SLCC comments on Inner House decision refusing a lawyer leave to appeal

Commenting on a recently published court decision in which a Scots lawyer failed in a challenge against a decision by the Scottish Legal Complaints Commission (SLCC), chief executive of the SLCC, Neil Stevenson, said: “it is vital that solicitors respond appropriately when the SLCC contacts them in relation to a complaint.

“Without a response it is more likely a complaint will be admitted, causing more work and stress for the practitioner and extra cost for the whole sector. It delays closure for the client, whether that being the case being dismissed or upheld, and risks undermining confidence in the profession.”

He added: “The appropriateness, cost, and delays incurred by appeals at the early stage in the process, which under the statute is before an actual investigation of facts takes place, is of increasing concern to the SLCC. We rarely recover full costs, and this case will be another bill which all lawyers then have to in part fund through the general levy. We will shortly be publishing suggestions for reform of the complaints handling model, and there may need to be debate on whether the Inner House is the appropriate forum for these cases and whether every stage should be appealable to the courts or only the final outcome.”.

A complaint had been made to the SLCC about the failure of a solicitor to pay an expert witness. In the absence of any proper response from the solicitor or her firm the SLCC admitted the complaint for investigation despite the fact it was late, as there were exceptional reasons that it hadn’t been made earlier and it was considered to be in the public interest for the complaint to proceed.

The solicitor challenged the decision that the complaint was “not time-barred”, applying to the Inner House of the Court of Session for leave to appeal. It was alleged that there was both an error in law as to how the SLCC had applied the statutory process and its rules, and that the discretion exercised was “irrational”.

The Inner House held that it was unable to find any error of law, nor was the decision so unreasonable no reasonable body could have made it. The court specifically noted that the SLCC were entitled to conclude this was a matter of public interest.

In its determination on the complaint, the SLCC’s view was that it was in the public interest to proceed due to the importance of professional witnesses being able to rely on the profession paying for the use of their services.

The decision also raised the potential issue of the solicitor’s trust and personal integrity as they have a duty to pay a professional’s fees (to ensure the effective administration of justice). The SLCC concluded the evidence could suggest that the solicitor may have failed to pay a significant sum of money and had not provided any comments to it on the issue to enable it to consider alternative views. The complainer however had set out full details as to their position, including being able to share correspondence from their own solicitor who had been advising on recovery of the fees.