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Master Scam: Law Society switch brokers of Master Policy – insurance scheme dubbed ‘corrupt & manipulative’ provides little protection for consumers against negligent, rogue lawyers

Law Society switch brokers on dodgy insurance scheme. AN INSURANCE scheme operated by the Law Society of Scotland – which covers all Scottish solicitors – and is designed to ‘protect’ consumers when lawyers walk off with their cash and other assets – has announced a change of brokers from Marsh to Lockton.

The switch was announced last week by the Law Society – who said brokers Lockton will administer and broker the Master Policy of Professional Indemnity Insurance from 1 January 2017.

The move comes after Marsh – who managed the policy for nearly 40 years – lost the five yearly tender process in April 2016 to Lockton.

The Master Insurance Policy is a compulsory Professional Indemnity Insurance arrangement enforced by the Law Society upon all solicitors in Scotland.

The scheme includes all in-house solicitors who work for the Scottish Government and lawyers from the Government Legal Service for Scotland (GLSS) seconded around public bodies and other branches of the Executive such as the Scottish Parliament and justice bodies.

The Master Policy claims to provide cover of up to £2 million for any one claim where the solicitor is ‘established’ to have been negligent.

However, the process of establishing whether a solicitor is negligent or not – is controlled by the legal profession and the courts.

In a statement issued by the Law Society, Chief Executive Lorna Jack claimed “The Master Policy provides an important protection for solicitors’ clients when things go wrong. The insurance means that any valid claim against a Scottish solicitor will be paid – even if the solicitor is no longer in practice, no longer solvent or cannot be traced.”

However, the claims – echoed from Jack’s predecessor – Douglas Mill – were previously & spectacularly taken apart by Deputy First Minister & Finance Secretary John Swinney, during a Scottish Parliament investigation into self regulation of the legal profession in 2006.

Mr Swinney branded the Law Society & Master Policy as manipulative after Mill claimed the Law Society kept a distance from the client compensation insurance arrangements.

Mr Swinney produced an internal memo from Mill himself – who had requested a “summit meeting how to dispose of several valid claims.”

Mill went onto “swear on his granny’s grave” he and the Law Society had never intervened in a compensation claim.

However, the memo – produced by Swinney during the Holyrood hearing – came to illustrate the significant level of dishonesty and  manipulation with regard to the ‘consumer protection policy’ – which despite Mill’s claims to the contrary – rarely pays full compensation after lawyers swipe clients assets.

The Master Policy was more recently linked in a Research Report to deaths and suicides of clients who attempted to claim back hundreds of thousands of pounds taken by legal agents engaged in corrupt practices not covered by an alternative Scottish Solicitors Guarantee Fund run by the legal profession.

The independent report, compiled by legal academics Professor Frank Stephen & Dr Angela Melville from the University of Manchester School of Law – concluded the Master Policy “is simply designed to allow lawyers to sleep at night.” rather than protect consumers from rogue elements within the legal profession.

According to the report “claimants described being intimidated, being forced to settle rather than try to run a hearing without legal support, and all felt that their claims’ outcomes were not fair. Some claimants felt that they should have received more support, and that this lack was further evidence of actors within the legal system being “against” Master Policy claimants. Judges were described as being “former solicitors”, members of the Law Society – and thus, against claimants. Some described judges and other judicial officers as being very hostile to party litigants.”

Cases referred to in the report describe scenarios where consumers are commonly forced to become party litigants after the Law Society intervene in the claims process, forcing claimants legal representatives to withdraw from acting in financial damages claims against  against other solicitors.

The Research Report sourced comments from claimants: “I keep fighting cases, and they keep coming at me, and now I have become ill. But they still keep coming at me. They threw me out onto the street, I couldn’t get my medication, I’ve got nothing, I was homeless, ill, sleeping in the car. Now I am appealing. But I can’t get a solicitor. They are just shutting me down…. My health has been damaged, they kill you off. It’s a proven fact. All of us have stress related problems after years and years of stress.”

The report also linked the Law Society’s insurance scheme to suicides of clients who attempted to claim back funds appropriated by corrupt solicitors.

The report stated:  “Several claimants said that they had been diagnosed with depression; that they had high blood pressure; and several had their marriages fail due to their claim. Some had lost a lot of money, their homes, and we were told that one party litigant had committed suicide.”

The report concluded: “What has clearly come through these interviews has been the very divergent views of solicitors and claimants/consumer groups as to the primary function of the Master Policy. The former tend to see it as simply a professional negligence insurance designed to protect individual members of the profession. The latter see that its primary purpose should be to protect the public against incompetent members of the profession. Whilst these are not incompatible aims we have come to the view that the rhetoric of the Law Society of Scotland encourages the latter perception but practice is more inclined to the former. In other jurisdictions there is a more explicit statement that it is the former.”

“It is clear that establishing a valid claim under the Master Policy requires either an admission of liability on the part of the solicitor or an action to be taken by the claimant to establish liability. It is our view that the Law Society of Scotland raises the expectations of potential claimants by emphasising the Master Policy’s public protection role. It is perhaps more accurate to say that policy ensures that those with a proven claim will be able to recover.”

“Those claimants to whom we spoke were very much of the opinion that it was difficult to establish liability of a solicitor for professional negligence. It would be desirable to test this claim by looking at the record of the Master Policy in terms of claims and compensation paid. Data which would have allowed us to do this was requested from the Law Society of Scotland but was only made available the day before this Report was due to be submitted. Furthermore the Law Society of Scotland and Marsh put conditions on the use of the data in this Report which were unacceptable to us and to the Chief Executive of SLCC.”

“The limited data which we have seen on the Guarantee Fund suggests that there is a considerable difference between the value of claims and the sums paid out by the Fund. We have not been able to establish whether this is a result of the discretionary nature of the fund or simply a large divergence between parties in assessing the sums lost.”

“We would recommend that the Scottish Legal Complaints Commission undertake a longer term research project which will allow researchers to examine the experiences of a representative sample of claimants and solicitors as well as analyse data on claims provided by the Master Policy’s broker under reasonable conditions of use.”

Dr Angela Melville – who interviewed many clients for her final report, confirmed the research team did not receive a copy of the Master Policy itself after Marsh director Alistair J Sim, demanded strict conditions for the disclosure of the insurance policy’s terms.

Sim wrote in a letter to the University research team – which appears in full on the last page of the report: “Please note that the consent of Marsh and Royal & Sun Alliance plc to the production of the enclosed documents is condition on the research team agreeing not to quote from the documents, or any part of them, whether text or figures, in the report to the Scottish Legal Complaints Commission.”

Sim’s letter continued: “The documents which are produced are confidential and are commercially sensitive. They are provided to the research team only and neither the documents nor copies should be provided to any other party nor should the content of the documents be disclosed to anyone outside the research team. At the conclusion of the research project, the documents should be returned with confirmation that foregoing conditions have been complied with and that no copies have been retained. If the research team is unable to agree to the foregoing conditions, the documents should be returned along with confirmation that no copies have been retained.”

No further research has been commissioned by the Scottish Legal Complaints Commission since the report was published in 2009, and with the SLCC now under substantive control of the Law Society of Scotland, much of what it produces by way of research and statistics is widely recognised as having little honest value in terms of consumer protection.

The Master Policy started in November 1978 under brokers Sedgwick Forbes UK Limited, which later became part of the Marsh Group. Given the highly specialist nature of professional indemnity insurance, the brokers play a vital role in arranging and securing the insurance cover as well as providing administration, advice, as well as risk management training.

Along the years, law firms acting for the Master Policy included Simpson & Marwick – now merged with Clyde & Co, Balfour & Manson and other ‘big name’ law firms brought in to demolish consumers attempts to reclaim millions of pounds lost, misappropriated or embezzled by Scottish solicitors.

While the Master Policy is tasked with dealing with claims for negligence, the Law Society has been known to manipulate claims on a serial basis. Unsurprisingly, even claims which do succeed against the Master Policy bear little return to clients who are forced to go through lengthy court processes in front of a judiciary who have also previously paid into the same Master Policy arrangement while serving as solicitors in their earlier years prior to the bench.

 

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GONE MEDIATIN’: Pro-lawyer legal regulator loses another CEO as Matthew Vickers leaves Scottish Legal Complaints Commission for Ombudsman Services role

Matthew Vickers, CEO of law regulator resigns for mediation post. TROUBLED regulator of solicitors – the Scottish Legal Complaints Commission (SLCC) has announced the resignation of yet another Chief Executive – Matthew Vickers – who steps down in March 2015 for a post in the world of big business mediation.

Mr Vickers, who took on the CEO role at the SLCC during summer of 2012 after the ‘independent’ regulator had lost several bosses over a four year span – is leaving to take up the post of Deputy Chief Ombudsman at Ombudsman Services – a not-for-profit organisation which provides independent dispute resolution for the communication, energy and property sectors.

