Appeal court gives guidance on “vexatious” SLCC complaints
A complainer to the Scottish Legal Complaints Commission has failed to have overturned a decision that his complaint was “vexatious and accordingly not eligible for investigation”, on an appeal to the Inner House.
The court further held that on the facts found, the SLCC would have been entitled to hold that the complaint was “totally without merit”; and that in an appeal on the ground that the SLCC's decision “was not supported by the facts found to be established by the Commission”, it was not open to the complainer to challenge the facts found established.
The appeal was taken to the Court of Session by Stanley Mazur, who had instructed a solicitor, “CD”, in 2009 after the appellant's discharge from sequestration. The appellant had allowed himself to be sequestrated in November 2005 on the advice of another solicitor, “AB”, but claimed that he had as a result suffered considerable financial loss and also damage to his reputation and credit. He had since been involved in several related litigations and complaint procedures. CD raised a professional negligence case on behalf of the appellant against AB, which was settled.
His complaint was that CD lied in his evidence during a proof at Perth Sheriff Court in that he stated to the court that the appellant did not instruct him in relation to the appellant’s sequestration in January 2009. This was in an action in which CD was suing for payment of fees. The appellant claimed CD had been instructed in order to prevent his sequestration and could have done so but had failed to.
The SLCC noted that the sheriff had accepted CD's evidence and an appeal sheriff had concluded that the sheriff had made no error. Having regard to the ongoing conflict between the appellant and CD, it believed that the appellant's intention in raising this complaint stemmed from this conflict and was motivated by vexatiousness.
A judge granted leave to appeal on the basis that it was not explained why the history pointed to a finding of vexatiousness in the sense of a groundless complaint pursued because of a dishonourable ulterior motive, and it was at least arguable that the factors relied on did not support the SLCC's determination. At the appeal hearing the appellant stated that his appeal was on the ground in s 21(4)(d) of the Legal Profession and Legal Aid (Scotland) Act 2007, that “the Commission’s decision [is] not supported by the facts found to be established by the Commission”.
Delivering the opinion of the court, Lady Paton, who sat with Lord Menzies and Lord Glennie, said that on the facts found by the SLCC, it was entitled to conclude that there was no basis for the complaint that CD lied in his evidence. These included that the fees sued for related solely to the professional negligence claim, attempts to raise recall of the sequestration in evidence had been successfully objected to, and the sheriff had described the appellant as maintaining a “dogmatic rejection” of CD's claim and an “unrealistic” approach. While the appellant had sought to challenge some of the facts found, s 21(4)(d) did not permit any such challenge: the sole question was whether its decision was not supported by the facts found. In any event it was entitled to find the facts it did; and on those findings, it would have been entitled to find that the complaint was “totally without merit” in terms of the Act.
As to whether the complaint was “vexatious”, the term had a particular meaning in this context which related to bringing hopeless actions and applications that had the effect of subjecting the defender to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and involved an abuse of the process of the court; it was not necessary to establish the claimant's motive. This was an objective test which entailed an assessment of all the facts and circumstances. Having regard to the history of the litigations, and the appellant's lack of a statable case in fact or law, it could not be said that the SLCC was not entitled to conclude that the complaint was “vexatious”.
The appeal was refused.