Inner House finds no evidence of document falsification in appealed complaint decision by removed attorney

About this case:

• Citation:
  [2025] CSIH 28
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Matthews

Margaret Horsley, who enrolled as a solicitor in 1986 but no longer appeared on the Roll, appealed under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 against a decision of the Commission that her complaint was totally without merit. The SLCC accepted that the appeal should be allowed on procedural grounds but considered there was no evidence to support her suspicion of falsification and invited the court to remake the decision in the same terms.

The appeal was heard in the Inner House of the Court of Session by Lord Matthews, Lord Tyre, and Lord Armstrong. The appellant appeared as a party litigant while Blair, advocate, appeared for the respondents.

Fishing exercise

On 16 January 2016, the appellant was appointed as welfare and financial attorney to her parents, JC and MAC. However, JC formed a view that she was misusing her power of attorney to benefit herself and on 20 April 2016 he consulted his solicitor, Mr Barry Dewar, to instruct her removal. Subsequently, fresh powers of attorney were drawn up in favour of JC’s other children, JAC and JCC, who complained to the respondents about the appellant’s conduct.

Following investigation, the Law Society of Scotland prosecuted the appellant for professional misconduct before the Scottish Solicitors Discipline Tribunal, however she was ultimately acquitted. During the process, the appellant formed a view that Mr Dewar had falsified a file note of a consultation he held with JC in April 2016 well after the event in question had taken place. In considering whether to investigate that complaint, the respondents accepted for investigation a complaint that Mr Dewar failed to send all the paperwork he had in respect of his interactions with MAC, but dismissed the falsification claim as totally without merit.

The appellant submitted that the SLCC had denied her a fair hearing by failing to apply the best evidence rule to the file note and failing to take all the circumstances of the complaint into account. The SLCC conceded that the appeal must be allowed for procedural reasons, the decision having been taken by a case investigator rather than one of its commissioners or committees but argued that the substantive issue of the complaint had been correctly decided.

For the respondents it was submitted that the appellant’s approach inverted the complaints process, as she had made a complaint of falsification then demanded that the SLCC recover evidence to provide a proper basis. This was a fishing exercise, and in any event, there had been no unfairness to the appellant in the approach they had taken.

No sufficient support

Delivering the opinion of the court, Lord Matthews began: “We have no difficulty in holding that we should allow the appeal on the basis of the conceded procedural irregularity and thereafter that we should decide for ourselves whether or not the complaint is totally without merit. However, we should say that we can see no substance in any suggestion that there were any other procedural irregularities.”

He added: “The appeal, so far as it is based on the ‘best evidence’ rule is misconceived. That rule is one which is designed to ensure that secondary or worse evidence such as hearsay or copies of documents are not used where primary evidence is available. It has nothing to do with carrying out thorough investigations and obtaining more evidence or better primary evidence than is already available. The argument also presupposes that the SLCC are investigators, which, as we have said, they are not.”

Considering whether there was an objective basis for the appellant’s belief the document was falsified, Lord Matthews said: “There was no obligation on [Mr Dewar] to produce any electronic copy, even if one existed. Nothing can be read into his lack of response to the complainer’s emails or his seeking advice. In short there is no objective vouching of the appellant’s suspicions and no basis on which the SLCC could remit the complaint to the Law Society.”

He concluded: “In Benson v SLCC (2019), [it was said that] while it is true that it is not for the commission to investigate and determine a complaint, it does play a ‘sifting’ or ‘gate keeping’ role to filter out cases where, for example, it is entirely clear that the available evidence cannot provide sufficient support for the complaint. It seems to us that we are in precisely the territory envisaged in the last sentence. The appellant has provided no evidence which could form a basis for investigation.”

The court therefore allowed the appeal on the procedural ground complained of, but having considered the matter itself substituted its own decision that the complaint was totally without merit.