COURT ON AUDIO, M’LORD: Clients should be given SAME DAY access to Court of Session audio recordings – as ongoing probe reveals QC’s admissions in case linked to Lord Malcolm, Lord Carloway & concealed judicial conflicts of interest

Court recordings should be available same day to clients. AN ONGOING media investigation into hearings in Scotland’s top court – the Court of Session – has received evidence which casts doubt on the integrity of witnesses and  counsel’s actions – which could be remedied if unedited digital audio recordings were required to be provided to clients involved in cases – upon the conclusion of a hearing.

Audio recordings of hearings in a £6million land case Nolan v Advance Construction (Scotland) provided by a court source – and a study of their content have led to calls for clients who already pay tens of thousands of pounds for their claims to be hard by the Court of Session – to be given unrestricted access to audio records of proceedings in court – without obstruction or prohibitive cost being used to block access to proceedings in their case.

In the case which features in the released audio –  extraordinary exchanges between counsel, witnesses and the judge – Lord Woolman – can be clearly heard and further exchanges were counsel take an unrealistic, if combative approach with local planning officials in attempts to conceal or contradict legislation relating to the dumping of toxic, hazardous waste from the court.

In the cassette tapes of the Court of Session hearings – obtained by journalists from court sources – the audio recordings of interactions between witnesses, John Campbell QC, and the current Dean of the Faculty of Advocates – Roddy Dunlop QC – has since led to a separate investigation which has discovered one of the chief witnesses in Nolan v Advance held compromising interests linked to the defenders – which were concealed from the court and the judge – Lord Woolman.

In one exchange, Dunlop questions a North Lanarkshire Council planning officer – Mr Fraser Miller – on the conditions and legislation which are required for the removal of hazardous material including asbestos. From the recordings and what happened in court, it becomes clear the planning officer says planning permission would be required to remove the asbestos from the site, and the same permission would be required fo the asbestos to be dumped on the site.

As the case proceeds over a number of days in August 2013 before Lord Woolman – Dunlop’s client – Advance Construction (Scotland) Ltd – are ultimately forced to admit to Lord Woolman they were responsible for illegally dumping the toxic material on Mr Nolan’s property.

The audio tapes of the Nolan v Advance hearings go on to reveal many discrepancies between the accounts of what John Campbell QC said to his own client, and what actually transpired in court – including the as yet unexplained reasons why Campbell QC removed much of his own client’s financial claims – and critically the claim for legal expenses – without receiving any instruction to do so.

While it is important to note this case was initially won by Mr Nolan – the pursuer –  the failure of counsel to return to court for legal expenses against the defender led to financial loss & disaster after counsel for the pursuer turned on his own client by inexplicably stripping out much of the financial claim – an act which Lord Woolman said he had never seen in such a case.

A full report on how John Campbell QC reduced his own client’s financial claim almost to zero and without any instruction or consultation – can be found here: CASHBACK QC: Legal regulator’s files reveal senior QC reduced claim without instructions, withheld key evidence & witnesses including Cabinet Secretary from Court of Session case

Readers may be familiar with Nolan v Advance – one of the most extraordinary cases in recent times – which has since led to the discovery of carefully concealed interests of Court of Session judge Lord Malcolm (Colin Campbell QC) and Scotland’s current top judge – Lord Carloway (Colin Sutherland).

During a consultation between journalists currently engaged in the probe and court sources, further issues in the Nolan v Advance case have now come to light including a source which identified a comment between counsel to the effect of an unreferenced instruction with some degree of motivation – which states “you have got to four o’clock to get this sorted”.

And now – further audio recordings have been provided to journalists which lay down in crystal clear terms an extraordinary attitude on payment of fees on the part of the pursuer’s legal team – which included John Campbell QC, advocate Craig Murray and solicitor Gregor McPhail.

The legal team for Mr Nolan had previously signed up to a no win no fee agreement – which Campbell admits to in the recordings.

However, and without hesitation Campbell then appears to turn against the fee deal and demands his team all be paid – this coming after further material and already published emails revealed John Campbell demanded, and insisted on collecting  in person – cash sums of up to five thousand pounds at a time from his client Mr Nolan.

In one exchange – Campbell QC says “As fond as I am of you, none of us are doing this for love and neither is Craig [Murray]”

Campbell is then challenged over his already agreed position of working on the case via a no win no fee deal

John Campbell agrees he was working on a no win no fee deal but then replies: “That is correct, hmmm but we just have to see whether that actually holds up because hmm you know…”

A number of further recordings are now being studied where it is acknowledged by counsel Lord Woolman states he is  concerned about counsel’s lack of provision to the judge of evidence given by certain witnesses for the pursuer, Mr Nolan.

In an additional audio provided to journalists, John Campbell QC – who now heads the Edinburgh based Quaich Project – clearly admits responsibility for key failures in his presentation of evidence to the court.

Journalists and technical experts are now considering the content of the court recordings for futher publication and potential inclusion in reports to the Scottish Parliament’s Justice Committee of events in the Nolan v Advance case which identify a pattern of deliberate and concealed conflicts of interest by judges in the Court of Session.

And – in another court case where recordings have also come to light, it is also very clear what happens in court is very loosely transcribed to parties when there are requests by court participants for transcripts – some costing clients tens of thousands of pounds over hearing after hearing.

In a further case presented to the media team looking into Court of Session audio recordings – a court source has come forward with claims that a transcribing firm who were given court recordings as part of an order for transcripts – were told in a phone call to go easy on certain dates across hearings in one major case – and pay less emphasis to one side’s counsel in their provision of a final transcript ordered by the other side’s legal team.

A legal insider who has been given access to some of the audio material handed over to journalists now believes clients should be given unfettered access to recordings of their cases in court.

He said: “Clients pay a lot of money for their legal representatives to take a case through to the Court of Session and should be provided with audio recordings of each day’s proceedings at the end of that day”

He added: “The equipment to record court hearings has been installed for some time, and this should be properly used to ensure clients on both sides of the court have access to these recordings, without any attempt by court staff or the sitting judge to use unsatisfactory excuses or prohibitive costs as a reason for withholding audio access to those who are paying for the hearings.”

Currently, clients can request a copy of recordings from the Court of Session to be transcribed by an external private company, however – seldom if ever do the actual audio recordings pass into the hands of clients or either side’s legal team.

Clients must pay for the transcribing of the court recordings in what can run into bills of tens of thousands of pounds, however – there are notes of many cases where court staff, and the judge have blocked a client’s request to obtain transcripts of proceedings – and even when the court has agreed to transcription in some cases – clients and legal teams have identified multiple omissions in transcripts which suggest a motivated approach was taken to omit particular evidence from print.

For the media, a different approach to recording and broadcasting from the Court of Session & High Court of Justiciary currently exists in the following format:

Protocol on Recording and Broadcasting of Proceedings in the High Court of Justiciary and the Court of Session, and the Use of Live Text Based Communications from Court

Broadcast: Except where the context otherwise requires, for the purposes of the Protocol,
“broadcast” means the transmission to members of the public of a video and/or audio recording; or live streaming. For the purposes of the Protocol, a recording refers to a video and/or audio recording. Broadcast may be for live streaming, news broadcast or documentary production. Individual sections within the Protocol identify the extent to which broadcasting may be permitted for a particular type of case.

Guiding Principle: The guiding principle is that broadcast of court proceedings is in the interests of open justice and for the information and education of the public.

Judicial Control: Subject to the guiding principle, whether a hearing should be recorded must remain under judicial control. The court may rule that, in any given case, recording a hearing would not be in the interests of justice.

Fair and Accurate Reporting: A report or presentation of proceedings that includes a broadcast of a hearing must be fair and accurate, having regard to the overall content of the report or presentation and the context in which the broadcast is presented. It must not be used for: the purposes of a party political broadcast; advertisement or promotion (except where such advertisement or promotion relates to a report or presentation that includes the broadcast); light entertainment; comedy or satirical purposes.

For the purposes of the Protocol, a media party means a journalist registered with the Scottish Courts and Tribunals Service (SCTS), or a party who can provide sufficient, appropriate evidence of relevant journalistic or documentary work. Any media party wishing to record a hearing is required to submit an application using one of the prescribed forms

Applications must be submitted to Judicial Communications for consideration by the Broadcast Working Group well in advance of the date of commencement of proceedings.

On receipt of an application, the Broadcast Working Group must notify the residing/chairing judge and ask him, or her, to provide to the Broadcast Working Group any comment or response which he, or she, may have on the application within an agreed time. Once the Broadcast Working Group has considered any such comment or response, it must make a recommendation to the Lord Justice General (or Lord Justice Clerk) as to whether the application ought to be approved. The final decision lies with the Lord Justice General or, in the absence of the Lord Justice General, with the Lord Justice Clerk. Approval may permit recording to take place in accordance with sections 2 to 5, or in accordance with any additional conditions as may be specified.

A decision on the application must be intimated to the media party within an agreed time. In the event of an application being refused, in whole or part, written reasons must be provided by the Broadcast Working Group.

In the event of an application being refused, in whole or part, the media party may submit an amended application taking into account the reasons for refusal.

If permission to record is granted, the Broadcast Working Group must appoint an SCTS staff member as a liaison officer. That officer is the point of contact between the media party and the court for all purposes connected with the recording.

If permission to record proceedings is granted, the presiding/chairing judge retains responsibility for ensuring that: the grant of permission remains appropriate; the recording is carried out on the terms approved by the Broadcast Working Group; and the recording is carried out in a way which does not disrupt court business. If, at any stage in the proceedings, the judge forms the view that to proceed with the recording would constitute a threat to the administration of justice, or that such a risk is present, or that the media party has breached the Protocol or any condition imposed, the presiding/chairing judge may withdraw the permission. If the presiding/chairing judge is considering withdrawing permission, an opportunity should be afforded to the media party to make representations to the judge before a final decision is reached.

Despite the progress of technology in the world outside of Scotland’s creaky Victorian courts and justice system, recording and broadcasting of what goes on in Scotland’s courts has not yet had the full impact on increasing transparency and accountability in the justice system which the same application of audio and video technology have had in courts in other jurisdictions.

Currently, the media must rely on a ‘judge-led’ review chaired by Lady Dorrian – who was appointed to chair it by Lord Brian Gill, Scotland’s former Lord President and Lord Justice General who famously liked to go after the media and block access to courts and documents during his short three year term as Lord President in which he continually held the media, and transparency in disdain.

Report of the Review of Policy on Recording and Broadcasting of Proceedings in Court, and Use of Live Text-Based Communications

A judge-led group which was appointed by the Lord President to review the current policy on the recording and broadcasting of proceedings and the use of live text-based communications from Scottish courts has published its report.

The review group, chaired by Lady Dorrian, has made a series of recommendations following a public consultation exercise, to which 17 individuals and organisations responded.

The review, which examined the existing practice in Scotland and other jurisdictions, was carried out in the context of a complete acceptance of the importance of the principle of open justice, recognising however that any steps taken in support of this principle must not pose any risk to the administration of justice.

