Scots lawyer’s legal challenge against disciplinary tribunal’s expenses award dismissed as ‘incompetent’

A judge in the Court of Session ruled that the application for judicial review was “incompetent” because the solicitor had failed to exercise her statutory right of appeal.

‘Professional misconduct’

The petitioner, Tasmina Ahmed-Sheikh, a solicitor and former SNP MP, faced misconduct proceedings after a complaint to the Scottish Solicitors’ Discipline Tribunal (SSDT) by the Council of the Law Society of Scotland.

On 15 January 2019 the petitioner, along with another lawyer Alan Mickel, was censured and fined £3,000 and being found guilty of professional misconduct in respect of breach of certain of the Law Society of Scotland Practice Rules 2011 following the collapse of the firm Hamilton Burns.

A motion made on behalf of the petitioner for no expenses to or by, which was a departure from the SSDT’s normal practice, was rejected by the tribunal, and there was no motion nor discussion about the scale of expenses.

The tribunal awarded expenses against the solicitor on the agent and client scale, which the petitioner sought to challenge.

But she did not appeal to the Court of Session under the statutory appeal procedure. 

Instead, she brought a petition for judicial review of the tribunal’s decision to award expenses on the agent and client scale. 

‘Judicial review’

The first issue was whether the judicial review was “competent” given that the solicitor had not appealed, which in turn gave rise to the question of whether an appeal by the solicitor on the issue of expenses alone would have been competent.

If the answer on the first issue was that judicial review was competent, the second issue was whether the tribunal’s decision on scale of expenses should be quashed on the judicial review grounds of “error of law, unreasonableness, failure to provide adequate reasons and fettering of discretion”.

Counsel for the petitioner submitted that an appeal against a decision on expenses alone was not competent, as section 54(1A) of Solicitors (Scotland) Act 1980 provided that a solicitor might appeal against any decision mentioned in subsection (1B), but a decision on expenses was not a decision mentioned in the subsection.

Section 54 specified in detail which decisions may be appealed, and it would be “peculiar” if parliament had left to implication the fact that a decision on expenses could be appealed.

It was argued that a petition for judicial review which had “a real prospect of success” should not be refused due to a failure to make a secondary motion.

‘Incompetent’

But the judge ruled that the petition was “incompetent”.

In a written opinion, Lord Ericht said: “The issue of whether an appeal on expenses alone is competent turns on the meaning of the word ‘decision’ in section 54(1)A. Does it have a narrow meaning restricted to the finding of guilt? Or does it have a broader meaning encompassing the order for expenses made alongside the finding of guilt?

“In my opinion ‘decision’ has the broader meaning and it is competent to appeal under section 54(1A) on expenses alone. In coming to that conclusion, I have applied the principles of statutory construction that the provisions of a statute should be construed so as to make a consistent enactment, and to avoid an absurd result.

“Section 54(1)A does not specifically state that there can be an appeal against expenses. So on a narrow interpretation there can be no appeal against an order for expenses. 

“However, it is clear from the schedule that there can be an appeal against expenses. Accordingly section 54(1)A must not be construed in that narrow way but instead must be construed so as to give effect to the schedule and permit a right of appeal against an order for expenses.

“Accordingly, the petitioner has failed to exhaust her statutory remedy and this judicial review is incompetent.”

In relation to the second issue, counsel for the petitioner submitted that the usual practice of the first respondent to award agent and client expenses, and the decision to do so in this case, were both “unlawful and unreasonable”.

It was also argued that the tribunal had failed to provide “adequate reasons” which would have justified an award of agent and client expenses, and that the SSDT had “fettered its discretion”.

‘Conventional line’

However, the judge observed that while the “conventional line” in the Scottish civil courts is to award expenses on party and party basis, the “long-standing” approach in the SSDT is to award expenses on an agent and client basis.

Lord Ericht concluded: “In my opinion the tribunal is under no obligation to adopt the same conventional line on expenses as the Scottish civil courts. In applying a different conventional line from the courts, the tribunal did not err in law. 

“The question of what particular conventional line a disciplinary tribunal will take on expenses is a matter of the discretion of the tribunal. The tribunal differs from a civil court in that it is performing a regulatory function. 

“In view of these differences, it is not Wednesbury unreasonable for the tribunal to follow a different conventional line on expenses than the Scottish civil courts, nor is it Wednesbury unreasonable for the Tribunal to follow the particular conventional line which it does.

“In following its conventional line when no motion has been made to depart from it the tribunal has not fettered its discretion. A civil court does not fetter its discretion when it applies its conventional line of party and party expenses, and nor does the tribunal when it applies its conventional line of agent and client expenses.

“The tribunal cannot be faulted for failing to give reasons for applying its conventional line on expenses. Where there is an established principle, and there is no motion before the tribunal to depart from the principle and grant expenses on another basis, there is no need for the tribunal to give reasons as to why it is applying the principle. 

“The matter would be different if the tribunal was departing from its principle, or if a motion had been made and refused, but even in these circumstances brief reasons would suffice. Accordingly the tribunal did not fail to give adequate reasons for its decision in the current case.”