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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MOORE, PETITION OF JAMES GERAD FOR JUDICIAL REVIEW OF A DECISION OF THE SCOTTISH SOLICITORS' DISCIPLINE TRIBUNAL DATED 24 OCTOBER 2014 [2015] ScotCS CSOH_182 (30 December 2015)
Cite as: [2015] ScotCS CSOH_182

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[2015] CSOH 182



In the petition of





Petitioner:  Creally QC, Tariq;  T C Young LLP

Respondent:  Dunlop QC;  Balfour & Manson LLP

30 December 2015


[1]        The petitioner, a solicitor, seeks judicial review of a decision of the Scottish Solicitors’ Discipline Tribunal (the “SSDT”) dated 24 October 2014.  The case came before me as a first hearing and was in essence a debate on the Council of the Law Society of Scotland’s (“the first respondent”) preliminary pleas which were as follows:

“1.       The petition being incompetent standing the existence of effective remedies before the SSDT, should be dismissed. 


2.         The petition, being barred by mora, taciturnity and acquiescence, should be dismissed.


3.         The petitioner’s averments being irrelevant et separatim lacking in specification, the petition should be dismissed.”



[2]        The petitioner was enrolled as a solicitor on 11 October 1991.  Since around 9 September 2002, he has practised as the principal of a firm of solicitors.

[3]        On 7 March 2014 a formal complaint was lodged by the first respondents with the SSDT averring that the petitioner was a practitioner who may have been guilty of professional misconduct.  The petitioner lodged answers to the complaint containing three preliminary pleas. 

[4]        Rule 42(1) of the SSDT’s Rules 2008 provides that: 

“The Tribunal may direct that any question of fact or law which appears to be an issue may be decided at a preliminary hearing”


[5]        A preliminary hearing was held on 9 September 2014 to consider the petitioner’s preliminary pleas.  Both the petitioner and the first respondent were represented.  At the commencement of the preliminary hearing the petitioner advised the SSDT that he would only be insisting upon two preliminary pleas, namely: (1) to dismiss all or part of the complaint on the basis of a breach of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) because of unreasonable delay; and (2) on grounds which are not relevant to the issues before the court. 

[6]        Having heard submissions on behalf of the petitioner and the first respondent, the SSDT pronounced the following interlocutor:

“Edinburgh, 9 September 2014.  The Tribunal in respect of the complaint dated 7 March 2014 at the instance of the Council of the Law Society of Scotland against James Gerard Moore, *************;  Refuses the motions for the respondent to dismiss or sist the complaint and ordered that a hearing of the complaint be heard on 4 December 2014 at 10.30am.”


[7]        That the above decision was given orally to parties on 9 September 2014.  The SSDT’s written decision was issued on 24 October 2014 and was intimated to the petitioner on 27 October 2014. 

[8]        That in the said decision the SSDT held that it was bound by the decision of the Inner House in the case of Council of the Law Society of Scotland v Hall (2002) SLT 620.  In the case of Hall, the Inner House held that the relevant period for the purpose of assessing delay under article 6(1) of the Convention began at the date when the first respondent made the complaint to the SSDT.  That in the instant case the complaint was sent to the SSDT on 7 March 2014 however, the complaint related to events in 2007 and 2008.  The SSDT held that given the decision in the case of Hall it was the “inevitable” conclusion that the petitioner’s motion had to be refused.  It therefore did not determine the issue of any prejudice to the petitioner occasioned by the delay in prosecuting the complaint, insofar as any delay was said to predate when the first respondent made the complaint to the SDDT, as this had become irrelevant in light of the decision in Hall.  It appointed the complaint to a full hearing.

[9]        Thereafter an appeal against the foregoing decision in terms of section 54 of the Solicitors (Scotland) Act 1980 was timeously marked by the petitioner.  On 2 December 2014 answers to the said appeal were lodged by the first respondent.  Among the issues raised in the answers was the competency of the appeal.

