SLCC successfully defends ‘leave to appeal’ cases

The Scottish Legal Complaints Commission (SLCC) has succeeded in defending a number of ‘leave to appeal’ cases in the Inner House of the Court of Session.

These include five cases where the complainer sought leave to appeal against the SLCC’s decision that the complaint was ineligible for investigation. A further case sought leave to appeal the decision of a Determination Committee decision not to uphold a complaint. In all of these cases the court found that the applicant had not identified any ground of appeal upon which leave could be granted.

The application must meet the test for leave, that it has a realistic prospect of success. The four possible grounds of appeal are:

1.   that the Commission's decision was based on an error of law
2.   that there has been a procedural impropriety in the conduct of any hearing by the Commission on the complaint
3.   that the Commission has acted irrationally in the exercise of its discretion
4.   that the Commission's decision was not supported by the facts found to be established by the Commission.

Responding to one of the cases requesting leave to appeal an eligibility decision, Lord Malcolm stated that, “it is important to note that the Commission is the primary decision maker in these matters. The court process is not a substitute mechanism for investigating and adjudicating upon complaints.” Lord Malcom also commented on the SLCC’s decision report, stating that “the factual basis for each decision was explained clearly and cogently, and supported the Commission’s conclusions”.

Lord Malcom also ruled on another of the eligibility cases, stating that “it is not enough for an applicant to express reasons for disagreement with a decision. Even if a court considered that it would have made a different determination, such would not permit it to quash the Commission’s disposal. The statutory scheme is that the SLCC is the primary decision-maker.”

In ruling on the request for leave to appeal a Determination Committee decision, Lord Turnbull noted that “when making a determination under this section of the 2007 Act the respondent acts as the specialist body tasked with dealing with such matters.  Accordingly it should be accorded a degree of institutional respect when making decisions of this kind”.

Gillian Martin, Case Investigation Manager, said: “Defending our decisions against requests for leave to appeal is a frequent part of our work, and one that is both costly and time consuming.

“While we welcome these judgement, and the comments made by Lords Malcolm and Turnbull in ruling on these cases, we continue to believe that a power of appeal to the highest court in the land is disproportionately expensive and time consuming for us, for complainers and for the legal profession.

“Legal fees and court fees are a key driver of cost in our current system, and even where we are able to successfully defend appeals or leave to appeal hearings, and our process and decision making has been found to be without fault, we are often unable to recover those costs. That is particularly the case where, as in a number of these recent cases, the case has been brought by a party litigant – usually the complainer acting on their own behalf. However, the potential cost to those complainers, where they are held to be liable for expenses, also suggests that this is not an appropriate appeal route.

“We continue to believe building momentum and consensus around reform to a more proportionate system would best service the public and profession.”