CRIME ON,CROWN: Historical Abuse probe dropped as Crown Office forced to pay £10K to law firm Clyde & Co – after judge suspends Police search warrant to obtain evidence relating to accusations against ‘influential’ clients

Crown Office paid £10K to law firm subject of Police raid. SCOTLAND’S Crown Office & Procurator Fiscal Service (COPFS) has been forced to pay £10K public cash in legal and ‘other fees’ to a law firm representing a ‘important client’ in relation to a botched search blocked by a judge.

The payment of £10,021.38 to Edinburgh law firm Clyde & Co (formerly Simpson & Marwick) was revealed by prosecutors in response to a Freedom of Information request amid ongoing media enquiries which have now established any possible criminal prosecution in connection with the allegations of abuse is “dead in the water”.

The events surrounding the search warrant occurred last summer, in which Police Officers obtained a search warrant to raid the premises of Edinburgh law firm Clyde & Co, in relation to material officers believed the firm held relating to evidence of historical sexual abuse of minors.

A search warrant issued by a Sheriff upon an application from the Crown Office to raid the law firm, resulting in two police officers attending the offices of Clyde & Co at 58 Albany Street, Edinburgh, at 10am on 22 July 2016 with a search warrant to obtain the evidence.

However, a stand off ensued while Clyde & Co applied to the court for a judge to revoke the search warrant.

The search warrant was subsequently revoked blocked by senior judge Lord Brodie after counsel for Clyde & Co claimed legal professional privilege was attached to the alleged evidence of abuse.

While the Crown Office have now admitted they were required to pay legal & other fees to Clyde & Co, prosecutors refused to divulge any further information on the case, citing the information was held as part of a criminal investigation – which has now been dropped.

Christine Lazzarin for the Crown Office stated in the FOI response: “Firstly I should clarify that a Bill of Suspension hearing emanates from criminal proceedings and any correspondence held between COPFS, the Scottish Courts and Tribunal Service (SCTS), Police Scotland and Clyde & Co in relation to this hearing is exempt.”

“By way of explanation, this correspondence is held by a Scottish Public Authority, namely the Procurator Fiscal, for the purposes of an investigation which the Procurator Fiscal had a duty to conduct to ascertain whether a person should be prosecuted for an offence and it is therefore exempt from release in terms of Section 34(1)(a)(i) of FOISA.”

“This is not an absolute exemption and I have therefore considered whether the public interest favours disclosure of the information, notwithstanding the exemption.”

“Whilst I appreciate that there is a great deal of information in relation to the hearing publically accessible on the SCTS web-site, I consider that there is a strong public interest in maintaining the confidentiality of correspondence in connection with allegations of criminality and consequently the Bill of Suspension hearing.”

“The confidentiality of such information ensures that the agencies involved in the criminal justice process can report to the Procurator Fiscal in a manner which is free and frank and for this reason I consider that the public interest favours upholding the exemption.”

“You have also asked for information about fees, costs, legal expenses or other funds paid by COPFS to SCTS and Clyde & Co. I can advise that COPFS paid a total of £10,021.38 in fees, and other legal costs to Clyde & Co after the hearing.”

Further enquiries into the case by the media have now established the investigation into the case of alleged abuse has now been dropped – with legal insiders at the Crown Office blaming the Crown Office handling of the search warrant, and the effect of Lord Brodie’s order cancelling the search warrant.

Legal sources have also speculated Police Scotland may have been forced to pay the same law firm – Clyde & Co – for their actions in seeking to serve the warrant and obtain the alleged evidence of abuse.

During the Financial year 2016 to 2017, a mysteriously large sum of public cash – £213,933.24 was paid to Clyde & Co by Police Scotland according to figures obtained in a recent media investigation into Police payments to law firms, reported in more detail here: Concerns on Public Bodies Legal Fees spending as figures reveal Scottish Police Authority fork out over £1m in legal fees, Police Scotland spend at least £1.3 million on external lawyers

However, faced with further searching enquiries, Police Scotland have point blank refused to disclose any further information about their payments to Clyde & Co and other law firms.

While the Crown Office have now dropped a prosecution in relation to the alleged abuse, the media are eager to speak to anyone involved in the investigation, or the victims themselves, who can if they wish come forward to DOI, by way of contacting the blog at scottishlawreporters@gmail.com

This latest floundered investigation into what is alleged to be an influential figure in relation to historical abuse crimes – is another blow for the failing leadership of the Crown Office – under current Lord Advocate James Wolffe QC & Solicitor General Alison Di Rollo (sister of Glasgow solicitor & former Law Society of Scotland President – Austin Lafferty)

Last month, it was revealed the Crown Office has given jobs – without interview – to relatives of high ranking Crown Office staff, who then went on to be charged with drug dealing offences – information which came to light in an ongoing investigation into Prosecutors interests and a secret Crown Office register of interests, reported in more detail here: DECLARE THE CROWN: Secrecy block on Crown Office Register of Interests – after fears info will reveal crooked staff, dodgy business dealings, prosecutors links to judiciary, criminals, drugs dealers and dodgy law firms

The Sunday Mail newspaper reported the payments from the Crown Office to Clyde & Co here:

Court chiefs fork out £10k to law firm after botched raid in abuse probe

‘Standards were not met’ when cops turned up with a warrant at Clyde and Co’s Edinburgh office and tried to seize ‘privileged and confidential’ material.

By Craig McDonald Sunday Mail 8 OCT 2017

Prosecutors have paid £10,000 to a law firm after a botched raid on their offices.

Police wanted to seize files from Clyde and Co lawyers that they believed related to an abuse investigation.

But the firm objected, stating the material was “privileged and confidential”.

Despite this, two officers turned up at the firm’s Edinburgh branch with a search warrant in July last year. The warrant was eventually blocked after a court hearing.

