EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Drummond Young Lord Wheatley	[2012] CSIH 99 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in the cause RICHARD SAVILLE-SMITH Appellant; against SCOTTISH LEGAL COMPLAINTS COMMISSION Respondents: _______________

Act: Party

Alt: Poole, QC; Shepherd & Wedderburn

21 December 2012

[1] The appellant was appointed by Visit Scotland as public relations manager for the "Homecoming Scotland" Campaign, which took place in 2009. He took ill with a bipolar episode, claiming that it was caused by undue work pressure. He was eventually dismissed from his post, and thereafter he claimed that he had been dismissed unfairly and on account of disability. An internal appeal against his dismissal was heard by two employees of Visit Scotland, Mr Riddell Graham and Miss Lynn McLeod. The internal appeal was rejected, and on 14 January 2009 the appellant received a decision letter from Visit Scotland, signed by Mr Graham, to that effect. The appellant then made a claim before the Employment Tribunal that he had been unfairly dismissed. A hearing took place before the Employment Tribunal in September 2009. Its decision was that his claim should be dismissed. He appealed to the Employment Appeal Tribunal, but the appeal was unsuccessful.

[2] During the proceedings that led to rejection of the appellant's internal appeal Visit Scotland was advised by a solicitor, Mr. Paul Brown of Biggart Baillie LLP. Mr. Brown subsequently acted for Visit Scotland in the proceedings before the Employment Tribunal. Following the conclusion of the proceedings before the Employment Tribunal and the recovery of certain documents, the appellant made a complaint to the Scottish Legal Complaints Commission about a range of aspects of the conduct of Mr. Brown. Of these heads of complaints, only the first two are material to the present proceedings. These concern the involvement of Mr Brown in the decision of the internal appeal panel and its intimation to the appellant and in the subsequent proceedings before the Employment Tribunal. One of the other heads of complaint was permitted to proceed to the Law Society, one was held premature, as matters were still continuing, and the others were held to be time-barred. The first two heads of complaint were rejected by the Commission in a decision intimated on 12 December 2011 on the ground that they were totally without merit. The appellant has now appealed against that decision.

Statutory background

[3] The Commission is established by the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), and its powers are found in that Act. Generally speaking, the Commission is empowered to consider complaints about the conduct of or services provided by solicitors practising in Scotland and to take a range of actions in order to bring about the investigation and determination or other resolution of such complaints. At an initial stage, however, the Commission must undertake a sifting function. In relation to the sifting function, section 2(1) of the 2007 Act provides that, where the Commission receives a complaint by certain persons (a category that includes the appellant), it must take the preliminary steps mentioned in subsection (4) of that section. Section 2(4) is in the following terms:

"The preliminary steps are --

(a) to determine whether or not the complaint is frivolous, vexatious or totally without merit;

(b) where the Commission determines that the complaint is any or all of these things, to --

(i) reject the complaint;

(ii) give notice in writing to the complainer and the practitioner that it has rejected the complaint as frivolous, vexatious or totally without merit...".

[4] The task of the Commission in applying section 2(4) has been described in the following terms, in Kidd v Scottish Legal Complaints Commission, [2011] CSIH 75, at paragraph [10]:

"[T]he exercise which the Commission has to undertake under section 2... is a 'sifting' exercise, the object of which is to secure that a conduct complaint, which in the judgment of the Commission is frivolous, vexatious or totally without merit, is not passed to the relevant professional organisations for investigation and determination. It is not for the Commission to determine the substantive merits of any conduct complaint nor to undertake any investigation beyond that necessary to discharge its sifting function. In particular, it is not for it to resolve any material dispute of fact which may have a bearing on the complaint".

Section 2(4) was also considered in Law Society of Scotland v Scottish Legal Complaints Commission, [2010] CSIH 79; 2011 SC 94, where the Court stated at paragraphs [34] and [35]:

"[34]... The plain intention of the Act is to impose a duty on the [Commission] to sift out, at a preliminary stage, wholly unmeritorious claims. This is an important duty, for a number of reasons. In the first place, although the primary interest which the Act seeks to protect is, no doubt, the public interest, it is not obvious that there is any public interest in the investigation, and reporting, of complaints which are wholly without merit, nor is that obviously in the interest of any complainer. Secondly,... it is plain in terms of sec 47 that once a complaint is remitted to them the [Law Society of Scotland] must investigate it and thereafter make a written report thereon. No sifting role, or part to deal with the complaint summarily, is afforded to the [Law Society]. There is thus an obvious advantage if the [Law Society] are not put to the time and expense of investigating unmeritorious claims....

