attending.”

After twice snubbing the committee while Lord President, Lord Gill spoke against law journalist Peter Cherbi’s petition for a register of judges’ business, financial and personal interests.

Lord Gill’s successor has still to be appointed. But we told last month, left, how the new Lord President will not be called before the committee.

Last night, a Scottish Parliament spokeswoman said: “It would be inappropriate for us to comment.”

JUDGE DEMANDED MSPS CLOSE JUDICIAL TRANSPARENCY PROBE:

Evidence of Lord Gill before the Scottish Parliament 10 November 2015

During  tough exchanges between the ‘retired’ judge and MSPs, Lord Gill got into arguments with members of the Petitions Committee, reflecting his underlying aggressive tone at being hauled before MSPs he twice refused to meet.

In an angry exchange with MSP Jackson Carlaw, Lord Gill demanded to control the kinds of questions he was being asked. Replying to Lord Gill,  Mr Carlaw said he would ask his own questions instead of ones suggested to him by the judge.

And, in responses to independent MSP John Wilson, Lord Gill dismissed media reports on scandals within the judiciary and brushed aside evidence from Scotland’s independent Judicial Complaints Reviewers – Moi Ali & Gillian Thompson OBE – both of whom previously gave evidence to MSPs in support of a register of judges’ interests.

Facing further questions from John WIlson MSP on the appearance of Lord Gill’s former Private Secretary Roddy Flinn, the top judge angrily denied Mr Flinn was present as a witness – even though papers prepared by the Petitions Committee and published in advance said so. The top judge barked: “The agenda is wrong”.

And, in a key moment during further questions from committee member Mr Wilson on the integrity of the judiciary, Lord Gill angrily claimed he had never suspended any judicial office holders.

The top judge was then forced to admit he had suspended judicial office holders after being reminded of the suspension of Sheriff Peter Watson.

A statement issued by Lord Gill at the time of Watson’s suspension said: “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

Several times during the hearing, the retired top judge demanded MSPs show a sign of trust in the judiciary by closing down the petition.

During the hearing Lord Gill also told MSPs Scotland should not be out of step with the rest of the UK on how judges’ interests are kept secret from the public.

Questioned on the matter of judicial recusals, Gill told MSPs he preferred court clerks should handle information on judicial interests rather than the details appearing in a publicly available register of interests.

Lord Gill also slammed the transparency of judicial appointments in the USA – after it was drawn to his attention judges in the United States are required to register their interests.

In angry exchanges, Lord Gill accused American judges of being elected by corporate and vested interests and said he did not want to see that here.

However, the situation is almost identical in Scotland where Scottish judges who refuse to disclose their interests, are elected by legal vested interests with hidden links to corporations.

Scotland’s first ever Judicial Complaints Reviewer (JCR) – Moi Ali gave backing to the the judicial transparency proposal during a must watch evidence session held at Holyrood in September 2013.

Scotland’s current Judicial Complaints Reviewer Gillian Thompson OBE also backed the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

Scotland’s new top judge – Lord Carloway – who served as Lord Justice Clerk under Lord Gill – is to be asked to give evidence to the Scottish Parliament’s Public Petitions Committee in connection with three year probe on proposals to require judges to register their interests,

Previous articles on the lack of transparency within Scotland’s judiciary, investigations on judicial interests including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary

 

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Scotland 2015: Someone said there is a General Election …

Look up, and you can see Scotland from anywhere in the UK. SCOTLAND should have a strong voice at Westminster. That much is certain.

We are a berth for the UK’s nuclear submarines. We build the ships of the Royal Navy. We are so popular (and important) bears fly off our coasts and sneaky submarines sneak around our fishing boats.

We contribute to the UK’s economy and the fabric of the country as a whole (regardless of the denial brigade) so much, London could never bear to let us go. It’s true!

And – yes – we house a collection of 700 year old judges hell bent on protecting their highly secretive and dubiously achieved judicial wealth from prying eyes.

It is also true our little, big, country is a possible candidate for vested interests & big business to frack for their own gain. Yes, their gain, not the wider community at large.

Vested interests, corporate boards and Chief Executives do not toast champagne over throwing free money at citizens or vital public services without some fiddle in the background. Fact.

And – sadly – we are an outpost of dodgy financial & legal services who go to extreme efforts to avoid scrutiny, accountability, regulation & transparency. Heather Heather. And some Capital.

