A firm of solicitors subjected to a lengthy list of complaints from a client, none of which were upheld, should have had an opportunity to make further representations before a final determination of the Scottish Legal Complaints Commission, departing from the recommendation of its investigating officer, that one aspect of the firm's response to the complaints amounted to inadequate professional services, the Court of Session has ruled.
Lord Justice Clerk Lady Dorrian, Lord Malcolm and Lord Turnbull gave the decision in allowing an appeal by Beltrami & Co against a decision by the Commission to uphold in part a complaint by a former client, Mr Summers, award compensation for inconvenience and distress in the sum of £750, and order payment of the full complaints levy of £5,000.
Mr Summers had been convicted of rape and consulted Beltrami & Co on a series of complaints against his legal team at trial, in connection with a proposed appeal against conviction, including accusing his previous lawyers of dishonesty and corruption. A solicitor advocate from the firm advised that there were no grounds on which an appeal could be based. A second solicitor advocate not connected with the firm confirmed that advice. Mr Summers was dissatisfied with both opinions and appeared at the High Court on his own behalf, but was refused further time to appeal.
He then complained to Beltrami & Co, itemising 24 numbered complaints, which included that members of the firm had lied repeatedly to him, had acted duplicitously and had ignored evidence of corruption on the part of his previous solicitors. The firm replied stating that it would require time to investigate but warning him against false and defamatory accusations which might make constructive dialogue impossible. Mr Summers then complained to the Commission.
Six of his 28 grounds of complaint were accepted for investigation. On each of these an investigating officer concluded that there was no evidence of a breach of the principles of diligence or communication and therefore no evidence of inadequate professional service. In relation to one issue, issue 19, the conclusion was that "the firm did have a formal complaints process and this aspect of the complaint was not accurate. The period of time which Mr Whyte said he would require to respond did not constitute a breach of the service standards. It was not unreasonable for the firm to provide a response defending their position in relation to the allegations made".
The firm was subsequently advised that Mr Summers did not accept the proposed settlement and that the matter would be considered by a determination committee. The letter added: "If there is any new information which you have not yet provided please do so within the next 21 days, otherwise it may not be taken into account."
The Commission's final determination was that Mr Summers' concluding accusation that the firm was "fundamentally corrupt" should not have prevented it from providing a full and substantive response to the other matters alleged, and to that extent the firm had provided an inadequate professional service. It made the order appealed.
Among other grounds of appeal, Beltrami & Co argued that in arriving at its final determination the Commission erred in law by failing to follow the procedure provided for by s 9(1) of the Legal Profession and Legal Aid (Scotland) Act 2007, by which the Commission must provide details of its completed investigation to the parties in order to give them an opportunity to make representations on its findings and recommendations. The Commission argued that it was made plain that the determination committee could change any of the recommendations made in the investigation report and could come to any decision they considered fair and reasonable and could support with reasoning. The firm had been permitted to make representations at each stage.
Lord Turnbull, delivering the opinion of the court, said that in terms of the statutory procedure, the only circumstance in which representations on the findings and recommendations of the investigation could be made for the purpose of being considered by the Commission before determining the complaint, was if a settlement proposal was rejected (or if the lawyer complained about did not respond). The purpose "must be to give either party an opportunity to make representations to the determination committee as to why the findings or recommendations set out in the investigation report ought to be supported, or departed from, when the views set out therein are challenged. The opportunity to provide representations, in this sense, is something quite different from the opportunity to provide further information generally, or to provide any new information not yet provided".
There was an obvious value in giving parties an opportunity to make representations in support of the findings and recommendations previously set out.
The required procedure had not been complied with. "The option to provide 'further information' or 'any new information which you have not yet provided' was not the equivalent of an opportunity to make representations on the Commission’s findings and recommendations as set out in its investigation report. This was a significant procedural impropriety", Lord Turnbull said. That was sufficient for the determination to be quashed. Further grounds would not have been upheld; the court did not require to consider the penalty imposed.
In a statement the Commission said: "The SLCC respects what is said in the opinion and welcomes the clarity from the court on these matters. We will swiftly implement the changes required in line with this decision.
"The SLCC aims to ensure its communications to all complaint parties are clear and in plain English. Wherever possible we avoid using legal terminology, where evidence suggests that might not be understood by the general public. However, we accept the court’s view on this matter and will consider how best to implement the required changes to our communications."