[35] How the [Commission] perform this important preliminary sifting duty will no doubt depend on the facts of any case, and will vary from case to case.... It does, however, appear to me that the respondents will require in every case to obtain at least basic information as to the basis upon which the complaint is being made".

The appellant's complaint

[5] The two grounds of complaint rejected by the Commission that form the subject matter of the present proceedings were in the following terms:

"1. Mr. Brown deliberately altered the original Visit Scotland internal appeal decision letter upholding my appeal sent to his office on the evening 12 January 2009. These alterations resulted in my internal appeal decision being reversed; and the altered version was sent to me on 14^th January 2009 precipitating legal action.

2. Mr. Brown misled the [Employment] Tribunal by leading his witness into providing false evidence when he led Mr. Riddell Graham, a Director of Visit Scotland responsible for the internal appeal, to tell the Tribunal that the decision of the internal appeal was as the version amended by Mr. Brown, and not as the final version agreed by the only two people with the authority to make the decision, Mr. Graham and an HR Manager.".

At this point we should note that the appellant submitted that his original complaint, which was relatively lengthy and made in effect one comprehensive complaint against Mr Brown, had been reduced by the Commission to a much shorter summary, divided into 10 specific complaints. One of those complaints had been accepted and the others rejected for a number of different reasons. In our opinion this procedure cannot be criticized. The original document was lengthy, and it was clearly necessary to reduce the general complaint into a number of specific heads; otherwise it would have been virtually impossible to apply any form of systematic legal analysis to the complaint. Moreover, we note that after the summary was prepared by the Commission it was sent to the appellant under cover of a letter dated 27 July 2011, with a request that he should confirm that the summary was correct by signing and dating one copy. The appellant made certain changes and signed the amended version on 31 August 2011. The heads of complaint that we are now considering are the first two in that amended version approved by the appellant.

[6] The first complaint related to procedures that were followed at the time of the appellant's internal appeal against his dismissal. As we have already noted, that appeal was heard on 7 January 2009 by two employees of Visit Scotland, Riddell Graham and their Human Resources Manager, Lynn McLeod. It related to two distinct matters: a complaint about the termination of the appellant's employment and a separate complaint under the Disability Discrimination Act 1995. Following the hearing, Miss McLeod drafted a letter which was intended to be sent by Mr. Graham to the appellant. So far as material the letter drafted by Miss McLeod was in the following terms; these are stated at length because the appellant's first and second grounds of complaint related to amendments that were subsequently made to this letter:

"Thank you for attending a meeting on Wednesday, 7 January 2009 with HR Manager, Lynn McLeod and myself....

Following our meeting I can confirm that we uphold your appeal relating to the termination of your contract while we have found your grievance under the Disability Discrimination Act 1995 (as amended) to be unsubstantiated.

Lynn and I carefully assess all the evidence made available to us in order to make, in our view, a fair decision. I would like to outline our thinking on both accounts.

Appeal against dismissal

· It is clear that during the period June-August 2008 you failed to deliver a structured PR plan to a standard deemed acceptable by your line manager or Chief Operating Officer. The responsibility was a key accountability of the PR Manager post ....

...

·  It is our view that a psychological contract is formed between an employee and employer. We acknowledge that as part of this contract we have a duty to provide a full induction, clear objectives and regular, structured feedback relating to your performance. In return we expect staff to take steps to actively fulfil the accountabilities clearly outlined in the job description. Clear communication between you and your line manager and Chief Operating Officer was essential to ensure success. We believe that poor communication led to a series of misunderstandings and misinterpretations. It is for this reason that we uphold your appeal and recognise that more could have been done to support you during the first two months of your employment. Specifically we recognise that performance issues should have been addressed in a more timely and formal manner.

·  We believe that the termination of your contract related purely to your performance and was not linked to your period of absence or your medical condition.

