Advocate has limited success in complaint eligibility appeal

Andrew Smith QC appealed against a decision of the Scottish Legal Complains Commission that four out of 14 complaints made by Mr Steven Elliot, the pursuer in the original commercial proceedings and an interested party to the appeal, were eligible for investigation by the Faculty of Advocates.

The appeal was heard by Lord Menzies, Lord Drummond-Young, and Lord Pentland.

Close personal involvement

The interested party had been involved with two other individuals, Steven Worbey and Kevin Farrell, in the development of a location-based dating app. Following the breakdown of this relationship, the appellant was instructed by solicitors on behalf of Mr Worbey and Mr Farrell in commercial actions relating to two apps previously operated by a company, which itself was operated by Mr Elliot, which had gone into liquidation.

It was held in the Outer House, and on subsequent appeal, that the relationship between the three men in connection with the development of the apps had not been a partnership. Following these cases, the interested party submitted a complaint about the appellant to the SLCC, which divided it into 14 relevant issues. The SLCC determined that 4 of these were eligible for investigation.

The first of these was that the appellant continued to accept instructions to represent Mr Worbey and Mr Farrell “despite his close personal involvement in their business affairs that made it inappropriate for him to do so”. It was alleged that the appellant’s brother and sister-in-law owned a company that had attempted to purchase apps formerly owned by Mr Elliot, and that the appellant had communications with the liquidator.

The second issue was that the appellant had been complicit in allowing a dishonest statement, namely that Mr Elliot and the first defender in the commercial case had been involved in a fraudulent scheme to deprive the alleged partnership of profits, to be repeated in proceedings in both the Outer and Inner House despite the allegation having never been proved.

The third issue was that the appellant on inappropriately accepted an instruction on 18 May 2018 to appear in court for Mr Worbey and Mr Farrell despite having such a close personal involvement with them and their intended business dealings that it would have created a conflict of interest and affected his ability to remain impartial and independent

The fourth issue was that the appellant had been improperly in direct contact with Mr Elliot’s trustee in bankruptcy around May 2018. The appellant stated that there were no consequences to this contact, and that it cannot be inappropriate in and of itself for a QC to contact a person’s trustee in bankruptcy.

The appellant argued that, on the whole, the complaint was vexatious. The Commission had made a decision based on an error of law, it had acted irrationally in making its decision, and it had made a decision not supported by the findings in fact. The appellant had not acted contrary to his duties as an advocate.

The Commission submitted that it was not its duty to resolve material factual disputes at the eligibility stage. The circumstances alleged were not so obviously false, or in any event appropriate, that the only rational answer was that it was clear that the appellant could accept the instructions. The Faculty of Advocates were best-placed to resolve the questions raised by the complaint.

Open to interpretation

The opinion of the court was delivered by Lord Pentland. He began by applying the legal principles relating to conduct complaints to the present case, saying of the first, third, and fourth issues: “Each [issue] raised questions, which we consider that the Commission was entitled to regard as legitimate ones, concerning the nature of the appellant’s relationship with his clients and whether he had acted in a manner that was independent of them in line with his professional responsibilities as an advocate. It would not be appropriate for us to express any substantive view on these questions since it is for the Faculty to make its own evaluation of them. We simply note that there was evidence before the Commission which was open to the interpretation that the appellant was personally involved in the business affairs of his clients in a manner and to a degree that would not be usual or perhaps appropriate for an advocate.”

He continued: “In our view, the issues raised by the evidence in relation to these matters were such that the Commission was entitled to refuse to dismiss them at the sifting stage. We consider that factual and legal issues of some complexity were raised by these complaints and that the Commission was entitled to refer them to the Faculty for full investigation. It was not appropriate for the Commission itself to come to any concluded view on them. We are not persuaded that the Decision can be properly characterised as erroneous in law or as irrational. The complaints were not based merely on assertions made by the interested party; there was evidence that could be interpreted as lending support to the complaints.”

However, in relation to the complaint regarding allowing a dishonest statement during legal proceedings, he said: “We do not consider that there was any material before the Commission to justify such a serious allegation. We can find nothing in the evidence to support the view that the appellant acted dishonestly or that he was complicit in dishonesty. There is no evidence that the appellant made a dishonest statement to the court or to anyone; nor is there any evidence that he was complicit in the making of a dishonest statement. Whilst it is true that in the preliminary proof the commercial court held that no partnership existed, it does not follow that it was dishonest to rely on the averments of fraud in the context of opposing the motions for an additional fee or to submit that there was evidence of fraud available to the pursuers on the hypothesis that a partnership was held to exist as a matter of law.”

As such, the appeal was allowed to the limited extent of quashing the latter issue, but was refused in respect of the other three.