Application For Leave To Appeal By Edward Price Against A Decision Of The Scottish Legal Complaints Commission
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2016] CSIH 53 |
| Date | 13 July 2016 |
| Court | Court of Session |
| Published date | 13 July 2016 |
| Docket Number | XA31/16 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 53
XA31/16
Lord Brodie
OPINION OF THE COURT
delivered by LORD BRODIE
IN THE APPLICATION FOR LEAVE TO APPEAL
by
EDWARD PRICE
Applicant;
against
A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION
Respondents:
Act: Party
Alt: Morag Ross; Harper Macleod LLP
29 June 2016
[1] This is an application for leave to appeal against a decision of the Scottish Legal Complaints Commission (“the commission”) in terms of section 21(2)(a), 21(3) and 21(4)(a) of the Legal Profession and Legal Aid (Scotland) Act 2007. The applicant is Edward Price. The application is opposed by the commission.
[2] The applicant made a complaint directed against Miller Hendry solicitors, which was received by the commission on 17 November 2015. The commission held it to be a services complaint within the meaning of section 2(1)(a) of the 2007 Act. It was not time barred. However, the commission determined that the complaint was totally without merit and accordingly rejected it, as provided by section 2(4) of the 2007 Act. It is that decision which the applicant seeks to appeal to the Court of Session.
[3] In order to understand the issues it is useful to set out the factual position as it was presented to the commission in terms of the applicant’s complaint and information received by the commission from Miller Hendry. That factual position is narrated in the commission’s determination sent under cover of its letter of 17 March 2016. I would refer in particular to paragraphs 2.8 to 2.14. Insofar as relevant what appears there is consistent with item 2 of the Schedule to the application (“History of Access Lane Map”).
[4] The applicant is the owner of Ewenburn, a property on Gwydyr Road, Crieff. He and his wife acquired the property in 2002 but his title is derived from a grant by the Earl of Ancaster in 1966. Adjoining Ewenburn to the north and roughly coterminous with its east to west extent is another property, Greenways. To the east of Greenways and adjoining it, is a third property, Ardlarach. Within Ardlarach and running along its southern boundary is a lane terminating in a cul-de-sac located at the north eastern corner of Ewenburn and the south eastern corner of Greenways. The layout of the properties and the lane is shown in a plan which is within item 2 of the Schedule to the application.
[5] It is possible to take vehicular and pedestrian access to Ewenburn and Greenways from Drummond Terrace Crieff by way of the lane (although a vehicle cannot be driven beyond the cul-de-sac and into Ewenburn). The applicant maintains that he has a right to do so by virtue of his title. He further maintains that he has acquired a servitude right of vehicular parking in the cul-de-sac by virtue of positive prescription or at least that it is strongly arguable that he has acquired such a right, in the event of the point being challenged. In his complaint to the commission and in his application to this court, the applicant specifies the basis of his contentions in relation to rights and access and parking but, as I shall explain, I do not consider that it is relevant for present purposes whether he is right in his contentions or not.
[6] At the relevant time, which is towards the end of 2014 and the beginning of 2015, the proprietor of the Ardlarach was Ardvreck School. The school agreed to sell Ardlarach, including the solum of the lane but retaining right of access over it, to the then tenant. Miller Hendry acted for the school in the transaction.
[7] On learning of the proposed sale the applicant instructed solicitors and raised the question as to the extent of the rights of the applicant and the proprietors of Greenways over the lane. The applicant’s position was, as I have indicated, that his title gave him a right of access and that a right of parking had been acquired by prescription. In or about January 2015 it would appear that there were prospects of the matter being settled by the express grant of servitude by the school in favour of the applicant and the proprietors of Greenways. However, whereas the school was prepared to grant a right of vehicular and pedestrian access by way of deed it was not prepared to include a servitude of parking. It would appear from the material enclosed with the application that at that point negotiations as among the parties broke down. I take the sale of Ardlarach to have been completed by a conveyance by the school to the purchaser without the issue of the extent of rights over the lane being resolved.
[8] Based on these factual circumstances the applicant made a complaint against Miller Hendry to the commission in the following terms:
“(1) Miller Hendry inappropriately advised their client, Ardvreck School to demand that the owners of Greenways and Ewenburn prepare Deeds of Servitude and be responsible for all the legal costs. Yet Miller Hendry were well aware that Servitude Rights were well established, having advised the owners of Greenways in 2002 and 2004. By their actions, Miller Hendry showed a complete lack of professional judgment, and indeed common sense for the sole objective of satisfying their client’s wishes which was to deny the owners of Ewenburn and Greenways the right to park in any part of the access lane.
(2) Miller Hendry failed to ensure that the Ardvreck School management made the purchaser of Ardlarach fully aware of the area effected by the burdens he would inherit as evidence by the letter from the purchaser to our solicitor 24 March 2015 in which the purchaser wrongly stated that we do not have any access rights over either his property or the access lane to the side of his property which remains in the ownership of the school. By their actions , Miller Hendry were in breach of the Law Society of Scotland’s Rules of Conduct as set out in section 1.4.1 and 1.4.3.
(3) Miller Hendry failed to ensure that Ardvreck School management were fully aware of their own obligations in terms of the law relating to sections 10(1), 10(2) and 76 (2) of the Title Conditions (Scotland) Act 2003 which came into effect in 2004.”
[9] I would understand the reference to the Law Society of Scotland’s Rules of Conduct as being a reference to section B1.4 of the Law Society of Scotland’s Practice Rules 2011. The relevant paragraphs of the rule are in the following terms:
“1.4.1 You must act in the best interests of your clients subject to preserving your independence and complying with the law, these rules and the principles of good professional conduct.
1.4.3 You must at all times do, and be seen to do, your best for your client and must be fearless in defending your client's interests, regardless of the consequences to yourself (including, if necessary, incurring the displeasure of the bench). But you must also remember that your client's best interests require you to give honest advice however unwelcome that advice may be to the client and that your duty to your client is only one of several duties which you must strive to reconcile.”
[10] Put shortly, the applicant’s complaint is accordingly that Miller Hendry did not advise their client and intimate to the purchaser of Ardlarach in terms which coincided with the applicant’s understanding of the legal and factual position: that being that he had a right of access over the lane without any need for it to be confirmed by an express grant and that his rights included a servitude of parking. His references to the Title Conditions (Scotland) Act 2003 are to provisions upon which he would rely as supporting his position.
[11] When the commission receives a complaint in terms of section 2(1A)(a) of the 2007 Act it must first determine whether the complaint constitutes a conduct complaint or a services complaint. Here the commission has determined that the complaint is a services complaint. As a services complaint it must be by or on behalf of any of the persons identified in section 2(2)b of the Act. For the applicant to be such a person he must be a “person who appears to the commission to have been directly affected by the suggested inadequate service”: see section 2(2)(b)(i). Although not addressed directly in the commission’s determination I shall assume for present purposes that the commission has considered the applicant to qualify under section 2(2)(b)(i). The respondent therefore came under a duty to take what are referred to in section 2(4) of the 2007 Act as “preliminary steps” which are to determine whether the complaint is “frivolous, vexatious or totally without merit”. If it determines that the complaint is any of these things, the commission must reject the complaint. Here the commission has determined that the complaint is totally without merit and accordingly rejected it.
[12] The applicant wishes to appeal against that decision to this court in terms of section 21 of the 2007 Act. Section 21 gives a right of appeal to persons including the applicant but only with the leave of the court, hence the present application. The competent grounds of appeal are those set out in section...
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