SLCC comments on Court opinion on access to files
The Inner House of the Court of Session has published its opinion on whether the SLCC is entitled to apply for the production and delivery of documents which would otherwise be covered by legal professional privilege.
Neil Stevenson, Chief Executive said, “We are grateful to the court for the clarification of its judgement. We will now consider how best to continue to deliver our statutory functions, and our services to the public, taking into account the court’s decision.
“Our founding legalisation made clear that people who were not a client of a firm but appeared to have been directly affected by inadequate professional service by a firm, could make a complaint.
“The SLCC recognises the value and importance of legal professional privilege and we’ve long recognised the challenge of third-party complaints, where we may ask a firm for information which they might believe is confidential or legally privileged to their client. In seeking required information from firms, we’ve been clear that the legal position on this information has been unclear.
“Many firms have worked with us to allow us to discharge our statutory duties in dealing with third party complaints. However, with a number of cases where we had been unable to fully investigate eligible complaints due to relevant information being withheld, we brought this case to seek the court’s view on the matter. The Law Society of Scotland and Faculty of Advocates intervened in this case, and supported this outcome, stating that ‘no administrative burden would arise’.
“We do not agree with this statement. Every year hundreds of solicitors currently send us their complete file. Every law firm in Scotland will now need to consider the impact of this ruling on its processes for dealing with such requests. Statutory time limits for responding remain unchanged, and firms will need to ensure capacity to undertake this work.
“The court also made clear that the statutory framework must bear the cost of this approach, so we will set out expected costs for the SLCC in our forthcoming budget consultation. That will include staff costs as well as additional legal costs for cases needing to go to the Court of Session to appoint a Commissioner who will examine the file and ensure the right decisions have been made on what is covered by privilege.
“We will also ensure that in relevant cases both complainers and firms are made aware of the implications for complaint timescales and potential outcomes.”