Scots lawyer wins appeal to have ‘time-barred’ services complaint quashed, but conduct complaint referral upheld

Solicitor Calum MacGregor challenged the SLCC’s determination that “exceptional circumstances” relating to the nature of the complaints allowed them to be accepted despite being lodged outwith the one-year time limit.

The Inner House of the Court of Session ruled that the conduct complaint, which related to an eight-year delay in progressing a personal injury action on behalf of a client, should proceed to investigation, but held that the services complaint about the expenses deducted from the client’s settlement award should be quashed.

‘Conduct complaint’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Malcolm, heard that in January 2018 a former client Joseph Gillan complained to the respondent Scottish Legal Complaints Commission concerning services provided to him by the firm of Lloyd Green, and practitioners within that firm, including the appellant Mr MacGregor, in connection with a personal injury claim following an accident at work.

The SLCC separated the complaint into four issues, with issues 1 and 4 concerning Mr MacGregor.

Issue 1, which was categorised as a “conduct complaint”, was to the effect that he “unduly delayed” progressing matters on Mr Gillan’s behalf between May 2005 and December 2013.

Issue 4, a “services complaint”, was to the effect that Mr MacGregor “failed to act in the client’s best interests” in that he originally advised Mr Gillan that the expenses and outlays to be deducted from a settlement offer would be approximately £11,000, when in fact more than £14,600 was subsequently deducted from the settlement amount.

‘Exceptional circumstances’

In terms of the Scottish Legal Complaints Commission Rules 2016, the SLCC can accept a complaint not made within the relevant time limit if there are “exceptional circumstances relating to the nature of the complaint”.

Given that the matters complained of took place before January 2014, the complaints were lodged well outwith the one-year time limit. 

However, the commission decided that there were “exceptional circumstances” relating to the nature of the complaints, which allowed all of them to be accepted as eligible for investigation by the Law Society.

The commission noted in respect of issue 1 that it took approximately eight-and-a-half years for the matter to be resolved, which it described as an “exceptional period of delay” in the context of the nature of the claim, meaning there was “prima facie evidence of undue delay” on the part of the practitioners. 

In relation to issue 4, the view was that the size of the increase in the sum deducted from the settlement figure related to the initial “underestimate” of the firm’s fees and expenses, which was regarded as a significant matter, and the increase was not communicated to Mr Gillan until after the firm had concluded the settlement on his behalf. 

All of this, according to the commission, represented exceptional circumstances relating to the nature of the complaint.

‘SLCC erred in law’

But Mr MacGregor appealed, arguing that the SLCC “misdirected itself” in that it was “obvious” that the circumstances were not exceptional, thus the commission “erred in law”. 

Reference was made to the case of Murnin v SLCC 2013 SC 97, in particular the need for material that is objectively capable of being seen as exceptional. 

Separately it was submitted that the commission’s decision was not supported by the facts upon which it proceeded. 

It was argued that the commission had “no basis” for concluding that the complaint against Mr MacGregor involved a charge of causing exceptional delay in the progress of the claim.

Reference to the Law Society of Scotland v SLCC 2011 SC 94, the delay here was not obviously “off the scale”.

The court was invited to substitute a decision that, so far as relating to Mr MacGregor, the complaints were rejected on the grounds of time-bar.

‘Not unreasonable’

The judges refused the appeal in respect of the decision on issue 1, but allowed the appeal in relation to issue 4.

Delivering the opinion of the court, Lord Malcolm said: “The commission concluded that, on the face of it, the delay complained of in issue 1 was exceptional in the context of an accident at work claim. 

“For the appeal to succeed, the court would require to identify at least one of the grounds of appeal set out in section 21(4) of the Legal Profession and Legal Aid (Scotland) Act 2007, namely, error of law; procedural impropriety; irrationality; or a decision unsupported by the facts. 

“It is said that in the whole circumstances the only reasonable, rational, and supportable decision was that there were no exceptional circumstances relating to the nature of the complaint. 

“The court was told that of the 62 complaints of delay lodged with the commission over a five year period, only three involved a longer period than in the present case, and that this was influential in the decision. 

“After investigation it may be that the time taken will be explained and justified, but in general one would expect an accident at work claim to be resolved in a much shorter period. 

“No doubt a different decision was open to the commission, but the court is unable to describe the outcome as unreasonable, irrational, or unsupportable.”

However, a different view was taken in respect of the services complaint, which was of a lower order of seriousness. 

Lord Malcolm explained: “There is no suggestion that the fees deducted were not due, nor that there was any bad faith or dishonesty involved in the estimate provided. The complaint is simply that it turned out to be inaccurate. 

“Mr Gillan was told that he had been provided with no more than an estimate. Whatever the merits of the complaint might be, in our view it is plain that there is nothing exceptional about it.

“The commission reached a wholly unreasonable decision, and thus erred in law. The court will quash that part of the decision and substitute a finding that issue 4 is not eligible for investigation on the grounds of time-bar.”