[10]      On 10 December 2014 the Inner House pronounced an interlocutor holding the appeal to be incompetent.  In light of the said interlocutor a fresh hearing before the Tribunal was fixed for 15 June 2015.

[11]      The present petition was presented on 26 May 2015 and first orders were granted on that date.  In light of the first orders being granted the hearing before the SSDT was discharged. 

[12]      In raising the present petition the petitioner’s position was this:  he submitted that the question to be determined by the court was;  what is the starting point for assessing delay for the purpose of article 6(1) of the Convention?  However, the petitioner recognised that the Outer House was bound by the decision in Hall.  The petitioner’s primary argument was that Hall had been wrongly decided.  It was accepted that the prospect of a Lord Ordinary finding in favour of the petitioner in this argument was limited.  Therefore it was argued that the fair and efficient administration of justice would best be served by putting the matter before the Inner House.  In these circumstances, the petitioner requested that the court report the cause to the Inner House in terms of rule 34(1), RCS.  This would thereafter allow the Inner House to consider whether Hall had indeed been wrongly decided.

[13]      In response to the petition and the argument set forth on behalf of the petitioner to the effect that the matter should be reported to the Inner House the first respondent raised certain preliminary legal issues, as I have set out earlier, and it was these legal issues on which I heard argument.


The events post 10 December 2014 and the raising of the present proceedings

[14]      In the period between the above interlocutor of the Inner House and 22 May 2015 the following events occurred which had relevance to the issues before this court:


“Having discussed matters with the Chairman, given the contents of Mr Ferguson’s (the petitioner’s agent) latest email, the Chairman has suggested that the matter be fixed for hearing in June 2015 so that it should be clear at that time whether or not judicial review proceedings have been raised.


The Chairman has suggested 15 June 2015.  Perhaps you could confirm that this date is acceptable to you.”


This email was replied to by the petitioner’s solicitors in an email sent on 23 March at 16.19.  The terms of this were as follows:

“I have now had responses from both counsel and my client and both can do 15 May as can I.  I am informed that the JR is still to proceed and I will report when I hear it has been raised as it will, I as indicated previously, mean this date will require re-scheduling.”


Thereafter, on 6 May 2015 the solicitor appointed as the fiscal for the hearing (Mr James A F Reid), there having been no indication from the petitioner that a judicial review was to proceed, had a telephone conversation with the petitioner’s agents.  The contents of the conversation are as set out in the affidavit of Mr Reid (7/8 of process) and the terms of the relevant parts of that affidavit are as follows:

“5.       On 6th May 2015 I had a telephone discussion with Ian Ferguson of Mitchells Roberton, Mr Moore’s agent for the SSDT matter.  I sought confirmation as to whether or not he was still instructed given the Hearing was due to proceed on 15th June.  He responded ‘yes and no’.  He advised that a Judicial Review was still intended but that Junior Counsel had indicated he would not proceed with it without running it past Senior Counsel and Eugene Creally Q.C. had been instructed.  I was advised that matters had reached the stage where Grounds had been sent to the Petitioner who had to give instructions before a Petition was then lodged.


6.         I indicated my concern was that I was about to start detailed preparation for 15th June given the amount of work.  Mr Ferguson said that he would phone his client to see whether or not the Grounds had been approved and he would call me back later that day or the following day.


7.         He also indicated that he could see why the Tribunal had fixed a June 2015 date because after all no Judicial Review had actually been lodged so far.


8.         I did not hear from Mr Ferguson on the 6th nor indeed the 7th and in fact I did not hear anything from him until a draft Petition was e-mailed to me on 15th June 2015.


9.         In the circumstances on the 7th and 8th May I had no choice but to assess the file and documents and carry out initial work in relation to identifying productions, witnesses and preparing a provisional draft inventory.  I then liaised with my client to identify witnesses available and then over the course of the 12th and 13th May I carried out further preparations, including identifying all client files to be lodged;  the witnesses required;  reviewing the legal position in relation to documentation and identifying further correspondence necessary for lodging.  All in all during this period and prior to receipt of the draft Petition for Judicial Review, I spent ten hours in these preparations.


