Upper Tribunal refuses leave to appeal in previously settled letting agent complaint case

By Mitchell Skilling

Tonero Ltd had formerly hired Countrywide Residential Lettings to provide letting agent services for four properties it owned. It alleged that the First-tier Tribunal had failed to take into account the respondent’s behaviour during the course of settlement negotiations that took place following an earlier application to the Tribunal.

The application was considered by Sheriff Frances McCartney. The appellant was represented by company director Mr Etineh, while the respondent was represented by a Mr McEntegart.

Settlement negotiations

In November 2020, the appellant first applied to the First-tier Tribunal alleging various breaches of the Code of Practice by the respondent. After the lodging of that application settlement discussions took place between the parties, which the respondent considered to have reached a binding settlement. This position was disputed by the appellant, leading to a Sheriff Court action in which it was held that the parties had indeed formed a binding agreement to settle for the sum of £3,914.

Following the withdrawal of the 2020 application in October 2021, the appellant made four new applications to the FtT raising alleged breaches of the Code of Practice. There was no dispute that the alleged breaches were the same as those raised in the original application, with the addition of allegations of further breaches during the settlement negotiations.

The FtT rejected all four applications on the ground that it considered them to be frivolous. While the legal member observed that the appellant considered it was not given the opportunity to have legal advice prior to signing the settlement agreement and may have had some kind of complaint with regard to the actings of the respondent’s solicitor, those were not matters for the Tribunal.

It was the appellant’s case that the FtT had failed to take into account relevant factors in considering the application, including that the respondent had given it only 24 hours to respond to the settlement offer. The respondent had engaged in gross misconduct and exerted undue influence and its behaviour ought to have been examined by the Tribunal.

Hopelessly misconceived

In her decision, Sheriff McCartney observed: “Whilst the Appellant was given the opportunity via a hearing before the Upper Tribunal to explain in law why the First-tier Tribunal erred in its decision of 14 March 2022 that the applications were frivolous, the submissions made amount to a continuing grievance about, in particular, [the sheriff’s] decision. The Appellant has not engaged with the legal test before this tribunal, or indeed before the First-tier Tribunal.”

She continued: “Any question of the Respondent’s conduct could have been raised within the Sheriff Court proceedings, where the Respondents were legally represented. It was not. The Appellant has not appealed Sheriff Holligan’s decision. That decision determines the applications to the First-tier Tribunal alleging breaches of the Code had been settled and fell to be withdrawn. The First-tier Tribunal cannot make an order that such settlement is null and void.”

Turning to the specific allegations made by the appellant, the sheriff said: “The Appellant fails to explain why a 24 hour deadline to respond during a period of negotiations, with a tribunal hearing imminent, could be considered to be in any way ‘improper’, far less unfair or dishonest, far less how that might be a breach of the Code. The Appellant fails to explain why there is psychological damage arising from the negotiations (noting that the Appellant is a limited company). The Appellant fails in any persuasive argument that new applications before the First-tier Tribunal would have any prospects of success whatsoever.”

Affirming the decision of the FtT, Sheriff McCartney concluded: “Before the Upper Tribunal, the Appellant has stated bald points of law, without explanation or justification. The Appellant has continued with a line of litigation over a matter already settled. The current litigation is frivolous. It is hopeless misconceived.”

Leave to appeal was therefore refused.

Blackadders announces leadership changes

Laura McDowall, head of the private client group, has joined the board along with Campbell Clark, head of the business services group, who has been reappointed to the board.

Two further partners have been elected to serve on the board, Simon Allison, head of employment, and Kirk Dailly, head of corporate & commercial. Peter Duff remains chairman.

Mr Allison has specialised in employment law for over 20 years and has been accredited in this field by the Law Society of Scotland since 2013. He said: “I am delighted to have been elected by my partners as a board member. Blackadders has a very exciting future and I look forward to adding my experience to the board to further support all of my colleagues from all units within the firm.”

Mr Dailly has been appointed head of corporate & commercial. He represents a number of Scotland’s leading tech companies, video game entrepreneurs and start-up businesses, and has helped establish the firm inside the top 10 corporate dealmakers in the country. “I’m excited to lead such a talented team and look forward to driving the innovation of the firm’s services in a rapidly evolving profession,” he said.