·  We acknowledge that the stated purpose of the meetings dated 21 October 2009 and 20 November 2009 led to a degree of ambiguity. It is our belief that this ambiguity confused the situation, leading to a lack of clarity in relation to the termination of your contract.

On the Wednesday 7 January we agreed with you the complexity of this situation. During our meeting you clearly outlined your preferred outcome. It is now my intention to refer this matter to our Solicitor at Biggart Baillie who will contact your solicitor, Deborah Solley at Anderson Strathern in order to reach a mutually acceptable conclusion".

[7] On 12 January 2009 Miss McLeod sent Mr Brown an e-mail in the following terms:

"I just wanted to let you know that [Mr Graham] and I have now made a decision regarding the appeal we heard last week. We certainly feel that there are no grounds for the disability claim although we have to acknowledge some poor induction and management practices during his time with us. We also have concerns about the intention of the meetings held with [the appellant] during his sickness/absence period. I am writing a letter tonight on behalf of [Mr Graham] and we have agreed that we would now like to seek a financial settlement - agreed with his solicitor. Can I send you a copy of the letter tomorrow - just to check that you are comfortable with it?"

It is clear from the last sentence of this e-mail that the intention was to obtain professional advice from Mr Brown about the terms in which the decision had been expressed in Miss McLeod's draft letter. The draft letter in the above terms was sent to Mr Brown on 13 January, and later the same day he spoke to Miss McLeod. Miss McLeod then e-mailed Mr Graham as follows:

"I have spoken to Paul Brown this afternoon - he wanted to make some additional changes to my letter before it was sent to [the appellant]. He has not sent back a copy to me yet - I have phoned and emailed to try and get this asap.... Riddell [Mr Graham], if you can sign the letter that would be fantastic. Jo Hall can arrange for a courier to deliver so he gets it in the time scales we discussed".

[8] The following morning, 14 January, Mr Brown e-mailed Miss McLeod in the following terms:

"... Revised letter is attached.

In relation to the conclusion and possible financial settlement, I presume that you would wish me to make contact with his solicitor regarding these proposals, but I should be grateful if you would confirm that this is the case?

I am slightly concerned that the letter doesn't confirm whether or not this is at the end of the appeal process or indeed if there is a further appeal. I appreciate that the intention of the letter is that he has raised the possibility of a financial settlement and that negotiations can be opened to resolve the matter, however, in the event that there is any further possible appeal, I think you should mention this in the letter albeit that you can say at the end of the letter that your hope is that given his preference he would not wish to prolong the matter with another appeal but if he does so then his appeal would be to [ ] (sic). Alternatively, if that is an end to your internal procedures, I think it would be worthwhile stating that.

As per my voicemail, please check the notice provisions in his contract just to make sure that there is an option to terminate with notice prior to the expiry of the fixed period? Please let me know.

Any problems or queries about the letter, please let me know".

The draft letter as revised by Mr Brown accompanied that e-mail. Mr Brown's e-mail makes two matters clear: first, his intention was to provide professional advice in relation to the manner in which the internal appeal panel's decision had been expressed, and secondly, as indicated in the last sentence, he expected that Mr Graham and Miss McLeod would check the wording of his revised letter to ensure that it accorded with their decision. These matters appear to us to be important, and we return to them below.

[9] The revised version of the letter was signed by Mr Graham and sent to the appellant on 14 January 2009. The revised letter read as follows; the altered passages are underlined and a deleted passage is shown in italics:

"Thank you for attending a meeting on Wednesday, 7 January 2009 with HR Manager, Lynn McLeod and myself....

Following our meeting I can confirm that, whilst I accept some of the concerns that you have raised, I have decided not to uphold your appeal relating to the termination of your contract. Having considered the matter in detail, I accept that the process that was followed was not perfect however, I do not believe that a more thorough process would have altered the outcome.

In relation to your grievance under the Disability Discrimination Act 1995 (as amended) I find this to be unsubstantiated.

Lynn and I carefully assessed all the evidence made available to us in order to make, in our view, a fair decision. I would like to outline our thinking on both accounts.

Appeal against dismissal

· It is clear that during the period June-August 2008 you failed to deliver a structured PR plan to a standard deemed acceptable by your line manager or Chief Operating Officer. The responsibility was a key accountability of the PR Manager post ....