Judge Lord Brodie later ruled “standards were not met” regarding prosecutors’ handling of the case.

The Crown Office have now paid £10,021 in legal fees and costs to Clyde and Co.

Detective Constable Nicola Gow called Clyde and Co by phone on July 7 last year to tell the firm they had information in their files that might be relevant to a criminal inquiry.

Graeme Watson, a partner, told her he would check what information he could provide but that “client files were privileged and confidential”.

Gow said she would discuss it with her superior officer but told the firm “a search warrant might be sought”.

Watson wrote to the sheriff clerk in Edinburgh stating the files were covered by the “Data Protection Act, confidentiality and agent-client privilege”.

Two police officers turned up at the firm’s building in the city’s Albany Street with a warrant at 10am on July 22.

Clyde and Co went to court to have it blocked. In his judgment, Lord Brodie found the procurator fiscal’s actions in applying for the warrant “to have been oppressive”.

He said the wording was “misleading, if not simply inaccurate” and “requisite standards were not met”.

The Crown Office said last week: “We note the terms of Lord Brodie’s decision. The Lord Advocate has taken steps to ensure there will be no repeat of this situation.”

Police Scotland said: “As this is a matter for the Crown Office, it would be inappropriate for us to comment.”

Clyde and Co declined to comment.

POLICE STAND OFF AS JUDGE BLOCKS SEARCH WARRANT:

A full report on the opinion by Lord Brodie and his revocation of the Police Scotland search warrant was published by Scottish Law Reporter here: Police raid on Edinburgh law firm halted by judge – Lord Brodie hits out at Crown search warrant tactics against Clyde & Co over historic sex crimes investigation

An excerpt from the Bill of Suspension, signed by Lord Brodie in relation to the search warrant follows:

NOTE BY LORD BRODIE in BILL OF SUSPENSION by CLYDE AND CO (SCOTLAND) LLP Complainers;

against THE PROCURATOR FISCAL, EDINBURGH Respondent:

Complainers:  Smith QC; Clyde & Co

Respondent:  No appearance (Crown Office did not appear at hearing)

22 July 2016

[1]        The complainers in this bill of suspension are a limited liability partnership, being solicitors with a place of business at Albany House, 58 Albany Street, Edinburgh. The respondent is the Procurator Fiscal, Edinburgh. The complainers seek suspension of a search warrant granted by the sheriff at Edinburgh on the application of the respondent, dated 21 July 2016 and timed at 1537 hours (“the search warrant”). The application which came before me, on 22 July 2016 not long before 1700 hours in chambers, was for interim suspension of the warrant. As at that time the bill had not been warranted for service. Having heard Mr  Smith on behalf of the complainers, I adjourned in order to allow my clerk to advise Crown Office that the application had been presented and to invite the attendance of an advocate depute to represent the respondent. That invitation was made by telephone at a little after 1700 hours. It was not taken up. Having heard Mr Smith further, I suspended the search warrant ad interim, granted warrant for service of the bill and continued the matter to a date to be fixed.

[2]        The circumstances in which that application was made, as I understood them from what appeared in the bill, in two telephone attendance notes and the explanation provided by Mr Andrew Smith QC, who was accompanied and instructed by Mr Graeme Watson, Solicitor Advocate, a partner in the complainers, are as follows.

[3]        A client of the complainers is S.  The complainers have acted for S in relation to claims for damages against it by individuals on the basis of its vicarious liability for alleged acts which occurred at a particular location, L.  These claims have been discontinued on account of an acceptance that any claims were time-barred. It is averred by the complainers that in course of taking instructions from representatives of S these representatives “disclosed certain matters and were provided with advice… which advice and information being disclosed was privileged.” As I understood matters, the complainers retain in their possession documents and files, both paper and digital, generated in the course of acting for S which include information and advice in respect of which S, whose specific instructions have been taken on the point, asserts legal privilege.

[4]        On 7 July 2016 Detective Constable Nicola Gow contacted the complainers by telephone. She spoke to Mr Watson. There were at least three telephone calls between DC Gow and Mr Watson on that day. I was shown copies of Mr Watson’s telephone attendance notes. DC Gow indicated that she was aware that the complainers held certain information in their client files for S that might be relevant to a criminal inquiry which was currently being undertaken.  She already had copies of some documents but wished to obtain originals of these (including what she described as “originals” of unsigned statements held digitally), the litigation files and such other documents which were in the possession of the complainers. Mr Watson advised that the complainers would check what information they had access to with a view to establishing its whereabouts and what might be capable of being produced. Mr Watson indicated that the client files were privileged and confidential. Mr Watson advised that in the event of him receiving instructions to do so, he was willing to excise from the file certain material in order to assist the police inquiry. DC Gow suggested that they might arrange a time to look at the files together. Mr Watson said that he would need to take instructions on that proposal but that a provisional date for such a joint consideration of the files could be arranged. DC Gow indicated that she would discuss matters with her superior officer but that a search warrant might be sought.

[5]        On 11 July 2016, in anticipation that an application for a warrant might be made, Mr Watson, on behalf of S wrote to the Sheriff Clerk in Edinburgh requesting that the Sheriff Clerk contact the complainers in the event of any application to the sheriff with a view to S being represented at any hearing before the sheriff. Mr Watson explained in that letter that the complainers and S had provided such assistance to Police Scotland as they could within the confines of the Data Protection Act 1998, confidentiality and agent-client privilege. The letter included the sentence: “In our submission it would be oppressive and prejudicial for a warrant to be granted without first hearing from [S].” No reply has been received to that letter.

[6]        Subsequent to the conversations between Mr Watson and DC Gow and prior to 22 July 2016 neither the police, the respondent nor any other representative of the Crown contacted the complainers in relation to recovery of documents held by the complainers.

