Ineligibility – an open and shut case?

As part of our oversight work, I regularly provide CPD to groups of lawyers, and these are ideal opportunities for us to get feedback. I am frequently asked a question about ineligible complaints – “Why can’t you just simply reject them without wasting time and resource on them? Just how complicated can it be?”

Where to start?

As a starting point, what is not widely known is that the majority of our investigation staff are engaged in assessing the eligibility of complaints in our role as the “gateway” for all legal complaints under the Legal Profession and Legal Aid (Scotland) Act 2007, s 2 (explanatory notes here). This was clearly envisaged as a simple “sift” stage during the parliamentary debate around the SLCC’s creation: “The [Justice] Committee is of the view that the following must be regarded as priorities for the handling of complaints… that it is fair, speedy, simple, transparent and cost-effective” (stage 1 report). However it has become, through the final drafting of the bill and subsequent case law, an extremely complex and time consuming task.

You would think, naturally, that it is just a question of determining fairly quickly whether a complaint is an eligible conduct or services complaint. However, that is far from the truth!

Under the 2007 Act, there is much that needs to be assessed in order to make these determinations. Given that they are appealable to the Court of Session, we have also received guidance there on several occasions as to how we should carry out this role. As a result we have a process which is far from a quick sift.

Necessary stages

This can be seen by looking at the process in more detail.

1. The first stage is to ascertain whether the complainer is eligible to make the complaint. This is usually straightforward. However it can be complicated if one person is complaining on behalf of another, or on behalf of a company. In such circumstances, we must ensure that the person complaining has the proper authority to do so.

2. We will also check whether the complaint is within our jurisdiction and remit, and that the redress or action sought by the complainer is within our powers.

3. We must also establish whether the substance of the complaint has already been raised with the firm or practitioner it is directed against. Although we provide clear information about this requirement, we still receive a number of complaints where this has not been done. In such cases, we have to consider whether there are exceptional circumstances to allow the complaint in without the solicitor’s prior involvement. If there are none, we write out to the complainer and the client relations manager/practitioner with our decision that the complaint is “premature”.

4. If the complaint is not premature (or is premature but with exceptional circumstances), we draft a summary of the complaint, an approach that was endorsed in Saville-Smith v Scottish Legal Complaints Commission [2012] CSIH 99, per Lord Drummond Young: “At this point we should note that the appellant submitted that his original complaint, which was relatively lengthy and made in effect one comprehensive complaint against Mr Brown, had been reduced by the Commission to a much shorter summary, divided into 10 specific complaints. One of those complaints had been accepted and the others rejected for a number of different reasons. In our opinion this procedure cannot be criticised. The original document was lengthy, and it was clearly necessary to reduce the general complaint into a number of specific heads; otherwise it would have been virtually impossible to apply any form of systematic legal analysis to the complaint.”

5. Separately, in Kidd v Scottish Legal Complaints Commission [2011] CSIH 75, the Lord President noted: “It is, however, important that the solicitor or solicitors be identified – not least because he, she or they should have an opportunity personally to comment on the complaint – albeit at this stage only for the purpose of assisting the Commission to decide whether the complaint is frivolous, vexatious or totally without merit.”

Accordingly, in drafting the summary of complaint, we have to establish which solicitor or solicitors (or other practitioner or practitioners), are the subject of the complaint. This can be particularly challenging if there has been a long course of service with a firm, with multiple solicitors involved. We also have to check that the right legal entity is named in the complaint – failing to do so can have serious repercussions if we need to enforce a determination later in our process. This can be especially crucial if the complaint is about a former firm, or a firm which has merged and where there is uncertainty over who is liable.

6. Our time limit for services complaints applies to the services rendered in connection with a particular matter – this was clarified in light of the issues discussed in Gomez v Stewart & McIsaac [2014] CSIH 23. This means that we need to prepare a summary of complaint in terms of the individual transactions carried out: “In our view the correct interpretation of rule 4(6) is that time starts to run from the date upon which solicitors last provided services to a complainer in respect of the transaction for which they were instructed” (Lady Dorrian).

