APPEAL TO THE COURT OF SESSION UNDER SECTION 21 OF THE LEGAL PROFESSION AND LEGAL AID (SCOTLAND) ACT 2007 BY DAVID BARTOS, ADVOCATE AGAINST A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION DATED 24 JANUARY 2014
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 50
XA66/14
Lady Paton
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD MALCOLM
IN THE APPEAL TO THE COURT OF SESSION UNDER SECTION 21 OF THE LEGAL PROFESSION AND LEGAL AID (SCOTLAND) ACT 2007
by
DAVID BARTOS, ADVOCATE
Appellant;
against
A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION DATED 24 JANUARY 2014
Respondent:
Act: R Dunlop QC; Simpson & Marwick
Alt: Lindsay QC; Anderson Strathern LLP
26 June 2015
[1] On 24 January 2014 the Scottish Legal Complaints Commission upheld a complaint against David Bartos, advocate. Mr Bartos had acted as counsel for a Mr Hull, who was the pursuer in a Court of Session action, the detail of which will be recounted in due course. The complaint was as follows:
“Mr Bartos falsely stated during the hearing on 7 October 2010 that it was my wish that the case be dismissed, despite having no instructions to do so.”
Mr Bartos has obtained leave to appeal to this court in terms of section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007. Having conceded that at least one of the grounds of appeal is well founded, the Commission is not resisting the appeal on its merits, but has invited the court to remit the complaint to the Commission for it to be re-investigated and determined of new before a differently constituted committee. This is opposed by Mr Bartos, who asks the court to rule upon the substance of the complaint. Section 21 provides that an appeal can proceed upon the basis of an error of law; procedural impropriety; irrational exercise of a discretion; or that the decision was not supported by the established facts. The Commission has accepted that the determination committee failed to provide adequate and comprehensible reasons for its decision and that this amounts to an error of law. Section 22 allows the court to make such order as it thinks fit, including substituting its own decision for that of the Commission.
An issue concerning the complaint’s categorisation as “a hybrid complaint”
[2] Before setting out the background, it can be noted that the complaint was classified as “a hybrid complaint”. The court wishes to make some general observations on this classification. They are not determinative of the current appeal, but flow from a concern as to the competency of the procedure which has been adopted.
[3] In the 2007 Act the Government determined that a new body, independent of the professional organisations, and containing significant lay involvement, would be set up to handle complaints of inadequate professional services and oversee the investigation of conduct complaints by the profession. It would be a single gateway for all the complaints against legal practitioners which could not be resolved between the complainer and the practitioner. The office of Scottish Legal Services Ombudsman was abolished. The professional bodies retained jurisdiction in respect of misconduct issues and expulsion from the profession.
[4] The Commission was charged with the classification of complaints as either conduct or services complaints, and to direct them accordingly. The professional body would investigate and determine conduct complaints, and the Commission likewise for services complaints. Thus section 5(1) of the Act makes provision for the Commission determining the nature of a complaint, namely as either a conduct complaint or a services complaint; and whether, and if so to what extent, “the complaint constitutes separate complaints falling within more than one of these categories, and if so which of the categories.”(emphasis added). Should it appear to the Commission that a complaint may constitute both a conduct complaint and a separate services complaint it must consult with the relevant professional body before making a determination under section 5(1).
[5] The court was given to understand that the Commission now operates a system whereby a complaint, even if it raises only one issue, as is the case in respect of the present complaint, might be categorised as what is called a “hybrid complaint”; namely a single complaint which has elements of both conduct and service matters. Thus one can have a situation where the Commission decides that both the professional body and the Commission should investigate exactly the same allegation; one with a view to determining whether it constitutes either professional misconduct or unsatisfactory professional conduct, and the other considering whether it amounts to inadequate professional services. It also follows that there would be separate and discrete appeal procedures, as has arisen in the present case.
[6] At the outset of the hearing the court asked whether this practice was justified in terms of the statutory provisions in section 5, which, on their face at least, envisage that a single complaint must be classified as either a conduct complaint or a services complaint, and dealt with accordingly. If that is correct, the so called hybrid approach could apply only if and when a complainer raised more than one issue, or as it is put in section 5, “separate complaints.” This would avoid the situation which has occurred here, with the Commission requiring the Faculty to investigate whether Mr Bartos acted without instructions and the Faculty deciding in the negative, and quite separately, although retaining an oversight role as to the Faculty’s process, the Commission investigating exactly the same issue and deciding that the correct answer is yes.
[7] In the discussions preceding the 2007 Act, it was recognised that there could be different views as to whether a particular complaint should be categorised as a conduct or a services matter. The role of adjudicator on this issue was given to the Commission. It was not anticipated that both the professional body and the commission would investigate and determine exactly the same factual issue, such as whether counsel acted without instructions when moving for dismissal of an action. It was recognised that many conduct complaints could be viewed as raising inadequate professional services issues. An example might be an advocate acting when under a conflict of interest. In such a situation, the Commission would have to decide on the appropriate track, ie to refer it to the professional body or give priority to its jurisdiction over services issues. Equally a complaint could be seen as having at least two separate strands or elements, which fell into different camps. An example might be that a solicitor falsely represented that he was a specialist in a certain area (a conduct matter) and be criticised for the quality of his work (a services issue). In that situation the Commission could direct the different elements of the complaint down different routes.
[8] It should be stressed that this matter was raised by the court, not the parties. However, on the face of it, there is at least a question as to whether the procedure adopted in the present case accords with Parliament’s intention as expressed in the Act. The court heard only brief and necessarily somewhat impromptu responses from counsel. The court indicated that it would not attempt to reach a view on the correct approach to this part of the Act, nor decide the appeal on this basis. Thus the above comments are provisional and should not be regarded as expressing a concluded view one way or the other. They have no bearing on the outcome of this appeal. However it is considered proper to raise the issue since the Commission and the professional bodies may wish to reflect on the validity of the current practice. If appropriate, and if so advised, it can be raised as a live issue for determination in a future case.
The background to the appeal
[9] In February 2011, Lord Turnbull resolved an action brought by Mr Hull against a Mr Campbell. Mr Bartos was counsel for Mr Hull. The decision in the case and Lord Turnbull’s opinion can be found at 2011 SLT 881. In brief, the circumstances were as follows. In 1992 Mr Hull obtained decree against Mr Campbell in respect of a debt of £9,600. In 1998, no payment having been made, the court pronounced a decree of adjudication in Mr Hull’s favour in respect of Mr Campbell’s heritable property. The 10 year reversionary period (“the legal”) expired without any payment or offer towards the debt. The case before Lord Turnbull was a legally aided action seeking declarator (1) of expiry of the legal and (2) that Mr Campbell’s half share of a house, jointly owned with his wife, now belonged to Mr Hull. At the date of the action the house was worth approximately £130,000. By this time, having regard to accumulated interest, Mr Campbell’s debt to Mr Hull stood at just over £52,250. Remarkably, no one could enlighten Lord Turnbull as to the nature or circumstances of the original debt.
[10] His Lordship discussed the ancient origin of the remedy sought, it being traceable to an Act of 1449. A question had arisen as to the compatibility of the remedy with article 1 of the first protocol to ECHR. This provoked representation at the proof on behalf of the Lord Advocate. It is plain from the Lord Ordinary’s discussion, for example at paragraph 10 of his opinion, that he was concerned as to whether it was open to the court to pronounce the order sought without any compensating award in favour of Mr Campbell in respect of the extent to which the value of his share of the house was greater than the accrued debt. Mr Bartos submitted that the relevant primary legislation is clear, and that, notwithstanding the first protocol, the court has no power to make an order against Mr Hull to reflect the excess. According to Mr Bartos, there was no alternative but to grant decree as sought.
[11] The submission of counsel for Mr Campbell, which was made for the first time on the last day of the hearing, and with no prior notice in the written pleadings, was that the court should grant decree, but attach a requirement that Mr Hull should account to Mr Campbell for any excess over and above the accrued sum after expenses of the sale of the house had been taken into account. The latter is a reference to the need for a sale of the jointly owned property in order to realise monies which could be used to satisfy the debt owed to Mr Hull and to provide compensation to Mr Campbell. It was submitted that the court had an inherent discretion as to the terms of any decree, and that this avoided any incompatibility with article 1 of protocol 1. Counsel for the Lord Advocate supported this approach, submitting that the court could provide a remedy, thereby preventing any windfall which otherwise would be obtained by Mr Hull.
