The Inner House of the Court of Session last week stopped short of finding a practitioner in contempt of court after three hearings and a proof relating to the solicitor’s failure to comply with the SLCC’s request for a client file to investigate a complaint.

The SLCC had had no response from the firm in response to the complaint and so was unaware of any reason for the non-compliance.

The only remedy provided in the legislation is for the SLCC to apply to the court for a court order requiring the production of the files. If not met, the court can consider whether the practitioner should be held in contempt of court.

In its decision the court stated it was “entirely satisfied that the [SLCC] are entitled to the expenses of the contempt procedure against the [practitioner]” and that “these proceedings were certainly justified and were properly brought in the public interest”. It also said it was “satisfied that on any view there has been a patt­ern of delay and failure on the part of the [practitioner] to comply with orders of the court”.

Throughout the hearings, Lord Pentland raised significant concerns about such a failure from an officer of the court, and about the wider implications of a defence that a solicitor was unable to cope with their professional duties.

Lord Pentland also noted that the court had now seen a “quite considerable stream of cases” and that “very often solicitors do not give sufficient attention and respect to the SLCC […] so much so that the Law Society of Scotland had to introduce a specific rule” to encourage compliance. He also highlighted that “cases of this nature have the potential to affect every practitioner through the cost incurred by the Commission”, which is borne by the profession through the SLCC levy.

SLCC CEO Neil Stevenson said: “We are grateful to the court for its consideration of this case and for the strong comments made from the bench about the importance of solicitors co-operating with the SLCC and about the impact of non-compliance on both consumers and the wider profession. We also note the concerns raised by Lord Pentland about whether solicitors who are unable to comply with their regulatory duties are able to discharge their other professional duties, including duties to their clients.

“As in previous cases we have significant concerns that evidence was led which raises serious public protection concerns about the management of legal practices and solicitors’ abilities to meet their professional duties, even where their actions are not judged to meet the test of wilful defiance of or disrespect towards the court.

“We believe the regulatory system also has to consider whether the contempt of court procedure is the right approach for these cases. The cost of these hearings – never fully compensated for through expenses and therefore borne by the wider legal profession – is significant and unnecessary. Ultimately, our aim is to secure the information we need to investigate complaints, to avoid future failures to comply with requests, and to ensure current and future clients and protected. It’s difficult to see how this week’s proceedings have helped to achieve that.

“It’s perhaps time for all of the agencies involved, including the court, as ultimate regulator of the profession, to find a better, less costly and more productive solution for dealing with this concerning matter.”