In summary, the report recommends the following:

• Filming of civil and criminal appeals, and legal debates in civil first instance proceedings, such as judicial review or procedure roll hearings, should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines.
• The court should allow criminal trials to be filmed for documentary purposes in certain circumstances, subject to the safeguards referred to in the report. Cases involving children, sexual offences and vulnerable witnesses should not be filmed.
• No live transmission or filming for subsequent news broadcast should be allowed for criminal first instance business or for civil proceedings involving witnesses.
• For subsequent news broadcasts, the delivery of sentencing remarks of the judge should be permissible, with filming focused only on the sentencing judge.
• Filming of criminal trials for live transmission should not be allowed.
• In civil cases at first instance, filming for documentary purposes only should be allowed, but should exclude certain groups such as family cases and those involving asylum seekers.
• A structured approach to considering applications to film.
• All filming should be subject to robust, clear and comprehensive guidelines.
• Journalists who register in advance with the Scottish Court Service should be permitted the use of live text-based communications such as Twitter from court, subject to guidelines which will be issued in due course.

The Lord President, Lord Gill said: “I am grateful to Lady Dorrian and her group for having carried out this exercise so thoroughly. These well-considered recommendations have the support of the judges. I accept all of the recommendations. They are entirely appropriate in the contemporary world. My office will now prepare guidance on the implementation of Lady Dorrian’s report.”

On 18 October 2012, the Lord President, Lord Gill, appointed a judicially led media review group, whose remit was to review policy on the recording and broadcasting of proceedings in court. This was later extended to include consideration of the use of live, text-based communications (LTBC) from court.

Guidance on the conditions under which cameras could be allowed in court was previously contained in a practice note issued by Lord President Hope in 1992. These conditions were revised by Lord President Hamilton in 2012. The revised conditions allowed filming to take place without the consent of all parties involved. The production company and broadcaster had to provide an undertaking to the presiding judge that the final broadcast would not identify those who had not consented to the filming.

The passage of time since guidance was issued, together with the development of social media, the use of instant text-based communication and the broadcasting of proceedings before the UK Supreme Court have all contributed towards a need to review this matter. When filming for documentary purposes has taken place in Scotland, the guidelines have had to be complemented by detailed negotiations as to the precise terms in each case. In appointing this review group, the Lord President considered that a more structured approach was desirable, not least in the interests of consistency.

The review was chaired by Lady Dorrian. The other members were: Lord Bracadale, Lord Woolman, Sheriff Principal Stephen, and Sheriff Drummond. The group was supported by: Christopher Nicholson, Deputy Legal Secretary to the Lord President; Elizabeth Cutting, Head of Judicial Communications; Steven D’Arcy, Head of Strategy and Governance, Judicial Office for Scotland.

 

ADVANCE, QC: From Big Invoice to Cash Register – New Dean of Faculty of Advocates stood silent in court while Lord Malcolm concealed his son was on same legal team representing asbestos dumping construction company who lost case – then used law firm linked to top judge to hunt down couple for legal fees

Lord Carloway & Lord Malcolm welcome new Dean R.Dunlop TO WATCH and listen to members of the Faculty of Advocates who strut around Scotland’s courts as if they have a starring role in a grand pantomime or musical overseen by a figure dressed in fiery red and white robes – you may be forgiven for thinking you just entered the world of fantasy and cosplay.

However – what you are actually witnessing is Scotland’s ‘Victorian’ justice system – where lies spoken in court by a figure in a black gown & wig can become an accepted ‘truth’, prosecutors can intimidate defence counsel by adding the dead to witness lists, deals can be done in-chambers to avoid the press & public in open court, and evidence can be lost down the back of a filing cabinet.

And, if you are looking for shameless, outright dishonesty – try the time where Scotland’s top prosecutor James Wolffe QC – himself a former Dean of the Faculty of Advocates –  was being sued in the Rangers admin case of wrongful arrest.

The stakes in that case were so high that Scotland’s ‘world leading’ courts system then neatly engineered a scenario so that Sarah Wolffe QC – the wife of that same top prosecutor James Wolffe QC – could hear and rule on the £9 million claim against her husband and Scotland’s Chief Constable.

You all know the story – A real howler: WOLFFE COURT: Lord Advocate James Wolffe and his judge wife at centre of £9million damages claim – Questions remain why Lady Wolffe avoided recusal during emergency judge swap on court case against her own husband

It gets better: ‘World famous’ (really, not) Scots QCs taking millions in publicly funded legal aid – can literally dream up an entirely false line of defence (commonly known as a lie) – for their child murdering clients and get away with trolling it out to a sceptical judge, jury and entire court room – and then bill the Scottish Legal Aid Board (Taxpayer) for their time spent doing so.

Going further up the tree – Scotland’s top prosecutor – the Lord Advocate – on an instruction to cover up for top cops with shady pasts – can ram-raid a Tribunal hearing and intimidate Tribunal judges into blocking claims of corruption and evidence tampering in the most senior ranks of Police Scotland – from becoming public.

Want to see examples of what most in the real world call corruption and money laundering? – try case after case where Advocates and QCs quietly demand with menaces – sums of cash in envelopes from their criminal or civil case clients. The ‘whisper’ goes like this – Pay up – or the desired court outcome will not be achieved.

And, don’t forget the ranks of slick, overcharging QCs who represent newspapers and the media – you know the type – all smooth talking on telly in between demanding appearance fees for doing so, hair gel to deflect from the botox injections, slick suits, a brown envelope on the way to the court, and a seat on a local rugby club along with a property grabbing, grubby, dishonest local high street solicitor who happens to sit on several Tribunals where he and his brethren live out their squalid existence extorting millions more from taxpayers.

Yet, for those in the know – behind the backs of their very own fee paying media clients, the same QCs with media scorecards find a quiet corner in the Court of Session to contact a colleague to get a message to opposing counsel on what and what not to say – to prolong the case for fees, or do the dirty on the case before them, for a favour on another.

You do for us today, we do for you tomorrow. And, tell you what mate – there is an opening in the Faculty for the son of that judge –  even though he only worked as a trainee lawyer for a few weeks.

But of course, these same legal legends in their own minds jealously guard their profession and self-created reputations – even on social media – where a critical article – or realistic tweet on the legal world can draw the ire of a grubby QC who actually lives on defending the worst filth in society and makes the taxpayer pay him staggering amounts of legal aid millions for doing so.

If anyone dares to question these weird legal people with double lives and multiple personas who market themselves as more valuable to society than doctors and nurses – in their legalistic, legal aid funded view of the world – that critic, person, politician or even a journalist – is not fit to live.

It’s all good though – as they say – because when such public exchanges take place – inevitably someone in an office comes forward with a bundle of papers to show the same high and mighty advocate or QC was actually knocked back by the Legal Aid Board for submitting false claims for public cash – so let’s call that attempted fraud, for the purposes of reality.

To complete the picture of what is in actuality – the Faculty of Fantasy – remember those envelopes full of cash – collected in person by a ‘leading light’ or ‘top’ Advocate or QC – of the same Faculty of Advocates whose members are money laundering and tax dodging all the way to the bank.

Take it from people who write of reality in the justice system – when you enter the eerie world of Scotland’s legal mafia and fall prey to that business known as the Scottish Courts and Tribunals Service – you are witnessing a cash grabbing, case fiddling, double dealing world of avarice and greed, rather than the work of robbed figures who would have you believe they are the saviours of humanity, or anyone’s Human Rights.

Clients – mean nothing. Cash collecting and Big Invoice are king. Take them to task and they will see you suffer. And, they do exactly that.

The last Dean of the Faculty of Advocates – Gordon Jackson QC – stood down on 30 June after being filmed talking about the Alex Salmond trial in a train.

The video footage published by the Sunday Times revealed remarks Mr Jackson made about his client Alex Salmond – and his accusers.

In a statement published by the Faculty of Advocates on their Twitter feed, Mr Jackson said in April: “I have intimated my decision to resign as dean of the Faculty of Advocates, with effect from 30 June, at the latest.”

“It would not, however, be appropriate for me to remain as Dean at a time when the Faculty was considering disciplinary proceedings regarding my conduct.”

“Accordingly, if, before that date, the Scottish Legal Complaints Commission remits the recent complaint for consideration by the Faculty’s Complaints Committee, I will stand down as Dean immediately. I do not intend to make any further comment.”

Since that announcement in April, Gordon Jackson has been less conspicuous on twitter – with much of the Faculty’s usual posturing on all things, law, legal and ‘other’ taken up by Roddy Dunlop QC – who was handed Jackson’s job in a lower than usual fanfare of the Court of waffling Session earlier this week.

Albeit  Dunlop only gained the position by default – he was the only candidate to put forward his name for the role – after Gordon Jackson ended his own run as dean in a blaze of careless comments in a train, filmed for posterity.

Dunlop – who – earlier this year gained the position of Vice Dean after Angela Grahame resigned her role – was welcomed in as Dean of the Faculty by Lord Carloway (Colin Sutherland), Lord Malcolm (Colin Campbell QC) and Lord Woolman.

However – the three judges who welcomed Mr Dunlop into the poisoned position of dean – have their own story to tell.

Two of those judges – Carloway & Malcolm – concealed conflicts of interest to a case which Dunlop lost, but was then used to go after the people who won it for the legal fees generated by Dunlop and his colleagues – including Lord Malcolm’s son. This case is currently at the heart of an ongoing media investigation and ticks all the right boxes for dishonesty, greed and conflict of interest.

The probe has so far linked Dunlop’s client (Advance Construction Scotland Ltd) to an ex-sheriff Peter Watson who resigned from the judiciary after he was suspended to protect public confidence in the judiciary

Then, there was the law firm – Levy and MCrae – who escaped a £28m writ over a £400m collapsed hedge fund.

The judge – Lord Malcolm – who concealed the fact his own son was linked to the same case he heard eight times

And, Scotland’s top judge himself – Lord Carloway – who concealed from MSPs that the law firm where his son worked was employed by Dunlop’s client to go after, and seize the properties of the party who actually won the case which Dunlop lost – courtesy of a ruling by the third judge – Lord Woolman.

Only in Scotland’s justice system will you ever find such a gang loaded with conflict of interests who use their seemingly unquestionable status in society to welcome another to their safe-house.

The investigation which reported on Lord Malcolm’s failure to declare serious conflicts of interest, is reported in further detail here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders.

When Lord Malcolm’s son bailed out of the court case – but only after the secret his own father was hearing the same case in the same court – came to light – Ewen Campbell ended up in the same Advocate stables as the new Dean of Faculty – Roderick William Dunlop QC of Axiom Advocates.

Nicely done – as some may say.

A recent development in the ongoing media probe of this case saw publication of a witness statement from Advocate Ewen Campbell – Lord Malcolm’s son –  which directly contradicts evidence given by  Lord Carloway – to the Public Petitions Committee and MSP Alex Neil in a hearing on 29 June 2017.

A further development saw a court-sourced witness statement of solicitor and ex-Sheriff Peter Black Watson to the Court of Session – which confirmed Watson employed the son of Lord Malcolm in the case to represent the client – Advance Construction Scotland Ltd – which ended up being heard by Lord Malcolm – who concealed his link to his son during multiple court hearings.

