§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Lennox-Boyd.]
11.44 pm§ Dr. Jeremy Bray (Motherwell, South)My constituent, Mr. Patrick McManus, of 40 Aster gardens, Motherwell, submitted to the Law Society of Scotland four sworn statements from witnesses accusing a local solicitor of failing to respond to their pleas to visit his sister-in-law before her death to finalise her will. His brother, John McManus, died on 2 October 1986 without leaving a will and since there were no children of the marriage his whole estate passed to his widow, Mrs. Eileen Patricia McManus.
The local solicitor attended at the home of Mrs. Eileen McManus on 6 October 1986, four days after the death of her husband, and took instructions on the winding up of the estate. He was also told that she wished him to prepare a will for her, though he did not take instructions at that meeting to prepare a will. Her health deteriorated over the ensuing month, and she died on 6 November 1986. During that period numerous attempts were made to contact the solicitor to get him to see Mrs. Eileen McManus and prepare a will for her. He failed to do so. There are independent witnesses who hold that it was her intention to leave her estate to her brother-in-law, Mr. Patrick McManus, and her sister-in-law. Instead, her whole estate passed to her relatives. The estate was approximately the value of a house.
Mr. Patrick McManus complained to the Law Society of Scotland a few days after his sister-in-law died intestate. The Lay Observer for Scotland, in a report dated 19 November 1987, confirmed that Mr. McManus had complained to the Law Society in a letter dated 24 November 1986. The Law Society had immediately written to the solicitor, asking for his account of the circumstances. It received a detailed, five-page document dated 4 December, with accompanying documents. This was sent to Mr. McManus, who returned full comments on 20 December. The solicitor replied in detail on 5 January 1987.
Mr. McManus, the lay observer continued, had referred to certain people who allegedly had tried to contact the solicitor to get him to attend the late Mrs. McManus. The Law Society, on 21 January, asked for sworn statements by witnesses. Four such sworn statements were sent on 28 January. These were copied to the solicitor, who again sent full comments on 5 February.
Meanwhile, the whole file was circulated to two members of the Law Society for their opinion. It was decided that precognitions should be taken in order to ascertain the strength of evidence of Mr. McManus and his witnesses. These were taken by the Law Society complaints investigator and the whole case was submitted to the complaints committee on 7 May 1987.
The complaints committee took the view that the solicitor's failure to see his client and take her instructions for the preparation of a will in urgent circumstances amounted to a serious professional misconduct, and recommended that the papers be referred to a society fiscal for prosecution before the Scottish solicitors disciplinary tribunal, the strongest possible action.
The council, however, referred the case back to the committee for reconsideration, and it was then decided 1071 that instead of prosecution a reprimand be issued, but subject to interview. This changed decision, according to the lay observer, was taken after a member of the council, but not of the complaints committee, wrote strongly disputing that there had been professional misconduct. The committee alleges that this letter did not influence the decision.
On 27 August, the solicitor was interviewed by a panel of the Law Society, with his legal representative. Further evidence from the solicitor, in particular an alleged log book of telephone calls and personal callers kept by the solicitor's firm, was presented. It apparently conflicted with parts of the sworn statements of witnesses. I am told that in court a telephone log is not accepted as firm evidence. Yet the Law Society accepted it in preference to the sworn statements of Mr. McManus's witnesses, and without an opportunity for him or his representatives to examine the log. The complaints committee decided that the proposed reprimand should be withdrawn without further inquiry, or Mr. McManus being shown the new evidence. This was later endorsed by the council. Mr. McManus was informed of the Law Society's decision.
The lay observer
argued that the complainer should first have been advised what information in the log hook contradicted the evidence he had submitted and given an opportunity to comment.The lay observer recommended, in her 1987 annual report,that whenever decisions to discipline are taken 'subject to interview' of the solicitor, the Council should, before reviewing those decisions, give complainers:—
- (a) an opportunity to study new information produced at the solicitor's interview and to submit comments;
- (b) an opportunity to be interviewed themselves, if they so wish."
