Summary of complaint Complainer:

Mrs Melanie Collins on behalf of Mr Donal Alphonsus Nolan

Complaint ref:

201301636

Practitioner:

Mr John D Campbell QC

What is being complaining about I Mrs Melanie Collins, wish to complain on behalf of Mr Donal Nolan about the actions of Mr John D Campbell of The Faculty of Advocates who was the instructed Senior Counsel for Mr Nolan in the case Donal Alphonsus Nolan against Advance Construction (Scotland) Limited as evidenced by: 1. On the last day of Proof Mr Campbell removed part three of the claim for four million pounds along with two other sections of the claim, including the claim for expenses without obtaining instructions from Mr Nolan or his solicitor. 2. Mr Campbell drafted a letter dated 4 June 2013 and instructed Mr Nolan’s solicitor to send the letter to the Defender’s solicitors without stating that it was without prejudice. 3. Mr Campbell introduced a capping scenario in his letter of 4 June 2013 to the Defenders to widen discussions without obtaining any instructions from Mr Nolan. 4. Mr Campbell failed to call over twenty key witnesses despite citations being sent out to them and provided no explanation as to why these witnesses were not called. 5. Mr Campbell lodged two identical sets of fraudulent waste transfer notes in the productions for Court instead of two separate sets of transfer notes. 6. Mr Campbell failed to ensure evidence with Mr Alex Neil MSP was agreed with the other side during Proof and accepted responsibility for this during a meeting on 22 August 2013. 7. Despite specifically instructing reports on the CMD Records and on the cost of the removal of illegally dumped material, Mr Campbell failed to ask questions about these reports or refer to them in Court. 8. Mr Campbell inappropriately, on a number of occasions, during 2012 and 2013 asked Mr Nolan’s partner and their Architect in December 2012 if they feared for their personal safety because of the type of people who were on the other side. 9. Mr Campbell failed to provide Mr Nolan with a copy of his final submission put before Lord Woolman and the defender’s final submissions despite requesting these on 11 and 22 August 2013. 10. Mr Campbell failed to address the questions in Mrs Collin’s email of 2 February 2014, sent on behalf of Mr Nolan. 11. Mr Nolan was asked to pay Mr Campbell money out with his stable in August 2012 and requested £5000 in October 2012 which is against Faculty rules.

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12. Mr Campbell failed to put before the Court a statement from Counsellor John Taggart taken at the Court of Session the day he was due to give evidence about being bribed not to go to Court. How this has affected the complainer 1. Mr Nolan attempted to take his own life and is now under the care of Dr Jahangir, Consultant psychiatrist of the Medical Health Crisis Team. 2. Mr Nolan has been wrongly accused of vastly reducing his claim which is untrue as he did not authorise this. 3. The failure to ask questions on the CMD Records report and costs associated would have highlighted that the Defenders were engaging in illegal activities. 4. Mr Campbell’s removal of parts of the claim has resulted in a loss to Mr Nolan as Lord Woolman confirmed to the Defender’s QC that Mr Nolan did have a claim as he had lost the use of his gallop. 5. The result of instructing the letter without the phrase “without prejudice” meant that the reference to capping which was not agreed or instructed was allowed to be put before the Court as evidence of admissions and resulted in an unnecessary debate. 6. According to Lord Woolman’s Opinion, as a result of the failure to ensure that Mr Alex Neil MSP’s affidavit was agreed with the Defenders, the true content of the affidavit was not presented in the correct way to Lord Woolman. 7. Failure to ask the relevant questions on information already produced in Court has resulted in Mr Nolan now being left with a site of no value and at least a 2.5 million bill to remove this material to a proper licenced land fill site as he is now responsible for this illegally deposited waste that was going to be removed to other illegal sites that Mr Nolan would have been responsible for. All of this supporting evidence was lodged in Court and never used. What the complainer would like to happen to resolve the problem 1. Mr Nolan seeks compensation from Mr Campbell for the way his case was handled.

