Man detained in psychiatric hospital refused permission to appeal SLCC decision

Lord Drummond Young
Lord Drummond Young

A man currently detained in a psychiatric hospital has been refused permission to appeal a decision of the Scottish Legal Complaints Commission regarding the service he received from a solicitor.

David Lilburn alleged that the solicitor had failed to communicate effectively with him and had failed to follow his instruction to approach the Scottish Legal Aid Board regarding its refusal to sanction further legal costs relating to a potential claim against an insurance company.

The application was heard by Lord Drummond Young in the Inner House of the Court of Session.

Blurring of lines

The applicant instructed Michael Thompson of Thompson Family Law in early 2017 regarding a claim he wished to make against an insurance company for breach of contract. He contended that, under the terms of his insurance contract, the company was obliged to pay him sickness benefits on a continuing basis. At the time that he instructed Mr Thompson, the applicant was detained in Carstairs State Hospital in South Lanarkshire.

Mr Thompson applied to SLAB, which granted legal aid, with a view to obtaining an opinion from counsel on the merits of the applicant’s claim. The opinion he received was unfavourable to the claim, which did not satisfy the applicant. The applicant then had a request made to SLAB for additional legal aid to permit a consultation with counsel at Carstairs. This request was refused.

After further correspondence, Mr Thompson refused to carry out any further action on behalf of the applicant in relation to other services he claimed he wished the solicitor to carry out. A services complaint was subsequently made to the SLCC.

The complaint comprised two individual complaints. The first was that Mr Thompson had failed to communicate effectively with the applicant as he did not respond to several letters sent from December 2018 to February 2019 that concerned “important matters” regarding the applicant’s case. The second was that he had failed to follow the applicant’s instruction to approach SLAB for a reconsideration of its decision not to grant legal aid for a consultation with the advocate who gave the original opinion on the claim at Carstairs.

The SLCC held that both complaints were totally without merit, and rejected the application. It stated in its decision letter that it considered that the work carried out by Mr Thompson was only undertaken under the Legal Advice and Assistance Scheme, and work had concluded when SLAB refused to sanction any further action. Whilst the applicant had written to Mr Thompson subsequently to seek a quotation for fee-paying work, nothing was said about approaching SLAB again.

Furthermore, Mr Thompson had sent two letters to the applicant in January and February 2019. He had stated in his letters that there was a “blurring of lines” as to what was being instructed by the applicant, and that he would not respond to further letters without clear terms of business and funding arrangements. The applicant stated that he did not receive these letters.

The applicant appealed the decision to the Court of Session on the grounds that the SLCC had erred in law in making its decision. A large number of overlapping grounds of appeal were given as evidence for this submission.

Reasonable prospect of success

In his opinion, Lord Drummond Young considered whether the SLCC had correctly applied the “reasonable prospect of success” test to the application, saying: “In the present case the respondent was aware of the terms of the applicant’s complaint, and took those into account. It had been given a history of matters by the applicant, and copies of all the material correspondence. […] Furthermore, the respondent, as the body responsible for all complaints made against solicitors, is particularly well placed to know about the general practice of solicitors, and possible variations in such practice. In these circumstances it is clear in my opinion that the respondent had all of the information that it required in order to decide whether or not the applicant’s complaint was totally without merit. Further investigation was unnecessary in all the circumstances.”

He continued: “The applicant claims that the respondent’s decision was ‘not supported by facts found to be established by the Commission’. This allegation is not specified further. In my opinion it is plainly unfounded. The respondent’s decision narrates at some length correspondence between the solicitor and the applicant, and it is on the basis of that correspondence that its decision is reached.”

Regarding the agreed terms of the solicitor’s engagement, the judge said: “In ground 7 it is said that the respondent erred in deciding that the solicitor only agreed to work under the Legal Aid Advice and Assistance Scheme; this, it is said, was incompatible with the terms of the solicitor’s letter of 10 December 2018. In ground 8 it is said that the respondent erred in deciding that the solicitor’s offer to undertake work on a private basis could only be effective once a new agreement and terms of business had been issued, as the applicant had stated in his letter of 12 December that he wished to take up the solicitor’s offer to do work privately. It is clear in my opinion that these grounds are unfounded, and would not have any realistic prospect of success in an appeal. On the basis of the correspondence that is available that the respondent’s conclusions on these matters were plainly correct.”

Relating to Mr Thompson’s refusal to approach SLAB for reconsideration, he said: “Although it is not entirely clear, it appears that the applicant’s position is that the respondent erred in law in holding that the solicitor was not obliged to apply for reconsideration. The respondent explains its reasoning at some length in its decision. In particular, the solicitor stated that he did not wish to apply for reconsideration of the decision because he had received an unfavourable opinion from counsel. In my opinion that was clearly the correct attitude for the solicitor to take.”

In respect of the alleged reply letters, he said: “The respondent was satisfied that what was involved was a mere assertion by the applicant, which did not justify further investigation of the complaint. In my opinion the respondent was fully justified in adopting that course. Such an investigation would present considerable practical difficulties, including confidentiality. In these circumstances it cannot be said that the respondent’s decision is one that no reasonable body in its position could reach.”

For these and other similar reasons, the application was refused.

© Scottish Legal News Ltd 2021

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