7. If any aspect of the complaint may be time barred, based on our initial view of whether each aspect appears to be either a conduct or services complaint, we also draw this to the attention of the parties and specifically invite responses on this matter. Some reasons for taking this approach were noted in Kerr Stirling LLP v Scottish Legal Complaints Commission [2012] CSIH 98: “There is, we consider, some force in counsel's contention that there may be cases in which fairness dictates that the solicitor complained of should be afforded the opportunity to make representations, or to provide further information, in respect of a question of whether a complaint has or has not been made within the time limit provided by the rules” (Lord Kingarth). It also arose as an issue in other appeals considered in our first five years.

8. Our next step is to finalise the eligibility assessment and produce a report with detailed reasoning, which is sent to the parties. In finalising our assessment, we determine how each of the issues of complaint should be categorised, in terms of s 2(1A) of the Act. This is done primarily with reference to the standards of service and/or conduct produced by the relevant professional organisations. At this stage, what is being considered is whether each issue could amount to inadequate professional services or unsatisfactory professional conduct/professional misconduct, based on all the information in our possession. If the complaint contains a combination of separate conduct and service issues, we have a statutory duty to liaise with the relevant professional organisation prior to making the final categorisation. The current professional rules for service and conduct overlap to some extent, meaning careful analysis is required.

9. Once this categorisation has been determined, we can then decide whether or not the complaint is time-barred.

In looking at responses at this stage, we will be considering whether there are any exceptional reasons why the complaint was not made earlier, or exceptional circumstances relating to the nature of the complaint, which would lead us to consider it further. We must also consider whether it is in the public interest for the complaint to proceed. In doing this, we will consider any representations made, based on our initial view (as mentioned above).

10. Finally, we have to determine whether any of the issues are “frivolous, vexatious or totally without merit” – or any combination of the three. It is the complaint that is assessed, rather than the complainer.

Here, again, the process is less straightforward than one might suppose in terms of the extent to which the complaint can be investigated at this stage.

Lord Kingarth’s lead opinion in Council of the Law Society of Scotland v Scottish Legal Complaints Commission [2011] CSIH 79 confirmed that some information needed to be gathered at this stage to enable this function to be undertaken: “It does, however, appear to me that the [SLCC] will require in every case to obtain at least basic information as to the basis upon which the complaint is being made.” The comments received following issue of the summary of complaint assist the SLCC in this regard.

That said, Lord Malcolm’s dissenting opinion in that case, and concurring opinion in McSparran McCormick v Scottish Legal Complaints Commission [2016] CSIH 7 indicated that we should not investigate “too much” at this stage, for risk of overstepping our initial function into actually determining the merits of the case: "Where the Commission is of the view that further investigation is needed, it does not follow that the Commission must carry out that investigation before it can determine the s 2(4) issues. On the contrary, a need for investigation is likely to demonstrate that the complaint is not totally without merit. This remains so even if the likelihood is that further investigation will exonerate the solicitor.”

The result of these opinions is that the bar for accepting complaints is low.

11. Finally, where a complaint appears to be ineligible, the final decision to reject the complaint must be made by one of our independent commissioners. A file is prepared and sent to them, and they take time to scrutinise the file and make a decision.

Early resolution

It is also worth noting that, throughout the process described above, we will seek to identify opportunities for the early resolution of complaints, and will facilitate this when it is appropriate to do so. While this saves the complaint going through the full process, it can be time-consuming at the assessment stage.

As seen then, the process for assessing whether legal complaints are eligible for investigation is not the “quick sift” which was perhaps initially envisaged. Rather it has evolved into a lengthy process requiring significant time and resource.

Whether there are ways that the eligibility process can be done more simply, and more swiftly, is something we continue to explore – both internally, as well as with the relevant professional organisations, the Scottish Government and the SLCC Consumer Panel.

However, returning to that initial question – “Just how complicated can it be?” – I think the answer has to be “Far more than you would think!” Even the most obvious of ineligible complaints can take considerable time and resource to determine.