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JOHN CAMPBELL QC ADVOCATES LIBRARY, PARLIAMENT HOUSE, EDINBURGH EHI IRF

Tel:

Mobile: Email:

5 June 2014

Ms Jennifer Sinclair Scottish Legal Complaints Commission The Stamp Office 10-14 Waterloo Place Edinburgh EH1 3EG

Dear Ms Sinclair Complaint by Melanie Collins allegedly on behalf of Mr Donal Nolan


I refer to your letter of 12 May. I respectfully invite the SLCC to dismiss this purported complaint, exercising its power under the Act of 2007, section 2 (4) (a) and to give notice accordingly to Mr Nolan under s. 2(4) (b) on the grounds that the complaint written for him by Mrs Collins is vexatious and totally without merit.

Under the reservation expressed in earlier correspondence, namely that this alleged complaint is not by Mr Nolan, but is by Mrs Melanie Collins, with whom I have no professional relationship of any kind, I respond to the complaint letter completed by Mrs Collins as follows. 1

I did not act without instructions. The Court adjourned while I took instructions on this very matter. Mr Nolan was not in attendance. I asked that he be brought to Court. The Court's Minute of Proceedings discloses that I sought and obtained an adjournment for that purpose. The same day, l wrote a Note for Mr Nolan. It is attached. It was handed to Mrs Collins, who placed it in her bag without reading it. From its terms it can be seen that the advice given was unequivocal, i also have a verbatim note of proceedings on

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that day, taken by junior counsel, which demonstrates quite clearly that I sought and obtained an adjournment to take instructions on this matter, and to have the pursuer himself attend. I can make that verbatim note available if the SLCC wishes to see it, but for the moment I attach pages 3-11, which show the evidence of Mr Wood, the surveyor, and the conversation with the Court around the request for an adjournment.

Further, the decision to proceed without this part of the claim was fully explained, first to Mrs Collins, and then subsequently to Mr Nolan. It was endorsed by junior counsel, and understood by the solicitors. I am in no doubt at all that it was fully understood by all. Given the evidence of Mr Wood (see transcript attached referred to supra) abandonment of the "blight" claim was inevitable, and I am certain that Mr Nolan and Mrs Collins understood this.

R

2

I did indeed draft such a letter for Mr Falls, at his request, and in response to a communication from Levy & Macrae. I did not however send the letter, i gave it to Mr Falls to send. I assumed, I think correctly, that he, as a solicitor with a Practicing Certificate, would know when a letter should be sent marked "without prejudice" and when it should not. In any event, the letter led to the fixing of a formal Debate in the case, in an attempt by the defenders to have the action dismissed, or in any event to have it limited in scope. The defenders were wholly unsuccessful, and Mr Nolan prevailed, and obtained an award of expenses against the defenders. Lord Woolman's Opinion at [2014] CSOH 4, § [33] refers. There is no basis for a complaint

here. 3

The possibility of capping the site as a means of minimising the losses was discussed extensively with Mr Nolan and his professional and non¬ professional advisers many times in consultation prior to and during the proof. Capping is a known expedient for the control of minor pollution, although not always popular since the pollution remains in the ground. Exploring it as a possibility for settlement was part of the work which I and junior counsel carried out.

4

Witnesses who were needed were called. The selection of witnesses is a professional decision reserved to, or in any event best taken by, counsel. On each occasion when a witness was agreed, excused or not called, there was a reason for that. I cannot respond in greater detail to this ground of complaint, since no specification is given.

5

It is not correct to say that evidence lodged was duplicated. The WTN's

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identified as having been recovered under a Commission and Diligence, and the WTN's given up by agents for the defenders in response to a request

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were not identical, and both were lodged precisely to make the point that some of them were either out of order or missing. But in the event the judge placed no store by those differences, although he was fully seised of them. In particular, my written closing submission devotes several pages to this issue. 6

The evidence of Mr Neil MSP was not required. I accept responsibility for not calling him. See 4 above.

