Richard Saville-smith V. Scottish Legal Complaints Commission
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Wheatley,Lord Drummond Young |
| Neutral Citation | [2012] CSIH 99 |
| Court | Court of Session |
| Year | 2012 |
| Date | 21 December 2012 |
| Published date | 20 December 2012 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Clarke Lord Drummond Young Lord Wheatley | [2012] CSIH 99 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in the cause RICHARD SAVILLE-SMITH Appellant; against SCOTTISH LEGAL COMPLAINTS COMMISSION Respondents: _______________ |
Alt: Poole, QC; Shepherd & Wedderburn
21 December 2012
[1] The appellant was appointed by Visit Scotland as public relations manager for the "Homecoming Scotland" Campaign, which took place in 2009. He took ill with a bipolar episode, claiming that it was caused by undue work pressure. He was eventually dismissed from his post, and thereafter he claimed that he had been dismissed unfairly and on account of disability. An internal appeal against his dismissal was heard by two employees of Visit Scotland, Mr Riddell Graham and Miss Lynn McLeod. The internal appeal was rejected, and on 14 January 2009 the appellant received a decision letter from Visit Scotland, signed by Mr Graham, to that effect. The appellant then made a claim before the Employment Tribunal that he had been unfairly dismissed. A hearing took place before the Employment Tribunal in September 2009. Its decision was that his claim should be dismissed. He appealed to the Employment Appeal Tribunal, but the appeal was unsuccessful.
[2] During the proceedings that led to rejection of the appellant's internal appeal Visit Scotland was advised by a solicitor, Mr. Paul Brown of Biggart Baillie LLP. Mr. Brown subsequently acted for Visit Scotland in the proceedings before the Employment Tribunal. Following the conclusion of the proceedings before the Employment Tribunal and the recovery of certain documents, the appellant made a complaint to the Scottish Legal Complaints Commission about a range of aspects of the conduct of Mr. Brown. Of these heads of complaints, only the first two are material to the present proceedings. These concern the involvement of Mr Brown in the decision of the internal appeal panel and its intimation to the appellant and in the subsequent proceedings before the Employment Tribunal. One of the other heads of complaint was permitted to proceed to the Law Society, one was held premature, as matters were still continuing, and the others were held to be time-barred. The first two heads of complaint were rejected by the Commission in a decision intimated on 12 December 2011 on the ground that they were totally without merit. The appellant has now appealed against that decision.
Statutory background
[3] The Commission is established by the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), and its powers are found in that Act. Generally speaking, the Commission is empowered to consider complaints about the conduct of or services provided by solicitors practising in Scotland and to take a range of actions in order to bring about the investigation and determination or other resolution of such complaints. At an initial stage, however, the Commission must undertake a sifting function. In relation to the sifting function, section 2(1) of the 2007 Act provides that, where the Commission receives a complaint by certain persons (a category that includes the appellant), it must take the preliminary steps mentioned in subsection (4) of that section. Section 2(4) is in the following terms:
"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...".
[4] The task of the Commission in applying section 2(4) has been described in the following terms, in Kidd v Scottish Legal Complaints Commission, [2011] CSIH 75, at paragraph [10]:
"[T]he exercise which the Commission has to undertake under section 2... is a 'sifting' exercise, the object of which is to secure that a conduct complaint, which in the judgment of the Commission is frivolous, vexatious or totally without merit, is not passed to the relevant professional organisations for investigation and determination. It is not for the Commission to determine the substantive merits of any conduct complaint nor to undertake any investigation beyond that necessary to discharge its sifting function. In particular, it is not for it to resolve any material dispute of fact which may have a bearing on the complaint".
