Inner House allows Faculty appeal against SLCC sifting decision – finding complaint ‘totally without merit’

After receiving allegations of serious professional misconduct against the second appellant, a practising advocate, the Scottish Legal Complaints Commission remitted the matter to the Faculty of Advocates for investigation. A challenge to that decision was subsequently heard before the Inner House of the Court of Session.

The appeal was heard by Lord Malcolm, Lord Clark and Lady Carmichael, with Alasdair McKenzie KC appearing for the first appellant, Chris Paterson KC for the second appellant and Niall McLean for the respondent.

‘Abdication’ of sifting duty

While acting for the pursuer in a sheriff court action, the second appellant was accused of misconduct by the defender. A complaint was lodged with the Scottish Legal Complaints Commission, alleging inter alia that the second appellant knowingly had access to documents stolen from the defender’s office and had lodged fraudulent invoices with the court for the purpose of legal argument. After sifting the complaint and categorising it as relating to matters of professional conduct, the SLCC accepted the complaint for investigation and remitted the matter to the Faculty of Advocates.

Challenging that decision, the appellants – comprising the Faculty of Advocates and the impugned advocate – complained that the SLCC’s use of the recently established Sprint protocol had resulted in an “abdication” of its responsibility under section 2(4)(a) of the Legal Profession and Legal Aid (Scotland) Act 2007 to determine whether the complaint was ‘totally without merit’. Use of the protocol, the purpose of which is to expedite and simplify decisions on complaint eligibility, had resulted in the complaint being accepted without supporting evidence or potentially exculpatory representations from the second appellant. The SLCC admitted that its acceptance of the complaint before receiving supporting evidence or allowing the second appellant to respond had resulted in an unlawful decision at odds with the principles of natural justice.

The question at issue in the proceedings was, therefore, how the court should exercise its discretion to “make such order as it thinks fit” in terms of section 22(1) of the 2007 Act. For its part, the SLCC sought reduction of the decision and remission of the matter for a fresh decision. By contrast, however, the second appellant requested that the court declare the complaint dismissed as totally without merit.

Natural justice not just for complainers but practitioners too

Giving the opinion of the court, Lord Malcom began his decision by observing: “The complaint that [the second appellant] had the file yet pursued a specification of documents is undermined by a major misunderstanding. It is plain from the sheriff’s interlocutors, which were supplied to this court by [the second appellant], that the commission and diligence was sought by the defender. However, [the second appellant] acted for the pursuer whose main concern was to make progress in the proceedings. There is also a mistaken assumption that counsel, rather than the instructing solicitor, lodges documents in the court process. Much of the complaint appears to be aimed at a solicitor, presumably the agent for the defender. He or she is said to have handled stolen papers.”

He continued: “The complaint as to arguments based on fraudulent invoices is vague and hard to understand. It is not said that the advocate knew of any fraud, though that may be implied. At most it is an unparticularised and unsupported bare assertion of serious dishonesty which is completely lacking specification and vouching. It is denied by the advocate, as is the rest of the complaint. As matters stand, there can be only one reasonable and rational outcome, namely the whole complaint is without a proper foundation and should be dismissed.”

Concluding the court’s decision on the substantive matter at hand, Lord Malcolm reasoned: “If the Commission’s decision was set aside and the matter remitted to it to start again, this would give the complainer a further opportunity to provide some support for his complaints. However, the history indicates that there can be no real expectation of anything material being provided. We are satisfied that to remit for the eligibility exercise to be repeated by the Commission would be disproportionate and unfairly prejudicial to the advocate concerned. In addition to quashing the decision complained of, in exercise of our power to make such order as we think fit, we shall dismiss the complaint.”

In a postscript to the judgment, Lord Malcolm commented on the relationship between the appeal and the SLCC’s recent adoption of the Sprint protocol. He stated: “It is unusual for the Faculty to intervene in respect of Commission decisions. The court assumed that there was to be a general attack on the legality of the new policy approach set out in the Sprint protocol. However, this was disavowed by counsel for the Faculty. He explained that the concern related to its application in the particular circumstances of this case.”

He added: “The Commission was set up as a single gateway for conduct complaints against practitioners because of a concern that too many were too readily dismissed by the professional bodies. The Act … imposed a sifting burden on the Commission, including filtering out complaints which it judged to be ‘totally without merit’. This carries an obvious risk of the Commission being drawn into an inappropriate investigation and consideration of the merits of a complaint, something which remains the responsibility of the professional bodies. Achieving the correct balance will often be no easy task. The court can understand a desire to simplify and speed up eligibility decisions in conduct cases. Nonetheless the statutory sifting duty must be observed. The lesson of the present case is that the rules of natural justice and fairness to not only the complainer but also the practitioner must be observed.”

The appeal was accordingly allowed and the complaint dismissed.