7

This is an incorrect allegation. Mr Farleigh was called and gave evidence. Witnesses were called from South Lanarkshire Council in connection with the school demolition. The evidence about the cost of removal of the waste material off site to a licenced "tip" (disposal point) was central to the formulation of the value of loss suffered, and well covered in the evidence.

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8

I acknowledge asking those questions. The waste disposal industry is known to have sparked episodes of violence. I was of course concerned for my own client's safety, and advised him to take greater-than-normal precautions at

his home and his farm, where he keeps horses. No imputation was made against the defenders or any of their people. I regard that level of concern for a client's welfare as being entirely appropriate. 9

I reject this allegation. The final submissions, prepared over a number of days, were made available to Mr Nolan and to Mrs Collins, as were those prepared by the defence team.

10

I assume this allegation relates to the email attached. I agree that I have not responded to it; it was written just after the judgment was issued, obviously in anger and disappointment. It is not appropriate for counsel to tender a detailed reply to a letter like this; if a complaint is to be made, then it should be made properly, not in this fashion. The email raises no point which is not covered in this response.

11

I agree that Mr Nolan has paid me £5000, for which I have accounted.

12

I agree with this statement. Cllr Taggart's statement did not assert that he had been bribed. The evidence was in the end irrelevant to the issues which the judge had to determine.

O

Turning to the way in which this case has allegedly affected Mr Nolan 1

I am sure that Mr Nolan has been badly affected by the outcome of this case. He brought the action in the full knowledge that a range of outcomes was possible. While it is a matter of regret to me that the case was lost, and that Mr Nolan was taken ill, if he was, I do not accept that I am in anyway

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responsible for any psychiatric or other injury which Mr Nolan may have sustained. To suggest that I am is without doubt vexatious, and an allegation borne out of anger at the outcome of the case.

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2

I cannot comment on this allegation.

3

I reject this allegation, and the supposed outcome. The selection of evidence is a matter for counsel, not for the client. In relation to matters of credibility and reliability, I draw attention to Lord Woolman's remarks about both the pursuer, Mr Nolan, and Mrs Collins, in his Opinion, at §{34] to [39].

4

The "loss of a use of a gallop" along the railway track at Branchal Road was never part of the claim. It refers to the use of an abandoned railway track for exercising racehorses. This statement is therefore irrelevant.

5

The use of a letter which was not marked "without prejudice" to discuss possible settlement arrangements including the possibility of capping was part of a much wider discussion conducted in various ways about how this matter might be resolved. However, the letter, drafted by me and written by Mr Falls, was used by the defenders to advance the contention that it (with other correspondence) amounted to a "contract" to resolve the pollution questions by capping the site. That contention was explored in a debate, which took a day, and in which the defenders' failed. Mr Nolan was awarded the expenses of that debate. Neither I, nor junior counsel, nor the Edinburgh Agents, have been paid for our work in that regard.

6

Mr Neil's evidence was not, in the end, required. He did however attend Court in response to a citation. That was my decision, and one which I was entitled to take in the exercise of professional judgment.

7

i cannot comment on this statement. However, the Branchal Road site clearly has a value as a housing site. It carries a valid planning permission. Failure to expose the site for sale amounts, or will amount, in my opinion, to a failure to minimise loss.

I reject any assertion that I am liable to compensate Mr Nolan for any act or omission on my part.

Clearly, the outcome of this action is not trivial to Mr Nolan. I do not suggest that this is a frivolous complaint. The outcome of the case is plainly extremely important.