[12] In his discussion of the matter, Lord Turnbull noted the absence of any authority or guidance on the point. Clearly he was troubled by the injustice inflicted upon Mr Campbell by the approach adopted by Mr Hull. His Lordship observed that Professor Gretton had expressed the view that “if the value of the subjects is greater than the debt, the debtor should, in equity, be entitled to be paid the value of the excess.” Mention was made of a Scottish Law Commission report which commented that there should be a rule “requiring the adjudger to account to the debtor for the value of the property.” Some older cases suggested that the court enjoys a discretionary power to remedy unfairness.
[13] Lord Turnbull concluded that Mr Bartos could not be correct when he contended that the court had no discretion and could only impose what amounted to a penalty upon Mr Campbell. Lord Turnbull said “there would be no justice… in a system which enabled a creditor to recover more than the debt due plus interest.” He decided that he would only grant decree subject to “a requirement that the pursuer account to the defender for any excess over the agreed cumulated sum plus reasonable expenses of sale.” This opinion was reached quite separately from Convention considerations. In any event, according to the judge, any lack of compensation would upset the balance of the rights inherent in article 1. A decree in favour of Mr Hull requiring him to provide compensation for the excess over and above the debt would not interfere with any fundamental feature of the scheme of diligence set out in the relevant legislation, namely an Act of 1672. In Lord Turnbull’s opinion, it would not go against the grain of that Act to require the pursuer “to account to the defender for any excess value obtained.”
[14] At this stage it is necessary to advert to something which happened on the first day of the hearing. Mr Hull’s solicitor provided an account taken from his contemporaneous hand-written notes. It can be summarised as follows. By this stage of the hearing the judge had given “a clear indication” that he was not favourably disposed towards what came to be referred to as an unconditional decree, namely one transferring ownership, but imposing no obligation on Mr Hull to account to Mr Campbell for the surplus. After court, at a meeting with Mr Hull, which lasted for almost an hour, Mr Bartos discussed the options. It was suggested to Mr Hull that he could give an undertaking to account for “the windfall”, but Mr Hull would not countenance that, nor a conditional decree (being one giving him the half share in the house but requiring an accounting in respect of the excess). His position was that “if he got a windfall – he got a windfall”. He did not have the resources to market the property, and Mrs Campbell was a co‑proprietor. Mr Hull was told that, apart from obtaining either a conditional or an unconditional decree, the only other course of action open to him was to sequestrate Mr Campbell for the debt. Mr Campbell’s trustee would then sell the house and account to Mr Hull for the value of the debt. However, any form of decree of adjudication in favour of Mr Hull would close off the sequestration route since Mr Campbell’s share of the house would pass from his estate to Mr Hull. According to his solicitor, Mr Hull gave instructions that he would not provide an undertaking, and that he did not want a conditional decree, which would require him to sell the house and account to Mr Campbell for the surplus. Failing an unconditional decree, as sought in his summons, his preferred option was to proceed to the sequestration of Mr Campbell.
[15] Mr Hull’s solicitor then describes what happened on the third and last day of the proof. Mr Hull was ill and therefore not in attendance at court. For the first time, and contrary to his position in the pleadings, Mr Campbell’s counsel presented the submission summarised earlier; in short that the court had power to make a conditional decree. To the solicitor’s surprise, since he considered that they already had instructions on the point, Mr Bartos told the court that he wished time to take instructions. However the judge refused this on the basis that the point had been raised by him on the first day and that it followed that Mr Bartos should require no indulgence. The solicitor chose not to phone his client for instructions, being of the view that there was no need to do so. In the event, during his submissions in reply to the contentions of the other counsel, Mr Bartos moved the court to grant an unconditional decree, failing which to dismiss the action or grant decree of absolvitor. For reasons of confidentiality, he did not explain to the court and the others present that the purpose was to keep open the possibility of Mr Hull proceeding to sequestrate Mr Campbell, should he fail in his primary submission. The solicitor considered that all of this was the correct thing to do, and in accordance with the instructions and wishes of his client. He told Mr Bartos that he agreed with this course of action.
[16] The solicitor understood that the judge was envisaging an order whereby Mr Hull would be under an immediate obligation to account to Mr Campbell for the surplus. This is an important point. In due course it will be explained that the Commission has based its decision on a different view as to what would have been involved in a conditional decree – namely that it would place no immediate payment obligation on Mr Hull. However, in our view it is clear that the solicitor’s understanding is correct, given the terms of Lord Turnbull’s opinion. It is also consistent with the earlier discussion about an undertaking.
[17] Reverting to Lord Turnbull’s opinion, his Lordship said that the proposal that, failing an unconditional decree, the court should dismiss the claim, came as a surprise. This is understandable in the wholly correct absence of an explanation from Mr Bartos as to the content of the discussions on day one, and Mr Hull’s preference for sequestration over a conditional decree. The judge rejected the invitation to pronounce decree as sought, and reached the view that he was only prepared to grant a conditional decree. Thus, in accordance with the position as set out by Mr Bartos, he dismissed the action.
The complaint
[18] After Mr Hull was informed of the outcome of his case, he lodged a complaint with the Commission in the following short and simple terms:
“Mr Bartos falsely stated during the hearing on 7 October 2010 that it was my wish that the case be dismissed, despite having no instruction from me to do so.”
He stated that he was “now in limbo” and was unaware of the position regarding a debt of 20 years. He wanted the complaint to be forwarded to the relevant professional body, namely the Faculty of Advocates. Given the conflict which had arisen between Mr Hull and his legal team, the solicitor withdrew from acting. Mr Bartos received no further instructions in the matter. As discussed earlier, the Commission reached the decision that both it and the Faculty would carry out separate and independent investigations into whether Mr Bartos had instructions which covered his statements to the court. As we understand it, this was because the Commission considered that the complaint raised both conduct and services issues.
[19] In due course the Commission remitted the matter to a member of their staff for investigation and any recommendations. When the complaint came before the determination committee, its members accepted the terms of the investigator’s report. In particular the committee “agreed with the case investigator’s conclusion in paragraph 4.82 of the report that there was a substantial difference between the ‘ settlement proposals’ that Mr Hull had rejected earlier and ‘the likely terms of a conditional declarator’.” On this basis the members of the committee were of the view that counsel should have sought and obtained instructions from Mr Hull, and that since there was no evidence that either he or the solicitor had tried to do so, the complaint should be upheld. The committee also agreed with the investigator’s recommendation as to a payment of £4,000 by Mr Bartos to Mr Hull for distress and inconvenience. The committee noted that the complaint had been classified “as hybrid”, and that the Faculty of Advocates had completed its investigation into the conduct aspect. Almost a year earlier a Faculty Committee had dismissed the complaint as unfounded.
[20] The Faculty’s reasoning for dismissing the complaint relied heavily upon the discussion on the first day of the proof, all as recorded by Mr Hull’s solicitor. The view was taken that “once the volume of information was sifted down” the essential issue was whether counsel acted in a manner consistent with the instructions he had been given. The Faculty committee concluded that the answer is yes – the Commission’s committee that the answer is no. We now explore the reasons for the Commission’s decision.
The investigator’s report
[21] The Commission’s committee accepted the investigator’s conclusion that Mr Bartos did not have instructions to do what he did, hence the determination that Mr Hull received an inadequate professional service from counsel. It is necessary to scrutinise the reasons for the investigator’s view, given that, in its decision, the committee did no more than associate themselves with it. The investigator’s approach is set out in chapter 4 of his report. We now summarise his reasoning.
[22] Given the position which had been adopted by the Lord Advocate, the investigator suggested that the late change of stance on the part of Mr Campbell’s counsel did not introduce a new argument into the proceedings. For the investigator, it was far from clear why Mr Bartos should have considered that the change in Mr Campbell’s case required any “last minute alteration” in Mr Hull’s case, still less one that led to its dismissal. In any event, the change in the position adopted on behalf of Mr Campbell benefited Mr Hull in that it removed the possibility of complete failure (paragraph 4.11).
[23] We comment that the change in Mr Campbell’s position from outright opposition to a compromise position would only amount to a benefit to Mr Hull if a conditional decree was seen as preferable to the other option of sequestration. Furthermore, in so far as Mr Bartos’ response is concerned, this was not a change in Mr Hull’s case. Counsel was responding to the alternative proposition belatedly embraced by Mr Hull’s opponent. It had been discussed earlier in the hearing with Mr Hull, when it was clear that the judge was attracted to it. It was Mr Hull who said that if he could not obtain what he wanted, namely an unconditional decree, he preferred the option of sequestration. A conditional decree would involve the sale of the house, something which was against Mr Hull’s wishes.