In any case, there is a General Election this Thursday, and it is your right as a citizen – to vote.

Will anything change next week? Not really.

The NHS will still be in crisis. Statistics on crime (and everything else) will still be fiddled beyond plausibility. Increasing numbers of people across the UK will be forced to use Food Banks.

Oh .. Shocker. People in power you rely on for help will write back to you saying they cannot help.

Lord Gill – the Lord President & Lord Justice General – almost Napoleonic in title, will still be in Parliament House dancing to “Mysterious Ways” – or perhaps “Insidious Ways” – gaming out his latest military style exercise against judicial transparency on his WOPR WarGames computer.

Oh yes – and the rich get richer while the poor get poorer.

But, once every few years – when you – the electorate – are needed – it is YOUR chance to hold Government and all it’s fantasy and all it’s power – to account.

As you hold Government to account this week with your vote – think on this.

Some might say … a Government is only as good as it’s opposition. Inevitably, a Government is only as good as those who vote for it.

A strong opposition can – or at least should – hold a Government to account.

A strong, independent media often holds, and frequently advances the line on transparency and accountability – which helps hold Government to account.

Thursday 7 May 2015 is your choice, your voice, and your vote. Think. Don’t be bullied by vested interests or false and fantastical promises.

However you decide to vote, you have the right to decide for yourself. But please, do vote.

 
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Posted by on May 5, 2015 in Law, Politics, Scotland

 

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Voting on 5th May ? Keep in mind Scotland’s Justice system remains far too dishonest, far too “Victorian”, for independence from the UK

In case you didn’t notice, there is an election in Scotland tomorrow, May 5 2011. If you are eligible to vote, it is your privilege, right & duty to do so, no matter how cynical or critical you are of our politicians, the justice system, Scotland’s economy or even if you have a beef with the coalition Government at Westminster. However, as you are probably here to read topics of justice, rather than politics, there are some things you may wish to take into account before casting your vote …

The short version of what I am about to say is “If you are here looking for advice on who to vote for, vote for a party other than those leading the polls so at least there’s a chance of the winners being held to account, and reigned in on any daft, crazy policies which will ultimately do Scotland a great deal of harm.” Remember, Annabel isn’t so bad after all, and unlike some this time around, she does make a lot of sense.

Now, the dreaded long version. One thing which has been glaringly obvious over the past four years since 2007, and indeed much longer than that, probably going back to the ‘re-imagined’ Scottish Parliament of 1999, is that our beloved Scottish justice system is simply not up to the mark, not up to any real level of honesty, in fact, perhaps our beloved Scottish justice system is up to far too much dishonesty to merit & justify Scotland’s independence from the rest of the UK. I mean, really, what use to Scots is independence if the justice system is bent ? None, as far as I can see, and as we know, the justice system has more bends in it than a corkscrew hazel tree.

Individuals and entire groups or classes of people have been discriminated or prejudiced against at the hands of the Scottish justice system, some even thrown in jail for crimes they did not commit, others persecuted by the very legal system itself for daring to criticise it, stand up to it, take issue with their own circumstances by demanding a fair hearing, and there are of course, even those who have suffered at the hands of the legal profession itself, who have used the law & courts as a weapon to deny anyone they do not like, access to justice. It happened yesterday, it will happen today, and it will happen tomorrow.

While the arguments & excuses still rage over the now famous Cadder v HMA ruling at the Supreme Court in London in October 2010, you only need to look back to the Cadder case and what happened to understand that the Government of the day in Scotland, in this case, the SNP, and indeed all previous administrations believed it was right for anyone arrested by Police to be questioned without a lawyer present. Good for a quick guilty verdict of course, saves a lot of detective work and of course a lot of money along the way for the likes of the Legal Aid Board.

Amazingly while such a highly dubious arrangement of interrogating suspects has not been practised in the rest of the UK, and indeed quite a few countries around the world for many years (some jurisdictions would call such interrogation without a lawyer “unconstitutional”), no one in the Scottish legal establishment bothered to raise it as a case until the European Court ruled in Salduz v Turkey and made the law as it now stands.

Did a Scottish court react to this change in European Law first, considering there must surely have been a few outstanding incidents where people were denied access to a lawyer while being held by the authorities ? No. After the European ruling, it took a court based in England, the UK’s Supreme Court to rule on the Cadder case, and decide Scots, like everyone else in the rest of the UK and many other jurisdictions, had the right to a lawyer being present while being interrogated by the authorities.