In the course of nine months there had been a complete volte-face by the Law Society, following representations from a fellow solicitor, and without opportunity for Mr. McManus to examine new evidence. The solicitor in question finally escaped without even a reprimand.
Mr. McManus contacted the lay observer, whose report, though couched in carefully measured terms, is scathing. He also contacted me. I had a lengthy correspondence with the lay observer, the Law Society, and the Minister responsible for home affairs in the Scottish Office, the hon. Member for Edinburgh, West (Lord James Douglas-Hamilton). At the suggestion of the lay observer, and with my encouragement, Mr. McManus requested the Law Society to appoint a troubleshooter to investigate the case. The troubleshooter produced, in the estimation of the lay observer, a "very responsible analysis".
This report found that. if it were clearly established that it had been brought to the solicitor's attention that the making of a will was urgent, and that he failed to do so within a reasonable time scale. that could be professional negligence. His explanation that he required to wait until the finalisation of the husband's estate before making a will for the wife is difficult to accept. Unfortunately for Mr. McManus, while in the opinion of the troubleshooter he suffered economic loss, there were no grounds for holding in connection with the making of a will for Mrs. McManus that he was employing the solicitor for that purpose. Mrs. McManus could sue for damages for a professionally negligent act as the client, but she is dead.
There has long been a demand for stiffening the procedures of the Law Society's complaints committee, so that it is less susceptible to pressure from solicitors, and 1072 does more to safeguard the interests of clients. The case has been accepted by the Law Society itself. The Solicitors (Scotland) Bill, which is now making rapid progress through Parliament, is a Bill initiated by the Law Society, and agreed by the Law Society, the lay observer, and Scottish Office Ministers. It has all-party support. However, it has been gathering dust in the in-tray of Scottish Office Ministers in one form or another for years. The lay observer has been energetically pressing for the increased powers that the Bill will give her office in report after annual report.
Specifically as a result of a recommendation made by the lay observer on this case, if new evidence is presented, the Law Society's procedure now requires it to be put to the complainer. I welcome unreservedly the increased powers in the Bill given to the lay observer to refer cases to the disciplinary tribunal, and the new powers to discipline solicitors in Scotland in cases of inadequate professional services. I believe that the case of Mr. McManus has played some part in bringing the new Bill before the House. My only regret is that this important Bill was not introduced by the Government, and the issues properly aired. It was left to my hon. Friend the Member for Edinburgh, Central (Mr. Darling) to introduce it as a private Member's Bill. The Bill has gone through Second Reading and Committee on the nod.
Had the Bill been enacted in 1986, Mr. McManus's ease would have been handled very differently. As it is, he has so far been left without prospect of recompense. If there was negligence, or reasonable grounds for believing there to be negligence, by a travel agent, a quantity surveyor, or an engineer, there would be some fund from which a person like Mr. McManus could be compensated as a matter of judgment, not of law. It is my hope that the Law Society, and, influenced by colleagues, the solicitor whose failure to act has resulted in Mr. McManus's loss, will find some way of compensating him for his loss. The accumulation of such cases is bound to strengthen the case for lay panels to judge the complaints brought against solicitors. I hope that the Minister will be able to deal with Mr. McManus's case, and, in particular with the means of compensation, and with the complaints procedure generally.
I hope that I have allowed the Minister adequate time to make a full reply.
§ The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)I am grateful to the hon. Member for Motherwell, South (Dr. Bray) for raising this important matter. I was aware of his considerable interest through correspondence I have had with him. I was sorry to learn of the difficulties encountered by his constituent following the deaths of both his brother and sister-in-law. The case concerns the dissatisfaction of the hon Member's constituent, Mr. McManus, with the Law Society's handling of a complaint alleging professional misconduct against the solicitor who handled the estate of his late brother and sister-in-law.
