SLCC decision to dismiss complaint against solicitor as ‘vexatious’ upheld by appeal judges



Lady Paton
Lady Paton
A disgruntled client whose complaint against a lawyer was dismissed as “vexatious” has had an appeal against the decision rejected.
 
The Inner House of the Court of Session upheld the determination by the Scottish Legal Complaints Commission against Stanley Mazur, ruling that the SLCC was entitled to conclude that there was “no basis” for his complaint that his former solicitor had lied in court.
 
‘Vexatious claim’
 
Lady Paton, Lord Menzies and Lord Glennie heard that, acting on the advice of a solicitor “AB”, the appellant allowed himself to be sequestrated, as a result of which he suffered “considerable financial loss” and “damage to his reputation and credit”, and that he had since been involved in several related litigations and complaint procedures.
 
In September 2016 he lodged a complaint with the SLCC against a different solicitor “CD”, alleging that the lawyer lied in his evidence to Perth Sheriff Court earlier that year in a debt recovery action brought by his former solicitor’s firm against the appellant for non-payment of fees. 
 
The appellant claimed that he had instructed CD in January 2009 raise a “professional negligence” claim against AB and to “prevent his sequestration”, but that the solicitor had lied by denying in court that he had carried out any work relating to his bankruptcy.
 
However, the SLCC considered that the complaint was vexatious and accordingly not eligible for investigation.
 
The appellant challenged that determination, arguing that was not supported by the facts found by the commission.
 
He referred to certain documents, including several letters and emails to show that work in the sequestration was being carried out, but the fee note did not contain any entries connected with sequestration work.
 
‘Valid complaint’
 
The appellant claimed that the fee note had been “falsified, fabricated, doctored and redrawn” to conceal the date of instruction and to exclude work done in connection with his bankruptcy.
 
The appellant further submitted that he had a “valid complaint” against CD, and that the SLCC had no basis for rejecting the complaint as vexatious - which he described as a “particularly annoying term” because it was the lawyer who was “clearly in the wrong”.
 
The appellant stated that, in the present appeal to the Court of Session, he did not seek monetary compensation, but wished to clear his name, to have the “vexatious” tag quashed, and to be “vindicated” in his valid complaint against CD.  
 
But senior counsel for the commission submitted that the appellant was trying to litigate an issue which had been decided upon by the courts, “without any factual basis for doing so”.
 
It was pointed out that the fee-note which had been the basis of the action in Perth Sheriff Court related solely to services rendered in respect of the professional negligence claim, and that the pleadings and fee-note did not cover any other matter such as sequestration, hence a ruling by the sheriff preventing any line of questioning going beyond the pleadings.  
 
It was argued that a decision that the appellant’s complaint was “totally without merit” had also been open to the SLCC, but that in the absence of any evidence to support an allegation of perjury, the SLCC was entitled to find the complaint vexatious, being “tantamount to an abuse of process”.  
 
‘No basis for complaint’
 
The appeal judges held that, on the basis of the facts found to be established by the SLCC, the commission was “entitled” to conclude that there was no basis for the complaint.
 
Delivering the opinion of the court, Lady Paton said: “First, we consider that section 21(4)(d) of the 2007 Act does not permit any challenge to the facts found established by the SLCC: the sole question is whether the Commission’s decision ‘was not supported by the facts found to be established by the Commission’. As already noted above, we consider that, on the basis of the facts found to be established by the SLCC, the SLCC was entitled to conclude that there was no basis for the appellant’s complaint.  
 
“Secondly, even if we were entitled to entertain a challenge to the facts found by the SLCC, the material placed before us…satisfied us that the SLCC was entitled to find the facts it did. For example, we are unable to accept the appellant’s bare assertion that the fee-note was fabricated in order to support CD’s lie that the appellant ‘did not instruct him in relation to [the appellant’s] sequestration in January 2009’. To establish such a serious allegation, we would require convincing evidence. No such evidence was produced.”
 
The court further observed that the term “vexatious” had a particular meaning when used in certain specific legal contexts, but it was “neither necessary nor appropriate” for a decision-maker such as the SLCC or the Court of Session to ascertain the “actual motive” underlying the proceedings brought. 
 
“The relevant test is truly an objective one, without any subjective component,” Lady Paton said, adding: “Applying that guidance to the present case, it cannot in our view be said that the SLCC was not entitled to conclude that the complaint was ‘vexatious’. Whilst others might have categorised the complaint differently, (for example, as being ‘totally without merit’) it does not follow that the SLCC was not entitled, on the material before it…reasonably to categorise the complaint as ‘vexatious’.”

© Scottish Legal News Ltd 2018



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