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B AGAINST A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION [2021] ScotCS CSIH_18 (09 February 2021)
URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSIH_18.html
Cite as:
2021 SC 234,
[2021] CSIH 18,
2021 SCLR 185,
[2021] ScotCS CSIH_18,
2021 SLT 968,
2021 GWD 22-306
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 18
XA106/19
Lord Menzies
Lord Malcolm
Lord Doherty
OPINION OF THE COURT
delivered by LORD DOHERTY
in the appeal under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007
by
B
Appellant
against
A decision of the Scottish Legal Complaints Commission dated 15 July 2019 and
communicated to the appellant on 26 July 2019
Appellant: J A Brown; Blackadders LLP
Respondent: C O'Neill QC (Solicitor Advocate); Brodies LLP
9 February 2021
Introduction
[1]
In early 2012 the Law Society of Scotland ("the Law Society") appointed a judicial
factor to a firm of solicitors in Wick, the Highland Law Practice ("HLP"). At that time TS
was a client of HLP and HLP acted for her in a litigation. The judicial factor immediately
wound up the business of HLP. She sought to make arrangements with other solicitors to
take over responsibility for client files, papers and funds which had been held by HLP in
2
order to minimise prejudice to the clients. The appellant carried on practice as a solicitor
and he was willing to take HLP's chamber business. He did not provide litigation services
and he was not registered for legal aid. He indicated to the judicial factor that he could not
take on the HLP litigation work (some of which was legally aided). However, the judicial
factor encountered difficulty in finding a solicitor locally who was prepared to take the
litigation work. At the judicial factor's suggestion it was arranged that the appellant would
employ M, one of the solicitors who had worked for HLP, to do the litigation work. M was
registered to do legal aid work. On about 5 March 2012 all files and papers from HLP were
transferred to the appellant and M commenced employment with him. The files were
transferred by the judicial factor in the exercise of her powers and without client mandates,
on the basis that the appellant's firm would thereafter notify the clients, which it did.
Unfortunately, the arrangement with M did not work satisfactorily. About 5 months later
she left the appellant's employment without giving any notice. Her practising certificate
was suspended. Prior to leaving she took no steps towards arranging a transfer of litigation
business to another firm. Without M, the appellant was not in a position to provide
litigation or legal aid services. He identified a firm of solicitors, ML, which provided
litigation services and which had practitioners who were registered for legal aid. He
arranged for them to take over the litigation files with immediate effect, on the
understanding that they would write to each client advising that M had left the appellant's
firm; that the appellant's firm could no longer provide litigation services or legal aid; that
ML had the files and were prepared to act, but that it was for the client to select a solicitor;
and that if the client preferred to instruct a different solicitor their file would be passed to
that solicitor.
3
[2]
On 7 October 2018 TS complained to the Scottish Legal Complaints Commission
("the Commission") about the appellant. For present purposes it is only necessary to refer to
one aspect of the complaint ("issue 3"), viz that her file had been transferred by the appellant
to ML without a mandate from her to do that. In terms of an eligibility decision intimated to
the appellant on 26 July 2019 the Commission found that TS's file had been transferred to
ML in about August 2012 and that TS was aware of the transfer very shortly after it took
place. In terms of rule 7 of the Rules of the Scottish Legal Complaints Commission 2016 (as
amended in December 2016) ("the 2016 Rules"), where the relevant misconduct occurred
before 1 April 2017 the complaint required to be made within 12 months of the client
becoming aware of the misconduct unless there were exceptional circumstances (rule 7(4)).
The Commission determined that issue 3 was a conduct complaint, and that it ought to be
admitted for investigation even though it was made more than 5 years after the misconduct
because the circumstances were exceptional.
[3]
The appellant applied to the court for leave to appeal against that determination.
The application for leave was served upon the Commission, the Law Society, and TS. No
answers were lodged. The court granted leave to appeal. The appellant then lodged an
appeal, serving it on the same parties. Once again, no answers were lodged.
