Inner House allows high street firm’s appeal against ‘erroneous’ SLCC determination

About this case:

• Citation:
  [2026] CSIH 42
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

Four complaints against the appellant firm were upheld by the Scottish Legal Complaints Commission. The appellant challenged each of those determinations before the Inner House of the Court of Session.

The appeal was heard by Lord Malcolm, Lord Clark and Lord Ericht, with Lord Stewart of Dirleton KC appearing for the appellant and David Welsh for the respondent.

Complaint of wasted fees

In December 2023, the complainer approached Cannons Law Practice, a high street law firm located in Hyndland, Glasgow, seeking advice on a separation agreement. Disclosures made by the complainer about her husband led police to attend the firm’s office at its request; a criminal investigation followed suit. The complainer and the firm agreed that counsel would be instructed in connection with her case. The same day, the firm charged the complainer £2,500 plus VAT for its services and outlays for counsel.

After a meeting, counsel advised the complainer to instruct a new firm. The benefit would be twofold: first, the new firm could be specialists in family law; and second, since staff at Cannons Law Practice had provided witness statements to the police regarding the complainer’s husband, a new firm would be unaffected by any potential conflict of interest. The firm proceeded accordingly to withdraw from acting, but not before charging an additional £1,000 in fees.

Feeling that the firm ought to have referred her to a family law specialist at the outset before charging significant fees she regarded as effectively wasted, the complainer complained to the Scottish Legal Complaints Commission. Four complaints were upheld against the firm: namely, that it had agreed to act despite not specialising in family law; that there had been undue delay in identifying a conflict of interest; that it had failed to set out its terms of business until it ceased to act; and that it had not informed the complainer of the additional costs of instructing counsel.

After a subsequent complaint of inadequate compensation was upheld, with £750 in turn being awarded to the complainer, the firm appealed to the Inner House of the Court of Session. It was irrational and an error of law, the firm argued, for the Commission to draw the conclusion that the firm was incompetent to represent the complainer from the fact that it lacked Law Society accreditation in family law. As to the other complaints, the firm submitted that the Commission had failed to take the full circumstances of the situation into account.

Determination unsupported by facts

Giving the opinion of the court, Lord Malcolm began by noting: “[S]trictly, the determination on the first issue does not match the complaint. It was that the firm should not have acted for the complainer in the first place because it was not a specialist in family law. An assumption appears to have been made that counsel was instructed to assist in the obtaining of a section 11 order because the firm came to appreciate that matters had progressed beyond its proficiency, and this should have been explained to the complainer.”

He continued: “We suspect that it has not been appreciated that firms up and down the country make use of counsel, not as a result of being out of their depth, but because it is a well-established method of enabling busy firms to sustain a service to a large number of clients. Access to justice for consumers throughout Scotland is enhanced by the ability of local High Street firms of solicitors to make use of the expertise of counsel for the benefit of their clients. Further, there was an unusual and specific issue in this case as to a potential conflict of interest … It seems clear that this was a major factor in the involvement of counsel. It was also the reason for the advice that the firm should cease acting and for it doing so.”

As to the firm’s submissions regarding the commission’s findings against it, Lord Malcolm observed: “We consider that there is force in the firm’s concerns regarding any proposition that it should not have acted for the complainer, especially in that there was a conflation of competence and specialisation. It is unfortunate that it would appear that the reason for not taking on divorce actions was not explained to the client or the commission. In any event, the indication from the paralegal at the first meeting can hardly be taken as evidence that the more limited work actually instructed was beyond the firm’s competence. If only firms claiming to be specialists in family law, however that might be established, could do this, considerable problems would be created.”

He added: “The commission contends that all proper procedures were followed and the decision was one that it was entitled to reach. Solicitors should only accept instructions in an area of law in which they are competent and have the appropriate level of skill, see Rule of Conduct B1.10. We consider that the missing link is any evidence from which it can be concluded that the practitioner did not possess the skill and competence to accept the limited instructions given by the complainer. The result is that the determination was unsupported by the facts and was erroneous in law, both of which are valid grounds of challenge in terms of section 21(4) of the [Legal Profession and Legal Aid (Scotland) Act 2007].”

As for the remaining complaints, Lord Malcolm concluded: “We have identified no valid ground of challenge which would justify our interference. They were each a decision on the facts which the commission was entitled to reach.”

The appeal was accordingly allowed on the first complaint and quoad ultra dismissed.