Scots lawyer wins appeal to have complaints dismissed as ‘totally without merit’ and ‘vexatious’ 

The Inner House of the Court of Session ruled that the SLCC’s decisions were “unreasonable” and “unsupported by sufficient evidence” - the commission having belatedly accepted that the claims should have been dismissed.

Complaints

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Turnbull, heard that Edward Cairns made a number of complaints to the Scottish Legal Complaints Commission about the appellant Jane Benson, a solicitor and member of staff at that Crown Office and Procurator Fiscal Service, and others in COPFS.

The background to the complaints was that, since about 1993, Mr Cairns had been pursuing a claim that wrongdoing occurred in respect of the financial affairs of Enterprise Ayrshire - a branch of Scottish Enterprise - when he was employed by the organisation. 

The commission and subsequently the court had been provided with a substantial amount of documentation relating to Mr Cairns’ claim; its investigation by various bodies, including the police; and also correspondence over the years between Mr Cairns and, among others, the police and the prosecuting authorities. 

Mr Cairns, convinced that his concerns were well-founded, was aggrieved that no-one who investigated the matter had concluded that criminal proceedings were merited.

The commission organised his complaints into 11 issues, the bulk of which, for various reasons, were ruled ineligible for investigation. 

The exceptions were issues 1, 4, and 5 - all of them relating to the appellant - which were to be remitted to the Law Society of Scotland for investigation. 

‘Totally without merit’

Ms Benson has appealed to the Court of Session against the decisions on the three issues, arguing that any reasonable decision-maker would have concluded that the complaints should be rejected as being “totally without merit” or “vexatious”, or both, under and in terms of section 2(4)(b)(ii) of the Legal Aid (Scotland) Act 2007. 

It was also submitted that the commission applied the “wrong legal test” to the question of whether the complaints were totally without merit.

At the conclusion of the submissions on behalf of the appellant, and after a short adjournment, the commission no longer resisted the appeal. 

While no concession was made in respect of the challenge to the test applied by the commission to the issue of “totally without merit”, it was accepted that it had been applied wrongly to the information and documentation before it. 

The commission invited the court to conclude that complaints 1, 4, and 5 should have been treated as both totally without merit and vexatious. 

But no similar concession was made by Mr Cairns, who had lodged a further 38-page note of argument in support of his position that the original claim in respect of Enterprise Ayrshire and the three complaints against the appellant were well-founded, and that the latter are not vexatious.

‘Vexatious’

However, having considered all of the information available to it, the court concluded that it was “clear beyond any reasonable doubt or uncertainty” that the three complaints at the centre of the appeal were “vexatious and totally without merit”.

The court observed that, more than 25 years after the initial claims made by Mr Cairns about the alleged wrongdoing at Enterprise Ayrshire, he was showing no signs of letting matters go.

In relation to issue 1, Ms Benson informed Mr Cairns that certain material held by the service had been destroyed in accordance with its “records management policy” and that all other retained documentation would be destroyed. 

This was against the background that Mr Cairns’ complaints concerning Enterprise Ayrshire had previously been examined on more than one occasion and found to be baseless.

Lord Malcom said: “Without a shred of evidence in its support, Mr Cairns has chosen to categorise this as the appellant colluding with Police Scotland and Scottish Enterprise to pervert the course of justice by destroying evidence. The court accepts that the Commission applied its mind to the correct test for a ‘totally without merit’ complaint.”

The complaint in issue 4 alleged that Ms Benson did not pass allegations of misconduct by COPFS employees to independent Crown counsel because she was covering the misconduct of colleagues. 

“Once again,” Lord Malcolm noted, “the alleged motive is not supported by anything beyond mere assertion. (It would appear that allegations which could amount to criminal conduct will be passed to Crown counsel, but, unsurprisingly, this is not done if there is nothing to substantiate them.)”

He continued: “In the present case, the court’s view is that the outcome of a referral would be bound to be a conclusion that the allegation was but a part of Mr Cairns’ vexatious fixation on pursuing his grievances against all who stand in his way, and that nothing would be gained from an investigation by the professional body.”

Issue 5 was to the effect that Ms Benson had “falsely stated” in a letter to Mr Cairns that no other witnesses were available to corroborate the fraud allegations made by him, having enclosed in the correspondence a previous letter from the Crown Office to Mr Cairns. 

Lord Malcolm explained: “The court considers that the only available view of the matter is that the appellant was doing no more than copying a letter from the then Glasgow Area Procurator Fiscal, which was to the general effect that there were no criminal proceedings in respect of the complaints against members of Scottish Enterprise and Enterprise Ayrshire, and subsequently certain police officers, because no corroborative evidence had been found, therefore there was a legal insufficiency of evidence.”

Decisions quashed

Delivering the opinion of the court, Lord Malcolm said: “The court is satisfied that the Commission reached decisions which can be characterised as unreasonable and unsupported by sufficient evidence to jump even the low hurdle of the complaints not being ‘totally without merit’. Whatever else this amounts to an error of law. 

“That is sufficient for the disposal of the appeal; however, having regard to the test outlined in Mazur v SLCC [2018] CSIH 45, we are also satisfied that the three complaints are vexatious. 

“The court will quash the Commission’s decisions in respect of complaints 1, 4, and 5, and substitute decisions in accordance with the above conclusions.”

He added: “It is likely that Mr Cairns will see this decision as further evidence of the covering up of wrongdoing; but we see no harm in encouraging him, if not to accept the outcome of the many investigations, at least to see that not everyone is pursuing a criminal conspiracy, and that a decision adverse to his wishes is not in itself evidence of malpractice by a professional person. 

“If he can bring himself to this position, it is possible that he might be able to enjoy a degree of peace of mind in the years ahead.”