Scots lawyer fails in challenge against complaints commission’s decision to allow late complaint

A judge in the Court of Session refused the application as she was “not persuaded” that the appeal would have a “realistic prospect of success”.

Lady Paton heard that the applicant, identified only as “Ms B”, sought leave to appeal against the decision of the SLCC to allow the late complaint by a professor through the sift, claiming that the commission “erred in law” and further acted “irrationally” in the exercise of their discretion.

The court was told that on 7 November the professor rendered a fee note which was effectively a “cancellation fee” of £15,000, which indicated that the sum was to be paid within two months.

By January 2013 the two-month period had elapsed and the fee was not paid, as the applicant and her firm did not accept that it was due, but it was some two-and-a-half years later, in August 2015, before the professor submitted a complaint to the commission.

The commission wrote to the applicant’s firm on 2 September 2015 to warn them about the complaint, but the letter also stated that it regarded it as “premature” as the complainer had not first approached the firm direct.

But the professor returned to the commission the following month to explain that he had received no reply to his direct approach to the firm.

By letter dated 7 January 2016 the commission intimated the professor’s complaint to the applicant and her firm, and invited comments, and a letter was also sent to the firm’s client relations manager.

The two letters suggested a deadline for comments of 21 January 2016, but on 15 January 2016 a further letter was sent from the commission to the applicant’s firm’s client relations manager, pointing out that the complaint was possibly time‑barred in terms of rule 7, which sets a one‑year deadline within which complaints should be tendered.

However, the result of the three letters was to make the solicitors assume that the time‑bar point had taken precedence and was being properly considered by the commission, and accordingly it was assumed that no comments in relation to other points were required, so one were in fact submitted.

On 26 February 2016 the commission issued their determination, namely that they would receive the complaint, although late; they would process it; and they would deem it not time‑barred, but the applicant challenged the determination.

The sole issue for the court was whether the applicant had a “real a realistic prospect of success” in persuading the appeal court that the commission’s determination represented an error of law or an irrational exercise of their discretion.

Importantly, there was no challenge on the basis of procedural propriety, such as failure to allow further time for comments, if requested; or breach of natural justice.

The judge noted that the commission was faced with a complaint by a professor who had been instructed as an expert in a litigation, who had issued a fee note to the solicitors’ firm which was prima facie regular and was for the sum of £15,000, who had sought payment of that fee and who, while late in coming to the commission, had proffered an explanation for that lateness, which was prima facie plausible, namely that his solicitors had been engaged in negotiations with the applicant’s firm until May 2015 when negotiations broke down, and some three or four months had then passed before he submitted his complaint to the commission.

Refusing the application, Lady Paton observed that the commission had “no information to contradict those assertions”.

“In particular they had no information to suggest that the fee was excessive, or that the fee was not due, or that there had been no negotiations until May 2015 but rather a clear indication at the outset from the applicant’s firm that the fee was not going to be paid as it was not due,” the judge added.

In a written opinion, Lady Paton said: “Standing the information which they had, the commission were, in my opinion, entitled, first, to conclude that this was not a situation where ‘there had been no or little activity between the discovery of the misconduct and the making of a complaint’.

“Secondly, to conclude that what was complained of was not a situation ‘regularly, or routinely, or normally encountered’ namely a situation where a professional expert instructed by lawyers would not be paid.

“Thirdly, to consider the matter of some public importance for the reason given in paragraph 1.12 of their determination, namely that it is in the public interest to proceed, due to the importance of professional witnesses being able to rely on solicitors paying for the use of their services, and moreover there might be a question of a solicitor’s trust and personal integrity.

“It will be seen that I have been unable to detect any error of law in the commission’s approach nor, in my view, can it be said to have been a determination which no reasonable body, properly instructed, on the information available to them, and applying the law correctly, could have reached. It follows that I am not persuaded that the appeal has a realistic prospect of success.”