SLCC not obliged to seek comment on solicitors' file notes
The Scottish Legal Complaints Commission was not obliged to seek comments from a complainer on a solicitor's file notes before reaching a decision on admissibility of a complaint, a Court of Session judge has held.
Lady Clark of Calton gave the ruling in refusing an application by Caroline Oliphant for leave to appeal the SLCC's decision to reject as "totally without merit" her complaint against Turcan Connell, solicitors, who had advised her in an employment matter.
The judge noted the restricted nature of Ms Oliphant's original complaint, which related to failure to provide adequate advice at a particular meeting and to a failure in communication. Her counsel did not submit that the solicitors' file notes did not represent genuine contemporaneous records, or were in some way deficient. "The complaint seemed to be", she said, "that the applicant, if she had been asked by SLCC for her comments prior to the determination, might have been able to give information to explain the file notes or somehow give a different or fuller context. Counsel submitted that this would have informed the SLCC and somehow (in a way which was never explained) would have affected the decision‑making of the SLCC in favour of the applicant."
Lady Clark did not agree. "I was unable to understand how it could possibly be asserted that the decision of the SLCC might, would or should have been different if the SLCC had ascertained whether the file notes are agreed by the complainer, before reaching that decision", she continued.
She was also unpersuaded by a submission that the SLCC was obliged as a matter of procedural fairnes to put a letter from the solicitors explaining or commenting on the file, to the complainer – a submission which in any event went beyond the grounds of appeal. Counsel was also refused leave to add a new ground, that no reasonable decision maker could have reached that decision based on the information before it.
Lady Clark concluded: "It was not difficult to conclude in this case that even with a very low test the ground of appeal does not have any real prospect of success. There seems to be nothing more than general assertion that in this case there was unfair procedure in the manner specified in the ground of appeal. There was no foundation in the submission to support a conclusion that the allegedly unfair procedure adversely affected the applicant or the outcome of the decision-making in relation to the specific grounds of complaint rejected by the applicant."
She added (obiter, since the point had not been argued), that the purported statutory basis for the appeal, section 21(4)(b) of the Legal Profession and Legal Aid (Scotland) Act 2007, appeared to be limited to procedural impropriety in the conduct of any "hearing", whereas "Prima facie, the task of the SLCC at the preliminary sifting stage cannot be categorised as a 'hearing' as envisaged in the legislation."