[24] The investigator continued by stating that, given the position adopted by the Lord Advocate, he (the investigator) reckoned that the point should have been discussed with Mr Hull before the case began, and if Mr Hull did not want a conditional declarator, that could have been made clear in the opening submissions. That Mr Bartos sought permission to reply to the other side’s submissions “at a late stage”, suggested a “last minute change of mind” on his part (paragraph 4.12).
[25] Much of this section in his report betrays a lack of understanding on the part of the investigator as to how court actions operate in practice. It is normal for a claimant’s counsel to respond to the submissions made on behalf of other parties, not least if they involve a change of front on their part. Furthermore, even leaving aside the tactical or strategic issues which would arise, to take the view that all of this should have been anticipated in advance, discussed with Mr Hull and a position set out in opening submissions, strikes us as an unrealistic counsel of perfection, which is being exercised with the full benefit of hindsight.
[26] The investigator then identified the key question as being whether or not the representation made to the court accorded with Mr Hull’s wishes and instructions. The difference of view on this could have been avoided if someone had contacted Mr Hull on the final day. In the event, counsel’s submissions deprived Mr Hull of a conditional declarator and “left him with nothing at all out of the proceedings” (paragraph 4.15). So far as the complaint against him is concerned, Mr Bartos required to establish his position “in clear and unequivocal terms”; but, in the view of the investigator, there were a number of hurdles for him to overcome. First, the discussion on day one was in the context of a possible settlement of the claim. It was dangerous to rely on that discussion “as authority for a fundamental change in the way the case was brought.” It could be that Mr Hull rejected something when he was hoping for something better – but it was different to suggest that he rejected it if it was the best that could be achieved (paragraph 4.17).
[27] The second hurdle was that, in one of his statements, Mr Bartos had said that “this was in substance the same outcome that you had rejected the previous day.” According to the investigator, the words “in substance” suggest that there was a difference; and in the view of the investigator, there was a substantive difference. The third problem was that there is little “if any” evidence that Mr Hull ever wanted to recover his debt by way of the sequestration of Mr Campbell. Fourthly, if Mr Hull wanted to go for sequestration, an unconditional declarator would similarly be a bar to proceeding in that matter. The difference was that, in the event of a conditional declarator, he would have to account for the windfall on a sale.
“If it were still considered appropriate to seek an unconditional declarator at the expense of the option of sequestration, it is difficult to understand why a conditional declarator should have been considered an inappropriate and undesirable outcome.” (paragraph 4.21).
The fifth problem derived from certain of counsel’s own statements. In one he said:
“I acted in accordance with my understanding that you wished payment of your debt and in bona fide view that it was in your best interests, particularly bearing in mind your elderly age and shortage of funds.”
The investigator concluded that it was therefore clear that Mr Bartos used an element of his own judgement in the matter. If Mr Hull had given instructions on a particular course of action, Mr Bartos “would have been duty bound to follow those instructions” and would not have needed to take any view as to what was in Mr Hull’s best interests. If Mr Hull was capable of giving instructions, the investigator was unable to see how his age was relevant. If Mr Bartos’ position was correct, all he had to do after the issue arose was “remind Mr Hull of what he had expressly agreed.”
[28] Pausing at this point, it can be noted that the investigator has not addressed the evidence of Mr Bartos, and of Mr Hull’s solicitor – then in the form of his notes – that Mr Hull made it clear that, if he could not obtain an unconditional declarator, his preferred option was sequestration. It would appear that the investigator found the events on the final day to be such a surprising turn of events that this information as to Mr Hull’s wishes could not amount to the clear evidence which Mr Bartos was said to require in order to explain what was described by the investigator as “the very fundamental nature and effect of the submission he made.”
[29] In our view it is a surprising omission in (a) the investigator’s report, (b) his responses to the parties’ comments upon it, and (c) the determination committee’s decision, that nowhere do they specifically address the evidence from Mr Hull’s solicitor. As conceded by counsel for the Commission, the burden of proof rested on Mr Hull, and, at least ordinarily, one would suppose that the contrary evidence of his own solicitor would present “hurdles” to the establishment of the complaint. As it is, the starting point appears to have been that it would be very surprising if instructions were given which justified the course taken by counsel. The instructions do not seem surprising to us, and certainly not such as would cause us to look for “clear and unequivocal” evidence in support of them over and above the direct evidence of Mr Bartos and Mr Hull’s solicitor. There is an abundance of evidence that, failing an unconditional declarator, Mr Hull wanted to recover his debt by way of the sequestration of Mr Campbell. If the Commission is in possession of clear evidence to the contrary from Mr Hull in the shape of a statement, letter or whatever, it has not been produced to the court. However, even leaving aside the evidence from Mr Bartos and Mr Hull’s solicitor, it is clear that Mr Hull always set his face against having to sell the house, something inevitably required if he was to satisfy any monetary obligation to Mr Campbell. It can also be noted that, if one accepts the account given of the discussion on day one by Mr Hull’s solicitor as reasonably accurate, the essential question had not changed come the final day, namely, if a conditional decree is on offer, is that preferred to the sequestration route? Furthermore, contrary to the view taken by the investigator, Mr Hull was not left with nothing. Having failed to obtain the desired outcome of an untrammelled half share in the property, he still retained the option to recover his debt by way of sequestration, something which would not involve the burden of selling the property in the context of a possibly disputatious joint ownership with Mrs Campbell.
[30] The investigator was correct in saying that an unconditional declarator would also be a bar to sequestration. However he appears to overlook the essential difference, namely, that if Mr Hull obtained the unconditional decree as sought by him, he would obtain ownership of the property without any debt owed to Mr Campbell and no need to sell the subjects. It is clear from other information in the case that, in the event of outright success in the action, Mr Hull was confident that this would provoke a realistic settlement proposal from Mr Campbell. In contrast to the view of the investigator, we do not find it difficult to understand why an unconditional declarator was regarded as satisfactory, but a conditional declarator was not. One gives Mr Hull ownership of an asset worth considerably more than the debt. The other gives him ownership plus an obligation to pay money to Mr Campbell, which could only be achieved by way of the successful sale of the subjects.
[31] The investigator read much into certain comments of Mr Bartos as to him acting in what he considered to be Mr Hull’s best interests. We do not understand this as indicating, albeit indirectly, some conflict between the action taken and the instructions or wishes of Mr Hull. An advocate always retains a discretion to act in accordance with the best interests of the party instructing him, and whatever his instructions, it would be entirely proper for Mr Bartos to give consideration to Mr Hull’s best interests. Reference to them by Mr Bartos does not imply the contradiction suggested by the investigator. As to the relevance of Mr Hull’s age and shortage of funds, the potential problems of propelling him into an action of division and sale are reasonably clear.
[32] From paragraph 4.25 onwards the investigator discusses the background circumstances, “in particular to look at what exactly it was that Mr Hull wanted from the proceedings.” The solicitor’s file, which had been sent to Mr Bartos, showed that Mr Hull just wanted ownership. He did not want to sell and thereby eject Mrs Campbell from her home. Mr Hull had difficulties in understanding the potential importance and effect of the human rights issues. It was his clear intention “to go for ownership, and he was prepared to sit back and wait for payment”. All of this was communicated to Mr Bartos. Pausing here, it is noteworthy that all of this is consistent with the evidence of Mr Bartos and Mr Hull’s solicitor that, when it became clear that the judge might pronounce a decree which would require a sale and an accounting to Mr Campbell, Mr Hull expressed both unhappiness with that outcome, and, failing outright unencumbered ownership, a preference for sequestration.
[33] The investigator referred to certain pre-proof correspondence from which he inferred that Mr Hull was hoping that obtaining title to the property would enable him to negotiate a satisfactory outcome. He did not want to go down an alternative route of sequestration. The note of a pre-proof consultation did not suggest anything other than counsel proceeding with the action with a view to obtaining a one-half share of the property for Mr Hull. Here, and elsewhere in the report, there is more than a hint that the investigator thinks that counsel abandoned this approach. The investigator recorded that the note of the consultation included the following: “If doesn’t work, can use the adjudication to raise a sequestration ...”. The investigator commented: “It is clear ... that on this occasion there was a mention of sequestration, but only as a fall-back remedy if the claim failed.” The investigator noted that after the consultation Mr Bartos carried out some research which confirmed that, in the event of a sequestration, Mr Hull would have first claim on the net proceeds of the sale of the house. The investigator noted that in the lead up to the proof matters were left on the basis “that Mr Hull could go for sequestration if all else failed” (paragraph 4.47). He noted that this was being referred to as a “fall-back remedy”, not as “any alternative remedy.” It seems plain from his discussion that the investigator places some importance on a perceived distinction between a “fall‑back” and an “alternative” remedy, though we are unclear as to the supposed difference and its significance. By way of an example, at paragraph 4.49 the investigator said:
“It is against this background that Mr Bartos needs to establish that during the first two days of the hearing sequestration was being looked at in an entirely different light. He needs to establish that sequestration had gone from being just a fall-back remedy, if the case were unsuccessful, to a remedy that Mr Hull wished to pursue as an alternative to having a conditional declarator, but not as an alternative to having an unconditional declarator.”
