Woman who discovered title deeds to property were fraudulent refused permission to appeal rejected solicitor complaint

About this case:

• Citation:
  [2024] CSIH 5
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Paton

Jennifer Chinwo complained to the Scottish Legal Complaints Commission about solicitor Marcus Whyte after she discovered that the title deeds to a property that he had acted for her in acquiring were fraudulent. The respondent’s investigator had taken the view that there was no evidence supporting her claim.

The application was heard by Lady Paton. The applicant appeared as a party litigant while the respondent was represented by D Welsh, advocate.

“A pack mentality”

In February 2023, the applicant lodged a complaint against Mr Whyte by way of an online form delivered to the SLCC. The respondent identified five issues in the complaint but took the view that only Issue 1, that Mr Whyte had failed to identify that the title deed he had obtained for the applicant’s property was fraudulent and had a fake business address on it, required investigation.

A case investigator for the respondent, Mr Craig White, reported in September 2023 that there was no evidence that the applicant had asked Mr Whyte to examine the title deeds, nor was there evidence he had ever obtained and viewed them. He went on to conclude that even if Mr Whyte had viewed the deed at some stage, it would not have been immediately obvious that some form of fraudulent activity had taken place.

The applicant disagreed with Mr White’s report, and the case was sent to a Determination Committee. By letter dated 7 November 2023 the SLCC advised the applicant that the Committee had not upheld the complaint and agreed with the substance of Mr White’s report. Thereafter the applicant sought leave to appeal to the Court of Session.

In her note of argument, the applicant submitted that Mr Whyte had lied during the SLCC’s investigation when he said he did not know she had a new solicitor and referred to a “pack mentality” on the part of the SLCC in refusing her complaint. She did not believe a full investigation had been carried out. For the respondent it was submitted that no error of law had been demonstrated and the application had no real prospects of success.

No procedural impropriety

In her decision, Lady Paton began: “I have been unable to identify any error of law on the part of the SLCC when dealing with the specific matters outlined in Issues 1 to 5 of the applicant’s complaint. Credibility and reliability, and questions concerning the weight of the evidence, are matters for the SLCC.”

She continued: “In the context of Issue 1, the SLCC was entitled, on the basis of the papers (including email correspondence) and all the information before them, to reach the conclusion they did. In relation to Issues 2 to 5, the Commission was again entitled to reach the views they did on the information before them.”

Assessing the fairness of the respondent’s procedure, Lady Paton said: “For completeness, I should add that I did not identify any procedural impropriety in the SLCC’s conduct of any hearing; any irrational exercise by the SLCC in the exercise of discretion; or any decision unsupported by facts found to be established by the SLCC.”

She concluded, refusing leave to appeal: “Accordingly no ground in terms of section 21(4) of the Legal Profession and Legal Aid (Scotland) Act 2007 has been made out. That being the case, it follows that I have not been persuaded that the applicant’s proposed appeal has real prospects of success.”