Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 94

XA40/2014

OPINION OF LADY CLARK OF CALTON

in the application for leave to appeal

by

CAROLINE OLIPHANT

Applicant;

under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007

against

a decision of the Scottish Legal Complaints Commission dated 11 February 2014

Act:  Garrity;  Drummond Miller LLP (for Hamilton Burns WS)

Alt:  Lindsay QC;  Anderson Strathern

14 November 2014

Summary
[1]        The applicant sought and obtained legal advice from a solicitor in the firm of Turcan Connell, Edinburgh (the first solicitors).  The first solicitors acted for her and advised her in relation to employment law issues during a period of months in 2012.  There were a number of meetings and much discussion about many and varied matters relating to the applicant, her employers and circumstances of her employment.  Potential claims which she might have in relation to employment matters were discussed.  Discussions between the first solicitors and the applicant included discussions about time bar.  The first solicitors gave advice to the applicant about completion of the ET1 form and drafted the ET1 form.  There were adjustments and discussion between the applicant and the first solicitors.  The draft ET1 form was considered by the applicant who felt that some points were missing, but she did not send the draft back to the first solicitors for further consideration (par 2.38 - 39 of 6/1 of process).  The applicant submitted the ET1 form as a claim to the Employment Tribunal on 22 June 2012.  On 24 August 2012, the employment tribunal judge requested further and better particulars of the claim from the applicant.  This was submitted by the applicant on 12 September 2012.  On 27 November 2012, at pre‑hearing review, the employment judge concluded at paragraph 59 that the further and better particulars seek:

“…to introduce claims under section 13, 15, 19, 26 and 27 of the EQA, none of which had been previously pled.”

[2]        The applicant appealed to the Employment Appeal Tribunal (the EAT).   At the proceedings in the Employment Tribunal on 27 November 2012 and at the EAT, the applicant was represented by a solicitor from the firm Muir, Myles, Laverty (the second solicitors).  The EAT concluded that the Employment Tribunal did not err in law;  the matters were not referred to in the form ET1 and so were new and no explanation for the matters being raised late was given.  The EAT concluded that the Employment Tribunal was entitled in the exercise of its discretion to refuse amendment. 

The complaint to The Scottish Legal Complaints Commission
[3]        The second solicitors made a complaint on behalf of the applicant to the Scottish Legal Complaints Commission (SLCC).  The complaint referred to a number of matters in relation to the actions/inactions of the first solicitors who had acted for the applicant.  A summary of the applicant’s complaint was prepared by the SLCC (6/1 of process pages 4 – 5).  I was informed that this summary was approved on behalf of the applicant

The decision of the SLCC
[4]        The SLCC by notice in writing to the applicant and the first solicitors explained that it had rejected the complaint in respect of 1(a), 1(b), 2 and 4 as “totally without merit”.  The detailed determination of the SLCC with their reasons is 6/1 of process.

The terms of the complaint relevant to the present proceedings
[5]        In this application for leave to appeal, the applicant challenges the SLCC finding that issues raised in the complaint 1(a), 1(b), 2 and 4 are “totally without merit”. 

[6]        In the proceedings before this court, counsel for the applicant did not seek to rely on issue 4.  For the purposes of this application, the relevant part of the complaint (as drafted with minor typographical errors) which was found to be “totally without merit” by the SLCC is as follows:

“What is being complained about

I, John C Muir of Muir Myles Laverty wish to complain on behalf of our client, Ms Caroline Oliphant, about the actions/inaction of Mr David Ogilvy and the firm of Turcan Connell who acted for her in an employment matter from approximately 16 March 2012 until September 2012, as evidenced by:-

1.         Mr Ogivly failed to provide adequate advice to Ms Oliphant at their meeting held on 16 March 2012 as the ET1 form submitted by the Employment Tribunal, as a result of that advice, was rejected as being incompetently framed.  Specifically, the inadequate advice included:

(a)          Mr Ogivly erroneously advised Ms Oliphant that a personal injury claim could either be raised at the Sheriff Court or the Court of Session, despite the fact that it can be pursued via the Employment Tribunal in a claim for disability discrimination;

(b)          Mr Ogivly failed to include disability discrimination in the 6 Heads of Claim mentioned in the attendance note of the meeting with only an oblique reference to ‘a claim under the protection from harassment legislation’ and ‘a claim for failure by an employer to make reasonable adjustments’.  Both are claims relating to disability discrimination under the Equality Act.  However, the Equality Act 2010 appears not to have been mentioned to Ms Oliphant at the meeting; ...