Lord Carloway’s son – Alexander Sutherland – then bailed out of a law firm linked to the same case heard by Lord Malcolm – after the Judicial Office were asked for comment on why his father – Scotland’s current top judge concealed this conflict of interest from evidence in the Scottish Parliament.

Carloway’s son – Alexander Sutherland then spectacularly ended up in the Faculty of Advocates – after only a few months working as a trainee solicitor.

Everything happens for a reason, right?

An earlier investigation revealed Lord Carloway failed to declare his son was linked to the same case: JUDGE OF CONFLICT: Top judge who attacked MSPs over judicial interests probe – failed to declare relative’s role at law firm targeting MSP’s constituents’ home & farm in £6M court case linked to Lord Malcolm conflict of interest scandal

A full report on the publication of evidence contradicting Lord Carloway’s testimony at the Scottish Parliament can be found here: DISHONESTY, LORD: Files reveal Lord Carloway misled Holyrood Committee on involvement of judges’ relative in Court of Session claim – witness statement exposes direct role of Ewen Campbell in £6M land case heard by his father – judge & privy councillor Lord Malcolm

Another turn of luck in the ongoing investigation of the Nolan v Advance case – was the discovery of methods employed by QCs and Advocates to get round signed up fee agreements – by demanding substantial sums in cash payments – which the QC or Advocate then insists on collecting in person from their clients.

But – trawling the court files and fee notes took on an even darker tone when evidence emerged that the Faculty of Advocates itself were attempting to issue fee note credits to cover undeclared payments of cash collected by QCs – when the Faculty feared discovery, and the worrying prospect of an investigation by UK tax authorities.

In one such document – a study of a statement from Faculty Services Ltd in the Nolan v Advance  – noted references to ‘undated’ sums, and credit notes for payments which were in fact – never made.

In one credit note from Faculty Services Ltd – the sum of £5000 – without any date reference is stated as paid.

However, a solicitor dealing directly with the case DENIED the undated £5,000 amount had been paid to Faculty Services Ltd – and a review of the accounts confirm NO such payment was ever made.

The undated £5K credit note listed in the documents – and other unexplained entries – appear to have been created by Faculty Services Ltd with a deliberate intention to conceal tens of thousands of pounds in undeclared cash payments Campbell demanded from his clients.

The fee statements & accounts from Faculty Services Ltd now raise serious questions of how far up the involvement of figures in the Faculty of Advocates in this case stretches – after an earlier investigation established Campbell was pocketing large payments he personally insisted on collecting in cash filled envelopes from his clients in £5,000 bundles.

Written evidence recovered from files held by legal regulators revealed Campbell himself sent emails to his clients – demanding large payments in cash to pay himself and junior counsel Craig Murray.

A full report on Craig Murray’s involvement in the case, and his role in writing two versions of evidence to legal regulators can be found here: ADVOCATE PROBE: How legal regulators covered up for top QC – Files show Scots Advocate now working as Barrister in London – authored two versions of SAME letter for Faculty probe of cash scandal QC who failed clients in £6M Court of Session case

An email from John Campbell to his clients revealed Campbell demanded £5,000 in cash – while he was on the way to a meeting at Airdrie Sheriff Court followed by a dinner with the Law Society of Scotland.

The email from Campbell states: “A little better information about timing. I am due in Airdrie at 4.30. The meeting is in the Sheriff Court, which closes at 6.30. The Law Society is taking me and a colleague for dinner, but I have no idea where. There isn’t a huge number of restaurants in Airdrie, but we’ll find somewhere. This means I won’t be at Bonkle Road until about 8. Is that OK?”

“I have asked JC [John Carruthers] for a breakdown of the £5000. I will explain to you how a spec case works. I have checked; both John and I are willing to take on a spec case for Donal, but only if he signs up to it. There will be two conditions; one is that you keep the Edinburgh agent fed and watered, and the second is the size of the uplift at the end of the day, as I explained to you.”

A Sunday Mail investigation into the case established John Campbell sent multiple emails to clients – in some cases, demanding cash “in any form except beads” to pay for legal services.

An additional email from John Campbell QC to his client stated: “I’m writing to confirm that we agreed at our meeting on Friday that we will meet in Dalkeith on TUESDAY morning, when you will give me £5000 towards the fees of your legal team” … “Please let me know if it’s OK to meet at the Mulsanne Garage, which is at 137 High Street, and what time would suit you?”

If you were wondering why Mr Dunlop’s name keeps cropping up in Nolan v Advance – well – it was Roddy Dunlop’s legal fees – and others – which prompted Levy and Mcrae & Begbies Traynor to use Lord Carloway’s son’s law firm to evict the pursuer out of his house to pay for it all.

You can read all about what happened next, here: FIRE SALE: AIB face sequestration probe as files reveal Trustee was paid £20K by vulture fund to sell home & firebombed farm five days after targeted attack on couple at centre of land case linked to top Scots judges, an ex-Sheriff, an asbestos dumping building company & law firm Levy and Mcrae

If you want to know why Lord Carloway decided to keep quiet about his own link to this case, read more here: JUDGE OF CONFLICT: Top judge who attacked MSPs over judicial interests probe – failed to declare relative’s role at law firm targeting MSP’s constituents’ home & farm in £6M court case linked to Lord Malcolm conflict of interest scandal

THE GANG’S ALL HERE: New Dean welcomed by judges who concealed conflicts of interest in same case

THE newly-elected Dean of Faculty, Roddy Dunlop, QC, has been introduced formally to the Court of Session in a short ceremony.

Mr Dunlop was presented to the Lord President, Lord Carloway, sitting with Lords Malcolm and Woolman, in the First Division courtroom.

Lord Carloway said it was not only his duty but his particular pleasure to congratulate Mr Dunlop on the high honour conferred on him by the Faculty.

Lord Carloway said: “It is an honour which is amply justified by your professional attainments and your personal character,” added the Lord President.

“It is a mark of my own age that I can not only say ‘kent his faither’ – whom I am pleased to see is present today – but even ‘kent his grandfaither’, whom I remember as an agent practising in Glasgow High Court.

“These are difficult times for the Court, the Bar, the wider profession and the public. We have learned a lot in the past four months, and will learn even more over the next four. There are many issues which need to be resolved if the courts are to continue to deliver justice for the people of Scotland. They will require discussion and careful consideration, but at the end of the day difficult decisions about the future will have to be made.

“The Court is confident that you will maintain the high traditions of the office of Dean. I can assure you that any representations which you make to the Court on behalf of the Faculty will always receive our closest attention.”

Mr Dunlop was the sole nomination to succeed Gordon Jackson, QC, who stepped down after four years in office.

Mr Dunlop said: “It is a huge honour to have been appointed Dean of Faculty. This high office extends back to the very origins of the College of Justice in the 16th Century. It has been held by many of the foremost legal minds in Scottish history, and I am humbled, and a little awed, to find myself in their company.

“I take office at an extremely challenging time for Faculty, and for the legal profession as a whole. I will endeavour to meet these challenges in a way that respects the efforts of those who have gone before me.”

Admitted to Faculty in 1998, Mr Dunlop took Silk in 2010. He has a broad-based, mainly civil practice, but with a keen interest in media law, he has been regularly instructed in the criminal courts in contempt matters.

Mr Dunlop served as Treasurer of Faculty from April 2017 until February this year when he was elected as Vice-Dean of Faculty. An election for a new Vice-Dean will follow.

Further material sourced from the Court of Session, including digital evidence & recordings from Neal transcribing machines in relation to proceedings in court where Dunlop and his opposite number John Campbell QC ‘sparred’ during hearings of Nolan v Advance – will be published in further articles.

 

 

ADVOCATE PROBE: How legal regulators covered up for top QC – Files show Scots Advocate now working as Barrister in London – authored two versions of SAME letter for Faculty probe of cash scandal QC who failed clients in £6M Court of Session case

Craig Murray – re-written evidence removed bribes claim. AN INVESTIGATION of how the Faculty of Advocates and Scottish Legal Complaints Commission (SLCC) covered up complaints against a top QC – show the inadequacies of the same legal regulators who will now consider allegations against Gordon Jackson QC.

Documents uncovered from Court of Session case files reveal the Faculty of Advocates and Scottish Legal Complaints Commission failed to act on evidence where a Scottish Advocate now working as a Barrister in London – Craig Murray of 12 Kings Bench Walk – submitted two versions of written evidence in connection with an investigation of a senior QC – John Campbell QC.

John Campbell – a well known figure in Scottish legal circles – was found to have demanded cash payments direct from clients for legal work at the Court of Session in Edinburgh.

However, while Campbell was receiving cash from his clients – a move strictly forbidden by the Faculty of Advocates – court files also revealed Campbell removed – without instruction – over £4million and a costs claim from the same Court of Session case where he had also sought cash payments from his clients.

Now –  a fresh consideration of the same court files which identify Craig Murray as junior counsel to Campbell in the same Court of Session damages claim – show Craig Murray was also paid for his own work from the same irregular cash payments Campbell demanded from his clients.

Material previously obtained by the media established Advocate Craig Murray as the author of two versions of the same letter to the Scottish Legal Complaints Commission (SLCC) in connection with their investigation of serious allegations against John Campbell QC.

And, while Mr Murray communicated to his clients by email he was writing a letter of evidence in connection with their complaints against Campbell – it transpired Murray’s second version of the same letter was used by the Faculty of Advocates to dodge taking any action against John Campbell.

Critically – Records from the Faculty of Advocates reveal Gordon Jackson QC was Vice Dean of the Faculty of Advocates – and Scotland’s current top prosecutor – Lord Advocate James Wolffe QC was the Dean of the Faculty of Advocates – during the time of the Faculty of Advocates investigation of John Campbell.

Gordon Jackson & James Wolffe’s terms of office at the Faculty of Advocates also match up with Craig Murray’s two versions of the same letter to legal regulators in connection with the probe against John Campbell.

The media investigation prompted by papers obtained from legal regulators focused on Craig Murray’s role as Junior Counsel in Nolan v Advance Construction Ltd, and the conduct of legal figures in the case – spanning eight Court of Session judges – one a member of the privy Council, several Sheriffs, high profile QCs and Levy & Mcrae  – the law firm identified in the £400million collapse of a Gibraltar based hedge fund – Heather Capital.

The letter was sent by Mr Murray to the Scottish Legal Complaints Commission in relation to a complaint against John Campbell QC – who lists Planning law as a speciality.

Crucially, however, a significantly altered version of the letter – still bearing the name of Advocate Craig Murray as the author – removes references to ‘offers of a bribe’ to elected councillors at a Scottish local authority, and detailed references to evidence in a high value civil damages claim in the Court of Session – Nolan v. Advance Construction Scotland Ltd [2014] CSOH 4 CA132/11.

Enquiries by the media established the version of Murray’s letter to the Scottish Legal Complaints Commission, on the subject of  John Campbell’s role in Nolan v Advance Construction Ltd – was sent to the Faculty of Advocates via the law firm Clyde & Co (formerly, Simpson & Marwick) – who are known to represent members of the legal profession who are subject to complaints, allegations of dishonesty, corruption and negligence claims.