Ms McDowall has been appointed as head of the private client group. She deals with wills, succession planning, the creation and administration of trusts and adults with incapacity including powers of attorney, guardianship orders and financial management. She is accredited by the Law Society of Scotland as specialist in incapacity and mental disability law.

She said: “It is a great honour to have been appointed as head of the private client group. I am very much looking forward to working with the board to implement the firm’s strategy as we continue to grow and meet the exciting challenges of the years ahead.”

Succeeding managing partner Johnston Clark, Emma Gray and Ryan McKay have taken up their new roles as joint managing partners for the board.

Mr McKay commented: “Under Johnston’s leadership for the past 23 years, the firm has grown to become a leading national firm. The board takes over with the business in great shape and with ambitious plans for further growth. Our aim is to continue on that positive trajectory of success through both organic growth and lateral hires to ensure that we continue to deliver the highest quality of advice and service to our clients.”

Ms Gray added: “We have fantastic talent across the business and our people are very much at the centre of our success to date. We are committed to developing our people who will play a crucial role in our continued success and will help the board fully capitalise on the great opportunities ahead for Blackadders and our clients.”

Promotions at MBM Commercial

In the corporate team, Craig Edward and Ross Byford have been promoted to director; Greg Coats has been promoted to senior associate and Ruairidh Morrison to associate.

In the firm’s intellectual property, data and contracts team, Danielle Prado has been promoted to senior associate.

Commenting on the promotions, Stuart Hendry, MBM’s senior partner, said: “We continue to grow and add to our team. Congratulations to each of these individuals on a very well-deserved promotion.”

Tony Jones QC calls to English bar as Advocacy by Brodies grows

Mr Jones is the only QC in Scotland to be accredited by the Law Society of Scotland as an expert in both professional negligence law and construction law. He frequently represents clients in property, professional negligence, construction, corporate and contact disputes.

He said: “I am delighted to have been called to the bar in England and Wales and, along with David and Fiona’s qualifying as solicitor advocates, our clients will benefit from our continued commitment towards providing market-leading litigation and advocacy practices.

“We provide a full service for our clients across the UK, from instigation to final determination or resolution, which is relevant to individuals, businesses and the public sector, giving our clients a wider choice of representation across the jurisdictions.”

Mr Jones’ appointment comes after Brodies’ senior associate Fiona McLeod and associate David Ford were introduced to court as solicitor advocates last month.

Ms McLeod said: “As a litigator in the Sheriff Court, I have always been eager to develop my advocacy skills and obtain higher rights of audience to appear in the Supreme Courts.

“Since joining Brodies in 2019, I have been impressed with the in-house advocacy offering and I am delighted to now join Advocacy by Brodies and look forward to working with colleagues, providing a full service offering to clients.”

Gillespie Macandrew appoints legal heavyweight Michael Shaw as chair

Mr Shaw brings a wealth of legal, commercial and business expertise to Gillespie Macandrew and replaces Fiona Morton, who retired from the role in early July after five years with the firm.

Mr Shaw spent over 20 years in private practice at Herbert Smith Freehills and Clifford Chance before becoming deputy group general counsel at Barclays in 2009 and then RBS/NatWest group general counsel in 2016, prior to retiring earlier this year.

Chief executive officer Robert Graham-Campbell commented: “Michael’s appointment reflects the continued ambitions we have for our business. He has a remarkable track record and brings further depth and commercial expertise to our Board.

“We are also grateful to our outgoing chair, Fiona Morton for her significant contribution and leadership over the past five years and who has nurtured our culture of transparency, professionalism and inclusion.”

Mr Shaw added: “Gillespie Macandrew is an ambitious and forward-thinking firm and I look forward to working closely with Robert and the other Board members at what is an exciting period of growth for the firm.”

Scottish government told to act in face of soaring police officer retirements

A Scottish Liberal Democrat freedom of information request has revealed that 763 Scottish police officers plan to retire this year, compared to an average of 584 over the last five years. The research also revealed that 1,353 will be eligible to retire within the next twelve months.

