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Petition of Andrew Smith KC for Judicial Review (Court of Session)
Factual and Procedural Background
The Petitioner is a senior member of the Scottish Bar. Two individuals (referred to in the proceedings as Client A and Client B) brought civil proceedings in 2013 concerning the existence of a partnership and accounting in relation to two dating apps. The Petitioner acted for Client A and Client B in those proceedings (CA109/13 and CA200/15). A partnership declarator was granted in March 2015 by Judge Tyre. The Petitioner also questioned the principal of the opposing party at a public examination in July 2015 and later assisted Client A and Client B with intellectual property matters.
In October 2018 a third party lodged multiple complaints against the Petitioner with the Scottish Legal Complaints Commission ("the SLCC"). The SLCC remitted certain complaints to the Faculty of Advocates for investigation. The Inner House partly allowed the Petitioner's challenge to the SLCC and directed that three complaints be investigated by the Faculty.
The Faculty's Complaints Committee remitted aspects to an Investigating Committee (interim decision dated 30 April 2021). The Investigating Committee reported in February 2023, finding no personal financial interest or conflict on the part of the Petitioner and accepting the Petitioner's evidence on key points. Notwithstanding that report, the Complaints Committee issued a merits decision on 20 May 2024 upholding three complaints and finding professional misconduct, and a sanctions decision on 19 July 2024 imposing a severe written censure. The Petitioner obtained leave to appeal; the Faculty's Disciplinary Tribunal heard the appeal and on 18 July 2025 upheld the Complaints Committee's decisions in relation to two complaints (but allowed the appeal in relation to one complaint). The Petitioner sought judicial review of the Disciplinary Tribunal's decision in this Court.
Legal Issues Presented
- Whether the Disciplinary Tribunal misunderstood or misapplied its jurisdiction on an appeal from the Complaints Committee under the Faculty of Advocates Disciplinary Rules 2015.
- If the Tribunal understood its jurisdiction, whether it erred or acted irrationally in refusing the Petitioner's appeal in respect of complaint 5 and/or complaint 10 and/or the sanction imposed.
- Whether the delay in determining the complaints violated the Petitioner's Article 6(1) ECHR right to a hearing within a reasonable time.
- Whether the remedies sought (including a declarator of breach of Article 6 and reduction of the Tribunal's decision) are competent in judicial review.
Arguments of the Parties
Petitioner's Arguments
- The Disciplinary Tribunal's appellate jurisdiction under the 2015 Rules required reconsideration of the merits (a de novo assessment) rather than a limited review of lawfulness; the Tribunal wrongly restricted itself to a review jurisdiction.
- Even if the Tribunal had appellate jurisdiction, it erred and acted irrationally by upholding complaints 5 and 10 despite the Investigating Committee's findings that the Petitioner had no close personal involvement or pecuniary interest; the Complaints Committee failed to identify or justify the factual basis for a "close personal involvement" or any conflict of interest.
- The Complaints Committee departed from the Investigating Committee's findings without giving reasons or affording the Petitioner an opportunity to address any proposed departure, resulting in unfairness.
- The sanction (professional misconduct and severe written censure) was disproportionate and inconsistent with findings that the Petitioner acted in good faith and without bad faith.
- The overall process was excessively delayed, breaching Article 6(1) ECHR; the Petitioner sought a declarator of breach and reduction of the Tribunal's decision.
First Respondent's Arguments
- The competent decision for judicial review is the Disciplinary Tribunal's final decision; judicial review of Complaints Committee decisions was not competent given the available appeal route.
- The Petitioner's challenge to competency of remedies (a bare declarator) is academic and should be refused.
- On Article 6, either the disciplinary process complies with Article 6 or the availability of full judicial review suffices; in any event the period taken was justified by the case complexity, investigatory steps and intervening events such as Covid, and there was no period of unjustified stagnation.
- The Complaints Committee was entitled to form its own view notwithstanding the Investigating Committee's report; it was not bound by that report and gave adequate reasons; the Disciplinary Tribunal lawfully and rationally determined that the Complaints Committee had been entitled to reach the conclusions it did (save for complaint 14).
