Complaints categorised by the Scottish Legal Complaints Commission as involving both service and conduct elements, when it had no power to do so, could be validly re-categorised so as to remove the conduct element, the Court of Session has ruled.

By a majority (Lord Glennie and Lord Turnbull, Lady Paton dissenting) an Extra Division refused an appeal by the Law Society of Scotland against a decision by the Commission that had the effect of removing from the Society the ability to investigate and deal with the conduct element of a complaint against a solicitors' firm.

The complaint was one of 19 appealed by the Society following the ruling in the Anderson Strathern case ([2016] CSIH 71), that a complaint that raised a single issue had to be classified as either a conduct or a services complaint, and dealt with accordingly. Previously the Commission had classified some complaints as “hybrid – service first”, when it would investigate the service issue and then pass the complaint to the Society to investigate the conduct issue, or “hybrid – conduct first, when the reverse would apply. In this case, initially classed as “hybrid – service first”, the Society had been waiting for the Commission to complete its investigation when the Commission sought to comply with the Anderson Strathern ruling by sending a letter to the solicitors concerned stating “This complaint constitutes a service complaint.”

It was argued for the Society that the Legal Profession and Legal Aid (Scotland) Act 2007, which set up the Commission, did not give it power to do this. Once the complaint had been duly intimated to the Society as a conduct complaint, that imposed on the Society a duty to investigate that element and there was no provision in the Act by which that duty could be removed. Decisions by the Commission prior to Anderson Strathern should be presumed to be valid, unless and until overturned by legal process; late appeals should not be allowed solely on the basis of that decision.

Lord Glennie said it was agreed that the initial categorisation was not a nullity, but the question was whether, it having been declared ultra vires, it could be corrected by the Commission or only by appealing each case involved. It was difficult to see why the Commission should not have the power to correct; the alternative could not be right. There was English and Northern Irish authority to support this.

To what extent this permitted retrospective application of the revised understanding of the law would depend on the circumstances. The Society's argument as to finality was “illusory”, as the initial decision was liable to be set aside and a new, lawful decision made in its place. Further, “Since an ultra vires decision can be re-visited by someone, whether that be by the courts or by the decision maker, the proposition that it must be done by the courts and that the Commission has no right to re-make a decision except as a result of some further court process derives no support from the analysis of the statutory provisions.”

He added: “It would not be right to speculate about the possible situations in which the decision either to re-categorise or not to re-categorise complaints previously regarded as hybrid might be liable to challenge in the courts, whether by the complainer, the practitioner against whom the complaint was made, or by some other interested party.

“If such issues arise they should be dealt with on their merits in the appropriate case.”

In the present case, “where nothing has happened to cause parties to incur expense or otherwise be prejudiced by such a decision, and no party other than the Law Society and the Commission has joined in this appeal, there is no reason to conclude that the Commission did not have power, as a matter of law, to re-categorise the complaint”.

Lord Turnbull, concurring, said the Commission's approach was “in keeping with the requirements of good public administration... the unattractive alternative would have been for the Commission to leave all the parties affected by the mistaken earlier decisions to bring individual proceedings to correct them”. There was nothing in the Act to “prevent the Commission from conducting such an exercise in good administration”.

For Lady Paton, who dissented, the 2007 Act was “precise and prescriptive”, making careful provision at every step, using mandatory language. Once a case was set on one of two mutually exclusive tracks, service or conduct, no one had power to alter that except under two provisions that did not apply here. Whatever cases had been decided under other statutory schemes, they contained different features from the present.

“In the context of complaints against the legal profession,” she concluded, “categorisation as conduct or services has important consequences. There may be conflicting preferences as to the appropriate investigative body. If the Commission was able, at its own hand, to re-categorise a complaint at any time, and on any number of occasions, the efficiency and integrity of the complaints system might be undermined, particularly if those with an interest appealed any re-categorisation.”

The case was put out by order to consider to possible further steps in relation to a question whether the Commission had in any event erred in law or acted unreasonably or irrationally in re-categorising the complaint.

Click here to view the opinion of the court.