...

·  I accept that a contract of employment between an employer and an employee is more than simply what is written down on paper and that the aspirations and expectations of each party form an integral part of the relationship. We acknowledge that as part of this contract we have a duty to provide a full induction, clear objectives and regular, structured feedback relating to your performance. In return we expect staff to take steps to actively fulfil the accountabilities clearly outlined in the job description. Clear communication between you and your line manager and Chief Operating Officer was essential to ensure success. We believe that poor communication led to a series of misunderstandings and misinterpretations. It is for this reason that we uphold your appeal and recognise that more could have been done to support you during the first two months of your employment. Specifically We recognise that performance issues should have been addressed in a more timely and formal manner.

·  We further recognise that all of these issues should have been better handled however, it would appear that there was a fundamental difference of opinion between yourself and your Line Manager and the Chief Operating Officer and that all trust and confidence between you and them had been lost. Regardless of what was on paper, it would seem that the aspirations and expectations element of this contract was not met by either party. In that regard, I do not consider the termination of your employment was unfair.

Grievance under the Disability Discrimination Act 1995 (as amended)

Having again considered your letter in detail and all that you had to say at the meeting, my conclusions in relation to your grievance are:-

·  We believe that the termination of your contract related purely to your performance and was not linked to your period of absence or your medical condition.

·  We acknowledge that the stated purpose of the meetings dated 21 October 2009 and 20 November 2009 led to a degree of ambiguity. It is our belief that this ambiguity confused the situation, leading to a lack of clarity in relation to the termination of your contract.

At the meeting on Wednesday 7 January, we agreed with you that this was a complex situation. During our meeting you outlined your preferred outcome which was a financial settlement. Whilst I do not accept that there was anything wrong in relation to the reason for termination of your employment, as explained above, I do feel that matters could have been handled better. Given your proposed preferred outcome, and without any admission of liability, I now intend to refer this matter to our Solicitor at Biggart Baillie, with a view to them contacting your solicitor, Deborah Solley at Anderson Strathern in the hope that we might be able to reach a mutually acceptable conclusion.

I trust you will advise your solicitor accordingly but if you have any further questions or comments to make on my conclusions, please let me know".

[10] The most important changes are, first, that in the second paragraph the words "we uphold your appeal relating to the termination of your contract" are replaced with the words "whilst I accept some of the concerns that you have raised, I have decided not to uphold your appeal relating to the termination of your contract"; secondly, a reference in the last of the bullet points relating to the appeal against dismissal to a fundamental difference of opinion between the appellant and his immediate superiors and the breakdown of confidence between them; thirdly, in the same bullet point, a statement that the termination of employment was not considered unfair; and fourthly, a reworking of the final paragraph, denying that anything had been done wrongly but still accepting that a settlement might be negotiated. It should be noted, however, that the final outcome is the same: the parties' solicitors should attempt to negotiate a financial settlement. The appellant's first ground of complaint against Mr. Brown relates to the part that he played in amendments made to the letter of intimation. In particular, the appellant maintains that Mr. Brown was instrumental in changing the outcome of his internal appeal.

[11] The second ground of complaint follows on from the first. It relates to the hearing before the Employment Tribunal, when, in response to questions from Mr. Brown, Mr. Graham gave evidence to the effect that the letter of 13 January 2009, in its revised form, represented the decision of himself and Miss McLeod, and that the decision to turn down the internal appeal against dismissal was straightforward because the evidence against the appellant was so convincing. Mr. Graham's evidence was, moreover, to the effect that the decision was based on the appellant's performance. This was said to amount to perjury on the part of Mr. Graham, and the complaint amounts in effect to an allegation that Mr. Brown was party to the leading of perjured evidence.

The Commission's handling of the complaint

[12] The Commission responded to the appellant's complaint by letter dated 12 December 2011. They held that the appellant's first two heads of complaint should not be investigated because they were totally without merit within the meaning of section 2(4)(b)(ii) of the Legal Profession and Legal Aid (Scotland) Act 2007. The Commission's decision was in the following terms:

"The SLCC has considered your complaint carefully. Our view is that issues 1, 2 and 4 are totally without merit under the Act and must be rejected for the reasons set out in the attached document," Reasons for Decision". The SLCC is not saying that your complaint is unimportant and we can see your strength of feeling about it from your communication with us. However, under the terms of the 2007 Act it is not eligible for investigation".

