Appeal To The Court Of Session Under Section 21 Of The Legal Profession And Legal Aid (scotland) Act 2007 By David Bartos, Advocate Against A Decision Of The Scottish Legal Complaints Commission Dated 24 January 2014
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lady Clark Of Calton,Lord Malcolm |
| Judgment Date | 26 June 2015 |
| Neutral Citation | [2015] CSIH 50 |
| Court | Court of Session |
| Docket Number | XA66/14 |
| Published date | 26 June 2015 |
| Date | 26 June 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 50
XA66/14
Lady Paton
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD MALCOLM
IN THE APPEAL TO THE COURT OF SESSION UNDER SECTION 21 OF THE LEGAL PROFESSION AND LEGAL AID (SCOTLAND) ACT 2007
by
DAVID BARTOS, ADVOCATE
Appellant;
against
A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION DATED 24 JANUARY 2014
Respondent:
Act: R Dunlop QC; Simpson & Marwick
Alt: Lindsay QC; Anderson Strathern LLP
26 June 2015
[1] On 24 January 2014 the Scottish Legal Complaints Commission upheld a complaint against David Bartos, advocate. Mr Bartos had acted as counsel for a Mr Hull, who was the pursuer in a Court of Session action, the detail of which will be recounted in due course. The complaint was 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.”
Mr Bartos has obtained leave to appeal to this court in terms of section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007. Having conceded that at least one of the grounds of appeal is well founded, the Commission is not resisting the appeal on its merits, but has invited the court to remit the complaint to the Commission for it to be re-investigated and determined of new before a differently constituted committee. This is opposed by Mr Bartos, who asks the court to rule upon the substance of the complaint. Section 21 provides that an appeal can proceed upon the basis of an error of law; procedural impropriety; irrational exercise of a discretion; or that the decision was not supported by the established facts. The Commission has accepted that the determination committee failed to provide adequate and comprehensible reasons for its decision and that this amounts to an error of law. Section 22 allows the court to make such order as it thinks fit, including substituting its own decision for that of the Commission.
An issue concerning the complaint’s categorisation as “a hybrid complaint”
[2] Before setting out the background, it can be noted that the complaint was classified as “a hybrid complaint”. The court wishes to make some general observations on this classification. They are not determinative of the current appeal, but flow from a concern as to the competency of the procedure which has been adopted.
[3] In the 2007 Act the Government determined that a new body, independent of the professional organisations, and containing significant lay involvement, would be set up to handle complaints of inadequate professional services and oversee the investigation of conduct complaints by the profession. It would be a single gateway for all the complaints against legal practitioners which could not be resolved between the complainer and the practitioner. The office of Scottish Legal Services Ombudsman was abolished. The professional bodies retained jurisdiction in respect of misconduct issues and expulsion from the profession.
[4] The Commission was charged with the classification of complaints as either conduct or services complaints, and to direct them accordingly. The professional body would investigate and determine conduct complaints, and the Commission likewise for services complaints. Thus section 5(1) of the Act makes provision for the Commission determining the nature of a complaint, namely as either a conduct complaint or a services complaint; and 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.”(emphasis added). Should it appear to the Commission that a complaint may constitute both a conduct complaint and a separate services complaint it must consult with the relevant professional body before making a determination under section 5(1).
[5] The court was given to understand that the Commission now operates a system whereby a complaint, even if it raises only one issue, as is the case in respect of the present complaint, might be categorised as what is called a “hybrid complaint”; namely a single complaint which has elements of both conduct and service matters. Thus one can have a situation where the Commission decides that both the professional body and the Commission should investigate exactly the same allegation; one with a view to determining whether it constitutes either professional misconduct or unsatisfactory professional conduct, and the other considering whether it amounts to inadequate professional services. It also follows that there would be separate and discrete appeal procedures, as has arisen in the present case.
