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Scottish Court of Session Decisions
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THE SCOTTISH LEGAL COMPLAINTS COMMISSION AGAINST DONALD RODERICK MURRAY AND JAMES ANTHONY McCUSKER [2022] ScotCS CSIH_54 (09 December 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSIH_54.html
Cite as:
2022 GWD 40-577,
[2022] CSIH 54,
[2022] ScotCS CSIH_54,
2023 SCLR 184,
2023 SLT 17
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 54
P58/22
Lord Justice Clerk
Lord Malcolm
Lord Turnbull
OPINION OF THE COURT (No. 2)
delivered by LORD MALCOLM
in the Petition of
by
THE SCOTTISH LEGAL COMPLAINTS COMMISSION
Petitioners
against
(1) DONALD RODERICK MURRAY and (2) JAMES ANTHONY McCUSKER
Respondents
and
THE FACULTY OF ADVOCATES and LAW SOCIETY OF SCOTLAND
Interveners
Petitioners: C O'Neill KC, sol adv; Harper Macleod LLP
Respondents: Whyte; TC Young LLP
Interveners: Dean of Faculty; Balfour & Manson LLP
9 December 2022
[1]
In its opinion dated 11 October 2022, [2022] CSIH 46, the court held that section 17 of
the Legal Profession and Legal Aid (Scotland) Act 2007 did not entitle the Scottish Legal
2
Complaints Commission to recover material subject to legal professional privilege. The case
has been put out by order to resolve any further issues.
[2]
The Commission has moved the court to ordain the respondent solicitors to produce
and deliver the file originally sought under exception of such material as is subject to said
privilege. The solicitors submit that the order should expressly be confined to such material
as is relevant to the complaint under investigation.
[3]
The interveners (The Faculty of Advocates and the Law Society of Scotland) made
submissions aimed at the wider issue of whether a notice served under section 17 obliges the
recipient to deliver material which is subject to a solicitor's general duty of confidentiality
regarding the client's affairs. It was submitted that only a court order would have that
effect. Furthermore a solicitor should not be required to produce material other than that
relevant to the specific complaint.
[4]
The full circumstances of the case are set out in the earlier opinion and need not be
repeated. In recognition that matters of general importance for not only lawyers but also for
regulators of other professions arise, the court now records its views.
[5]
The court adheres to the terms of the earlier opinion at paras [27]-[28]. In particular,
while privileged material has a special status, the residual duty of confidentiality can be
overcome in the public interest. There is a public interest in complaints against practitioners
being fully and properly investigated, hence the Commission has been given certain
statutory powers in this regard. These include the power under section 17 to require
practitioners to deliver documents in their possession which relate to the complaint. If the
Commission is not satisfied with the response it can seek an order from the court (schedule 2
para 1).
3
[6]
The Commission is invested with a discretion as to which documents it sets out in a
section 17 notice, including as to which it considers relate to the complaint. Here the
Commission has decided that it needs to see the file relating to the work carried out. The
challenge to that decision was limited to the apparent obligation to give up legally
privileged material, and the court has ruled thereon in favour of the solicitors. There was no
suggestion that the notice was flawed in that it sought material which did not relate to the
complaint. We are not persuaded that the court's order should be qualified as suggested by
the solicitors. That would place the decision on relevance in the hands of those subject to the
complaint. That would be an odd state of affairs.
[7]
On the matter of general principle raised by the interveners, service of a section 17
notice relieves the practitioner of the general duty of confidentiality. This is in accordance
with the words used in the legislation and with the regulatory regime as a whole. We are
not persuaded that anything said elsewhere in the Act or at stage 3 of the bill justifies a
different outcome. There is no need for a court order before such a duty is overridden. For
the avoidance of doubt we repeat that legal professional privilege is in a special position.
[8]
We shall make an order in the terms sought by the Commission. Before leaving the
matter we wish to say that the court expects the Commission and practitioners to act in a co-
operative manner when issues of this kind arise. For example, if a solicitor subject to a third
party complaint considers that the Commission is seeking material unrelated to the
complaint or is trespassing on legally privileged material, there should be a professional
discussion of the issues with a view to identifying a satisfactory method of resolving the
situation which balances the client's and the Commission's respective interests. Section 17
notices, and even more so court proceedings, should be exceptional.