[13] The Commission's Reasons for Decision begins by setting out the background to the complaint. In paragraph 1.3 it is noted that the complaint is a third-party complaint, in the sense that the appellant was not a client of Mr. Brown or his firm and was therefore not provided with a service by them. Third-party complaints may be investigated by the Commission in two set of circumstances. First, if the complaint is of an inadequate professional service (a "service complaint") the Commission can investigate a third-party complaint only if the solicitor has provided an inadequate professional service to its client and the complainer has been directly affected by that service. One of the later complaints made by the appellant in relation to Mr Brown was a service complaint, but the two complaints that are presently under discussion were not. Secondly, the Commission can accept a third-party complaint where it relates to alleged misconduct or unsatisfactory professional conduct on the part of a solicitor, in such a way that there might be a breach of the Law Society's Conduct Standards (a "conduct complaint"). The Commission dealt with these two types of complaint in paragraphs 1.3-1.5 of their Reasons for Decision. We should observe that the distinction between the two categories does not appear to us to be clearly drawn in these passages. In particular, in relation to conduct complaints, the legal position is not clearly expressed in paragraph 1.5. We mention this matter in the hope that in future Statements of Reasons by the Commission the distinction between the two types of third-party complaint may be stated more clearly.

[14] The Commission's Reasons for Decision then goes on to consider the individual issues raised by the appellant. In relation to the first issue, the Commission begin (paragraph 2.2) by noting that the issue should be categorized as conduct only, and not an inadequate professional service, because there was no suggestion that the alleged failure had any effect on the service provided by the solicitor to the client. At paragraph 2.6 the Commission states that it has had sight of the copy letter of 13 January 2009 with Mr Brown's revivals, and continues:

"the letter does not 'clearly and unambiguously' state that there was a decision to uphold Mr. Saville-Smith's appeal. There are words that are scored out that would give the letter a different complexion on the matter. However, it appears that it was written with the emphasis being originally on the failings of the organization to support Mr.Saville-Smith rather than the focus being on the reasons for the decision not being upheld. The SLCC recognises that the letter could be interpreted as upholding the appeal prior to the changes. However, it can just as easily be a pro forma letter requiring adaption (sic). In any event, it may be that Visit Scotland changed their decision and advised Mr. Brown accordingly. Mr. Brown would then be entitled, and indeed obliged, if requested, to provide advice on the legalities of the decision and the wording of it. It is simply speculation on Mr.Saville-Smith's part that Mr. Brown in any way influenced the decision".

In the following paragraph (paragraph 2.7) the Commission state:

"The SLCC further considers that the letters would have been sent to the client for approval and if Mr. Riddell (sic) or Mrs McLeod had any concerns that the letter did not reflect the decision then they would not have approved the letter prior to issuing it to Mr. Saville-Smith".

The Reasons for Decision continue (paragraph 2.8):

"The SLCC considers that Mr. Brown acted on the instruction of his clients and with their full approval. Even if there was a deliberate alteration to the decision letter, he would be entitled to make it as he is entitled to provide legal advice to his client and to ensure that any correspondence/decision they issued were lawful. There has, therefore, been no breach of the Conduct Standards that could amount to unsatisfactory professional conduct/professional misconduct and the issue is totally without merit".

[15] In relation to the second issue, the Commission's conclusion is expressed as follows (at paragraph 2.12):

"The SLCC considers that the allegation of perjury by Mr. Saville-Smith against Mr. Graham and the suggestion that Mr. Brown colluded in lying to the Tribunal is a serious one.... The SLCC having considered that the letter [to the appellant] was not deliberately altered to reflect anything other than the decision made by Mr. Brown's clients in issue 1..., it does not follow that there has been any misleading of the Tribunal in relation to this letter that was approved by Mr. Graham prior to it being issued to Mr. Saville-Smith. There has been no breach of professional standards that could amount to unsatisfactory professional conduct/professional misconduct and, therefore, this issue is totally without merit".

The appellant's grounds of appeal

[16] Any person who has made a complaint may appeal against a decision of the Commission on the grounds set out in section 21(4). The third available ground, set out in subsection (4)(c), is that the Commission has acted irrationally in the exercise of its discretion. The fourth available ground, set out in subsection (4)(d), is that the Commission's decision was not supported by the facts found to be established by the Commission. The appellant founds on both of those grounds in presenting this appeal. First, he contends that the Commission acted irrationally in the exercise of its discretion; their reading of the texts (in particular the revisals to the letter ultimately sent to the appellant on 14 January 2009) was contradictory, irreconcilable and wrong. In particular, it is said that the Commission failed to take account of the significance between a decision to uphold his appeal and a decision not to uphold his appeal, which was the clear effect of the revisals to the decision letter. Secondly, the appellant argues that the Commission's decision was not supported by the facts that it found to have been established. Instead, it had regard to speculative and imaginary findings. Moreover, Mr. Brown submitted representations which confirmed the appellant's allegations but the Commission did not take these into account. Finally, the Commission failed to establish any facts in relation to the second ground of appeal (the ground relating to the proceedings before the Employment Tribunal).

Legal analysis: rationality

[17] At the outset, we should note that in cases such as the present it is not the court's function to substitute its decision for that of the Commission. The court's task is rather to ensure that the decision made by the Commission is one that such a body, properly directed in law, might reasonably make. If the decision of the Commission is lacking in rationality, as the appellant submits, it will of course fail that test and fall to be reduced. In the present case, however, we are of opinion that the Commission's decision cannot be criticised as irrational. In so holding, we recognize that the question facing the Commission is whether a complaint is "totally without merit", the test specified in section 2(4) of the 2007 Act. That is clearly a low threshold. In the present case, however, when the involvement of Mr. Brown with the internal appeal tribunal is properly analysed, we are of opinion that the Commission's decision that the appellant's first two heads of complaint were totally without merit is one that such a body could properly make.

[18] In considering the rationality of the Commission's decision, it is important to analyse precisely what Mr. Brown did when he considered the draft letter sent to him. His instructions were contained in the e-mail sent to him by Miss McLeod on January 2009, which is quoted in paragraph [7] above. There he was asked whether he was "comfortable" with the draft letter that Miss McLeod had prepared. This makes it quite clear that what Miss McLeod prepared was a draft and nothing more; it was plainly not intended to be the formal intimation of the appeal tribunal's decision. What Mr. Brown was asked to do was to provide professional advice about the terms in which the decision was expressed in the draft letter. He was acting at that time as Visit Scotland's professional adviser, charged with looking after their interests. This is not an unusual situation. Solicitors are frequently asked to advise about the terms of draft documents that their clients intend to issue. When that happens, it is obvious that the solicitor is expected to bring his legal knowledge and experience to bear, to advise whether the terms of the draft document are appropriate, and whether any revisals should be made. In doing so, the solicitor is clearly expected to give advice, where necessary, on the law. Often this will not be a wholly straightforward matter; legal issues are often complex, and it will frequently be impossible to give a definite view one way or the other. In such a case the solicitor is expected to explain the possible implications of any particular course of action or form of wording, including the advantages and possible disadvantages. In all of this, it is his duty to exercise his professional judgment, and to give the client the best advice that he can.

[19] Advice of this nature is very common. It may be given, for example, where a solicitor's client has negotiated draft heads of terms for a contract and wishes to put these into definitive form. It may occur with letters that form part of contractual negotiations. Yet another example, which has a clear affinity to the present case, is where a solicitor is appointed as clerk to an arbiter who is not legally qualified. An arbiter may, for example, be appointed on account of his professional knowledge and experience as an architect or engineer or quantity surveyor. In such a case he will almost invariably appoint a solicitor as his clerk, and he expects the clerk to give him advice on the law in any matter that arises during the arbitration. The arbiter may well arrive at a provisional decision and ask the clerk for advice on its legal aspects. In such a case the arbiter would be expected to take his clerk's advice on the law. We do not think that the present case is significantly different from that common type of case.