[7]        At about 1000 hours on 22 July 2016 two police officers attended at the offices of the complainers at 58 Albany Street, Edinburgh, claiming to be in possession of the search warrant which they proposed to execute. Initially they were reluctant to allow Mr Watson to read the search warrant and then they were reluctant to allow him to copy it. Once Mr Watson had succeeded in persuading the police officers to allow him to read and copy the search warrant he was able to ascertain that it had been granted at common law in terms of the crave of a petition at the instance of the respondent in these terms:

“to any Constable of Police Service of Scotland and/or members of staff from the Scottish Police Authority or any other Officer of Law with such assistance as they may deem necessary, to enter and search the offices, out buildings and storage facilities of Clyde & Co, Albany House, 58 Albany Street, Edinburgh and to be at liberty to secure and take possession of any papers relating to L whether in electronic or paper format, and any other evidence which may be material to the investigation into the alleged abuse at L held by said Clyde & Co, whether in a computer system or otherwise.”

Insofar as material to the issues raised in the bill, the averments in the petition were as follows:

“[S] have provided copies of documents referring to a code of conduct for staff … a punishment book, lists … statements, including what purports to be a statement taken from [a named person] and signed by her …

[S] have indicated that the originals of these documents are held by their legal representatives, Clyde & Co, Albany House, 58 Albany Street, Edinburgh. A request has been made to have these documents released to Police Scotland, however, the solicitor has refused to release these documents, citing reasons of client confidentiality.

The solicitor has indicated that they will provide the originals of the documents already provided in copy format only.

“There are reasonable grounds for believing that evidence material to the investigation … is found within the documents being withheld by the solicitor.  The solicitor has indicated to an officer of Police Scotland that there are two boxes of papers and electronic records relating to [L].”

The full note by Lord Brodie – which was published three months after the events of the search warrant took place, can be found here: COPFS Bill of Suspension – Clyde & Co – Lord Brodie

It is also worth noting the Scottish Government have recently announced the scrapping of time bar on historical sexual abuse cases, as the case referred to Lord Brodie does contain references to claims in relation to allegations of abuse becoming time barred.

The Scottish Government announcement on scrapping time bar for claims in relation to historical sexual abuse states the following:

The Limitation (Childhood Abuse) (Scotland) Act 2017 is a piece of legislation which changes the rules around the time limits within which you can make a claim for compensation in the civil courts. Usually you have to make your claim within three years of the injury, or (if it is later) three years from your sixteenth birthday.

This change will mean that there will no longer be a time bar on childhood abuse claims in the civil courts. (It applies to abuse of a person under the age of 18.) There will no longer be a requirement to make a claim within the three years or to ask the court to use its discretion to allow the case to go ahead after that period.

The law usually prevents claims being taken to court more than once. The Act makes a limited change to this for childhood abuse claims. If you took a claim to court before the Act became law, but lost because of the time bar, the Act means that you should not be prevented from taking another claim to court.

This change is in relation to the three year limitation period, which is relevant to abuse that took place on or after 26 September 1964.

The commencement of the Limitation (Childhood Abuse) (Scotland) Act 2017 means survivors of child abuse no longer face the ‘time-bar’ that requires personal injury actions for civil damages to be made within three years of the related incident.

Minister for Community Safety & Legal Affairs Annabelle Ewing, who took the legislation through Parliament, said the move was an important part of wider Scottish Government action to support survivors of childhood abuse.

Ms Ewing said: “Child abuse is the most horrific betrayal of our young people and, even where such crimes were committed decades ago, we will do all we can to help survivors get the justice they deserve. Police Scotland and the Crown continue to work tirelessly to bring perpetrators to justice through our criminal courts. And, while it may not be the right way forward for all, survivors may now be considering the option of accessing justice through the civil courts.

“This legal milestone would not have happened but for the courage of many adult survivors whose persistence and dedication have shone a light on the dark realities of child abuse. Through their brave testimonies they have made clear the great hurt and damage caused by the very individuals and institutions who should have cared for them.

“Alongside our national survivor support fund, the establishment of the independent public Inquiry into in-care childhood abuse, and the current consultation on a potential financial redress scheme, this removal of the civil time-bar underlines the Government’s commitment to ensuring Scotland is beginning to make amends for the grave failings of the past.”

Welcoming the introduction of the Act, Joanne McMeeking, Head of Improving Care Experiences at CELCIS at the University of Strathclyde, said: “The abolishment of the time bar is the result of many years of successful campaigning by survivors. It is a welcome addition to the package of effective reparation as outlined in the Action Plan on Justice for victims of Historic Abuse of Children in Care.”

For previous articles on the Crown Office, read more here: Scotland’s Crown Office – in Crown detail

 

Access to Justice ? Law Society’s insurers Marsh UK linked to SIXTEEN YEAR Court of Session civil damages claim against Motherwell College

Marsh UK, the UK subsidiary of the US insurance firm Marsh & McLennan companies which saw some of its directors plead guilty as a result of an investigation by the New York District Attorney’s Office of bid-rigging and price-fixing in the insurance industry has now been linked to Scotland’s longest running civil damages action claim, now in its SIXTEENTH YEAR in the Court of Session, involving Motherwell College & North Lanarkshire Council after the local authority released details in response to a Freedom of Information request.

Court of Session judge Lord Woolman hears Scotland’s longest running civil damages claim. Now in its Sixteenth year in the Court of Session, fresh hearings in the long running civil damages claim in front of judge Lord Woolman began earlier on Tuesday of this week. M.Wilson v North Lanarkshire Council & Others (A1628/01) which has its origins in the mid 1990’s and brought about Scotland’s first civil law McKenzie Friend in late 2009, involves a sole party litigant, Mr Martin Wilson, a former Music lecturer of Motherwell College who, according to media reports was forced out of his job after sustaining severe back injuries during the course of his duties as a music lecturer during his time at the College in the 1990’s.

