Judge refuses leave to appeal complaint against legal firm rejected as ‘totally without merit’

Refusing the application, a judge in the Court of Session said he was “unable to detect any error of law or irrationality or error in fact” on the part of the SLCC in its determination of the complaint by Edward Price against Miller Hendry.

However, Lord Brodie declined to award expenses in favour of the commission as he was “unwilling to contribute to the applicant’s self-inflicted harm”.

The court heard that Mr Price owned a house in Crieff, which he and his wife acquired in 2002, though the title derived from a grant by the Earl of Ancaster in 1966.

The house on Gwydyr Road could be accessed by a lane ending in a cul-de-sac as it reached his property, and Mr Price claimed he had a right to do so by virtue of his title, although the solum of the lane was part of the title to a neighbouring property.

In late 2014/early 2015, the proprietor of the neighbouring property was a school, which agreed to sell it, including the solum of the lane but retaining right of access over it, to the then tenant, and Miller Hendry acted for the school in the transaction.

On learning of the proposed sale the applicant instructed solicitors and raised the question as to the extent of his rights and the proprietors of another neighbouring property over the lane.

Mr Price claimed that his title gave him servitude rights of access and a right of parking, which had been acquired by prescription, over the lane, although the latter right was disputed.

Discussions over a possible deed of servitude broke down, and the other property was sold.

Mr Price made a complaint against Miller Hendry, claiming that the firm had “inappropriately advised” their client to insist that he pay for a deed of servitude, when they were aware that servitude rights were well established.

He also complained that the firm failed to ensure that the purchaser was made aware of the area affected by the burdens he would inherit, in breach of the Law Society’s practice rules, and that they failed to ensure that the sellers were aware of their own obligations in terms of the law on title conditions.

But the commission rejected his complaint as totally without merit, promtping Mr Price to lodge an application for leave to appeal.

Mr Price, who represented himself at the hearing, claimed that the commission’s decision was base on an “error of law, that it had acted “irrationally” in the exercise of its discretion, and that its decision was “not supported by the facts”.

He disputed the SLCC’s assessment that his was a services complaint, as opposed to a conduct complaint, and claimed that its determination was “extremely biased” and contained “misleading statements”.

But the judge agreed with the SLCC that the complaint could not be classified as a conduct complaint, as no individual practioner has been identified.

Mr Price had also failed to meet the test, that his proposed appeal had a “realistic prospect of success”.

In a written opinion, Lord Brodie said: “I have no hesitation in concluding that this test is not met in the present case.

“Once it is understood that it was no part of Miller Hendry’s duties to arbitrate on the strengths of the applicant’s claims to have rights of access over and parking on the lane, far less to advocate the strength of these claims to their clients and the solicitors acting for the purchaser…; and that, similarly, it was no part of the function of the commission to assess the strength of the claims, the substance of the applicant’s proposed appeal falls away.

“The applicant may be entirely correct in his assessment of the law as it applies to the facts of the case, but if that is so, the action to be taken in the light of that and in the light of the attitude of the other parties is entirely a matter for him and his own legal advisers.”

He was also critical of the accusarion of bias made against he SLCC, saying there was was “simply no basis” set out for such an allegation.

But “with some hesitation”, the judge did not award expenses to the commission.

Lord Brodie added: “I am aware that in so doing I am throwing quite unnecessarily incurred expense amounting to a sum in four figures on to a public body which insofar as not publically funded is funded by the profession whose conduct its function is to investigate.

“The usual course for the court to follow would be to mitigate the commission’s expenses by an award in its favour, so requiring the applicant to bear, at least in part, the cost which he has caused so unnecessarily to be incurred.

“However, I have been unwilling to contribute to the applicant’s self‑inflicted harm and have considered my discretion is wide enough at this preliminary stage in the appeal in relation to a matter originating in a complaint against members of the legal profession to depart from the usual rule.”