10.       On 15th May, on receipt of the draft Petition for Judicial Review, contact was made with the SSDT Clerk and she indicated she would contact the Petitioner’s agent.  In the circumstances I halted my preparations on 15th May.”



[15]      Senior counsel for the first respondents’ submissions fell into three chapters and I would intend to look at each of these in turn.



[16]      Senior counsel’s position was this:  when the whole circumstances were had regard to, there was unreasonable delay during which the petitioner was taciturn, such as to lead to an inference of acquiescence in the complained of decision.

[17]      With respect first to mora, counsel drew to my attention the terms of section 54(1A) of the Solicitors (Scotland) Act 1980 which provides:

“A solicitor or an incorporated practice may, before the expiry of the period of 21 days beginning with the day on which any decision by the Tribunal mentioned in subsection (1B) is intimated to him, or as the case may be, it appeal to the court against the decision”.


[18]      He submitted that the time period within which an appeal had to be marked in terms of the above section was a very short one, only 21 days.  Moreover an Extra Division in WY v Law Society of Scotland 2009 SC 430 with respect to the said time limit held as follows:

“Neither the Rules of Court nor the common law could be applied in such a way as to allow late receipt of the petition in face of the strict statutory time limit without which the court could not give directions” (see:  page 430).


[19]      Senior counsel contended that in considering the issue of unreasonable delay, this question had to be considered in light of the short and strict time limit imposed in relation to the marking of an appeal in terms of section 54.  When viewed against that background the delay here was obviously unreasonable.

[20]      The second factor against which unreasonable delay should be measured, was this:  the petition was in almost identical terms to the appeal which had been presented in terms of section 54.  There accordingly was nothing to investigate and no need for any delay in the presentation of this petition. 

[21]      Thirdly, he pointed to how close to the date of the new hearing, which was fixed for 15 June 2015 that the petition was eventually presented.  This factor should be viewed in the context of the knowledge that other parties would be acting.  The petitioner was, or should have been aware, that the fiscal would be preparing for the hearing in June.  He referred in particular to the passages in the affidavit of Mr Reid earlier quoted. 

[22]      Taken in that context the 260 days which had passed from the decision by the SSDT until the presentation of this petition was an unreasonable delay, approximately 13 times the time limit in terms of section 54.  Even if the start point was taken from the issue of the written reasons, the delay in presentation had been 211 days, ten times the time limit in terms of section 54.  Beyond that, if one were to count from the date of the dismissal of the incompetent appeal, it had taken 167 days to present the petition;  a period eight times the statutory limit for the marking of an appeal.  Lastly, even on the most benevolent view, if one looked at the period from the email of 6 March 2015 until the presentation of the petition there had been a delay of 81 days.

[23]      Senior counsel’s short proposition was this:  where there was a ready-made petition available in November 2014 it made no sense that the petition was not presented in fact until the end of May 2015.  There had been unreasonable delay.

[24]      With respect to the issue of taciturnity it was senior counsel’s position that there had been no real assertion of the claim and in any event any such assertion had come too late.  The only correspondence relied upon on behalf of the petitioner was in March (as earlier set out).  That was too late.  This was, in any event not an assertion of the right.  This can be seen from the fact that even after this correspondence more than two months passed before the presentation of the petition.

[25]      Looking to all of the foregoing, senior counsel submitted that acquiescence could be inferred. 


Reply for the petitioner

[26]      It was senior counsel’s position that it could not be said that following the SSDT’s decision there had been silence on the part of the petitioner.  In support of this he submitted:




“It should be clear by that time (15 June, the date fixed for the full hearing) whether or not judicial review procedure has been raised.”


He submitted it was clear from this passage that the SSDT was aware of the petitioner’s position that he intended to challenge the decision of 24 October 2014 and on the basis of that understanding of the petitioner’s position the SSDT had fixed a hearing for that particular date.