Take it from me, Scotland’s Court of Session would never have done the same. Indeed, this is exactly why the Cadder case ended up in the Supreme Court in London, because the Court of Session thought it was fine (and I dare say would like it still to be fine) to hold someone, whether guilty or not, and get an admission without the right to having a lawyer present. Easy money for the judges, the prosecution team, and someone put away with a protracted press release touting yet another “successful prosecution” and triumph for the authorities. Great, until someone realises the wrong person is behind bars.

If the Supreme Court had not ruled as it did, as Scots, we would still not have the right to a lawyer being present during interrogation, and the courts would be fine with it, but of course Cadder and its outcome goes much further than that, sending a shot across the bows of Scotland’s antique justice system where the right to a fair hearing, the right to legal representation, or even the right to have funding for legal representation all appear to be a right too far those in the legal establishment who sometimes feel it is in the interests of the justice system to deny justice to certain individuals or cases.

If we were independent, you can kiss goodbye to the Supreme Court in London. If not immediately, certainly when it issues another controversial ruling requiring Justice-Secretary-for-Life Kenny MacAskill to change the law. You might also kiss goodbye to certain parts or maybe all of European Commission Human Rights Legislation (ECHR) which any future independent Scottish Government may begin to find ‘inconvenient’ to its management, or as we have seen in the past four years, lack of management of Scotland’s justice system.

For another comparison of recent events in the English justice system compared to our own, look at the death of Ian Tomlinson, who, a jury in London yesterday decided had been “unlawfully killed” by the actions of a Police Officer. Does anyone really think a Sheriff presiding over a Fatal Accident Inquiry in Scotland would have came to such a decision in a similar case had some Policeman did the same north of the border ? Fat Chance, and we all know it. The bereaved family would be fighting for justice for years, and they themselves would probably end up being victimised by the legal system for daring to take issue with it.

Look around the Scottish justice system and you will see a litany of miscarriages of justice, where for instance, the say so of dubious witnesses or even Police Officers themselves have contributed to guilty verdicts and long sentences of ‘the so-obviously guilty’, only to be found later the investigation was compromised, perhaps even evidence was falsified, and those dubious witnesses lied through their teeth. Result : Someone ends up being freed after 12 years in jail for a crime they didn’t commit and spends the rest of their life trying to clear their name while politicians sit back, promise much yet do little, and all the while the court, the judges, the legal system carrys on regardless.

How about the Lockerbie case and the long running controversy over the Lockerbie bomber Abdelbaset Al-Megrahi’s conviction & release. Despite all the calls for independent inquiries, calls for, & half hearted attempts at the release of documents to answer the many inconsistencies in the case, nothing has changed other than the fact Mr Megrahi was released back to Libya on compassionate grounds by Justice Secretary Kenny MacAskill, so conveniently avoiding any further progress in Mr Megrahi’s appeal at the Court of Appeal in Edinburgh, where the gritted teeth of the judges (one looked like he had bruxism) was much more obvious to most who saw the spectacle rather than any hope the court would turn its attention to matters at hand and quash a verdict which many around the world question. Last time I checked, this farce happened under an SNP administration.

How about Legal Aid ? If you really need it, do you think you might really get it ? It appears if the Scottish Legal Aid Board don’t like the look of your face, or someone, perhaps a someone of very high standing or position in the legal system puts in a bad word for you, perhaps accompanied by a long poisoned pen letter saying why you shouldn’t get legal aid, you don’t get it. No legal aid for you, therefore no access to a lawyer and no access to justice.

Yet over the past four years, certain lawyers as I previously reported, have been claiming hundreds of thousands of pounds of legal aid for themselves, collectively, millions of pounds, yet many of their clients never really had access to justice, and guess what ? the Scottish Government just let it happen. Yes, all those millions of pounds of legal aid, paid for by taxpayers, ended up lining the pockets of a few solicitors who were never prosecuted for one penny of misuse of public funds, rather than that legal aid going to those who really needed it, or to those lawyers who really do represent their clients.

How about the much heralded Scottish civil courts review by Lord Gill, the big “sea change” for our “Victorian” justice system which was supposed to give access to justice for all ? The Civil Courts Review has said much but achieved little under the SNP. Admittedly though, the same could well have been true no matter which political party was in power. Lord Gill’s “groundbreaking” Civil Courts Review is now just another piece of history in the shattered landscape of Scotland’s justice system, a review which itself is now being reviewed, and all the trappings of easier access to justice which many expected to come from it, are but a pipe dream.