[20] Following the e-mail of 12 January, Mr. Brown and Miss McLeod spoke during the afternoon of the following day. Mr. Brown indicated that he wanted to make additional changes to Miss McLeod's draft letter before it was sent to the appellant. This is precisely the sort of revisal, no doubt combined with legal advice, that is expected of a solicitor who is instructed in such circumstances. The revised version of the draft letter was sent the following day, 14 January; the terms of the covering e-mail are set out in paragraph [8] above. In this e-mail Mr. Brown raised a number of legal issues. Once again, however, this is exactly the sort of communication that would be expected when a solicitor is asked to give legal advice and to revise a document prepared by his client. The last sentence of the latter e-mail asks Miss McLeod to let Mr. Brown know whether she has any problems or queries about the letter. This makes clear that Mr. Brown's revised version of the letter is in no way binding on anyone. It contains his suggestions as to how the letter might be improved from a legal point of view. It is entirely up to Visit Scotland to decide whether they wish to accept his advice. If they do so, however, the revised letter becomes theirs, not Mr. Brown's, because they have accepted the advice that he has tendered.

[21] Eventually the revised letter was signed by Mr. Graham. His signature clearly denoted that Visit Scotland were accepting the revisals as a proper expression of their decision. Indeed, until the signed letter was issued, there was no definite decision. All that had happened was that Mr. Graham and Miss McLeod had arrived at a provisional decision, but they were not willing to implement that decision until they had received legal advice about it from Mr. Brown. That was an entirely proper course for them to take. In such a situation, as explained above, it became Mr. Brown's duty to give them legal advice and to suggest such amendments to the draft letter intimating their decision as he thought appropriate. The decision of the appeal tribunal was not Mr. Brown's; nor was it contained within Miss McLeod's original draft. That original draft was merely a provisional version of the decision, awaiting legal advice, and it was only when Mr. Graham and Miss McLeod had considered the revised version of that draft letter and decided to adopt it and issue it that a decision can be said to have been made. Consequently it is incorrect to state, as the appellant's first ground of appeal does, that the original version of the decision letter upheld his appeal; the terms of that letter were merely provisional, awaiting revisal. Nor is it correct to state that the alterations resulted in his internal appeal decision being "reversed"; no final decision was made until the time when the final version of the letter was issued.

[22] The Commission dealt with the appellant's first ground of complaint in paragraphs 2.1-2.8 of its Reasons for Decision. The most significant of these are paragraphs 2.6-2.8. It has to be said that paragraph 2.6 is not well drafted. In particular, the third sentence, dealing with whether the emphasis of the letter is on a failure to support the appellant or on "the reasons for the decision not being upheld", is not easy to understand. The statement that the letter might be "a pro forma letter requiring adaption" (sic) appears quite misplaced; it seems quite clear from Miss McLeod's initial draft that she had prepared it specifically for the appellant. Nevertheless, in paragraph 2.6 there is an acknowledgement that some of the changes would give a different complexion on whether or not there was a decision to uphold the appellant's appeal, and a recognition that the original draft letter could be interpreted as upholding the appeal. These concessions appear justified. In the second last sentence of paragraph 2.6, however, it is stated that Mr. Brown was entitled, and indeed obliged, to provide advice on the legalities of the decision and the wording of it. That appears to us to be clearly correct; it is the ordinary position of a solicitor who is called upon to give legal advice about a draft document.

[23] The main grounds of decision on the first ground of complaint are found in paragraphs 2.7 and 2.8. In paragraph 2.7 the Commission points out that the letter as revised by Mr. Brown would have been sent to Visit Scotland for approval, and if either Mr. Graham or Miss McLeod had any concerns that the letter did not reflect the decision they would not have approved it prior to issuing it to the appellant. That seems to us to be an accurate statement of the legal position. In paragraph 2.8 it is stated that, even if Mr. Brown made a deliberate alteration to the decision letter, that is something that a solicitor is entitled to do, as he is entitled to provide legal advice to his client and to ensure that any correspondence or decision by the client is lawful. On that basis the conclusion is expressed that there had been no breach of the Conduct Standards applicable to Scottish solicitors that could amount to unsatisfactory professional conduct or professional misconduct. In our opinion that statement is clearly correct. Consequently the Commission were entitled to come to the conclusion expressed in paragraph 2.8 that the first ground of complaint is totally without merit; there is nothing irrational about such a conclusion.