The complaint against John Campbell QC arose from his provision of legal services and representation to former National Hunt jockey & trainer Donal Nolan, who was the pursuer in – Nolan v Advance Construction Ltd – a case which exposed serious conflicts of interest in Scotland’s judiciary where Lord Malcolm (Colin Campbell QC) failed on multiple occasions to disclose the fact his own son was representing the defenders in the same court.

The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest, was reported here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

Upon scrutiny of the two letters sent by Craig Murray to legal regulators – serious questions arose regarding the extensive differences between Murray’s two versions of the same letter to the Scottish Legal Complaints Commission and the version which was eventually sent to the Faculty of Advocates.

It is important to note both versions of the same letter used by the Scottish Legal Complaints Commission, and the Faculty of Advocates – identify Craig Murray as the author.

Significantly, certain references to allegations of bribery involving employees of a construction company and elected councillors, have been altered in a second version of Mr Murray’s letter – which bears no date.

Advocate Craig Murray’s letter to SLCC (Text marked in pink shows extent of deletions in Faculty’s version). In a letter dated 22 July 2014 to the SLCC, Craig Murray writes: “The most accurate account of Councillor Taggart’s position will be in that statement. My recollection of Ms Moore’s summary is that a person, whose identity was unknown to Mr Taggart, telephoned him about this case and offered a bribe. There was nothing to identify that person or connect that person to the defenders.”

However, the second version of the letter, has the references to bribery removed from the end of the sentence.

The undated letter still bearing Craig Murray’s name and Advocates address, then reads: “The most accurate account of Councillor Taggart’s position will be in that statement. My recollection of Ms Moore’s summary is that a person, whose identity was unknown to Mr Taggart, telephoned him about this case. There was nothing to connect that person to the defenders.”

Then, both versions of the letter from Craig Murray to the SLCC continue: “An allegation that the defenders had been involved in bribing an elected public official to commit perjury in court would have been extremely serious. There was no basis upon which an allegation of that sort could have been made by a responsible solicitor or advocate. There could also be no further investigation (particularly in the midst of the proof diet) as it was not known who made the telephone call.”

Councillor John Taggart – who is referred to by Murray, was interviewed late last week.

Councillor Taggart’s role in discovering the dumping of contaminated waste by Advance Construction Ltd, and his further efforts to assist Mr Nolan, and constituents affected by events, was crucial in bringing the case to court and into the public eye.

In discussions with a journalist, Councillor Taggart made clear in his own view, the evidence in relation to the offer of an inducement related to an event occurred at the opening of Calderbridge Primary School (former site of Coltness Primary School), and NOT in a telephone conversation as Mr Murray claimed in his letter to the SLCC.

Further, Councillor Taggart indicated the “person, whose identity was unknown to Mr Taggart” – according to Craig Murray’s statement, had in fact handed his business card to the Councillor during the school opening event.

The Councillor further alluded to the identity of the person as an employee of a main contractor for North Lanarkshire Council.

It has since been established both Advocate Craig Murray, and Fiona Moore of Drummond Miller were present with the Councillor when his precognition of evidence was taken.

Further enquiries by journalists have now revealed the person who allegedly offered the inducement is an employee of a major construction contractor on North Lanarkshire Council’s list of approved contractors.

When it became known the incident involving the inducement was to be used in evidence, the person who approached the councillor left Scotland for Ireland and did not return for a number of months – despite being cited as a witness to attend court to give evidence in the Nolan v Advance Construction Ltd case.

The record later shows – John Campbell QC – failed to call the witness even though the individual alleged to have offered the inducement to the councillor appears on the final witness list for the proof hearing before Lord Woolman in 2014..

If the evidence of bribery had emerged during lines of questioning at the Court of Session, the testimony may well have had a significant impact on the case, and most probably initiated a Police Scotland investigation into the companies involved, and North Lanarkshire Council.

However, Senior Counsel for Mr Nolan – John Campbell QC – chose not to introduce the conversation about the allegations of bribery in court.

Undated, altered version of Advocate Craig Murray’s letter to SLCC. The removal of references to a bribe, and swathes of material removed from the second, ‘undated’ version of Craig Murray’s letter to the SLCC – raises further questions over the written testimony offered by the Advocate & some time Prosecutor to the Scottish Legal Complaints Commission.

Curiously, the undated version of Murray’s letter then surfaces at the Faculty of Advocates – who chose to rely on this heavily altered version of Murray’s original letter – in relation to an investigation which ultimately dismissed the complaint against John Campbell QC.

In a letter dated 7 October 2015 from the Faculty of Advocates to Melanie Collins, Iain WF Fergusson QC confirmed the Faculty of Advocates preferred the lesser content of the undated letter to be used in the complaint against the QC.

Fergusson wrote: ”The earlier of your two e-mails refers to two versions of a letter by Mr Craig Murray, Advocate to the SLCC. The committee relied on the undated version of the letter as support for Mr John Campbell QC’s version of events. This has brought to light an administrative error – the version of the letter dated 22 July 2015 was not before the committee when it considered and determined your complaint”

In a letter of 2 May 2016 to the Scottish Legal Complaints Commission, law firm Clyde & Co – acting as legal agent for John Campbell QC against the complaint attempted to explain the discrepancy between the two versions of Craig Murray’s letter and how the undated version ended up at the Faculty of Advocates.

Anne Kentish, of Clyde & Co wrote: “We have reviewed our files and have ascertained the sequence of events surrounding the letter. When the complaint was originally made against Mr Campbell, we were provided with a copy of the undated version of the letter from Craig Murray to the SLCC. It was provided to us on the basis that it set out the background to the complaint and Mr Murray’s recollection of events.. We did not, at that time appreciate that the letter was in draft. It resembled a file copy letter.”

“When senior counsel for Mr Campbell, Alistair Duncan QC prepared the response to the complaint on behalf of Mr Campbell, he indicated that Mr Murray’s letter to the SLCC should be included in the appendix to the response. When we prepared the appendix, we used the version of the letter that we had within our files which was the undated version. We did not at that time appreciate that the final, dated version, existed.”

“Later that day, Mr Duncan forwarded to us some emails which happened to have the dated version of the letter attached. We understand that Mr Duncan had been provided with the final version of the letter by Mr Murray. Neither we nor Mr Duncan realised that we were working from slightly different versions of the same letter (one being a draft and one being a final version)”

“As soon as we realised a final dated version of the letter existed (the day after the response was submitted to the Faculty) we provided Faculty with the final dated version of the letter and asked it to replace the undated version.”

“Mr Murray has confirmed that the undated version is a draft version of the final version dated 22 July 2014.”

However, the lengthy and laboured explanation from Clyde & Co to the Scottish Legal Complaints Commission, and the email from Iain Fergusson QC are completely at odds with a written explanation provided by Advocate Craig Murray to Mr Nolan’s partner, Ms Collins.

Seeking to explain the situation regarding his letter, an email dated 23 June 2015 from Craig Murray to Mr Nolan’s partner, Melanie Collins, stated the following: “I finished writing this letter on 22 July 2014. I signed it and sent it to the SLCC that day. Copies were also sent to you and to John Campbell QC. I did not submit one to the Faculty of Advocates, nor did any Office-bearer or member of Faculty staff see the letter before it was sent (or for that matter have I passed a copy to any Office-bearer or member of Faculty staff since). I do not know how the Faculty of Advocates came to have a copy of the letter. Could you possibly provide me with a copy of the letter or email from the Faculty of Advocates, enclosing my copy letter?”

“I note that you have provided two copies of the letter. One is dated 22 July 2014 and has page numbers and footnotes. That is the letter I submitted to the SLCC and copied to you. The letter you have labelled 5B has no date, no page numbers and no footnotes. This letter is not in a form which I saved on my computer or sent to anyone else. It appears to have the same content, font and (roughly) layout as the dated version, but I have not checked on a line-by-line basis.”

It is unusual for such material to be made public as papers submitted to the SLCC remain unreleased due to confidentiality rules.

However, the papers have been made available to journalists who are investigating the litigation process of Nolan v Advance Construction Ltd – after the case was brought to the attention of MSPs at the Scottish Parliament.

And, given the author of the letter – Craig Murray also works as an ad hoc Advocate Depute prosecutor in Scotland’s courts, concerns were raised over the implications of a Prosecutor writing various versions of the same letter – where one version contained alterations to witness testimony in relation to criminal acts –  and references to evidence in what has now become a key case of judicial failures to recuse, and accusations of bias in the courts.

The Crown Office were previously asked for comment on the matter and the impact on Murray’s role as a prosecutor when the court files first came to light in 2017,

Initially, the Crown Office refused to comment, and demanded any request for media reaction be put in the form of a Freedom of Information request.

Pressed on the matter, a spokesperson for the Crown Office then suggested: “..as Mr Murray is not a COPFS employee any request for formal comment in relation to his professional conduct as an Advocate should be submitted to Mr Murray himself, the Dean of the Faculty of Advocates or the SLCC. Any allegations of criminal conduct should be raised with Police Service of Scotland.”

However, there are clearly public interest questions in relation to a prosecutor named as the author of a letter where one version, used by a law firm with direct connections to the judiciary – removed evidence in relation to criminal acts and bribery.

The Crown Office was then asked if the Lord Advocate intends to act to protect public confidence in the Crown Office and Procurator Fiscal Service by ordering an investigation into the use of altered versions of Mr Murray’s letter to the SLCC, and act on the status of Mr Murray as an Advocate Depute.

No reply was received.

However, the Dean of the Faculty of Advocates during the sequence of events which lead to the Faculty of Advocates investigation of John Campbell – is the current Lord Advocate James Wolffe QC.

As part of his current role as Lord Advocate – James Wolffe QC can call Craig Murray to prosecute criminal cases while acting as an ad hoc Advocate Depute.

The National newspaper carried an exclusive investigation into the Nolan v Advance Construction Scotland Ltd case, here: Couple’s human rights breach claim raises questions about how judicial conflicts of interest are policed.

Papers from the court files, and digital evidence now being considered by journalists indicate the legal team of John Campbell QC, Advocate Craig Murray & Gregor McPhail who acted for Mr Nolan in Nolan v Advance Construction (Scotland) Ltd – received disbursements from John Campbell from funds Campbell obtained by personally collecting substantial cash sums from clients.

The payments – outwith the normal procedure of paying advocate’s fees via a solicitor and to faculty services – have previously been reported in the media and Diary of Justice due to concerns in relation to irregularities and potential tax avoidance issues.

During the earlier media investigation, Craig Murray was contacted for his comments on material handed to the press.

Craig Murray was asked why there were significant differences between two versions of his letter to the Scottish Legal Complaints Commission, one dated, the other undated.

Craig Murray refused to comment.

Craig Murray was asked to confirm if his letter was altered by someone other than himself.

Craig Murray refused to comment

Craig Murray was asked if he was aware of Lord Malcolm’s true identity (Colin Malcolm Campbell) and his relationship to solicitor Ewen Campbell, one of the legal agents working for the defenders.

