The test that a complaint a complaint against a legal practitioner should be dismissed if "totally without merit" is a high one, and on a complaint of irrationality the court should not substitute its own opinion on eligibility for that of the Scottish Legal Complaints Commission unless the decision was one that no body properly directing itself could reasonably have made, the Inner House has held.

Lord Menzies, Lord Drummond Young and Lord Pentland made the ruling in refusing, as respects three out of four heads of complaint accepted for investigation, an appeal by Andrew Smith QC against a decision on the eligibility of a complaint concerning his professional conduct.

The complainer was a Steven Elliot, who was in despite with two business partners for whom Mr Smith was instructed to act. The heads of complaint accepted by the SLCC, out of 14 brought by Mr Elliot, were that Mr Smith acted despite a close personal involvement in his clients' business affairs that made this inappropriate (two heads); that he was complicit in allowing a dishonest statement to be repeated in discussions in court about additional fees; and that he was improperly in direct contact with Mr Elliot's trustee in bankruptcy.

Before the court it was argued for Mr Smith that no facts had been found demonstrating a breach of his duty of independence, nor any basis for breach of his obligation of honour honesty and integrity; that no basis of fact was identifiable to support the allegation of dishonesty; and the Commission had failed properly to determine that there was an issue for investigation over contact with the trustee.

Lord Pentland, delivering the opinion of the court, said that with conduct complaints the Commission’s function was to sift complaints, not to determine them, which was for the professional body. It followed that it was only where referring a complaint to the professional body would be a waste of time because the complaint was totally without merit that the Commission should dismiss it as ineligible.

The test of "totally without merit", in s 6(1)(b) of the Legal Profession and Legal Aid (Scotland) Act 2007, was a high one. "It permits the Commission to sift out complaints which, on their face, are obviously unworthy of any consideration or investigation by the professional body; that means hopeless complaints in which it is clear that further investigation by the professional body could make no difference. In other words, the threshold that a complaint requires to cross before the Commission should refer it for investigation by the professional body is a very low one".

He continued: "Finally, in an appeal brought under s 21 of the 2007 Act the court should not substitute its own view on eligibility for that of the Commission. An appeal based on irrationality can only succeed where the decision was one that no such body properly directing itself could reasonably have made".

Applying these principles to the facts and circumstances of the present case, the court was satisfied that the decisions to refer the issues other than the allegation regarding the dishonest statement, to the Faculty for investigation were not open to successful challenge. "Each of these issues raised questions, which we consider that the Commission was entitled to regard as legitimate ones, concerning the nature of the appellant’s relationship with his clients and whether he had acted in a manner that was independent of them in line with his professional responsibilities as an advocate."

It would not be appropriate to express any substantive view since it was for the Faculty to make its own evaluation; the court simply noted that there was evidence before the Commission "which was open to the interpretation that the appellant was personally involved in the business affairs of his clients in a manner and to a degree that would not be usual or perhaps appropriate for an advocate". 

However there was nothing in the evidence to support the view that Mr Smith acted dishonestly or that he was complicit in dishonesty, that he made a dishonest statement to the court or to anyone, or that he was complicit in the making of a dishonest statement. The appeal would be allowed to that extent only.

Welcoming the ruling, Neil Stevenson, chief executive of the SLCC, commented: "Making robust decisions on whether complaints can be accepted for further investigation or not is the largest part of our workload, both in the number of cases and the number of staff."

He observed: "There can be misconceptions about the eligibility test, one of the most complex stages within the process prescribed in statute.  We have seen comments in the past that ‘too many complaints’ are let in, but the courts are once again making clear there is a high test to be met if complaints are dismissed at this stage."

Mr Stevenson added: "We continue to believe the appeals process of this initial sift decision is in need of reform. No other complaints body has a decision as to whether to examine a case further or not subject to scrutiny in the highest court in the land in front of a bench of three judges. This statutory process is massively expensive and time consuming, and our proposals for legislative reform recommend that a more proportionate approach should be considered. Especially at a time of such financial pressure on the profession, we must question if this is the best use of funding."

Click here to view the opinion of the court.