SLCC: Legal advice does not need to be wrong or negligent to be inadequate for the client

SLCC chief executive Neil Stevenson
SLCC chief executive Neil Stevenson

The Scottish Legal Complaints Commission (SLCC) has welcomed a decision published this week by the Court of Session, which upholds one of the SLCC’s decisions and, it said, helps provide clarity on its role in resolving consumer complaints.

The judgment emphasises that legal services can be found to be inadequate by the SLCC even if not incorrect or negligent.

The judgment also notes that the committees which make final decisions on cases in the SLCC have a lay majority, and that “matters must be considered as much from the point of view of the lay client and lay public as from that of the legal practitioner and the legal profession”

Commenting on the decision, SLCC chief executive Neil Stevenson explained: “complaints processes can often become overly legalistic, and we have seen some commentary recently from the courts perhaps applying those standards.

“When the SLCC was established it was to provide something different, a more efficient and effective way for practitioners and clients to resolve disputes.

“The professions have responded well to the SLCC’s role, and we’re delighted that a growing number of cases are resolved early in our process, through mutual agreement of the client and the legal practitioners – saving everyone cost and worry.

“We strongly believe this helps the public and professions by improving overall confidence in those who provide legal services.”

Mr Stevenson added: “A key learning point for those providing legal services to consider is that they must always place themselves in the client’s shoes.

“Rules, guidance, and technical legal knowledge all have a critical role to play in the provision of legal services, but it is also important to step back from those and consider what the client may and may not understand, and how they may be feeling about their situation.

“A truly client centred approach helps the public and should be a competitive advantage for service providers.”

The complaint made to the SLCC related to the alleged inadequate professional service provided by the solicitors to the complainers regarding a house purchase.

Following the conclusion of missives but very shortly prior to the settlement date, the property suffered storm damage.

In these circumstances, there was an agreed retention of £1,000 from the purchase price until the repairs were completed.

Although the complaint made by the complainers related primarily to the change in the solicitors’ advice regarding use of the retention money, the SLCC concluded that there was a failure at the outset to ensure the terms of the retention were adequate.

The SLCC considered it necessary to look at the terms of the retention in order to assess properly how adequate the advice given was.

Having considered the context in which the advice was given, the SLCC determined the complainers had been provided with an inadequate professional service.

The SLCC awarded compensation and waived an element of the fees.

The appeal examined whether the SLCC was entitled to consider the wording of the retention.

The Inner House endorsed the SLCC’s approach in that the conflicting advice required to be considered in context. The appeal was accordingly refused.