[62]      At the stage of remedy a balancing exercise involving first the public interest and second, the right of the defendant had to be carried out. 

[63]      The issue of delay could be argued either before or after the hearing if article 6 rights had been breached.  His submission was that the court in Attorney General Reference (No 2 of 2001) was not excluding the possibility that one of the disposals available would be dismissal where the taking place of any hearing would be unfair.  He submitted that Ruddy was not an authority for the proposition that dismissal in such circumstances was excluded.  In particular he drew my attention to paragraphs 15, 16 and 21 in Ruddy which he submitted provided support for the position that dismissal was not being excluded.

[64]      He submitted that in addressing the SSDT junior counsel for the petitioner had identified areas of prejudice which merited the dismissal of the proceedings before the SSDT and referred me to a section of the Decision of the SSDT where these submissions were set out, namely:  at page 14.   It was his position that given such prejudice that for the hearing to proceed would be manifestly unfair. The Tribunal had made no assessment of these points because of the decision in Hall.  If Hall were wrongly decided or if the instant case could be distinguished from Hall then these matters were all highly relevant.  The present petition against that background could not be said to be academic in nature.

[65]      Rather it was far from academic as the petitioner was seeking to invoke his article 6 rights which could not be invoked because of Hall and he wished to have that matter reviewed in terms of the present petition.



[66]      I am persuaded that the matter raised in the present petition would be academic unless the petitioner is in a position to bring himself within one of the two categories identified by Lord Bingham in Attorney General Reference (No 2 of 2001) at paragraph 24, namely:  (1) there can no longer be a fair hearing or (2) it would otherwise be unfair to try the defendant, in that it is only if he can bring himself within one of those two categories that dismissal of the proceedings would be an appropriate remedy to be granted by the SSDT. 

[67]      I am satisfied on the basis of the Attorney General Reference (No. 2 of 2001) that it is not sufficient to obtain dismissal merely for the petitioner to show that the hearing was not brought within a reasonable time. 

[68]      As is said at paragraph 19 of Attorney General Reference (No 2 of 2001):  “The right is to trial without undue delay;  it is not a right not to be tried after undue delay.”

[69]      It is clear that the petitioner cannot bring himself within the category of case where it would be unfair to try him given the observations as to what would constitute such unfairness made by Lord Bingham at paragraph 25 of Attorney General Reference (No 2 of 2001).  He does not fall within the scope of the specific examples identified by Lord Bingham.  Nor does anything put forward on his behalf, amount to circumstances which could fall within the general scope of the types of cases envisaged by Lord Bingham in his guidance as causing it to be unfair for a case to proceed. 

[70]      The question therefore becomes this:  on the basis of what has been put forward on his behalf could the SSTD properly hold that he could not obtain a fair hearing?

[71]      As senior counsel for the first respondent pointed out, at no point within the section 54 appeal or the judicial review petition does the petitioner aver that he cannot obtain a fair hearing.  I would observe that at paragraph 5.2 in the answers to the appeal the following is averred:

Separatim, the argument regarding article 6 was, and remains, premature.  The consequences of a failure to bring proceedings within a reasonable time is not dismissal of those proceedings, unless a fair trial is impossible:  Speirs v Ruddy 2008 1 AC 873.  The petitioner not having submitted, let alone established, that a fair trial is impossible by virtue of passage of time and the Tribunal being able at the hearing on the merits to make due allowance therefore, the motion for dismissal was, and remains, misconceived.”


[72]      It is clear from the above passage of the answers that the issue of the prematurity/academic nature of what was being sought was before the petitioner from an early stage.

[73]      The petitioner, before me, pointed to certain submissions made by junior counsel before the SSDT as supporting unfairness though unfairness per se is not pled. 

[74]      With respect to these:  the first point made is the loss by the petitioner of computer records and the following was said in relation to this loss before the SSDT:  “This had hampered the respondent in the preparation of his answers as the contents of the complaint involved historic issues which were not fresh in the respondent’s memory.”