[4]
The Commission intimated to the appellant that it did not propose to resist the
appeal. The appellant lodged a joint minute (no 1) he had entered into with the Commission
which agreed that the appeal should be allowed and that the Commission's determination in
respect of issue 3 should be recalled, with the court substituting a finding that issue 3 was
totally without merit and should not be remitted for investigation. However, subsequently
the appellant lodged a second joint minute (no 2) between him and the Commission which
sought (i) to withdraw joint minute no 1; (ii) allowance of the appeal, recall of the
4
Commission's determination that the circumstances of the complaint in relation to issue 3
were exceptional, and substitution of a finding that it had not been submitted timeously and
should not be admitted for investigation. Joint minute no 2 also incorporated a McAllister
minute (McAllister v Secretary of State for Work and Pensions 2003 SLT 1195) which explained
(under reference inter alia to Murnin v SLCC 2013 SC 97) why it was that the circumstances
could not be said to be exceptional in terms of rule 7(4). On the information now available
to it the Commission considered that insofar as the appellant's conduct was to any extent a
departure from the standards to be expected of competent and reputable solicitors, any such
departure was limited by mitigating circumstances in view of the very difficult situation in
which the appellant found himself when M left.
[5]
On receipt of the motion to allow the appeal the court intimated to the appellant and
to the Commission that it wished to be addressed on a number of matters, including
whether the proposed disposal of the appeal should be intimated to the Law Society and TS.
The appellant and the Commission lodged notes of argument and the appeal was put out for
a hearing.
The relevant statutory provisions
[6]
The Legal Profession and Legal Aid (Scotland) Act 2007 ("the 2007 Act") provides:
"2 Receipt of complaints: preliminary steps
(1)
This section applies where the Commission receives a complaint by or on
behalf of any of the persons mentioned in subsection (2)--
(a) suggesting--
(i) professional misconduct or unsatisfactory professional conduct by a
practitioner other than a firm of solicitors or an incorporated practice;
...
(1A) The Commission must, subject to subsection (3) and sections 3 and 4 and any
provision in rules made under section 32(1) as to eligibility for making
complaints--
(a) determine whether the complaint constitutes--
5
(i) a conduct complaint,
...
... and then
(b) take the preliminary steps mentioned in subsection (4).
...
(2)
The persons are--
(a) as respects a conduct complaint, any person;
...
(4)
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
(or two or all of these things).
...
4 Complaint not made timeously or made prematurely
(1)
Where a complaint referred to in section 2(1) is not made timeously, the
Commission is not to take the preliminary steps referred to in section 2(4) in
relation to it, and is not to take any further action under any other provision of
this Part (except this section), in relation to it.
...
(3)
For the purposes of subsection (1) or section 9A(3)], a complaint is not made
timeously where--
(a) rules made under section 32(1) fix time limits for the making of complaints;
(b) the complaint is made after the expiry of the time limit applicable to it;
(c) the Commission does not extend the time limit in accordance with the rules.
...
21 Appeal against Commission decisions
(1)
Any person mentioned in subsection (2) may, with the leave of the court,
appeal against any decision of the Commission under the preceding sections of
this Part as respects a complaint on any ground set out in subsection (4).
(2)
Those persons are--
(a) the complainer;
(b) the practitioner to whom the complaint relates;
(c) the practitioner's firm;
(d) the employing practitioner;
(e) the relevant professional organisation.
...
(4)
The grounds referred to in subsection (1) are--
(a) that the Commission's decision was based on an error of law;
(b) that there has been a procedural impropriety in the conduct of any hearing
by the Commission on the complaint;
(c) that the Commission has acted irrationally in the exercise of its discretion;
6
(d) that the Commission's decision was not supported by the facts found to be
established by the Commission.
(5)
The Commission is to be a party in any proceedings on an appeal under
subsection (1).
(6)
In this section and in section 22, `decision' includes any determination,
direction or other decision and also includes the making of any report
under section 10(2)(e).
...
22 Appeal: supplementary provision
(1)
On any appeal under section 21(1), the court may make such order as it thinks
fit (including an order substituting its own decision for the decision appealed
against).
...
(4)
A decision of the court under this section is final.
...
32 Duty of Commission to make rules as to practice and procedure
(1)
The Commission must make rules as to its practice and procedure and, as soon
as practicable after making or varying those rules, publish them and make
them available to the public in a form which is readily accessible.
