The Law Society of Scotland has today announced its intention to take legal action over our categorisation of certain complaints, which had formerly been ‘hybrids’.
This categorisation was carried out in the wake of a decision by the Inner House of the Court of Session that a single issue of complaint cannot be a ‘hybrid’- that is, contain elements of both conduct and inadequate professional service. This meant many valid complaints had no legal categorisation, and needed to be correctly categorised. We are disappointed in the Law Society of Scotland’s response, especially when in the Court of Session case the Society had positively supported the SLCC and helped explain to the Court that this way of classifying complaints had been in practice for some 30 years.
Whilst we do not consider that there is any benefit in responding in detail to the Law Society’s press release, we consider it imperative to rebut the suggestion that it is our wish to restrict the Law Society’s protection of the public interest. This is no more the case than it is the Law Society’s intention to remove the opportunity for effective redress from individual consumers affected by serious levels of inadequate professional service. The Law Society has a number of options available to it, both within and outside the complaints process, to take conduct issues forward where it perceives there is a public interest issue, and we do not think these have been exhausted.
We believe that the Law Society’s decision to take legal action creates uncertainty and delay for complainers and lawyers currently involved in our process. This is at a double cost to Scotland’s solicitors as both organisations, and therefore their respective legal costs, will ultimately be funded by the Society’s members. We also took detailed legal advice on the implications of the court ruling. On the basis of our legal advice we took swift and positive action to minimise the consequences on those who had made complaints and those subject to a complaint. Early results of our approach were highly positive, with parties accepting the approach and only the Society questioning it. However, these will now need to be placed on hold as a result of the Law Society’s action.
We acknowledge that the Law Society had legal advice which is different to ours. However, from an early date we made repeated offers to meet with the Law Society’s CEO and legal representatives so that we could look for a shared solution and consider options which did not require further court action. Instead of taking that early opportunity to discuss matters and find a collaborative approach, the Law Society waited until we had taken action – action we took to avoid all cases sitting on hold indefinitely.
We accept that after the earlier ruling of the court there was uncertainty in any chosen course of action. However, the potential risk was that there would be a small number of appeals both organisations might have had to deal with. Having taken the action we did, these have not materialised. The Law Society’s approach, however, creates certain delay, certain cost for everyone, and certain damage to confidence that the current system works. We consider that launching 17 simultaneous but discrete court actions is a vastly disproportionate response. Whichever side ‘wins’ or ‘loses’ the legal argument, uncertainty over further cases and new issues will doubtless be created – meaning we could very well end up back to where we started and trying to implement yet another ruling on a whole new set of current cases.
Our current intention is not to comment further publicly until we have a final outcome and can start working together again – as we wish to, and as the legislation requires. We believe both bodies should focus on that.