Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> APPLICATION FOR LEAVE TO APPEAL BY JOHN SWINDELLS UNDER SECTION 21 OF THE LEGAL PROFESSION AND LEGAL AID (SCOTLAND) ACT 2007 AGAINST A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION ISSUED ON 29 SEPTEMBER 2020 [2021] ScotCS CSIH_5 (26 January 2021)
URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSIH_5.html
Cite as: [2021] CSIH 5, [2021] ScotCS CSIH_5, 2021 GWD 5-70

[New search] [Printable PDF version] [Help]

Page 1 ⇓

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

OPINION OF LORD PENTLAND

[2021] CSIH 5

XA68/20

in the application for leave to appeal

JOHN SWINDELLS

Applicant

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

against

a decision of the Scottish Legal Complaints Commission issued on 29 September 2020

Applicant: Party

Respondent: Welsh; Anderson Strathern

26 January 2021

Introduction

[1] The applicant seeks leave to appeal, under section 21 of the Legal Profession and

Legal Aid (Scotland) Act 2007 (“the 2007 Act”), against a determination decision (“the

decision”) issued by the respondent, the Scottish Legal Complaints Commission, on

29 September 2020.

Page 2 ⇓

Factual background

[2] In April 2019 the applicant made a complaint (“the complaint”) to the respondent

against a firm of solicitors (“the firm”) alleging that the firm had failed competently to wind

up his deceased father’s estate. The applicant submitted nine grounds of complaint. The

respondent accepted three of the grounds of complaint (Issues 1-3) for investigation as

services complaints; the others were rejected as being totally without merit.

[3] In March 2020, the respondent issued an investigation report recommending that

Issues 1 and 3 should be upheld and that Issue 2 should not be upheld. Issue 1 concerned

the firm’s failure to obtain the deceased’s death certificate timeously. Issue 3 related to the

firm’s failure to notify three companies of the deceased’s death. Issue 2 involved an

allegation that the firm failed to communicate effectively with the applicant about the fact

that they had not received the death certificate. The investigation report concluded that the

firm had carried out the executry work to an acceptable standard, with the exception of the

matters covered by Issues 1 and 3; accordingly, no reduction of the firm’s fees was proposed.

The applicant had not established any actual loss, but compensation for inconvenience and

distress arising from Issues 1 and 3 was recommended in the sum of £500. The firm

accepted the recommendations, but the applicant did not. On 18 March 2020 he sent an

email to the respondent in response to the investigation report. The email was expressed in

highly abusive and offensive terms. It alleged that the respondent had not taken any of his

comments on board, that it was unjustified for the firm’s fees not to be reduced, and that the

respondent had not investigated anything.

[4] On 19 March 2020 the respondent advised the applicant that in view of the offensive

language he had directed at a member of their staff in his email he should in future contact

them by letter.

Page 3 ⇓

[5] On 7 April 2020, the respondent advised the applicant that it had decided to suspend

the complaint pending the outcome of the eligibility process in respect of another complaint

submitted by him. The respondent explained that if there were eligible service issues arising

from the other complaint, the complaints could then be dealt with together. This was

considered to be the most pragmatic and sensible way to deal with both complaints.

Accordingly, the first complaint was suspended and would not, for the time being, progress

to the respondent’s Determination Committee. The applicant would be contacted once the

eligibility process in relation to the other complaint had been completed.

[6] On 23 June 2020, the respondent emailed the applicant to advise that the complaint

had been “unsuspended” following the conclusion of the linked complaint. The email

continued as follows:

“As I advised in my letter of 31 March 2020, I would give you the opportunity to

provide any further comments on (the) complaint, which would be put to the

Determination Committee. Please provide me with any comments by Monday

29 June 2020. As you have been advised, you must not email the SLCC and please

provide your response by letter – our office is receiving mail.

I look forward to receiving any further comments you wish to make. There is no

requirement to send any comments which have already been made.

The SLCC will be in touch within the next 12 weeks with our Decision.”

[7] The applicant did not submit any further comments. By letter dated 29 September

2020 the respondent wrote to the applicant to advise him that the service complained about

in the complaint had been considered by three independent commissioners, forming a

Determination Committee. A final determination had been made. The letter explained that

the Determination Committee members had reviewed the recommendations of the

investigating committee and had had access to all correspondence and evidence in relation

to the case. Their decision was that the complaint against the firm should be upheld in part.

