Client fails in appeal against decision to dismiss complaint against lawyer as ‘time-barred’

A judge in the Inner House of the Court of Session held that the Scottish Legal Complaints Commission (SLCC), in exercise of its “gatekeeping or sifting function”, was entitled to exercise to its discretion by reaching the conclusion which it did.

‘Conflict of interest’

Lord Menzies heard that the applicant John Innes was seeking leave to appeal against the SLCC’s determination that the applicant’s complaints against a solicitor employed by Pinsent Masons were each time-barred in terms of rule 7 of the Rules of the Scottish Legal Complaints Commission.

The complaints, which were formally raised in February 2018, related to the lawyer’s alleged conduct in a litigation raised by the applicant against an individual, Mr X, in respect of a written guarantee to repurchase shares and repayment of a bank loan, in which litigation the solicitor and/or the firm of Pinsent Masons acted on behalf of the defender, ie the applicant’s opponent.

It was claimed that the solicitor and/or Pinsent Masons LLP “acted in a conflict of interest as they acted against me, an established client of the firm, and argued against a contract which was created by them” dated November 2008.

The second issue was stated to be that the solicitor and/or Pinsent Masons LLP “inaccurately provided false statements of fact” during the court action in 11 specified respects, relating to denials made in the course of the defences lodged as part of the written pleadings in the court action. 

The applicant was unsuccessful in that action, the action being dismissed after debate on the relevancy of the applicant’s pleadings. 

He sought leave to appeal to the Court of Session but leave was refused in November 2015.

The commission considered the issues raised by Mr Innes and the firm’s responses and concluded that the applicant would have been aware of both issues of complaint prior to November 2015. 

It went on to consider whether there were any exceptional reasons why the complaint was not made sooner but the applicant provided no information in this regard in relation to either issue and the commission itself could not identify any exceptional reasons.

The commission went on to consider whether there were any exceptional circumstances relating to the nature of either or both issues of complaint and concluded that there were none. 

Finally, It considered whether it would be in the public interest to proceed with considering either or both issues of complaint, despite their being made outwith time limits.

Despite the applicant’s submissions to the contrary, the commission concluded that both issues of complaint related specifically to this transaction and there was no indication of a wider impact on members of the public, and there was no other information available which represented circumstances which indicated it would be in the public interest to proceed.

‘No real prospect of success’

The applicant sought leave to appeal to the Court of Session, but the judge was not persuaded that the appeal had a real prospect of success or whether there was some other compelling reason why it should be heard.

In a written opinion, Lord Menzies said: “In considering the question of time limits and in particular when addressing the circumstances in which time limits may be extended, the commission is exercising a gatekeeping or sifting function which has been entrusted to it by Parliament.

“Having regard to the two issues of complaint set out in the decision letter and according the commission the degree of institutional respect to which reference has been made, I cannot see that any of the four grounds referred to in section 21(4) can possibly apply in the present case.

“I am not persuaded that the applicant has a real (or realistic) prospect of success in persuading a court that the commission’s determination in relation to its sifting function regarding time limits was based on any error of law. 

“The commission addressed itself to the correct legal test and concluded that all the specific complaints made by the applicant related to conduct alleged to have occurred in the course of the court action brought by him against Mr X which concluded at the latest in November 2015. I can find no error of law in this conclusion.”

Mr Innes submitted that the solicitor and/or Pinsent Masons continued to act after November 2015 and in particular acted against him in the bankruptcy proceedings which post-dated that date.

However, those were different proceedings concerned with a quite different remedy, namely the enforcement and recovery of an award of judicial expenses against Mr Innes. 

Lord Menzies added: “There is no suggestion of procedural impropriety by the commission, nor can I find any from the papers before me. No part of the decision displays any irrationality in the exercise of the commission’s discretion - a discretion conferred on it as a specialist body by Parliament…

“The commission then quite properly went on to consider whether it should accept the complaint notwithstanding that it was not made within the time limit, on the basis of any of the discretionary factors listed in Rule 7(4) of the 2016 Rules.

“The applicant did not identify any exceptional reasons why the complaint was not made sooner, either in his response to the commission or before this court, and the commission could find none. 

“Similarly, the applicant provided no information about any exceptional circumstances relating to the nature of the complaint and the commission could find none.”