Solicitor who failed to produce business file for Scottish Legal Complaints Commission not in contempt of court

About this case:

• Citation:
  [2024] CSIH 10
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

A petition was raised by the Scottish Legal Complaints Commission against solicitor Jane Robison after she did not produce her firm’s business file by a specified date. Ms Robison had previously been found in contempt of court for similar failings in May 2023, although no penalty beyond the finding of contempt had been imposed.

The petition was heard by Lord Malcolm, Lord Pentland, and Lady Wise. Black, advocate, appeared for the petitioner and Hamilton KC for the respondent.

Beyond her control

In November 2022, the Commission received a service complaint concerning John Armstrong, a now retired partner of Ms Robison, in respect of his administration of the executry estate of a person who died in 2012. In March 2023 Ms Robison, as the client relations manager of the firm, was sent a summary of the complaint and invited to provide her comments ahead of an eligibility assessment.

It was decided that all of the issues in the complaint were eligible for investigation, and a notice was served on Ms Robison under section 17 of the Legal Profession and Legal Aid (Scotland) Act 2007 requiring production of the firm’s business file by 19 July. This not having been done, even after an assurance that the material would be provided, the Commission raised a petition, which was not answered. The Court of Session ordered Ms Robison to provide the material within 21 days of the date of interlocutor, 6 December 2023.

On 10 January 2024, after the expiry of the deadline, the Commission received a large amount of material from Ms Robison. She explained that she was now the sole solicitor in her firm and had been involved in urgent matters with two clients who had received terminal diagnoses, as well as outstanding issues with the complainers in the executry. She submitted that the failure to meet the deadline was not deliberate and she was thwarted by matters beyond her control.

Counsel for the Commission indicated that it was neutral on the question of contempt. The only problematic issue concerned the late production of the outstanding files. While it was now satisfied that there had been substantial compliance, any engagement, even belated engagement, might well have avoided the court being asked to consider whether there had been contempt.

Casual indifference

Lord Malcolm, delivering the opinion of the court, said of the previous contempt proceedings: “At the time the court expressed the view that there had been deliberate and serious misconduct by a solicitor who, as an officer of the court, was under a particular duty to obey the order. However given that, albeit belatedly, substantial compliance had occurred, and other matters indicated that Ms Robison had gained a fuller appreciation of her professional responsibilities, no penalty beyond the finding of contempt was imposed. As will become apparent the hope of a fuller appreciation has proved to be overly optimistic.”

Turning to the present case, he observed: “The overall picture is of casual indifference towards professional responsibilities owed to the regulatory body and the complainers, who despite everything have remained clients of the firm. The foolishness demonstrated by Ms Robison’s failure to take basic and obvious steps, if only in her own interests, causes concern for unsuspecting clients entrusting important matters to her stewardship.”

Evaluating whether to make a finding of contempt, Lord Malcolm said: “Whatever other pressures she was under, Ms Robison’s decision to postpone completion of the exercise until the eleventh hour, and especially over the Christmas period, was cavalier and fraught with risk. Even without the context of a previous contempt finding, we would expect a solicitor served with an order of this kind to do all that was necessary to ensure that it was met without delay.”

He concluded: “Instead Ms Robison gave priority to other matters and then discovered that she was unable to access the files because of a festive season closure at the storage facility where they had been deposited. However we are prepared to accept that she did intend to meet the deadline, and that the failure to do so was caused by the unanticipated shutdown and did not involve the necessary deliberate affront to the court’s authority for a finding of contempt.”

While no finding of contempt was made, the court granted the petitioner’s motion and, as a mark of its disapproval, made an award of expenses against the respondent.