Application for leave to appeal against decision of SLCC refused as ‘out of time’

A judge in the Court of Session dismissed the application on the ground that it was lodged after the statutory time limit of 28 days.

Lady Clark of the Calton heard that the applicant “SY” submitted a complaints form to the SLCC in July 2014 relating to a solicitor from the firm McGill and Company.

There were five issues identified in the complaint and the commission determined that issue 1 was not time-barred, but that issues 2, 3 and 4 were time-barred.

The commission thereafter determined that issues 1 and 5 were “totally without merit” and the determinations were sent to the applicant on 21 November 2014.

The applicant sought leave to appeal under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007, which states that an appeal “must be made before the expiry of the period of 28 days beginning with the day on which notice of the decision was given to the complainer and the practitioner; but the court may, on cause shown, consider an appeal made after the expiry of that period”.

However, the applicant was unrepresented and in order to initiate the appeal process, required to obtain an order from the court in terms of Rule of Court 4.2(5).

The applicant made such a request on the 28th day after the decision of the SLCC was intimated and the Lord Ordinary, Lady Stacey, granted leave to proceed in terms of the rule on 9 January 2015 and the application was sent to him along with a covering letter explaining what he required to do to proceed.

But as Lady Clark explained, Lady Stacey was not invited to consider the implications of section 21 of the 2007 Act and it was not her responsibility to take a decision about whether the appeal could be considered on cause shown after the expiry of 28 days.

“The difficulties for the applicant arise because of the subsequent delay. It was not until 9 September 2015 that the application for leave to appeal was registered after being lodged with the court by the applicant,” Lady Clark said.

In his written note of argument addressing time limits in relation to section 21(3) of the 2007 Act, the applicant set out in detail the difficulties which he said he experienced.

He explained the financial, personal and legal difficulties and he prayed in aid the public interest in having the type of complaint and its seriousness determined by the appropriate body.

To supplement the information provided in his written note of argument, the applicant also explained in some detail in his oral submissions the efforts which he said he had made to proceed with the appeal.

He contacted new solicitors with a view to obtaining their assistance but complained that the solicitors he contacted did not assist him and indeed delayed returning his papers in connection with the appeal.

The difficulties described by the applicant took place against a background of personal problems which included eviction from his family home and a period homelessness.

The applicant stated that it was in the “public interest” in this case to permit the appeal process to continue as the complaint related to important issues of trust and confidence in the solicitor about whom he had made a complaint.

He asked this court to take all these matters into account and conclude that cause was shown in terms of section 21(3) of the 1970 Act.

However, he judge held that there was “significant and unacceptable delay” in the appeal process and therefore refused the application as “out of time”.

In a written opinion, Lady Clark of Calton said: “I consider that it is important to bear in mind that it is the Scottish Legal Complaints Commission, and not this court, that is charged with the power and responsibility of assessing, by a sifting process, complaints which are made by members of the public such as the applicant in relation to solicitors.

“The 2007 Act tried to balance various conflicting interests. One of the interests which weighed in the balance is that time limits were set and required to be considered by the Scottish Legal Complaints Commission.

“As part of the balancing exercise, the appeal to this court was also limited with a time limit of 28 days set out in the statutory provisions albeit under reference to cause shown for consideration outwith that period. I consider that the appeal provisions to this court were part of the balancing exercise which took into account, amongst other things, the public interest.”

The judge was not however persuaded that the financial, personal and legal difficulties experienced by the applicant amounted to cause shown for the purposes of section 21(3) of the 1970 Act.

She added: “While one may sympathise with the applicant about his personal and financial difficulties which he submitted existed, there is an important public interest in court proceedings and other complaints proceedings being progressed timeously. In relation to the appeal there is a specific statutory time limit of short duration and that is there for a good reason.”