Appeal court decisions clarify SLCC sift tests

Guidance on when a solicitor can properly make allegations against another solicitor or other person has been given by the Inner House in one of two recent decisions in cases appealed from the Scottish Legal Complaints Commission.

In the other appeal, the court has emphasised the importance of progressing proceedings timeously.

In the first appeal, by complainers McSparran McCormick, Lady Dorrian, Lord Drummond Young and Lord Malcolm held that a solicitor is not entitled to make an assertion in correspondence solely because it was made on their client's instructions, but must be able to conclude that on a reasonable interpretation of the facts it would be reasonable to draw such an inference – in the case in point, of fraudulent conduct on the part of another solicitor, acting in conspiracy with others.

They held that the SLCC was wrong to dismiss as totally without merit a complaint by the solicitors accused in the letter, alleging professional misconduct by the writer: the SLCC erred in law in treating the client's instructions as “information to support the allegations”. “The factual information provided to the solicitor did not provide any reasonable basis for drawing such inferences, and the Commission's conclusion that it did so is not supported by the facts upon which it relies”, Lady Dorrian ruled.

She added: “To enable a solicitor to carry out [his duty to represent his clients] properly, his correspondence carries qualified privilege, but allegations of dishonesty should be made only where there is a clear justification for doing so.”

The judges agreed that “the test for rejection of a complaint as totally without merit is that it would not be open to the Law Society to conclude that the conduct complained of amounted to professional misconduct or unsatisfactory professional conduct”. (Click here to view the opinion.)

SLCC chief executive Neil Stevenson commented: “The court has highlighted that firstly, it is essential to consider the seriousness of the allegations; secondly, that there is a distinction between assertions of primary facts and inferences drawn from them; and thirdly, a distinction exists between a letter containing allegations about a particular person that is sent to them directly and a letter containing allegations that is sent to a third party. The court has made clear that where the allegations are of criminal conduct or involve “significant moral turpitude”, some evidence to support these must exist and a client’s contentions cannot be taken at face value.

“I think we have believed, based on our interpretation of previous case law, that when allegations were made at the instruction of the client it was difficult to accept such a complaint against the solicitor for investigation. This case helps us greatly in now being able to consider these issues in a new light.”

In the other case, Lady Clark of Calton ruled that given the “important public interest” in complaint and court proceedings being progressed timeously, an appeal by a man, “SY”, should be refused due to an eight month delay in registering the appeal after leave to proceed had been given.

SY had submitted a complaint form raising five issues; the SLCC determined that three of these were time barred and the other two “totally without merit”. Under the Legal Profession and Legal Aid (Scotland) Act 2007, SY had 28 days to appeal. He was unrepresented. On the 28th day he lodged a request for leave to proceed without the signature of counsel or agent. This was granted by a Lord Ordinary on 9 January 2015.

SY did not register his application for leave until 9 September 2015. He was then fee exempt. In seeking to be allowed to proceed “on cause shown” under s 21(3) of the 2007 Act, he said that solicitors he contacted had failed to assist; he had been trying to sort out his immigration status and his benefits; and personal problems had included eviction from his family home and a period of homelessness. He argued that the complaint raised important issues of trust and confidence in the solicitor concerned.

Lady Clark said it was important to bear in mind that it was the SLCC's and not the court's task to undertake the sifting process. The 2007 Act tried to balance various conflicting interests, one of which was that time limits were set, including for appeals. “I consider that the appeal provisions to this court were part of the balancing exercise which took into account, amongst other things, the public interest”, she commented.

While sympathising with the applicant's difficulties, “there is an important public interest in court proceedings and other complaints proceedings being progressed timeously. In relation to the appeal there is a specific statutory time limit of short duration and that is there for a good reason. I consider that there is significant and unacceptable delay in the appeal process in this case and in all the circumstances the application is refused as it is out of time”. (Click here to view the opinion.)

On this decision Mr Stevenson commented: “We recognise the difficult circumstances faced by the applicant in this case, but we’re pleased the court’s view was consistent with our own that this wasn’t enough to justify allowing the appeal to be received outwith the time limit... Both parties have a right to appeal, but is not helpful for either if this period drags on and creates further uncertainty, or if it means compensation or having the matter put right is delayed.”