Craig Murray refused to comment.

Lastly, Craig Murray was asked to comment on both versions of the letter he sent to the Scottish Legal Complaints Commission. He was asked which one he wrote and if he was aware anyone altered the second undated version of his letter.

Craig Murray refused to give any comment.

A billing document from Craig Murray’s Compass Chambers to the client, revealed he was to be paid £800 +VAT per day for proof preparation and £1,250 + VAT per day for Court, which ran to 8 days. A bill was subsequently received from Mr Murray’s stables for around £39,000.

It has since been established, the SLCC relied on the dated version of Murray’s letter, while the Faculty of Advocates relied on the heavily altered undated version of Murray’s letter regarding their consideration of a complaint against John Campbell QC.

Papers obtained from case files and published in this investigation confirm the second, undated version of Craig Murray’s letter appears to have originated from the Edinburgh law firm – Clyde & Co (formerly Simpson & Marwick).

The letter from Clyde & Co also confirms the second, undated version of Murray’s letter was sent to the Faculty of Advocates, on the instructions of Alistair Duncan QC.

Duncan was tasked with defending John Campbell QC in relation to the complaint investigatoin launched by the Scottish Legal Complaints Commission.

However, Court papers record the same Alistair Duncan QC – who went on to defend John Campbell QC against the legal regulator’s complaints investigation – once appeared for the defenders against Mr Nolan – in the Nolan v Advance Construction case – on 9 November 2011.

Previously – the Scottish Legal Complaints Commission was provided with the two versions of Craig Murray’s letter, and a copy of a letter from Clyde & Co, admitting their role in providing the second, undated version with alterations to the Faculty of Advocates.

The Scottish Legal Complaints Commission were asked for a statement on the existence of the two versions of Craig Murray’s letter in connection with the investigation of John Campbell QC – and what action the regulator intended to take.

The SLCC refused to comment.

However, the SLCC confirmed a meeting had taken place between their Chief Executive – Neil Stevenson – and former Cabinet Minister Alex Neil MSP – who has provided powerful backing for his constituent – Donal Nolan.

A spokesperson for the SLCC said: “I can confirm that a meeting between our CEO and Alex Neil MSP took place.   The meeting was to discuss the SLCC’s process: what powers we have; actions we can take; and what we can’t do.”

The case involving Murray was brought to the attention of the Scottish Parliament’s Public Petitions Committee – who are probing judicial interests, failures of judges to recuse over conflicts of interest, and opposition of Scotland’s current Lord President – Lord Carloway – to calls for the creation of a register of judicial interests.

Had a comprehensive and publicly available register of judicial interests existed at the time of the Nolan v Advance Construction Ltd case, details of judicial links in the register could have prevented injustice in the Nolan case – and many others in the courts – from the very outset.

Scrutiny of publicly available legal profiles for Advocate & barrister Craig Murray now reveal there are NO REFERENCES on his current work profiles to his role and legal representation in Nolan v. Advance Construction [2014] CSOH 4 CA132/11 –  the same land contamination case he served with senior counsel John Campbell QC – which led to investigations by two legal regulators in Scotland, and evidence Murray was paid from secret cash payments collected by John Campbell QC.

Craig Murray currently maintains a practice at Compass Chambers in Edinburgh while also working as a barrister in London. Murray also continues to advertise his work as a Prosecutor for the Crown Office & Procurator Fiscal Service (COPFS).

GLOWING LEGAL PROFILE: Craig Murray – Advocate, Barrister & Advocate Depute:

Craig Murray – Year called: 2008

Qualifications: LLM in Commercial Law (Distinction),University of Edinburgh Member, Chartered Institute of Arbitrators Faculty Scholar, Faculty of Advocates LLM in Human Rights Law, University of Strathclyde, Dip Forensic Medical Sciences, Society of Apothecaries, Dip Legal Practice, University of Edinburgh LLB (Hons), University of Edinburgh.

Craig has a busy defender personal injury practice in the Court of Session, representing insurers and local authorities. A substantial practice part of his practice is in defending fraudulent claims at all levels, in particular employers’ liability cases and road traffic claims.Craig also represents claimants in medical and dental negligence claims.

Craig has been instructed in a number of complex product liability cases, including pharmaceutical cases (Vioxx and Celebrex) and medical products (mesh surgical implants and PIP silicone implants).

Craig has substantial experience in property damage claims and other aspects of reparation.Craig occasionally acts in public law and human rights cases, including judicial review, mental health appeals and immigration.Craig has previously been a tutor on the Diploma in Regulatory Occupational Health & Safety at the University of Warwick and on the Civil Court Practice course at the University of Edinburgh.

Craig was appointed as an Advocate Depute ad hoc in July 2015. He is a member of the Children’s Panel for the Scottish Borders.

Craig Murray – Biography 12 Kings Bench Walk

Craig Murray Call: 2017 Areas of expertise Personal Injury Clinical Negligence Product Liability Industrial Disease Public Authority Liability Fraud

Call: 2017 – Bar of England and Wales 2008 – Scottish Bar

Craig joined 12 King’s Bench Walk as a tenant in December 2018, having successfully completed a practising pupillage at these Chambers.

Craig has been an Advocate at the Scottish Bar for over 10 years, where he has considerable experience in a full range of personal injury and clinical negligence work. He has appeared in the Supreme Court (Campbell v. Peter Gordon Joiners Ltd [2016] UKSC 38) and has conducted a civil jury trial without a leader (Bridges v. Alpha Insurance 2016 SLT 859). He has appeared in an 8-day trial against experienced senior and junior counsel (Pocock v. Highland Council [2017] CSOH 40 (aff’d [2017] CSIH 76). He has appeared in numerous appeals to the Inner House of the Court of Session, with and without a leader. He has prosecuted serious crime (including attempted murder) in the High Court of Justiciary. Craig is primarily instructed by UK-wide insurers and local authorities, but accepts instructions to act for claimants, particularly in clinical and professional negligence cases. He is regularly instructed in high-value RTA claims involving fatalities or brain injury. He has considerable experience in defending stress at work, harassment and assault claims, in particular those arising in schools and care establishments. Craig has an interest in local authority liability and issues of justiciability. During his pupillage, Craig had experience of motor insurance law. Craig is available to accept instructions throughout the jurisdiction. He maintains a practice at Compass Chambers in Edinburgh.

Personal Injury: Craig has experience in all aspects of personal injury law, including high value road traffic accidents, employers’ liability claims, occupiers’ liability claims, disease cases and common law liability.

He has acted for defendants and claimants in high value RTA claims involving vehicles, cyclists and pedestrians. He is familiar with preparing and leading evidence on driver perception, conspicuity and accident reconstruction. He regularly prepares and leads evidence from motor engineers and forensic collision investigators.
He has experience of a full range of employer liability claims, including: work equipment cases, accidents at height, accidents on construction sites, and fatal diving accidents.
Craig has successfully defended occupiers’ liability claims concerning listed buildings (Brown v. Lakeland 2012 Rep LR 140; Norgate v. Britannia Hotels [2018] 8 WLUK 71).
Craig has acted for claimants and defendants in mesothelioma and other asbestos-related disease cases. He has acted for claimants in noise-induced hearing loss cases, HAVS cases and silicosis claims. He has acted for claimants and defendants in Legionella claims.
Craig is regularly instructed by Scottish local authorities. He has succeeded in novel arguments concerning the non-justiciability of certain claims (Ryder v. Highland Council [2013] CSOH 95; Macdonald v. Comhairle Nan Eilean Siar [2015] CSOH 132) and recently appeared in the important appeal of Bowes v. Highland Council [2018] CSIH 757.

Clinical Negligence: Craig has a keen interest in clinical negligence and the wider aspects of medical law. He holds a Diploma in Forensic Medical Sciences. He has acted for claimants in clinical negligence and dental negligence cases in Scotland for 10 years. He has also acted for defendants in clinical negligence and ophthalmic negligence cases.

Recent cases include:A fatal claim concerning a failure to diagnose lung cancer.
A substantial claim by a young competition dancer for a failure to diagnose a mid-foot fracture, leading to 5 operations, arthrodesis and life-long disability.
A failure to diagnose deep vein thrombosis, leading to amputation of a lower leg.

Product Liability: Craig has been instructed in some of the largest group litigations in Scotland concerning product liability, including:

Medicines. In a claim against Merck relating to Vioxx, an NSAID painkiller, 6.5 million documents were produced by the defendant. Claims concerning the drug Celebrex are ongoing (see Richards & Jarvie v. Pharmacia [2017] CSOH 77 (aff’d [2018] CSIH 31).

Surgical mesh products. PIP implants. Metal on metal hips. Craig also has experience of claims arising from motor vehicles and surgical stents.

Industrial Disease: Craig regularly acts for claimants and defendants in mesothelioma and other asbestos-related disease cases in Scotland. He is familiar with the aetiology of lung disease and the latency period of asbestos-related disease. He has acted for claimants in noise-induced hearing loss cases, both cumulative exposure and ‘acoustic shock’ cases. Craig has been involved in HAVS cases and silicosis claims. He has acted for claimants and defendants in Legionella claims.

Public Authority Liability: Craig is regularly instructed by Scottish local authorities. He has succeeded in novel arguments concerning the non-justiciability of certain claims (Ryder v. Highland Council [2013] CSOH 95; Macdonald v. Comhairle Nan Eilean Siar [2015] CSOH 132) and recently appeared in the important appeal of Bowes v. Highland Council [2018] CSIH 757. Craig has represented Scottish police forces in a number of cases.

Fraud: Craig is regularly instructed in Scotland to represent insurers in personal injury claims arising from road traffic accidents where fraud is suspected. He has run several trials of 4 days’ duration or more, in which fraud has been pled on the basis of contrived accidents, fictitious accidents or phantom passengers.

Agricultural Accidents: Craig has a particular interest in personal injury claims arising from agricultural accidents.

Recent cases include: Defending numerous claims of injuries caused by cattle at market.
Defending landowners in respect of accidents involving trees (Craig holds a LANTRA tree felling qualification)
Defending a claim by a worker who lost an arm in a thresher (ongoing)
Road traffic accident involving a tractor, in which Craig was trained on a John Deere 6930 tractor
Work equipment cases involving JCBs, grain dryers, crushers and fence post drivers.

Qualifications & Awards: LLB (Hons), University of Edinburgh LLM (DIst), Commercial Law, University of Edinburgh LLM, Human Rights Law, University of Strathclyde Dip Legal Practice, University of Edinburgh Dip Forensic Medical Sciences, Worshipful Society of Apothecaries Member Chartered Institute of Arbitrators Faculty of Advocates Scholarship (2007)

Appointments & Memberships: Personal Injuries Bar Association Chartered Institute of Arbitrators

Directories: Legal 500, Leading Individual, 2019 “His written work is of an impeccably high standard.” Legal 500, 2019 “His attention to detail is phenomenal; he has an excellent legal mind. He always gives advice in a clear manner and is very pragmatic and thorough. He also has very good negotiation skills.” Chambers & Partners, 2020

DO you have a complaint with the Scottish Legal Complaints Commission or Faculty of Advocates?

