The Scottish Legal Complaints Commission has welcomed the recent publication of Lord Drummond Young’s opinion which upholds the SLCC’s decision and also provides some very useful observations on the tests to be applied by both the SLCC and the court.
The complaint made to the SLCC consisted of seven separate issues, six of which were rejected by the SLCC as ’totally without merit’ and the other as ‘frivolous’ – the specific wording provided for in terms of section2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007 and which the SLCC is required to use. The complainer sought to appeal against four of these determinations.
The opinion considers the test to be applied by the court when dealing with applications for leave to appeal. In the case of McSparran McCormick v Scottish Legal Complaints Commission2015 SLT43, earlier this year, Lady Smith questioned the correctness of the test for leave to appeal laid down by the Extra Division inWilliams v Scottish Legal Complaints Commission CSIH73, which had been applied in all prior applications for leave to appeal against SLCC decisions. Lady Smith took the view that the Williams test for the granting of leave, which requires that an appeal must have a real prospect of success or that there is some other compelling reason why it should be heard, imposed too high a hurdle and preferred the view that the court should simply exercise its discretion as to whether or not in all the circumstances it ought to grant leave to appeal. Lord Drummond Young considered the conflict between these two authorities and preferred the test in Williams: “On this matter I prefer the test in Williams, namely that there is a real, or I would prefer to say, a realistic prospect of success.”
Commenting on the case,Neil Stevenson, Chief Executive of the SLCC, said “it is clear from parliamentary debates and the Act which sets out our powers that the original intention for the SLCC was of a quick, effective and final resolution and to avoid consumer issues being addressed routinely in the court, and the distress and cost that brings to both parties. We recognise the value of an appeal route, but believe the Williams test creates the correct balance and reinforces that appeal to the court should not become an automatic ‘next step’.
Lord Drummond Young also endorsed the approach the SLCC had taken in dealing with the “frivolous” issue of complaint. Although this issue related to a rather serious failure to observe a solicitor’s legal duty to provide all trustees with correspondence relating to a trust, Lord Drummond Young concluded that the matter required to be looked at in context and that the complaint was properly found to be “frivolous”. In support of that conclusion, his Lordship noted that the fault had been acknowledged by the solicitor, the position with correspondence was rectified within a short period of time, the conduct occurred around three years prior to the lodging of the complaint with the SLCC and that no loss had been suffered by the complainer: “It does seem to me that no useful purpose would be served by taking this matter further beyond the indication that [the solicitor] was wrong in what he did……I am persuaded that in context this head of complaint can properly be considered “frivolous”.”
Neil Stevenson added “this endorsement of the SLCC’s position helps clients and practitioners. A key issue here was that the solicitor quickly admitted and rectified an issue ensuring there was no detriment to the client. Quick resolution of a problem can often be better for the client, and we want a framework which encourages practitioners to admit issues immediately and put them right.
The publication of the opinion followed a leave to appeal hearing which took place at the Court of Session in May of this year.
The full judgment is at: http://www.scotcourts.gov.uk/search-judgments/judgment?id=c2bdeca6-8980-69d2-b500-ff0000d74aa7.