Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 48

XA26/16

Lady Paton

OPINION OF THE COURT

delivered by LADY PATON

in the application

by

Ms B

Applicant;

against

THE SCOTTISH LEGAL COMPLAINTS COMMISSION

Respondent:

Act:  Watts;  Russel + Aitken LLP

Alt:  O’Neill, sol adv;  Brodies LLP

17 June 2016

[1]        This case concerns the Commission’s sifting of a late complaint.  The complaint comes from an expert witness, Professor Weller, who states that the applicant’s solicitors firm failed to pay his fee of £15,000.  The applicant contends that the Commission erred in allowing the late complaint through the sift.  The applicant according seeks leave to appeal against their sifting decision in terms of section 21(4) of the Legal Profession and Legal Aid (Scotland) Act 2007.

[2]        It is for the applicant to persuade this court that such an appeal would have “a real [or] a realistic prospect of success” (Lord Drummond Young at paragraph [3] of Baird Matthews v The Scottish Legal Complaints Commission [2015] CSIH 68).  The applicant relies upon error of law (section 21(4)(a)) and/or irrationality (section 21(4)(c)).  It is argued that the Commission, when applying rule 7 of the Rules of the Scottish Legal Complaints Commission (amended in August 2015), erred in law and further acted irrationally in the exercise of their discretion when they allowed the late complaint through the sift in terms of rule 7(3).

[3]        The relevant dates are as follows.  On 7 November 2012 Professor Weller rendered a fee note which was, in effect, a “cancellation fee” of £15,000.  The fee note indicated that the fee was to be paid within 2 months.  The fee was not paid, as the applicant and her firm do not accept that it is due.  By January 2013 the 2 month period had elapsed.  That was therefore the time of the alleged misconduct.  On 26 August 2015, some 2½ years later, the Professor submitted a complaint to the Commission.  By letter dated 2 September 2015, the Commission warned the applicant’s firm about the complaint, which the Commission regarded at that stage as “premature” as the Professor had not first approached the firm direct.  On 19 October 2015 the Professor returned to the Commission, explaining that he had received no reply to his direct approach to the firm.  By letter dated 7 January 2016 the Commission intimated the Professor’s complaint to the applicant and her firm, and invited comments.  A letter was also sent to the client relations manager.  The combination of the two letters suggested a deadline for comments of 21 January 2016.  Rather confusingly, on 15 January 2016 a further letter was sent from the Commission to the applicant’s firm’s client relations manager, pointing out that the complaint was possibly time‑barred in terms of rule 7 (which sets a 1‑year deadline within which complaints should be tendered).  Again comments were invited.  As counsel for the applicant explained in submissions today, the result of the three letters (i.e. two dated 7 January and one dated 15 January 2016) was to make the solicitors assume that the time‑bar point had taken precedence and was being properly considered by the Commission.  Accordingly it was assumed that no comments in relation to other points were required.  None were in fact submitted.

[4]        On 26 February 2016 the Commission issued their determination, namely that they would receive the complaint, although late;  they would process it;  and they would deem it not time‑barred.  The Commission explained as follows:

1.10      No comments were received by the practitioner and the 14 day deadline for comments expired on 29 January 2016.

1.11      Professor Weller submitted comments by letter at a later date, received by the SLCC on 3 February 2016.  In this letter he states his involvement in the case from July 2009.  He also states that his solicitors were informed on 8 May 2015 that the fee note would not be paid.  His position is that Miss [B] stated that she gave him “four clear days’ notice of cancellation of the proof” which he denies.

1.12      Although no comments were received by the practitioner and Professor Weller has provided a breakdown on his involvement and what his position in the matter is, the SLCC considers the nature of the complaint, given the level of fees being claimed and the alleged failure to pay the fee, that this complaint should be accepted.  The SLCC considers that it is 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.  In addition, the SLCC considers the solicitor’s trust and personal integrity may come into question as they have a duty to pay a professional’s fees.  The evidence would suggest that the solicitor may have failed to pay a significant sum of money and has not provided any comments to the SLCC on the issue [Ms O’Neill for the respondent today advised that this paragraph was based on rule 7(3)(c).]

1.13      The SLCC also considers that there are exceptional reasons as to why this complaint was not made earlier.  Professor Weller has stated that he has been in extensive discussions with his own solicitor about the matter and negotiating with the firm.  However, this came to an end on 8 May 2015.  The SLCC has had sight of an email, of this date, from Professor Weller’s solicitor advising him that the firm were not prepared to settle.  [Ms O’Neill for the respondent today advised that this paragraph was based upon rule 7(3)(a).]

1.14      For the reasons outlined above, the SLCC considers that this complaint is not time‑barred under section 4(1) of the Legal Profession and Legal Aid (Scotland) Act 2007.

[5]        This is the determination challenged by the applicant.  The sole issue for the court today is whether the applicant has a “real [or] a realistic prospect of success” in persuading the appeal court that the Commission’s determination in paragraphs 1.10 to 1.14 (based on rule 7(3)(a) and (c)) represents an error of law or an irrational exercise of their discretion.  Importantly, there is no challenge on the basis of procedural propriety (such as failure to allow further time for comments, if requested;  or breach of natural justice, including principles such as audi alteram partem).  The sole grounds are error of law and/or irrational exercise of discretion.

[6]        Dealing then with those matters, (i.e. error of law and irrational exercise of discretion) what the Commission were faced with was the following:

A complaint by a professor who had been instructed as an expert in a litigation, who had issued a fee note to the solicitors’ firm which was prima facie regular and was for the sum of £15,000, who had sought payment of that fee and who, while late in coming to the Commission, had proffered an explanation for that lateness, which was prima facie plausible, namely that his solicitors had been engaged in negotiations with the applicant’s firm until 8 May 2015 when negotiations broke down.  Some 3 or 4 months had then passed before he submitted his complaint to the Commission on 26 August 2015.

[7]        The Commission had no information to contradict those assertions.  In particular they had no information to suggest that the fee was excessive, or that the fee was not due, or that there had been no negotiations until May 2015 but rather a clear indication at the outset from the applicant’s firm that the fee was not going to be paid as it was not due.

[8]        Standing the information which they had, the Commission were, in my opinion, entitled, first, to conclude that this was not a situation where “there had been no or little activity between the discovery of the misconduct and the making of a complaint” (Murnin v Scottish Legal Complaints Commission 2013 SC 97 at paragraph [32]).  Secondly, to conclude that what was complained of was not a situation “regularly, or routinely, or normally encountered” namely a situation where a professional expert instructed by lawyers would not be paid (see again Murnin cit sup).  Thirdly, to consider the matter of some public importance for the reason given in paragraph 1.12 of their determination, namely that it is in the public interest to proceed, due to the importance of professional witnesses being able to rely on solicitors paying for the use of their services, and moreover there might be a question of a solicitor’s trust and personal integrity.  Finally, the Commission were entitled to conclude that rule 7(3) sub‑paragraphs (a) and (c) applied.

[9]        It will be seen that I have been unable to detect any error of law in the Commission’s approach nor, in my view, can it be said to have been a determination which no reasonable body, properly instructed, on the information available to them, and applying the law correctly, could have reached.  It follows that I am not persuaded that the appeal has a realistic prospect of success.

[10]      It is perhaps a matter of some regret that there is no second chance for representations or comments to be made.  However, standing the terms of the 2007 Act, the 2015 rules, and authorities such as Murnin, there appears to be no such option available.  In all the circumstances the application is refused.