“Privilege No Bar” – The Outer Limits of the SLCC’s Sifting Function after Levy & McRae Solicitors LLP v Scottish Legal Complaints Commission [2025] CSIH 23

1. Introduction

This Inner House decision, delivered by the Lord Justice Clerk on 12 August 2025, arises from a high-profile third-party conduct complaint made by Guardian News and Media Ltd against solicitor David McKie of Glasgow firm Levy & McRae. The Scottish Legal Complaints Commission (“SLCC”) had—at the preliminary sifting stage under s 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007—found 12 of 15 heads of complaint eligible for investigation and remitted them to the Law Society of Scotland (“LSS”).

Levy & McRae appealed under s 21 of the 2007 Act, contending principally that because their former client (Baroness Michelle Mone) had not waived legal professional privilege (“LPP”), the complaints process would be unavoidably unfair and the complaints were therefore “totally without merit”. The Court rejected the appeal in full, clarifying the relationship between privilege, fairness, and the SLCC’s statutory remit.

2. Summary of the Judgment

• No Error by SLCC: The Court held that the Commission had not erred in law in treating the complaints as potentially viable.
• Low Threshold at Sifting Stage: Re-affirming earlier authority, the Court described the s 2(4) “totally without merit” test as a very low threshold. The SLCC’s task is merely to weed out hopeless complaints.
• Privilege Issues Deferred: Questions of LPP, waiver (express or implied), and resultant fairness are matters for the investigating body (the LSS) or, if necessary, the Court on a recovery application—not for the SLCC at eligibility stage.
• Potential Implied Waiver: The Court accepted that Baroness Mone’s public statements could, depending on circumstances, amount to an implied waiver of privilege—an issue to be evaluated later.
• Article 6 ECHR Inapplicable at Eligibility Stage: Because the SLCC does not determine civil rights or obligations, procedural guarantees under Art 6 are not yet engaged.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. Law Society of Scotland v SLCC [2010] CSIH 79, 2011 SC 94
   • Established that SLCC’s function is a sifting one; any inquiries must be limited to what is required to decide s 2(4) criteria.
   • Lord Malcolm’s explanation of “totally without merit” as encompassing only hopeless complaints that could not succeed even with further inquiry underpins the present decision.
2. McSparran McCormick v SLCC [2013] CSIH 34, 2013 SC 97
   • Emphasised that before branding a complaint “totally without merit” the Commission would need to conclude that it was “not open” to the professional body to find misconduct. Levy & McRae applies that strict standard.
3. AS v SLCC [2020] CSIH 19, 2020 SC 443
   • Extracted four principles on the s 2(4) test; the Inner House here explicitly restates them and adds a fifth (“institutional respect” for the SLCC).
4. SLCC v Murray [2022] CSIH 46 & 54, 2023 SC 10
   • Confirmed that LPP survives the 2007 Act; a solicitor cannot be compelled to disclose privileged material to the SLCC absent waiver.
   • However also recognised that material in a solicitor’s file can be confidential but not privileged, leaving open a factual examination. Levy & McRae relies on this nuance.
5. Waiver/Loss of Privilege authorities (Scottish Lion Insurance v Goodrich 2011 SC 534; Dundee University v Chakraborty 2023 SC 297; R v Derby Magistrates Court ex p B [1996] AC 487). The Court invokes these to illustrate that LPP can be impliedly waived and that the precise status of communications must be objectively assessed during investigation.

3.2 Court’s Legal Reasoning

The Inner House reasons as follows:

• Statutory Architecture: The 2007 Act distinctly allocates (i) an eligibility filter to the SLCC and (ii) substantive fact-finding to the professional bodies (s 47). To collapse these functions would contradict Parliament’s policy choice.
• Low Evidential Threshold: At eligibility stage, the SLCC neither needs nor is entitled to demand all underlying evidence. It must decide only whether a plausible breach is conceivable. Here, Baroness Mone’s own public admissions that she “lied through her lawyers” obviously raised such a prospect.
• Privilege Not Dispositive: The existence of LPP does not transform a colourable complaint into a hopeless one. The professional body, once seized, can:
  • (a) seek express waiver;
  • (b) argue implied waiver;
  • (c) pursue court-ordered recovery for non-privileged documents; or
  • (d) conclude that the complaint cannot be proved fairly and dismiss it.
  Because pathways remain open, the complaint is not “totally” without merit.
• No Unfairness at Eligibility Stage: Art 6 ECHR rights are not engaged until someone’s civil rights or obligations are determined. An SLCC sift neither determines guilt nor imposes sanction, so perceived evidential asymmetry is premature.

3.3 Potential Impact

1. Regulatory Strategy: Solicitors (and advocates) can no longer assume that invoking privilege will stop a third-party conduct complaint at the door of the Commission. The battleground shifts to the investigation phase.
2. SLAPP Context: The Commission explicitly consulted English SRA guidance on Strategic Lawsuits Against Public Participation. The Court’s endorsement of the SLCC’s approach foreshadows closer scrutiny of “aggressive” pre-publication correspondence and may chill intimidatory tactics by media lawyers.
3. Evidential Management: Professional bodies will likely develop protocols for addressing privilege conflicts—e.g., staged investigations, selective waiver requests, or confidentiality rings—mirroring competition-law and FRC practice.
4. Third-Party Complainers Empowered: Media organisations, NGOs, and others are reassured that privilege hurdles alone will not debar their complaints.
5. Judicial Economy: By emphasising “institutional respect” and deferring privilege disputes to the investigative forum, the Court minimises premature satellite litigation, streamlining regulatory oversight.

4. Complex Concepts Simplified

• Sifting Function: Think of the SLCC as a triage nurse. It decides whether a complaint needs specialist treatment (investigation) or is obviously hopeless. It does not diagnose the illness definitively.
• “Totally without merit”: A complaint is hopeless if, even assuming the facts most favourable to the complainer, it could never justify misconduct. Anything above that low bar proceeds.
• Legal Professional Privilege: A client’s absolute right to keep lawyer advice secret—unless the client waives it. Two flavours:
  • Advice privilege – communications for legal advice.
  • Litigation privilege – documents created for litigation.
• Waiver (Express vs Implied): Express waiver is overt (e.g., signing a consent). Implied waiver occurs where a person’s conduct (publishing or relying on privileged advice) is inconsistent with keeping it confidential.
• Institutional Respect: Courts defer to specialised statutory bodies within their expertise unless the body acts irrationally or unlawfully.

5. Conclusion

Levy & McRae cements a clear precedent: the existence of unresolved privilege issues will not, of itself, render a conduct complaint “totally without merit” at the SLCC eligibility stage. The decision strengthens the Commission’s hand, clarifies the low gatekeeping threshold, and signals that fairness questions tied to privileged material belong to the subsequent investigative arena. Practitioners must therefore prepare for the possibility that their conduct—especially assertive or threatening media correspondence—may be scrutinised by the LSS even where client privilege looms large. Ultimately, the judgment balances respect for privilege with the public interest in maintaining professional standards, achieving that balance by strictly demarcating the functions of the SLCC and the professional bodies.