Commenting on the resignation SLCC chair, Bill Brackenridge said: “We are grateful to Matt for his leadership and contribution since he joined the SLCC as CEO in June 2012. He and the management and staff have worked hard to make the SLCC a more efficient, effective and influential organisation. We are now well established as an independent and impartial body. Of course, we recognise that there is a great deal of work to be done and we have started our search to find a CEO who will help us to tackle it.”

The overly pro-lawyer, anti-consumer SLCC – frequently accused of bias towards solicitors over poor handling client complaints has cost clients a staggering £18 million since it was created in 2008 with an extra £2million of taxpayers money handed over by the Scottish Government.

The cost of running the SLCC is  met by a complaints levy of around £300 a year, paid by solicitors who then go on to recover the levy through hikes in legal fees to clients.

In the eight years since the SLCC has existed, not one rogue solicitor or law firm has been named & shamed by the poorly constituted regulator – once touted as the key to cleaning up the poor and often corrupt reputation of legal services in Scotland.

Over the years, the regulator has been subject to numerous scandals, ranging from board members drunken jibes against victims of rogue lawyers, to accusations it failed to use powers to monitor damages claims made in the courts by financially ruined clients against the Law Society’s Master Insurance Policy.

A report commissioned by the SLCC on the Master Policy revealed clients were not getting a fair deal from the Law Society’s ‘crooked lawyer’ compensation scheme, and that clients had committed suicide after not being able to repair the damage to their lives caused by their solicitors. However nothing has been done by the SLCC on this matter since the report came out in 2009, reported here: Suicides, illness, broken families and ruined clients reveal true cost of Law Society’s Master Policy which ‘allows solicitors to sleep at night’

The SLCC’s latest annual report for 2013-2014 claimed the regulator had awarded a record £365K in compensation to clients who filed complaints about rogue Scots lawyers.

However an analysis of the figures revealed the SLCC only used its powers to nullify fees to clients on two occasions in the past year, raising questions as to why the Scottish Legal Complaints Commission continues to solicitors found guilty of providing poor legal services to demand fees from clients even after ruining their legal interests.

REVOLVING DOOR OF LEGAL REGULATOR CHIEFS:

The post of the SLCC’s Chief Executive has seen considerable controversy since the legal quango was created in 2008. Now, eight years on and five Chief Executives later, the SLCC is looking for another boss to steer it through troubled waters and continuing accusations of pro-lawyer bias.

mkmc slcc openingMacAskill as Justice Secretary backed huge secret payoff for ‘too ill to work’ former Chief Executive. The SLCC’s first ‘appointed’ Chief Executive – Eileen Masterman – held the role for less than a year, negotiated a secret, substantial payoff backed personally by the Justice Secretary Kenny MacAskill, and resigned from her role at the SLCC on grounds of “ill health”. Eileen Masterman then returned to work for her former employer – the Scottish Public Services Ombudsman (SPSO) as a “complaints reviewer”, and was accused of whitewashing the circumstances of the death of a baby at the NHS Forth Valley Hospital – reported by Diary of Injustice & the Sunday Mail newspaper here : Deputy First Minister to look into death of baby McKenzie Wallace after parents complain of ‘whitewash’ report by SPSO investigator Eileen Masterman

The SLCC’s first Chief Executive – civil servant Richard Smith – resigned from the role after disagreements about how the SLCC would act as a regulator. Mr Smith was then replaced by another civil servant before Mrs Masterman was eventually appointed as the first ‘official’ CEO.

Concluding a turbulent few months which saw exchanges of letters between current Deputy First Minister John Swinney and Masterman over claims and counter-claims about the Master Policy – reported here: SLCC’s Eileen Masterman resigns, questions remain on attempt to mislead Cabinet Finance Chief John Swinney over secret meetings with insurers Marsh’ Masterman stood down from the SLCC – which by that time had suffered significant reputational damage.

After a speedy recruitment round, Rosemary Agnew then became the SLCC’s fourth Chief Executive, reported here: The £80K job no-one wants : Lawyers lobby seek FIFTH time unlucky Chief Executive for Scottish Legal Complaints Commission role. However Ms Agnew later resigned to take up the post of Scottish Information Commissioner in early 2012.

The SLCC’s current and now outgoing CEO Matthew Vickers took on the role in June 2012, reported here: “Customer Service” main focus for Ex-Foreign Office Consul taking over as FIFTH Chief Exec at ‘anti-consumer’ Scottish Legal Complaints Commission.

 

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LUCAN FOR HIM: Law Society repeatedly refused BBC Scotland access to ‘key player’ Regulation Chief for in-depth investigation report on rogue solicitors

Non appearance of top Law Society regulation boss in BBC investigation questioned QUESTIONS have been raised as to why Philip Yelland, the little known figure in charge of regulation of Scotland’s solicitors for the past two decades was not allowed to appear on Lawyers Behaving Badly, the recent BBC Scotland investigation on systemic failings in how the Scottish legal profession regulates itself and how lawyers have regularly escaped justice and continue to benefit from publicly funded legal aid.

In response to media enquiries, sources at the Edinburgh HQ of the Law Society of Scotland have confirmed that repeated requests from BBC Scotland for access to the society’s Director of Regulation were refused by Law Society chiefs who were determined there should be no access to, or any appearance by the twenty plus year serving head of regulation in the BBC programme.

Substituting for the Director of Regulation, the Convener of the Law Society’s Regulation Committee, Carole Ford was instead, interviewed on the powerful BBC programme broadcast last week.

However, while Ford’s performance was expectedly praised in some legal quarters, some legal experts, clients, and those who have experienced the ‘alice in wonderland’ world of how the legal profession regulates itself felt the Committee Convener was a poor substitute, and appeared to have little grasp as to the realities of how the system works, and how paying clients are treated by lawyers who regularly cover up for their own colleagues.

While many expected Mr Yelland to be part of the BBC investigation, there are numerous reasons as to why the one person in legal regulation circles who has been involved in many of the controversial and highly public cases involving solicitors escaping penalty for their actions over the past twenty years did not appear on the highly acclaimed undercover investigation by BBC journalist Sam Poling.

The Law Society’s reluctance to allow Mr Yelland’s appearance in the BBC programme may well stem from the unfortunate demise of the Society’s former Chief Executive Douglas Mill, who resigned a few weeks after the Law Society’s Council viewed and debated video footage posted to video sharing website You Tube of Mill’s angry confrontation at a Holyrood Justice Committee hearing with John Swinney, Scotland’s Finance Chief.

During the Justice Committee hearing in 2006 which formed part of the Scottish Parliament’s second, ill-fated attempt to clean up regulation of the legal profession, the former Chief Executive was caught out by the Scottish Parliament’s video coverage of the hearing when he argued with the SNP Finance Chief that the Law Society’s Master Policy, the insurance scheme which protects corrupt lawyers from clients, was fair, and that there was no collusion between figures at the Law Society and the insurers to throw out financial damages claims made by clients.

However, Mr Swinney, a skilled debater himself, trounced the then pugnacious Law Society Chief on all points, leaving the public with little doubt the Master Policy Insurance client compensation scheme run by the Law Society of Scotland is unfair and claims made by clients for damages are clearly subject to concerted and determined manipulation at the highest levels of the Law Society and the legal profession.

The footage featuring Mill’s Holyrood confrontation with John Swinney was first posted to the You Tube video sharing website in late December 2007. Mill, who superseded the equally controversial Kenneth Pritchard as Secretary of the Law Society of Scotland in the early 1990’s, then going on to become the Society’s Chief Executive and expected by many to remain in the position for a lengthy period of time, resigned a few weeks later in January 2008.

The confrontation between the former Law Society Boss and Scotland’s now Finance Chief, has since become a warning to how Law Society figures used to a closed world lacking any accountability can quickly stumble in public appearances such as the Holyrood Master Policy clash which made it obvious to all that the Law Society was, and remains determined to hang onto self regulation and the power that comes with it, at any cost.

Fears of BBC questions over claims made by clients against solicitors may also have played a part in the Society’s refusal to allow access to its regulation chief.

Academics heard involvement of Regulation Boss was linked to controversial complaints. A case referred to in a Research Report from the University of Manchester School of Law documented allegations in papers which have never been made public that the Society’s long time Regulation Chief was also allegedly linked to a case of a claim involving the Master Policy, where a respected businessman & family man from Oban committed suicide after he was sent to a law firm who have since been identified in a number of cases where dodgy solicitors have escaped justice and even possible criminal charges for legal aid fraud.

