Judge grants leave to appeal SLCC complaint dismissal
Leave to appeal to the Court of Session has been allowed against a determination by the Scottish Legal Complaints Commission that a complaint by one firm of solicitors against another was wholly without merit.
Judge Lady Smith granted an application by Glasgow firm McSparran McCormick regarding their complaint against John McGeechan of JBM Solicitors, Airdrie. After the complainers acted in the winding up of an estate on the basis that the deceased had died intestate, in accordance with a deed of variation agreed between his children, they received a letter from Mr McGeechan written following instructions from one of the children and from a former partner of the deceased. This referred to a copy of a 1990 will by the deceased which had been shown to, but apparently ignored by, an accountant at a meeting at which the deed of arrangement was signed. It suggested that the complainers had been aware of the existence of the will, and "It appears that the deed of variation was a fraud."
While the letter also asked if there was an alternative explanation, a letter written to another firm acting for a different family member stated that the deed "appears… to be evidence of fraud on the part of those who benefited... and it raises questions about the actions of the law firm… involved”.
The SLCC rejected the complaint on the basis that Mr McGeechan was entitled to accept his clients’ account and to write the letter on that basis. Lady Smith however pointed out that the letters appeared to go beyond any factual account provided by the clients, which went no further than advising that a copy of the 1990 will existed. Secondly, given the serious nature of the allegation, she asked, "can it really be said that, even if it was the client who set the ball rolling, so to speak, this complaint is totally without merit?" Given that the court had previously decided that the threshold set by the phrase was a low one, "it is not difficult to conclude that the appeal has real prospects of success".
Lady Smith said she disagreed with a statement in the 2010 case of Williams that leave to appeal should only be granted "if the appeal has a real prospect of success or there is some other compelling reason why it should be heard". The legislation left it to the court as to whether to exercise its discretion.
However the case satisfied the test in any event: "The compelling reason which I am persuaded exists is the interests of the solicitors’ profession as a whole in the issue of the extent to which a solicitor may pray in aid his client’s instructions when making an allegation of such gravity as has been made in this case. They are concerned that [Law Society of Scotland v Scottish Legal Complaints Commission 2011 SC 94] is being misunderstood by SLCC and, as a result, allegations of misconduct/unprofessional conduct such as in the present case, are liable to be erroneously rejected as totally without merit. I accept that, in all these circumstances, there is a compelling reason for granting leave to appeal."