SLCC welcomes latest decision on test for leave to appeal

The Scottish Legal Complaints Commission has welcomed the publication of an Inner House opinion supporting the commonly applied test for leave to appeal a decision by the Commission, which had been called into question in another recent case.

In Matthews v Scottish Legal Complaints Commission, decided in May but only recently posted to the Scottish Courts website, Lord Drummond Young accepted the test for leave to appeal laid down by the Extra Division in Williams v Scottish Legal Complaints Commission [2010] CSIH 73, which had been applied in all prior applications for leave to appeal against SLCC decisions, despite doubts expressed by Lady Smith in McSparran McCormick v Scottish Legal Complaints Commission 2015 SLT 43.

Williams requires that an appeal must have a real prospect of success or that there is some other compelling reason why it should be heard. Lady Smith considered this imposed too high a hurdle and preferred the view that the court should simply exercise its discretion as to whether or not in all the circumstances it ought to grant leave to appeal. Lord Drummond Young, after considering the two authorities, ruled: “On this matter I prefer the test in Williams, namely that there is a real, or I would prefer to say, a realistic prospect of success.”

The complaint to the SLCC in Matthews consisted of seven separate issues, six of which were rejected by the SLCC as "totally without merit" and the other as "frivolous" – the wording provided in s 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007. The latter description was applied to a solicitor's conduct three years previously when he failed to copy certain correspondence to one executor during a dispute between executors, which conduct was subsequently reversed.

Lord Drummond Young commented: "The word 'frivolous' is not perhaps the most helpful; what was involved in this case was a failure to observe a solicitor’s legal duty to provide all trustees with trust correspondence. Nevertheless the matter must, I think, be looked at in context: although there was acknowledged fault on the part of one of the solicitors it is something that had happened three years before, and it seems clear that it was resolved shortly afterwards." He did not require to decide whether the complaint had been out of time.

He added that the SLCC had been justified in rejecting the other grounds of complaint as without merit.

Neil Stevenson, chief executive of the SLCC, commented: “It is clear from parliamentary debates and the Act which sets out our powers that the original intention for the SLCC was of a quick, effective and final resolution and to avoid consumer issues being addressed routinely in the court, and the distress and cost that brings to both parties. We recognise the value of an appeal route, but believe the Williams test creates the correct balance and reinforces that appeal to the court should not become an automatic ‘next step’."

On the merits of the case he added: “This endorsement of the SLCC’s position helps clients and practitioners. A key issue here was that the solicitor quickly admitted and rectified an issue, ensuring there was no detriment to the client. Quick resolution of a problem can often be better for the client, and we want a framework which encourages practitioners to admit issues immediately and put them right."