The revelations, appearing in papers studied by Professor Frank Stephen & Dr Angela Melville of the Manchester University of Law School in 2009 who were compiling a report on the Master Policy for the Scottish Legal Complaints Commission (SLCC), alleged the businessman from Oban had been sent to a Glasgow law firm to represent him in a court case against his former solicitors.

However the Glasgow based law firm, who have since represented the First Minister himself and a number of controversial figures in the legal world, did nothing for a period of three years and when it was revealed the same law firm who the Law Society’s Regulation Chief had allegedly recommended to the Oban businessman were also representing the Legal Defence Union, the organisation which represents crooked lawyers against complaints, the unnamed client committed suicide.

Against a background of too-numerous-to-mention cases where involvement of the twenty year plus serving Law Society’s Regulation Boss appears to have played a key part in allowing corrupt solicitors to remain in work, Yelland may well have faced difficult questions over his involvement in one of the key parts of the BBC Scotland report aired last week, that of former solicitor Tom Murray, currently living in Lucca, Italy.

Featured in the Lawyers Behaving Badly documentary, Murray, has appeared before the Scottish Solicitors Discipline Tribunal (SSDT) on no less than three occasions, (i) Law Society-v-Thomas Hugh Murray 01/03/2005 (ii) Law Society-v-Thomas Hugh Murray 25/11/2005 and (iii) Law Society-v-Thomas Hugh Murray 10/12/2009.

Former solicitor Murray, who said on the BBC programme during secret filming that if he returned to Scotland he could reapply to be a solicitor again, was found guilty of professional misconduct in respect of misrepresentation, deception and misleading clients including his failure to tell his clients he had been barred from practising as a lawyer. The solicitor who was sequestrated in Scotland in 2001 and continues to avoid any moves by the Law Society to take action against him and recover compensation awarded to his clients.

The case of Murray, and the Law Society’s apparently haphazard pursuit of complaints against him clearly provided fertile ground for difficult questions of Yelland, who has personally signed off on many of the communications to clients who were involved with the former solicitor. Diary of Injustice featured an in depth report on the Law Society’s involvement in the Murray case in an earlier article HERE

In a long, rambling statement attacking the BBC Scotland programme, the Law Society of Scotland made no mention as to why Mr Yelland refused to appear, nor did the Society explain why the one man who can be linked to many of the complaints made against Scottish solicitors which have done significant damage to the image of the profession, did not appear or give an account of his charge over regulation of, and standards in Scotland’s legal profession in the past two decades.

Diary of Injustice has reported on the BBC’s investigation into self regulation of the Scottish legal profession in previous articles here: Lawyers Behaving Badly – a window into the world of lawyers regulating themselves

 

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Dishonest in Name & Nature : Law Society of Scotland announces review of dodgy Scottish Solicitors Guarantee Fund, where clients claiming compensation ‘are made to feel like criminals’

Law Society of ScotlandLaw Society of Scotland to review its own dodgy claims fund. THE Law Society of Scotland has announced a ‘root & branch review’ of the infamously corrupt Scottish Solicitors Guarantee Fund, a fund paid into by all members of the legal profession. The Guarantee Fund, which the society claims will be ‘independently’ reviewed, differs from the equally corrupt Master Policy in that the former pays out for victims of dishonest solicitors, while the latter is supposed to pay out for victims of negligent solicitors.

The Law Society claimed in an announcement its latest “wide ranging and independent review of the compensation fund”, to be carried out independently following an open tender process. will study the purpose of the Guarantee Fund along with the cover and benefits it provides to consumers.  It will also consider the funding and governance arrangements and how these fit with the rapidly changing legal marketplace.  The review is expected to be completed over the next 12 months with a report and recommendations made to the Society’s regulatory committee.

Diary of Injustice has previously reported on how victims of crooked lawyers are poorly treated by the Scottish Solicitors Guarantee Fund, which has a poor track record at honouring its claim to compensate victims of corrupt solicitors : Law Society’s ‘Guarantee Fund’ for clients of crooked lawyers revealed as multi million pound masterpiece of claims dodging corruption

However, in an attempt to counter previous and well publicised evidence against the Guarantee Fund’s integrity, Carole Ford, the non-solicitor convener of the Society’s regulatory committee claimed in a statement issued by the Law Society : “By setting high standards for solicitors and regularly inspecting firms, our first responsibility is to try and prevent problems from arising in the first place.  However, we also need a robust scheme that protects innocent clients when things do go wrong, particularly when clients lose money through no fault of their own and as a result of a solicitor’s dishonesty.”

Ms Ford continued : “For over 60 years, the Guarantee Fund has been a cornerstone of the Scottish solicitor profession, giving assurance to consumers and being funded entirely by solicitors without the use of taxpayers’ money. Maintaining the Fund and considering applications for payments from affected clients are just some of the many ways in which the Law Society works to protect the public interest. However, we know the legal market is changing and changing rapidly.  That is why now is the right time to have a root and branch review of the Fund and consider whether the arrangements put in place by legislation are still effective and appropriate for today.”

Commenting on Ms Ford’s claims, a legal insider retorted :”Well, now you know why financial claims against crooked lawyers have failed for the past sixty years – because lawyers and the Law Society of Scotland have been looking after their own and covering their own backs.”

The latest review of the Guarantee Fund, which has been mired in fraud, controversy and allegations of discrimination against clients who were placed in the unenviable position of having to claim for compensation against their dishonest solicitor, comes after various earlier reports from the powerless Scottish Legal Complaints Commission (SLCC) found the fund lacking in its claims & provisions to pay out when the situation of almost financially ruined clients clearly merited compensation.

Over two years ago in September 2011, Diary of Injustice reported on the SLCC’s last attempt at a report into the Guarantee Fund, here : DISASTER REPORT : Scottish Legal Complaints Commission study of Law Society “Guarantee Fund” suffers 13% turnout, finds clients ‘treated as criminals’

The floundering attempt by Scotland’s ‘independent’, lawyer dominated SLCC to produce a report into the Guarantee Fund was hit by a poor response rate, partly due to the bungled arrangements put in place by the SLCC to research problems of the Guarantee Fund, and arguments between the regulator, the Law Society of Scotland and other lawyers lobby groups.

Report heard Law Society staff made Guarantee Fund claimants feel like criminals. The SLCC’s Report carried out by the SLCC into the Scottish Solicitors Guarantee Fund heard from clients they were made to feel criminals by the Law Society of Scotland staff who controlled the compensation scheme. The SLCC survey was also hit by problems over the arrangements for distribution of the questionnaires, where almost unbelievably, the SLCC were forced to rely on the Law Society of Scotland to distribute the forms themselves, after refusing to hand over the identities of claimants to the Scottish Legal Complaints Commission.

One respondent to the survey stated : “It seemed as if the Scottish Solicitor’s Guarantee Fund were trying to pay as little as possible and were looking after their own interests. Again you were made to feel like a criminal at the hearing.”

Another respondent said : “I was not fully compensated for a fraud that was not my fault but my solicitor’s, who was now in jail and yet I had to suffer financially and with stress.”

Comments from the five people who provided reasons for their satisfaction expressed relief that the process had come to an end and they perceived that the Fund had worked well for them.

One respondent said : “Achieved desired outcome although would have preferred not to have gone through the process at all.”Another respondent said : “[Because] I felt that I could move forward and bring closure to the whole affair [as] I had felt very let down by the solicitor involved in my particular case.”

Diary of Injustice featured a report on the SLCC’s Guarantee Fund research project as it took shape, HERE and upon publication of the SLCC’s report, carried out by Progressive, a research company based in Edinburgh, final figures revealed an abysmally low response rate of only 13%, where the research company contracted by the SLCC ultimately received only 19 replies out of 145 questionnaires sent out by the Law Society of Scotland.

The research firm conducting the survey on behalf of the SLCC said in their report : “Progressive was not able to receive a database of contact details from the Law Society of Scotland. As such the questionnaire packs were sent to LSS for labelling and distribution.”

The company were further critical of the Law Society’s methods of distribution, stating “A large proportion of questionnaires were not sent directly to claimants. Sending questionnaires first to solicitors to pass on to their clients would have affected the likelihood of the questionnaires reaching them and also their likelihood of completing them.” Progressive further warned : “This is likely to impact response rates.”

The report also claims : “Missing information on labels. A few solicitors fed back that there was no client contact on the packs they were sent so were unable to forward these on, again, affecting the final response rate (at least 4 reported this to be the case)” and that some clients who were sent questionnaires by the Law Society of Scotland could not be traced because they had moved address.

