Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 9

XA88/15

OPINION OF LADY CLARK OF CALTON

in the Application

by

S Y

Applicant;

for

Leave to appeal against a decision of the Scottish Legal Complaints Commission

Respondents:

Act:  Party

Alt:  Crawford, QC;  Harper Macleod LLP

16 December 2015

History
[1]        This is an application by SY for leave to appeal under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 (“The 2007 Act”).

[2]        The history of this case is that the applicant submitted a complaints form to the Scottish Legal Complaints Commission in July 2014 relating to a solicitor from the firm McGill and Company.  There were five issues identified in the complaint.  The Commission determined that issue 1 was not time-barred but that issues 2, 3 and 4 were time-barred and issued a section 4(1) determination to that effect.  After taking some preliminary steps, the Commission thereafter determined that issues 1 and 5 were “totally without merit” in the sense defined by the 2007 Act.  The Commission issued a section 2(4) determination to that effect.  The determinations were sent to the applicant on 21 November 2014. 

The appeal by the applicant
[3]        The 2007 Act in section 21 sets out a statutory time limit which applies to an appeal from the decision of the Commission.  Section 21(3) states:

“An appeal under sub-section (1) must be made before the expiry of the period of 28 days beginning with the day on which notice of the decision was given to the complainer and the practitioner;  but the court may, on cause shown, consider an appeal made after the expiry of that period.”

[4]        I am satisfied that the appeal in this case was not made timeously in terms of the 28 days statutory provision.  As I understand the history, the applicant was unrepresented and in order to initiate the appeal process, required to obtain an order from the court in terms of Rule of Court 4.2(5) which states:

“Where a party litigant is unable to obtain the signature of counsel or other person having a right of audience or an agent… he may request the Deputy Principal Clerk to place the document before the Lord Ordinary for leave to proceed without such signature;  and the decision of the Lord Ordinary shall be final and not subject to review.”

[5]        The applicant made such a request on the 28^th day after the decision of the Commission was intimated.  The Lord Ordinary, Lady Stacey, granted leave to proceed in terms of the rule on 9 January 2015.  The application was then sent to the applicant with a covering letter dated 9 January, which is 15/2 of process.  In paragraph 2 of said letter it is stated:

“You may now sign the application and proceed to lodge it with the Inner House section at this court.  You are required to lodge a court process in terms of Rule of Court 4.4 along with the appropriate court fee of £202, please be aware that there may be further fees due throughout your application as it proceeds.  Details about Exemption from Court Fees are available from the Inner House staff.”

Further information and a telephone contact number were given in said letter.

[6]        The Lord Ordinary, Lady Stacey was not invited to consider the implications of section 21 of the 2007 Act and it was not her responsibility to take a decision about whether the appeal could be considered on cause shown after the expiry of 28 days.  The applicant did not have leave to proceed without a signature in terms of rule of court 4.2(5) within the 28 days.  But in the circumstances of this case, I would not have concluded that was fatal to his appeal application if the applicant had proceeded to lodge the application and comply with the appeal procedure explained to him in said letter dated 9 January 2015. 

[7]        The difficulties for the applicant arise because of the subsequent delay.  It was not until 9 September 2015 that the application for leave to appeal was registered after being lodged with the court by the applicant, I was informed that at that date the applicant was fee exempt and therefore no fee was required to be lodged with the application.

Submissions
[8]        In his written note of argument addressing time limits in relation to section 21(3) of the 2007 Act, the applicant sets out in detail the difficulties which he said he experienced.  He explained the financial, personal and legal difficulties and he prayed in aid the public interest in having the type of complaint and its seriousness determined by the appropriate body.  To supplement the information provided in his written note of argument, the applicant also explained in some detail in his oral submissions the efforts which he said he had made to proceed with the appeal.  He contacted the clerk of court by letter dated 21 March 2015.  He contacted new solicitors with a view to obtaining their assistance.  He complained that the solicitors he contacted did not assist him and indeed delayed returning his papers in connection with the appeal.  He was active in trying to sort out his immigration status and also his benefits and became fee exempt.  These difficulties described by the applicant took place against a background of personal problems which included eviction from his family home and a period homelessness.  The applicant stated that it was in the public interest in this case to permit the appeal process to continue as the complaint related to important issues of trust and confidence in the solicitor about whom he had made a complaint.  The applicant asked this court to take all these matters into account and conclude that cause was shown in terms of section 21(3)  of the 1970 Act. 

[9]        In response, counsel for the Commission made reference to the history of the case, in particular the letters of 9 January, (15/2 of process) and 21 March (15/3 of process) and submitted that the applicant was well aware that he required to take steps to pursue the appeal.  The applicant was familiar with instructing solicitors and with legal aid and emergency legal aid.  Counsel submitted that while one might have sympathy with the personal circumstances and difficulties of the applicant, that could not excuse the delay.  Turning to the issue of public interest, counsel submitted that consideration requires to be given to public interest in the sense of the need for certainty and the speedy conclusion of appeals.  Counsel drew attention to the fact that the solicitor about whom complaint had been made by the applicant had been notified almost a year ago that the complaints were not accepted by the Commission.  The solicitor had no knowledge of any appeal because there was no live appeal at this stage. 

Decision
[10]      I have considered the written submissions and the oral submissions carefully.  I explained to parties at the beginning of the hearing that I had also read all the papers including the case authorities submitted as a background to the case. 

[11]      In the applicant’s written submission, the applicant appears to be under the impression that the admitted long delay and failure to obtemper the relevant rules of court in relation to the appeal had been considered and discussed before Lord Menzies at a procedural hearing on 18 September 2015.  I am satisfied however that no judge has yet decided the important issue in relation to section 21(3) of the 1970 Act.  It is unfortunate in the context of this case where detailed written arguments have been submitted relating to the merits of the appeal that this issue was not focussed at an earlier stage of proceedings.  I do not criticise either party for that.  In my opinion, however, it is essential that this issue now be decided. 

[12]      I consider that it is important to bear in mind that it is the Scottish Legal Complaints Commission, and not this court, that is charged with the power and responsibility of assessing, by a sifting process, complaints which are made by members of the public such as the applicant in relation to solicitors.  The 2007 Act tried to balance various conflicting interests.  One of the interests which weighed in the balance is that time limits were set and required to be considered by the Scottish Legal Complaints Commission.  As part of the balancing exercise, the appeal to this court was also limited with a time limit of 28 days set out in the statutory provisions albeit under reference to cause shown for consideration outwith that period.  I consider that the appeal provisions to this court were part of the balancing exercise which took into account, amongst other things, the public interest. 

[13]      The applicant submitted that this is a very important serious complaint which he made and that he wishes it to be investigated.  He submitted that the financial, personal and legal difficulties which he explained to the court caused him problems in relation to the time limits of the statutory appeal process and that he was for a period of months unable to fund the appeal process.  That appears to be the high point of the applicant’s case.  I am not however persuaded that it amounts to cause shown in this case for the purposes of section 21(3) of the 1970 Act.  In my opinion, the letter from the court dated 9 January 2015, 15/2 of process, made it plain to the applicant what he required to do.  While one may sympathise with the applicant about his personal and financial difficulties which he submitted existed, there is an important public interest in court proceedings and other complaints proceedings being progressed timeously.  In relation to the appeal there is a specific statutory time limit of short duration and that is there for a good reason.  I consider that there is significant and unacceptable delay in the appeal process in this case and in all the circumstances the application is refused as it is out of time.