(2)
Schedule 3 makes further provision as respects provision which--
(a) must be included;
(b) may in particular be included,
in the rules.
...
Schedule 3 RULES AS TO COMMISSION'S PRACTICE AND PROCEDURE
...
2
The rules as to the Commission's practice and procedure made under
section 32(1) may in particular include provision--
(a) fixing time limits for the making of complaints against practitioners or
relevant professional organisations or the stages of its investigation under
Part 1;
(b) as to--
(i) extension of any time limit fixed by it under the rules;
(ii) the circumstances in which such extension may be made;
..."
[7]
Rule 7 of the 2016 Rules provides:
"7. Time limits
(1)
For a conduct complaint where the date of the professional misconduct or
unsatisfactory professional conduct or conviction complained of was prior to
1 April 2017... and subject to the provisions contained in Rule 7(4), the
following rules will apply:
(a) A conduct complaint will not be accepted if, in the opinion of the
Commission, it is made more than 1 year after the date of the professional
misconduct or unsatisfactory professional conduct or conviction
complained of.
7
...
(3)
In determining whether the period of 1 year mentioned in paragraph (1) or the
period of 3 years mentioned in paragraph (2) has elapsed, there is to be
disregarded any time during which the complainer was, in the opinion of the
Commission, excusably unaware
(a) of the professional misconduct or unsatisfactory professional conduct or
conviction in question ...
...
(4)
Notwithstanding paragraphs (1), (2) and (3) above, the Commission may accept
a complaint that has not been made within the time limits set out in these
paragraphs if there are, in the opinion of the Commission:
(a) exceptional reasons why the complaint was not made sooner;
(b) exceptional circumstances relating to the nature of the complaint; or
(c) the circumstances are such that the Commission considers it to be in the
public interest to accept it."
Submissions for the appellant
[8]
Mr Brown moved the court to allow the appeal. The suggested misconduct had been
the transfer of TS's file to ML without having obtained a mandate from TS. It had occurred
in about August 2012 and TS had been aware of the transfer very shortly thereafter.
However the complaint had not been made until October 2018, more than 6 years later. It
was very clearly time-barred in terms of rule 7 and there were not exceptional reasons why
the complaint was not made sooner, or exceptional circumstances relating to the nature of
the complaint, or circumstances in which it was in the public interest for the Commission to
accept it though late. Reference was made to R v Kelly 2000 QB 198 and Murnin v SLCC 2013
SC 97. If in the whole circumstances transferring the file without first obtaining a mandate
had been misconduct, there had been powerful mitigating circumstances given the very
difficult situation in which the appellant had found himself when M had walked out.
[9]
TS and the responsible professional body, the Law Society, had not lodged answers.
Accordingly, neither had a locus to resist the appeal. There was no need to inform them of
the Commission's decision not to resist the appeal. The Commission was acting responsibly.
8
As a result of the appeal the Commission had realised that it had been wrong to determine
that there were circumstances which justified the complaint being accepted more than
5 years after the misconduct complained of. There were pragmatic reasons for not inviting a
responsible professional body or a complainer to resist an agreed disposal. The practical
benefit of a settlement would be diminished if third parties were permitted to intervene after
an agreement was reached. It would introduce uncertainty and could result in unnecessary
and disproportionate expense being incurred.
[10]
Mr Brown recognised that a complainer might consider that there was no need to
lodge answers to an appeal because he or she might expect the Commission to defend its
decision. Moreover, if both the Commission and a complainer successfully opposed an
appeal a complainer's participation might be seen as unnecessary, and the unsuccessful
appellant might not be found liable to pay the complainer's expenses. Mr Brown
acknowledged that the appellant was not asking the court merely to quash the
Commission's decision. He was asking it to exercise the power in section 22(1) of the
2007 Act to substitute its own decision. He submitted that it would be very unfortunate if
processing of the complaint had to begin again. It was not disputed that the court would be
entitled to order intimation to TS before it decided whether it was prepared to substitute its
own decision for the decision appealed against, but Mr Brown submitted that it ought not to
do so.
