Court refuses leave to appeal complaint judged "totally without merit"
The Court of Session has refused leave to appeal a determination of the Scottish Legal Complaints Commission to reject a complaint as "totally without merit", but declined to award expenses in favour of the SLCC.
Lord Brodie decided that he was "quite unable to detect any error of law or irrationality or error in fact" on the part of the SLCC in its consideration of the complaint by Edward Price against the firm of Miller Hendry.
Mr Price owned a house in Crieff, the rear of which could be accessed by a lane ending in a cul-de-sac as it reached his property. The solum of the lane was part of the title to a nearby property. Miller Hendry acted for the owners of this property. Mr Price claimed servitude rights of access (said to be part of his title) and parking (said to have been acquired by prescription) over the lane. The latter right was disputed. Discussions over a possible deed of servitude broke down, and the other property was sold.
Mr Price complained that the solicitors had inappropriately advised their client to insist that he pay for a deed of servitude, when they were aware that servitude rights were well established; that they failed to ensure that the purchaser was made aware of the servitude burdens; and that they failed to ensure that the sellers were aware of their own obligations. The SLCC treated this as a services complaint.
Conducting his own application for leave to appeal, Mr Price disputed the SLCC's assessment and claimed that its determination was biased and contained misleading and inaccurate statements.
Lord Brodie agreed with the SLCC that the complaint could not be treated as a conduct complaint as no individual practioner was named. Mr Price had also failed to show that he had any realistic prospect of success in his appeal: "Once it is understood that it was no part of Miller Hendry’s duties to arbitrate on the strengths of the applicant’s claims to have rights of access over and parking on the lane, far less to advocate the strength of these claims to their clients and the solicitors acting for the purchaser...; and that, similarly, it was no part of the function of the Commission to assess the strength of the claims, the substance of the applicant’s proposed appeal falls away.
"The applicant may be entirely correct in his assessment of the law as it applies to the facts of the case, but if that is so, the action to be taken in the light of that and in the light of the attitude of the other parties is entirely a matter for him and his own legal advisers."
He was critical of allegations that the SLCC was biased and had lied in statements it had made, albeit one sentence in its determination was ambiguous.
However, "with some hesitation", he did not award expenses to the SLCC, although Mr Price had "directed his energies and resources in an entirely misguided manner and in doing so has involved others in trouble and expense which includes the Commission’s legal expenses in this appeal", a procedure which never had any prospect of resolving the issue concerning the lane.
Lord Brodie decided that he was "unwilling to contribute to the applicant’s self‑inflicted harm", and considered his discretion "wide enough at this preliminary stage in the appeal in relation to a matter originating in a complaint against members of the legal profession to depart from the usual rule".
Neil Stevenson, chief executive of the SLCC, commented that there were interesting lessons in the case both for party litigants considering appealing a case, and for lawyers in terms of how the SLCC examined third party complaints. The court had found that Mr Price had confused the different layers of dispute involced in the case, and the proper role of the SLCC.
He added: "We respect the court’s decision not to award expenses against a party litigant, and the difficulties of party litigants in the current court systems and structures. However, this approach does mean that we now have to pass on these costs to lawyers, and so ultimately to their clients, through our levies. In our recent paper ReimagineRegulation, which looks at possible legislative reform [click here for report], we ask whether the Court of Session is the best forum for these appeals both in terms of an accessible forum for those appealing, and in terms of the significant costs it introduces into the handling of legal complaints."
Mr Stevenson also pointed out that if new business models are licensed under the Legal Services (Scotland) Act 2010, a "regulatory complaint", treated in the same way as a conduct complaint, could be made against a firm licensed under that regime. "Again, our legislative reform paper questions how well informed consumers will be of their differing options and rights, and recommends we actually need to step back and simplify our current system.“