B v Scottish Legal Complaints Commission
| Jurisdiction | Scotland |
| Judgment Date | 09 February 2021 |
| Neutral Citation | [2021] CSIH 18 |
| Docket Number | No 14 |
| Court | Court of Session (Inner House) |
[2021] CSIH 18
Extra Division
Scottish Legal Complaints Commission
Aberdeen Computer Services Ltd v Scottish Legal Complaints Commission [2021] CSIH 2; 2021 SLT 353; 2021 SCLR 73; 2021 GWD 5-71
McAllister v Secretary of State for Work and Pensions 2003 SLT 1195
Murnin v Scottish Legal Complaints Commission [2012] CSIH 34; 2013 SC 97; 2012 SLT 685
R v Kelly [2000] 1 QB 198
Scottish Legal Complaints Commission, Rules of the Scottish Legal Complaints Commission 2016 (amended December 2016) (Scottish Legal Complaints Commission, Edinburgh, November 2016), r 7 (Online: https://www.scottishlegalcomplaints.org.uk/about-us/rules-policies-and-publications/our-rules/ (16 April 2021))
Regulatory law — Scottish Legal Complaints Commission — Solicitors — Conduct complaints — SLCC accepting complaint as eligible for investigation although outwith time — SLCC conceding appeal should be allowed — Whether complainer and Law Society required to have concession and reasons for it intimated upon them — Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), sec 21
B appealed to the Court of Session under sec 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 against a decision of the Scottish Legal Complaints Commission, which determined that a conduct complaint made against him was eligible for investigation despite being outwith time. The SLCC conceded that the appeal should be allowed. The court put the appeal out for a hearing in order to be addressed on, inter alia, whether there should be intimation of that concession to the complainer and the Law Society of Scotland.
Section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5) provides, inter alia, “(1) Any person … may, with the leave of the court, appeal against any decision of the Commission under the preceding sections of this Part as respects a complaint on any ground set out in subsection (4). … (5) The Commission is to be a party in any proceedings on an appeal under subsection (1).”
A judicial factor was appointed to a firm of solicitors to wind up its business. The appellant was engaged in practice as a solicitor elsewhere and agreed to take over responsibility for certain client files from the firm, including litigation work, some of which was legally aided. The appellant was not registered for legal aid and did not provide litigation services. The appellant employed M, a legal aid registered litigation solicitor who had worked for the firm being wound up, to carry out the litigation work transferred to him. The files were transferred by the judicial factor in the exercise of her powers and without client mandates, on the basis that the appellant's firm would thereafter notify the clients, which it did. M left the appellant's employment some months later without giving notice. The appellant identified an alternative firm of solicitors which provided legal aid litigation services and arranged for them to take over the litigation files. A client of the wound up firm, whose file had been transferred to the appellant and, in turn, passed to the alternative firm, complained to the Scottish Legal Complaints Commission (‘the SLCC’) that her file had been transferred by the appellant to the alternative firm without a mandate. The complaint was made more than five years after the client had become aware of the alleged misconduct and was thus out of time. The SLCC determined that the conduct complaint should be admitted for investigation because the circumstances were exceptional.
The appellant applied for leave to appeal against that determination, which application was granted by the court. The application for leave, and the appeal itself, were served on the SLCC, the Law Society of Scotland and the complainer. No answers were lodged, but the appellant and the SLCC entered into a joint minute craving the court to recall the SLCC's determination and to allow the appeal. The court put the appeal out for a hearing in order to be addressed on whether the proposed disposal of the appeal should be intimated to the Law Society and the complainer.
It was argued by both the appellant and the SLCC that there had been no need to inform the Law Society or the complainer of the SLCC's decision not to resist the appeal, and, as neither had lodged answers, neither had a locus to resist the appeal. It was further submitted by the SLCC that, while sec 21(5) of the 2007 Act required an appellant to call the SLCC as a respondent to an appeal, it did not oblige the SLCC to lodge answers.
At the conclusion of the hearing, the court directed the clerk of court to write to the complainer and the Law Society providing them with the joint minute and inviting representations. The Law Society did not wish to make any representations but the complainer responded maintaining her dissatisfaction with the appellant and the firm of solicitors to whom he had transferred her files without a mandate.
Held that: (1) where the SLCC decided not to resist an appeal, fairness required that interested parties be informed of that position before the court disposed of the appeal, which was all the more important where the court was being asked to substitute its own decision in place of the SLCC's decision since the court's decision was final (para 17); (2) the representations made to the court by the complainer did not provide a good basis for concluding that the complaint should be investigated and the court was satisfied that the SLCC had erred and that its determination should be substituted with a finding that the complaint was time-barred (para 20); (3) sec 21(5) of the 2007 Act required the SLCC to become a party to appeal proceedings, even if it decided not to resist an appeal, which was done by the lodging of answers, but the Act did not require the SLCC to lodge answers to an application for leave to appeal (paras 21, 22); (4) both an application for leave to appeal and an appeal itself required to be intimated to all interested parties, unless the appellant was able to satisfy the procedural judge that an interested party had unequivocally indicated that it did not require the appeal to be served upon it, which indication would not be inferred from an interested party's decision not to lodge answers at the leave to appeal stage (para 23); and appeal allowed.
Observed that: (1) where the SLCC decided not to resist an appeal, it was desirable that interested parties be informed of that decision as soon possible, which could be done by the SLCC setting out its position in answers to the appeal, a copy of which could be provided to the interested parties (para 18); and (2) in such cases, the lodging of answers served a useful purpose in enabling the SLCC to explain its position and it gave a locus as a party to the proceedings to enter into a joint minute and a McAllister minute (para 21).
Aberdeen Computer Services Ltd v Scottish Legal Complaints Commission 2021 SLT 353 considered.
The cause called before an Extra Division, comprising Lord Menzies, Lord Malcolm and Lord Doherty, for a hearing on the summar roll, on 19 January 2021.
At advising, on 9 February 2021, the opinion of the Court was delivered by Lord Doherty—
Opinion of the Court—
[1] In early 2012 the Law Society of Scotland (‘the Law Society’) appointed a judicial factor to a firm of solicitors in Wick, the Highland Law Practice (‘HLP’). At that time TS was a client of...
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