- The Disciplinary Tribunal had procedural flexibility on appeal; parties had agreed to adopt aspects of the 2019 Rules' appellate procedure, and the Petitioner's later complaints about procedure are not competent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AS v Scottish Legal Complaints Commission 2020 SC 443 | Inner House decision remitting complaints to the Faculty | Used to identify the procedural history and start point for matters remitted to the Faculty. |
| Preiss v General Dental Council [2001] 1 WLR 1926 | Requirement that disciplinary processes allow fair opportunity to challenge evidence (Article 6 compliance) | Relied upon to support the proposition that an unrestricted right of appeal is necessary for Article 6 compliance. |
| Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 | Test of irrationality/unreasonableness in judicial review | Referenced when addressing alleged irrationality and unlawful approach by the Complaints Committee and Tribunal. |
| R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531 | Requirements of fair notice of the gist of allegations | Referenced in relation to what procedural fairness requires when informing a party of allegations. |
| Hood v Council of the Law Society of Scotland 2017 SC 386 | Grounds for interference with tribunal decisions in disciplinary context | Cited for the limited grounds on which court can interfere with a tribunal decision. |
| Paton, petitioner [2019] CSOH 62 | Competency in supervisory jurisdiction where an appeal process exists | Applied to explain that only the final decision (here the Disciplinary Tribunal) is reviewable. |
| Gray v Braid Logistics (UK) Ltd 2015 SC 222 | Alternative remedy/availability of appeal ousting supervisory jurisdiction | Used to support competency analysis regarding review of intermediate decisions. |
| Wightman v Secretary of State for Exiting the European Union 2019 SC 111 | Doctrine on academic or purposeless declarators | Relied upon by the First Respondent; Court analyzed and concluded the declarator sought had practical effect in this case. |
| Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting 2001 SC 581 | Whether availability of judicial review can satisfy Article 6 requirements | Discussed in submissions; the Court noted its limited and partly obiter status and contrasted with subsequent authority. |
| R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 | House of Lords authority on judicial control and Article 6 | Used to rebut reliance on obiter in earlier authorities concerning judicial review sufficiency for Article 6. |
| Ramos Nunes de Carvalho e Sá v Portugal (Application Nos 55391/13, 57728/13 and 74041/13) (unreported) 6 November 2018 | Strasbourg jurisprudence on Article 6 and disciplinary proceedings | Referenced to situate UK authority within Strasbourg approach; cited in supporting submissions. |
| U3 v Secretary of State for the Home Department [2025] AC 1510 | Consideration of Strasbourg authority by UK Supreme Court | Referenced in context of Article 6 jurisprudence discussion. |
| General Medical Council v Pembrey [2002] EWHC 1602 (Admin) | Commencement of time for Article 6 delay in disciplinary contexts | Referenced for proposition that time starts when member is notified by competent authority of allegations. |
| Dyer v Watson 2002 SC (PC) 89 | Factors relevant to whether proceedings are within reasonable time | Quoted for the need to consider complexity, conduct of member, and body’s handling of the case. |
| Spiers v Ruddy 2009 SC (PC) 1 | Precedent that prejudice need not be shown for Article 6 delay breach | Cited to note that prejudice is not required to establish a breach. |
| Comingersoll S.A. v Portugal, Case 35382/97 | Principles on assessing reasonableness of length of proceedings | Referenced in submissions on Article 6 analysis. |
| Beaumartin v France, Case 15287/89 | Stagnation as a feature of unreasonable delay | Referenced regarding whether there were long unexplained periods of stagnation. |
| City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 | Weight to be afforded to factors by decision-maker; review limited to clear irrationality | Cited in relation to challenges to factual weighting (the email interpretation). |
| Allen v Secretary of State for Communities and Local Government [2016] EWCA Civ 767 | Requirement to give reasons when departing from a recommendation in a report | Cited by the Court to explain that a decision-maker must state reasons when rejecting a report's recommendation. |
| Local Government Board v Arlidge [1915] AC 120 | Elements of procedural fairness (opportunity to be heard, unbiased decision-maker) | Referenced in submissions on procedural fairness. |
| Rashid v Oil Companies International Marine Forum [2019] EWHC 2239 (QB) | Standard for notice in appeal contexts not equivalent to court notice rules | Used to support that an appeal committee is not required to act as a court on notice formalities. |
| British Broadcasting Corporation v Chair of the Scottish Child Abuse Inquiry 2022 SC 184 | Standard for assessing whether a decision falls within range of reasonable responses | Quoted on judicial review approach to evaluating reasonableness. |
Court's Reasoning and Analysis
The Court addressed competency and substance. It held that judicial review properly challenges the Disciplinary Tribunal's final decision and that the declarator sought was not necessarily academic because it could have practical effect (paras [116]–[118]).
