Scots lawyer who accepted offer to settle ‘slopping out’ claim without client’s instruction fails in appeal against ‘professional misconduct’ ruling

However, judges in the Inner House of the Court of Session ruled that the tribunal’s decision to restrict the solicitor’s practicing certificate for a period of two years was “plainly wrong and unjustified” and therefore quashed the interlocutor and imposed a fine of £3,000 instead.

Lord Menzies, Lord Brodie and Lady Dorrian heard that the petitioner Iain Robertson, founding partner of the firm of Robertson & Ross Solicitors in Paisley, was found guilty of professional misconduct by the Scottish Solicitors’ Discipline Tribunal in November 2014, after he settled a claim for damages by Steven McGovaney against the Scottish Ministers for breaches of the European Convention on Human Rights by the Scottish Prison Service over the prisoner’s detention in slopping out conditions in HM Prison Barlinnie and in HM Prison Peterhead.

Robertson & Ross had acted on behalf of Mr McGovaney when an initial writ was lodged, but he decided to instruct another firm, Taylor and Kelly, to act for him.

Scottish Ministers accepted that “doubled up” slopping out conditions – where inmates had to share a cell – were a violation of prisoners’ rights in terms of Article 3 ECHR, and with a view to settling claims offers of £2100 were made to those inmates who had been detained in such conditions for a material period of time.

SPS records showed that Mr McGovaney had been detained in single cell slopping out conditions and that he had also been detained in doubled-up slopping out conditions for two nights, although Mr McGovaney claimed he was detained in doubled-up conditions for the whole time he was a prisoner in Barlinnie from March 1999 until August 1999.

An offer of £500, which was directed to Robertson & Ross, who were the solicitors who had raised the action and corresponded with the Scottish Ministers about the claim, was made in just satisfaction of an accepted breach of Mr McGovaney’s Article 8 rights during his detention in single cell slopping out conditions.

The tribunal found in fact that Mr Robertson accepted the offer on behalf of the client without checking any file for instructions and that he had no locus to act further on his behalf, as he ought to have been aware that Mr McGovaney was then represented by Taylor & Kelly.

It was also noted by the tribunal that in several cases the offer of £500 for other prisoners was rejected and a higher award of £2100 was secured for clients who had spent fewer than eight days in doubled-up conditions.

Mr Robertson received the settlement cheque in respect the claim in May 2012, but he did not pay the money to him until March 2013 – a delay of some ten months.

The tribunal said it was clear that the facts demonstrated that Mr Robertson had acted in a reckless and cavalier manner in accepting the offer without referring to a file or communicating with the client, but it was not satisfied that it had been proved beyond reasonable doubt that he had acted deliberately in the clear knowledge that he no longer enjoyed the client’s instructions to act.

Senior counsel for the petitioner accepted that what the petitioner did amounted to “unsatisfactory professional conduct”, but submitted that the tribunal “misdirected itself” in finding that he was guilty of professional misconduct.

It was argued that Mr Robertson believed that he was still acting for Mr McGovaney, and that he thought he had a mandate from him authorising settlement.

However, senior counsel for the respondent pointed out that Mr McGovaney had not in fact signed any claim form or mandate, and even if he had, it would only have authorised settlement in the sum of £2100.

Mr McGovaney had instructed Taylor & Kelly to take over acting for him in March 2011, but it was in April 2012 when Mr Robertson accepted the offer in settlement – an offer which would not have been covered by the petitioner’s firm’s standard claim form mandate, even if Mr McGovaney had signed such a claim form.

It was a “fundamental principle” that if a solicitor receives an offer to settle a client’s action, the solicitor should take instructions from the client and therefore on the basis of the irrefutable and admitted findings in fact, it was submitted that the tribunal was entitled to do what it did.

The appeal judges concluded that the tribunal’s finding that the petitioner was guilty of professional misconduct could not be set aside in the circumstances of the case.

Delivering the opinion of the court, Lord Menzies said: “In the present case, the petitioner himself transferred the file to Taylor & Kelly, after several months of correspondence about the matter. When the offer to settle the action was received from the Scottish Ministers, it appears that the petitioner did nothing to check that he held instructions from Mr McGovaney to settle the action. He did not check his file nor did he try to contact Mr McGovaney.

“He appears to have accepted at face value the assertions of the Scottish Ministers that Mr McGovaney had only spent two days in doubled-up slopping out conditions, and took no instructions from Mr McGovaney on this point. Furthermore, on any view the mandate which is the subject of averments…would not have authorised the petitioner to settle the action in the sum of £500 – even if Mr McGovaney had signed such a mandate, which it appears that he did not.

“Having regard to these factors we are unable to conclude that the tribunal’s findings were, in material respects, unsupported by the evidence and/or contrary to the evidence. The evidence before the tribunal, as contained in its findings in fact, was sufficient to support the tribunal’s finding that the respondent was guilty of professional misconduct.”

With regard to the penalty of restriction of the petitioner’s practising certificate for a period of two years, despite the respect which it is necessary to give to the decision of the tribunal as a specialist tribunal, the judges considered that the penalty was “plainly wrong and unjustified”.

Lord Menzies added: “The tribunal was not satisfied that it had been proved beyond reasonable doubt that the respondent had acted deliberately in the clear knowledge that he no longer enjoyed the client’s instructions to act, and dishonesty therefore had not been established.

“He was found to have acted in a reckless and cavalier manner, and to have demonstrated a clear disregard for the interests of Mr McGovaney, but we do not consider that the maintenance of the reputation of the solicitors’ profession and the sustaining of public confidence in the integrity of the profession required the tribunal to impose the restriction on the petitioner’s practising certificate which it did.

“The consequences of such a restriction for the petitioner himself, and indirectly for the 12 employees of his firm, would be extremely serious, and out of all proportion to the seriousness of the petitioner’s professional misconduct.

“We consider that the seriousness of the petitioner’s professional misconduct would be appropriately marked by the imposition of a fine of £3,000. This penalty would be sufficient to serve the purposes of punishment, maintenance of the reputation of the profession and the sustaining of public confidence in the integrity of the profession.”