The investigator noted that Mr Hull wanted an outright title to Mr Campbell’s one-half share of the house. He did not want to force a sale thereafter. He thought he could negotiate a settlement with Mr Campbell once he had title. If the claim failed, he could sequestrate Mr Campbell. Then on day one, there was a concern that the judge was favouring a decree subject to an accounting to Mr Campbell for the surplus. No previous instructions on this had been sought. That occurred at the meeting mentioned earlier.
[34] The investigator then turned to consider documentation following upon Mr Hull’s letter of complaint – see paragraphs 4.50 and following. Reference was made to counsel’s initial response to the letter of complaint. It is recorded that Mr Bartos said as follows:
“At the consultation of 23 September 2010 I advised you that should the action be dismissed or decree of absolvitor granted your alternative remedy was to seek the sequestration (bankruptcy) of the debtor. At the first day of the proof hearing the judge wondered whether the action could not be settled by means of the court granting the remedy that you sought (declarator of expiry of the legal) with you agreeing to payment of your debt from the sale proceeds of his half share of his home and remitting any surplus… to the debtor. I discussed settlement on these lines with you before the beginning of the hearing on the second day of proof. The discussion took place outside of the door of court 11 at the Court of Session, seated at a table there. Your solicitor ... was also present. At the meeting you clearly and unequivocally rejected any such settlement as you said that you did not have sufficient funds to sell the debtor’s home and wanted to be paid in cash. You were simply not interested in having to sell the house in order to recover the debt. It was also reiterated to you at this meeting that if you rejected the settlement and the court refused the declarator which you sought, your alternative remedy would be sequestration in which the trustee could sell the house and recover the debt for you.”
The investigator’s comment was that:
“There is no mention of sequestration having been discussed as an alternative to having any form of declarator, in particular a conditional declarator. This omission appears significant, the implication being that such discussion did not take place. If it did not take place it would not be possible for Mr Bartos to establish that he had Mr Hull’s specific instructions to do what he did.”
We do not find it easy to follow what is being said, or at least inferred by the investigator at this section of his report. It may be that he is expressing the view that it is not enough for Mr Bartos to be told that Mr Hull was not interested in an arrangement whereby he would have to sell the house and remit the surplus to Mr Campbell. As Mr Bartos goes on to state in the same letter, all as recorded by the investigator, his view was that the suggestion put forward by Mr Campbell’s counsel on the final day “was in substance the same outcome that you had rejected the previous day”. (It would seem that Mr Hull thought about the discussions overnight, and gave his views on day two.) As a result “he took the view that (Mr Hull) would not wish a decree in terms similar or identical to it”, and he noted that this “was also your solicitor’s understanding.”
[35] At paragraph 4.57 the investigator stated:
“... The fact that Mr Bartos was making decisions as to what was in Mr Hull’s best interests is not consistent with Mr Hull having already given him clear and unequivocal instructions on the matter. In any event it was not necessary for Mr Bartos to make such decisions when Mr Hull could not have been contacted to say what he wanted.” (It is assumed that “not” is a slip in the latter part of the quotation.)
This was the nub of the matter so far as the investigator was concerned. Any failure to obtain instructions on the precise issue of preference for sequestration or a conditional declarator, before disclaiming a conditional declarator, was inadequate professional service on the part of Mr Bartos. It was not good enough to rely on the earlier discussion which took place in a slightly different context, namely whether Mr Hull would accept the equivalent of a conditional declarator by way of a resolution of the case. In other words, the investigator focussed on the absence of Mr Hull ever being asked: if all that is available is a conditional declarator, would you want it, or prefer to go for sequestration? On the other hand, Mr Bartos, the solicitor and the Faculty of Advocates’ committee took the view that it was open to Mr Bartos to interpret and apply his instructions in the way that he did.
[36] In the remainder of his letter, Mr Bartos explained that a conditional declarator would prevent Mr Hull from pursuing the sequestration route – since the house would be removed from Mr Campbell’s ownership. Mr Bartos continued:
“By contrast dismissal allowed you to seek the sequestration to pursue the alternative route for recovering the debt owed to you. In these circumstances my clear understanding of your instructions was that you were not interested in a conditional declarator involving recovery of the debt from the sale of the house but preferred to recover the debt through sequestration. Your solicitor understood this to be your position also. I therefore advised the court that if the court did not grant unconditional declarator in terms of your pleadings you would wish dismissal (or absolvitor) as sought by the debtor in his pleadings. For the reasons stated this submission was in accordance with your wishes.”
[37] Mr Bartos was presented with a judge who might make an award which Mr Bartos and Mr Hull’s solicitor understood Mr Hull placed below sequestration in his order of preference. Outright success remained a possibility. Understandably counsel’s first instinct was to confirm his client’s position on the issue as it then stood. No one could have criticised him if he had the benefit of fresh and specific instructions and he followed them. However, the solicitor did not think it necessary to obtain further instructions from his client (his understanding being clear from the earlier discussions). Thus when the issue required to be addressed before the court later in the day, Mr Bartos was still without fresh instructions and the judge refused his request for time to allow them to be obtained. This was on the view that the same point had been raised earlier in the proceedings. Having to take a decision one way or the other, Mr Bartos took the course which has been outlined. The Faculty committee rejected the suggestion that this was professional misconduct. The Commission has categorised it as inadequate professional service. One cannot know for certain what would have happened if Mr Bartos had taken the alternative course and allowed a conditional declarator to be pronounced with all the immediate obligations which it would have imposed upon Mr Hull, allied to removal of the sequestration route. No doubt his apprehension was that he would be the brunt of criticism for burdening his client with an outcome which he had already rejected in favour of sequestration. However, it would appear that the investigator and the Commission are of the view that, in the absence of fresh instructions, this was the only course open to him.
[38] In paragraph 4.60 the investigator commented that there is “a lack of evidence that Mr Hull ever expressed any preference or desire for sequestration.” This overlooks the evidence of Mr Bartos supported by Mr Hull’s solicitor’s notes, and the preference expressed in the pre-proof discussions. In the same paragraph the investigator made it clear that he did not accept that counsel’s understanding of his instructions was correct. This was said to be clear from what Mr Hull had said. Had it been the case that Mr Hull agreed to go for sequestration “as an alternative remedy”, it would be surprising that he did not subsequently pursue such a course. The investigator questioned the distinction between an unconditional and a conditional declarator, in that both would have barred sequestration. Again the investigator overlooks the main difference, namely that the former would not mean a sale and an accounting, and in Mr Hull’s view would have provoked a satisfactory payment from Mr Hull. All of this led to the investigator stating:
“There was no good reason for Mr Hull to abandon his claim in case a conditional declarator was the final result, in circumstances where it was still appropriate for him to continue with his claim in the hope of obtaining an unconditional declarator. The fact that there was no good reason for the course of action taken is something that does nothing to refute Mr Hull’s contention that he did not agree to it” (paragraph 4.63).
On the face of it this reveals a misunderstanding on the part of the investigator as to what happened. The claim for an unconditional declarator was not abandoned. The judge was asked to grant it, but, for the reasons explained in his judgment, Lord Turnbull refused to do so. No part of the pursuer’s claim was “abandoned”. The judge was simply told that the pursuer did not wish a conditional declarator, something he had never asked for, thus the court was faced with two options, the claim for an unconditional decree or dismissal. It is not clear to what extent, if any, this error infects the rest of the investigator’s reasoning, especially since it only emerges in such a clear fashion so late in his discussion, and there are other passages in the report which appear to be free of this misapprehension.
[39] At paragraph 4.64 and following the investigator moved on to consider what it was that Mr Hull rejected in the earlier part of the proceedings
“and how this outcome may have differed from the conditional declarator that Mr Hull would no doubt have ended up with had Mr Bartos not done what he did”.
The investigator said:
“If all that Lord Turnbull was suggesting was that if and when the property was eventually sold Mr Hull would have to account to Mr Campbell for any windfall – it is difficult to see what objection Mr Hull could have had.”