Responses obtained by Diary of Injustice in reply to Freedom of Information enquiries reveal that Marsh, the insurance firm who insure all members of Scotland’s legal profession without exception, now also insure North Lanarkshire Council, who operate Motherwell College.

An official from North Lanarkshire Council replying to an FOI request admitted : “I can advise that North Lanarkshire Council’s Insurance Brokers until 30 September 2007 were AON, and from 1 October 2007 this service has been provided by Marsh. I can advise also that Travellers Insurance Company Limited have provided employers liability cover for the whole period of your request.”

In what is now Scotland’s longest running civil damages claim, Mr Wilson, the party litigant, has been forced to represent himself after several of Scotland’s leading law firms suspiciously abandoned his case at the very last minute. Mr Wilson is facing North Lanarkshire Council and their indemnity insurers, Travelers Insurance Co Ltd who are both being represented in court by Edinburgh law firm Simpson & Marwick. Senior Counsel for Simpson & Marwick is Ian MacKay QC, Junior Counsel being Calum Wilson both of Compass Chambers.

Now, following further investigations by Diary of Injustice and despite the outrageous time it has taken for Scotland’s civil justice system to hear their testimony, hearings in the Court of Session have shown that many internationally acclaimed experts have supported the party litigant’s claims.

I first reported on Mr Wilson’s case late last year, here : FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day where legal insiders who attended previous court hearings reported that Mr Wilson, who had been put in the position of having to represent himself after several big name law firms, who were at the time & are currently all insured with Marsh UK, withdrew from Mr Wilson’s case at the last minute prior to scheduled hearings of the Proof. Mr Wilson had also encountered repeated & numerous refusals of ‘expert witnesses’ from Scotland to assist his case as long as he was unrepresented. As a party litigant without representation, Mr Wilson was, according to court observers, forced abroad to Japan and the United States for supportive expert medical reports.

According to court documents seen by Diary of Injustice last October, Mr Wilson was previously represented by the well known Edinburgh law firm of Balfour & Manson, who were appointed by Scotland’s largest teachers & lecturers Union, the Educational Institute for Scotland (EIS), who spent tens of thousands of pounds assessing Mr Wilson’s injury as a valid claim, and that it should proceed to court. Amazingly it took the EIS almost THREE YEARS to lodge the summons against Motherwell College.

Papers studied by legal insiders reporting on the case revealed that Balfour & Manson, after being appointed by the EIS spent a staggering EIGHT YEARS working on Mr Wilson’s injury claim, and then at the last minute, decided to withdraw from acting for their client with only weeks to go before scheduled Proof Hearings in the Court of Session.

Balfour & Manson’s withdrawal from acting for Mr Wilson then became a suspicious pattern followed by further four law firms, including the Glasgow based Harper Macleod also withdrawing at the last minute, some eighteen months after representing Mr Wilson. Harper McLeod claimed they had ‘suddenly discovered’ “a commercial difficulty” in that they had an annual retainer from Motherwell College for several years, and had represented the College in Mr Wilson’s Employment Tribunal hearing over his unfair dismissal, which Mr Wilson won on a unanimous decision. Motherwell College also appealed the Employment Tribunal decision on Mr Wilson’s case and lost again.

A further two legal firms took on Mr Wilson’s case and then were apparently persuaded to drop their client, amazingly even returning fees paid to them for their service.

Motherwell College squandered £300K of taxpayers money fighting a string of Tribunal hearings involving bullying allegations against lecturers which the College lost. A number of media reports, referred to in recent coverage of the case by Scottish Law Reporter, show Motherwell College were involved in a string of Employment Tribunal decisions the college lost during Richard Millham’s term as Principal of Motherwell College. Allegations in newspapers including the Sunday Mail reported that “In 1999, lecturer Martin Wilson won £4000 after a tribunal ruled he had been unfairly fired. He had a back injury and could not work. A close friend said : “He was targeted by Millham. There was a strong climate of fear, which is still there .”

According to Scottish Law Reporter who last year reported on the case, “From 1995-1998 Motherwell College opposed Mr Wilson’s claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.”

Simpson & Marwick, who are representing Motherwell College & North Lanarkshire Council, are themselves famed for their representation of solicitors accused of professional negligence & client swindling, all supposedly covered by the Law Society of Scotland’s Master Policy Professional Indemnity Insurance Scheme, operated by Marsh to defend against negligence claims raised by clients. The Master Policy and its administration, operation was linked in 2009 to client suicides in an independent report published by the University of Manchester’s Law School.

One of Simpson & Marwick’s partners, Dr Pamela Abernethy famously appeared at the Scottish Parliament’s Justice Committee during 2008, telling msps that pleural plaques, an asbestos related condition, could actually be good for people. I reported on Dr Abernethy’s incredulous claims in September 2008, here : Insurance lawyers argue against laws to help asbestos victims asserting part of their suffering ‘is a good thing’

Marsh UK, the British end of the gigantic US insurance operation appear to be linked to many insurance deals in the public & private sector, ranging from multiple services provided by local & national government including law & order, to the private sector. Marsh also enjoy a monopoly on the insurance of all solicitors in Scotland through the Law Society of Scotland’s ‘brutal enforcement’ of the Master Insurance Policy arrangements where all solicitors are required to pay into the professional indemnity insurance scheme if they want to practice any form of law.

Marsh appear to have heavy political influence in the UK, with Conservative Lord Ian Lang now the Chairman elect of Marsh & McLennan companies, according to his register of interests published as per his duties as Chairman of the Advisory Committee on Business Appointments. Lord Lang joined the Marsh & McLennan board in 1997 and has assiduously refused all invitations to comment since news of the ‘Marsh Frauds’ broke, frauds which were accompanied by valid injury and disability claims being routinely denied. More on Lord Lang’s position at Marsh & McLennan and his career history, along with documents detailing serious allegations against many directors of Marsh including Lord Lang, can be viewed at Scottish Law Reporter, HERE

This reporter and the Scottish Law Reporters team will continue to follow this case closely.

