Solicitor found in contempt of court for failure to produce files
The Inner House of the Court of Session has found a solicitor guilty of contempt of court in respect of her failure to comply with the court’s order to produce files relating to a complaint. This is the first time a finding of contempt of court has been made for such a failure. The court’s view was that ignoring the request constituted “a deliberate decision not to comply, and that this demonstrated wilful disrespect towards the authority of the court”.
The court also found the firm liable for expenses on an agent client, client paying basis.
In reaching its decision, the court noted that “despite numerous efforts over a lengthy period on the part of the Commission, [the solicitor] and the firm failed to co-operate with the investigation”. In court, Lord Pentland noted that ignoring the court order followed the practitioner having ignored the SLCC, the petition served and the complainer.
The solicitor’s counsel led evidence on the personal and business challenges faced by the solicitor and the firm, including the impact of covid and the loss of key staff which had led the solicitor to “put her head in the sand”. The solicitor accepted that “there was no acceptable excuse” and counsel stated that “she was extremely sorry and deeply ashamed of the disrespect shown to the court”.
The solicitor’s counsel also advanced the argument that “rather than having deliberately defied or shown disrespect to the court”, the solicitor had failed to obey the order “because she was in the depths of a difficult situation” and “was so embarrassed that she hid from her responsibilities”.
In their reasoning, Lords Malcolm, Pentland and Tyre stated these circumstances “to an extent explained [the solicitor’s] conduct, but these were mitigating factors - they did not excuse her failure to obey a court order”.
The Lords’ statement of reasons states,
“This was extraordinary and serious misconduct by a solicitor who is an officer of the court and therefore subject to a particularly important duty to act on the court’s order”.
“The court was unable to take any view other than that there had been a deliberate decision not to comply, and that this demonstrated wilful disrespect towards the authority of the court which constituted a contempt of court”.
Neil Stevenson, Chief Executive said, “The SLCC’s role is to investigate complaints made to it, so our focus is on ensuring we get access to the information we need, usually files and responses, in order to be able to complete our investigations. While we have achieved this now in this case, this is only after 7 months, hours of SLCC staff time, legal costs and court fees. While we will be able to reclaim some of that via expenses, it will not cover all of this expense, and that shortfall is picked up by all lawyers via our general levy.
“We are currently consulting the profession on the fairest way to fund our work and would welcome feedback on proposals, including charging a higher level complaint levy in these cases to balance contributions from across the profession with a ‘polluter pays’ approach which means those who increase the costs of regulation fund a greater part of those costs.
“While we sympathise with the solicitor’s personal challenges, businesses must plan for foreseeable changes and incidents around staffing and systems. This is a basic requirement for regulated professionals.
“In court, we adopted a neutral stance as to whether the solicitor should be found to be in contempt. However, we are grateful to the court for its clear statement on the seriousness of this issue and its comments on the impact of the solicitor’s actions on the client who made the complaint and on the SLCC’s ability to discharge its statutory duty to investigate it.
“We hope this decision will encourage all solicitors and firms to respond timeously to complaints and to highlight to them the very real risks of failing to do so. We hope others in the sector will join with us in encouraging and supporting the profession to meet this important professional standard.”
The SLCC is currently consulting on the fairest way to fund its work and would welcome responses from across the profession.