Law Society of Scotland commences legal action against SLCC over ‘hybrid’ legal complaints

In August, the Court of Session ruled that single issues within a legal complaint must be categorised as either service or conduct. The SLCC’s practice of classifying an issue as both, a so called “hybrid” issue, was ruled unlawful.

New complaints made following the judgment on 31 August will now be categorised as either service or conduct issues by the SLCC. However, the Law Society has raised concerns over the decision of the SLCC to recategorise around 200 complaints already in the system, with many now being classed as “service only”. This was despite an earlier analysis which identified conduct issues for investigation by the Law Society as the professional body.

The society has also questioned the legal power of the SLCC to recategorise complaints. There is in addition concern that revisiting decisions already taken risks calling into question historical cases where disciplinary action has been taken.

As a result, the society has lodged appeals to the Court of Session, questioning the SLCC’s decisions over a number of cases as well as the principle of recategorisation itself.

Eilidh Wiseman, president of the Law Society of Scotland, said: “The most recent issues arose because the approach taken by the SLCC towards the handling of hybrid issues was ruled to be unlawful. This is why it is so important for the SLCC’s response to be legally sound and preserve the integrity of the complaints system.”

She added: “We also have strong independent legal advice to suggest the SLCC does not have the statutory power to undertake this recategorisation work. We believe its approach is unlawful and risks establishing a precedent which could undermine the current complaints system.”

Over the last two months, the Law Society said it had offered to work collaboratively with the SLCC and take forward a joint Special Case to the Court of Session. This could clarify the law and agree the appropriate way forward. However, the two bodies were unable to come to an agreement.

The SLCC said it was disappointed in the Law Society’s response, especially when in the Court of Session case the Law Society had “positively supported” the SLCC and helped explain to the court that this way of classifying complaints had been “in practice for some 30 years”.

In a statement the complaints body said it was “imperative to rebut the suggestion that it is our wish to restrict the Law Society’s protection of the public interest”, adding “This is no more the case than it is the Law Society’s intention to remove the opportunity for effective redress from individual consumers affected by serious levels of inadequate professional service”.

It added that it had tried to meet with the Law Society’s CEO and legal representatives but that “Instead of taking that early opportunity to discuss matters and find a collaborative approach, the Law Society waited until we had taken action – action we took to avoid all cases sitting on hold indefinitely.”

The SLCC stated: “We accept that after the earlier ruling of the court there was uncertainty in any chosen course of action. However, the potential risk was that there would be a small number of appeals both organisations might have had to deal with. Having taken the action we did, these have not materialised. The Law Society’s approach, however, creates certain delay, certain cost for everyone, and certain damage to confidence that the current system works.

“We consider that launching 19 simultaneous but discreet court actions is a vastly disproportionate response. Whichever side ‘wins’ or ‘loses’ the legal argument, uncertainty over further cases and new issues will doubtless be created – meaning we could very well end up back to where we started and trying to implement yet another ruling on the a whole new set of current cases.”