 

FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day

Scotland’s Court of Session to hear lecturer’s 15 year wait for justice against Motherwell College. IN a fitting tribute to mark the poor state of Scotland’s civil justice system on the European Civil Justice Day held every 25th October, a record breaking personal injury civil damages claim against Motherwell College & North Lanarkshire Council in the Court of Session which has its origins in the mid 1990’s and last year brought about Scotland’s first civil law McKenzie Friend is now set to be followed by an unprecedented thirteenth year of litigation with further hearings scheduled for 2011 in what some claim is a considerable abuse of the court process & the individual’s right of a fair hearing within a reasonable time as enshrined in Article 6 of European Human Rights laws.

The case in question, M.Wilson v North Lanarkshire Council & Others (A1628/01) involves a sole party litigant, a former Music lecturer of Motherwell College, pitched against the might of North Lanarkshire Council and their indemnity insurers, Travelers Insurance Co Ltd who are both being represented in court by Edinburgh law firm Simpson & Marwick, themselves famed for their representation of solicitors shielded by the Law Society of Scotland’s Master Policy Professional Indemnity Insurance Scheme, operated by Marsh to defend against negligence claims raised by clients.

Legal insiders who have attended the court hearings report that Mr Wilson, who has been put in the forced position of having to represent himself after several big name law firms withdrew from his case at the last minute prior to scheduled hearings of the Proof, has also encountered repeated & numerous refusals of ‘expert witnesses’ from Scotland who refuse to assist his case as long as Mr Wilson is unrepresented. Instead, Mr Wilson has been forced abroad to Japan and the United States for supportive expert medical reports, leading to charges many in Scotland’s ‘expert witness’ groups “may have been nobbled or scared off” and will not provide their services to unrepresented party litigants such as Mr Wilson.

According to court documents seen by Diary of Injustice, Mr Wilson was previously represented by the well known Edinburgh law firm of Balfour & Manson, who were appointed by Scotland’s largest teachers & lecturers Union, the Educational Institute for Scotland (EIS), who spent tens of thousands of pounds assessing Mr Wilson’s injury as a valid claim, and that it should proceed to court. Amazingly it took the EIS almost three years to lodge the summons against Motherwell College.

Papers studied by legal insiders reporting on the case reveal that Balfour & Manson, after being appointed by the EIS spent a staggering eight years working on Mr Wilson’s injury claim, and then at the last minute, decided to withdraw from acting for their client with only weeks to go before scheduled Proof Hearings in the Court of Session.

Balfour & Manson’s withdrawal from acting for Mr Wilson then became a suspicious pattern followed by further four law firms, including the Glasgow based Harper Macleod also withdrawing at the last minute, some eighteen months after representing Mr Wilson. Harper McLeod claimed they had ‘suddenly discovered’ “a commercial difficulty” in that they had an annual retainer from Motherwell College for several years, and had represented the College in Mr Wilson’s Employment Tribunal hearing over his unfair dismissal, which Mr Wilson won on a unanimous decision. Motherwell College also appealed the Employment Tribunal decision on Mr Wilson’s case and lost again.

A further two legal firms took on Mr Wilson’s case and then were apparently persuaded to drop their client, amazingly even returning fees paid to them for their service.

Motherwell College squandered £300K of taxpayers money fighting a string of Tribunal hearings involving bullying allegations against lecturers which the College lost. A number of media reports, referred to in recent coverage of the case by Scottish Law Reporter, show Motherwell College were involved in a string of Employment Tribunal decisions the college lost during Richard Millham’s term as Principal of Motherwell College. Allegations in newspapers including the Sunday Mail reported that “In 1999, lecturer Martin Wilson won 4000 after a tribunal ruled he had been unfairly fired. He had a back injury and could not work. A close friend said : “He was targeted by Millham. There was a strong climate of fear, which is still there .”

During all this time and many forced appearances at the Court of Session as a party litigant, court staff have indicated in comments they believe Mr Wilson’s health has diminished considerably, one insider claiming to Diary of Injustice the former lecturer looked like he had aged 30 years in the last year alone.

Court of Session judge Lord Woolman to hear case in a few weeks time. Hearings on Mr Wilson’s personal injury claim are scheduled to start again in a matter of weeks at the Court of Session under Lord Woolman. Legal insiders say many are now taking a strong interest in the Wilson/NLC case and its final outcome, especially in the wake of the Lord Justice Clerk Lord Gill’s recommendations in his Civil Courts Review to reform what he described as Scotland’s “Victorian justice system”, which appears to be so Victorian, cases can float around in the justice system literally for decades with party litigants such as Mr Wilson failing to get anything near approaching “a fair hearing within a reasonable time”.

It is worth noting the solicitors acting for North Lanarkshire Council & Motherwell College, the Edinburgh law firm of Simpson & Marwick in their representation of insurers in connection with claims for asbestos related health diseases attained public notoriety last year in their appearance before the Scottish Parliament’s Justice Committee in September 2008, where one of their senior partners, Dr Pamela Abernethy of the Forum of Insurance Lawyers famously argued with MSPs that symptoms of Asbestos contamination were ‘good for people’.

It is also worth noting last year, the Master Policy, of which Simpson & Marwick often act as lead solicitors, often representing fellow solicitors facing negligence claims from clients, was investigated by the Scottish Legal Complaints Commission, with an independent report carried out by the University of Manchester’s Law School linking the secretive ‘Master Policy’ insurance scheme to the deaths of clients who had attempted to claim damages from ‘crooked lawyers’.

