William Murnin V. The Scottish Legal Complaints Commission+the Law Society Of Scotland
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Carloway,Lord Wheatley |
| Judgment Date | 03 April 2012 |
| Neutral Citation | [2012] CSIH 34 |
| Court | Court of Session |
| Published date | 03 April 2012 |
| Docket Number | XA95/11 |
| Date | 03 April 2012 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Carloway Lord Hardie Lord Wheatley | [2012] CSIH 34 XA95/11 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal by by WILLIAM MURNIN Appellant; against (First) THE SCOTTISH LEGAL COMPLAINTS COMMISSION; and (Second) THE LAW SOCIETY OF SCOTLAND Respondents: _______ |
Appellant : JA Brown; Francis Gill & Co
First Respondent : Johnston QC; Anderson Strathern LLP
Second Respondent : Duncan; Balfour + Manson LLP
3 April 2012
1. Facts
[1] The appellant is a solicitor. The first respondents are responsible for the preliminary assessment, or sifting, of complaints about a solicitor's conduct in terms of section 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007. Before a complaint can be sifted, it requires first to have been timeously made in terms of the Rules of the first respondents dated 2009. Rule 4(6) provides that the first respondents will not accept a complaint, where it is made after the expiry of one year from the date of the misconduct complained of, "unless the [first respondents consider] that the circumstances are exceptional".
[2] An allegation of misconduct was made against the appellant in relation to events occurring before 18 May 2010, when a financial compliance inspection of the appellant's firm by the second respondents revealed a potential deficit on the firm's client account of about £232,000. The second respondent's Guarantee Fund Committee met on 13 January 2011 and determined to make a complaint. The appellant was advised of this on 10 March, but the complaint was not submitted to the first respondents until 14 June 2011.
[3] The complaint form, which was intimated to the appellant, read simply that the appellant:
"may be guilty of professional misconduct or unsatisfactory conduct regarding alleged breaches of Rules 4 and 6 of the Solicitors (Scotland) Accounts etc Rules 2001 through overcharging of fees to various client ledgers so creating a deficit on the firm client account".
However, it was accompanied by a letter which stipulated the amount involved and that the sum was made up of overcharging on thirteen different client files. It also gave some information on the background, including the date of the inspection, the invitation to the partners of the firm, including the appellant, and then to the appellant alone, to attend the Committee interviews on 1 and 22 July 2010. The appellant had not attended these interviews and, on the latter date, his practising certificate was suspended under section 40 of the Solicitors (Scotland) Act 1980. Further details of the Committee meetings in September, October, November 2010 and January 2011 were given; it being said that it was at the final meeting that a decision was made to make the complaint. The accompanying letter was not copied to the appellant but it is not disputed that he was aware of the nature and extent of the allegations summarised in the complaint form.
[4] By letter dated 24 June 2011, the first respondents intimated to the second respondents their intention:
"to make a decision not to accept the complaint for investigation on the grounds that it has been made outside the time limits".
They invited a response on this and, in particular, whether:
"There are exceptional circumstances that prevented you from submitting your complaint earlier...".
A similar, but not identical letter, was sent to the appellant intimating the first respondents' intention and requesting any comments before any decision was made. It stated that the second respondents had been asked to outline:
"any exceptional circumstances which prevented them from submitting the complaint at an earlier stage".
[5] The appellant made no comment. By letter dated 28 June 2011, which was not copied to the appellant, the second respondents submitted that "the subject matter to which the complaints pertain is of such a serious quality" that the first respondents ought to exercise their discretion to allow the complaint to be considered given the "overwhelming public interest in investigating these matters". There was no explanation proffered for the lateness of the complaint.
[6] On 21 July 2011 the first respondents intimated that they were accepting the complaint and, in accordance with the statutory scheme, remitted it to the second respondents to investigate. The letter narrated that, "on the face of it, the complaint appears to be time barred". It was recognised that the second respondents could have complained timeously but had failed to do so. The letter continued:
"However, the [first respondents are] mindful of the severity of the allegations and the need to protect the public should the petitioner's practising certificate be reinstated. In the circumstances, the [first respondents recommend] that the need to establish the specifics of the complaint and the gravity of the allegations should be considered to be an exceptional reason for accepting the complaint even though it has not been made within [the first respondents'] time limits".
