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Cite as: [2019] ScotCS CSIH_27

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2019] CSIH 27

XA95/18

Lord Menzies

9 April 2019

OPINION OF THE COURT

delivered by LORD MENZIES

in the Application for Leave to Appeal

JOHN GORDON INNES

against

SCOTTISH LEGAL COMPLAINTS COMMISSION

Appellant: Party

Respondent: Watt, (sol adv); Brodies LLP

Applicant

Respondent

[1] This is an application to this court under section 21 of the Legal Profession and Legal

Aid (Scotland) Act 2007, for leave to appeal against a decision of the Scottish Legal

Complaints Commission dated 25 September 2018.

[2] That decision determined that the two issues of complaint raised by the applicant,

Mr Innes, against Ms Joanne Gillies of Pinsent Masons LLP on a complaint form received by

the SLCC on 12 February 2018 were each time barred in terms of Rule 7 of the Rules of the

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Scottish Legal Complaints Commission 2016 (amended December 2016) and that none of the

three factors listed in Rule 7(4) applied.

[3] By reason of section 4(1) of the 2007 Act, the SLCC was therefore required not to take

any further action in relation to the complaint. Apart from such investigation as was

necessary for the Commission to perform its sifting function with regard to time bar, there

has therefore been no investigation into the substance of the applicant’s complaints.

[4] These complaints comprised two issues which are set out in full at paragraph 1.3 of

the decision. These are stated in the decision to have been agreed with the applicant and

there is no suggestion that they were not so agreed. Both issues related to the conduct of

Ms Gillies and/or Pinsent Masons in a litigation raised by the applicant against an

individual, Mr X, in respect of a written guarantee to repurchase shares and repayment of a

bank loan in which litigation Ms Gillies and/or Pinsent Masons acted on behalf of the

defender (ie the applicant’s opponent).

[5] The first issue was stated in the following terms:

“Ms Gillies and/or Pinsent Masons LLP acted in a conflict of interest as they acted

against me, an established client of the firm, and argued against a contract which was

created by them dated November 2008.”

[6] The second issue was stated to be that Ms Gillies and/or Pinsent Masons LLP

inaccurately provided false statements of fact during the court action in eleven specified

respects. Each of these individual respects, which are set out in the decision, relates to

denials made in the course of the defences lodged as part of the written pleadings in the

court action. The applicant was unsuccessful in that action, the action being dismissed after

debate on the relevancy of the applicant’s pleadings. He sought leave to appeal to the Court

of Session but leave was refused on 11 November 2015.

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[7] The Commission considered each of these issues separately but its reasoning in

respect of each was essentially the same. It reached the preliminary view that the alleged

occurrence of professional misconduct occurred prior to 11 November 2015 as this was the

date on which the applicant’s application for leave to appeal was refused and that the

applicant would have known about or should reasonably have been aware of each issue

before November 2015 as Ms Gillies and the firm were representing the defender prior to

this date. The Commission sought comments on its preliminary view. Unsurprisingly the

firm agreed with it and the applicant disagreed with it. In his letter responding to the

Commission’s preliminary view dated 24 July 2018, he argued that Ms Gillies’ involvement

continued after November 2015. In particular he stated that she “acted to obstruct” an

appeal to the Supreme Court on 4 February 2016 and she instituted bankruptcy proceedings

against the applicant in order to recover an award of judicial expenses, which proceedings

were ongoing in September or October 2017.

[8] The SLCC considered the applicant’s and the firm’s responses and concluded that

the applicant would have been aware of both issues of complaint prior to November 2015.

The relevant date for the consideration of a conduct complaint was the date on which the

conduct complained of occurred. It went on to consider whether there were any exceptional

reasons why the complaint was not made sooner but the applicant provided no information

in this regard in relation to either issue and the Commission itself could not identify any

exceptional reasons.

[9] The Commission went on to consider whether there were any exceptional

circumstances relating to the nature of either or both issues of complaint and concluded that

there were none. Finally, It considered whether it would be in the public interest to proceed

with considering either or both issues of complaint, despite their being made outwith time

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limits. Despite the applicant’s submissions to the contrary, the Commission concluded that

both issues of complaint related specifically to this transaction and there was no indication

of a wider impact on members of the public. There was no other information available

which represented circumstances which indicated it would be in the public interest to

proceed.

[10] The applicant may only proceed with an appeal to this court against a decision of the

Commission with the leave of this court in terms of section 21 of the 2007 Act and may do so

only on any ground set out in sub-section (4) of that section. The test to be applied in an

application for leave to appeal is whether the appeal has a real (or realistic) prospect of

success or whether there is some other compelling reason why it should be heard - Williams

v SLCC 2010 CSIH 73, Mathews v SLCC 2015 CSIH 68. It is for the applicant to satisfy the

court that this test is met - B v SLCC 2016 CSIH 48. The question which must be answered in

favour of the applicant if he is to succeed was put as follows in a recent decision of this court

(X LLP v SLCC 2017 CSIH 73):

“Is it arguable, or is there a reasonable prospect of persuading a court, that the

Commission went so wrong that its error must be categorised as an error of law or

that it exercised its discretion irrationally?”