CONDUCT OF REGULATOR PREJUDICED CONSUMER CLAIMS

Margaret Scanlan - Called to the Bars - Sunday Mail  15 March 2009 emailFormer SLCC Board Member Margaret Scanlan branded Guarantee Fund claimants as “chancers”. Previous investigations in to the SLCC’s attitude towards clients and compensations claims against solicitors have revealed prejudice against consumers at the very heart of the SLCC itself, which spilled out into the media when now former SLCC Board Member Margaret Scanlan raged against claimants to the Guarantee Fund, branding them “chancers” in a series of bitter emails revealed through a Freedom of Information investigation here : HERE& HERE

Continuing investigations into the SLCC by Diary of Injustice further revealed another board member, David Smith , married to Court of Session judge Lady Smith, had described claimants to the Master Policy, the Law Society of Scotland’s equally corrupt Personal Indemnity Insurance coverage for negligent solicitors, as “frequent flyers”.

The SLCC had attempted to withhold the identity of the board member who made the anti-client remarks, however, the regulator was ordered to release the information by a decision of the Scottish Information Commissioner. Diary of Injustice reported on the move by the then Information Commissioner, Kevin Dunion (who is now a board member of the SLCC), here : FOI Chief Dunion orders Scottish Legal Complaints Commission to release board member’s anti-client jibes, Master Policy study details

Two earlier reports published by Diary of Injustice featured findings of the University of Manchester 2009 report into the Guarantee Fund & Master Policy, here : ‘Ground-breaking’ investigation into Law Society’s Master Policy insurance reveals realities of corrupt claims process against crooked lawyers and here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society’s Master Policy which ‘allows solicitors to sleep at night’

If you have a claim against the Scottish Solicitors Guarantee Fund, or the Master Insurance Policy, tell us at Diary of Injustice at scottishlawreporters@gmail.com

 

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SHHH Happens : SLCC Legal Complaints CEO Rosemary Agnew tipped for FOI Commissioner role after 5 FOI ‘rebukes’ & refusals to monitor Master Policy claims

Rosemary-AgnewRosemary Agnew, Chief Executive of the Scottish Legal Complaints Commission tipped for FOI anti-secrecy role. ROSEMARY AGNEW the current Chief Executive of the under achieving, anti-consumer law complaints quango, the Scottish Legal Complaints Commission (SLCC) which has today been named along with other Scottish public bodies in a Hall of Shame of organisations including the Scottish Government, Police, quangos & local authorities which deliberately mishandle Freedom of Information requests & disclosures, is reported to be tipped in the secret race to replace current Information Commissioner Kevin Dunion who leaves office in February 2012.

However, it can also be revealed today Ms Agnew in her capacity as SLCC Chief Executive has been rebuked by the current Information Commissioner, Mr Dunion on at least FIVE OCCASIONS for failures in handling FOI disclosures, one of which included the withholding of sensitive compensation payments data during the period Ms Agnew was actually being interviewed for the post of FOI Commissioner by Scottish Parliament officials.

The Scottish Parliament Corporate Body (SPCB) which itself has been responsible for many controversial decisions including the runaway construction budget of the Scottish Parliament itself, topping half a billion pounds of taxpayers money, is rumoured to be at the point of recommending Ms Agnew’s appointment to the post of FOI Commissioner to msps in the next few days. Yet so far, the Scottish Parliament, the Scottish Legal Complaints Commission and even Ms Agnew herself have all refused detailed comment on the seemingly controversial appointment, which was revealed today in the Daily Record newspaper.

Asked about the rumoured controversial recommendation of Ms Agnew to fill the FOI Commissioner role, a Scottish Parliament spokesman simply said : “We expect to be in a position to confirm the nominee to Parliament early in the new year, ahead of Kevin Dunion’s departure in February.”

The Scottish Legal Complaints Commission were contacted for comment and asked : “Does the Scottish Legal Complaints Commission have any comment on reports its Chief Executive Rosemary Agnew is to be recommended to msps to replace the current Scottish Information Commissioner Mr Kevin Dunion upon his demit of office in February of this year, and what Ms Agnew’s appointment to the post (if confirmed by msps) will mean for freedom of information requests to the SLCC.”

A further question was put to the SLCC : “Does the SLCC have any comment on how the SLCC will cope with having to recruit a third Chief Executive in four years to the SLCC and the impact on the Commission’s role of having three Chief Executives since 2008 ?“

The SLCC issued a blunt “no comment” to both questions.

Speaking to Diary of Injustice this morning, a legal insider said he was horrified someone with a record of refusing FOI requests could be appointed to the role of Scotland’s FOI Commissioner.

He said : “Unless Ms Agnew has significantly changed her attitudes towards FOI, I doubt a candidate with at least five rebukes for handling FOI requests who is coming from an organisation which has a history of waging a war of attrition against Freedom of Information laws, can fulfil the requirement for maintaining & strengthening Freedom of Information legislation in Scotland.”

A leading political observer, commenting on the SPCB’s appointment agreed it looked like the Scottish Parliament were about to choose someone who might not continue Mr Dunion’s work of expanding & upholding Freedom of Information compliance in Scotland.

Ms Agnew’s suitability for the role of FOI Commissioner has also been questioned today after it was claimed decisions taken by her in her role as Chief Executive of the Scottish legal Complaints Commission to refuse to monitor consumers individual claims made against the Law Society of Scotland’s Master Policy which have left some clients penniless, in a state of financial ruin and facing years of hardship, ill health and hounding by firms of crooked lawyers. The claims were made by clients who have approached the SLCC to request the law complaints quango monitor individual claims made against the Master Policy after being financially ruined by “crooked lawyers” & corrupt Scottish law firms who took their clients for a ride through the courts system.

The SLCC has powers to monitor the Master Policy under Section 39 of the Legal Profession & Legal Aid (Scotland) Act 2007 although its staff & board have sought on several occasions to loosely interpreted the terms of the law in an apparent attempt to avoid becoming involved in matters which have already led to confrontation between the SLCC, Law Society of Scotland & Marsh UK, the UK subsidiary of the convicted US Insurers Marsh McLennan Companies who are brokers of the Master Policy which is backed by insurers such as Royal Sun Alliance PLC.

SLCC Master Policy Monitor request 19 11 2010Letter reveals SLCC’s latest Chief Executive told client they will not monitor claims made against crooked lawyers. In a letter released to Diary of Injustice, the SLCC’s Chief Executive, Rosemary Agnew refused to become involved in monitoring claims to the Master Policy. Ms Agnew wrote : “..it is not within the SLCC’s remit to monitor individual claims made under the Master Policy. Under the Legal Profession & Legal Aid (Scotland) Act 2007 (Section 39), the SLCC may monitor the overall effectiveness of guarantee funds, etc and professional indemnity arrangements put in place by the Law Society of Scotland for its members (ie the Master Policy). This power does not extend to our active involvement in the way in which individual indemnity claims are being dealt with by the insurers.”

A succession of additional letters from Ms Agnew to claimants have been released to Diary of Injustice, showing Ms Agnew refused requests by beleaguered clients to monitor their claims to the Master Policy.

Speaking at the time of Ms Agnew’s blunt refusals to monitor claims to the Master Policy, Consumer Focus Scotland sided with clients, and supported calls for consumers to be able to submit concerns about the Master Policy on their cases directly to the SLCC. A spokesperson for Consumer Focus Scotland said : “After concerns were raised with the SCC (Scottish Consumer Council) regarding the operation of the master policy, the SCC argued that the SLCC should be given power to monitor the effectiveness of the master policy in the Legal Services and Legal Profession (Scotland) Act 2007, and we were very pleased when this was included.”

The spokesperson continued : “It has always been our understanding that the intention behind section 39 of the Act was that the SLCC would monitor the overall effectiveness of the operation of the Master Policy, rather than monitoring individual claims. It does seem to us, however, that in order to monitor the overall effectiveness of the Master Policy, the SLCC must be able to consider evidence about the way in which individual claims to the Policy have been handled. It is therefore important that consumers are able to submit concerns about the way their claim has been handled to the SLCC, to assist the SLCC to undertake this function effectively.”

Master Policy Report Suicides revealedMs Agnew’s refusal to involve the SLCC in actively monitoring individual claims to the Master Policy has come of something as a shock to many legal observers, who keenly anticipated the Scottish Legal Complaints Commission would end the world of corruption surrounding damages claims made against rogue solicitors & law firms by financially ruined clients, particularly after an independent report commissioned by the SLCC found the Law Society of Scotland & the Master Policy insurers had covered up the fact clients had committed suicide after being let down by law firms who were supposedly representing their claims against the Master Policy in the Court of Session, itself well known as a cosy lawyer only club unwilling to rule against the profession. Diary of Injustice reported on the report into the Master Policy here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society’s Master Policy which ‘allows solicitors to sleep at night’

A solicitor speaking to Diary of Injustice this afternoon said “The SLCC lacked any credibility on the news it was about to lose yet another Chief Executive.” He went onto claim the SLCC “has little consumer confidence, is not trusted by the legal profession, appears to hold no continuity and should be scrapped.”

