The Case
The Summons was lodged in May 1996. The first condescendence of which alleges some £32,696.75 is due to Tods Murray (this amount being subsequently amended and increased to £41,696.75).
During his evidence at proof in July 2011 Mr. Dobie admitted that, albeit he had engaged Simpson & Marwick as his legal agents, he himself had drafted condescendence II of the original Summons.
It is evident that Simpson & Marwick simply lodged this document, and applied punitive diligence, without once questioning the validity of Mr. Dobie’s claims. Had they done so they would have found that Mr. Dobie had in fact been engaged by Arakin from 1988 -
Not only had Mr. Dobie failed to account for £70,817.87 of Arakin’s funds (admitted at Page 16 item (4)) of the Notice to Admit and Answers) he had also been steadfastly refusing to submit his whole fees to taxation (audit) for a full three years prior to raising his summons despite Arakin’s (and two other solicitors on Arakin’s behalf) repeated written requests to both Mr. Dobie and his then managing partner that he do so.
It is a client’s right to have their legal agent’s account taxed and according to Begg on Law Agents XIII. ‘The right to insist upon taxation can be foreclosed only by the most express waiver,’ A waiver Mr. Dobie did not have.
As yet inexperienced in the chicanery of the legal profession, when Tods Murray raised their summons against us, Arakin sought legal representation from William Macreath of Levy & McRae (a reputable firm of solicitors). As an experienced solicitor William Macreath was aware, or ought to have been, that a solicitor was not allowed to sue for payment of their fees until those fees had been submitted to the Auditor of Court for taxation (audit). William Macreath was certainly aware that Tods Murray had been paid sums by Arakin which were far in excess of the amounts invoiced by Tods Murray. William Macreath was also well aware that Tods Murray had no proper foundation to demand, and receive, a £275,000 Bank Guarantee from Arakin ‘for release of arrestments’ which, after years of litigation and paying professional fees while represented by Tods Murray, Arakin could ill afford.
And yet in 1996 it was William Macreath who handed me a small book referred to as ‘Hastings on Expenses’ telling me that he wanted me to learn pages 117 to 119 (which are the few pages in that handbook giving reasons why a client can object to a solicitors fees. e.g. failing to comply with their client’s competent instructions, or failing to treat their client’s money as would a ‘prudent man of business’.) Hastings is an abridged version of MacLaren’s Expenses in the Supreme and Sheriff Courts’ – the 1912 authority on solicitors fee charging. It was William Macreath who thereafter sent us down the long and tortuous taxation road which did nothing to protect Arakin’s interests and everything to shield Tods Murray from further investigation by the Law Society. It took from 1996 to 2008 for the taxation process to completely run its course. 14 years of unnecessary litigation which would never have occurred had William Macreath done the job he was paid to do by his client.
Now it comes to light that not only is William Macreath a member of the Legal Defence Union (now its boss no less) but that he stands accused of five counts of inadequate professional service and seven of professional misconduct. I reckon any complaint I submit against William Macreath will substantially add to those charges.
When Arakin’s then legal representative (Balfour Manson acting as Edinburgh agents for Levy & McRae’s William Macreath) submitted to the court that Arakin would lodge £60,000 on joint deposit to await the outcome of taxation, ‘out of the blue’ the pursuers amended again adding a further conclusion seeking an additional £204,504.31 (being the total of Mr. Simpson’s untaxed time and line account) . Acting as Tods Murray’s legal agents Simpson & Marwick demanded Arakin lodge £275,000 on Bank Guarantee ‘to avoid further arrestments.’
It was in 2004 that Tods Murray eventually admitted that they sued us for the sums they did in error but, never the less, the sum sued for remained unchanged in the Record until 2008. Tods Murray appealed Lord McKay of Drumadoon’s 2006 opinion in this cause to the Inner House and won the right (in 2007) to remit their accounts back to the Auditor of the Court who awarded Michael Simpson a 100% uplift in fee rate (completely ignoring the fact that he did so on invoice periods of the accounts that had been fully paid decades earlier).
After Michael Simpson was awarded his 100% rate increase, and Robert Dobie’s 60% increase was approved by the Inner House, we finally received Tods Murray’s files and papers which, we had of course, been seeking from the outset of this dispute. I also received the Law Society’s file regarding their handling of our 1994 complaint against Robert Dobie. Therein lies the explanation for why we have been held in these courts for all of these years.
Shocked at the contents of the files we dramatically amended our averments in the Record to include what we found, in particular, to include the fact that McLachlan & Brown did not, in fact, raise a summons against us in 1988. We also resurrected our professionally drafted counterclaim.
Following a tortuous two week legal debate in December 2009 Lord Woolman issued an opinion which, among other things, stated that matters of VAT are irrelevant (both Tods Murray and Arakin are VAT registered and Tods Murray had failed to comply with the regulations), that Tods Murray giving Arakin no opportunity to pay by way of invoices or letters of demand prior to raising their summons was also irrelevant and that, matters relating to misconduct by the solicitors were not for the court but for the solicitors’ governing bodies. He also dismissed Arakin’s counterclaim as ‘an abuse of process’ .
To be cont’d