This comment was based on the stated hypothesis, but, as mentioned earlier, it is clear from Lord Turnbull’s opinion that he was not envisaging an accounting at some point in the future when the house was “eventually” sold. To the investigator, the “stumbling block” was Mr Hull’s reluctance to give an undertaking to sell the house. He noted that throughout Mr Hull was opposed to forcing a sale, thus his opposition to the undertaking was unsurprising. Lack of available funds for an action of division and sale was a problem for him. He would not be able to implement any undertaking. To the investigator it was not clear that there was any discussion with Mr Hull about the possibility of legal aid being available for such proceedings.
[40] The investigator then considered what the terms of any conditional declarator might have been had the judge granted one at the conclusion of the case. The view was offered that counsel for Mr Campbell suggested an accounting of the surplus “whenever the property might have been sold” (paragraph 4.79). It is said that there was no time frame and no suggestion of a binding commitment on Mr Hull to raise further proceedings. However, so far as we can identify, there is no basis for the investigator’s understanding as to what was envisaged by a conditional declarator. It is clear that the whole context was an accounting for the surplus within a reasonable time frame. This would force a sale, which was not acceptable to Mr Hull.
[41] One then comes to the two key paragraphs which in due course were accepted by the determination committee, namely paragraphs 4.82/83. They are in the following terms:
“In the view of the case investigator, therefore, there were substantial differences between the settlement proposals that Mr Hull rejected and the likely terms of a conditional declarator. Clearly Mr Bartos cannot properly rely on Mr Hull’s rejection of settlement proposals as providing him with authority to reject a conditional declarator if there were substantial differences between the two.
Taking into account all these matters, the case investigator is of the view that Mr Bartos has not been able to establish in clear and unequivocal terms that he did have Mr Hull’s instructions to do what he did, and that what he did accorded with Mr Hull’s wishes. Because of the fundamental nature of the representation that Mr Bartos made, and the substantial effect it had on Mr Hull’s case, the case investigator is of the view that Mr Hull did receive inadequate professional services from Mr Bartos.”
[42] As should be clear by now, in our view the reasoning upon which these conclusions are based is fundamentally flawed, in particular by assuming that the effect of a conditional declarator to be granted by Lord Turnbull would be materially different from the point raised by him earlier in the proceedings, and which prompted the discussion about an undertaking.
[43] The investigator then set out his recommendations. He concluded that Mr Hull lost a conditional declarator, so remedies were considered on that basis. The debt had not been extinguished and the security of the adjudication remained in place. Mr Hull could still sequestrate Mr Campbell. If Mr Hull had the conditional declarator, he would not need to sequestrate Mr Campbell. He would have the alternative remedy of applying to the court for division and sale. The investigator supposed that legal aid would have been available for that action. The history of the matter showed a reluctance in the part of Mr Hull to take enforcement steps. Unless that changed, the “limbo” would continue.
[44] In these circumstances the investigator concluded that it would be difficult for Mr Hull to demonstrate any loss. On the other hand, it would be appropriate for there to be an award of compensation for inconvenience or distress. With a conditional declarator Mr Hull would have been in a stronger position, for example regarding the prospects for further negotiations. In paragraph 5.15 the investigator said that “as a result of Mr Bartos’ action, Mr Hull has been deprived of his method of choice of enforcing his debt.” This suggests that the investigator was proceeding on the basis that, in a choice between a conditional declarator and sequestration, Mr Hull’s preferred option was the former. The investigator stated that Mr Hull “would have been able to sit back and take a long term view of enforcement”. Again this proceeds upon the aforesaid erroneous view of what was involved in the conditional declarator envisaged by the judge. The investigator said:
“Had (Mr Hull) decided to enforce his rights he would then have been able to proceed by seeking to force the sale, rather than having to take the draconian step of applying for Mr Campbell’s sequestration.”
[45] Earlier in his report the investigator noted that throughout Mr Hull had set his face against a sale of the property, and, in the present context it was noted that in a letter of 29 April 2009 Mr Hull “had not totally ruled (sequestration) out.” The investigator concluded that there was “substantial inconvenience” to Mr Hull in not having “the greater security” obtained through a conditional declarator and in not being able to pursue a sale of the property as opposed to sequestration. It was also clear that the outcome of the proceedings had caused Mr Hull distress, not least since his case “was undermined by his own counsel” when he was absent from court. An award of £4000 was recommended. The investigator did not suggest any reduction in counsel’s fees from the Legal Aid board in that “the action that deprived Mr Hull of a conditional declarator only occurred at the last minute.”
The response to the report
[46] Agents for Mr Bartos intimated that he did not accept the investigator’s reasoning and recommendations. A five page letter of reasons for this position was provided, and the Commission was told that further submissions would be made to the determining committee. It was noted that, at an earlier stage, the Commission had stated that Mr Bartos’ conduct could be a breach of section 5.1.2 of the Guide to the Professional Conduct of Advocates, which, in brief, requires an advocate always to act in what is perceived to be in the best interests of the client – however this issue was not addressed in the report. In any event, in the whole circumstances Mr Bartos had achieved the best possible result for Mr Hull. It was pointed out that Mr Hull had told his representatives that, failing an unconditional decree, he wanted to preserve the option of sequestration. When the matter arose again on the final day of the hearing, the judge refused time for instructions from the client because earlier he had raised the same matter. Mr Bartos took the course which he did in accordance with Mr Hull’s wishes and in the best interests of his client. In advance, Mr Hull’s solicitor had confirmed that the course to be adopted was consistent with his client’s instructions.
[47] It was submitted on behalf of Mr Bartos that, contrary to the investigator’s approach, there was no onus on Mr Bartos to establish that he had clear and unequivocal instructions. Furthermore, again contrary to the investigator’s approach, Lord Turnbull would have imposed a requirement for Mr Hull to account for the surplus after the expenses of sale were taken into account. The judge clearly envisaged that a sale would take place. Mr Hull would not be able “to sit back and wait for eventual payment.” He would have had a duty to act reasonably to redress the unjust enrichment and would be open to court action if he failed to do so. Contrary to the case investigator’s view, there was no difference of substance between the undertaking which Lord Turnbull had suggested and the terms of a conditional declarator.
“Mr Hull rejected the former, and that rejection was understandably interpreted by both Mr Bartos and the solicitor as a rejection of the latter, when Mr Bartos was prevented from taking instructions.”
[48] It was noted that the effect of the dismissal was that the action could be raised again, if so advised, within five years. In the absence of any form of declarator, interest of 15% per annum continued to accrue upon the debt. Furthermore Mr Hull could petition for Mr Campbell’s sequestration. Agents for Mr Bartos submitted that the investigator had misunderstood the duties of an advocate to his client. An advocate is not “duty-bound” to follow his client’s instructions, nor is there anything amiss if an advocate takes decisions in what he perceives to be his client’s best interests.
[49] It was submitted that the investigator overlooked the evidence in the instructing solicitor’s file. It was clear from this material that Mr Hull wanted an unconditional declarator, failing which preservation of the option to sequestrate Mr Campbell. Reference was made to the contemporaneous handwritten notes taken in Parliament House, and to the solicitor’s letter to the Scottish Legal Aid Board outlining the reasons for his withdrawal from acting for Mr Hull. That documentation was attached to the agents’ submission, and it was promised that a signed statement from the solicitor would follow. Finally it was submitted that, in any event, the recommendation of an award of £4000 for solatium was excessive. For these reasons the Commission was invited to hold that the complaint be dismissed.
[50] A few days later agents intimated a request for the opportunity to make oral submissions to the committee and to have a full hearing. This was said to be in the interests of natural justice, and would allow fuller and more detailed submissions to be made to the committee. At the same time the signed statement of the solicitor was provided, along with the other material mentioned earlier. The terms of that signed statement were summarised above. In substance it supports the factual position as asserted by Mr Bartos. For example it includes:
“Also, he did not wish a conditional decree (requiring him to sell the property and account to Mr Campbell for the surplus). It was discussed that, if (Mr Hull) could not obtain an unconditional decree then his preferred option was to sequestrate Mr Campbell.”