BACKGROUND : ROSEMARY AGNEW, SLCC CHIEF EXECUTIVE

Rosemary Agnew is the SLCC’s second Chief Executive in three years. Ms Agnew took on the role after a short recruitment phase to replace the SLCC’s first Chief Executive Eileen Masterman who resigned after a bitter exchange with Cabinet Secretary for Finance John Swinney over issues involving meetings the SLCC held in connection with the Master Policy.

Ironically, one of Rosemary Agnew’s key refusals to disclose information to the public was information and discussions surrounding the SECRET SUBSTANTIAL PAY-OFF negotiated by lawyers acting for former SLCC CEO Eileen Masterman and the Scottish Legal Complaints Commission. The secret payoff was also backed by the Justice Secretary Kenny MacAskill, and Scottish Ministers also refused to disclose the amount paid to Ms Masterman. Diary of Injustice reported on the secret pay-off scandal in an earlier article here : HUSH & MONEY : Former SLCC law complaints Chief Executive Eileen Masterman received secret Scottish Government approved payoff in deal with lawyers

SLCC Chief Executive Eileen Masterman (foreground) received Scottish Government approved pay off after lawyers intervened says auditor report. RUMOURS that Eileen Masterman, the former Chief Executive of the much derided Scottish Legal Complaints Commission (SLCC), received a SUBSTANTIAL PAY OFF after she resigned on grounds of “ill health”, after serving less than SEVEN MONTHS in the £80,000 a year, £1,350 plus, a week job have now been confirmed with the publication of a “Key Memorandum Issues” document prepared for the SLCC by the Edinburgh offices of auditors Grant Thornton. Grant Thornton were called in to replace the Scottish Legal Aid Board (SLAB) as the SLCC’s auditors, after SLAB were abruptly sacked from their auditing role by the SLCC’s board in 2009 after much bickering over the Legal Aid Board’s scrutiny of the failed law complaints quango.

Today’s Daily Record report :

stop secret Daily Record 9 January 2012STOP SECRET : Revealed: Government, police & local councils all among public bodies who flouted anti-secrecy laws

Jan 9 2012 Exclusive by Chris Musson

THE public bodies who fought tooth-and-nail to keep secrets from you are today exposed by the Record. The Government, police forces, councils and taxpayer-funded quangos all flouted anti-secrecy laws by knocking back legitimate Freedom of Information requests. They were forced to back down by Kevin Dunion, Scotland’s first Information Commissioner, who ruled in favour of the public 359 times since the new rules came into force in January 2005.

The worst offenders were the Scottish Government, who wrongly refused to disclose ­information 78 times over the last seven years. However, they also received the highest number of requests of any public body. Second on the league of shame were Edinburgh City Council, with 22 decisions against them. Third were Glasgow City Council with 17 decisions fully in favour of applicants, and fourth were Scottish Water with 15.

Among legitimate requests knocked back were details on the numbers of sex offenders in various areas – with Strathclyde Police, Grampian Police and Northern Constabulary all falling foul. Surgical mortality rates were also wrongly withheld by the NHS, as were details of public payments to firms of private consultants.

Dunion and his office made 1336 decisions to December 14, 2011. As well as the 359 fully in favour of the person appealing a refusal, 450 were partly in their favour.

A person who gets knocked back for an FoI request must first appeal to the public body before going to the Information Commissioner. It is time-consuming, meaning many members of the public give up, even if they have a good case.

But public bodies often fight to the bitter end, despite decisions being overturned by the ­Information Commissioner. Public bodies’ disregard for the laws is still widespread seven years on – and even appears to be growing. Last year saw the highest total for successful appeals by the public – on 85 occasions.

Dunion, who grew up in Fife and Clackmannanshire and was the rector of St Andrews University until 2011, steps down next month from the post of ­Information Commissioner he has held since 2003. Tomorrow, he will present a special report to the Scottish ­Parliament on his time in the job, and will urge the Government to “safeguard and strengthen” openness from public bodies.

Yesterday, he told the Record he was confident Scotland had “made a success” of freedom of information since 2005. He added said: “Public awareness of Freedom of Information is at an all-time high. Public authorities are responding to requests and information is being disclosed which would otherwise have remained secret. “We know much more about contracts and expenses, deaths in hospitals and local crime rates because of FoI. “Of course, there are disputes and failings which is why the free right of appeal to the Scottish Information Commissioner is so important.”

He said most appeals were from members of the public, adding: “In the majority of my decisions I have found, at least in part, that the appeal was justified.”

TIP FORCED TO DISCLOSE

A WOMAN tipped to be Scotland’s new anti-secrecy tsar has had a string of rulings made against her by the man she could replace.

Rosemary Agnew, who heads the Scottish Legal Complaints Commission, is one of six people interviewed to be the next Information Commissioner. But Kevin Dunion has slapped down the SLCC eight times – five since Agnew took over as Chief Executive in October 2010.

Legal Reform campaigner Peter Cherbi, who had several requests knocked back by the SLCC, cast doubt over her suitability. He said : “How someone like that could be put in charge of openness is beyond me, unless they want to shut down openness and accountability.”

Agnew did not respond to requests for a comment.

 

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Solicitor’s Judicial Review against Law Society of Scotland’s ‘corrupt, client killer’ Master Policy fails as Lord Uist rules out £15K refund

The Law Society’s Master Policy which protects crooked lawyers against clients survives lawyer’s legal challenge. THE CORRUPT WORLD of the Law Society of Scotland’s MASTER POLICY has returned to the Court of Session with yet another victory for the Law Society after Glasgow solicitor Gerard Kelly of Kelly & Co failed in a judicial review challenge to a decision of the Law Society of Scotland’s Insurance Committee which refused to refund some £15,517.87 covering four practice years, the sum being charged as “penalty premiums” after Mr Kelly  intimated to the insurers (Royal Sun Alliance) that a claim under the policy was going to be made by a former client.

Mr Kelly raised his action as a party litigant, while the Master Policy was represented by Moynihan QC for the Edinburgh Law firm of Dundas & Wilson. Little detail was released regarding the subject of the actual claim made by one of Mr Kelly’s former clients who also was not identified, and the claim, like so many others involving claims against the Master Insurance Policy, did not proceed to court, again, for unexplained reasons.

Master Policy fiddles & corruption cant be mentioned without ex-Law Society CEO Douglas Mill being torn to shreds by Scotland’s Finance Chief John Swinney (Click image to watch video)

As there is so little information released by the legal profession over the state of claims against the Master Policy, which itself has been linked to the deaths of clients in an independent report carried out by the University of Manchester’s Law School in 2009 for the Scottish Legal Complaints Commission, featured in an earlier report on Diary of Injustice HERE, the full judgement, by Lord Uist, who found in favour of the Law Society of Scotland, follows for readers interest.

Readers should also note Lord Uist’s reference to Section 44 of the Solicitors (Scotland) Act 1980 where “The Council may make rules with the concurrence of the Lord President concerning indemnity for solicitors and former solicitors [F1and incorporated practices] against any class of professional liability…”. Clearly the Lord President should be doing much more to ensure the Master Policy does not concur to cause solicitors clients to commit suicide after being hounded to death by the Law Society of Scotland and agents of the Master Policy insurers.

OUTER HOUSE, COURT OF SESSION [2011] CSOH 184 Judicial Review of a decision of the Law Society of Scotland dated 12 June 2008

Introduction
[1] In this application for judicial review the petitioner, a solicitor practising in Glasgow who has held a practicing certificate since 1983, seeks reduction of a decision of the Law Society of Scotland (the respondents) dated 12 June 2008 and intimated to him by letter dated 15 July 2008 (6/3 of process). The decision, which was in fact taken by the respondents’ insurance committee, was to refuse a request by the petitioner under Rule 9 of the Solicitors (Scotland) Professional Indemnity Insurance Rules 2005 (the 2005 Rules) to waive the provisions of the master policy which had required the petitioner to pay penalty insurance premiums totalling £15,517.87 in addition to his normal annual premiums in the insurance years 2003/04, 2004/05, 2005/06 and 2006/07.

Background
[2] The factual background to the request made by the petitioner is that in or about March 2002 a claim was intimated against his firm, Kelly & Co, by a former client of the firm. In terms of the master policy of insurance arranged by the respondents such a claim had to be reported by him to the master policy brokers. He duly reported the claim to the brokers. As a consequence of that a reserve was placed on the claim. In terms of the master policy the placing of a reserve on the claim resulted in his being required to pay penalty premiums calculated in terms of the Rates and Rating Factors therein amounting to £15,517.87. The claim against the petitioner did not proceed and accordingly the insurers did not require to indemnify him. The request for a waiver of the provisions of the master policy was refused by the respondents’ insurance committee by letter dated 15 July 2008 following upon their meeting of 12 June 2008 at which they considered written and oral submissions from the petitioner.