The increase in retiring police officers comes in the wake of Scottish Police Federation Chair David Hamilton describing stress levels as “critical” and the introduction of the McCloud Remedy, a landmark legal judgement which removes age-discrimination in public sector pension schemes.

Last week the UK government accepted the recommendations of the Police Remuneration Review Body, meaning an overall rise of five per cent for police officers in England and Wales and up to 8.8 per cent for the lowest paid. The Scottish Police Federation’s joint central committee rejected a proposed wage increase of 1.4 per cent for most officers and two per cent for new recruits last month.

Scottish Liberal Democrat deputy leader and former police officer, Wendy Chamberlain, commented: “Despite violent crime being on the rise, Police Scotland have been plagued by a shortage of resources and funding. Huge numbers of officers have had enough and are threatening to call it quits.

“These numbers are a worrying example of how the government simply isn’t doing enough to maintain law and order across Scotland.

“Police Scotland need to retain skilled and experienced officers. Otherwise, the government will have to either rack up the costs of recruiting and training staff who don’t have the same breadth of experience or leave ever greater areas without any community policing.

“A career in the police involves navigating complex pressures and high-level demands. That’s why the government must act to improve pay and conditions, while also conducting regular staff surveys, to put the welfare of officers at the centre of reform.”

Leeds Building Society stops offering mortgages for second homes

Leeds, which is one of the UK’s 20 largest mortgage lenders, has surprised mortgage experts who said it was unusual for banks to be overtly public about such changes.

It is Britain’s fifth largest building society, with £19.7 billion worth of loans on its balance sheet.

Richard Fearon, Leeds’s chief executive, said: “We don’t believe support for second homes is compatible with our purpose to put home ownership within reach of more people. Second homes reduce the number of properties available for people to live in, at a time when there’s a consensus housing supply is inadequate to meet demand.”

The building society’s results for the first half of the year showed that it helped 9,000 first-time buyers on the housing ladder and that gross lending reached £2.5 billion.

Concerns over the UK’s 495,000 second homes mean that English councils could be given the power to double council tax bills on second homes used or let out for fewer than 70 days a year under legislation currently before Parliament.

England: Legal Ombudsman rubbished by public as wait times reach two years

Staff at the industry-funded arbitration scheme are so overwhelmed that nearly one in four are leaving every year.

There are 6,000 cases waiting to be investigated, more than double the figure from two years ago.

The ombudsman has proposed dismissing certain cases in order to reduce the backlog and cutting the complaint window from six years to only one. The service said it has resolved 40 per cent more cases than it did last year but that an increase in the number of complaints meant the backlog has grown.

One in four complaints relate to conveyancing and one in seven are over firms that deal with personal injury claims. One in eight complaints are about divorce solicitors.

Emily Barnes complained to the ombudsman after she said her divorce solicitor had overcharged her – by £95,000. The ombudsman refused to investigate the complaint. She said: “Like many others, I’ve been let down by not having my complaint investigated. I waited over two years for them to open my complaint only for them to throw it out under one of their scheme rules.”

The ombudsman availed itself of a rule which means it does not need to investigate a complaint if the solicitor makes a reasonable offer of redress. In Ms Barnes’ case, the solicitor offered a 25 per cent reduction in the outstanding fees, which means lawyers are still seeking £75,000 from her that she does not believes she owes.

She said: “It’s been incredibly stressful. There is no accountability. My complaint was detailed and valid but the ombudsman just said, ‘We’re not even going to look at it.’

“I appealed but they said no. If I wish to take it any further I have to go to a judicial review. But doing that is going back to court which means more costs.”

Ms Barnes said the rule incentivises law firms to overcharge and then offer a token reduction. She said: “It’s a win-win for the ombudsman and solicitors. The ombudsman loses workload by dismissing complaints and the law firms get their problems brushed under the carpet.”

She added: “I put my trust into the system and it has blown up in my face. It’s been horrendous.”