Do you think independence might change all that ? No. The same people who still rave about independence did nothing about clearing up the justice system in the past four years and did nothing about giving justice to those who are denied it. These same people will do nothing to clear up Scotland’s justice system. In fact, some of those raving about independence and taking back the oil wealth for Scotland, have in some cases I am privy to, actively blocked access to justice for many people denied it .. even some of their own constituents. To be sure, the only constant here in Scotland is, “Nothing Changes” when it comes to justice.

As an observation from someone who has seen many cases where the legal system has been used as a weapon against those who take it on, or those who dispute the legal establishment’s line on all things justice, Scotland’s justice system is probably worse off now than it was in 2007, and that’s saying something. All of those people who said the system will change with a new party in power after 2007, where are they now ? Still fighting the same battles, still arguing over the finer points of detail and still knee deep in inquiries which will end up changing nothing.

It is certainly not my job to tell you who to vote for, but you must vote if you want to have a say in Scotland’s political future. By this, I’m not telling you not to vote for the SNP, and I’m not telling you to vote Labour, Scottish Conservative or Liberal Democrat, or Independent, or Green or for any of the other parties out there, but I am asking you TO VOTE, and to ensure that consensus politics, fairness and even justice is delivered in this next Scottish Parliament.

Make the next five years Scotland’s five years, make the next five years your five years to give all Scots a say in our country, access to justice, and the right to be heard against those groups & vested interests who regularly talk over or even interdict our expectations of reforms, jobs, financial security, justice and life for the better. If you want to be part of something positive, vote, and vote to make sure those who you elect are held accountable to you.

 

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The costs of Scotland’s ‘Victorian’ Justice System : Court of Session judges paid £6.1 million as litigants struggle to obtain hearing dates

Lord Hamilton judicialScotland’s Chief Judge, the Lord President, Lord Hamilton. SCOTS LITIGANTS who in some cases can spend many years waiting to gain dates for their cases to be heard in Scotland’s highest court, the Court of Session, may wish to spare a thought for the workload of the 34 Senators of the College of Justice (the Judges), who receive, (according to a Freedom of Information release from the Scottish Government), a collective annual salary of just over £6.1 million to keep Scots justice & the Court of Session rolling, ensuring justice is delivered as swiftly as is practicable in Scotland’s aging, sometimes dubbed ‘Victorian justice system’.

Admittedly, the ‘swiftness’ of the delivery of verdicts from the 34 judges can vary wildly, if for instance, the subject matter of the cases being heard involves those so-called ‘pillars’ of Scots public life, such as the legal, financial, or medical professions, public services, or public authorities, where cases have been known to drag on for years, astoundingly some even for over a decade.

As attitudes to justice change, along with public expectations of a more modern, functioning, fairer justice system – expectations recognised by the Lord Justice Clerk, Lord Gill in his excellent Civil Courts Review, perhaps its time for the Senators of the College of Justice to take a firmer hand against those same professions, public bodies & the like who regularly use Scotland’s highest court as a tool to deny justice to many individuals maligned by the many serious issues which merit the courts attention …

Salaries of Scotland’s 34 Judges of the Court of Session, who each earn more than the UK Prime Minister :

Inner House

First Division

Lord Hamilton, the Lord President (Civil) and the Lord Justice General receives £214,165.00 p.a.
Lord Kingarth, Lord Eassie, Lord Reed & Lord Hardie each receive £196,707.00 p.a.

Second Division

Lord Gill, Lord Justice Clerk receives £206,857.00 p.a.
Lord Osborne , Lady Paton, Lord Carloway, Lord Clarke & Lord Mackay of Drumadoon each receive £196,707.00 p.a.

Outer House (all 23 judges receive £172,753.00 p.a.)