Page 4 ⇓

In particular, the members decided that Issues 1 and 3 should be upheld and that Issue 2

was not upheld. The letter went on to set out the reasons why the Determination Committee

had reached this decision. The letter explained that the Determination Committee agreed

with the recommendation that no award of compensation for actual loss allegedly incurred

by the applicant should be made in view of his failure to provide evidence and vouching of

the alleged losses. The Determination Committee noted that the firm had had its fees

assessed by the Auditor of Court. The Determination Committee agreed with the

recommendations that the work had been carried out to an acceptable standard and that a

reduction of fees was not applicable.

[8] Finally, the Determination Committee formed the view that the inadequate

professional service which had been identified had been minor and would have caused the

applicant minor upset and inconvenience. The delay in obtaining the death certificate

would have had no impact on the administration of the estate. The Determination

Committee did not agree with the recommendation in the investigation report as to the

amount of compensation. The Determination Committee directed that the firm should pay

the applicant £150 by way of compensation for the inconvenience and distress caused.

Legal framework

[9] Section 21(4) of the 2007 Act provides that a complainer may, with the leave of the

court, appeal against any decision of the SLCC on the following grounds:

“(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;

Page 5 ⇓

(d) that the Commission's decision was not supported by the facts found to be

established by the Commission.”

The application for leave to appeal

[10] The application for leave to appeal fails to engage with section 21(4). Instead it sets

out, tendentiously and at length, a whole host of complaints about and attacks on the

respondent, the firm, and the legal profession. Essentially, it seeks to open up before the

Inner House the respondent’s investigation and factual findings. A major theme of the

application is the applicant’s dissatisfaction with the amount of compensation he has been

awarded.

[11] Despite the many shortcomings in the application, I have, in fairness to the applicant

who appeared on his own behalf, attempted to analyse the application to see whether

anything in it might (on a benevolent construction) fall within the grounds of appeal

permitted by section 21(4).

Ground of Appeal 1

[12] The applicant avers that the respondent acted irrationally and with malice in

suspending investigation of the complaint pending the outcome of the other complaint. He

submits that suspension of the complaint caused unreasonable delay and frustration to him.

This ground might fall within section 21(4)(c) as being an irrational exercise of discretion.

Ground of Appeal 2

[13] The applicant submits that the respondent did not provide him with an opportunity

to submit representations to the Determination Committee. This ground of complaint might

fall within the scope of section 21(4)(b) in respect that there had been a procedural

Page 6 ⇓

impropriety, although that leaves the question as to whether there had been such an

impropriety in the conduct of a hearing.

Grounds of Appeal 3 to 13

[14] These grounds raise many issues bearing on: (i) certain aspects of the respondent’s

handling and investigation of the complaint; (ii) alleged misinterpretation of the evidence

relating to Issue 2; (iii) the decision that the applicant had sustained no actual loss; and (iv)

the assessment of compensation for loss and inconvenience. The only statutory ground that

might conceivably be relevant to these grounds is that found in section 21(4)(d), but the

application makes no attempt to identify in what way the respondent’s decision was not

supported by the facts found to be established.

Grounds of Appeal 14 and 15

[15] The applicant submits that the respondent’s decision not to award a reduction in fees

because they had been set by the Auditor of Court was irrational. Potentially, therefore,

these grounds might fall within the ambit of section 21(4)(c).

Analysis and Decision

[16] The Inner House, in the recent decision of Innes v SLCC [2019] CSIH 27, confirmed

the test to be applied in an application for leave to appeal such as this. The test 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 is as follows (X LLP v SLCC [2017] CSIH 73):

Page 7 ⇓

“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?”

Applying this test to the circumstances of the present case, I have reached the following

conclusions.

Ground of appeal 1

[17] The applicant complains of a delay in the assessment of his complaint and contends

that in deciding to suspend consideration of the complaint the respondent acted irrationally

and with malice. As I have explained, the complaint was suspended on 7 April 2020 and the

suspension was lifted on 23 June 2020; a period of about 11 weeks.

[18] In my opinion, the reasons given by the respondent for deciding to suspend the

complaint cannot arguably be said to have been irrational or to have been motivated by

malice. The duration of the suspension was not unreasonable. This ground of appeal falls

far short of being an arguable challenge based on irrationality or malice.

Ground of appeal 2

[19] As I have already stated, potentially this ground of appeal could be said to concern

an alleged procedural impropriety. It does not, however, relate to the type of procedural

impropriety contemplated by section 21(4)(b) of the 2007 Act. This is because the

impropriety alleged by the applicant arises from an administrative decision of a procedural

nature made by the respondent rather than from a decision made at a hearing. The statutory

provision refers specifically to a procedural impropriety in the conduct of any hearing by the

respondent on the complaint.