[24] The second ground of complaint is dealt with in paragraphs 2.9-2.12 of the Commission's Reasons for Decision. In paragraph 2.12 the Commission acknowledge that the suggestion that Mr. Brown colluded in perjury before the Employment Tribunal is a serious one. It is certainly a serious allegation for the appellant to make standing its possible effects on the solicitor's reputation. The ultimate conclusion, however, is that the letter issued to the appellant was not deliberately altered to reflect anything other than the decision made by Mr. Brown's clients, as discussed in relation to the first ground of complaint. The result was that there had not been any misleading of the Tribunal in relation to the letter, as the letter had been approved by Mr. Graham before it was issued to the appellant. On that basis the Commission concluded that there had been no breach of professional standards that could amount to either unsatisfactory professional conduct or professional misconduct. In our opinion the Commission were fully entitled to come to such a view. The critical point is that the letter was approved by Visit Scotland, in particular by Mr. Graham, before it was issued to the appellant. It follows that the final version of the letter, containing Mr. Brown's revisals, was the true expression of the internal appeal panel's decision. Thus when Mr. Brown adduced evidence before the Employment Tribunal to the effect that the decision of the internal appeal panel was in accordance with the amended letter, he was merely bringing out the true position. This appears to us to be very clear, and we are accordingly unable to say that there is anything irrational about the Commission's final conclusion that the issue was totally without merit; that was a conclusion that the Commission were fully entitled to reach.

Legal analysis: whether the Commission's decision was supported by the facts found by them

[25] The appellant further contends that the Commission's decision was not supported by the facts found by them. In considering this question, it is necessary to consider the whole of the Commission's Reasons for Decision. The critical question is whether, on the facts found, the reasons given by the Commission are adequate to enable a reader to determine why the matter had been decided as it was: Wordie Property Co Ltd v Secretary of State for Scotland, 1984 SLT 345. It is not necessary that the reasons given by the Commission should be drafted to a particularly high standard; a document intimating a decision of this nature may be relatively informal, and all that is required is that it should meet the test just described. It is not fatal to the validity of such a document that some of the passages in it are badly expressed, or indeed incorrect, provided that the findings of fact and reasons taken as a whole satisfy the basic test of making the reasons for the decision intelligible. Subject to these matters, the weight of any particular consideration is a matter for the Commission as decision-maker; it is not the court's function to substitute its decision for that of the Commission.

[26] In relation to the first ground of complaint, paragraph 2.6 appears to us to be open to criticism in the manner indicated at paragraph [22] above. Nevertheless, we think that paragraph 2.6 cannot be considered essential to the Commission's decision. The main reasons for rejecting the first ground are found in paragraphs 2.7 and 2.8, and these appear to us to be quite sufficiently clear. The relevant facts are found in the correspondence the passed between Miss McLeod and Mr. Brown between 12 and 14 January 2009. These were taken into account by the Commission; they are referred to at paragraphs 2.4 and 2.7 of the Reasons for Decision, and in our view they are clearly capable of providing sufficient factual basis for the conclusions reached in paragraph 2.7 and, most importantly, 2.8.

[27] The appellant further contends that the representations submitted by Biggart Baillie LLP were not taken into account. It is apparent from paragraph 2.4 of the Reasons for Decision, however, that the Commission were aware of those representations and took them into account in reaching their decision. It is recorded in that paragraph that the representations were to the effect that Visit Scotland had asked Mr. Brown for advice on the wording of the decision letter and that any revisals made were in line with the decision made by Mr. Graham and Miss McLeod; the letter was sent back for approval to the clients and sent out following such approval. That is in accordance with the ultimate findings of the Commission.

[28] In relation to the second ground of complaint, the relevant factual background is essentially the same as for the first ground. Once again, the correspondence passing between 12 and 14 January 2009 is critical, but on the basis of the letter as a whole, in particular paragraphs 2.4 and 2.7, it is clear that that correspondence was taken into account by the Commission. There is thus an adequate factual basis for rejecting the second ground of complaint in the manner set out in paragraph 2.12. In particular, the evidence contained in the correspondence with Mr. Brown appears quite sufficient to justify the Commission's conclusion that Mr. Graham approved the letter sent to the appellant in its final form before it was issued.

Conclusion

[29] For the foregoing reasons we will refuse the appeal of the grounds presented. The expenses of the appeal, including the application for leave, will follow success.