Section 2(4) was also considered in Law Society of Scotland v Scottish Legal Complaints Commission, [2010] CSIH 79; 2011 SC 94, where the Court stated at paragraphs [34] and [35]:
"[34]... The plain intention of the Act is to impose a duty on the [Commission] to sift out, at a preliminary stage, wholly unmeritorious claims. This is an important duty, for a number of reasons. In the first place, although the primary interest which the Act seeks to protect is, no doubt, the public interest, it is not obvious that there is any public interest in the investigation, and reporting, of complaints which are wholly without merit, nor is that obviously in the interest of any complainer. Secondly,... it is plain in terms of sec 47 that once a complaint is remitted to them the [Law Society of Scotland] must investigate it and thereafter make a written report thereon. No sifting role, or part to deal with the complaint summarily, is afforded to the [Law Society]. There is thus an obvious advantage if the [Law Society] are not put to the time and expense of investigating unmeritorious claims....
[35] How the [Commission] perform this important preliminary sifting duty will no doubt depend on the facts of any case, and will vary from case to case.... It does, however, appear to me that the respondents will require in every case to obtain at least basic information as to the basis upon which the complaint is being made".
The appellant's complaint
[5] The two grounds of complaint rejected by the Commission that form the subject matter of the present proceedings were in the following terms:
"1. Mr. Brown deliberately altered the original Visit Scotland internal appeal decision letter upholding my appeal sent to his office on the evening 12 January 2009. These alterations resulted in my internal appeal decision being reversed; and the altered version was sent to me on 14th January 2009 precipitating legal action.
2. Mr. Brown misled the [Employment] Tribunal by leading his witness into providing false evidence when he led Mr. Riddell Graham, a Director of Visit Scotland responsible for the internal appeal, to tell the Tribunal that the decision of the internal appeal was as the version amended by Mr. Brown, and not as the final version agreed by the only two people with the authority to make the decision, Mr. Graham and an HR Manager.".
At this point we should note that the appellant submitted that his original complaint, which was relatively lengthy and made in effect one comprehensive complaint against Mr Brown, had been reduced by the Commission to a much shorter summary, divided into 10 specific complaints. One of those complaints had been accepted and the others rejected for a number of different reasons. In our opinion this procedure cannot be criticized. The original document was lengthy, and it was clearly necessary to reduce the general complaint into a number of specific heads; otherwise it would have been virtually impossible to apply any form of systematic legal analysis to the complaint. Moreover, we note that after the summary was prepared by the Commission it was sent to the appellant under cover of a letter dated 27 July 2011, with a request that he should confirm that the summary was correct by signing and dating one copy. The appellant made certain changes and signed the amended version on 31 August 2011. The heads of complaint that we are now considering are the first two in that amended version approved by the appellant.
[6] The first complaint related to procedures that were followed at the time of the appellant's internal appeal against his dismissal. As we have already noted, that appeal was heard on 7 January 2009 by two employees of Visit Scotland, Riddell Graham and their Human Resources Manager, Lynn McLeod. It related to two distinct matters: a complaint about the termination of the appellant's employment and a separate complaint under the Disability Discrimination Act 1995. Following the hearing, Miss McLeod drafted a letter which was intended to be sent by Mr. Graham to the appellant. So far as material the letter drafted by Miss McLeod was in the following terms; these are stated at length because the appellant's first and second grounds of complaint related to amendments that were subsequently made to this letter:
"Thank you for attending a meeting on Wednesday, 7 January 2009 with HR Manager, Lynn McLeod and myself....
Following our meeting I can confirm that we uphold your appeal relating to the termination of your contract while we have found your grievance under the Disability Discrimination Act 1995 (as amended) to be unsubstantiated.
Lynn and I carefully assess all the evidence made available to us in order to make, in our view, a fair decision. I would like to outline our thinking on both accounts.
Appeal against dismissal
· It is clear that during the period June-August 2008 you failed to deliver a structured PR plan to a standard deemed acceptable by your line manager or Chief Operating Officer. The responsibility was a key accountability of the PR Manager post ....
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· It is our view that a psychological contract is formed between an employee and employer. We acknowledge that as part of this contract we have a duty to provide a full induction, clear objectives and regular, structured feedback relating to your performance. In return we expect staff to take steps to actively fulfil the accountabilities...
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