Once again, this argument appears to have been directed at establishing that the documents (the cover sheet and the plan) were not discoverable at all. Plainly enough, the basis of the submission was wrong in law. As I have already said, the question whether the documents attracted legal professional privilege had no bearing on their discoverability. Indeed, the question of privilege would not arise unless it had first been established that the documents were discoverable.
22 In pressing his privilege argument in this Court, Guss invited the Court to find that, on a proper reading of his evidence before the Tribunal, the reason he gave the Tribunal for not having disclosed the existence of the documents was his belief that they were covered by legal professional privilege. As I have indicated, the transcript of his evidence before the Tribunal shows no such thing. He told the Tribunal that he had formed the view - reliant, he said, in part on the advice of counsel - that the documents were not discoverable at all. His explanations of the non-disclosure of the documents made no mention of a claim of privilege.
23 As Guss pointed out in argument, there were references during the Tribunal hearing to parts of the transcript of the original proceeding, at the point in that proceeding where the existence of the plan was disclosed by Guss. It appears that a claim for privilege was then made in respect of the fax cover sheet from Muir, but that no such claim was made in respect of the critical document, being the plan itself. The suggestion that the copy plan in Guss's possession may itself have been privileged appears to have been asserted for the first time on this appeal.
24 For the reasons already given, it is unnecessary to decide whether a claim for privilege in respect of the copy plan might have succeeded. Suffice it to say that, even if a claim had been made, compliance with the Supreme Court Rules (r.29.04(a) and (b)) would have obliged Guss as solicitor for the plaintiff to "identify" and "describe" the document in respect of which privilege was claimed. Even wording as brief as "copy plan" would have been sufficient to alert the defendant to the likely existence of an original plan.[8]
Guss acting on his own volition
25 As noted, Guss attacks as "unsafe" the finding that he acted on his own in deciding not to discover the plans and did not, as he claimed, rely on advice from counsel in that regard.
26 In my opinion, the Law Institute is correct in submitting that the contentions advanced by Guss - that these findings of fact were "against the evidence and the weight of the evidence" or were "unsafe" - do not raise a question of law. A question of law would only arise if it were said that there was no evidence to support the findings of fact.[9] Guss has not made his submission in those terms, probably because such a submission would have been quite untenable. There was very clear evidence from the plaintiff's counsel - on which the Tribunal was entitled to act - that he had not known of the existence of the plan until Guss was cross-examined about them in court on 12 February 2001.
Penalty
27 Both in the notice of appeal and in his outline of submissions, Guss contended that the penalty which the Tribunal imposed was excessive. This is not, however, an appeal by way of rehearing. It is, as I have already pointed out, an appeal on a question of law only (s 170(1)). Accordingly, this Court could only interfere with the Tribunal's penalty decision if Guss established that the decision was vitiated by error of law.
28 As with sentencing in the criminal law, the Tribunal's decision on penalty was made in the exercise of its discretion. Accordingly, the decision falls to be examined by reference to the well-known principles stated in House v The King.[10] Guss points to no specific error of law, such as a failure to take into account a relevant consideration. He accepted in argument that his attack on the penalty as being excessive could only succeed if he showed that the penalty was manifestly excessive, that is, obviously outside the range of penalties reasonably open to the Tribunal, so as to demonstrate that the penalty discretion had not been properly exercised.
29 Guss contends that the penalty can be seen to be manifestly excessive when regard is had to the following matters: