Appeal Under Section 21 Of The Legal Profession And Legal Aid (scotlan) Act 2007 By Anderson Strathern Llp And Another Against A Decision Of The Scottish Legal Complaints Commission Dated 30 January 2015
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lady Clark Of Calton,Lord Justice Clerk |
| Judgment Date | 31 August 2016 |
| Neutral Citation | [2016] CSIH 71 |
| Court | Court of Session |
| Docket Number | XA16/15 |
| Published date | 31 August 2016 |
| Date | 31 August 2016 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 71
XA16/15
Lord Justice Clerk
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD MALCOLM
in appeal under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007
by
ANDERSON STRATHERN LLP and ANOTHER
Appellants;
against
A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION DATED 30 JANUARY 2015
Act: Dunlop QC; Anderson Strathern LLP
Alt: Ross; Brodies LLP
Interested Party: McConnell; Maclay Murray & Spens
31 August 2016
[1] This appeal against decisions made by the Scottish Legal Complaints Commission (the Commission) raises an important issue as to how it should classify complaints. In Bartos v Scottish Legal Complaints Commission 2015 SC 690, at its own instance the court raised a question as to the proper approach to certain provisions in the Legal Profession and Legal Aid (Scotland) Act 2007 (the Act). The court made certain comments which were “provisional” in nature. They had no bearing upon the outcome of that appeal. The court stated that it considered it proper to raise the matter to allow reflection on the part of the Commission and the professional bodies. The court continued “If appropriate, and if so advised, it can be raised as a live issue for determination in a future case.” This appeal by Anderson Strathern LLP and the particular solicitor concerned against certain decisions of the Commission dated 30 January 2015 has now raised the same question as a live issue and the court therefore requires to reach a concluded view. The point is a matter of general principle concerning the proper construction of the legislation. It is convenient to discuss it with reference to the relatively short and straightforward circumstances in the case of Bartos. The context of the present appeal will be mentioned in due course; however the correct outcome will be determined in large measure by our decision on the question of principle, which can be described as follows.
[2] In Bartos, an advocate acted for a party whose Court of Session action was dismissed after a legal debate. The detailed circumstances are set out in the court’s opinion. For present purposes it is sufficient to note that subsequently the Commission received a complaint as follows:
“Mr Bartos falsely stated during the hearing on 7 October 2010 that it was my wish that the case be dismissed, despite having no instructions to do so.”
It is obvious that the complaint raised a conduct issue. However, in a preliminary ruling the Commission held that it also raised a question of inadequate professional services and proceeded to classify it as a “hybrid complaint”. The result of this classification, which is not an uncommon practice on the part of the Commission, was that both the professional body and the Commission independently investigated exactly the same allegation, one with a view to determining whether it constituted either professional misconduct or unsatisfactory professional conduct, and the other whether it amounted to inadequate professional services.
[3] While it was clear that the complaint raised a conduct issue, in a general sense one can also understand that if an advocate invites a court to dismiss an action raised by the party instructing him on the basis of purported instructions which do not exist, then the individual concerned receives an inadequate professional service. The same could be said of many, though not all, instances of alleged professional misconduct or unsatisfactory professional conduct. The question is whether, in terms of the relevant legislation, the Commission can classify a single issue complaint of the kind made in Bartos as “hybrid”, in the sense of amounting to both a conduct complaint and a services complaint; or whether the Commission, after appropriate consultation with the relevant professional body, must reach a decision to categorise it as one or the other, but not both.
[4] The full circumstances of the lengthy history of what happened in respect of the complaint against Mr Bartos are fully described in the report of the court’s decision in that case. They provide a good example of what can happen when a single issue complaint is treated as hybrid and separately sent to both the professional body and to the Commission for discrete determinations. However, whether this course is open to the Commission is not a matter to be determined primarily by the consequences, but by a proper construction of the relevant statutory provisions in the Act. It is therefore necessary to consider those provisions in some detail. Recently, for wholly different reasons, some of the provisions were revised and rearranged, but at present the key question will be discussed under reference to the legislation as originally enacted. It was not suggested that the recent alterations provide any indication of an alteration in parliamentary intention regarding the classification of complaints.
The relevant statutory provisions
[5] By way of a brief preamble, the Act established a new body, independent of the professional organisations, and containing significant lay involvement, to handle complaints of inadequate professional services and oversee the investigation of conduct complaints by the profession. That body, the Commission, would be a single gateway for all unresolved complaints against legal practitioners. The office of Scottish Legal Services Ombudsman was abolished. The professional bodies retained jurisdiction in respect of conduct issues and expulsion from the profession.
[6] As seen in section 2 of the Act, a distinction is drawn between two types of complaint. The first is one suggesting professional misconduct or unsatisfactory professional conduct, which is described as a “conduct complaint”; the second is a complaint which suggests that a client received inadequate professional services, described as a “services complaint”. In terms of section 2(2), only a limited class of persons can bring a services complaint, whereas any person can raise a conduct complaint. Still in terms of section 2, subject to any provision in rules made under section 32 of the Act as to eligibility for making complaints, for example regarding time bar, the Commission requires to address whether a complaint is “frivolous, vexatious or totally without merit”. A positive finding would result in rejection of the complaint.
[7] The Scottish Government’s explanatory notes to the bill for the Act stated in paragraph 6:
“Section 2 sets out the preliminary steps which the Commission must take on receipt of a complaint. The Commission may receive complaints about either the conduct of a legal practitioner which may involve either professional misconduct or the new concept of unsatisfactory professional conduct on the one hand or the adequacy of the professional services provided by a legal practitioner on the other (referred to, respectively, as ‘conduct complaints’ or ‘service complaints’). On receipt of the complaints, the Commission’s initial function is (a) to determine whether or not they are eligible and (b) to reject those which it determines to be frivolous, vexatious, totally without merit or otherwise ineligible in terms of the Commission’s rules.”
Paragraph 8 explained that complaints of inadequate professional services would only be accepted from those directly affected by the services which were the subject of the complaint, other than the limited class of persons outlined in section 2(2), which include the Lord Advocate, any judge and a relevant professional organisation. Before leaving section 2, it can be noted that conduct complaints have to relate to individual practitioners, whereas services complaints can be raised against, amongst others, a firm of solicitors.
[8] The annotator to the Act in Current Law Statutes was Michael Clancy, the then Director of Law Reform at the Law Society of Scotland. He was closely involved in the various discussions and procedures in the lead up to and the development of the legislation. He notes that the intention was to ensure that the jurisdictions of the Commission and the professional bodies were kept distinct. This had been the subject of a “great deal of debate” but the executive was “steadfast” in its adherence to the proposals in the consultation paper that the new body should deal only with service matters, and that conduct issues should be referred to the professional organisations, albeit under the scrutiny of the Commission.
[9] Section 3 of the Act introduces the notion that a complaint may consist of a number of “elements”, one or more of which may be outside the jurisdiction of the Commission. However, for present purposes section 5 of the Act as originally enacted (now section 2) is the key provision. It is headed “Determining nature of complaint”. Section 5(1) states:
“Where the Commission proceeds to determine under section 2(4) whether a complaint is frivolous, vexatious or totally without merit and determines that it is none of these things, it must determine whether the complaint constitutes –
(a) a conduct complaint;
(b) a services complaint;
including whether (and if so to what extent) the complaint constitutes separate complaints falling within more than one of these categories and if so which of the categories.”
Thus if a complaint constitutes “separate complaints”, some of which fall into the category of conduct complaint and some into the category of services complaint, the Commission must specify into which category the separate complaints fall. This suggests that a separate complaint cannot fall into both categories.
Section 5(2) provides:
“Where it appears to the Commission that the complaint may constitute both –
(a) a conduct complaint; and
(b) a separate services complaint,
it must consult, co-operate and liaise with the relevant professional organisation and have regard to any views expressed by the organisation on the matter before...
To continue reading
Request your trial
-
Appeal By The Council Of The Law Society Of Scotland Against The Scottish Legal Complaints Commission (slcc)
...[6] The question was raised as a live issue in the subsequent case of Anderson Strathern LLP v The Scottish Legal Complaints Commission 2016 SLT 967. The Inner House ruled that the 2007 Act did not give the Commission the power to classify a “one issue” complaint as a hybrid complaint. As w......
-
Energiekontor Uk Ltd Against (first) Advocate General For Scotland, On Behalf Of The Ministry Of Defence (third) Cwl Energy Ltd
...an additional 21 entries. [27] Furthermore, the Lord Ordinary had misapplied Anderson Strathern LLP v Scottish Legal Complaints Commission 2017 SC 120 and Council of the Law Society of Scotland v Scottish Legal Complaints Commission 2017 SC 718. As is clear from paragraph [83] of the latter......