SLCC highlights eligibility criteria following firm's failed appeal
The eligibility test for complaints against legal practitioners is a low one, and the acceptance of a complaint for investigation does not mean that there is already a stain on the practitioner's record, the Scottish Legal Complaints Commission emphasised today.
In a statement issued following an unsuccessful application to the Court of Session by a firm of solicitors for leave to appeal an eligibility determination, the SLCC said there were still "misconceptions" surrounding the test.
The application for leave came from a firm seeking to appeal a decision that a number of issues of complaint were accepted as eligible services complaints and were not frivolous, vexatious or totally without merit. It was refused by Lord Glennie, who "endorsed the already established view that at this stage there is a low bar for accepting issues of complaint", the SLCC commented.
Lord Glennie’s note states: "Having categorised the complaints into service complaints or conduct complaints (and in the present case they were categorised as service complaints), the Commission has to decide in respect of each complaint whether it is frivolous, vexatious or totally without merit; and if it decides the complaint is any or all of these things, it must reject the complaint and notify the relevant parties. That is a high test to be applied or, to put it another way, is a low threshold to be crossed."
The SLCC observed that its eligibility determination that some issues of complaint should be accepted for investigation "represents what is essentially a sifting function to establish whether issues of complaint require investigation".
Mark Paxton, one of the SLCC’s case investigation managers, explained: “There can be misconceptions about the eligibility test, one of the most complex stages within the process prescribed in statute. We have seen comments in the past that ‘too many complaints’ are let in, but the courts are once again making clear there is a high test to be met if complaints are dismissed at this stage. We know others can think the eligibility decision is an early indication of eventual substantive outcome, which is not the case – it is simply a decision that matters need formally investigated to have sufficient information to make a decision. We are also aware that, for practitioners, the fact that this is a formal 'decision', appealable to the Court of Session, suggests that it is somehow already a stain on the practitioner’s record – which again is just not the case.”
Lord Glennie went on to reiterate that “the nature and extent of the investigation to be carried out by the Commission, and how they go about it, is pre-eminently a matter for the Commission itself”. Having considered that there was no basis for establishing that the SLCC had erred in law or acted irrationally, the court refused leave to appeal the decision.
The decision also indicates the time and resource expended by the SLCC in carrying out this sifting function. The court made reference to the detail in which the SLCC had dealt with this determination, stating: “The Commission’s decision in the present case is very fully reasoned… The decision deals with each complaint individually and over a number of paragraphs”.
In this case, the SLCC's costs will be recovered following the decision of the court to award expenses. However it notes that such an award is unlikely to recompense the full cost of all work done in relation to the appeal, and the process of contesting appeals continues to be a significant factor which the SLCC has to contend with in managing its budget.
Neil Stevenson, CEO added: "The expense of appeals has been a key driver of increasing cost in the last two years. Looking at other complaints bodies and ombudsmen it is very unusual for a right of appeal, especially to such a senior court, to be provided for in a complaints process on a decision simply that something needs investigated. Our current proposals for statutory reform recommend that a more proportionate approach should be considered."