Both sides greet court ruling on relabelling "hybrid" legal complaints

Both the Scottish Legal Complaints Commission and the Law Society of Scotland have stated that they welcome the latest Court of Session ruling on legal issues arising from the handling of complaints against practitioners, though it was the Commission's approach that the court upheld.

Last Friday three appeal judges, by a majority, ruled that the Commission had power to re-categorise complaints which, although they raised only a single issue, the Commission had originally classed as "hybrid" – that is, containing both elements of inadequate professional service, which the Commission has to investigate, and professional misconduct, which the Society has to deal with. (Click here for report.) A previous decision had ruled that a single issue had to be classed as one or the other, and the Society had contested the Commission's decision to take a number of complaints out of its reach and treat them as service complaints only.

Today the Commission said it was pleased that all three judges recognised the key issue – that, on the basis of the previous ruling, cases could not have legally continued with a “hybrid classification” along both the conduct and service route, as argued by the Society.  

It continued: "We issued a detailed statement in December setting out our views on this litigation, and the cost and delay it would cause. Our budget consultation in the spring of this year highlighted clearly the immediate impact on the profession and public respectively in terms of our levy and the delays and backlog caused by this case. This, along with further legal fees, will continue to impact on our 2018-19 budget and on delays stemming from the backlog of complaints which has built up.

"We now look forward to starting to progress those cases which have had to be on hold for almost a year, and getting back to the effective working relationships required to make the current system work. On that we are pleased to note the willingness the Law Society has already shown in working with us to ensure our original plan is finally delivered. This is more important than ever in the context of a strong upward trend of incoming complaints to the SLCC."

For the Society, President Graham Matthews commented: “Our decision to take this matter to the Court of Session was a difficult one. There were clear public interest issues at stake following last year’s court decision and the uncertainty which was created around the handling of complaints with hybrid issues.

“The judges admitted it was a highly complex case. The divergent views within the final judgment underline that complexity and show how difficult it was to identify the correct way forward. However, we now have the legal clarity we need, especially around cases where a decision had already been taken. That helps prevent any attempt to unpick historic cases.

“We will continue to work closely with the SLCC to deal with all complaints that have been paused pending the court decision. We have a shared interest to always ensure standards for solicitors are maintained and that the public are protected on the few occasions when things go seriously wrong."

Both parties also emphasised the need to reform the legislative framework around legal complaints, which is part of the Scottish Government’s independent review of legal services regulation, begun in April under Esther Roberton, current chair of NHS 24.