The ombudsman has the second-worst record of all ombudsman services on the reviews website TrustPilot. Of its 185 reviews it has 178 with one star. It is only bested in being the worst service by the Parliamentary and Health Service Ombudsman.

In December one reviewer wrote: “One star is one star too many. This is a dreadful organisation and should be disbanded. My investigation took 39 months and the chief ombudsman said it wasn’t complex. It was a full-time job explaining every piece of evidence. It was not fair, it was not transparent and it was not free. I lost years to this useless organisation.”

In January another reviewer added: “They need to change their title to illegal ombudsman. It has been two years now and I haven’t heard anything. Utterly dysfunctional, useless, annoying, waste of time.”

Former gamekeeper jailed for animal fighting and gun offences

Rhys Davies, a former gamekeeper at Millden Estate near Glenesk, was sentenced at Forfar Sheriff Court after pleading guilty to keeping five dogs for animal fighting from 24 April 2018 to 8 October 2019.

Davies also pled guilty to causing unnecessary suffering to two dogs by failing to provide veterinary treatment and to breaching the conditions of his firearms licence by having unsecured firearms and ammunition in his home at Turnbrae House.

The court heard that an employee of a photo print company contacted the Scottish SPCA with serious concerns about the welfare of several dogs pictured in an order for 58 images placed by Davies.

Many of the dogs showed progressively more serious facial injuries over the period the images were taken and several males posing and digging into what looked like badger setts or fox dens. There were numerous images showing dead foxes.

The Scottish SPCA identified them as ‘trophy’ photographs showing a group of males engaging in the organised fighting and killing of wild animals over an extended period.  

Davies was easily identifiable in many of the images. Inspectors from the Scottish SPCA and officers from Police Scotland went to Davies’ home in Brechin with a warrant on the morning of 8 October 2019. Eleven dogs were found within kennels on the property. Five Patterdale Terrier dogs had obvious signs of injury.

All the dogs were taken to Scottish SPCA facilities for examination and treatment. Inspectors also found equipment on the property linked to illegal animal fighting including, locator collars, medication, needles and syringes and a staple gun used to staple up injuries.  

Speaking after the sentencing, Karon Rollo, head of the Wildlife and Environmental Crime Unit of COPFS said: “The evidence clearly shows the scope of the involvement Rhys Davies had with an organised group that took pleasure in killing wild animals in such a wicked and inhumane manner.

“I welcome the sentence and the granting of the order preventing him from keeping animals for 15 years. I would like to thank Police Scotland and the Scottish SPCA for their part in investigating and gathering evidence of these offences.

“Hopefully this prosecution and the sentence will serve as a message to others who would cause such suffering that there are consequences and that they will be held to account for their actions and could also lose their liberty.

“COPFS will continue to work to ensure those who participate in these barbaric practices are prosecuted and would encourage anyone who may have information on animal fighting to contact Police Scotland or the Scottish SPCA.” 

Digby Brown’s Sam Whyte raises funds for asbestos charities

Over the last three months Sam has been working closely the two charities interviewing sufferers of mesothelioma – a terminal cancer caused by exposure to asbestos – as part of Asbestos Action’s 20th Anniversary and Clydebank Asbestos Group’s 30th Anniversary.

Each individual interviewed has left such an impression that Sam felt he wanted to do something to show his support. Please donate what you can to support these incredible charities and Sam’s amazing effort.

Quote of the day

The world is full enough of hurts and mischances without wars to multiply them.

J. R. R. Tolkien, ‘The Return of the King’ (1955)

And finally… pricey fare

The passenger failed to declare the McDonald’s breakfast order before arriving at Darwin Airport in Australia’s Northern Territory.

“This will be the most expensive Maccas meal this passenger ever has,” Murray Watt, Australia’s minister for agriculture, fisheries and forestry, said in a statement yesterday.

“This fine is twice the cost of an airfare to Bali, but I have no sympathy for people who choose to disobey Australia’s strict biosecurity measures, and recent detections show you will be caught,” he added.

Australian officials are particularly concerned about flights coming from Indonesia, where there is an outbreak of foot and mouth disease.

