Cannon, Petitioner
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Judgment Date | 28 February 2020 |
| Neutral Citation | [2020] CSOH 23 |
| Docket Number | No 17 |
| Date | 28 February 2020 |
| Court | Court of Session (Outer House) |
[2020] CSOH 23
Outer House
Lord Brailsford
Barrs v British Wool Marketing Board 1957 SC 72; 1957 SLT 153
Hoekstra v HM Advocate (No 2) 2000 JC 391; 2000 SLT 605; 2000 SCCR 367; [2000] HRLR 410; [2000] UKHRR 578
Paterson, A, and Ritchie, B, Law, Practice and Conduct for Solicitors (2nd ed, W Green, Edinburgh, 2014), para 16.04.03, fn 21
Scottish Legal Complaints Commission, Rules of the Scottish Legal Complaints Commission 2016 (Scottish Legal Complaints Commission, Edinburgh, November 2016), r 7 (Online: https://www.scottishlegalcomplaints.org.uk/media/1327/rules-of-the-scottish-legal-complaints-commission-2016-amended-december-2016-sept-2019-formatting.pdf (27 March 2020))
Wade, W, and Forsyth, CF, Administrative Law (11th ed, Oxford University Press, Oxford, 2014), pp 395–397
Regulatory law — Scottish Legal Complaints Commission — Conduct complaints against practitioners — SLCC making conduct complaint to itself — Whether SLCC excluded from persons entitled to make complaint — Whether competent for SLCC to make complaint to itself
Francis Cannon presented a petition for judicial review seeking reduction of a complaint made by the Scottish Legal Complaints Commission to itself in relation to the petitioner. The petition called before the Lord Ordinary (Brailsford), on 26 September 2019.
The Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5) (‘the 2007 Act’), Pt 1, provides for a Scottish Legal Complaints Commission (‘SLCC’) and sets out a scheme for the determination of complaints against the legal profession. Where the SLCC receives a complaint by or on behalf of any of the persons mentioned in sec 2(2), it is required to categorise it as either a conduct complaint or a services complaint, with conduct complaints being referred to the relevant professional body and services complaints being determined by the SLCC itself. Section 2(2) provides, inter alia, that the persons from whom the SLCC can receive a complaint are “(a) as respects a conduct complaint, any person; (b) as respects a services complaint– (i) any person who appears to the [SLCC] to have been directly affected by the suggested inadequate professional services; (ii) the Lord Advocate; (iii) the Advocate General for Scotland; (iv) any judge (including a sheriff).”
A solicitor received a letter, dated 24 April 2019, from the SLCC intimating that it had decided to make a complaint to itself in its own name in relation to the solicitor's involvement with a series of transactions between 2008 and 2009, which had been brought to its attention by Police Scotland. The solicitor brought a petition for judicial review in which he sought reduction of the letter. He argued that the SLCC did not have the power under the 2007 Act to make a complaint to itself and has therefore acted ultra vires, with the result that the complaint was invalid and of no effect. It was argued that no natural or reasonable interpretation of the phrase “any person” in sec 2(2)(a) would extend it to include the SLCC itself. Further, it was argued that the fact the 2007 Act set out those persons from whom the SLCC “receives” a complaint carried the necessary implication that the complaint required to come from outwith the SLCC.
The SLCC argued that the lack of limitation in the statute on the class of person who could make a conduct complaint reflected the importance of the legislative aim of maintaining the reputation of, and sustaining public confidence in, the legal profession, and that, accordingly, the term “any person” should be understood to have no limitation.
Held that: (1) the SLCC was a body created by statute and, as such, its powers were derived from, and circumscribed by, the terms of the 2007 Act, the language of which carried the necessary implication that a conduct complaint came from outwith the SLCC since the SLCC could not “receive” a complaint which was self-generated, there being no provision in the Act for the SLCC to determine whether a complaint should be made (para 21); (2) had the Parliament intended the SLCC to have power to instigate complaints, it would have stated so in express terms with specific provision for how it would discharge that function and the absence of such provision supported the construction of the words “any person” to exclude the SLCC itself (para 23); (3) the decision taken by the SLCC to raise complaints for its own determination and adjudication was contrary to the rules of natural justice at common law; the decision taken by the SLCC in its letter of 24 April 2019 had been in effectively its own cause and the provisions of Art 6 of the European Convention on Human Rights and Fundamental Freedoms were therefore engaged (paras 26, 29); and the petitioner's first and second pleas in law sustained and the letter of 24 April 2019 reduced.
Barrs v British Wool Marketing Board 1957 SC 72 applied.
At advising, on 28 February 2020—
Lord Brailsford— [1] The petitioner is a practising solicitor. He has been on the roll of solicitors in Scotland since August 1968. He is a member of a legal firm having a place of business in Glasgow. The compearing respondent in the present petition is the Scottish Legal Complaints Commission (‘SLCC’) statutory body established under the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5) (‘the 2007 Act’). In the present petition the petitioner seeks judicial review of certain acts of the respondent relating to a purported complaint made by and to the respondent against the petitioner in his capacity as a solicitor. The act giving rise to the present petition was a letter dated 24 April 2019. The petition was presented to the court on 13 May 2019. Permission to proceed was granted by interlocutor of the Lord Ordinary dated 4 July 2019. The substantive hearing in the petition was held on 26 September 2019.
[2] There was no dispute as to the relevant factual background. This was averred in para 3 of the petition and, in all essential respects, admitted in the corresponding answer.
[3] By letter dated 24 April 2019 the respondent intimated to the petitioner that it had decided ex proprio motu to make a complaint in its own name in relation to the petitioner's involvement with a series of transactions in 2008/09. The heading of the letter was in the following terms: ‘Complaint by Mr Neil Stevenson on behalf of the Scottish Legal Complaints Commission (in his capacity as Chief Executive)’. The first paragraph of the letter was in the following terms:
‘The matters referred to in this complaint have been brought to the SLCC's attention by Police Scotland. The SLCC has taken the decision to...
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