The SLCC’s report on the Master Policy and my earlier coverage on the revelations can be found 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 report from Scottish Law Reporter on Mr Wilson’s 15 year quest for access to justice in the Scottish Courts follows :

Record 15 year wait for justice approaches for lecturer in Court of Session showdown with former Motherwell college ‘Bully Boss’ principal

A staggering 15 year wait for Justice by a music lecturer against Motherwell College may see its disgraced former Principal appear in court. FIFTEEN YEARS later in what is Scotland’s longest running civil damages action involving Motherwell College, the disgraced former Principal & CEO of Motherwell College Richard Millham, dubbed the “Bully Boss” by the media due to a string of allegations of bullying involving college lecturers, may be back in the dock soon, this time in Scotland’s Court of Session in a civil damages action claim against Motherwell College, brought by Mr Martin Wilson, a former Music Lecturer at the College.

“Bully Boss” Richard Millham who was alleged in media reports ‘to have targeted Mr Wilson in a strong climate of fear’, was forced to resign after widespread press coverage of the many Employment Tribunal decisions lost by the College under his stewardship – some estimates put the cost of these at a staggering £300,000 pounds of taxpayers money.

One of several staff members who fought back against the bullying culture at Motherwell College was the Music Lecturer Martin Wilson, who has braved the Court of Session as a party litigant in a 15 year attempt to gain justice in his civil damages claim against Motherwell College, who are represented by Simpson & Marwick, who famously argued against the Damages (Asbestos) Bill at the Scottish Parliament, claiming to MSPs asbestos related illnesses were actually good for victims who suffered from ‘pleural plaques’, a condition that forms as a result of exposure to asbestos

From 1995-1998 Motherwell College opposed Mr Wilson’s claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.

Undeterred, the Board of Management of Motherwell College has continued to spend thousands of pounds more of taxpayers money for the last 13 years opposing Mr Wilson’s Personal Injury claim, the longest running civil case of its kind, the new Principal Mr Hugh Logan losing appeals before the FOI Commissioner and the Pensions Ombudsman along the way.

Mr Wilson has still not received his correct ill-health pension entitlement some 15 years after he was injured, all of which adds further substance to Lord Gill’s recent criticisms of the Scottish Civil Justice system as ‘failing society’ and often involving ‘scandalous delays’.

In an age of fairness and public sector cuts it is difficult to imagine how Motherwell College’s obstinacy can be justified. However it might have something to do with the important precedent the case will establish if successful and the attitude of the College’s disgraced insurer Travelers Insurance Co Ltd, who have also been fined hundreds of millions of dollars in connection with workers claims for asbestos injuries, one of many subpoenas alleging it had acted “maliciously” using “fraud, deceit and outright lies,” designing and orchestrating their claims settlement practices to “intentionally delay,” and raising defences that they knew would never succeed in order to settle claims for less money.

 

Lord Emslie defeats legal challenge over pleural plaques as Insurers ‘big name’ legal team fail to overturn Holyrood’s Asbestos compensation law

Insurers legal team was headed by Richard Keen QC, Dean of the Faculty of Advocates. Some good news to start 2010 as Scottish judge Lord Emslie yesterday threw out the Insurance companies legal challenge against the Damages (Asbestos-related Conditions) (Scotland) Act, which was voted through by MSPs in 2009 after Law Lords in England & Wales ruled against compensating people who had developed ‘pleural plaques’, as a result of exposure to asbestos.

Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy) were represented by the Dean of Faculty himself, Richard Keen, and Scots law firm Brodies LLP, but the big name legal team proved the big failure most people hoped for.

In a 150-page judgment issued at the Court of Session, which can be read online here : OPINION OF LORD EMSLIE in the petition of AXA GENERAL INSURANCE LIMITED and OTHERS Petitioners; for Judicial Review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009, Lord Emslie stated: “Not surprisingly, individuals diagnosed with pleural plaques are liable to become alarmed and anxious for the future, and this may severely reduce their enjoyment and quality of life. The diagnosis confirms significant asbestos exposure in the past, of which they may or may not previously have been aware; it underlines the much higher risk which they now face, many hundreds of times greater than for members of the population at large, of contracting lung cancer, mesothelioma or asbestosis; and in some cases it may bring to mind the suffering and perhaps death of friends, colleagues and relatives from these serious asbestos-related diseases.”

Lord Emslie concluded : “There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come. But for all of the foregoing reasons I am unable to accept that the petitioners’ complaints, either individually or collectively, come anywhere near the standard of “irrationality” which would be necessary in order to invalidate a primary Act of the Scottish Parliament. Whether that standard is, on comparative lines, to be derived from the Nottinghamshire and Hammersmith decisions in the House of Lords (as suggested in chapter IV of this opinion), or simply from traditional concepts of Wednesbury unreasonableness as judicially explained, is to my mind immaterial for present purposes. The petitioners plainly fail on either approach, and their common law challenge to the 2009 Act is therefore rejected.

I have previously reported on the Insurers legal challenge, where initially, they hoped the threat alone of a legal challenge against the Scottish Government’s proposed Asbestos Damages Bill would have been enough to scupper its success : Insurance firms with links to Scottish Government threaten legal challenge against Holyrood on asbestos claims reforms.

However, after the Bill was passed by the Scottish Parliament and became law, the threat became a legal challenge, which I reported on earlier, here : ‘Money must come before life’ as insurers & lawyers launch legal challenge against Scotland’s asbestos compensation law

Let us remind ourselves again just how low some people in the legal profession will go to argue against a person’s health & wellbeing, where indeed, pleural plaques from asbestos exposure are most certainly NOT good for you, despite some lawyers feeling they are (presumably because their big moneyed insurance clients said so).

Dr Pamela Abernethy (lawyer, Simpson & Marwick WS, Edinburgh) – Asbestos related Pleural Plaques ‘are good’

and the rest of that shocking episode here :

For further coverage, the Herald newspaper as always, excellently reports Lord Emslie’s commendable ruling :

Insurance giants defeated over asbestos damages law

heraldscotland staff

Insurance firms have lost a legal bid to overturn a new law which allows victims of an asbestos-related condition to claim damages.