[51] In response to this material the investigator wrote on 15 February 2013 to Mr Bartos’ agents stating that the request for an oral hearing was a matter for the committee and would be dealt with in due course. He asked for “a full response” to his report. As to the submission based upon section 5.1.2 of The Guide to Professional Conduct, it was explained that his investigation was into the complaint as made by Mr Hull. It was not necessary to establish such a breach. The complaint was about acting in accordance with instructions, hence there was no reference to section 5.1.2, which is about an advocate exercising his judgment. It is worth mentioning that this response does not take account of the Commission’s letter to Mr Bartos of 23 February 2012 which relied on section 5.1.2 as the justification for a services classification. On other matters the investigator said that it appeared that Mr Bartos was now putting forward a materially different case from that advanced previously, namely that the judge prevented him from taking Mr Hull’s instructions. “By implication this suggests that he did not have Mr Hull’s instructions after all.” The investigator said that previously there had been no mention of counsel being prevented from obtaining instructions – rather that there was no need for this. Agents were asked to provide an explanation. In addition, given his understanding as to the timings of what happened, the investigator offered the view that it was far from clear that Lord Turnbull ever made any comment about there being no need to take instructions on the submission Mr Bartos made. Agents were also asked to explain why Mr Bartos did not seek Mr Hull’s instructions during the luncheon period.
[52] Agents for Mr Bartos responded as follows. A seven page statement of “factual inaccuracies and misunderstandings” in the report was provided (as promised in the earlier letter). It would extend this already long opinion beyond a tolerable level to summarise this document. Suffice to say that it provides a point by point rebuttal on almost every matter of substance raised by the investigator. The agents noted that a charge of a breach of section 5.1.2 had been introduced by the Commission in its letter of 23 February 2012. The Commission cannot investigate conduct issues, only the quality of services, which was the context for the reference to section 5.1.2. If it is now out of the picture, the complaint should be refused by the Commission.
[53] Agents explained that Mr Bartos’ case remained in substance the same as previously stated – namely that he had Mr Hull’s instructions that he preferred to recover his debt by way of sequestration rather than under a conditional declarator – see Mr Bartos’ letter of 6 December 2011. When the defender requested a conditional declarator for the first time on day three, counsel thought that it would be desirable to obtain fresh instructions. The solicitor was aware of this. However, come the afternoon, when Mr Bartos had to explain his position to the court, no such instructions had been obtained. The judge refused to allow time for them to be obtained, since his view was that the defender’s position was no different from his own suggestion stated earlier in the hearing. Mr Bartos then proceeded upon the basis of his earlier instructions. He did not mention the desire to go down the sequestration route because of client confidentiality and the presence of Mr Campbell’s solicitor. The “surprise” mentioned by the judge in his opinion was caused by this, but it was unavoidable. The investigator was invited to read the solicitor’s notes and counsel’s annotations as to who said what and to whom. They would make it clear that Lord Turnbull did say that there was no need to take instructions on the issue, under particular reference to page 253 of the notes. At the outset Mr Bartos could not recall the exact timings. It was the eventual recovery of the solicitor’s notes which reminded him as to how he came to depart from his wish to obtain fresh instructions. The notes also show (page 247) that the solicitor was aware of his desire for fresh instructions. This was a matter for the solicitor, not Mr Bartos. However, for whatever reason, the solicitor did not obtain fresh instructions. The investigator was asked to confirm that the matter would now be passed to the determination committee.
[54] By letter of 12 March 2013, the investigator stated that “after careful consideration” of the points made by both Mr Bartos and by Mr Hull (whose views on the report have not been tendered to the court), he was not persuaded to alter the terms of his report. Apart from what can be taken from the earlier letter of 15 February (referred to above), there was no explanation given by the investigator for his decision. For example, there was no reasoning in respect of the rejection of the evidence in the solicitor’s signed statement, and there was no response to the many detailed points made in the seven page document. It was confirmed that the responses of both Mr Bartos and Mr Hull to the report would be before the members of the committee, as would the request for an oral hearing.
The Faculty of Advocates’ determinations
[55] As mentioned earlier, on 18 March 2013 a Faculty of Advocates complaints committee dismissed Mr Hull’s complaint against Mr Bartos. In the view of the committee, given the instructions previously tendered, it was unnecessary for Mr Bartos to obtain fresh instructions on the last day. There was nothing in counsel’s conduct that amounted to either professional misconduct or unsatisfactory professional conduct. In the event, the Commission subsequently upheld a handling complaint brought by Mr Hull, related to what were said to be deficiencies in the information given to him regarding his appeal rights. As a result a fresh determination has been made by a differently constituted Faculty committee. It is to the same general effect as the first decision. An appeal by Mr Hull against this decision is now pending. The Faculty’s procedures provide for it to be heard by a tribunal chaired by a retired judge.
[56] It is of interest to note that in the Faculty’s most recent decision, which is dated 14 January 2015, it is recorded that Mr Hull’s current position is that counsel should have informed the court that he had no intention of selling the property, that legal aid had not been granted for an action for the sale of the house, and that it was his intention to raise further proceedings to secure rent in respect of Mr Campbell’s occupation. Mr Hull is of the view that this would have persuaded the court to grant an unconditional declarator. For ourselves, we agree with the Faculty’s doubts as to whether any of this would have had that result. As to the terms of the original complaint, the Faculty’s recent decision letter states:
“Mr Hull does not dispute that he gave instructions that he was not prepared to give an undertaking to account for any surplus, nor does he dispute that he was advised that the only alternative to such an undertaking (or conditional declarator) was to sequestrate Mr Campbell.”
The Commission’s decision
[57] Reverting to the procedure before the Commission, the request for an oral hearing was refused. On 24 January 2014 the committee issued its decision. It consists of two pages. The first is taken up with background and preliminary matters. The substance of the complaint before the Commission is discussed in three short paragraphs, the first two simply stating that the committee had considered the report and the responses to it. The committee notes that the complaint was that Mr Bartos
“falsely stated during the hearing on 7 October 2010 that it was (Mr Hull’s) wish that the case be dismissed, despite having no instructions from (him) to do so.”
The decision is expressed as follows:
“The committee proceeded to discuss the one issue before it in detail. It confirmed that, in its view, this complaint had been fully investigated in terms of the investigation report and, further that the conclusions and recommendations contained within the investigation report represented an accurate representation of the committee’s own view on this complaint. The committee considered that the crux of this complaint was whether or not Mr Bartos had instructions from Mr Hull for the case to be dismissed on 7 October 2010. The committee agreed with the case investigator’s conclusion in paragraph 4.82 of the investigation report that there was a substantial difference between the settlement proposals that Mr Hull had rejected earlier and the likely terms of a conditional declarator. It was agreed by the committee that in the circumstances of this complaint counsel should have sought and obtained instructions from Mr Hull. As there was no evidence before the committee that counsel or the instructing solicitors had tried to obtain instructions from Mr Hull, it was agreed that this complaint should be upheld. For the reasons stated in the investigation report, it was determined that issue 1 should be upheld.”
[58] Generally speaking, brevity is a virtue, but, on any view, and especially given all the additional material tendered after the completion of the report, this was a remarkably concise explanation to the parties of the committee’s decision. It amounts to no more than an agreement with the investigator’s views at paragraph 4.82 of his report. The committee also agreed with the investigator’s recommendation that £4000 be paid in respect of distress and inconvenience.
[59] The committee did not address the material submitted after the circulation of the investigation report. For example, it did not address the signed statement submitted by Mr Hull’s solicitor which, in terms, stated that Mr Hull had made it clear that, failing an unconditional decree, he wished to preserve the option of sequestration. There is nothing to indicate that the committee engaged with any of the detailed responses to the investigator’s report, and certainly no comment or reflections upon them. Nor did the committee address the contemporaneous notes of the proceedings taken by the solicitor which indicated that Lord Turnbull saw no difference between the outcome which he had raised as a possible way forward on day one and that proposed by the defender on the last day of the hearing. That point was highlighted in the seven page response. In other words, the outcome rejected on day one by Mr Hull in favour of an unconditional decree, failing which sequestration would be available, was, in substance, exactly the same as proposed on day three. At pages 3 and 7, of the response, one finds a detailed explanation as to why Mr Hull would prefer to sequestrate Mr Campbell. None of that was referred to by the committee. The committee also failed to address the fact that Mr Hull’s solicitor, who was his representative in court, agreed with the course of action taken by Mr Bartos, and that this was because it coincided with his instructions from Mr Hull. If there is material from Mr Hull which rebuts any or all of this, it is not mentioned by the committee, nor has it been produced to the court. As it is, the committee appears simply to have agreed with the investigator that an unqualified declarator plus undertaking is not the equivalent of the conditional declarator discussed on day three.
The grounds of appeal
[60] The grounds of appeal against the Commission’s decision can be summarised as follows:
(1) The Commission categorised the complaint as a services complaint under reference to an alleged breach of section 5.1.2 of the Advocates’ Guide to Professional Conduct. However in its decision the committee said it was not necessary to establish a breach of that provision. This was an error of law. Furthermore, there is no suggestion that the committee addressed the question as to whether the appellant’s conduct amounted to inadequate professional services.