[11]
Mr Brown further submitted that while both the application for leave to appeal and
the appeal had been served on all interested parties, in fact there had been no need to serve
the appeal on the interested parties because it could be assumed from the fact that they did
not oppose the application for leave that they did not oppose the appeal. The procedural
judge had often proceeded on the basis that the appeal need not be served on such parties.
9
Decisions of the procedural judge in the exercise of the power in rule 41.27(1)(a)(i) should
balance appropriate vigilance to see that parties with an interest are given the opportunity to
be heard with concern for the efficient and economic conduct of the appeal.
Submissions for the Commission
[12]
Ms O'Neill confirmed that the Commission agreed that the appeal should be allowed
and that the disposal sought by the appellant should be granted. The appeal had caused the
Commission to carefully re-examine its decision. It had provided the Commission with
much fuller information than it had at the time of the decision. On the basis of that material
and the authorities upon which the appellant relied the Commission now accepted that it
could not defend the decision. None of the heads of rule 7(4) was satisfied. It followed that
the complaint in relation to issue 3 was time-barred.
[13]
The Commission did not consider that it was necessary for the Law Society or TS to
be informed of the settlement. Neither of them had chosen to lodge answers to the appeal.
The Law Society in particular would have been alive to the possibility that settlement was a
possible outcome of an appeal. There were factors which served to protect interested
parties. First, the Commission took a very serious view of its obligations. An appeal would
not be conceded lightly. Second, the appellant had to satisfy the court that there were good
grounds in law for the appeal being granted, notwithstanding the Commission's consent
(McAllister v Secretary of State for Work and Pensions, supra). Third, the court was not obliged
to exercise its section 22(1) power to substitute its own decision.
[14]
The Commission did not consider that section 21(5) obliged it to lodge answers to
either the application for leave to appeal or the appeal. Ms O'Neill submitted that
section 21(5) merely imposed an obligation on an appellant to call the Commission as a
10
respondent. It would cause unnecessary expense if the Commission had to lodge answers to
an application or an appeal which it did not propose to resist. In McAllister the court had
envisaged that it would not always be necessary for the decision-maker to appear at the
hearing of the motion to grant an appeal (paragraph 6). The Commission's understanding
was that it should be called as a respondent to an application for leave to appeal and that
there should also be service on any other interested parties. Where the decision appealed
against related to a services complaint, generally the responsible professional organisation
would not be an interested party. Ms O'Neill was also of the view that where interested
parties had not resisted the application for leave it could be assumed that they did not
propose to resist the appeal, and service of the appeal upon them ought not to be required.
That avoided disproportionate and unnecessary expense being incurred.
[15]
Following the hearing the Commission submitted a supplementary note of argument
addressing the proper construction of section 21(5). The provision applied to "proceedings
on an appeal" which did not include an application for leave to appeal. The note
highlighted that in some cases the Commission decided not to oppose applications for leave
to appeal because it took the view that leave would be granted. It repeated the submission
that on a proper construction section 21(5) merely required an appellant to call the
Commission as a respondent to an appeal and that it did not oblige the Commission to lodge
answers. It suggested that reference to proceedings in the Scottish Parliament during the
stage 3 debate of the Bill supported that construction.
Decision and reasons
[16]
At the conclusion of the hearing the court adjourned for a short period to consider
the submissions. When the court reconvened it advised the parties that the clerk of court
11
would write to TS and to the Law Society providing them with Joint Minute no 2
(incorporating the McAllister minute) and inviting any representations they might wish to
make within a period of 14 days.
[17]
The court took that course because it recognised that interested parties (but, in
particular, a complainer) may have proceeded in the expectation that the Commission
would defend its decision, and that there was therefore no need for them to become
respondents. Where the Commission decides not to resist an appeal we think that fairness
will generally require that such interested parties be informed of the Commission's position
before the court disposes of the appeal. In our view that is a fortiori the case where, as here,
an appellant asks the court to substitute its own decision in place of the Commission's
decision. That is because there is no right of appeal from the court's decision - it is final
(section 22(4)). Where, on the other hand, the court merely quashes the Commission's
decision and the matter is remitted to the Commission to make a new decision, interested
parties have a right to seek leave to appeal against the Commission's subsequent decision
(section 21(1)).