[75]      This in my judgment, if prejudice at all, does not amount to a situation where a fair hearing before the SSDT is not possible.  All that is said is this:  the loss hampered the petitioner in the preparation of his answers.  It is not said he was unable to lodge answers.  It is not said that to any material extent he was unable to prepare his answers or would in any way be materially disadvantaged at any hearing because of the lack of these computer records. 

[76]      The second area of prejudice founded upon before the SSDT related to a loss of potential witnesses, namely:  financial advisers referred to within the complaint.  Again no detail was given as to the particular way in which the loss of these witnesses would prevent a fair hearing before the SSDT.  The mere loss of what were at its highest described as potential witnesses would not necessarily lead to an unfair hearing before the SSDT. 

[77]      Overall and when taken together there was nothing put forward by junior counsel for the petitioner to the SSDT which would render it impossible to have a fair hearing before the SSTD.  Nothing further was put forward by way of argument or in the course of oral submissions to support the contention that the petitioner could not obtain a fair hearing before the SSDT.

[78]      On what to this point has been put forward on behalf of the petitioner as amounting to prejudice the SSDT could not properly hold that the appropriate remedy was dismissal.

[79]      I believe it would be inevitable in light of the law as set forth in Attorney General Reference (No.2 of 2001) that if the SSDT were able to consider the above matters, which they were not able to consider in light of the decision in Hall, they would inevitably refuse the motion to dismiss.

[80]      Accordingly I am persuaded that this petition raises no more than an academic issue and for this further reason the petition should be dismissed.


Alternative effective remedy

[81]      The final chapter of the first respondent’s argument was to this effect:  the petitioner had an alternative effective remedy and therefore the present petition should not proceed.

[82]      Senior counsel accepted that the SSDT is a public authority subject to the Human Rights Act 1998.  As such, it could not act incompatibly with that Act.  Nevertheless, the petitioner has an alternative remedy, namely:  to make a submission based on unreasonable delay before the SSDT at the full hearing on the complaint.

[83]      Senior counsel emphasised that for the reasons he had earlier advanced in terms of chapter 2 of his argument, namely that no aspect of the petitioner’s answers had been excluded from probation by the SSDT and no plea-in-law had been repelled it was open to the petitioner to raise the issue of unreasonable delay at the full hearing.  Moreover, if the ground of complaint was established at a full hearing before the SSDT he then had an unfettered right of appeal in terms of section 54 and that would allow the issue of unreasonable delay to be raised.  It was senior counsel’s position that by raising the present proceedings all the petitioner had done was to create further delay.  Had he proceeded to a full hearing before the SSDT and if necessary an appeal, then the matter would have been dealt with by this stage.  He contended that all the petitioner was saying was this:  not that he did not have an effective remedy but merely that he did not have as good a remedy.

[84]      In support of his submission senior counsel referred me to Sutherland-Fisher v The Law Society of Scotland 2003 SC 562.  The background to this case was this: 

“Complaints were made against a solicitor to the Scottish Solicitors Discipline Tribunal.  The complaints related to the solicitor’s own actions and were about facts within his knowledge.  The solicitor had been acquitted on similar criminal charges and had had the services of an accountant in relation the trial, who had produced a report.  Although he was not entitled to legal aid, he was able to seek legal advice and assistance.  The subject matter of the complaint was not particularly complex.  Before the Tribunal the solicitor argued that for there to be a fair hearing it was necessary that he should have legal representation.  The Tribunal rejected the argument.  The solicitor appealed to the Court of Session seeking recall of the Tribunal’s interlocutor and interdict against the Law Society from convening a hearing in the absence of legal representation to the petitioner.  He argued that he would not be able to obtain a fair hearing in the absence of legal representation, and that legal representation at the stage of an appeal to the Court of Session would not be sufficient to meet the requirements of article 6(1).  The respondents argued that in the circumstances the provision of legal representation was not indispensable and in any event there was a full and unrestricted right of appeal to the Court of Session for which legal representation would be available.”