Although the hon. Gentleman has given an extremely clear exposition of the facts, this is a complicated case, and I should like to run briefly through the main points. The background is as follows. The constituent's brother died in October 1986 without leaving a will. There were no children of the brother's marriage, so his whole estate 1073 passed to his widow. The widow in turn died in November 1986, also without leaving a will. As a consequence of her death without leaving a will, her whole estate passed to her relatives, and Mr. McManus and his sister were not entitled to any part of that estate.
Shortly after the death of her husband, a solicitor was called to the home of the widow and was instructed to take action to wind up her husband's estate and to prepare a will for her. Subsequent to that meeting, the health of the widow deteriorated rapidly until she herself died the following month. It is alleged by witnesses that, during the period between the meeting at the family home and the widow's death, numerous attempts were made to contact the solicitor to have him call upon her and prepare a will.
In a total of five sworn statements, two witnesses claimed to have visited the solicitor at his office on two occasions to advise him of the lady's failing health and her concern that he had not called upon her in connection with the preparation of a will. It is further claimed by those witnesses that, had a will been drawn up, in all probability the estate of the deceased would have passed to Mr. McManus and his sister. Mr. McManus complained to the Law Society of Scotland about the solicitor's handling of his sister-in-law's instructions as regards her will.
For the benefit of the House, it may be worth while if I explain the general procedure for handling complaints against solicitors. These are a matter in the first instance for the Law Society of Scotland, which under the Solicitors (Scotland) Act 1980 has a general duty to promote the interests of the solicitor profession in Scotland and the interests of the public in relation to that profession. The Law Society will investigate a complaint made to it and has power in the case of a justified complaint to refuse to renew a solicitor's practising certificate, which he or she needs to practise, or at any rate to issue one subject to conditions.
If the Law Society considers that there has been professional misconduct by the solicitor, it may refer the case to the independent Scottish solicitors' discipline tribunal which has power to censure, fine, suspend or strike off the solicitor concerned. The Law Society can also provide a "troubleshooter", who is a solicitor prepared to take action on behalf of a complainer against another solicitor—for example, for negligence.
Should the complainer remain dissatisfied with the Law Society's handling of the complaint after the society has reached its final decision, it is open to the complainer to approach the lay observer for Scotland, who is an independent person appointed by the Secretary of State, to examine complaints about the Law Society's handling of allegations against solicitors. The lay observer, who sees the Law Society's files, can issue an opinion analysing the case and setting out her conclusions, which may include recommendations that the Law Society should take certain action on the complaint. However, the lay observer's opinions are not legally binding upon the Law Society. As the Minister responsible for matters affecting the solicitors' profession, I have general oversight of these arrangements, but am not involved in decisions about individual cases.
Returning to the case raised by the hon. Gentleman, his constituent took all the appropriate steps in pursuit of his complaint. He approached the Law Society for Scotland 1074 but, dissatisfied with the way in which it handled his allegations, he took his case to the lay observer for Scotland. The lay observer's opinion expressed concern about a number of aspects of the Law Society's handling of the investigation.
First, the Law Society's investigating committee had taken the view that the solicitor's failure to see his client and take instructions for the preparation of a will in urgent circumstances amounted to serious professional misconduct, and it recommended to the council of the Law Society that the solicitor should be prosecuted before the Scottish solicitors discipline tribunal. The council referred the case back to the committee for reconsideration and the committee then decided that its previous recommendation to prosecute was inappropriate but that a reprimand be issued. The decision to reprimand was accepted by the Council "subject to interview". The solicitor was invited to an interview to restate and elaborate upon the information already provided.
At this point, the society received a submission from a solicitor who was also a member of the society's council supporting the solicitor in respect of whom the complaint had been made, disputing strongly that there had been professional misconduct and questioning the issue of a reprimand. It is recorded in the minutes of the investigating committee and the committee was not influenced by this submission. The solicitor, supported by his legal representative, was interviewed by a panel of the Law Society and, in the light of the information put forward at that interview, the council of the society ultimately decided that the proposed reprimand should be withdrawn. The complainer was informed of the outcome and was sent a full extract from the record of the interview. This was the Law Society's final decision.
