SLCC vindicated over 'privilege' question in decision to refer Michelle Mone firm solicitor

The Inner House of the Court of Session has dismissed an appeal from a firm which previously represented Baroness Michelle Mone over a Scottish Legal Complaints Commissions decision.

The appeal was brought under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 by Levy & McRae, the firm which previously represented Baroness Michelle Mone, against the Scottish Legal Complaints Commission (SLCC).

Levy & McRae partner David Mckie is subject to a third-party complaint to the SLCC by the publisher of the Guardian regarding his conduct in response to the newspaper's proposed reporting of an investigation into the appellants' then client, Mone.

The appellants challenged the SLCC decision to refer 12 of 15 complaints to the Law Society of Scotland for investigation.

The appeal hinged on the issue of privilege, which the appellant asserted is a 'fundamental right' not to be overridden by the 2007 Act. The SLCC's position was that their decision was one of eligibility determination, not of the substance of the complaint.

In the ruling this week, Lord Beckett said: "Given its limited role the Commission was correct to determine that resolution of any implications of privilege is for the LSS.

"The investigating body can determine, in light of what is ultimately available to it, whether it would be unfair to proceed with some or all of the complaints made.

"It is the proper body to resolve a conduct complaint that the Commission, in exercise of its statutory function, has found is not totally without merit."

Commenting on the court’s opinion on an appeal of its eligibility decision, CEO Neil Stevenson said: “We’re grateful for the court’s decision to refuse this appeal.

“Every day the SLCC makes sifting decisions about whether complaints should be investigated. We particularly welcome the court’s reiteration of the principle that the SLCC “is a specialist body empowered by the Scottish Parliament to sift complaints against solicitors and as such should be accorded a degree of institutional respect by the court when adjudicating in its area of competence”.

“The opinion draws together the relevant legislation and previous decisions which provides helpful clarity for all stakeholders and complaint parties about the SLCC’s role and the nature of the decision it takes when sifting complaints."

Stevenson added: “It is also very helpful to see the court’s further views on dealing with cases brought by third parties and the implications for legal professional privilege."

“We believe these are in line with our existing approach, but we thank the court for providing clarity and we will consider the court’s views further.” 

Speaking to the Journal, A spokesperson for Levy & McRae said: "This case goes to the heart of the essential principle of client/lawyer privilege which has been recognised across legal systems worldwide for centuries.

"We agree with the court that privilege is a vital concept. The appeal was raised precisely to protect that principle, which we regard as a critical safeguard for all clients when they consult lawyers.

"As we have stressed throughout, we always act in good faith and in strictest accordance with our professional duties."

Read the full decision