What is your experiences of dealing with the SLCC or the Faculty? Has your solicitor, advocate or QC demanded cash payments from you at any stage of a civil or criminal case? Tell us more about it in confidence, by email to scottishlawreporters@gmail.com

 

CASHBACK QC: Legal regulator’s files reveal senior QC reduced claim without instructions, withheld key evidence & witnesses including Cabinet Secretary from Court of Session case

John Campbell QC – evidence to legal regulator contradicts judge. DOCUMENTS obtained by the media from a legal complaints investigation – reveal a senior QC was unable to produce substantive evidence against allegations he stripped out a £4m head of claim & legal and professional expenses without consulting his client.

The overall tone of responses from John Campbell QC to the Scottish Legal Complaints Commission (SLCC) give a series of contradictory accounts to legal regulators of services he provided in a case now linked to serious failings of the judiciary.

In one lengthy explanation Campbell claims he did not act without instruction, however, the senior QC refuses to produce any evidence of said instructions.

In another exchange, the long time QC dismisses the appearance and evidence from a star witness Cabinet Secretary – Alex Neil MSP (SNP Airdrie and Shotts).

Campbell personally took the top politician’s precognition and had him set to appear on the first day of the proof, then failed to call the Cabinet Secretary in a move now raising serious concerns over the performance of the once ‘top’ rated Planning Law QC.

And, in a bizarre twist to the case the senior QC – now the subject of media coverage – claimed he had no professional relationship with Mr Nolan’s partner – even though evidence has since been published in the press Campbell demanded and obtained cash sums of £5,000 from his client’s partner.

The cash payments sought by John Campbell QC are in breach of rules of the Faculty of Advocates – who stipulate fees can only be paid via solicitors to Faculty Services. A full report on Campbell’s cash demands can be read here: Investigation reveals Scotland’s ‘top’ Planning QC demanded cash payments & cheques from clients in Court of Session case

In an attempt to answer allegations he removed a £4m head of claim & legal expenses from the high value damages action in the Court of Session on the last day of proof – the senior Planning Law QC gave the SLCC a laboured account of events without being able to back up his position.

Complaints against Campbell’s reduction of the claim relate to sweeping statements made by Court of Session judge Lord Woolman in his 2014 opinion of Nolan v Advance Construction (Scotland) Ltd.

An evidence review of court documents, including transcripts from the case, and now John Campbell’s response to the SLCC indicate Lord Woolman’s statement – that Nr Nolan “vastly” reduced the claim on his own – is incorrect.

Woolman’s opinion, of 17 January 2014 stated “In the course of the proceedings, Mr Nolan has greatly narrowed his claim. In June 2012, he deleted his conclusion for specific implement. At the close of the proof, he abandoned his claim for lost development value, which he had originally valued at £4 million. He also accepted that some elements of the claim for investigative costs are properly classified as litigation expenses.”

However, and in a move which now discredits key parts of the Woolman opinion – John Campbell failed to produce to legal regulators – any evidence of a consultation with his client or evidence that he obtained proper authorisation to strip out key parts of a £6m damages claim – rendering the judge’s now unfounded statements  worthless.

A study of material from the SLCC complaint file handed to investigators at the Scottish Legal Complaints Commission reveals a set of exchanges and written testimony handed to the regulator which show John Campbell QC acted on his own, and without instruction when he removed the £4m head of claim along with legal and professional expenses on the last day of a proof hearing.

The sudden, and unauthorised move by the QC stunned the court and even the judge – who had acknowledged on the preceding day Mr Nolan had a valid claim.

However, Mr Campbell’s own client – the well respected former National Hunt jockey & trainer Donal Nolan was kept in the dark by the senior QC and his assistant – Advocate Craig Murray of Compass Chambers.

Responding to allegations Campbell acted on his own, the QC claimed: ”I did not act without instructions. The Court adjourned while I took instructions on this very matter. Mr Nolan was not in attendance.”

“I asked that he be brought to Court. The Court’s Minute of Proceedings discloses that i sought and obtained an adjournment for that purpose. The same day, I wrote a Note for Mr Nolan.”

However, an email presented to the SLCC as part of the complaints file reveals a much different version of events where John Campbell writes in an email to Mr Nolan’s solicitor saying he does not want to see his client.

Campbell’s email to his client’s solicitor reads: “Melanie has given instructions to do without Steven Brown. I am content with those instructions. Craig is getting them in writing and l will write a Note of Advice. You DO NOT need to bring Donal through here this afternoon”

In reality, the ‘instructions’ Mr Campbell referred to in his email – never existed.

Advocate Craig Murray – mentioned in the email and who was serving as Junior Counsel – later denied he ever received any written instructions from Mr Nolan’s partner with regard to dealings with the witness referred to by Campbell.

And despite repeated requests by the pursuer for Mr Campbell and other members of the legal team to produce such written instructions to the SLCC investigation, none were forthcoming.

Campbell’s explanation goes on to say: “I also have a verbatim note of proceedings on that day, taken by junior counsel, which demonstrates quite clearly that I sought and obtained an adjournment to take instructions on this matter, and to have the pursuer himself attend. I can make that verbatim note available if the SLCC wishes to see it …”

However, the additional “verbatim note” referred to by John Campbell – was never produced despite repeated requests.

Campbell further attempted to justify his removal of the £4.1m head of claim.

John Campbell wrote: “Further, the decision to proceed without this part of the claim was fully explained, first to Mrs Collins, and then subsequently to Mr Nolan. It was endorsed by junior counsel, and understood by the solicitors. I am in no doubt at all that it was fully understood by all.”

However, a media investigation and study of the case file has concluded there is NO discoverable trail of consultation or any subsequent written or verbal authorisation for removal of the £4.1m head of claim between the QC, the Edinburgh Agents Drummond Miller, the solicitor in charge of the case or the client – Mr Nolan.

In the same letter to the SLCC, John Campbell attempted to blame the client’s solicitor for a failure to include the words “without prejudice” in a letter to Levy & Mcrae – the defender’s legal agents – even though it was Campbell himself who drafted the letter and had omitted to put in the words now under dispute.

Mr Campbell then claimed he discussed with his client – the possibility of capping the site at Branchal in Wishaw – the same site the defenders had accepted their dumping of the contaminated material had been unlawful.

Capping – a technical term of dealing with dumped material refers to layers of soil placed over the dumped material. However, if the material is contaminated, this method of dealing with hazardous waste renders a site unusable.

An interview with the client – Mr Nolan, has established no such discussion with Mr Campbell on the subject of ‘capping’ ever took place.

And expert testimony seen by reporters has revealed any ‘capping’ of the Branchal site would have rendered it worthless for future development.

In the same response to the SLCC, John Campbell claimed bombshell evidence from a North Lanarkshire Councillor – who alleged bribes or inducements had been offered for him not to give evidence in court – “was in the end irrelevant to the issues which the judge had to determine”.

The Councillor gave a precognition to Campbell’s Junior – Craig Murray of Compass Chambers. Murray is now an ad-hoc Advocate Depute for the Crown Office in the High Court. Also present during the Councillor’s precognition was Fiona Moore – head of litigation for Edinburgh law firm Drummond Miller.

Both Craig Murray and Fiona Moore have been asked questions by the press over their involvement in the case, however both refused to comment.

A full report on Craig Murray’s involvement in the case features here: Second version of Advocate Depute’s letter to legal regulator ‘removed bribe offer’ in evidence considered by Faculty under ex-dean, now Lord Advocate James Wolffe QC

In respect of the evidence relating to bribery, legal insiders speculate if the court had heard the evidence of an attempt to bribe an elected councillor – it is most likely hearings would have been halted while a criminal investigation by Police Scotland took place, along with attendant media interest.

And, a recent press interview with the councillor has since established the offer of an inducement did in fact, take place, naming two individuals connected to companies involved in the court action.

Serious questions remain as to why this evidence relating to bribery was not introduced during the court case, and the motives of Mr Campbell in omitting such headline grabbing material from the court.

One witness who has since spoken to journalists said he felt Mr Campbell had an “alternate agenda” in the lines of questioning he had previously indicated would be asked compared to what questions Campbell eventually asked of witnesses in court..

On the point of calling a star witness in the case – Cabinet Minister Alex Neil MSP – John Campbell writes “The evidence of Mr Neil MSP was not required. I accept responsibility for not calling him”

However, it is likely the headlines generated by a Scottish Minister with the rank of Alex Neil – who was Cabinet Secretary for Health at the time – would have generated headline attention to his evidence which in turn may have led to developments in the case.

Papers obtained by journalists including a witness list from the case – have now established the Cabinet Secretary for Health & Wellbeing was to be called as a witness on the first day of the proof in Nolan v Advance Construction (Scotland) Ltd.

The move to call Mr Neil on the first day gave a clear indication of the importance placed on Mr Neil’s evidence.

However, the Cabinet Minister was kept waiting in the witness room for around four hours by senior counsel John Campbell – to a point where it became clear Mr Neil was not destined to appear that day.

Mr Neil then had to leave the court for a meeting, and was not called again by Campbell QC.

A study of evidence from Mr Campbell’s written explanation to the SLCC clearly indicates the senior QC never had any intention of calling Mr Neil despite all the plans made to do so and the expectation of his client.

Despite Campbell’s claim to the SLCC the evidence of Alex Neil was unimportant and not relevant to the case, it has now emerged John Campbell personally took Alex Neil’s precognition statement – an unusual move but one indicating the emphasis placed on testimony of such a high ranking politician.

Ultimately, the episode involving Mr Neil not being called as a witness could be viewed as symptomatic of John Campbell’s treatment of the case and his client.

Speaking to Diary of Injustice, Mr Nolan’s partner has indicated a clear and consistent line of dishonesty ran throughout their dealings with the Senior counsel.

Further material now handed to journalists on the case includes a copy of an audio interview with John Campbell QC, Advocate Craig Murray, Gregpr McPhail, the pursuer’s solicitor and the pursuer’s partner.

The explosive audio recording – in which Campbell admits taking instructions from Ms Collins – even though he claimed to the SLCC he had no professional relationship with her, is set to be submitted to the Scottish Legal Complaints Commission and the Faculty of Advocates in a revamped complaint against the senior QC.

And now, additional material passed to journalists which covers work done by Edinburgh law firm Drummond Miller on behalf of Mr Nolan – raises serious concerns as to their conduct and work carried out on behalf of their client.

In a letter dated 9 October 2014 from Fiona Miller – Head of Litigation for Drummond Miller – to Simpson & Marwick (now Clyde & Co) who were now defending John Campbell QC against the complaints raised in relation to his provision of legal services, Fiona Moore confirms “Many consultations and meetings took place between Mrs Collins and counsel which we [Drummond Miller] were not party to.” – blowing apart claims by Campbell to the SLCC he had no relationship with Ms Collins.

However, Fiona Moore then goes on to state to Simpson & Marwick “I trust this assists and that the complaint is successfully defended. If you require anything further, please do not hesitate to contact me.”

The tone of Fiona Moore’s letter raises serious questions over Drummond Miller’s relationship with their own client, Mr Nolan and the law firm’s apparent willingness to engage in a concerted attempt to thwart investigation of the complaints against the QC.

