Aberdeen IT firm successfully challenges dismissal of its complaints made against solicitors  

Aberdeen Computer Services Ltd ultimately agreed twelve issues of complaint with the Commission, which held that only one should be upheld and another partially upheld. It directed that the firm should pay £200 in compensation to the appellant.

The appeal was heard in the Inner House of the Court of Session by Lord Turnbull, Lord Pentland, and Lord Doherty.

No proper opportunity

The appellant’s complaints were made in relation to the actings of two solicitors, R and H, following the appointment of a judicial factor to the appellant in 2011.

Originally the Commission agreed nine issues of complaint with the appellant, which it categorised as conduct complaints. On this basis it determined that issues 1, 2, 6, and 9 were time-barred as they had taken place over a year before the complaint was submitted.

In December 2017, the Commission issued an eligibility decision which instead categorised the appellant’s complaints as service complaints. In September 2018, the appellant pointed out to the Commission that three issues of complaint which had been raised in the original complaint form and considered in the Commission’s investigation report had been overlooked when the summary of complaint was prepared. As a result, three further issues were agreed between the Commission and the appellant.

The Commission concluded that issues 10, 11, and 12, which referred to a potential conflict of interest, were totally without merit in June 2019. In making this decision it relied on its understanding that the appellant had been aware of the potential conflict but been satisfied that R could continue to act. In its final decision, the Commission upheld issue 8 in full and issue 5 in part, with the remaining issues not being upheld.

The appellant argued that the Commission’s decisions on the time-barred issues and the issues added in 2018 were based on errors in law and that there was procedural impropriety in the conduct of any hearing on the complaints. It had not been given a proper opportunity to make representations on matters which were material to the determination of the issues. It was further submitted that, rather than remit the complaint to the Commission, the court should investigate and determine all the issues in the complaint.

In answer, the Commission accepted that had been procedural impropriety in the determination of the time-barred issues and the three issues added in 2018. However, the court should use its powers under the Legal Profession and Legal Aid (Scotland) Act 2007 to uphold the determinations it made on issues 5 and 8.

Procedural impropriety

The opinion of the court was delivered by Lord Doherty. He began: “We are satisfied that there was procedural impropriety in relation to the determination of issues 1, 2, 6, 9, 10, 11 and 12. Issues 1, 2, 6 and 9 were re-categorised by the Commission as services complaints, but in the wake of that change the appellant was not given the opportunity to make representations on the question of time-bar.”

He continued: “Issues 10, 11 and 12 were determined without giving the appellant the opportunity to comment on its awareness of a potential conflict or on the conclusions which the Commission should draw from that awareness. Once again, in our opinion it is clear that the appellant ought to have been given that opportunity.”

Addressing the Commission’s arguments, he said: “The Commission accepts that the procedural impropriety affecting the eligibility decisions has the consequence that the determination report and the determination decision may not have incorporated all of the issues which might otherwise have been held to be eligible for investigation. Nevertheless, it asks the court to uphold its findings on issues 5 and 8.”

He continued: “We are not attracted to that course. The position might have been different if it had been a course which both parties favoured. However, since the appellant resists that suggested disposal, we think it is better that the investigation report, the determination report, and the determination decision are quashed in their entirety.”

Not empowered to investigate

On the appellant’s submissions that the court should investigate and determine the issues itself, Lord Doherty said: “Each of these submissions proceeds upon a misunderstanding of the statutory scheme contained in the 2007 Act.”

He explained further: “The court is not empowered to investigate a complaint or to make findings in fact following such investigations. Its function is that of an appellate court. It is empowered to determine whether any of the grounds of appeal set out in section 21(4) [of the 2007 Act] upon which an appellant relies are well founded. Where, as in the present case, procedural impropriety is established, ordinarily the apposite remedy will be for an appeal to be allowed on that ground and for the matter to be remitted to the Commission to hear the matter anew.”

Lord Doherty concluded: “Since we have concluded that the eligibility decisions, the investigation report, the determination report, and the determination decision require to be quashed because of the procedural impropriety already discussed, it is unnecessary to make findings in relation to the appellant’s other grounds of appeal (and it is probably desirable not to do so since the Commission will have to prepare of new an investigation report).”

For these reasons, the appeal was allowed on the ground of procedural unfairness, with all issues remitted to the Commission for investigation and determination.