Advocate wins appeal against complaints commission’s finding of ‘inadequate professional service’

An advocate has successfully appealed against a complaints body’s decision that he provided an “inadequate professional service” in a case in which he was acting as counsel for a pursuer in Court of Session action.

Judges in the Inner House of the Court of Session ruled that the Scottish Legal Complaints Commission made “at least one fundamental error over and above the “accepted inadequacy of the reasons given for the decision” against David Bartos.

Lady Paton, Lady Clark of Calton and Lord Malcolm heard that in 2011 Mr Bartos was acting for a Mr Hull, who had obtained a decree in 1992 against a 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 the sale of Mr Campbell’s heritable property, but by the time the action came before Lord Turnbull in February 2011 Mr Campbell’s debt to Mr Hull stood at just over £52,250.

The judge 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.

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.

Mr Bartos submitted that the relevant primary legislation was clear, and that notwithstanding the compatibility of the remedy with article 1 of the first protocol to the European Convention on Human Rights, the court had “no power” to make an order against Mr Hull to reflect the excess and therefore there was “no alternative” but to grant decree as sought.

He 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 that the purpose was to keep open the possibility of Mr Hull proceeding to sequestrate Mr Campbell, should he fail in his primary submission.

Mr Hull’s solicitor considered that all of this was the correct thing to do and in accordance with the instructions and wishes of his client, and therefore told Mr Bartos that he agreed with this course of action.

But Lord Turnbull reached the view that he was only prepared to grant a conditional decree and thus, in accordance with the position as set out by Mr Bartos, he dismissed the action.

After Mr Hull was informed of the outcome of his case, he lodged a complaint with the SLCC, alleging that Mr Bartos “falsely stated that it was my wish that the case be dismissed, despite having no instruction from me to do so”.

In January 2014 the commission’s determination committee accepted the findings of the investigator’s report and concluded that counsel should have sought further 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.

A separate investigation by the Faculty of Advocates dismissed the complaint as “unfounded”.

Mr Bartos challenged the commission’s decision, asking the court to rule upon the substance of the complaint.

The appeal judges observed that during the first day of the hearing before Lord Turnbull, the judge had expressed the view that he was “unhappy” with Mr Hull obtaining more than was due under the debt and that Mr Bartos had “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.

However, Mr Hull rejected that approach and preferred to recover his debt by sequestrating Mr Campbell, but the conditional declarator at issue on the final day of the hearing would have had the same unwelcome implications for Mr Hull.

The judges also noted that Mr Bartos had asked the court for time to take instructions, but judge refused this on the basis that the point had been raised by him on the first day, and that Mr Hull’s solicitor chose not to phone his client for instructions as there was no need to do so.

Delivering the opinion of the court, Lord Malcolm said: “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.

“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.

“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. e 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.”