The firm’s willingness to side with their legal colleague came even though all parties had been aware Campbell was regularly breaking Faculty rules and ostensibly wanted to control the case on his own rather than use proper channels of solicitor, Edinburgh agents to speak to his client.

It has also been pointed out Drummond Miller frequently appear in the Court of Session for clients – and would easily have been aware of the identify of Lord Malcolm, who is reported to have heard the Nolan v Advance Construction (Scotland) Ltd case no less than eight times, while failing to declare a conflict of interest.

Yet when asked questions as to why Drummond Miller did not alert their client – Mr Nolan – to any potential conflict of interest between Lord Malcolm and the solicitor who represented the defenders – his son – Ewen Campbell, Drummond Miller partner Fiona Moore refused to comment.

With the complaints file now being available for study and full publication – there is a possibility of further complaints against Craig Murray and other legal agents involved in the case who sought huge fees and legal aid for their work being made to legal regulators.

A recent attempt to illicit comment from John Campbell QC failed, marking a consistent line of silence from the senior QC in response to questions from the press.

Asked for a comment, the Scottish Legal Complaints Commission said it would give no further statement to the press on this case.

The Faculty of Advocates have also refused to speak to the press on Mr Campbell’s actions and their previous investigation which it has since been confirmed relied on a second, highly edited version of written evidence given by fellow Advocate Craig Murray – which Murray now contests ever existed.

Journalists are now studying a series of damning environmental reports from Court of Session papers – which accuse North Lanarkshire Council, and two construction companies – Advance Construction (Scotland) Ltd and Graham Construction Ltd of being responsible for the dumping of contaminated material at Branchal.

The investigation has so far revealed John Campbell QC had sight of the material but failed to make proper use of the damning reports – raising concerns he was not presenting the full facts of the case as instructed by his client.

The reports – due to be published by the press in full – also raise serious questions about the conduct of Scotland’s environmental regulator – the Scottish Environment Protection Agency (SEPA) – whose failures in this case could not be categorised as ‘accidental’.

“The National” newspaper carried an exclusive investigation into the Nolan V Advance Construction Ltd case, here: Couple’s human rights breach claim raises questions about how judicial conflicts of interest are policed. The newspaper’s investigation revealed there are moves to take an appeal to the UK Supreme Court at a date to be decided.

BURNING QUESTIONS: QC fails to answer queries from Media

The QC at the centre of the cash for services scandal – John Campbell QC has consistently refused to talk to any media.

Campbell’s silence comes after publication of his own communications revealed the senior QC demanded sums of £5,000 at a time be paid to him in cash or cheque form – a breach of the rules as laid down by the Faculty of Advocates.

Journalists put the following questions to the senior QC, however John Campbell failed to reply to all requests for comment.

1. In a letter dated 5th of June 2014 sent to the SLCC you state to the SLCC that you had no professional relationship with Mrs Collins who is Mr Nolan’s partner. Any comment on this?

2. In a letter sent to Simpson Marwick dated 9th of October 2014 from Fiona Moore she states clearly that as you are no doubt aware , the case was in any event being run by Melanie Collins, Mr Nolan’s partner and that it was she who gave all the instructions in the case. This is clearly at odds with what you state to the SLCC. Any comments on this?

3. Returning to your letter to the SLCC you state you did not act without instructions    Who gave you these instructions? Any comment on this?

4. Copy correspondence also received from the instructing solicitor to Ms Collins clearly states no instructions were ever given by him to remove this part of the claim. Drummond Miller also state they gave no instruction to drop any part of this claim. Any comment on this?

5.It is clearly evidenced by court transcripts that Mr Woods of DMHall was only in court to speak to productions D5 and D 10 which were valuations he prepared for the Heritable Creditor the Clydesdale Bank and nothing else. Any comment on this?

6. Again in your letter to the SLCC page 2 you state the decision to proceed without the blight claim was fully explained to Mrs Collins, Mr Nolan and Mr Falls when in fact I have now been passed an audio tape recording where you clearly state you removed this claim yourself without any instructions. Any comment on this?

7. Lastly, the emails you sent to Ms Collins asking for collections of £5k in fees at a time, again you stated you had no professional relationship with Ms Collins yet frequently broke Faculty rules by demanding collection of fees in cash to be provided by her. How can it be you claim no professional relationship with Ms Collins yet seek to engather fees? Any comment?

DO you have a complaint with the Scottish Legal Complaints Commission or Faculty of Advocates?

What is your experiences of dealing with the SLCC or the Faculty? Has your solicitor, advocate or QC demanded cash payments from you at any stage of a civil or criminal case? Tell us more about it in confidence, by email to scottishlawreporters@gmail.com

 

JUDICIAL CAPITAL: Court clash over £400m Heather Capital collapse reveals suspended judge received £200K from Gibraltar law firm involved in £28.4m offshore cash transfers

Court hears Sheriff received £200K from law firm. DETAILS of a £200,000 payment made to a suspended Scottish judge have emerged in a court clash between liquidators of the collapsed £400m Heather Capital Hedge Fund & Glasgow based law firm Levy & Mcrae – who are being sued for £28.4million in relation to transfers of cash to offshore companies.

In an opinion issued by Lord Woolman at the Court of Session, it was revealed suspended Sheriff Peter Black Watson (61) – a former partner in Levy & McRae – received £200,000 from the client account of Hassans – a Gibraltar based law firm on 23 December 2008.

The payment to the suspended Sheriff came to light in court documents which also revealed a trail of cash transfers from Levy & Mcrae to offshore companies based in Panama, Monaco & Gibraltar.

The court also heard Gibraltar based Hassans- acted in the transfer of funds to companies incorporated in Gibraltar that were owned or controlled by Gregory King – who launched Heather Capital in 2004.

Details from the court opinion further revealed “One of the transactions concerned a company called Westernbrook Properties Limited. On 4 January 2007 the sum of £19 million was paid into the first defender’s client account. It was paid out 5 days later to an account with HSBC Private Bank in Monaco held by a Panamanian company. On 24 January the sum of £9.412 million was paid into the first defender’s client account. It was paid out on 28 March to the client account of Hassans.”

Liquidators of the now defunct hedge fund contend Heather Capital was defrauded of a sum of about £90 million. The court also heard claims Levy & McRae provided “dishonest assistance” to Heather Capital’s founder – Gregory King – now based in Spain.

Paul Duffy of Ernst & Young – who are handling Heather Capital’s affairs – is demanding  £28.4million from Levy & McRae, Mr Watson and other partners of the firm

During the hearing, legal agents acting for the liquidators also sought to obtain an order requiring suspended Sheriff Watson to disclose his involvement with Heather Capital.

However, Lord Woolman refused the request, expressing fears that granting the order would ‘encourage litigation’.

Lord Woolman said in his opinion: “I decline to do so. The details of insurance are a private matter between the insured and insurers. There are major questions involved in disclosure, including the likelihood that it would encourage speculative ‘deep pocket’ litigation.”

Since 2010, Ernst & Young have been battling to recover investors cash from the demise of Heather Capital.

In court documents filed in the Isle of Man as part of a negligence claim against accountants KPMG over their role in Heather Capital – it is claimed Heather Capital were operating a Ponzi scheme to dupe investors.

Documents allege that as early as 2006, senior KPMG staff feared Heather Capital “may have been perpetrating a fraud”.

And in August 2007, KPMG employee Raymond Gawne told a colleague that he was “very uncomfortable” acting for the fund which “may have acted in a criminal manner”.

The claim also alleges that millions of pounds of loans passed through the client account of Glasgow lawyer Frank Cannon who acted for Heather.

KPMG senior executive David McGarry sent an email to Gregory King stating: “Frank Cannon has been uncooperative, either in providing some form of explanation for all of the security documentation prepared by his firm, or in agreeing to facilitate access to Cannon’s clients’ money account”.

In July 2011, the Scottish Crime & Drug Enforcement Agency obtained search warrants to recover material from the Glasgow based Cannon Law Practice – run by Frank Cannon – as part of an investigation into the alleged embezzlement of millions of pounds of cash. Much of the allegedly stolen money passed through Cannon’s client account.

The move by Police followed a financial audit of Cannon’s Law Practice – conducted by the Law Society of Scotland in 2010, during which it was discovered millions of pounds had passed through Cannon’s client account in relation to a series of offshore transactions involving their client – Gregory King, a director of Mathon Ltd & Heather Capital.

It is unknown at this time if the Law Society of Scotland have conducted any financial audit of law firms mentioned in the latest court proceedings – where it is alleged tens of millions of pounds have passed through client accounts to offshore companies.

A report from Police Scotland naming Gregory King, Andrew Sobolewski, Andrew Millar & Scott Carmichael is still being considered by the Lord Advocate Frank Mulholland & Scotland’s Crown Office. However, no decision has yet been made public on the case since the Crown Office confirmed it was considering Police reports filed with prosecutors some time during 2014.

SHERIFF, SUSPENDED:

Peter Black Watson (61) – a partner in Levy & Mcrae at the time of the transactions – was suspended from judicial position of Sheriff by Scotland’s top judge Lord Brian Gill earlier this year – after an investigation by the Scottish Sun newspaper prompted the Lord President to demand sight of a multi million pound writ against Glasgow law firm Levy & Mcrae.

As no register of interests for members of Scotland’s judiciary currently exists, top judge Lord Gill was unaware of Sheriff Watson’s involvement in Heather Capital until the Scottish Sun newspaper contacted the Judicial Office directly.

Watson offered to temporarily step aside from his judicial duties – while the litigation concluded – however a spokesperson for the Judicial Office told the media: “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.”

A statement from the Judicial Office for Scotland read: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings. Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter. Having been shown the summons, 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. Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

Watson – who remains suspended from the judicial bench, was a director of Mathon Ltd – a key part of the Heather empire. The suspended Sheriff who now works out of PBW Law, also held shares in Aarkad PLC – a company based in the Isle of Man which channelled money into Heather Capital.

Watson was also a director of a “King & Company” – a Private Bank set up by Gregory King in Gibraltar. However, Gibraltar’s Financial Services watchdog revealed the banking license application for “King & Company” was withdrawn after two years in 2010.

In his capacity as a solicitor, and during the time Watson acted as a Sheriff – his clients included former First Minister Alex Salmond, former Rangers owners Sir David Murray, ex-Glasgow City Council leader Stephen Purcell and former Lord Advocate Elish Angiolini.

The full opinion from Lord Woolman in the latest round of litigation in the Heather Capital case at Scotland’s Court of Session:

OUTER HOUSE, COURT OF SESSION [2015] CSOH 115: CA207/14

NOTE BY LORD WOOLMAN

In the cause

HEATHER CAPITAL LIMITED (IN LIQUIDATION) Pursuers; against

LEVY & McRAE AND OTHERS Defenders:

Pursuer:  Lord Davidson of Glen Clova QC;  Shepherd & Wedderburn LLP
Defenders:  Clark QC, J Brown;  Simpson & Marwick
14 August 2015

Introduction

[1]        Heather Capital Ltd (‘HC’) was incorporated in the Isle of Man in 2005.  Prior to its liquidation in 2010 it had received investments exceeding $400 million. The present action has been raised in its name by the liquidator. The first defender is the firm of Levy & McRae. The other defenders are eight individuals, who were partners in the firm in the period from 1 January 2007 to 31 December 2008.