Some of the biggest names in the insurance industry had challenged the law which came into force in Scotland last June.

But Court of Session judge Lord Emslie rejected their legal challenge.

His written ruling concluded: “There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come.”

But the judge said he does not accept that the insurers’ complaints come anywhere near the standard of “irrationality” needed to invalidate an Act of the Scottish Parliament.

The legal battle centred on a condition known as “pleural plaques”, which are changes in the layers of tissue which lie between the lungs.

The changes can be caused by past exposure to asbestos but have no symptoms or ill-effects and are not considered a disease in their own right.

The new law in Scotland was intended to reverse the effect of a landmark House of Lords ruling that people with pleural plaques could not seek compensation.

But insurers opposed the move, and the action to overturn the new law was raised by Axa, Norwich Union, Royal & Sun Alliance and Zurich Insurance.

When the legislation was going through Holyrood insurers argued that the new law ignored medical opinion and underestimated the cost of potential claims.

At the start of the court battle in May last year they argued the new law broke the essential legal principle of “proof of damage” and resulted from an “unreasonable, irrational and arbitrary” exercise by legislators.

The insurance companies argued that the law breaks European Convention on Human Rights provisions on property rights and unreasonable legal interference, that it will benefit a small group of people who had suffered no legal harm and that it will cost insurers hundreds of millions of pounds, or more, by retrospectively changing insurance contracts.

But their challenge was contested by Scottish ministers and by some people with pleural plaques.

They argued the insurers’ challenge was wrong in law, and that it did not fall within the permitted grounds of challenge to Holyrood legislation set out in the Scotland Act.

They also argued that it was the place of insurers to launch the challenge, as the damages claims would actually be brought against negligent former employers and the insurers would be affected only indirectly.

In his ruling Lord Emslie upheld two of the insurers’ legal arguments: on whether they had a close enough connection to mount a legal challenge, and on whether to challenge an Act of the Scottish Parliament on common law grounds of “irrationality” is valid.

But he still rejected the overall challenge.

Labour MSPs welcomed the ruling.

Member for North East Scotland Richard Baker said: “This is the right judgment and reflects the fact that this move by insurance companies to overturn the will of the Scottish Parliament was both unfounded and unjust.

“Most importantly this is good news for all those in Scotland who have had to suffer the trauma of being told they have pleural plaques and will now be able to pursue damages as they were previously able to do so.”

Asbestos campaigners welcomed the ruling.

Their lawyers called on the insurance industry to accept defeat and pay up.

Solicitor-advocate Frank Maguire said: “This judgment states categorically that the Scottish Parliament was perfectly within its rights to pass this law and that is tremendous news for pleural plaques sufferers.

“We have almost 1,000 pleural plaques cases which have been in limbo while the insurance industry pursued this ill-fated legal action.

“I now call on them to stop obstructing justice and not to try and put any more barriers in the way of victims seeking compensation.”

Mr Maguire said many insurance companies not involved in the court battle, as well as the Ministry of Defence and British Shipbuilders, had been holding back on settling pleural plaques cases.

“They also should now meet their obligations and pay up,” he said.

“The Westminster Government should now enact similar legislation for the rest of the UK.”

Harold McCluskey, chairman of Clydebank Action On Asbestos, said: “This is great news for the victims of pleural plaques.

“It is absolute rubbish to say that pleural plaques doesn’t affect victims. It’s as dangerous as any other asbestos-related disease.

“Most sufferers have some form of breathlessness but the biggest strain is the worry of developing into fatal conditions like mesothelioma which happens with frightening regularity.”

Former shipyard worker Dan O’Malley, 71, from Paisley, said: “I’m delighted the judge has ruled that the Scottish Parliament was right to pass this law.

“I was diagnosed with pleural plaques after suffering breathlessness and a persistent cough. I had all sorts of x-rays and finally a CT scan before pleural plaques was confirmed.

“Now it preys on my mind all the time especially since a very close friend of mine who had pleural plaques died of mesothelioma last year.”

 

First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Lord Woolman granted Scotland’s first Civil Law McKenzie Friend request FORTY YEARS after McKenzie Friends were first introduced to UK courts as a result of the 1970 McKenzie v McKenzie decision which set a legal precedent for court users in England & Wales to request and receive the invaluable assistance of a McKenzie Friend, Scotland’s Court of Session has finally, albeit grudgingly fallen into line with the rest of the country and many international jurisdictions by granting what many say is the first successful request for a McKenzie Friend to appear in Scotland’s civil courts.

The unexpected turn of events in the Court of Session last Tuesday, 17th November 2009 saw the sitting judge, Lord Woolman allow the attendance of Scotland’s first ever McKenzie Friend in a long running civil damages action which named Motherwell College, North Lanarkshire Council & Edinburgh Law firm Simpson & Marwick as defenders. The case, a medical injury claim recently heard ‘potentially explosive allegations’ against the College from the witness box.

A spokeswoman for the Scottish Courts Service confirmed the first use of a McKenzie Friend in Scotland, issuing the following brief statement : “I confirm [the party litigant] was allowed to be assisted in the manner associated with the term “McKenzie Friend”. [The litigant’s] supporter was advised by the Court as to the nature of his role and is seated behind [the litigant] in court in the place where an instructing agent (solicitor) would sit.”

The Scottish Courts Service was further asked to confirm this was the first successful use of a McKenzie Friend in a civil damages action in Scotland. However, the SCS said they did not keep such statistics or data, and therefore could not confirm one way or another.

