Solicitor's appeal fails against SLCC's admission of late complaint

A solicitor has been refused leave to appeal a decision of the Scottish Legal Complaints Commission to accept a complaint regarding the non-payment of expert witness fees, though made late.

Lady Paton in the Court of Session ruled that the Solicitort, Ms B, had failed to show that the appeal had a reasonable prospect of success either on the basis of error of law by the SLCC or of its having made a determination that no reasonable body could have reached.

The complaint came from an expert witness, Professor Weller, who stated that Ms B's firm had failed to pay his fee of £15,000. The fee note, for a "cancellation fee", was rendered in November 2012, payable within two months. Ms B and her firm did not accept that the fee was due. Complaint was made to the SLCC in August 2015, more than two and a half years after the time for payment elapsed. In correspondence Professor Weller advised the SLCC that he had received no response to a direct approach to the firm. After inviting comments from the firm, the SLCC then wrote stating that the complaint was possibly time barred (by the one year rule) and inviting comments on that point. The firm assumed that this point had taken precedence and submitted no comments. 

In deciding to receive the complaint, the SLCC stated that no comments had been received from the firm, whereas Professor Weller had advised that he had been in extensive discussions and negotiations through his own solicitors, which ended in May 2015. Given the level of fees being claimed, the public interest due to the importance of professional witnesses being able to rely on solicitors paying for their services, and possible questions regarding the solicitor’s trust and personal integrity, the complaint should be accepted.

Giving her decision, Lady Paton said the SLCC had been faced with a complaint by a professor who had been instructed as an expert, who had issued a prima facie regular fee note, and who had offered a plausible explanation for the lateness of the complaint. It had no information to contradict those assertions, in particular to suggest that the fee was excessive, or that it was not due, or that there had been no negotiations until May 2015, but only a clear indication at the outset from the firm that the fee was not going to be paid as it was not due.

"Standing the information which they had," Lady Paton concluded, the SLCC was entitled to conclude that this was not a situation where there had been no or little activity between the discovery of the misconduct and the making of a complaint; that what was complained of was not a situation regularly or routinely encountered; that the matter was of some public importance; and that rule 7(3)(a) and (c) of its rules applied (exceptional reasons why complaint not made sooner, and public interest to proceed).

She added: "It is perhaps a matter of some regret that there is no second chance for representations or comments to be made. However, standing the terms of the 2007 Act, the 2015 rules, and authorities such as Murnin [2013], there appears to be no such option available."

SLCC chief executive Neil Stevenson commented following the decision: "It is vital that solicitors respond appropriately when the SLCC contacts them in relation to a complaint. Without a response it is more likely a complaint will be admitted, causing more work and stress for the practitioner and extra cost for the whole sector. It delays closure for the client, whether that being the case being dismissed or upheld, and risks undermining confidence in the profession.”

He added: “The appropriateness, cost, and delays incurred by appeals at the early stage in the process, which under the statute is before an actual investigation of facts takes place, is of increasing concern to the SLCC. We rarely recover full costs, and this case will be another bill which all lawyers then have to in part fund through the general levy. We will shortly be publishing suggestions for reform of the complaints handling model, and there may need to be debate on whether the Inner House is the appropriate forum for these cases and whether every stage should be appealable to the courts or only the final outcome.”

Click here to view the opinion.