[2]        The liquidator contends that the company was defrauded of a sum of about £90 million. The scheme involved the transfer of funds to companies incorporated in Gibraltar that were owned or controlled by one of HC’s directors, Gregory King.  A firm of solicitors in Gibraltar, Hassans, acted in these transactions.

[3]        According to the liquidator, in early 2007 HC’s auditors raised queries about these transactions.  Subsequently, Mr King sought to conceal their true nature.

[4]        One of the transactions concerned a company called Westernbrook Properties Limited. On 4 January 2007 the sum of £19 million was paid into the first defender’s client account.  It was paid out 5 days later to an account with HSBC Private Bank in Monaco held by a Panamanian company.  On 24 January the sum of £9.412 million was paid into the first defender’s client account.  It was paid out on 28 March to the client account of Hassans.

[5]        On 23 December 2008 a payment of £200,000 was made to the eighth defender, Mr Peter Watson, from Hassans’ client account.

[6]        The liquidator pleads that HC was the client of the first defender at the material time. Accordingly, the defenders owed HC certain fiduciary duties, together with an obligation to exercise the knowledge, skill and care of reasonably competent solicitors.

[7]        It is also important to notice the terms of the pursuer’s ninth plea-in-law. It states:

“the pursuer having suffered loss, injury and damage by reasons of the defenders’ dishonest assistance of Gregory King in the latter committing breach of his fiduciary duties owed to the pursuer … decree should be pronounced”

[8]        The liquidator seeks to recover the sum of £28.4 million from the defenders. He intimated the claim on 23 June 2013.  There followed extensive pre-action correspondence before the summons was served on 23 October 2014. During that period, the liquidator did not request clarification of the membership or constitution of the firm of Levy & McRae as it existed from time to time.

[9]        The summons called on 10 February 2015.  The defences were lodged a week later. They stated that three of the defenders had been wrongly convened, because they had been assumed as partners after June 2007.  They are Mr Alasdair Gillies (1 July 2007), Mr Andrew Sleigh (1 December 2008), and Mr Gary Booth (1 January 2011).

[10]      The defenders raised this matter at the preliminary hearing on 5 March, and the continued hearing on 8 May. They said it involved significant reputational damage to those three individuals. They asked for early disposal of this discrete issue.

[11]      I fixed a hearing to take place on 13 August.  About a week before the hearing, the liquidator enrolled a motion to allow a minute of amendment.  It sought to add five further individuals as defenders, on the footing that they had been partners in the first defender in the period from 4 January 2007 to date.

[12]      The liquidator gave the following reasons in support of his motion:

“The pursuer’s agents wrote to the agent for the defenders on 7 May 2015 and 7 July 2015. In those letters, the pursuer’s agent requested:

    confirmation that the defenders had adequate insurance cover in place to meet the pursuer’s claim if it was successful;
copies of the partnership agreements for each defender that the defender’s agents maintain have been wrongly convened; and
details of each defender’s capital contribution to the firm

The defenders have failed to provide any of this information to the pursuer. The pursuer has identified a further 5 current and former partners of the firm who require to be convened.

Without confirmation that the defenders have sufficient insurance cover, or evidence as to why the defenders do not incur personal liability (which depends on the circumstances of each case), the pursuer seeks to convene these partners and former partners to the action as they may be jointly and severally liable for the debts of the firm.” (emphasis added)

Liability of new partners

[13]      The liability of new partners is governed by section 17(1) of the Partnership Act 1890:

“A person who is admitted as a partner into an existing firm does not thereby become liable to the creditors of the firm for anything done before he became a partner.”

[14]      In their Joint Consultation Paper on Partnership Law (2000), the Law Commission and the Scottish Law Commission state in relation to Scots law (at 10.65):

“Where the business taken over is substantially the same as the old firm, and where that business is continued without interruption, there appears to be a general presumption that the new partnership takes over the whole liabilities as well as the assets.”

[15]      Lord Hodge considered this point in Sim v Howat & McLaren [2011] CSOH 115 at [31]:

“The presumption does not arise unless there are facts and circumstances which bring it into play. The continuation of substantially the same business without interruption is necessary for the presumption.”

He suggested a number of other relevant facts and circumstances. They included whether the new partner had made a substantial capital contribution, whether he had paid or acknowledged any of the prior debts, and whether separate accounts were kept for the new and the old firm.

[16]      Lord Hodge determined at paragraph [29] that the appropriate test was whether a new partner had “accepted liability either expressly or tacitly” for the claim.

[17]      Who is responsible for averring those facts and circumstances? The answer is clear. In Thomson Balfour v Boag & Son 1936 SC 2 Lord Fleming stated (at p16) that “it was for the pursuers to prove” that a new partner had accepted liability for the debts of the old business.

[18]      Similarly in Miller v Macleod 1973 SC 172 Lord Justice Clerk Wheatley stated (at p183):

“whether in the circumstances the pursuer has established by presumption or by proof of facts and circumstances that the new firm agreed to adopt the old debts and become liable for them. Of course, the establishment of the presumption itself is dependent upon sufficient facts being proved to sustain it, and this in my opinion entitles the Court to look at all the facts, whether they occurred before, at or after the establishment of the partnership.”

[19]      In the present case, the liquidator does not offer to prove such facts and circumstances.  Instead, he states in condescendence 1:

“the defenders have been called upon, but failed, to provide to the pursuer the evidence (including a copy of the relevant partnership agreement(s) and copies of the accounts showing capital contributions made by the partners joining the partnership after December 2008) that any new partners who joined the partnership of Levy & McRae have not, in fact, undertaken liabilities of the partnership which were in existence prior to them joining. Accordingly, all the defenders are properly convened.”

[20]      In my view, that averment fails to satisfy the test identified by the Inner House. There are no averments that would allow the liquidator to lead evidence that the three individuals either expressly or tacitly agreed to take over the existing liabilities of the previous firm.  It does not set out the basis upon which the three individuals are convened. Instead it inverts the normal rule that the pursuer must plead his case.

[21]      Given the serious nature of the allegations and the size of the claim, the liquidator required to identify the basis upon which each defender had been convened.  He also had to differentiate between the acts of those individuals who had been partners at the material time and those who had been assumed after 2007.

[22]      I shall therefore sustain the defenders’ first plea-in-law to the extent of dismissing the case, so far as laid against the third, sixth and seventh defenders.

[23]      In doing so, I observe that on 25 March, the defenders’ solicitors wrote three separate letters to the pursuer’s solicitors and stated:

“In terms of his partnership agreement, no obligation was imposed on [the relevant defender] in respect of acts or omissions prior to his assumption, nor did he provide any indemnity in respect of such matters.”

Minute of Amendment

[24]      In the minute of amendment, the pursuer seeks (a) to alter the dates for the partners called as defenders to 4 January 2007 to date; and (b) to add five individuals, all of whom have been partners of Levy & McRae at some stage in that period. The relevant dates are as follows: Anne Bennie (2000 – 2008), Calum Anderson (1 July 2014) Laura Salmond (3 November 2014), Graham Craik (5 January 2015), and Stephen Hay 2007 (c6 months in late 2007).

[25]      The minute does not include any substantive averments to indicate the basis upon which these individuals are said to have taken over prior liabilities.  Accordingly, for the same reasons as given in relation to Messrs Gillies, Sleigh and Booth, I refuse to allow receipt of the minute.

[26]      The pursuer has had ample opportunity to investigate the position. Standing the very serious nature of the allegations, and the absence of a proper basis for seeking to add the five individuals as partners, I hold that it is not in the interests of justice to follow that course.

Disclosure of the Insurance Position

[27]      The pursuer seeks an order requiring the defenders to answer questions about the insurance position.  First, will the policy cover the claim?  Second, have the defenders notified a claim to insurers?  Third, have the insurers accepted the claim?

[28]      At the May hearing, the pursuer’s then senior counsel accepted that he was not entitled to ask for that information.  Lord Davidson, however, explained that the application had been made to elide the difficulty of identifying the correct defenders.  If the claim is covered by insurance, then that issue is much less important.

[29]      There is no Scottish authority in point.  In England the matter has been considered in the context of the court’s powers under the Civil Procedure Rules.  In West London Pipeline & Storage Ltd v Total UK Ltd [2008] EWCH 1296 (Comm), David Steel J refused to allow disclosure, although he also stated at [30]:

“The trend is strongly towards a more open approach to litigation. Albeit the potential for prejudice to the defendant and his insurers must be borne in mind, in the modern age of ‘cards on the table’ the question is readily posed why should not the one factor which may be key to a claimant’s view of the merit of pursuing a claim, namely what is the limit of cover and will the costs eat it up anyway, be known?”

[30]      In XYZ v Various [2013] EWHC 3643 (QB) Thirwall J ordered very limited disclosure to demonstrate that the defendant had sufficient insurance to fund its participation to the end of the trial.  The Court of Appeal has indicated that the matter is not free from doubt: Dowling v Griffin [2014] EWCA Civ 1445.

[31]      Lord Davidson suggested that I could use the wide powers contained in rule of court 47 to order disclosure.  I decline to do so. The details of insurance are a private matter between the insured and insurers.  There are major questions involved in disclosure, including the likelihood that it would encourage speculative “deep pocket” litigation: West London at [30].

Further Procedure

[32]      I shall allow a further period of ten weeks for open adjustment, with the qualification that all substantive adjustment should be completed within eight weeks.

[33]      That lengthy period is justified by three factors.  First, there have been recent extensive adjustments to the pleadings. Second, a hearing is due to take place before the Supreme Court of Gibraltar on 24 September in respect of a Letter of Request to recover the files of Hassans.

[34]      Third Lord Tyre has reserved judgment following a recent debate in similar proceedings raised by the liquidator against Burness Paul. Mr Clark said that the decision may have a significant bearing on the present action, as the arguments on prescription and loss are very similar.

[35]      Having regard to that third factor, I shall also fix a diet of debate.  Mr Clark estimated that it would last three days. Apart from the plea of prescription, the defenders mount eleven separate challenges to the relevancy of the pursuer’s averments.

[36]      If the defenders are successful and obtain dismissal, that may save each party a considerable sum of money. Mr Clark estimated that a proof before answer would last about six weeks and cost each side several hundred thousand pounds.

Request for a witness statement from Peter Watson

[37]      The pursuer asks the court to ordain Mr Watson to provide a witness statement to explain the circumstances in which the sum of £9.5 million was paid to Hassans and the purpose of the payment of £200,000, made to him from Hassans’ client account on 23 December 2008. The pursuer seeks the statement to make his own averments “more pointed”.

[38]      I would be slow to order one witness to produce a statement in advance of the other statements. I find no compelling reason in this case to depart from the normal rule that there should be a simultaneous exchange of witness statements.  I therefore refuse the application.