Lord Bonomy, Lord Menzies, Lord Drummond Young, Lord Emslie, Lady Smith, Lord Brodie, Lord Bracadale, Lady Dorrian, Lord Hodge, Lord Glennie, Lord Kinclaven, Lord Turnbull, Lady Clark of Calton, Lord Brailsford, Lord Uist, Lord Malcolm, Lord Matthews, Lord Woolman, Lord Pentland, Lord Bannatyne, Lady Stacey, Lord Tyre, & Lord Doherty

Background Information from the Scottish Courts website :

The Court of Session, Scotland’s supreme civil court, sits in Parliament House in Edinburgh as a court of first instance and a court of appeal. An appeal lies to the House of Lords or, from 1st October 2009, to the new Supreme Court of the United Kingdom. The origins of the court can be traced to the early sixteenth century. The court presently consists of judges who are designated “Senators of the College of Justice” or “Lords of Council and Session”. Each judge takes the courtesy title of “Lord” or “Lady” followed by their surname or a territorial title. The court is headed by the Lord President, the second in rank being the Lord Justice Clerk.

For the purposes of hearing cases, the court is divided into the Outer House and the Inner House. The Outer House consists of 24 Lords Ordinary sitting alone or, in certain cases, with a civil jury. They hear cases at first instance on a wide range of civil matters, including cases based on delict (tort) and contract, commercial cases and judicial review. The judges cover a wide spectrum of work, but designated judges deal with intellectual property disputes. Special arrangements are made to deal with commercial cases.

The Inner House is in essence the appeal court, though it has a small range of first instance business. It is divided into the First and the Second Divisions, of equal authority, and presided over by the Lord President and the Lord Justice Clerk respectively. Judges are appointed by the Lord President and Lord Justice clerk with the consent of the Secretary of State. Each division is made up of five Judges, but the quorum is three. Due to pressure of business an Extra Division of three judges sits frequently nowadays. The Divisions hear cases on appeal from the Outer House, the Sheriff Court and certain tribunals and other bodies. On occasion, if a case is particularly important or difficult, or if it is necessary to overrule a previous binding authority, a larger court of five or more Judges may be convened.

Usually a case will be presented by an advocate, who is also referred to as “counsel”, but a case may also be presented by a solicitor-advocate. Advocates are members of the Faculty of Advocates and have a status and function corresponding to that of a barrister in England. Advocates once had an exclusive right of audience in the Court of Session but, since 1990, they share that right with solicitor-advocates. Solicitor-advocates are members of the Law Society of Scotland. They are experienced solicitors who obtain an extension of their rights of audience by undergoing additional training in evidence and in the procedure of the Court of Session. In addition a practitioner from another member state of the European Union may appear for a client in the circumstances prescribed by the European Communities (Services of Lawyers) Order 1978. An individual who is a party to a case may conduct his own case but a firm or a company must always be represented by counsel or by a solicitor-advocate.

The decisions of the Court of Session are reported in Session Cases (cited as 1999 S.C. 100), Scots Law Times (cited as 1999 SLT 100) and Scottish Civil Law Reports (cited as 1999 SCLR 100). Decisions since the winter term of 1998 are available on the Opinions page.

One omission worth a note : No mention yet of McKenzie Friends helping out the many unrepresented party litigants, even though the Lord President enacted the Act of Sederunt on 15 June 2010 allowing lay assistance in the Court of Session …

 

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Consumers urged to give their views as Civil Justice Advisory Group launches consultation on key proposals of Lord Gill’s Civil Courts Review

Consumer Focus Scotland logoConsumer Focus Scotland launches consultation on Civil Justice reforms. CONSUMER FOCUS SCOTLAND’s Civil Justice Advisory Group, chaired by the Right Honourable Lord Coulsfield, have launched a consultation to debate some of the key proposals of Lord Gill’s Scottish Civil Courts Review report and determine the best way forward for implementing the many recommendations made by Lord Gill in his damning two year study & report on the state of Scotland’s “Victorian” civil justice system, a justice system which is famed worldwide for crippling Scots access to justice.

The Civil Justice Advisory Group (CJAG), which was re-convened in January 2010, is seeking views on practical solutions to ensure that people with legal problems have real and effective access to appropriate, affordable and fair dispute resolution processes, particularly for claims of low financial value, housing cases, family cases and children’s hearing referrals. It will focus principally on the recommendations of the review relating to pre-court measures, including improving access to justice for party litigants, the proposed ‘third -tier’ of judicial office, and the proposed new simplified procedure.

To support the consultation process, the CJAG will also host a free consultation seminar on Monday 13th September at the Roxburghe Hotel in Edinburgh. The event will be interactive, with roundtable discussions and feedback sessions. Professor Dame Hazel Genn, Dean of Laws and Professor of Socio-Legal Studies at University College London will be the keynote speaker. If you have an interest in reforming Scotland’s justice system, be there.

