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  4. SLCC warns of extra burden from court privilege ruling

SLCC warns of extra burden from court privilege ruling

12th October 2022 | professional regulation , client relations

Additional costs will be incurred both by the legal profession and the Scottish Legal Complaints Commission in complying with a ruling yesterday by the Court of Session on legal professional privilege, the SLCC has warned.

In yesterday's decision, three Inner House judges held that the SLCC was not entitled to recover legally privileged information in a solicitor's file when investigating a complaint brought by a party other than the solicitor's client (known as a "third party complaint").

The Law Society of Scotland and Faculty of Advocates, which had intervened in the case to argue for the importance of upholding the confidentiality of communications between solicitor and client, welcomed the ruling. The SLCC, however, disagreed with the claim, made in argument to the court, that no administrative burdens would arise.

Chief executive Neil Stevenson commented: "We do not agree with this statement. Every year hundreds of solicitors currently send us their complete file. Every law firm in Scotland will now need to consider the impact of this ruling on its processes for dealing with such requests. Statutory time limits for responding remain unchanged, and firms will need to ensure capacity to undertake this work.

"The court also made clear that the statutory framework must bear the cost of this approach, so we will set out expected costs for the SLCC in our forthcoming budget consultation. That will include staff costs as well as additional legal costs for cases needing to go to the Court of Session to appoint a commissioner who will examine the file and ensure the right decisions have been made on what is covered by privilege.

"We will also ensure that in relevant cases both complainers and firms are made aware of the implications for complaint timescales and potential outcomes."

In its judgment, delivered by Lord Justice Clerk Lady Dorrian sitting with Lords Malcolm and Turnbull, the court considered it "highly unlikely" that investigation of the complaint in question would require disclosure of material which breached the legal professional privilege rights of the solicitor's client.

It added that the Scottish Parliament had been alive to the issue when considering the legislation establishing the SLCC, and the parliamentary material did not assist "in showing a clear intention to override a fundamental human right".

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