On Article 6(1), the Court rejected the Petitioner's start-date submission (time did not commence on the SLCC's initial acceptance in June 2019 because the Petitioner successfully appealed to the Inner House). The Court proceeded on the basis that time began when matters were remitted to the Faculty after the Inner House decision (around late April/early May 2020). Having reviewed the chronology (remit to Investigating Committee April 2021; Investigation Report February 2023; merits decision May 2024; sanctions July 2024; leave to appeal November 2024; Tribunal decision July 2025), the Court found the Faculty had explained and justified the time taken and that there were no periods of unjustified stagnation; therefore there was no Article 6 breach (paras [119]–[126], [253]–[257]).
On the merits, the Court analysed the role of the Investigating Committee, the Complaints Committee and the Disciplinary Tribunal under the 2015 Rules. It accepted that a Complaints Committee may remit to an Investigating Committee and that the Investigating Committee gathers evidence but does not make final determinations (paras [77]–[80], [91]).
Critically, the Court found error in the Disciplinary Tribunal's treatment of complaint 5. Although the Tribunal was correct to hold that the Complaints Committee could depart from the Investigating Committee's factual findings, the Tribunal failed to address the Petitioner's alternative submission that, if the Complaints Committee did depart, it should have given comprehensive reasons for doing so. The Complaints Committee had departed from the Investigating Committee on the key factual issue (the meaning and import of an email of 31 January 2015 and whether the Petitioner's communications were in a personal capacity), but had not explained why it rejected the Investigating Committee's findings. The Disciplinary Tribunal omitted to confront that point. This omission was a material legal error because when a decision diverges from a recommending report the decision-maker must fully state why (paras [131]–[135], citing Allen v Secretary of State for Communities and Local Government [2016] EWCA Civ 767).
Because the Complaints Committee's unexplained departure on complaint 5 was material to the reasoning that supported complaint 10, the Court concluded the Tribunal's decision on complaint 10 could not stand either (paras [136]–[138]).
The Court also noted that, had complaints 5 and 10 stood, the Tribunal's sanction would have been supportable on the facts found; but given its decision on complaints 5 and 10 the sanction issue need not be determined in substance (paras [142]–[143]).
Holding and Implications
HOLDING: The Court sustained the Petitioner's third plea-in-law and reduced the Disciplinary Tribunal's decision of 18 July 2025 (para [144]). The Court repelled the Petitioner's second and fourth pleas-in-law and repelled the First Respondent's remaining pleas-in-law that were opposed (paras [144]–[145]).
Implications: The direct effect is that the Disciplinary Tribunal's decision of 18 July 2025 was reduced on the grounds identified (material legal error in relation to complaint 5 and, consequentially, complaint 10). The Court did not find an Article 6 breach. The Court reserved expenses meantime. No broader precedent was announced beyond the application of established principles: (i) reasons are required where a decision-maker departs from a recommending report on material factual matters; and (ii) the threshold for Article 6 delay is high and requires proof of unjustified stagnation (paras [124]–[126], [141]–[143]).
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