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4

5 During the life of the case it was never suggested that the professional fees for the

conduct of this case would not be paid. Mr Nolan and Mrs Collins were supported thought by a friend who asserted at meetings and elsewhere that he had the means to pay, and would do so. But the fees have not been paid. Solicitors, junior counsel and myself are owed tens of thousands of pounds for the work we have put into this matter, which runs (collectively) to thousands of hours in all, including court time. This misplaced letter of complaint, written by Mrs Collins, is entirely borne out of the unhappy result. It is submitted that it is vexatious and without any merit whatsoever, as can be seen from the detailed responses tendered above. I respectfully invite the SLCC to dismiss the complaint, exercising its power under the Act of 2007, section 2 (4) (a) and to give notice accordingly to Mr Nolan under s. 2(4) (b) on the grounds that the complaint written for him by Mrs Collins is vexatious and totally

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without merit. Yours faithfully

John Campbell QC

0 drummondmilleriLP Simpson & Marwick Solicitors DX 550480 EDINBURGH 45

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Co C2

BATHGATE DALKEITH

DATE

If telephoning, ask foe:

9 October 2014

(DUNFERMLINE

Fiona Moore -

EDINBURGH

GLASGOW OUR REF:

YOUR REF

FIM

MUSSELBURGH

AK/R/1601.00350/MH

Dear Anne DONAL NOLAN V ADVANCE CONSTRUCTION (SCOTLAND) LIMITED

I refer to your letter of 30 September, addressed to Gregor McPhail at our Dalkeith office As you may be aware, Gregor is a trainee with this firm, and at the time of the proof in the above case was working for me in the Edinburgh office. I note that Ms Collins is now actively pursuing her complaint against Mr Campbell QC I am happy to provide, as requested, copies of notes taken whilst at court and at consultations on 7th August 2013. My files are currently stored off site, but I will endeavour to retrieve those covering this date in case there is any other relevant material If you still require a statement from Gregor, please let me know, however, he has indicated that there is very little he could say over and above that which is recorded in the notes. By way of explanation, we were acting as Edinburgh agents for Uddingston solicitors DJ Falls for Mr Nolan. We were not involved at the start of the case and only came on board in February 2013 when the proof diet had already been fixed. Substantive matters were very much the domain of Mr Falls with considerable input from Mrs Collins / Mr Nolan, and procedural matters were our responsibility i.e. ensuring compliance with the timetable, and the lodging and compilation of inventories of productions and suchlike Mr Nolan did not have the benefit of legal aid and expenses were very much an issue at the forefront of everyone's mind. From recollection, the proof was set down for 10 days, and Mr Falls was a sole practitioner and unable to commit to covering the proof for its duration. As you are no doubt aware, the case was in any event being run by Melanie Collins, Mr Nolan's partner, since acknowledged as dominus litus by Lord Woolman. It was she who gave all instructions in the case, and she was intending to be present each and every day of the proof It was therefore specifically agreed that on days when Mr Falls was unable to attend the proof, that Glenorchy House 20 Union Street Edinburgh EH1 3LR

T: 0131 226 5151 F: 0131 225 2608 Drummond Miller UP is n limited Liability P»rm
DX. 104 Edinburgh LP: 58 Edinburgh 2

E: reception@drummond-miller co.uk www.drummorrdmiDer.co.uk

Drummond Miller would provide trainee cover to take notes; with a provision for an hour of partner's time per day of proof should that prove necessary, it being envisaged that there might be some days when a partner might require to be present at the start of the day to deal with issues such as the time-tabling of witnesses etc. All of this was on the basis that Mrs Collins would be present throughout, and that Senior and Junior counsel were both instructed. That is the basis upon which Gregor was covering the hearing Many consultations and meetings took place between Mrs Collins and counsel which we were not party to, and Mrs Collins was in the habit of contacting Mr Campbell direct by telephone if there was an issue she wished to discuss. I trust this assists and that the complaint is successfully defended. If you require anything further, please do not hesitate to contact me.

Kind regards Yours faithfully

Fiona Moore Partner For and on behalf of Drummond Miller LLP Please note that we have now relocated our Edinburgh Office to Glenorchy House, 20 Union Street Edinburgh, EH1 3LR.