As a result of her consideration of the case, the lay observer questioned several aspects of the Law Society's procedure: first, the apparent practice of taking disciplinary action "subject to interview" with the solicitor concerned; secondly, the timing of such interviews; thirdly, the dismissal of evidence contained in five sworn statements from witnesses on the basis of an interview with the solicitor; fourthly, the fact that the complainer was not given an opportunity to comment personally on the points put forward at the solicitor's interview; and, fifthly, the involvement of a council member in presenting personally a case on behalf of a solicitor against whom a complaint had been made. The lay observer noted in particular that failure to give the complainer an opportunity to comment personally on the points put forward at the solicitor's interview was a frequent source of concern to her and that she intended to raise the point in her annual report to the Secretary of State.
The complainer sought the assistance of a troubleshooter to establish whether the facts of the case entitled him, as someone who would have benefited from his late sister-in-law's will, had she made one, to raise an action against the solicitor based upon professional negligence. The troubleshooter took the view that, under existing legislation, even if the solicitor had been negligent, such an action would have little chance of success if pursued through the courts, because the complainer in this case was not the client of the solicitor. In other words, the solicitor was not employed by the complainer for the purpose of preparing a will for his late sister-in-law. A further point at issue, which was derived from the sworn statements of witnesses but which can only remain speculative, is 1075 whether the complainer's sister-in-law, had she made a will, would have excluded succession by her sister and bequeathed her estate to the complainer and his sister.
It would seem that the hon. Gentleman's constituent has exhausted the existing procedures for pursuing his complaint against the solicitor concerned. The lay observer has, as she promised, drawn attention to certain aspects of the Law Society's practice in relation to complaints procedures as highlighted by this case and others like it in her annual report for 1987 which she presented to the Secretary of State for Scotland in March.
I can assure the hon. Member that the Secretary of State and I pay very close attention to the views expressed by the lay observer in her annual reports and to all representations about the Law Society's handling of complaints. The legislation governing solicitors' complaints is kept under continuous review. I understand from the Law Society that it has now changed its procedures so that the complainer will have an opportunity to comment on any points made by the solicitor, no matter at what stage. That was one of the hon. Gentleman's key points about this case.
I should stress that the Law Society's present complaints procedures are geared to alleged professional misconduct. They may be compared with the role of police officers in investigating crime. They are not essentially about civil remedies or making good a loss to a complainer. So even if the solicitor had been found guilty of misconduct, and perhaps fined, he could not have been obliged to make any payment to Mr. McManus.
As regards a civil remedy or recompense, the troubleshooter is firmly of the opinion that no contractual relationship existed between Mr. McManus and his sister-in-law's solicitor and that therefore the solicitor had no professional obligations towards him. A solicitor certainly has a duty of care for the interests of a third party, such as a beneficiary. In this case, however, since his late sister-in-law did not leave a will, Mr. McManus could not be regarded as a beneficiary, despite the assertions of witnesses about the late Mrs. McManus's intentions.
It seems to me that there are no circumstances, therefore, in which the question of ex gratia payments or compensation can arise in this case, which is of course a very unusual one. The legislation governing the procedures for dealing with complaints against solicitors already makes provision for the payment of compensation in certain cases, which I went into thoroughly.
The Scottish solicitors guarantee fund, administered by the Law Society, to which all practising solicitors in Scotland must contribute as a condition of receiving their practising certificate, exists for the purpose of making grants in order to compensate persons who in the opinion of the Law Society suffer pecuniary loss by reason of dishonesty on the part of any solicitor, employee of a solicitor or an incorporated practice. Also, in the interests of consumer protection, the Law Society requires that all practising solicitors must take out and maintain an insurance policy under the society's master policy for the purpose of providing indemnity against any class of professional liability.
