The SLCC has welcomed guidance from the Court of Session in connection with an appeal against its decision to reject a complaint for investigation. The court allowed the appeal by McSparran McCormick[i] and the complaint has now been remitted back to the SLCC.
When it had assessed whether or not it could accept the complaint for investigation, the SLCC believed it had based the decision on the principles set down in Law Society of Scotland v Scottish Legal Complaints Commission 2011 SC 94. In the present case, the SLCC expressly invited the Court to provide further guidance,in the event that it had made an error in its application of the principles of the 2011 case.
SLCC Chief Executive Neil Stevenson commented: “While we’re disappointed that the decision of the SLCC has not been upheld by the court, we welcome the fact that each of the three judges took the opportunity to write their own opinion, in recognition of the importance of the issues. The limits of the decision in the previous casehave now been explained in detail and thecourt has drawnclear distinctions between the complaint under consideration in that case and the complaint by McSparran McCormick.”
“The court has highlighted that firstly, it is essential to consider the seriousness of the allegations; secondly, that there is a distinction between assertions of primary facts and inferences drawn from them; and thirdly, a distinction exists between a letter containing allegations about a particular person that is sent to them directly and a letter containing allegations that is sent to a third party. The court has made clear that where the allegations are of criminal conduct or involve “significant moral turpitude”, some evidence to support these must exist and a client’s contentions cannot be taken at face value.”
“I think we have believed, based on our interpretation of previous case law, that when allegations were made at the instruction of the client it was difficult to accept such a complaint against the solicitor for investigation. This case helps us greatly in now being able to consider these issues in a new light”
“I’m interested in how this case translates for the general public as well as we sometimes see a serious impact from allegations, say in issues around parenting, on those with limited ability to respond, limited access to legal funding, and lesser understanding of how to respond. For example a client may allege conduct by the other parent. This decision could now mean the solicitor has to show they have at least some evidence of this before making the allegation to a third party such as a government agency.”
“While in this case the correspondence was between professionals, it will help us consider how lawyers approach correspondence when making allegations about any person in new ways, and we look forward to seeing if professional bodies issue new guidance on this basis.”
Another decision in the Court of Session[ii] has highlighted the importance of making an appeal against a decision of the SLCC within the 28 day statutory time limit.
The opinion, declining leave to appeal against the SLCC’s decision not to accept a complaint for further investigation, was decided by Lady Clark of Calton. It recognised that the power and responsibility of assessing complaints made by the public about solicitors lies with the SLCC, as set up under the 2007 Legal Profession and Legal Aid (Scotland) Act.
Lady Clark commented that the 2007 Act balanced various interests, including the public interest, in setting out a 28 day time limit for appealing the SLCC’s decisions and that the specific statutory time limit of short duration is there for a good reason.
Neil Stevenson commented: “We recognise the difficult circumstances faced by the applicant in this case, but we’re pleased the court’s view was consistent with our own that this wasn’t enough to justify allowing the appeal to be received outwith the time limit. The determination of a complaint by us is often the end of a significant process that can be stressful for both parties – the consumer and lawyer. Both parties have a right to appeal, but is not helpful for either if this period drags on and creates further uncertainty, or if it means compensation or having the matter put right is delayed. ”