Inner House orders solicitors under investigation by SLCC to deliver file with privileged material removed

About this case:

• Citation:
  [2022] CSIH 54
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

It had previously been held by the court in October 2022 that section 17 of the Legal Profession and Legal Aid (Scotland) Act 2007 did not entitle the Commission to recover material from respondents Donald Murray and James McCusker subject to legal professional privilege. The case had been put out by order to resolve further issues.

The case was considered by the Lord Justice Clerk, Lady Dorrian, along with Lord Malcolm and Lord Turnbull. C O’Neill KC, solicitor-advocate, appeared for the petitioners, Whyte, advocate, for the respondents, and the Dean of Faculty, Dunlop KC, for the interveners.

Relevant material

Following the making of a complaint against the respondents arising out of divorce proceedings they had been involved in, the petitioner served notice under section 17(1) of the 2007 Act to the respondents requiring production or delivery of the business file in relation to the complaint within 14 days. The file was not produced. While the majority of the case papers had since been passed to a different firm, it was accepted that some potentially relevant files to the investigation were retained by the respondents.

The respondents did not release the material on the advice of the Law Society of Scotland, maintaining that were incapable of disclosing the relevant documents to the SLCC because of professional privilege. While the petitioner considered it had enough information to investigate 3 of the 4 complaints raised by the client with the material available to them, it maintained that it required the file held by the respondents to address complaint 4, namely that the first respondent had failed to act with competence and diligence in not providing all necessary vouching to the client’s new solicitor since September 2018.

Following the Inner House’s decision in October 2022, the Commission moved the court to ordain the respondents to produce and deliver the file originally sought under exception of such material as is subject to said privilege. The solicitors submitted that the order should expressly be confined to such material as is relevant to the complaint under investigation.

Interventions in the case were made by the Faculty of Advocates and the Law Society of Scotland, who made submissions aimed at the wider issue of whether a notice served under section 17 obliged the recipient to deliver material which is subject to a solicitor’s general duty of confidentiality regarding the client’s affairs.

No suggestion of flaw

Lord Malcolm, delivering the opinion of the court, observed: “The court adheres to the terms of the earlier opinion. In particular, while privileged material has a special status, the residual duty of confidentiality can be overcome in the public interest. There is a public interest in complaints against practitioners being fully and properly investigated, hence the Commission has been given certain statutory powers in this regard.”

On whether the Commission ought to be permitted to see the file, he said: “The Commission is invested with a discretion as to which documents it sets out in a section 17 notice, including as to which it considers relate to the complaint. Here the Commission has decided that it needs to see the file relating to the work carried out. The challenge to that decision was limited to the apparent obligation to give up legally privileged material, and the court has ruled thereon in favour of the solicitors.”

He continued: “There was no suggestion that the notice was flawed in that it sought material which did not relate to the complaint. We are not persuaded that the court’s order should be qualified as suggested by the solicitors. That would place the decision on relevance in the hands of those subject to the complaint. That would be an odd state of affairs.”

Turning to the general matters raised by the interveners, Lord Malcolm explained: “Service of a section 17 notice relieves the practitioner of the general duty of confidentiality. This is in accordance with the words used in the legislation and with the regulatory regime as a whole. We are not persuaded that anything said elsewhere in the Act or at stage 3 of the bill justifies a different outcome. There is no need for a court order before such a duty is overridden. For the avoidance of doubt we repeat that legal professional privilege is in a special position.”

He concluded: “Before leaving the matter we wish to say that the court expects the Commission and practitioners to act in a co- operative manner when issues of this kind arise. For example, if a solicitor subject to a third party complaint considers that the Commission is seeking material unrelated to the complaint or is trespassing on legally privileged material, there should be a professional discussion of the issues with a view to identifying a satisfactory method of resolving the situation which balances the client’s and the Commission’s respective interests.”

The court therefore granted an order in the terms sought by the Commission.