In Mr. McManus's case, it seems to me that he would be unlikely to qualify for redress from the guarantee fund for two reasons. First, the Law Society's investigations failed to produce any evidence of dishonesty on the part of the solicitor against whom complaint had been made. Secondly, it cannot be said that Mr. McManus lost his 1076 own money as a result of the actions of the solicitor. In the case of recompense through the indemnity fund, the troubleshooter has advised strongly against Mr. McManus raising an action for damages because of the cost involved and on the grounds that he would be unlikely to succeed as he was not a direct beneficiary.
As the hon. Gentleman will be aware from recent correspondence, one important recommendation made by the lay observer in her 1986 annual report was that she should have powers to refer complaints direct to the Scottish solicitors discipline tribunal when she believes that the Law Society has reached a faulty decision. This recommendation has been incorporated into the provisions of the Solicitors (Scotland) Bill which is currently before the House. The Bill is sponsored by the hon. Member for Edinburgh, Central (Mr. Darling) and has benefited from Government assistance with drafting, and I strongly support it.
The Law Society of Scotland has demonstrated a strong case for introducing this Bill in the current Session so as to give it the powers it desires as quickly as possible. I recognise the point made by the hon. Member for Motherwell, South that he would have preferred the Government to do this. Unfortunately, pressure on the legislative programme meant that there was no Government time available to devote to the Bill. We were pleased to give drafting assistance for a private Member's Bill as the most appropriate method of bringing these provisions, which are considered to be worth while by hon. Members from all sides of the House, into force at the earliest convenient opportunity. The first solicitors' Bill was a private Member's Bill.
As the hon. Gentleman will know, the handling of the Bill is the responsibility of the Member promoting it. The Bill is designed, among other things, to extend the powers of the council of the Law Society and the discipline tribunal to enable them to deal with cases of inadequate professional services in addition to cases of professional misconduct as at present. The Bill would also enable such complaints to be made not only by the solicitor's client but by anyone having an interest in the services provided by the solicitor. It is intended that the Bill will come into effect six months after enactment, but its provisions will not be retrospective except in relation to services whose provision is continuing. It would not be appropriate to impose penalties on solicitors under the new arrangements for work carried out before the new disciplinary powers had been defined and set in place.
I fully recognise that these legislative proposals cannot benefit the hon. Gentleman's constituent. Beyond empowering the lay observer to report a case to the discipline tribunal, I do not think that they would help Mr. McManus directly, since he was not a beneficiary of a will. Nevertheless, his case was very much in mind in the drafting of the Bill and I hope that the assistance we have provided for the Bill will stand as evidence of our concern that these matters should be properly regulated, and of our willingness to take action when the circumstances require it.
It is very much to the credit of the hon. Gentleman that he has taken this case as far as it is possible to take it. This case has highlighted the need for reform in a number of areas. It highlights, for example the capacity of anyone having an interest both to report complaints to the Law 1077 Society and discipline tribunal and also to have the opportunity to respond to new evidence put before the Law Society on behalf of the solicitor.
These reforms are being introduced in the first case by the Solicitors (Scotland) Bill and in the second case by the reformed practices of the Law Society. This leads to the question whether reform should be retrospective. The case against retrospective legislation is that it is very difficult to observe a law that is not enacted, not in force and not known about. Furthermore, it is unfair to expect solicitors 1078 to conform to laws that are not in existence. While I sympathise very much with the hon. Gentleman's constituent, the disadvantages of retrospective legislation outweigh any possible advantage to his constituent. None the less, the hon. Gentleman and his constituent can take some consolation from the reality that their perseverance and dedication were factors giving rise to the terms of the Solicitors (Scotland) Bill, which I hope will receive its Third Reading before long.
§ Question put and agreed to.
§ Adjourned accordingly at thirteen minutes past Twelve o'clock.