A senior official of one of Scotland’s consumer organisations welcomed Lord Woolman’s decision to allow the use of a McKenzie Friend. He said : “The rights of party litigants in Scotland’s civil courts have been greatly enhanced by Lord Woolman’s decision allowing what we understand to be the first ever use of a McKenzie Friend in a Scottish court. We hope this will be the first of many successful applications to the Scottish courts for the use of McKenzie Friends in cases were consumers have found it difficult or too costly to obtain the services of a solicitor to represent their legal interests.”

However, Lord Woolman’s decision in requiring the McKenzie Friend to ‘sit behind’ the party litigant came in for criticism, due to the fact that in England & Wales, and most international jurisdictions were McKenzie Friends are allowed, the party litigant requesting the advice & assistance of a McKenzie Friend usually find their McKenzie Friend sits beside them, rather than behind them.

A senior barrister from England said today : “I have often attended hearings where McKenzie Friends have assisted party litigants, seated next to them. I have not attended a hearing where an English court has insisted or required that a McKenzie Friend must sit behind their party litigant. Such a seating arrangement would be counterproductive to the litigant who would be put in a position of having to constantly turn around, seeking advice on what to say or asking to see notes taken by the McKenzie Friend. I would think the judge’s patience would fray a little at such a constant head turning prospect, and therefore on that basis I would have to say your Scottish judge got it wrong on who sits where.”

A former party litigant whose experiences were recently reported in a Consumer report on Scotland’s Civil Courts today said : “I found the entire system stacked against me in court and it will come as no surprise I lost. If I had been able to use a McKenzie Friend I might have won my case, or at least come to a settlement but the judge in my case said I could not have a McKenzie Friend. The lawyers laughed at me when I was forced to drop my case and to this day I feel very bitter about it.”

He continued : “Where a Scotsman living in England or Wales, can enter an English court with a right to have a McKenzie Friend by his side to help him in his hour of need, yet a Scotsman living in Scotland asking for the help of a McKenzie Friend will still have to face the discretion of individual courts who may seat his McKenzie Friend miles away to the rear .. is not fair. This lack of fairness has to be put right.”

Lord Gill recommended McKenzie Friends be introduced in his Civil Courts Review. In the recent Civil Courts Review, conducted by Scotland’s Lord Justice Clerk, Lord Brian Gill recommended that McKenzie Friends should be introduced in Scotland, not only being allowed to sit beside a litigant but also to be granted a right of audience in some circumstances, to speak for litigants. However, Lord Gill’s detailed recommendations on the introduction & application of McKenzie Friends in Scotland’s courts conflicts severely with claims made by the Lord President to Holyrood’s Petitions Committee, where Lord Hamilton claimed that such assistance as provided by McKenzie Friends had always existed in Scotland, when in fact, no recorded use of McKenzie Friends in Scottish Civil Courts has taken place until now, this now confirmed by the Scottish Courts Service itself.

You can read my earlier articles on Lord Gill’s recommendations for the introduction of McKenzie Friends in Scotland, here : Scots Law ‘shake up’ as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

You can read my earlier reports on the battle to bring McKenzie Friends to Scotland here : McKenzie Friends for Scotland – A battle worthy of a McKenzie Friend

As legal experts in Scotland continue to assess the impact of Lord Woolman’s ruling on McKenzie Friends, and the precedent the decision has now established, the race is now on to set rules and guidance for the Scottish Courts on the general application & acceptance of McKenzie Friends to provide unrepresented party litigants with advice & assistance during court appearances.

A legal insider pointed out today that in England & Wales, as soon as a litigant makes a request to have a McKenzie Friend assist their litigation, the English courts must consider that request on a Human Rights basis, as contained in the Lord President of the Family Division’s guidance to the English Courts, which clearly states :

• When considering any request for the assistance of a McKenzie Friend, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.

• The litigant in person should not be required to justify his desire to have a McKenzie Friend ; in the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend.

• A favourable decision by the court, allowing the assistance of a McKenzie Friend, should be regarded as final and not as something which another party can ask the court to revisit later, save on the ground of misconduct by the McKenzie Friend or on the ground that the MF’s continuing presence will impede the efficient administration of justice.

What a McKenzie Friend May Do :

• Provide moral support for the litigant
• Take notes
• Help with case papers
• Quietly give advice on : points of law or procedure ; issues that the litigant may wish to raise in court & questions the litigant may wish to ask witnesses.

What a McKenzie Friend May Not Do :

• A McKenzie Friend has no right to act on behalf of a litigant in person. It is the right of the litigant who wishes to do so to have the assistance of a McKenzie Friend.

• A McKenzie Friend is not entitled to address the court, nor examine any witnesses. A McKenzie Friend who does so becomes an advocate and requires the grant of a right of audience.

• A McKenzie Friend may not act as the agent of the litigant in relation to the proceedings nor manage the litigant’s case outside court, for example, by signing court documents.

The full guidance from the Lord President of the Family Division on the use of McKenzie Friends in England & Wales can be downloaded here : President’s Guidance: McKenzie Friends

One of the most important issues with regard to the use of McKenzie Friends in England & Wales, is that when a litigant makes a request for a McKenzie Friend, the request is considered with regard to Article 6 of Human Rights legislation. Currently, this is not the case in Scotland, and as yet, no guidance has been released from the Lord President’s office addressing these issues.

This Human Right of a McKenzie Friend to the unrepresented people across our country must not be separated by the hills of the Scottish Borders, simply on the basis the Scottish legal establishment, and the legal profession feel they will lose control over the courts and perhaps more importantly to them, control over access to justice and law firms profits.

Given the confused and contradictory claims by the Lord President, Lord Hamilton and the Scottish Government in its responses to the McKenzie Friend petition, and Lord Woolman’s following to the letter of Lord Hamilton’s ‘sit behind & far away’ policy, a right and entitlement to a McKenzie Friend in Scottish Law is long overdue and can no longer be allowed to remain ‘in the the gift’ of the Court. Give Scots the right of a McKenzie Friend.