The master policy
[3] The master policy is a single collective insurance policy arranged by the respondents. There is a separate contract of insurance for each year. The year runs from 1 November and premiums are calculated on the basis of figures produced in July. The insurers charge a single, global premium which is allocated among the insured “practice units” in accordance with the Master Policy Rates and Rating Factors Rules for each insurance year. Those rules determine whether a practice unit qualifies for a discount or is liable to pay a penalty loading. The aggregate payable by all practice units is equal to the global premium payable to the insurers. The insurers therefore do not receive any increase in premiums in the event that a solicitor has been charged a penalty loading and nor do the respondents profit in that event. The benefit of any penalty loading is received by the practice units that qualify for a discount. Prior to the insurance year 2008/09 solicitors had a right of appeal in respect of the premium charged to them which lay to the Premium Appeal Committee of the respondents. In none of the four relevant insurance years in which the petitioner alleges that he was charged excessive premiums did he appeal to the Premium Appeal Committee.

[4] For the period 1 November 2003 to 31 October 2004 the Master Policy Rates and Rating Factors provided in para 1(a) that the standard premium for each practice unit where the number of partners or principals was between 1 and 3 fell to be calculated by adding to a fixed sum of £1,261 the sum of £3,215 for each partner or principal. Para 2(a) made provision for discounts and loadings on the premiums. It provided as follows:

“A practice unit…shall be entitled to a discount on the Standard Premium or shall suffer a percentage increase according to the following formula:-

(i) There shall be calculated the total amount (“Relevant Claims Total”) of (aa) the total of all payments made by the Master Policy insurers as at 1 July 2003 in respect of all claims on the record of each Practice Unit with the reference prefixes M1998, M1999, M2000, M2001 and M2002 and (bb) the total of all reserves placed by the master policy insurers as at 1 July 2003 on all claims on the record of the same Practice Unit with the reference prefixes M1998, M1999, M2000 and M2001.

(ii) There shall be calculated the total (“Relevant Premium Total”) of (aa) the whole of the premiums paid by the Practice Unit for the insurance years commencing 1 November 1998, 1999, 2000 and 2001 (bb) two thirds of the premium paid by the practice unit for the insurance year commencing 1 November 2002. The relevant figure in each case is the premium excluding Insurance Premium Tax and any rebate of brokerage.

(iii) There shall be calculated the “Loss Ratio” of each practice unit, being the Relevant Claims Total divided by the Relevant Premium Total expressed as a percentage.

“Circumstance” matters are not taken into account for Loss Ratio assessment.”

A “circumstance” is something that could potentially give rise to a claim but did not constitute a claim. It did not affect the premium. An actual claim could give rise to a loading on the premium. There were equivalent provisions for the three subsequent insurance years.

[5] In the case of the petitioner, in the year 2003/04 the insurers placed a reserve of £40,000 on the claim and a commensurate loading of £11,995 was applied to the petitioner. In the year 2004/05 the reserve placed on the claim was £20,000 and the loading on the premium was reduced to £1,971. In the year 2005/06 the reserve had fallen to £5,000, resulting in no loading. The respondents were unaware if there had been any discount in the subsequent two years.

The relevant statutory provisions
[6] Section 44 of the Solicitors (Scotland) Act 1980 provided as follows at the material times:

“(1) The Council may make rules with the concurrence of the Lord President concerning indemnity for solicitors…against any class of professional liability, and the rules may for the purpose of providing such indemnity do all or any of the following things, namely –

(a) authorise or require the Society to establish and maintain a fund or funds;

(b) authorise or require the Society to take out and maintain insurance with an authorised insurer;

(c) require solicitors….to take out and maintain insurance with an authorised insurer.

(2) The Society shall have power, without prejudice to any of its other powers, to carry into effect any arrangements which it considers necessary or expedient for the purpose of the rules.

(3) Without prejudice to the generality of subsections (1) and (2) rules made under this section –

(a) may specify the terms and conditions on which indemnity is to be available, and any circumstances in which the right to it is to be excluded or modified;

(b) may provide for the management, administration and protection of any fund maintained by virtue of subsection (1)(a) and require solicitors … to make payments to any such fund;

(c) may require solicitors … to make payments by way of premium on any insurance policy maintained by the Society by virtue of subsection (1)(b);

(d) may prescribe the conditions which an insurance policy must satisfy for the purpose of subsection (1)(c);

(e) may authorise the Society to determine the amount of any payments required by the rules subject to such limits, or in accordance with such provisions, as may be prescribed by the rules;

(g) may specify circumstances in which solicitors….are exempt from the rules; …”

[7] The Solicitors (Scotland) Professional Indemnity Insurance Rules 1995 (the 1995 Rules), which came into operation on 1 May 1995, provided, so far as relevant, as follows:

“Master Policy

5 – (1) The Society shall take out and maintain with authorised insurers to be determined from time to time by the Council a master policy in terms to be approved by the Council to provide indemnity against such classes of professional liability as the Council may decide. The Council at its discretion may amend the terms of the master policy from time to time.

(2) The master policy shall provide indemnity for all solicitors to whom these rules apply …

(3) The limits of indemnity and the self insured amounts under the master policy shall be as may be determined from time to time by the Council.

Provided that nothing in these rules shall prohibit any solicitor from arranging with the insurers to extend the cover provided by the master policy if and on such terms as the insurers may agree.

Contingency fund

6 – (1) The master policy may provide for the intimation to the brokers of circumstances affecting a practice unit which have not given rise to a claim under the master policy but which may reasonably be expected to do so, and the terms of the master policy may provide for such circumstances to be taken into account in calculating the premium payable by practice units.

(2) The Society may establish a fund (in these Rules referred to as the “contingency fund” for the purpose of refunding to practice units such portion of the premiums paid by them as may be attributable to circumstances intimated in accordance with the master policy if and when the brokers are satisfied that no claim will result from such circumstances. The terms and conditions upon which such refund shall be made shall be determined from time to time by the Council.

(3) Every solicitor to whom these rules apply shall contribute such sum (if any) as may be required by the Council to establish and maintain the contingency fund. Every such solicitor shall produce along with each application for a practicing certificate such evidence as the Council may require that he has paid such contribution as aforesaid.

Waiver

8 – The Council shall have power in any case or class of case to waive in writing any of the provisions of these Rules and to revoke any such waiver.

Professional practice

10 – Failure to comply with these rules may be treated as professional misconduct for the purposes of Part IV of the Solicitors (Scotland) Act 1980.”

[8] The 1995 Rules were revoked by the Solicitors (Scotland) Professional Indemnity Insurance Rules 2005, which came into operation on 1 June 2005. Rule 1(4) provided as follows:

“All acts done under or pursuant to the 1995 Rules shall be treated as having been done under or pursuant to these Rules, except in so far as they are inconsistent with these Rules.”

Rules 5, 9 and 11 of the 2005 Rules were generally in the same terms as Rules 5, 8 and 11 of the 1995 Rules. The 2005 Rules did not make any provision for a contingency fund.

[9] The Solicitors (Scotland) Professional Indemnity Insurance Contingency Fund Rules 2007, which came into operation on 1 September 2007 made provision for monies which remained in the contingency fund as at that date. Rule 3 provides as follows:

“Contingency Fund Monies

3 – (1) The Society shall manage and administer the contingency fund monies.

(2) The Society may use the contingency fund monies for any professional indemnity purpose.

(3) The Society may use the contingency fund monies to pay costs and expenses reasonably incurred in connection with the management and administration of those monies or with their use for any professional indemnity purpose.”

The terms of the decision
[10] The letter from the registrar of the insurance committee of the respondents dated 15 July 2008 stated as follows:

“The Committee was most grateful to you for your oral presentation as well as the question and answer session which followed the presentation. Your paper and presentation have assisted the Committee in carefully considering your request for a waiver from the Rates and Rating Factors regime under Rule 9 of the Solicitors (Scotland) Professional Indemnity Insurance Rules 2005.

The Committee carefully considered and noted the following matters in relation to your waiver request:-

1. That in terms of the scheme for the master policy for professional indemnity insurance for Scottish solicitors, as the then sole principal in the firm of Kelly & Co, Solicitors, Glasgow you intimated a claim against your firm to the master policy insurance brokers, Marsh.

2. That as a result of your decision to intimate the claim to the brokers this matter was then advised to the Lead Insurers RSA under the master policy. The consequence of this decision by you to intimate the claim was that you transferred the risk of payment against this claim to the insurers. The Committee noted that the ‘transfer of risk’ from your firm to the insurers resulted in a reserve being made against this claim. As a consequence of your decision to transfer this risk to the insurers your firm had declined the option of carrying this risk itself and thereby wished to use the underwriting facility of the master policy.

