Man who sent Scottish Legal Complaints Commission abusive email refused leave to appeal against refusal of complaint

John Swindells alleged that the firm had failed to competently wind up the estate and had sent the Commission an abusive email challenging its decision. Of the nine grounds of complaint submitted, three were investigated by the Commission and two upheld.

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

Highly offensive terms 

The Commission recommended in March 2020 that six of the nine issues of complaint should be rejected as being totally without merit. Following an investigation, the Commission decided that Issues 1 and 3, concerning the firm’s failure to obtain the death certificate timeously and failure to notify three companies of the deceased’s death respectively, should be upheld. Compensation in the sum of £500 for the applicant’s inconvenience and distress was recommended. 

It was recommended that Issue 2, which involved an allegation that the firm failed to communicate effectively with the applicant about the fact that they had not received the death certificate, should not be upheld. No reduction of the firm’s fees was proposed, and the Commission did not find that the applicant had established any actual loss. 

The applicant did not accept the Commission’s recommendations. On 18 March 2020 he sent the Commission an email expressed in “highly abusive and offensive terms” alleging that it had not taken any of his comments on board or investigated anything. The following day, he was advised in a reply that in light of the language he used any future correspondence from him should be by letter. 

The complaint was suspended by the Commission for about 11 weeks pending an eligibility decision on another of the applicant’s submitted complaints. In a letter, it explained that this was to determine whether the two complaints could be heard jointly. The complaint was unsuspended in June 2020 and proceeded to a final decision. 

In its final determination, the Commission followed the recommendations made by the investigation. the Determination Committee formed the view that the inadequate professional service which had been identified had been minor and would have caused the applicant minor upset and inconvenience. The delay in obtaining the death certificate would have had no impact on the administration of the estate. The final amount of compensation the firm was directed to pay the applicant was £150. 

Attacks on the legal profession 

In his opinion, Lord Pentland began by describing the application for leave to appeal as follows: “It sets out, tendentiously and at length, a whole host of complaints about and attacks on the respondent, the firm, and the legal profession. Essentially, it seeks to open up before the Inner House the respondent’s investigation and factual findings. A major theme of the application is the applicant’s dissatisfaction with the amount of compensation he has been awarded.” 

In spite of this, Lord Pentland attempted to identify potential appeal grounds under section 21(4) of the Legal Profession and Legal Aid (Scotland) Act 2007, including irrational exercise of discretion by the Commission, procedural impropriety, and that the Commission’s decision was not supported by the facts found to be established. 

Addressing the first of these grounds, he said: “In my opinion, the reasons given by the respondent for deciding to suspend the complaint cannot arguably be said to have been irrational or to have been motivated by malice. The duration of the suspension was not unreasonable. This ground of appeal falls far short of being an arguable challenge based on irrationality or malice.” 

Turning to the Commission’s final decision, he said: “The applicant relies upon the respondent’s alleged failure to take into account various issues when reaching its decision, and its failure to state explicitly within its report that it had considered certain matters. The report of the determination committee dated 29 September 2020 confirmed that it had taken into account all available material in reaching its decision.” 

He continued: “[Half of the appeal grounds] concern the respondent’s refusal of the claim for actual loss and its assessment of compensation for inconvenience and distress. These were factual decisions for the respondent to take on the basis of its assessment of the evidence. The court cannot review them in an appeal under section 21. There is no arguable merit in any of these grounds.” 

For these reasons, the appeal was refused. 

Character assassination 

In a postscript, Lord Pentland noted that the applicant had asked for his name to be redacted from the published opinion of the court, stating that the Commission “had sought in its Answers to assassinate his character and to embarrass him”. 

Lord Pentland said of this request: “Open justice is a fundamental principle in our system of litigation. It should not be lightly departed from. Those who bring proceedings before the court should be identified unless there is a sound reason for not doing so. There is no reason why an exception to the general rule should be made here.”