2.           Mr Ogilvy failed to communicate effectively with Ms Oliphant in that he failed to adequately advise her of the various Heads of Claim that could have been included in her ET1 form.”

Grounds of appeal founded upon by the applicant for leave to appeal
[7]        The applicant applied as a party litigant for leave to proceed under Rule of Court 4.2(5) in respect of a number of proposed grounds of appeal.  By decision of the Lord Ordinary on 13 March 2014 she was granted leave to proceed only with one ground.  That ground, after deletions, stated:

“The Application raises a point of general interest with regard to how the Scottish Legal Complaints Commission deals with competing versions of events at the point of sifting Complaints, and particularly in determining whether all or part of a complaint is ‘totally without merit’ in terms of Section 2(4) of the 2007 Act.  Specifically, the practice of the Scottish Legal Complaints Commission in accepting the terms of Solicitors’ File Notes without ascertaining whether these are agreed by the Complainer may represent an unfair method of dealing with that part of a complaint”

In relation to two other grounds which the applicant sought to pursue in seeking leave to appeal, the Lord Ordinary concluded that those grounds did not appear even arguably to be grounds covered by section 21(4) of the 2007 Act.  The applicant was granted authority to sign her own application only in respect of the above ground.  The ground appears to rely on section 21(4)(b) as none of the other grounds seem relevant.

[8]        It should be noted that the ground of appeal in respect of which leave to appeal is sought makes no reference to anything other than a general complaint about the practice of the SLCC in relation to file notes.

Submissions by counsel
[9]        At the hearing before me, the applicant was represented by counsel instructed by solicitors, Drummond Miller LLP for Hamilton Burns WS (the third solicitors).  The arrangements between these firms is not relevant for present purposes and was not explored.  For convenience, I refer to both firms as the third solicitors albeit different work at different dates may have been carried out by each firm for the applicant.

[10]      In the note of argument for the applicant there was an attempt to go beyond the one ground of appeal by introducing a submission in paragraphs 22 – 26 of the written argument.  This was to the effect that the SLCC is obliged in certain circumstances to hear expert evidence before determination of a complaint averring professional negligence.  In addressing this issue at the outset of his submissions, counsel for the applicant was unable to persuade me that this written submission was encompassed within the only ground of appeal.  Counsel conceded that he would not pursue that line of argument.

[11]      The submissions by counsel for the applicant fell into five chapters.  Counsel considered the circumstances leading to the complaint under reference to the timeline, 17 of process;  the terms of the complaint;  a detailed and very critical consideration of the determination by the SLCC which often strayed very far from the ground of appeal and lastly the legal test to be applied by this court.

[12]      At the conclusion of the hearing, counsel for the applicant moved to amend the application by adding a new ground of appeal.  This was to the effect that there was an error of law in that no reasonable decision maker could have reached the conclusion which they did based on the information before them.  The motion was opposed.  I accepted the submission by counsel for the respondent that this was a completely new ground.  I considered that it straddled a challenge that the decision of the SLCC was unsupported by the evidence and/or a challenge that the SLCC acted irrationally.  I refused to allow any new ground of appeal on the basis that it was too late;  that it would require new submissions about the factual material;  involve reference to the file of the first solicitors which was not lodged in the appeal process;  and new and different case law would require to be considered.  I concluded that the respondents were entitled to proper and timeous notice of the case they required to meet in advance of the hearing of the application.

[13]      Counsel for the respondents adopted his written note of argument, 15 of process in relation to the only ground of appeal before this court.  He submitted there were unchallenged and contemporaneous file notes considered by the SLCC in detail.  The complaints were specific and limited in scope.  No procedural unfairness had been identified and none which had any bearing on the result.

The legislative framework regulating the SLCC determination
[14]      The SLCC was established by the Legal Profession and Legal Aid (Scotland) Act 2007, section 1.  Section 2 makes provision for the receipt of complaints and preliminary steps in circumstances where a complaint has been made “suggesting the professional services provided by a practitioner are inadequate”.  This is referred to as a “services complaint”.  Section 2(4) provides:

“(4)      the preliminary steps are –

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

[15]      In terms of section 17 of the 2007 Act, the SLCC are given power to examine documents (such as solicitors’ files) and demand explanations in connection with services complaints.  There is no provision in the 2007 Act which requires the SLCC to ascertain whether file notes or any other matters are agreed by a complainer before reaching their decision.  In this case the SLCC had access to the files of the first solicitors with explanations about the files and practice of the solicitors from a partner of the first solicitors. 

[16]      Section 21 regulates the appeal procedures.  Section 21(3) provides that an appeal under section 21(1) must be made before the expiry of 28 days except on cause shown.  Section 21(4) sets out the limited grounds of appeal which may be relied upon.  Section 21(4)(b) states:

“that there has been a procedural impropriety in the conduct of any hearing by the Commission on the complaint;”

[17]      Section 32 places a duty on the SLCC to make rules as to practice and procedure and this is amplified in schedule 3.  Schedule 3 makes reference to the rules making provision for the holding of hearings as contrasted with regulating the handling of complaints.

The legal test to be applied by the court
[18]      Counsel for both parties accepted that before granting leave to appeal, this court requires to be satisfied that an appeal in terms of section 21 of the 2007 Act has a real prospect of success or that there is some other compelling reason why it should be heard under reference to Williams v A decision of the Scottish Legal Complaints Commission [2010] CSIH 73.  It was also not disputed that the legal test applied by the SLCC to reject the complaint or part of it as “totally without merit” is a very low threshold test.  The term used in the statutory provisions “totally without merit” in section 2(4)(a) of the 2007 Act is discussed by Lord Kingarth in Council of The Law Society for Scotland v Scottish Legal Complaints Commission [2010] CSIH 24 paragraphs 21‑23.  Having warned about the dangers of putting a gloss on the language of the statute, Lord Kingarth concluded in paragraph 23;

“That said, it is entirely clear from the language used, and the context in which it is used, that section 2(4)(a) does indeed provide a complainer with a low threshold to meet to avoid rejection of his or her complaint before investigation…”

Analysis
[19]      I note the restricted nature of the original terms of complaint made by the applicant to the SLCC in paragraph 1(a) and (b).  The complaint relates to a failure by the first solicitors to provide adequate advice at a meeting held on 16 March 2012.  The complaint is also limited by reference to the attendance note of the meeting to the “six heads of claim”.  The paragraph 2 complaint relates to a failure in communication.  I consider that it is important to bear in mind that this is a case based on such restricted complaint.

[20]      I consider that it is clear from the statutory framework that the statutory provisions envisage and authorise preliminary steps to assess the merits and give the SLCC powers to do this under section 17 of the 2007 Act.  My first impression of the grounds of appeal, as expanded in oral submissions on behalf of the applicant, was that this was a case in which a decision had been reached in circumstances where the official determining the application had access to the first solicitors’ file but the applicant (and/or the second solicitors) did not.  Counsel for the applicant conceded in the course of his submission that was not the case.  He accepted that the file of the first solicitors was mandated to the second solicitors and the second solicitors had access to the files before making the complaint.  I was informed that the third solicitors instructing counsel in the application before me had not seen the file and neither had counsel.

[21]      Counsel for the applicant made it plain that there was no submission in this case that the file notes did not represent genuine contemporaneous records.  There was no attempt in submissions to found upon any specific file note as being inaccurate or inadequate or in some other way deficient.  The complaint seemed to be that the applicant, if she had been asked by SLCC for her comments prior to the determination, might have been able to give information to explain the file notes or somehow give a different or fuller context.  Counsel submitted that this would have informed the SLCC and somehow (in a way which was never explained) would have affected the decision‑making of the SLCC in favour of the applicant.  I was unable to understand how it could possibly be asserted that the decision of the SLCC might, would or should have been different if the SLCC had ascertained whether the file notes are agreed by the complainer, before reaching that decision.

[22]      In a submission on behalf of the applicant, which went beyond the terms of the ground for leave to appeal, counsel also criticised the procedure adopted by the SLCC.  This was on the basis that information by way of letter by a solicitor from the first solicitors explaining or commenting on the file and other matters was considered by the SLCC.  The submission by counsel was that the letter and comments were not provided to the applicant for comment prior to the determination.  I was not persuaded that the SLCC were under any duty to proceed in the way put forward on behalf of the applicant.  In any event this submission was not directed to the terms of the ground of appeal.

[23]      There were other varied criticisms made of the SLCC determination but these strayed very far from the ground of appeal and I was not persuaded that they supported that ground in any way.

[24]      It was not difficult to conclude in this case that even with a very low test the ground of appeal does not have any real prospect of success.  There seems to be nothing more than general assertion that in this case there was unfair procedure in the manner specified in the ground of appeal.  There was no foundation in the submission to support a conclusion that the allegedly unfair procedure adversely affected the applicant or the outcome of the decision-making in relation to the specific grounds of complaint rejected by the applicant.