[85]      At paragraph [22] the court made the following observations:

“… It is contended on behalf of the respondents that, even if the Tribunal proceedings considered in isolation do not comply with the requirements of article 6(1), they are subject to subsequent control by judicial body, namely the Court of Session, that has full jurisdiction and does provide the guarantees of art. 6(1), Albert & Le Compte v Belgium at para 29;  Twalib v Greece at p. 604).  It is clear that in the event of an appeal to the Court of Session the petitioner would be eligible for legal aid and the services of counsel.  The court can deal with disputed issues of fact and of law, and a transcript of the proceedings before the Tribunal would be available.  Further the court, has power to remit to any person to make further enquiry into the facts, or to take further evidence and to report to the court.  In this connection the proceedings before the Tribunal cannot be viewed in isolation, and in the circumstances were are certainly not in a position to say that the proceedings taken as a whole and including the full right of appeal, would not be art. 6 complied.”


[86]      For the foregoing reasons senior counsel submitted that there was an effective alternative remedy.


Reply on behalf of the petitioner

[87]      It was submitted by senior counsel for the petitioner in summary that in terms of section 54 of the 1980 Act, it appeared that even where a complaint ought to be struck out in its entirety at a preliminary hearing due to, for example, a breach of the Convention or a fundamental incompetency, an aggrieved party would have no option but to conduct a full hearing into the merits of the allegations before being given an opportunity to appeal on a preliminary point that would strike out the entirety of the complaint.  This, he submitted, did not amount to an effective alternative remedy for the petitioner, particularly where the nature of his complaint was unreasonable delay in the determination of his civil rights and obligations in terms of article 6(1) of the Convention.

[88]      As I understood senior counsel, he was saying this:  the rules of the Tribunal allowed a preliminary challenge, however, there was no appeal to the Inner House arising from the decision by the SSDT on such a preliminary issue.  Accordingly the petitioner would be forced into a full hearing and although there was an appeal against the decision at a full hearing to the Inner House in terms of section 54, that was not an effective alternative remedy.  It was not an effective alternative remedy because he had to go through the full hearing.



[89]      On this issue I am persuaded by the argument put forward by senior counsel for the first respondent which in my view has substantial merit.

[90]      If unreasonable delay has been caused and the petitioner is not able to obtain a fair hearing before the SSDT and the complaint is established before the SSDT he will be able to raise that issue as a ground of appeal to the Inner House in terms of section 54.  He will be able to raise the exact same issue before the Inner House by way of appeal in terms of section 54 as he would be able to raise before them were I to report this matter to the Inner House as is sought in the petition before me.

[91]      Looked at in the above way, he has the exact same remedy open to him by means of appeal which he seeks to obtain by means of the present judicial review proceedings.  The mere fact that in order to obtain an appeal he must go through a full hearing does not render that appeal as something other than an effective remedy.

[92]      In my view in looking at this issue, the court has to have regard not merely to the procedure before the SSDT in isolation but at the whole procedure including the rights of appeal open to the petitioner.

[93]      Moreover, it would appear that the Tribunal would be in a much better position to consider the fairness of any proceedings once evidence has been led as it is only at that point that it appears to me that the tribunal would be in a position to be fully informed on the issue of fairness. 

[94]      The route of appeal by way of section 54 requires a full hearing and that may be less convenient to the petitioner, that, however, does not render the section 54 appeal a less than effective remedy.

[95]      Overall I believe the existence of section 54, which gives the petitioner an unfettered right of appeal, renders it incompetent to seek relief by means of recourse to the supervisory jurisdiction of this court.



[96]      For the foregoing reasons I sustain the first respondent’s first, second and third pleas-in-law, repel the petitioner’s pleas-in-law and dismiss the petition.  I was not addressed on the issue of expenses and I reserve my position regarding this matter.


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