SLCC "disappointed" at court ruling against hybrid complaints
The longstanding practice of treating certain complaints against legal practitioners as "hybrid" – capable of being treated as raising issues of both inadequate professional service and professional misconduct – has been ruled improper by the Inner House of the Court of Session.
The Scottish Legal Complaints Commission has expressed its disappointment at the ruling, which it said would have a "huge impact" on its process and its ability to deliver swift redress to complainers.
Yesterday's decision, in the case of Anderson Strathern v Scottish Legal Complaints Commission, was given in an appeal against an SLCC decision on the categorisation of a complaint. The complaint had previously been appealed twice (by the complainer) and was then appealed by the law firm complained about. The SLCC had determined that three of the issues within the complaint were hybrid, but the judges ruuled that two of the issues concerned service only and the remaining issue purely conduct. Further, Lord Malcolm, delivering the opinion of the court, in which he sat with Lord Justice Clerk Lady Dorrian and Lady Clark of Calton, held that complaint issues in general could not be classified as hybrid.
Questions of inadequate professional service are decided by the SLCC, but issues of professional misconduct have to be referred to the legal professional bodies.
Referring to an earlier case in which the propriety of hybrid complaints was raised but not decided, Lord Malcolm commented: "However, in Bartos, the result was that the Faculty, after investigation, held that counsel did not mislead the court, while the Commission, after a separate investigation, reached the view that he had. The Commission’s decision was described as a finding of inadequate professional services, but clearly it was also a finding of at least unsatisfactory professional conduct. It could not reasonably be seen as anything else, the Commission having already sent the allegation to the Faculty on the basis that it raised a matter concerning conduct. This exemplifies the problematic consequences when a complaint which raises one sharp issue of alleged fact is sent down both the conduct and services tracks."
He added: "It would seem undesirable to have separate inquiries by different bodies into (a) whether there was a conflict of interest, and (b) the impact it had on the quality of the service provided, especially since the latter could be relevant to the proper sanction for any finding of misconduct. In short we are of the opinion that if a complaint, or a part of a complaint, suggests a failure in proper professional conduct, a view taken by the Commission that it could also be seen as raising a services issue does not justify the course taken in Bartos. Instead the Commission must decide whether to classify it as a conduct or a services complaint. The real mischief, which may need addressing, is the disparity between the compensation powers available to, on the one hand the professional organisations, and, on the other hand, to the Commission.
SLCC chief executive Neil Stevenson expressed his disappointment in the decision: “The process of categorising issues within a complaint as hybrid is a longstanding one, in use by the Law Society of Scotland before the SLCC was founded, and recognised as appropriate by leading academics and expert regulatory commentators.
“However, the categorisation of whether a complaint is either conduct, service, or both is not just an academic one. Under the current system, if a complaint issue is classified as service or hybrid, the SLCC can award a maximum of £20,000 in compensation. Reclassifying hybrid issues as conduct only will reduce the maximum compensation payable to the complainer to £5,000. Seeing lower compensation in the very cases which could have caused greater cost and impact for clients appears to be a perverse outcome.
“While the clarity the opinion brings is welcome, this decision could have a huge impact on our process and, unfortunately, our ability to provide swift redress to those who bring a valid complaint. We will continue to study the judgment and work closely with others to ensure that legal consumers don’t lose out. Once the judgment has been fully considered, we will communicate with the profession and public further about current cases. We have been calling for some time for a simplification of the ‘customer journey’ in legal complaints, recently through publishing our Reimagine Regulation paper, and believe this only serves to increase the urgency of legislative change."
Carol Brennan, chair of the SLCC consumer panel, added: “I share the Commission’s concerns at the possible detrimental impact this decision will have on complainers’ access to redress, particularly in relation to levels of compensation. The suggestion put forward by counsel for the appellants that complainers who enter the conduct complaint route, which affords significantly lower levels of compensation, still retain the right to pursue damages in court proceedings, appears to counter the very rationale for the SLCC’s creation.”
For the Law Society of Scotland, chief executive Lorna Jack commented: “We have always agreed that the service provided by a firm and the individual conduct of a solicitor represent distinct issues even though they can arise from the same set of circumstances. We were happy to support the SLCC in its arguments during its appeal. However, we now need to respect this judgment, which creates some key challenges for how the SLCC assesses and then handles hybrid complaints. We will work with the Commission and the Faculty of Advocates so the appropriate changes are made and to ensure conduct issues are passed to the relevant professional body for investigation as swiftly as possible. After all, there is an overarching public interest in ensuring solicitors who do not meet certain professional standards are properly disciplined.
“Longer term, this judgment further demonstrates the case for looking again at the whole legislative framework for regulating the Scottish legal profession of which the handling of complaints is an important part. The Scottish Government was elected on a manifesto promise to consult on this issue and we will continue to push for this to remain a priority."