Kerr Stirling Llp V. Scottish Legal Complaints Commission
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Brodie,Lord Kingarth |
| Neutral Citation | [2012] CSIH 98 |
| Docket Number | XA60/12 |
| Date | 19 December 2012 |
| Court | Court of Session |
| Published date | 19 December 2012 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Menzies Lord Brodie Lord Kingarth | [2012] CSIH 98 XA60/12 OPINION OF THE COURT delivered by LORD KINGARTH in appeal by KERR STIRLING LLP Appellants; against THE SCOTTISH LEGAL COMPLAINTS COMMISSION Respondents: _______________ |
Alt: M.V. Ross; Shepherd & Wedderburn LLP
19 December 2012
[1] In this appeal, brought under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 ("the 2007 Act"), the appellants seek to question the decision by the respondents to accept as having been made timeously a complaint brought against Mr Rory Cowan, a principal solicitor with the appellants, by Mr Michael Thrusfield.
The statutory background
[2] Section 2 of the 2007 Act provides:
"2 Receipt of complaints: preliminary steps
(1) Where the Commission receives a complaint by or on behalf of any of the persons mentioned in subsection (2) -
(a) suggesting -
(i) professional misconduct or unsatisfactory professional conduct by a practitioner other than a firm of solicitors or an incorporated practice;
....
it must, subject to subsection (3) and sections 3 and 4 and any provision in rules made under section 32(1) as to eligibility for making complaints, take the preliminary steps mentioned in subsection (4).
(2) The persons are -
(a) as respects a conduct complaint, any person;
...
(4) The preliminary steps are -
(a) to determine whether or not the complaint is frivolous, vexatious or totally without merit;"
Section 4 provides:
"4 Complaint not made timeously or made prematurely
(1) Where a complaint referred to in section 2(1) is not made timeously, the Commission is not to take the preliminary steps referred to in section 2(4) in relation to it, and is not to take any further action under any other provision of this Part (except this section), in relation to it.
...
(3) For the purposes of subsection (1), a complaint is not made timeously where -
(a) rules made under section 32(1) fix time limits for the making of complaints;
(b) the complaint is made after the expiry of the time limit applicable to it;
(c) the Commission does not extend the time limit in accordance with the rules."
[3] Section 32 provides:
"32 Duty of Commission to make rules as to practice and procedure
(1) The Commission must make rules as to its practice and procedure and, as soon as practicable after making or varying those rules, publish them and make them available to the public in a form which is readily accessible.
..."
The respondents' Rules
[4] Rules of the Scottish Legal Complaints Commission 2009 have been made by the respondents under section 32 of the 2007 Act.
Rule 4 provides:
"4 Making a complaint
(1) A complaint is made when it is on an SLCC complaint form registered as received at the office premises of the Commission at a time when those premises are open for business.
...
(6) A complaint will not be accepted (unless the Commission considers that the circumstances are exceptional) if it is made more than 1 year after the professional misconduct, unsatisfactory professional conduct...suggested by it appears to have occurred, ...
(7) In determining whether the period of 1 year mentioned in paragraph (6) has elapsed, there is to be disregarded any time during which the complainer was, in the opinion of the Commission, excusably unaware -
(a) of the professional misconduct, unsatisfactory professional conduct..."
The factual background
[5] In or about May 2007 Mr Rory Cowan of the appellants instructed Mr Michael Thrusfield to provide expert opinion and advice, in the area of veterinary medicine, in connection with a sheriff court action raised by the appellants' clients R & M Paterson against Scottish Agricultural Colleges and another. He estimated his fee for the provision of an initial report at £3,000. He was instructed to provide a further supplementary report. He estimated his fee for that report at £1,000. It is Mr Thrusfield's contention that after receipt of the completed reports Mr Cowan issued further instructions to consider and comment on adjustments and amendments to pleadings, to review opinions provided by experts engaged by the defenders and report his conclusions, and to attend consultations with counsel, and also cited him to appear at the proof which involved numerous court attendances over a four week period. After completion of the case he submitted his fee note in December 2008 to cover all of the work he claimed was instructed by Mr Cowan. The claimed fee was in excess of £35,000.