[18]
In our opinion where the Commission decides not to resist an appeal it is desirable
that interested parties are informed of that decision as soon as possible. There are numerous
ways in which this could be done. One possibility is that the Commission sets out its
position in answers to the appeal, and that copy answers are provided to the interested
parties. An interested party may then seek to lodge answers to the appeal, if so advised,
accompanied by a motion for late receipt if the period for lodging answers has already
expired. We say "if so advised" because it would be prudent for the interested party to
obtain legal advice before embarking on such a course. The interested party would face the
obvious (but not necessarily insurmountable) difficulty that the Commission accepted that it
12
could not defend its decision. Opposing the appeal would involve incurring court and legal
fees, and potential liability for the expenses of other parties to the appeal if the opposition
was unsuccessful.
[19]
In the present case the interested parties were the complainer and the Law Society
(because the complaint was a conduct complaint), but in an appeal by a complainer where a
practitioner did not lodge answers (admittedly, a much less likely scenario) the same
principles ought to apply mutatis mutandis.
[20]
Both the Law Society and the complainer responded to the clerk of court's invitation.
The Law Society did not wish to make any representations. TS made email representations
which made clear her dissatisfaction with the appellant and ML. However, in our view the
representations do not provide a good basis for concluding that rule 7(4) was satisfied. In
those circumstances we saw no need to invite the appellant or the Commission to respond to
them. We were satisfied on the basis of the McAllister minute and the submissions at the
hearing that the Commission erred in law in determining that rule 7(4) was satisfied.
Accordingly, we allowed the appeal and substituted a finding that the complaint in relation
to issue 3 was time-barred and that the Commission should not take any further action in
respect of it.
[21]
We turn now to deal with the interpretation of section 21(5). In our opinion
section 21(5) requires the Commission to become a party to appeal proceedings. That is the
ordinary and natural meaning of the language of the provision. In our view it is also a
sensible and reasonable construction when regard is had to the fact that the appeal is against
the Commission's decision. The only contextual assistance which we derive from the stage 3
debate to which we were referred is that the promoters of the amendment which resulted in
section 21(5) envisaged that the Commission would be the primary contradictor to an
13
appeal - a factor which we see as tending to support rather than undermine our
construction. We also have in mind that lodging answers serves a useful purpose even
where the Commission decides not to resist an appeal. By lodging answers it becomes a
party. As a party it has a locus to enter into a joint minute and a McAllister minute. The
answers also enable it to explain its position (cf the problems which arose in Aberdeen
Computer Services Ltd v Scottish Legal Complaints Commission [2021] CSIH 2, where the
Commission and the appellant were unable to agree the terms of a McAllister minute and
where the Commission did not lodge answers until it became clear that there was an
impasse).
[22]
We agree with the Commission that section 21(5) does not require it to lodge answers
to an application for leave to appeal. In our opinion an application for leave to appeal is not
part of the "proceedings on an appeal under subsection (1)". Once again, we reach that view
having regard to the ordinary and natural meaning of the language of the provision. We
also consider that the legislature would have been aware that in some circumstances the
proper course for the Commission would be not to resist an application for leave, but to set
out its position in answers to the appeal. In our opinion that is a further factor which tends
to support our construction.
[23]
Finally, we consider the question of service on interested parties of (i) an application
for leave to appeal; and (ii) an appeal. In our opinion an application for leave to appeal
should be intimated to all parties with an interest. An appeal should also be intimated to all
interested parties unless the appellant is in a position to satisfy the procedural judge that an
interested party has unequivocally indicated that it does not require the appeal to be served
upon it. In that regard it will not suffice merely to show that an interested party did not
lodge answers to the application for leave. It does not necessarily follow from a party's
14
non-opposition to the application for leave that the party will not oppose the appeal. The
relevant criteria for the grant of an application for leave and for the allowance of an appeal
are different. An interested party might well conclude that he has no realistic prospect of
successfully resisting leave but that he has a realistic prospect of resisting the appeal itself.
Another, less common, possibility is that the proposed grounds of appeal appended to the
application do not meet with resistance but the grounds of appeal included in the appeal are
materially different.