[6] At the outset of the hearing the court asked whether this practice was justified in terms of the statutory provisions in section 5, which, on their face at least, envisage that a single complaint must be classified as either a conduct complaint or a services complaint, and dealt with accordingly. If that is correct, the so called hybrid approach could apply only if and when a complainer raised more than one issue, or as it is put in section 5, “separate complaints.” This would avoid the situation which has occurred here, with the Commission requiring the Faculty to investigate whether Mr Bartos acted without instructions and the Faculty deciding in the negative, and quite separately, although retaining an oversight role as to the Faculty’s process, the Commission investigating exactly the same issue and deciding that the correct answer is yes.
[7] In the discussions preceding the 2007 Act, it was recognised that there could be different views as to whether a particular complaint should be categorised as a conduct or a services matter. The role of adjudicator on this issue was given to the Commission. It was not anticipated that both the professional body and the commission would investigate and determine exactly the same factual issue, such as whether counsel acted without instructions when moving for dismissal of an action. It was recognised that many conduct complaints could be viewed as raising inadequate professional services issues. An example might be an advocate acting when under a conflict of interest. In such a situation, the Commission would have to decide on the appropriate track, ie to refer it to the professional body or give priority to its jurisdiction over services issues. Equally a complaint could be seen as having at least two separate strands or elements, which fell into different camps. An example might be that a solicitor falsely represented that he was a specialist in a certain area (a conduct matter) and be criticised for the quality of his work (a services issue). In that situation the Commission could direct the different elements of the complaint down different routes.
[8] It should be stressed that this matter was raised by the court, not the parties. However, on the face of it, there is at least a question as to whether the procedure adopted in the present case accords with Parliament’s intention as expressed in the Act. The court heard only brief and necessarily somewhat impromptu responses from counsel. The court indicated that it would not attempt to reach a view on the correct approach to this part of the Act, nor decide the appeal on this basis. Thus the above comments are provisional and should not be regarded as expressing a concluded view one way or the other. They have no bearing on the outcome of this appeal. However it is considered proper to raise the issue since the Commission and the professional bodies may wish to reflect on the validity of the current practice. If appropriate, and if so advised, it can be raised as a live issue for determination in a future case.
The background to the appeal
[9] In February 2011, Lord Turnbull resolved an action brought by Mr Hull against a Mr Campbell. Mr Bartos was counsel for Mr Hull. The decision in the case and Lord Turnbull’s opinion can be found at 2011 SLT 881. In brief, the circumstances were as follows. In 1992 Mr Hull obtained decree against Mr Campbell in respect of a debt of £9,600. In 1998, no payment having been made, the court pronounced a decree of adjudication in Mr Hull’s favour in respect of Mr Campbell’s heritable property. The 10 year reversionary period (“the legal”) expired without any payment or offer towards the debt. The case before Lord Turnbull was a legally aided action seeking declarator (1) of expiry of the legal and (2) that Mr Campbell’s half share of a house, jointly owned with his wife, now belonged to Mr Hull. At the date of the action the house was worth approximately £130,000. By this time, having regard to accumulated interest, Mr Campbell’s debt to Mr Hull stood at just over £52,250. Remarkably, no one could enlighten Lord Turnbull as to the nature or circumstances of the original debt.
[10] His Lordship discussed the ancient origin of the remedy sought, it being traceable to an Act of 1449. A question had arisen as to the compatibility of the remedy with article 1 of the first protocol to ECHR. This provoked representation at the proof on behalf of the Lord Advocate. It is plain from the Lord Ordinary’s discussion, for example at paragraph 10 of his opinion, that he was concerned as to whether it was open to the court to pronounce the order sought without any compensating award in favour of Mr Campbell in respect of the extent to which the value of his share of the house was greater than the accrued debt. Mr Bartos submitted that the relevant primary legislation is clear, and that, notwithstanding the first protocol, the court has no power to make an order against Mr Hull to reflect the excess. According to Mr Bartos, there was no alternative but to grant decree as sought.
[11] The submission of counsel for Mr Campbell, which was made for the first time on the last day of the hearing, and with no prior notice in the written pleadings, was that the court should grant...
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