The seminar programme can be accessed by clicking here. Places can be reserved by using the online registration form or sending the booking form to the address listed below.

The consultation and seminar feedback will help the Group in formulating a detailed report to the Scottish Government on how it should take forward some of the recommendations of the Scottish civil courts review report.

The consultation paper can be accessed by clicking here : Civil Justice Consultation Response Paper (pdf)

Responses to the consultation should be submitted to Consumer Focus Scotland before 24th September 2010 by email to : civil.justice@consumerfocus.org.uk or via the online response form

By post to :
Civil Justice Advisory Group Consultation
Consumer Focus Scotland
Royal Exchange House
100 Queen Street
Glasgow
G1 3DN

I would urge as many readers as possible to take part in this consultation, for the benefit of yourself and all Scots who need access to a fairer, much improved Civil Justice system in our own land. Access to justice for one, access to justice for all !

Commenting on the consultation, the Right Honourable Lord Coulsfield, Chair of the Civil Justice Advisory Group, said: “I was very pleased to be invited to Chair the re-convened Group earlier this year. It is important that the recommendations of the civil courts review be fully debated and understood before they are put into effect.”

He continued : “I would strongly urge anyone who has any relevant experience, good or bad, of the operation of the court system or other means of resolving disputes, or any comment, criticism or suggestion to contribute to this important debate by responding to this consultation paper. The greater the level of participation, the better placed the Group will be to make a strong and useful contribution to the debate over the Gill proposals and the decisions as to how they are to be carried out.”

Sarah O’Neill, Head of Policy and Solicitor at Consumer Focus Scotland, which provides policy and secretariat support for the CJAG, added: “The Scottish civil courts review set out a bold range of challenging but pragmatic recommendations, presenting a vision of a civil justice system fit for the 21st century. We are keen to encourage debate on the proposals and how they can best be implemented for the benefit of those individuals who find themselves having to use the civil justice system, whether they are pursuing a claim against someone else, or defending a case brought against them.

Ms Neill continued : “The outcome of the Civil Justice Advisory Group’s work will be influential in taking this agenda forward. The consultation, and accompanying seminar, provide opportunities for everyone with an interest in achieving a more user-focused and accessible civil justice system to contribute their views and help shape the Group’s report to the Scottish Government. We hope that all of those with an interest in these issues will take the opportunity to get involved in this debate.”

Readers can view my earlier report on Lord Gill’s Civil Courts Review here : Scots Law ‘shake up’ as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

Civil Courts Review

The Report of the Scottish Civil Courts Review was launched today Wednesday, 30 September 2009 and is available to download below:

Background to the Civil Justice Advisory Group :

In 2004, the Scottish Consumer Council, one of Consumer Focus Scotland’s predecessor bodies, established the Civil Justice Advisory Group, supported by the then Scottish Executive and funded by the Nuffield Foundation. The Group, chaired by the Right Honourable Lord Coulsfield, held six seminars between September 2004 and April 2005, structured to mirror a user’s journey through the civil justice system, from seeking advice on their dispute, through the dispute resolution process, to the enforcement stage. The Group published its final report, The Civil Justice System in Scotland – a case for review? (available as a PDF by clicking here) in November 2005. The Group recommended that there should be a review of several important aspects of the civil justice system in Scotland, the majority of which were then taken forward by the civil courts review.

Following the publication of Lord Gill’s civil courts review report, Consumer Focus Scotland has reconvened the Civil Justice Advisory Group, under the continued chairmanship of the Right Honourable Lord Coulsfield. The CJAG’s membership includes representatives from the Law Society of Scotland, Faculty of Advocates, Citizens’ Advice Scotland, Scottish Legal Aid Board, Scottish Association of Law Centres, Scottish Mediation Network, Scottish Committee of the Administrative Justice and Tribunals Council and the Scottish Government, as well as Professor Alan Paterson from the University of Strathclyde.

Given its instrumental role leading up to the civil courts review, the Group felt it was very well placed to react to the review’s proposals, and also to make its own recommendations about future courses of action. The Group’s deliberations will focus principally on those aspects of the review of most direct relevance for consumers, namely those recommendations relating to pre-court measures, including improving access to justice for party litigants, the proposed ‘third -tier’ of judicial office, and new simplified procedure.

 

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