(2) The investigator wrongly regarded the onus of proof as resting upon Mr Bartos. In adopting the investigator’s report, the committee repeated this error of law.
(3) On day three, Mr Bartos acted in accordance with the instructions of Mr Hull’s representative in court, namely his solicitor. Furthermore, the Commission seemingly ignored the undisputed evidence that Lord Turnbull refused counsel time to obtain instructions on the basis that exactly the same point had been raised on the first day of the hearing.
(4) There was no substantial difference between the undertaking discussed on day one and the conditional declarator raised on day three. The latter
“would have adhibited a requirement that the pursuer account to the defender for any excess over the agreed accumulated sum plus reasonable expenses of sale - see 2011 SLT 881 at paragraph 27”.
An action of division and sale would have been required under both an undertaking and a conditional declarator. Mr Hull gave clear instructions that he could not countenance such a procedure, and, failing success with his claim, was content to proceed with sequestration in order to recover his debt. In any event it was clear that Mr Hull’s aim was to recover cash, not just to become a pro indiviso proprietor along with Mrs Campbell. In any event, a conditional declarator would not have permitted the “do nothing” option for Mr Hull, otherwise the obligation to account would be meaningless.
(5) This ground of appeal asserted a failure by the committee to give reasons for the rejection of the supporting evidence provided by Mr Hull’s solicitor to the effect that Mr Bartos acted in accordance with Mr Hull’s instructions, all supported by his contemporary manuscript notes.
The answers to the grounds of appeal
[61] The answers to the above grounds of appeal can be summarised as follows:
(1) If Mr Bartos acted without instructions, that would amount to inadequate professional services. Mr Hull’s complaint made no reference to section 5.1.2.
(2) Although the onus of proof lay initially with Mr Hull, it shifted to Mr Bartos once he admitted that he had not sought instructions from Mr Hull before moving for the action to be dismissed. Regarding the earlier instructions, the onus was on Mr Bartos to show that they covered the circumstances as they arose on the final day. In any event, the complaint was determined upon its merits, not by reference to any question of burden of proof.
(3) Mr Hull gave his instructions directly to Mr Bartos and in the presence of his solicitor. Accordingly Mr Bartos was aware of them and had no need to seek further instructions from the solicitor. The solicitor’s recollection of those instructions was not determinative of the issue. Mr Bartos could judge for himself whether his instructions covered the situation. If they did not, he should have requested the solicitor to obtain further instructions from Mr Hull. The point before the committee was not whether the matter raised on day three was the same as that raised on day one, but rather whether Mr Bartos had instructions to make the motion for dismissal.
(4) It was open to the committee to conclude that there were differences between the undertaking and any conditional declarator which Lord Turnbull would have imposed.
(5) It is accepted that the committee did not provide adequate and comprehensible reasons for its decision, and that it requires to be set aside.
The note of argument for Mr Bartos
[62] Much of the note of argument reflects issues already discussed. Mr Dunlop QC emphasised that the Commission had no basis for rejecting the solicitor’s evidence. Both the investigator and the Commission said that counsel should have phoned Mr Hull, something which amounts to a complete misunderstanding of counsel’s role. In any event the clear evidence is that counsel had instructions which covered the course taken. He acted in accordance with the solicitor’s understanding and instructions. No reasoned or reasonable basis for rejection of this evidence has been provided. The sale of the house would have been required under either the unconditional declarator plus undertaking approach or a conditional declarator. Failing success with his claim for an unconditional declarator, it is clear that Mr Hull had expressed a wish to resort to sequestration. The obligation to account under the conditional declarator would have arisen on transfer of ownership – failing that by way of a common law unjust enrichment claim.
[63] Mr Dunlop asked – how can counsel be criticised for failing to obtain instructions when the court refused an adjournment for that purpose? The Commission had ”closed its eyes” to the evidence, for example in refusing to accept that counsel had moved for an adjournment. The court is in at least as good a position as the Commission to determine the substance of the complaint. There is no need for a remit for a reconsideration of the complaint by the Commission. The Commission had every opportunity to put all relevant evidence before the court. So far as expertise is concerned, it cannot be contended that the Commission is better placed to adjudicate than the membership of the court. In any event, the merits of the decision having been defended by the Commission, it would be unfair to remit the matter to them.
The note of argument for the Commission
[64] The Commission contends that there was no need to address and deal with section 5.1.2, nor to refer to the test for inadequate professional services. To move for dismissal of an action, without instructions to do so, would amount to inadequate professional services. As to onus, a tactical onus shifted to Mr Bartos after he admitted that he had not sought instructions from Mr Hull on the last day of the hearing. Also, in so far as it was suggested that the receipt of earlier instructions covered the situation, a tactical onus rested upon Mr Bartos. In any event the determination did not turn upon any question of onus of proof.
[65] It was not enough for counsel to rely upon the instructions of Mr Hull’s solicitor on the final day. He had heard the previous instructions and was in a position to judge for himself whether they did or did not cover the situation. If the solicitor made the same error on this point, that did not exculpate Mr Bartos. For the reasons given by the investigator, which were accepted by the determination committee, counsel erred in this regard. Specifically the undertaking previously rejected by Mr Hull would have required him to proceed with a sale within a specified time, whereas a conditional declarator would not place this obligation upon Mr Hull.
[66] As to Mr Hull’s position upon a conditional declarator, there was ample opportunity to obtain his instructions before the proof or on the opening two days of the hearing. In any event, Mr Bartos could have sought further instructions during the luncheon break on the final day. It amounts to inadequate professional services to seek dismissal of the action in the absence of instructions to do so. However, the Commission accepts that the committee did not provide adequate and comprehensible reasons for its decision, thus it requires to be set aside, with a remit for reconsideration of the complaint.
[67] A remit is necessary because the court is not in a position to determine the issue of inadequate professional services. For example, Mr Hull may have misunderstood the advice given by counsel, and counsel may have misunderstood what Mr Hull intended to convey by his responses. Evidence would require to be considered as to what was said and what was understood, and as to what the terms of any conditional decree would have been.
[68] Furthermore a remit is necessary in that the Commission was set up by Parliament with significant lay membership in order to ensure public confidence in a system for handling complaints about the legal profession, and to consider services complaints from the perspective of the consumer. It is in a better position than the court to determine whether there was inadequate professional service. The intention was that consumers’ interests would be represented at the organisation’s heart. The Commission’s specialist expertise in dealing with services complaints requires to be recognised by the court. The court can only exercise its power under section 22(1) if confident that, on the material before it, the complaint is unfounded. No such conclusion can be reached in the present appeal.
The oral submissions of Mr Dunlop QC on behalf of Mr Bartos
[69] Mr Dunlop expanded upon many of the points already discussed. He emphasised that the complaint had been hanging over Mr Bartos since September 2011. It had caused him very considerable expense, to date amounting to some £70,000. It was clear when Mr Hull made a late and unsuccessful application to intervene in the process on the opening day of the appeal, that his assertion is that Mr Bartos lied to and misled the court. Mr Hull said then that it was his wish that the court should settle the matter once and for all.
[70] The crux of the case would appear to be the proper interpretation of instructions which everyone accepts were given. The Commission’s committee did not have the benefit of the membership of anyone with litigation experience. Of those available to the Commission to chair such committees, only one person has litigation experience, and he had “ruled himself out” from involvement in this particular case. The Faculty committees consisted of, as with the Commission committee, two lay persons, but also, in each case, two experienced QCs. In urging the court to determine the matter for itself, rather than remit to the Commission, and bearing in mind that Mr Hull has instituted an appeal against the second decision of the Faculty, Mr Dunlop asked – how many times does Mr Bartos have to go through this?
The oral submissions of Mr Lindsay QC on behalf of the Commission
[71] In seeking a remit to the Commission, Mr Lindsay explained that a different investigator would prepare a fresh report. After comments from the parties, this would go before a different committee. Mr Lindsay stressed that the Commission operates a “consumer based system of regulation.” The approach is of “service to the consumer”. This is very different from the conduct issues regulated by the profession. If a complaint is looked at from a conduct perspective, a different answer may be reached as compared with a service user perspective.
[72] According to Mr Lindsay, the present matter does not involve any dishonesty. It is not a matter of who is telling the truth and who is not. The only question is whether Mr Hull’s instructions were properly understood. The Commission has no statement, as such, from Mr Hull, simply “a lot of correspondence.” Mr Hull made it clear that he did not want to give an undertaking because of an absence of funds to pursue an action forcing the sale of the property, and he did not wish to make Mrs Campbell homeless. Those were the instructions.
