The courts have refused leave to appeal to a complainer, who was unhappy that the SLCC had ruled his case “totally without merit” (a legal term the SLCC has to use under the 2007 Legal Professional and Legal Aid (Scotland) Act).
The complainer was a third party, who believed he was affected by deficient service provided by a law firm to their own client, a party the complainer was in dispute with.
The court’s analysis of the complexity of these situations is helpful, with Lord Brodie noting:
"Essentially there were three layers of dispute here which the applicant had confused: first, the existence or otherwise of servitude rights in respect of the lane; second, what it was reasonable to expect [the lawyer of the other party] to do when acting for the school; and, third, what was to be expected of the commission when considering the applicant’s complaint."
There is also helpful clarity given on a solicitor’s role:
“while the solicitor will be expected to maintain his professional independence and perhaps to be critical of the position his client is inclined to adopt, where there are possibly conflicting other interests and, particularly where the other party involved has the benefit of his own legal advice, it is not the function of a solicitor to act as an arbiter or mediator either in relation to the relevant law or to the relevant facts. His function is to act in the best interests of his client.”
Throughout the judgment it is recognised the complainer could possiblybe right about the underlying legal issue, and could possibly have a justiciable issue, but it was not the role of the SLCC to establish this:
“The applicant may be entirely correct in his assessment of the law as it applies to the facts of the case but if that is so the action to be taken in the light of that and in the light of the attitude of the other parties is entirely a matter for him and his own legal advisors.”
Neil Stevenson, Chief Executive, commented “there are interesting lessons in this case both for party litigants considering appealing a case, and for lawyers in terms of how we examine third party complaints. We are pleased that in this case our decision that the case should not proceed to full investigation was upheld. We provide a vital service in independently assessing complaints against lawyers, but the legislation allows for staged tests to ensure that resource is only spent on complaints where there is a realistic prospect of a finding against the lawyer or firm being made.
We respect the court’s decision not to award expenses against a party litigant, and the difficulties of party litigants in the current court systems and structures. However, this approach does mean that we now have to pass on these costs to lawyers, and so ultimately to their clients, through our levies. In our recent paper #ReimagineRegulation, which looks at possible legislative reform, we ask whether the Court of Session is the best forum for these appeals both in terms of an accessible forum for those appealing, and in terms of the significant costs it introduces into the handling of legal complaints.
The case is also interesting in light of new business models which may emerge if a regulator is approved under the Legal Service (Scotland) Act 2010. One issue in this case was the SLCC’s decision that this was a services complaint. Had the SLCC instead decided that the complaint was a potential breach of the Conduct Rules, a specific practitioner would have needed to be named. Conduct cannot be considered against a firm. If new business models are licensed then a ‘regulatory complaint’, treated in the same way as a conduct complaint, can be made against a firm licensed under that regime. Again, our legislative reform paper questions how well informed consumers will be of their differing options and rights, and recommends we actually need to step back and simplify our current system.“
The full judgment is online.