Appeal By The Council Of The Law Society Of Scotland V. The Scottish Legal Complaints Commission
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Kingarth,Lord Reed |
| Judgment Date | 21 September 2010 |
| Neutral Citation | [2010] CSIH 79 |
| Docket Number | XA183/09 |
| Date | 21 September 2010 |
| Court | Court of Session |
| Published date | 21 September 2010 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Kingarth Lord Reed Lord Malcolm | [2010] CSIH 79 XA183/09 OPINION OF LORD KINGARTH in the appeal by THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND Appellants; against THE SCOTTISH LEGAL COMPLAINTS COMMISSION Respondents: _______ |
Alt: Lake, Q.C.; Shepherd & Wedderburn
21 September 2010
[1] This is an appeal by the Council of the Law Society of Scotland ("the appellants"), with leave of the court, under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 ("the 2007 Act"), against a decision by The Scottish Legal Complaints Commission ("the respondents"), intimated to the appellants by letter dated 11 November 2009. The specific question raised is whether the respondents erred in law in finding that a complaint made by Glenn McIntosh and Mrs Janet McIntosh, residing at The Sycamores, Duns, Berwickshire ("the complainers") against Mr Alistair Dean, solicitor, of the Alistair Dean Law Practice Limited, 10 Lochside Place, Edinburgh Park, Edinburgh ("the solicitor") was not "totally without merit", within the meaning of section 2(4)(a) of the 2007 Act; a complaint which the appellants thus contend the respondents should have rejected, and should not have remitted to them for investigation. It is the first appeal to have come before this court for determination under the Act. In the circumstances, although the focus in argument was necessarily on the specifics of the complaint, both parties recognised that the appeal could be said to give rise to some broader questions of potentially wider import.
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;
(ii) that a conveyancing practitioner or an executry practitioner has been convicted of a criminal offence rendering the practitioner no longer a fit and proper person to provide conveyancing services as a conveyancing practitioner or, as the case may be, executry services as an executry practitioner,
(a complaint suggesting any such matter being referred to in this Part as a 'conduct complaint');
(b) suggesting that professional services provided by a practitioner in connection with any matter in which the practitioner has been instructed by a client were inadequate (referred to in this Part as a 'services complaint'),
it must.......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;
(b) where the Commission determines that the complaint is any or all of these things, to -
(i) reject the complaint;
(ii) give notice in writing to the complainer and the practitioner that it has rejected the complaint as frivolous, vexatious or totally without merit (or two or all of these things)".
[3] Sections 5 and 6 provide:
"5. Determining nature of complaint
(1) Where the Commission proceeds to determine under section 2(4) whether a complaint is frivolous, vexatious or totally without merit and determines that it is none of these things, it must determine whether the complaint constitutes -
(a) a conduct complaint;
(b) a services complaint,
including 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
........
6. Complaint determined to be conduct complaint
Where, or to the extent that, the Commission determines under section 5(1) that a complaint is a conduct complaint, it must -
(a) remit the complaint to the relevant professional organisation to deal with (and give to the organisation any material which accompanies the conduct complaint);
(b) give notice in writing to the complainer and the practitioner by sending to each of them a copy of the determination and
specifying -
(i) the reasons for the determination;
(ii) that the conduct complaint is being remitted under this section for investigation and determination by the relevant professional organisation;
(iii) the relevant professional organisation to which it is being remitted;
(iv) that the relevant professional organisation is under a duty under this Act to deal with the conduct complaint".
[4] Sections 7 to 14 make provision inter alia for the respondents' duty to investigate and determine services complaints.
[5] Section 17 provides:
"17. Power to examine documents and demand explanations in connection with conduct or services complaints
(1) Where the Commission is satisfied that it is necessary for it to do so for the purposes of section 2, 4, 5, 8, 9, 10 ..... it may give notice in writing in accordance with subsection (2) to the practitioner, the practitioner's firm or, as the case may be, the employing practitioner.
(2) Notice under subsection (1) may require -
(a) the production or delivery to any person appointed by the Commission, at a time and place specified in the notice, of all documents mentioned in subsection (3) which are in the possession or control of the practitioner, the firm or, as the case may be, the employing practitioner and which relate to the matters to which the complaint relates (whether or not they relate also to other matters);
(b) an explanation, within such period being not less than 21 days as the notice specifies, from the practitioner, the firm or, as the case may be, the employing practitioner regarding the matters to which the complaint relates.
......."
[6] Section 21 provides:
"21. Appeal against Commission decisions
(1) Any person mentioned in subsection (2) 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).
(2) Those persons are -
(a) the complainer;
(b) the practitioner to whom the complaint relates;
(c) the practitioner's firm;
(d) the employing practitioner;
(e) the relevant professional organisation
.......
(4) The grounds referred to in subsection (1) are -
(a) that the Commission's decision was based on an error of law;
(b) that there has been a procedural impropriety in the conduct of any hearing by the Commission on the complaint
(c) that the Commission has acted irrationally in the exercise of its discretion;
(d) that the Commission's decision was not supported by the facts found to be established by the Commission.
(5) The Commission is to be a party in any proceedings on an appeal under subsection (1).
......."
[7] Section 22 provides:
"22. Appeal: Supplementary provision
(1) On any appeal under section 21(1), the court may make such order as it thinks fit (including an order substituting its own decision for the decision appealed against).
......"
[8] Section 46 provides inter alia:
"'unsatisfactory professional conduct' means, as respects a practitioner who is -........
(d) a solicitor, professional conduct which is not of the standard which could reasonably be expected of a competent and reputable solicitor,
but which does not amount to professional misconduct and which does not comprise merely inadequate professional services; and cognate expressions are to be construed accordingly".
[9] There is no definition in the Act of professional misconduct.
[10] Section 47 of the Act provides:
"47. Conduct complaints: duty of relevant professional organisation to investigate etc.
(1) Where a conduct complaint is remitted to a relevant professional organisation under section 6(a) or 15(5)(a), the organisation must, subject to section 15(1) and (6), investigate it.
(2) After investigating a conduct complaint, the relevant professional organisation must make a written report to the complainer and the practitioner of -
(a) the facts of the matters as found by the organisation;
(b) what action the organisation proposes to take, or has taken, in the matter.
......."
The factual background
[11] On 6 July 2009 the solicitor sent a letter to the complainers in the following terms:
"6/7/2009
Dear Sir and Madam
ALLAN PRYDE
PRYDE HOMES LIMITED
We advise that we act for Allan Pryde, and Pryde Homes Limited. We have recently consulted with Mr Pryde, who has instructed us to write to you as a result of your continuing transgression through his land.
In particular, you are continuing to walk on, and through areas of ground which have now been granted planning permission.
The right to access land owned by others is provided by statute, in terms of the Land Reform (Scotland) Act 2003. Section 6 of that Act sets out various exceptions to the general right to access land. Section 6 of the Act sets out provisions which supplement and supplement section 6. Subsection (3) is in the following terms:
'Where planning permission for such a development or change of use has been granted, the land shall, for the purposes of section 7 above, be regarded, while that development or change of use is taking place in accordance with the permission, as having been developed or having had its use changed accordingly'.
Accordingly, in respect of all areas currently zoned for planning, in respect of which permission has been granted, the right of access does not apply.
Matters have reached a stage now where Mr Pryde is no longer prepared to accept repeated instances of this. If there is a repeat of your accessing the land in question, our client has instructed us to raise court proceedings, in the form of an interdict action, without further notice.
We would also bring to your attention that when exercising access rights, the legislation requires these rights to be exercised responsibly. We...
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