X Insurance Co Ltd v A and B

LORD PRESIDENT (Normand).—This is an appeal by A, a country solicitor, and B, a solicitor carrying on business in Edinburgh, against an order of the Solicitors' Discipline Committee finding them both guilty of professional misconduct and censuring them.

The case is important, not only to the two appellants, whose professional future and personal honour are at stake, but also to the legal profession generally. It raises general questions of the duties of solicitors and counsel in the kind of action known as "speculative." Moreover, it is the first case which has come before the Discipline Committee established under the Solicitors (Scotland) Act, 1933, and the duties both of the Committee and of the Court under the Act have been the subject of debate before us and must be considered.

It is important to note that, in this case, there is now no question that fair and honest precognitions were obtained at the outset from the eye-witnesses. The first ground tabled by the complainers in support of the charge therefore goes by the board. The precognitions were submitted by A to counsel, and no complaint can be made of deliberate concealment from him of any material fact. Counsel says:

He accepts full responsibility for the summons and the condescendence annexed to it, and he specifically accepts responsibility for the amount sued for and for the action being taken in the Court of Session, and he explains his reasons for thinking that there were good grounds for the defender's liability. Whether his reasons were good or bad is not material to the decision of this appeal.

The last paragraph of the report deals with a conversation between B and Mr Ross, the solicitor for the defender, which took place in the Small Debt Court before the closing of the record. Mr Ross says in his evidence that he asked B if he was going to accept a tender of £15 and small debt expenses, which had previously been made by letter. He says that B replied: