Inner House overturns decision not to investigate complaints made against solicitor who changed firms without notice to client
An appeal against a decision of the Scottish Legal Complaints Commission not to accept large parts of a complaint made against a retired solicitor for investigation has been allowed by the Inner House of the Court of Session.
About this case:
- Citation: CSIH 12
- Court:Court of Session Inner House
- Judge:Lord Tyre
Federico De La Torre made a complaint against his former solicitor, Hamish Lindsay, in July 2021, after he failed to notify him that he had changed firms and was due to retire. It was conceded by the respondent that it had acted irrationally, however it did not concede liability for the expenses of the appeal.
The appeal was considered by the Lord Justice Clerk, Lady Dorrian, along with Lord Tyre and Lady Wise. The appellant appeared as a party litigant and the respondent was represented by Irvine, advocate.
In 2017, the appellant instructed Mr Lindsay to act on his behalf in relation to claims for property damage due to water ingress. At that time, Mr Lindsay was a partner in the firm of Lindsay & Kirk, which later ceased to trade. From November 2018 until his retirement in 2019, he then acted as a consultant for Grant Smith Law Practice Ltd.
The appellant was not advised that L&K had ceased to trade until 18 April 2019 when Mr Lindsay wrote to him intimating his forthcoming retirement. He thereafter complained to the respondent that Mr Lindsay had terminated their relationship unilaterally without providing explanation or rendering invoice.
The respondent took the view that the appellant’s complaint was to be treated as two separate complaints against Mr Lindsay and L&K and Mr Lindsay and GSL respectively. In relation to Complaint A (L&K), the respondent accepted one issue for investigation as a conduct complaint but rejected three further issues, one because it was time barred and the others because they were totally without merit. In relation to Complaint B (GSL), the respondent accepted two issues for investigation as conduct complaints but rejected six further issues as being totally without merit.
It was conceded by the respondent that the irrationality ground was made out, and it invited the court to remit the complaints for consideration by a different investigator. However, the appellant declined to settle the action via a joint minute proposed by the respondent and sought full expenses of appeal and for the application for leave to appeal.
Insisted on appeal
Delivering the opinion of the court, Lord Tyre began by noting: “Having regard to the concessions made by the respondent, the opinion of the court on the merits of these submissions will make no difference either to the disposal of the appeal or to any subsequent consideration by the respondent of the appellant’s complaints: these will be remitted to the respondent for reconsideration and all of the conclusions of the first case investigator will be disregarded. This has been explained to the appellant at previous hearings but he has insisted on the appeal proceeding.”
Assessing whether the original investigator demonstrated any bias, he said: “We do not require to reach a concluded view on that matter because we are wholly unpersuaded that the circumstances founded upon by the appellant are indicative of actual bias on the part of the respondent or that they give rise to any reasonable apprehension of bias.”
He continued: “It is a very serious matter to allege that a body whose statutory function is to investigate complaints against members of the legal profession is biased in favour of those members and against the people who make complaints. The fact that the case investigator in the present case took actions which are now conceded to have been irrational provides no foundation for such an allegation.”
Lord Tyre concluded: “The appellant submitted that the respondent acted irrationally in splitting issues between Complaints A and B using the date when L&K ceased trading as the cut-off date. It is contended that this split failed to contemplate the possibility of a solicitor continuing to act in a personal capacity while working for a firm. We reject this submission. The opening of two files for complaints against two different firms was a reasonable course of action for the respondent to take and this did not preclude opening investigations into the actings of GSL or of Mr Lindsay acting in a private capacity.”
The complaints were therefore remitted to the respondent for a fresh determination, with the question of expenses reserved.