3. That there had been a validly made claim against your firm of Kelly & Co, Solicitors, Glasgow which had resulted in the lead insurers placing a reserve of £40,000 against this claim. .

4. The Committee noted that your firm in intimating this matter to the brokers and thereafter by the brokers to the lead insurers had been treated no differently from any other firm of Scottish solicitors which is insured under the master policy for professional indemnity insurance.

5. The Committee noted that prior to the intimation by you of this claim against your firm that your firm had benefited from the application of the discount/loading scheme under the master policy for professional indemnity insurance whereby your firm has received discounts on its master policy premium based on its no claims record.

6. The Committee noted that once a reserve had been set by the lead insurers against the claim made against your firm that you had decided not to challenge the reserve. This is because you accepted that the reserve figure was both fair and reasonable.

7. The Committee also noted that you have accepted as being fair and reasonable the Rates and Rating Factors regime operated by the Society under which the global premium for the master policy for professional indemnity insurance is allocated amongst individual firms.

8. The Committee noted that in the course of your presentation on Thursday 12 June 2008 you stated that a request for a waiver was an opportunity for the Society to show that the master policy was robust and can deal with any allegations of unfairness where the application of the Rates and Rating Factors regime may appear to have resulted in a disproportionate result. The Committee is of the opinion that it is the application of the Rates and Rating Factors regime (which is reviewed on an annual basis) which in itself shows that the master policy is robust and applies equally and fairly to all firms.

9. The Committee noted that in your presentation on Thursday 12 June 2008 you stated that bodies such as the Monopolies and Mergers Commission, the Office of Fair Trading, the Financial Services Authority and the Scottish Legal Complaints Commission may have an interest in the operation of the master policy for professional indemnity insurance. This is a correct statement of fact as many of these bodies have at some time in the recent past had dealings with the Society with respect to the master policy for professional indemnity insurance. Please note that the Office of Fair Trading launched a formal investigation into the master policy for professional indemnity insurance and concluded in 2005 that: –

“Under current arrangements for professional indemnity insurance there may be a benefit to the Law Society of Scotland, its members and their clients, of collective bargaining by the profession to secure uniform and affordable professional indemnity insurance for Scottish solicitors. It was not clear, given the scale of the profession in Scotland, that the apparent benefits of England and Wales’ arrangements, in terms of greater freedom to solicitors to seek insurance directly from an approved pool of insurers, could simply be achieved in the context of solicitors in Scotland.”

Please also note that the Financial Services Authority approved the Society’s arrangements for professional indemnity insurance through the master policy prior to granting the Society status as a designated professional body under the Financial Services and Markets Act 2000. There has also been a recent meeting between representatives of the Society and the Commissioners of the Scottish Legal Complaints Commission on the master policy for professional indemnity insurance at which their oversight responsibility for the master policy was discussed.

10. The Committee also noted that if a ‘qualifying insurer’ regime were in operation in Scotland (similar to that currently in operation for solicitors in England and Wales) instead of the current master policy arrangements it is likely that insurers would have imposed some level of premium loading on account of the claim intimation/reserve and that insurers would not have returned or refunded any part of the premium loading if, at a later stage, the matter was resolved at no cost to the insurers concerned.

Given all of the above matters which were very carefully considered by the Insurance Committee, the Committee agreed on an unanimous basis to refuse your firm’s request for a waiver and refund of the discounted/loading insurance premiums of £15,517.87 on the basis that this additional premium was equitable based on the Rates and Rating Factors scheme operated by the Society.”

The petitioner stated that he strongly disputed that, as the Committee noted in para 7, he accepted as being fair and reasonable the Rates and Rating Factors regime.

Appropriateness of judicial review
[11] The respondents, both in their written answers and in the oral submissions made by Mr Moynihan on their behalf, submitted that the petitioner had failed to exhaust his remedies and that the current application for judicial review was unjustified. Reliance was placed on the following statement at para 12.01 in Clyde and Edwards on Judicial Review (2000):

“As a general proposition it may be said that judicial review is not available if there is an alternative means of relief open to the applicant. One example of such a case is where there is a contractual remedy open to the complainer.”

It was submitted that in each of the four insurance years concerned the petitioner had had the opportunity to appeal to the Premium Appeal Committee (subsequently abolished) but did not do so. Accordingly, the present application by way of judicial review was inappropriate as he had failed to take advantage of the appropriate remedy at the time. As he had failed to avail himself of that remedy, it was not open to him now to proceed by way of judicial review.

[12] In response the petitioner stated that he could not have pursued the option of an appeal to the Premium Appeal Committee as he had never disputed the level of the reserve. Clause 4(b) of the master policy provided that a firm which disputed the level of the insurers’ reserve or the insurers’ classification of an intimation as a claim rather than a circumstance could instigate an appeal under the procedure set out therein. He made no criticism of para 6 of the respondents’ decision letter. He did not dispute that what was involved here amounted to a claim rather than a circumstance. Clause 4(b) of the master policy did not apply as he was not challenging the Rating Factors. The request for a waiver under the 2005 Rules could cover the years in which the 1995 Rules were applicable in view of Rule 1(4) taken with Rule 9 of the 2005 Rules. There was no time limit covering the application for a waiver.

[13] In my opinion it cannot be said that resort to the supervisory jurisdiction of the court is excluded in this case on the ground that the petitioner failed to avail himself of an alternative remedy. As he pointed out, he was not challenging the Rates and Rating Factors and Clause 4(b) of the master policy therefore did not apply. The insurance committee of the respondents did not question the competency of his application for a waiver to them and proceeded to deal with the substance of it. That being the case, I see no reason why their decision should not be open to challenge by way of an application for judicial review if they erred in law or exceeded their powers in reaching it. Accordingly, I hold that this application for judicial review cannot be described as being inappropriate or unjustified on the ground of the existence of an alternative remedy of which the petitioner failed to avail himself.

The merits of the application
[14] The petitioner challenged the lawfulness of the decision of the insurance committee on the grounds set out in statement 18(a) to (g) of the petition, with the exception of ground (d). In brief, the grounds were that the decision to refuse the waiver request was one which no reasonable body in the position of the respondents could have reached, that in reaching their decision the respondents took into account certain irrelevant considerations, that the decision lacked proportionality, that the respondents fettered their discretion by rigid adherence to the master policy Rates and Rating Factors and did not exercise the discretion given to them by Rule 9 of the 2005 Rules, that the decision to adhere to the terms of the master policy imposed upon the petitioner was unlawful and amounted to an abuse of power as the petitioner was not given any freedom of choice as to which insurer should provide insurance or what the policy terms and conditions should be and, lastly, that in refusing the waiver request the respondents breached the petitioner’s legitimate expectation that a no loss claim would not result in penalty premiums not being returned, the major exclusion clause in the insurance contract not having been brought to his attention.

[15] For the respondents it was submitted that the insurance committee had looked at the equities of the case and decided that there was nothing inequitable in the application of the Rules in force at the material time. What the petitioner was attempting to do by way of his application for judicial review was to achieve a retrospective adjustment of a closed commercial transaction.

[16] In my opinion, on the assumption that the application to the insurance committee under Rule 9 of the 2005 Rules was a competent one (about which I express no view as it was treated by the committee as being competent), it cannot be said that the respondents erred in law or exceeded their powers when deciding to refuse the petitioner’s request for a waiver. They did not fail to take relevant matters into account and they did not take into account any irrelevant matters. Moreover, from a practical point of view I do not see how they could ever have refunded the petitioner premiums which they had not received. It is evident that the petitioner is opposed to the system of the master policy arranged by the respondents as he perceives that it has resulted in injustice to him, but it is not for me to enter into what are in substance policy matters for the respondents and their membership. The petitioner was obliged to comply with the 1995 and 2005 Rules as any failure to do so could have been treated as professional negligence on his part. The insurance committee properly considered the merits of the application for a waiver and I cannot detect any illegality or irrationality in the decision which they reached.

Decision by Lord Uist [17] I shall dismiss this petition.

 

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Prevention is better than Penman : Law Society of Scotland’s ‘One Profession’, ‘One Big Rip Off’ conference is just another ‘Client Relations Killer’

law-in-scotlandSponsored by Master Policy Insurers Marsh & HSBC Bank, Law Society of Scotland’s annual conference debates way forward for lawyers. THE LAW SOCIETY OF SCOTLAND, the infamous anti-consumer regulator of complaints against crooked Scottish solicitors, holds its ‘one profession’ conference tomorrow, Tuesday 6 September at the ‘plush’ Glasgow Hilton. The event is sponsored by well known UK Based bank HSBC and the Law Society’s own Master Policy insurers, MARSH, the convicted of bid rigging in the US insurance broker firm linked in an independent report to the suicides of clients who dared approach the courts & Master Policy to recover funds stolen by crooked Scottish lawyers.