[6] Mr Cowan acknowledged receipt of the invoice but no payment was initially received. It appears that, following a request from Mr Cowan, Mr Thrusfield was content to allow payment to be deferred for a period in circumstances where it was thought that the sheriff's judgment in the litigation might be the subject of an appeal. In a letter dated 9 July 2010 Mr Cowan wrote to Mr Thrusfield apologising for not dealing with his invoice sooner. He informed Mr Thrusfield that he had sent a copy of the invoice to his clients with his views on it and that he awaited their instructions. Mr Cowan further wrote to Mr Thrusfield on 5 August 2010. He enclosed a cheque in the sum of £4,000 in part settlement. He indicated that he had been awaiting instructions from his clients in relation to the matter and confirmed that there were a number of issues with the fee note. He suggested a meeting to discuss the matter with a view to seeking resolution. By letter dated 1 September 2010 Mr Thrusfield, who in the interim had made some limited concessions, expressed his concern at the drawn-out nature of the matter. Mr Cowan wrote further to Mr Thrusfield by letter dated 13 September 2010. In it he made detailed comments in respect of a number of matters covered by the invoice, and raised a number of questions as to whether a number of the items within it were authorised or justified. He indicated that there were a number of matters on which he wished further information, so that he could assess them and take instructions from his clients regarding settlement. He indicated that he was prepared to recommend settlement at £16,625, less the £4,000 already paid to account. By letter dated 8 October 2010 Mr Thrusfield responded, indicating that he was pleased that matters now seemed to be progressing. He offered detailed responses to the previous letter. He concluded, however, that he could see no reason substantially to modify his invoice and stated that he sought payment, taking account of the £4,000 which had been paid and his own modest adjustments, in the sum of £31,444.35.
[7] Mr Thrusfield further wrote to Mr Cowan by letter dated 2 November 2010, and expressed concerns that he had had no detailed response to his letter of 8 October. He wrote further:
"I am somewhat at a loss to understand the further delay (my understanding being that lawyers are responsible for paying Expert Witness fees), and would therefore be grateful if my account (now nearly two years overdue) is settled."
[8] By letter dated 4 November 2010 Mr Cowan replied to Mr Thrusfield. He wrote:
"I still await instructions from my clients in relation to your account, following your letter of 11 October 2010.
I have issued a further reminder to my clients seeking instructions, and will revert once I have same.
Any responsibility to settle your account rests with the clients, and not their instructed Solicitors."
[9] Thereafter Mr Thrusfield instructed solicitors Martin Gray & Company to act on his behalf. They wrote a letter to Mr Cowan dated 23 November 2010. In it they explained that they had been consulted by Mr Thrusfield and said inter alia:
"Since it is the responsibility of the instructing Solicitor to ensure payment of the fees of expert witnesses please let us have your proposals for settlement of the outstanding account."
They sought an urgent response.
[10] The appellants responded to Martin Gray & Company by letter dated 1 December 2010. In that letter they said inter alia:
"As explained to Mr Thrusfield, we have passed his response to our initial letter dated 13 September 2010 (his response 8 October 2010) to our clients for instructions.
We have requested those instructions on a number of occasions and are continuing to press for them.
Once we have those instructions, we will revert with their position accordingly.
In relation to matters contained in your letter, you will of course be aware that there is absolutely no legal responsibility on this firm to pay Mr Thrusfield's fee.
We were simply Agents acting on and on behalf of the disclosed principal and the legal liability of the settlement of any "Reasonable fees" rests with the Principals".
Notwithstanding there are some consideration (sic) concerns regarding charges listed in Mr Thrusfield's fee note, as detailed in our letter of 13 September. In particular the charging of substantial fees without any discussion or fee authority being sought."
[11] Martin Gray & Company replied by letter dated 8 December 2010. They indicated that they could not agree with the appellants' comments on the question of agency. They expressed their view that the instructing solicitor had a duty to ensure payment of other professionals instructed by him and indicated inter alia that in the circumstances Mr Thrusfield would be perfectly entitled to...
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