[73] The Commission’s interpretation of what happened on the final day is that Mr Hull would only be required to account to Mr Campbell if and when the property was sold. This did not involve any undertaking to proceed to an action of division and sale. It was thought that ownership of the property would prompt settlement. Mr Lindsay’s submission was that the instructions previously tendered did not cover that which was on the table on the final day.
[74] It was noted that Mr Hull had appealed against the Faculty of Advocates most recent decision. Mr Lindsay submitted that the appropriate balance could best be struck by remitting the whole matter back to the Commission. He said:
“It is a matter of a public confidence in the regulation of the profession that there be a remit, to show that the system does work with the complainers’ full involvement.”
Mr Lindsay acknowledged that there required to be a balance between the interests of complainers and practitioners. The Commission possessed several letters from Mr Hull which said very clearly that “he did not give instructions for the dismissal of his action.” Mr Lindsay informed the court that Mr Hull “now says that he would have been happy with a conditional declarator.”
[75] No issue of onus arises. There was a positive finding that the earlier instructions did not cover the events on the final day. The Faculty decided that they did – the Commission that they did not. The view is that Mr Bartos misunderstood his instructions, and that this led to the dismissal of the action. That is a case of inadequate professional services.
[76] Mr Lindsay said that there is some uncertainty as to the terms of the interlocutor which Lord Turnbull would have pronounced. However, if the Commission’s view is correct, the instructions were misunderstood. In terms of section 46 of the Act, inadequate professional services are those which are not of the quality reasonably expected of a competent advocate. An advocate can be expected to understand and act upon the instructions which he has been given. It was accepted that the onus of proof rested upon Mr Hull and that the investigator did not express matters that way. However the case was not decided on an issue of onus.
[77] Mr Hull’s instructions were given to both the solicitor and counsel, so counsel could not be absolved by relying upon the solicitor’s role as representative of the client. Speaking for himself, and without specific instructions to make any concession, Mr Lindsay could foresee difficulties if there was a remit and again no oral hearing. An oral hearing would allow matters to be “properly addressed”. Plainly the Commission would require to give serious thought to an oral hearing.
[78] In conclusion it was accepted that the current decision was vitiated because of inadequate reasoning. However the court had insufficient material to allow it to deal with the substance of the complaint, hence the request for a remit to the Commission.
The oral submissions in reply by Mr Dunlop QC
[79] Mr Dunlop stressed “the lack of any dissonance” between the earlier instructions and counsel’s actions on the final day. No one had challenged the evidence of the solicitor, nor his contemporary notes. A reasonably competent advocate would have considered that his instructions meant that the sequestration route was preferred to a conditional declarator. This view was shared by four silks in the Faculty, and by Lord Turnbull, who had indicated that the point was the same as that raised on day one. There was no factual dispute as to the terms of the instructions, and no need for a remit. In that regard, Mr Dunlop suggested that “enough is enough”, particularly given the apparent need for another investigator’s report if the matter was remitted to the Commission. Emphasis was placed upon continuing delay, continuing stress and even greater expense for Mr Bartos. In any event an appeal to the Faculty of Advocates’ tribunal is pending.
[80] It was submitted that Mr Hull had raised a conduct issue – he did not make a services complaint. He now had the opportunity to present his case before a Faculty tribunal chaired by a retired judge. It would not be proportionate to remit any services aspect of this matter for further consideration by the Commission. There was only one complaint tendered by Mr Hull, which had already been subject to consideration by two separate Faculty committees, both finding in favour of Mr Bartos, and an investigation by the Commission, resulting in a flawed decision upholding the complaint.
Decision on the appeal
[81] As may be clear from our earlier remarks, we consider that the Commission made at least one fundamental error, and this over and above the accepted inadequacy of the reasons given for the decision. The mistake goes straight to the heart of the reason given for upholding the complaint. It is not a matter of form or procedure, but of substance. Given that the determination committee simply agreed with the investigator, it follows that he made the same error.
[82] The investigator and the committee reached the view that there was an important distinction between the matter raised by the judge on day one, and the need for Mr Bartos to respond to Mr Campbell’s conversion to a conditional declarator disposal on the last day. There is no such distinction. On day one, given the judge’s indication that he was unhappy with Mr Hull obtaining more than was due under the debt, Mr Bartos sensibly suggested a possible arrangement whereby the declarator could be granted, but with Mr Hull under an obligation to account to Mr Campbell for the balance. Mr Hull rejected this for the reasons already discussed. Failing an unconditional transfer of ownership, Mr Hull preferred to recover his debt by sequestrating Mr Campbell. As discussed earlier, it is clear that the conditional declarator at issue on the final day had exactly the same unwelcome implications for Mr Hull.
[83] It is apparent from Mr Lindsay’s submissions that there is no issue as to what happened on the first day, nor as to the content of the instructions tendered by Mr Hull. The question is whether the instructions given to Mr Bartos to the effect that sequestration was preferred to the suggested undertaking were applicable to events as they unfolded. Two Faculty committees have given an affirmative response, and we would endorse that approach.
[84] In a sense Mr Hull’s complaint, as stated, is true. He did not give instructions that his claim should be dismissed. But counsel did not simply invite the court to dismiss the action. He indicated that if the claim as framed was refused, a conditional declarator should not be granted, in which event dismissal or absolvitor would follow. There being no material difference between the consequences for Mr Hull of, on the one hand, the proposed conditional declarator and, on the other, of the undertaking discussed and rejected earlier in the hearing, and given that counsel’s understandable attempt to confirm his instructions afresh from Mr Hull was frustrated, in our opinion, his conduct is not open to reasonable criticism. On the contrary, any other course of action would have exposed him to serious questions for ignoring the clear implications of the instructions which he had received.
[85] With the benefit of hindsight it is unfortunate that Mr Hull was not contacted that day. Matters could have been explained afresh and the connection between the current events and the earlier discussion explained, should that have been necessary. This did not happen because Mr Hull’s solicitor did not think it necessary, and the judge was similarly minded, given that the same point had been raised earlier in the proceedings. It is also understandable that on receiving the judgement, Mr Hull, as a lay person, might note the surprise expressed by the court in its opinion, and conclude, wrongly, that his counsel did no more than abandon his action. There are elements in the investigator’s report which suggest the same thinking.
[86] We are more than satisfied that there is no good reason to remit this matter to the Commission for a further investigation and a fresh adjudication by a new committee. We agree with Mr Dunlop that, given the history of this case, and the fact that a further appeal by Mr Hull is pending in respect of the proceedings in the Faculty, this would not be a reasonable or proportionate course of action. In any event, we are also satisfied that the court can and should substitute its own decision on the substance of the complaint. The court’s decision is that the complaint made by Mr Hull is without merit. The appeal by Mr Bartos is upheld on that basis. The court shall quash the Commission’s decision dated 24 January 2014 in its entirety, and substitute a determination that Mr Bartos did not provide an inadequate professional service to Mr Hull.
Postscript
[87] Before the parting with the case, the court wishes to make the following general observations.
[88] When responding to various criticisms of the decision and the Commission’s approach (for example, the complaint that it placed a heavy onus upon Mr Bartos to disprove the complaint) it was a running theme in Mr Lindsay’s submissions that the Commission places the consumer “at the heart of” services complaints, and that it is anxious to maintain the confidence of users of legal services in complaints handling procedures. While it is important that users have such confidence, it is also important that the Commission is mindful that it has a different role from the pre-existing Scottish Legal Services Ombudsman. It has a statutory quasi-judicial function. It adjudicates upon disputes, some of which previously would have been directed to the courts in order to resolve issues of alleged professional negligence. The Commission can make orders providing for financial compensation on questions of considerable importance, not just to complainers, but also to practitioners, whose careers may be prejudiced by an adverse finding.
[89] It is proper for the Commission to assist unrepresented complainers in framing and pursuing their complaint in order to provide some redress in respect of any imbalance in legal knowledge and resources – in this context see, for example, the duty laid down in section 34 of the Act. However, when it comes to its adjudicative function, the Commission must be, and be seen to be independent, objective and impartial as between the parties. Only then will the confidence of all involved be maintained.
[90] In a similar context, some disquiet was expressed during the hearing that, if the matter was remitted to the Commission, then, as with the first committee, the only qualified lawyer involved in the determination would have no experience of litigation in our courts. It is well understood that lay involvement is important and valuable. However, this case demonstrates the complexities which can arise, and in its recruitment processes, no doubt the Commission will bear in mind the need to ensure that the professionals involved have the appropriate background and standing.