The Scottish Legal Complaints Commission is not required to ascertain whether the terms of a solicitor’s file notes are agreed by a complainer before reaching a decision on the admissibility of a complaint, a judge in the Court of Session has ruled.
Caroline Oliphant sought leave to appeal a decision of the SLCC to reject her complaint against the solicitors’ firm Turcan Connell as “totally without merit”, but Lady Cark of Calton (pictured) refused the application.
The court heard that the firm had advised Ms Oliphant in relation to an employment law matter and had drafted an ET1 form on her behalf. She noted that some points were missing, but submitted the form as drafted to the employment tribunal.
The employment judge requested further and better particulars of claim from the applicant, which were later submitted, but at a pre-hearing review the judge concluded that that applicant had sought “to introduce claims, none of which had been previously pled”.
In an appeal to the Employment Appeal Tribunal in which the applicant was represented by Muir Myles Laverty, the EAT concluded that since the matters were not referred to in the ET1 form and no explanation for the new matters being raised late was given, the employment tribunal did not err in law and was entitled in the exercise of its discretion to refuse amendment.
The second solicitors made a complaint on behalf of the applicant to the SLCC, referring to a number of matters in relation to the actions/inactions of the first solicitors who had acted for the applicant, namely that the ET1 form was incompetently framed due to “inadequate advice”, and that the firm “failed to communicate effectively” with the applicant in advising her of the various heads of claim included in her form.
However, the judge noted that the ground of appeal in respect of which leave to appeal was sought made no reference to anything other than a general complaint about the practice of the SLCC in relation to file notes, and that counsel for the applicant made it plain that there was no submission that the file notes did not represent genuine contemporaneous records.
Lady Clark explained: “The complaint seemed to be 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.”
But the judge rejected that contention.
“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 said.
In a further submission which went beyond the terms of the ground for leave to appeal, counsel for the applicant also criticised the procedure adopted by the SLCC, on the basis that a letter by the first solicitors explaining the file should have been provided to the applicant for comment prior to the determination.
However, the judge was not persuaded that the SLCC were under any duty to proceed in the way put forward.
Delivering her opinion, Lady Clark said: “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 also made the obiter observation 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” and that “prima facie, the task of the SLCC at the preliminary sifting stage cannot be categorised as a ‘hearing’ as envisaged in the legislation”.