[20] In Oliphant v SLCC 2014 CSIH 94, Lady Clark of Calton, in giving the opinion of an

Extra Division of the Inner House, said the following at paragraph [26]:

Page 8 ⇓

“… 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.”

[21] I acknowledge that the decision challenged in Oliphant was one taken at the

preliminary sifting stage. In my opinion, the same reasoning must apply to a procedural or

administrative decision made by the respondent in the course of its consideration and

investigation of a complaint. The decision to suspend consideration of the complaint was

not made at a hearing. Accordingly, this ground of appeal does not fall within the ambit of

section 21(4)(b).

[22] In any event, there is no arguable merit in this ground of appeal. By the

respondent’s email of 23 June 2020 the applicant was given the opportunity to make further

representations to the Determination Committee. The applicant submits that he did not

receive the email, but he accepts that it was sent to his email address; at the oral hearing on

the single bills he said that it might have gone into his junk mail folder, thereby accepting

that it had been delivered to him. There is no basis for concluding that the email was not

delivered to the applicant.

Grounds of appeal 3 to 13

[23] Section 21(4)(d) does not permit any challenge to the facts found established by the

respondent: the sole question is whether its decision was not supported by those facts

(Mazur v Scottish Legal Complaints Commission [2018] CSIH 45). The applicant does not allege

that any of the conclusions reached by the respondent were not supported by its factual

findings. These grounds cannot, therefore, be grounds upon which the applicant is entitled

to be granted leave to appeal in terms of section 21(4)(d).

Page 9 ⇓

[24] In any event, on examination none of the applicant’s assertions in grounds 3 to 13

has any arguable merit. The applicant relies upon the respondent’s alleged failure to take

into account various issues when reaching its decision, and its failure to state explicitly

within its report that it had considered certain matters. The report of the determination

committee dated 29 September 2020 confirmed that it had taken into account all available

material in reaching its decision:

“The members reviewed the Recommendations, and have access to all

correspondence and evidence in relation to the case. This includes any submissions

made, by either party, on the investigation outcomes and Recommendations which

have been previously shared with you…

Members considered and discussed the firm’s emailed responses dated 19 and

25 March (2 emails) 2020. Members also considered and discussed your emails dated

18 March and 9 April 2020.”

There is no need for the respondent to refer to every item of evidence in its determination

decision.

[25] Turning to the specific grounds raised in the application for leave to appeal, ground

3 seeks to challenge the respondent’s initial assessment of one aspect of the complaint as

being wholly without merit. It does not relate to the decision of the Determination

Committee. This ground does not amount to a competent ground of appeal.

[26] Ground 4 relates to an aspect of Issue 1. This Issue has been upheld. It cannot be the

subject of an appeal.

[27] Ground 5 relates to Issue 2; it invites the court to reconsider certain aspects of the

evidence and to substitute different conclusions for those reached by the respondent. The

court has no jurisdiction to conduct a general review of the evidence. There is no arguable

merit in this ground of appeal.

Page 10 ⇓

[28] Grounds 6 to 13 concern the respondent’s refusal of the claim for actual loss and its

assessment of compensation for inconvenience and distress. These were factual decisions

for the respondent to take on the basis of its assessment of the evidence. The court cannot

review them in an appeal under section 21. There is no arguable merit in any of these

grounds.

Grounds of appeal 14 and 15

[29] The report of the Determination Committee noted the following:

“The Determination Committee noted that the firm had had its fees assessed by the

Auditor of Court. The fees incurred were £2,866.50 excluding outlays and VAT per

the Auditor of Court’s assessment dated 1 October 2019, and £3,439.80 inclusive of

VAT. The Determination Committee agreed with the Recommendations that the

work had been carried out to an acceptable standard and that a reduction of fees is

not applicable.”

There is no arguable basis on which this decision can be characterised as irrational. The

respondent properly considered the Auditor’s report.

Conclusion

[30] None of the applicant’s proposed grounds of appeal has any realistic prospect of

success. Leave to appeal must accordingly be refused.

Anonymity

[31] At the hearing on the single bills the applicant asked that his name be redacted from

the published version of this Opinion. He said that the respondent had sought in its

Answers to assassinate his character and to embarrass him. This is unfounded. The

Answers properly refer to the respondent’s investigation and determination of the

complaint and explain the procedure it followed.

Page 11 ⇓

[32] Open justice is a fundamental principle in our system of litigation. It should not be

lightly departed from. Those who bring proceedings before the court should be identified

unless there is a sound reason for not doing so (MH v The Mental Health Tribunal for Scotland

[2019] CSIH 14). There is no reason why an exception to the general rule should be made

here. I refuse the applicant’s motion for anonymisation.

[33] I shall reserve all questions of expenses.