Advantages of Custom Legal Case Management Software

In 2022 law firm leaders are choosing customisable legal software because of its high ease of use and automation levels, which is resulting in a marked improvement in employee productivity and business efficiency.

In this article Grant Yuill, Denovo’s head of marketing, sheds light on the key advantages, scalability and flexibility which allows their custom software, CaseLoad, to adapt to a law firms growing business needs over time.

Read more – Law Firm Case Management Software

How augmented intelligence in eDiscovery helps find the smoking gun

eDiscovery relates to the identification, collection and presentation of electronically stored information (“ESI”), usually to assist in investigations, litigation, or FOI requests. ESI can be vast and may include emails, electronic documents, voicemail, social media data, websites, audio and video files. Effective eDiscovery ensures that ESI reviews are as efficient as possible by reducing the review population down to a sensible and proportionate size and targeting the most relevant information through the use of Technology Assisted Review (“TAR”).

Each eDiscovery review will have broadly the same requirements, and a basic workflow should look something like this:

1. Collection – working with the client organisation we will identify data locations (e.g. laptop/desktop/server/smartphone) and the most efficient way to collect data. Data may be able to be collected remotely, or physical collection of an asset may be necessary to create an image of a device’s hard drive.
2. Data Triage – we will perform a simple data triage which may include the exclusion of certain file types, date ranges, unnecessary custodians, unnecessary domains (e.g. @bbc, @internalnewsletter).
3. Data Processing / Loading - data is then loaded into the eDiscovery platform before de-duplication and Optical Character Recognition (“OCR”) is performed to ensure data is searchable.
4. Filtering / Foldering - additional ‘positive’ and ‘negative’ searching is performed to set aside unnecessary documents and create folders of documents for review.
5. Review - documents are then reviewed and tagged for relevance.

The bulk of the work occurs once the newly created ‘Review Universe’ has been created on the platform, and access has been granted to the review team.

What can AI add?  

Image Labelling - The system will use AI to ‘label’ photos and images in documents, which can then be searched. Examples include:

• Construction Litigation - “bulldozer”, “soil”, “scaffolding” may find pictures of construction equipment and pictures of building sites
• Internal investigation - “computer screen” may bring back photos of confidential internal information that an employee captured
• Fraud or asset tracing - “watch”, “boat”, “ferrari”, “car” may bring back pictures of items of high value

Sentiment Analysis - Rather than relying on narrow keywords such as ‘Angry’ or ‘Upset’, the system analyses words and their correlation to one another, plus indicators of sentiment such as conspiration, intent, anger (including overuse of upper-case characters), to return email conversations of interest.

Recent examples identified by the feature include:

• This is creating a toxic atmosphere
• The accident could have been easily avoided
• I am very concerned with the error made
• This was a dodgy position
• HOW DID THIS HAPPEN?
• I am not responsible and will not cover costs

Machine Learning and Technology Assisted Review (TAR)

Possibly the most interesting AI feature is that through TAR the eDiscovery platform learns from the previous tagging and coding decisions made by the human reviewer by analysing the underlying metadata of a document alongside the textual content of the document and whether the reviewer classes each document as relevant or not. This analysis allows the system to assign a ‘likely relevance score’ to unreviewed documents, which can focus the review process to what are considered to be the most relevant documents first.

In simple terms, the technology will review a random set of documents/emails and assign a ‘relevance ranking’ (e.g. 95%+ = priority documents, 85-94% = 2nd priority etc) and can provide statistics as required. This means the reviewers can focus on not just the documents that have keywords or phrases identified within them but the documents that have these keywords or phrases in them as well as other features that make them more likely to contain the information that is being searched for.

Summary

There are a variety of extremely beneficial time (and cost) saving features in eDiscovery document review platforms. If you follow a straightforward workflow, it is incredibly easy to overlay that workflow with the more sophisticated AI features to greatly increase the chances of finding the relevant information or documents for the matter. It’s not just about finding the information, it’s about finding it in the quickest and most efficient way.

To discuss how eDiscovery can assist you please contact Ben Hammerton (ben.hammerton@quantuma.com) or David Bell (david.bell@quantuma.com) in our forensic accounting and investigations team.