[25]      I also do not consider that the ground of appeal in this case provides a focus for any more general consideration of the procedure of the SLCC.  I consider this would be an academic exercise in this case.

[26]      There is another issue.  As I received no submissions from either party about this issue, I have not taken this into account in my decision.  I merely make the obiter observation that the statutory ground of appeal in the 2007 Act, section 21(4)(b) appears to be limited to a procedural impropriety in the conduct of any hearing.  Prima facie, the task of the SLCC at the preliminary sifting stage cannot be categorised as a “hearing” as envisaged in the legislation.  If that is correct the ground of appeal formulated by the applicant could never succeed.

The post avizandum by order hearing
[27]      During the course of oral submissions at the hearing in the application for leave to appeal, I was not given any legal submission by counsel for the applicant bearing upon the legal issue raised in paragraph 1(a).  At the end of the hearing, I asked for written clarification to be submitted at a later date after the oral hearing.  I asked for this as it was not clear to me whether there was any dispute between the parties about the legal issue relating to the scope of jurisdiction of the employment tribunal in relation to jurisdiction to award damages for personal injury.  After avizandum, I received through the clerk written submissions from counsel for both parties.  This confirmed that there was no dispute about the law in relation to this issue as between the parties.  Counsel for the applicant however attempted to introduce new grounds of appeal in the written submissions.  Unsurprisingly there was objection by counsel for the respondent.  I put the case out by order. 

[28]      A motion was enrolled on behalf of the applicant to permit the applicant to add additional grounds of appeal.  At the by order hearing, this motion was opposed by counsel for the respondent.  Counsel for the applicant submitted that as a party litigant, the applicant had difficulty in framing the grounds of appeal and had difficulty in obtaining legal aid to obtain representation.  I was informed that counsel had been instructed to provide an opinion about the prospects of success in August 2014.  I note that no attempt was made in this case to seek postponement of the hearing set down for 24 September 2014.  I bear in mind that this complaint dates from events in 2012.  By August 2014 the applicant appears to have obtained the services of the third solicitors and the assistance of counsel.  I consider that in a case in which the substantive hearing has been held and completed, this motion to add additional grounds of appeal came far too late.  In my opinion no good reason was given for the delay.  It is not sufficient to say that a party litigant had difficulties as a party litigant or that new issues had been identified (during and post hearing) by counsel.  Counsel for the applicant sought to persuade me that the new issues could be dealt with merely by considering the written submission in relation to the motion.  I regarded this submission as unreasonable and completely unrealistic.  It was obvious that the respondents would seek to answer new grounds of appeal and seek further oral submissions if new grounds were most unusually allowed post hearing.  In addition, I consider that there is merit in the criticisms by counsel for the respondent that some matters raised in the grounds of appeal in the motion were not matters which were raised as part of the original complaint to the SLCC.  I note that it is submitted in the proposed new grounds that adequate advice should have included clear written detailed advice.  The proposed new grounds also include criticisms of the absence of critical facts and irrational decision‑making by the SLCC.  I am in no doubt that these are new and different grounds of appeal which would require new submissions and a new hearing. 

[29]      I note also that the third solicitors for the applicant lodged the file notes and further papers in advance of the by order hearing.  The purpose of this was unclear as the file notes were not available as productions in the substantive hearing before me to consider the application for leave to appeal.  I do not consider that any of this is an acceptable way to proceed bearing in mind that the applicant not only formulated a ground of appeal but counsel advanced submissions in support of that ground of appeal at a hearing to consider that ground of appeal.  Although counsel for the applicant attempted throughout the hearing and thereafter to advance new and different grounds of appeal, he submitted that the ground of appeal properly before the court was not only arguable but was well founded.  I can understand that counsel for the applicant may have been placed in a difficult position because of the way in which the application developed with the ground of appeal first being framed and put forward by the applicant.  Nevertheless I consider that the court proceedings take place within a framework according to recognised rules and procedures which includes early identification of the grounds of appeal which an applicant wishes to argue.  The respondents are entitled to some notice about what grounds of appeal they require to meet in submission.  The proceedings are adversarial and due notice is integral to the proceedings.  Fairness requires a consideration of the interests of both parties.  The respondents are entitled to make their preparation in advance in relation to the case framed in the ground of appeal and not to be faced with a constantly changing landscape of legal issues.  I consider that counsel for the respondents dealt with the developments in the case with commendable patience.  

Decision
[30]      For the reasons given, the opposed motion of the applicant to allow additional grounds of appeal and leave to appeal are refused.