Law in Scotland – One Profession’, which, according to those in the know may be better described as One Profession, One Big Client Rip Off, is being held on Tuesday 6 September at the Glasgow Hilton. Attendees expected, mostly solicitors and those from the legal establishment will be those who have rather large financial interests in making the legal profession as profitable as possible, stepping on as many clients along the way as is humanly possible.

marshMarsh, the Master Policy insurers co sponsor this year’s conference, along with HSBC Bank. This year’s event at the Glasgow Hilton, itself the scene of various cosy lunches between law firms, universities & the Scottish Government which appear to have influenced the awarding of multi million pound publicly funded contracts to Scots law firms, is, according to the Law Society’s website, structured around 6 streams each focusing on highly topical issues for Sole Practitioners, High Street firms, In House, Big Firms, Legal Aid practitioners and New Lawyers.

Topics for tomorrow’s conference, (with the reality check in bold for consumers), include:

1. Winning more business from existing clients and new clients (and ripping them off through a variety of well tried & tested fraudulent methods, safe in the knowledge you are going to get away with it)

2. Tenders & Procurement: What Corporates look for in a law firm (Bribes, blackmail, backhanders, hospitality, access to crooked politicians, sympathetic or crooked members of the judiciary etc)

3. Ensuring your income from Legal Aid (and ensuring the Crown Office doesn’t prosecute you for stealing millions in legal aid by calling in the Legal Defence Union & favours from the Law Society)

4. Dealing with Difficult Clients (How to harass clients into withdrawing their complaint, sending someone round to threaten to burn their house down if they don’t, threatening client’s children (in one case, rape), use of corrupt Police Officers to threaten arrest, having a client’s home repossessed, breaking up their family, provoking a client into suicide (becoming increasingly popular)

5. Building your Professional Network (Meeting up with crooked colleagues from all walks of life & professions including the criminal underworld who may be of use in the future)

6. Your clients want WHAT? (none of the above, just a honest job on their case rather than it being strung out for a few years just to generate huge fees and a few rip offs including thefts from wills & property.

Despite the Law Society of Scotland claiming to represent both the legal profession and the public interest in legal issues & regulation of the profession, clients are not welcome at the event, however, the two faces of what the Law Society preaches as “Client Relations” versus what “Client Relations” actually is, will most certainly be discussed.

The Law Society of Scotland will have the public believe “Client Relations” is about dealing with client complaints effectively and ensuring clients are well protected from mishaps in their relationship with their solicitor or the legal profession as a whole. As many readers & consumers now know, through the power of the alternative & online media to that of the legal profession, the reverse is true.

Fact. In reality, experiences of real clients, rather than third party script writers show ”Client Relations” is in truth, about sending a client round so many twists & turns in the legal world, ending up with a law firm that represents & defends crooked lawyers, and is acknowledged to have intervened to prevent criminal charges against corrupt solicitors in legal aid fraud cases, that the client, a married family man was provoked into suicide after well over three years of torture at the hands of the Scottish legal profession and its many tentacles.

Prior to tomorrow’s conference, some sections of the media have been helping the Scottish legal profession over the past few weeks to promote itself as an honest bunch, albeit with ‘imperfections’ which can be easily put right. The usual, now incredibly worn script is followed – a lawyer can only achieve what is possible, not always what the client wants, and of course, the lawyer should put right mistakes immediately, something which invariably does not happen.

However, the same tired arguments & ostensibly the same articles written by solicitors and some of the most senior officials from the Law Society in newspapers since the early 1990’s, have done nothing to stem rising client fraud committed by members of the legal profession over the past two decades, and noticeably have spoke nothing about the rising numbers of client deaths, home repossessions & sheer outright harassment which clients have experienced at the hands of vindictive solicitors & law firms who have in recent times started to use the courts to recover alleged fee notes for work which never took place.

So worrying is the silence on the consumer’s point of view and actual experiences of genuine clients with genuine grievances, it is as if there is a media blackout of clients woes in some sections of the press, and when someone dares to point it out, or write about the issue on their own, a national newspaper tags along with the profession to in a concerted attempt to silence criticism. Clearly, no accident, according to how one journalist told it.

Law Society of ScotlandLaw Society of Scotland “Client Relations” ensures solicitors interests come first before consumer protection. Clearly, enough time has passed where more & more experiences of clients ruined by their solicitors have hit the internet based media, showing without a doubt, clients usually receive the sharp end of the stick from their solicitors and the legal profession once a fraud has taken place, and upon receipt of an actual complaint by a client, the Law Society of Scotland will despatch the likes of the Legal Defence Union and a charity called “Law Care” to help the solicitor out of their ‘difficulties’ by any means possible, while the client is left with no support, no help, no one to speak for them, and certainly no return of what is now typically tens of thousands of pounds stolen from their funds.

While the Law Society gives lectures to its masses, and consumers about “how to deal with difficult clients”, the truth of how the Scottish legal profession perceives & deals with complaints is reflected in what one well known solicitor in an interview about how to deal with difficult clients once said.

Referring to an example where a client had considerable cause to complain to the Law Society of Scotland about the loss of hundreds of thousands of pounds, the solicitor said : “He should have a shotgun stuck in his mouth and the trigger pulled.”

This, is the attitude, and indeed the practice of the legal profession and the Law Society of Scotland when dealing with complaints against their colleagues.

Scotsman coverage of some of the stories relating to Andrew PenmanPrevention is better than Penman : Want to prevent this happening to you ? Avoid going through the doors of a lawyer’s office if you can help it. If you want to avoid what happens next, ask yourself do you really want to put yourself and your family through a living hell dealing with the legal nightmare which comes after dealing with a solicitor. Take it from someone who has already been through the system, if you want to prevent Penman happening to you, think again about how you use your money in these troubled financial times, and don’t go wasting it on the fantasy services provided by many Scottish law firms, services which quickly degenerate into dishonesty and just another escapade in taking as much money from you as possible, without being able to achieve the desired result in law, where you will invariably end up as the victim.

MURDER ON THE LAW SOCIETY EXPRESS : How the Master Policy’s killer streak protects Scots solicitors :

SLCC report headerAfter the release of the Scottish Legal Complaints Commission’s investigation into the claims process against solicitors, harsh evidence emerged of the human cost to clients, where suicides, illness (some resulting in death), family break ups and huge financial losses are the horrific consequences sustained by members of the public who have tried to make claims against the Law Society of Scotland’s ‘Master Policy’ insurance scheme, touted by the legal profession as protecting lawyers and clients but which the ground breaking report released by Manchester University School of Law on Monday reveals “is simply designed to allow lawyers to sleep at night.”

Page 8 - Consumer Focus Scotland refused cooperation from Law SocietySuicides, illness, family breakdown, loss of homes, loss of livelihood were all identified by interviewees as being directly associated with members of the public’s dealings with the Law Society & Master Policy. During the research team’s investigation of claims against the Master Policy, team members were told of suicides which had occurred due to the way in which clients of crooked lawyers had been treated by the Law Society of Scotland and the insurers who operate the Master Policy protection scheme for solicitors against negligence claims. Quoting the report : “Several claimants said that they had been diagnosed with depression; that they had high blood pressure; and several had their marriages fail due to their claim. Some had lost a lot of money, their homes, and we were told that one party litigant had committed suicide.”

Further excerpts from the Manchester University report into the Law Society’s Master Policy & Guarantee Fund show the intolerable strain clients who attempt to claim against their ‘crooked’ solicitor have to endure : Claimants “described being intimidated, being forced to settle rather than try to run a hearing without legal support, and all felt that their claims’ outcomes were not fair. Some claimants felt that they should have received more support, and that this lack was further evidence of actors within the legal system being “against” Master Policy claimants. Judges were described as being “former solicitors”, members of the Law Society – and thus, against claimants. Some described judges and other judicial officers as being very hostile to party litigants.”

One direct quote from the report, depicts a claimant, who was forced to become a party litigant : “I keep fighting cases, and they keep coming at me, and now I have become ill. But they still keep coming at me. They threw me out onto the street, I couldn’t get my medication, I’ve got nothing, I was homeless, ill, sleeping in the car. Now I am appealing. But I can’t get a solicitor. They are just shutting me down…. My health has been damaged, they kill you off. It’s a proven fact. All of us have stress related problems after years and years of stress.”

The full story of the University of Manchester’s report on the Master Policy and its effects on clients, can be read here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society’s Master Policy which ‘allows solicitors to sleep at night’

Some of the ways in which clients have been targeted by the Law Society of Scotland were revealed in an earlier article, documenting how Private Investigators & corrupt Police Officers have been used to intrude into client’s lives, featured here : HERE & HERE

 

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