Inner House states procedure where SLCC concedes appeal

The Scottish Legal Complaints Commission is obliged by statute to become a party to appeal proceedings against one of its decisions, though is not required to contest an application for leave to appeal, the Inner House has held.

Lord Menzies, Lord Malcolm and Lord Doherty gave the ruling in allowing an appeal by B, a solicitor, against a decision of the SLCC holding that there were exceptional circumstances for allowing a complaint by a client, TS, to be considered though made some years after the normal time limit. The SLCC had intimated to B that it did not propose to resist the appeal.

TS had been a legal aid client of a firm, HLP, to which a judicial factor had been appointed. B had been willing to take on the firm's chamber business but did not provide litigation services and was not registered for legal aid. At the judicial factor's suggestion he employed a solicitor previously employed by HLP who was registered to do legal aid work, and all files from HLP were transferred to him. The arrangement with the other solicitor did not work out and she left without giving notice. B found another firm to take over the litigation files and transferred them on the understanding that they would contact the clients concerned to offer their services.

These events took place in 2012. In 2018 TS complained to the SLCC about B, including that he had transferred her file without a mandate to do that. On the SLCC's rules at the time, the complaint should have been made within 12 months of TS becoming aware of the conduct complained of. The SLCC determined that the circumstances were exceptional and admitted the complaint. B sought and obtained leave to appeal, and then lodged an appeal. The SLCC entered into two successive joint minutes with B, the second of which sought allowance of the appeal and a finding that the complaint was out of time and should not be admitted for investigation, along with a “McAllister” minute explaining why the circumstances could not be said to be exceptional. 

The court wished to be addressed on intimation of the proposed disposal of the appeal. It was said for the SLCC that having re-examined its decision with fuller information, it accepted that it could not defend it. It did not consider that it was necessary for the Law Society of Scotland or TS to be informed of the settlement, as neither had chosen to lodge answers to the appeal.

In the opinion of the court, Lord Doherty explained that the court had instructed the clerk of court to intimate the proposed settlement to the parties and invite representations. They might have proceeded in the expectation that the SLCC would defend its decision. “When the Commission decides not to contest an appeal we think that fairness will generally require that such interested parties be informed of the Commission's position before the court disposes of the appeal”, he said – especially where the court was asked to substitute its own decision for the SLCC's, because there was no further right of appeal. This intimation should take place as soon as possible.

In the present case the Society did not make representations; TS did, but the court said these gave no basis for finding exceptional circumstances, and the appeal would be allowed and the finding made as requested.

Turning to s 21(5) of the Legal Profession etc (Scotland) Act 2007, Lord Doherty continued: “In our opinion s 21(5) requires the Commission to become a party to appeal proceedings. That is the ordinary and natural meaning of the language of the provision. In our view it is also a sensible and reasonable construction when regard is had to the fact that the appeal is against the Commission's decision.” Even where it decided not to resist an appeal, by lodging answers it became a party and could enter into a joint minute and a McAllister minute, and explain its position if necessary.

The court concluded by confirming that an application for leave to appeal “should be intimated to all parties with an interest”, as should an appeal unless such a party had “unequivocally indicated that it does not require the appeal to be served upon it”.

Responding to the ruling, the SLCC said it “accepts what is said in the opinion and is grateful for the additional guidance from the court on these matters. The SLCC does not ever concede an appeal lightly and takes into account a number of factors where it does so, including legal advice received and wider public interest concerns”.

Click here to view the opinion of the court.