It is against that decision that the current appeal is taken.
2. Submissions
(a) APPELLANT
[7] The principal ground of appeal was that the first respondents had erred in law in holding that, on a proper construction of Rule 4(6), a bare and unsupported assertion by the second respondents, that the misconduct complained of was grave, was sufficient to amount to exceptional circumstances. Such circumstances were referable not to the nature of the complaint but to the reasons why the complaint came to be made out of time.
[8] The appellant outlined the history of the practice adopted towards the prosecution of tardy complaints by the second respondents in proceedings before the Scottish Solicitors Disciplinary Tribunal prior to the creation of the first respondents. This had involved a vague and informal policy of five, and later two year, time bars (Campbell Riddell Breeze Paterson, SSDT, 28 April 2005, reversed on other grounds at [2007] CSIH 1; and Ritchie Robertson, SSDT, 23 August 2007). However, it was accepted that, under the modern legislative regime, the only issue was the proper construction of Rule 4(6), which was clear and unambiguous.
[9] Since the system of complaints was substantially penal in nature, the requirement for the Crown to show "cause" before being permitted to bring a criminal prosecution outwith the statutory twelve month time limit provided a useful analogy. Thus, a two stage test ought to be applied (HM Advocate v Swift 1984 JC 83, LJG (Emslie) at 88; Early v HM Advocate 2007 JC 59, LJ-C (Gill) at 55). The first respondents had to be satisfied: (first) that there were exceptional circumstances; and (secondly) that they should exercise their discretion in favour of allowing the complaint to be considered although late, having regard to all the circumstances. At the first stage, the gravity of the offence could not be a relevant consideration (Early (supra), LJ-C at para [30]). The focus ought to be on whether there were reasons for the time limit being missed and whether those reasons were potentially excusable. In this appeal, there were no reasons advanced for the complaint being made late.
[10] The competing approach was that gravity was a factor to be considered in determining whether exceptional circumstances existed. The word "exceptional", construed as an ordinary, familiar adjective described a circumstance which was such as to form "an exception, which is out of the ordinary course, or unusual, or special, or uncommon". Something which, whilst not necessarily "unique or unprecedented or very rare" was not one that was "regularly, or routinely or normally encountered" (R v Kelly (Edward) [2000] 1 QB 198, Lord Bingham CJ at 208).
[11] The phrase "exceptional circumstances" was encountered in the General Medical Council (Fitness to Practise) Rules Order of Council 2004. Rule 4(5) of these Rules time barred cases unless "the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed". This too involved a two stage approach. However, since any complaint relating to fitness to practise was necessarily a serious one, something beyond gravity was required (R (Peacock) v General Medical Council [2007] EWHC 585 (Admin), Gibbs J at paras 32-34).
[12] The test of "exceptional circumstances" presented a significant hurdle. On this alternative analysis, the whole circumstances had to be considered "in the round". Whilst it was possible for the gravity of the offence alone to be considered sufficient, that gravity would have to be of a wholly exceptional character (R (Gwynn) v General Medical Council [2007] EWHC 3145 (Admin), Sullivan J at paras 43-44). The only circumstance put forward by the second respondents was the gravity of the misconduct alleged and that was insufficient of itself to surmount the hurdle.
[13] The appellant's subsidiary grounds of appeal were, first, that the first respondents had not identified where, in the scale of gravity, the misconduct fell. The complaint had only contained a bare allegation of a breach of the Accounts etc Rules through the overcharging of fees to various clients. There was no factual basis for the conclusion reached by the first respondents that the misconduct had been exceptionally grave.
[14] The appellant secondly submitted that the first respondents had erred in law in relation to the appellant's practising certificate. That certificate had been suspended on 22 July 2010 and had expired on 31 October 2010. No application for a further certificate had been made and, if one were to be made, it could be rejected in terms of section 15 of the 1980 Act on the basis of the current complaint. Thus the idea that rejecting the complaint acted as a bar to refusing the appellant a certificate was wrong in fact. The second respondents had not put this forward as a reason for allowing the complaint...
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