A solicitor has failed in an attempt to challenge an award of expenses against her by the Scottish Solicitors' Discipline Tribunal by judicial review proceedings, because she failed to follow the available appeal route under the Solicitors (Scotland) Act 1980.
Lord Ericht in the Court of Session dismissed as incompetent a petition by Tasmina Ahmed-Sheikh against a decision by the tribunal to award expenses on the agent and client scale following proceedings in which she, along with another solicitor, was found guilty of professional misconduct and fined £3,000. However he also expressed the view that there was no merit in her case.
For the petitioner it was argued that under the scheme of the Act an appeal could only brought against a finding relating to discipline. On the merits, the finding against her was unlawful and unreasonable: it was a recognised principle that agent and client expenses might be awarded only in exceptional circumstances and as a sanction; and the Law Society of Scotland, which brought the complaint, should not be entitled to more expenses than were reasonable, and here the petitioner had co-operated and accepted her guilt. The tribunal had failed to give adequate reasons for its decision.
Lord Ericht ruled that under the Act, the "decision" that could be appealed should be interpreted broadly, and "so as to make a consistent enactment, and to avoid an absurd result". There were clear indications in the Act that appeals against expenses only were competent, and although these were to be discourages, there would be "occasions when important issues relating to expenses require to be determined by a higher court". Accordingly, the petitioner had failed to exhaust her statutory remedy and the judicial review was incompetent.
On the merits, the judge observed that solicitors in Scotland were in a more favourable position that those in England, where costs were generally awarded against the solicitor but not against the Law Society. "The Scottish tribunal does make awards against the Law Society of Scotland, and does so on an agent and client basis."
He added: "The tribunal differs from a civil court in that it is performing a regulatory function. The tribunal differs from a civil court in that both the tribunal and the Law Society in its role as prosecutor are funded by members of a profession. 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. The party against whom expenses are awarded is protected from having to pay unnecessary or unreasonable expenses through the process of taxation by the Auditor of the Court of Session."
In following its conventional line when no motion had been made to depart from it, the tribunal had not fettered its discretion; and the tribunal could not be faulted for failing to give reasons for applying its conventional line on expenses.
However Lord Ericht noted in a postscript to his opinion that information on expenses might not be easily accessible to users of the tribunal who were considering what motion to make on expenses, and the tribunal might wish to consider "providing a guidance note or otherwise publicising the principle, so that the unfortunate circumstances which have resulted in this judicial review do not recur".