[11] There was a flavour in some of the applicant’s written and oral submissions to the

court of an argument based on irrationality, and Mr Innes indicated that he regarded the

Commission’s determination on whether it was in the public interest that his complaint

should be investigated as irrational. In this regard it should be understood that for a

decision of a public body such as the Commission to be irrational in law, the test is not

simply that the applicant or indeed an interested member of the public regards it as

irrational. Irrationality in this context has a more demanding and more objective meaning in

law. As the court observed in B v SLCC at paragraph 9, the question is:

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“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?”

[12] In considering the question of time limits and in particular when addressing the

circumstances in which time limits may be extended, the Commission is exercising a

gatekeeping or sifting function which has been entrusted to it by Parliament. It is important

to keep in mind what this court has said in this regard in the past. Mr Innes drew the court’s

attention to the Opinion of the Court delivered by Lord Carloway in Murnin v SLCC 2013

SC 97 at paragraph 30 and I have had regard to that, but it is important to bear in mind also

what the court said at paragraph 31. This is, I consider, worth repeating here in full:

“The first respondents are a specialist body to whom Parliament has given the

power, under the 2007 Act, to sift complaints against solicitors. Parliament has given

them a specific power to make rules concerning their procedures and, in particular,

to set time limits for the making of complaints and the circumstances in which these

time limits may be extended (2007 Act, section 32(1), Schedule 3 para 2). The first

respondents have introduced a general rule that they will not accept complaints

which are older than a year unless they consider that there are circumstances which

they consider to be exceptional. It is, in the first instance, for the first respondents to

determine what circumstances fall into the category of ‘exceptional’, bearing in mind

the definition of that term as an ordinary English adjective (see R v Kelly

Lord Bingham CJ (page 208)). In order to have an appreciation of what is

exceptional, it is necessary to know what is common or normal. As the specialist

body seeing all the complaints, ranging from the frivolous to the most grave, the first

respondents are in the best position to gauge when a complaint fits into the

exceptional category such that, in the public interest, it should be considered even if

not made in time. The first respondents must be accorded a degree of institutional

respect by the court in taking decisions in this area of competence.”

[13] Having regard to the two issues of complaint set out in the decision letter and

according the Commission the degree of institutional respect to which reference has been

made, I cannot see that any of the four grounds referred to in section 21(4) can possibly

apply in the present case.

[14] I am not persuaded that the applicant has a real (or realistic) prospect of success in

persuading a court that the Commission’s determination in relation to its sifting function

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regarding time limits was based on any error of law. The Commission addressed itself to

the correct legal test and concluded that all the specific complaints made by the applicant

related to conduct alleged to have occurred in the course of the court action brought by him

against Mr X which concluded at the latest in November 2015. I can find no error of law in

this conclusion.

[15] Mr Innes submitted that Ms Gillies and/or Pinsent Masons continued to act after

November 2015 and in particular acted against him in the bankruptcy proceedings which

post-dated that date. However, these were different proceedings concerned with a quite

different remedy, namely the enforcement and recovery of an award of judicial expenses

against Mr Innes. The actions of Ms Gillies and/or Pinsent Mason after November 2015 do

not form part of the complaint about conduct.

[16] There is no suggestion of procedural impropriety by the Commission, nor can I find

any from the papers before me. No part of the decision displays any irrationality in the

exercise of the Commission’s discretion - a discretion conferred on it as a specialist body by

Parliament - and I can find no part of the Commission’s decision which was not supported

by the facts found to be established (to the extent that this ground is applicable to this

application). The Commission found that the conduct complained of occurred before

November 2015. The complaint to the Commission was received on 12 February 2018, well

over two years after this date. Rule 7(1)(a) of the Commission’s 2016 Rules provides that in

such a situation a conduct complaint will not be accepted if, in the opinion of the

Commission, it is made more than one year after the date of the professional misconduct or

unsatisfactory professional conduct complained of. The Commission was entitled to reach

the conclusion which it did on this point.

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[17] The Commission then quite properly went on to consider whether it should accept

the complaint notwithstanding that it was not made within the time limit, on the basis of

any of the discretionary factors listed in Rule 7(4) of the 2016 Rules.

[18] The applicant did not identify any exceptional reasons why the complaint was not

made sooner, either in his response to the Commission or before this court, and the

Commission could find none. Similarly, the applicant provided no information about any

exceptional circumstances relating to the nature of the complaint and the Commission could

find none.

[19] Finally, the applicant suggested in his email of 24 July 2018 that the circumstances

were such that he believed it would be in the public interest to review his complaint as

Ms Gillies’ “flagrant dishonesty and reckless disregard for the Law Society of Scotland’s

rules needs to be addressed and he believed that the firm needed to address their systems to

ensure this does not occur again.” The Commission disagreed and decided that both issues

of complaint related specifically to this transaction and there was no indication of a wider

impact on members of the public.

[20] I can find nothing in the exercise of the Commission’s wide discretion on these three

factors which could be described as perverse or irrational as I have already explained this

term to mean. The Commission was entitled to reach the conclusions which it reached on

each of them. It follows that I am not satisfied that this appeal has a real (or realistic)

prospect of success nor can I find any other compelling reason why it should be heard.

[21] For these reasons, I refuse the present application.