Horsley v SLCC: No “Best Evidence” or Investigative Duty at Eligibility Stage; Objective Basis Required for Allegations of Document Falsification

Horsley v SLCC: No “Best Evidence” or Investigative Duty at Eligibility Stage; Objective Basis Required for Allegations of Document Falsification

Introduction

In [2025] CSIH 28 (31 October 2025), the Extra Division of the Inner House (Lords Matthews, Tyre and Armstrong) addressed a pivotal question at the gateway stage of Scottish legal complaints: what does it take for a conduct complaint to cross the very low threshold of eligibility under the Legal Profession and Legal Aid (Scotland) Act 2007, and what, if anything, must the Scottish Legal Complaints Commission (SLCC) do to “verify” disputed documents before deciding eligibility?

The appeal was brought by former solicitor, Margaret Horsley, against the SLCC’s decision to reject as “totally without merit” a complaint that a solicitor, Mr Barry Dewar (BD), had falsified a 2016 file note tendered as evidence at her SSDT proceedings. While the SLCC conceded a procedural impropriety (in light of Wilson v SLCC [2024] CSIH 40) because a case investigator—not a commissioner or committee—made the eligibility decision, it invited the court to substitute its own decision in the same terms.

The Court quashed the flawed decision but, exercising its power under section 22 of the 2007 Act, substituted its own decision: the falsification complaint (Complaint 2) was indeed “totally without merit”. In doing so, the Court clarified important principles about the SLCC’s sifting role, the meaning of “totally without merit”, the absence of any investigative duty (including no obligation to obtain electronic metadata) at the eligibility stage, and the inapplicability of the “best evidence” rule as invoked by the appellant.

Background and Parties

The appellant, admitted as a solicitor in 1986 but not on the Roll in 2025, had been appointed welfare and financial attorney to her parents. Her father, JC, instructed BD in April 2016 to revoke her Power of Attorney. BD prepared a contemporaneous letter (21 April 2016) and a file note of the consultation (20 April 2016), and later gave evidence before the Scottish Solicitors’ Discipline Tribunal (SSDT).

After the SSDT acquitted the appellant of professional misconduct (with a remit back to the Law Society to consider unsatisfactory professional conduct), the appellant complained to the SLCC that BD had falsified his 2016 file note. She maintained in the appeal that her allegation concerned the timing and provenance of the note (i.e. that it was created in 2023 to bolster oral testimony), not the substantive accuracy of BD’s recollection of events. Her request that BD supply an electronic copy capable of metadata verification went unanswered, and the SLCC refused to conduct such verification, treating its role as a “sift” based on material put forward by the parties.

Issues on Appeal

  • Was the SLCC’s eligibility decision procedurally improper because it was taken by a case investigator rather than a commissioner/committee? (Conceded by the SLCC, per Wilson.)
  • Should the Court nonetheless substitute a decision that Complaint 2 was “totally without merit”, on the basis that the allegation rested on subjective suspicion without objective support?
  • Does the “best evidence” rule, or principles of fairness, require the SLCC at eligibility stage to obtain or insist upon electronic metadata to verify the authenticity of a file note?
  • Is there any requirement on the SLCC to give the complainer an opportunity to respond to the practitioner’s response at the eligibility stage?

Summary of the Judgment

The Court allowed the appeal due to procedural impropriety (eligibility decisions must be made by a commissioner or committee, not by a case investigator). However, exercising its power under section 22(1) of the 2007 Act, it substituted its own decision that Complaint 2 (the falsified file note allegation) was “totally without merit”.

In reaching that substituted decision, the Court:

  • Reaffirmed the SLCC’s role as a sifting body, not an investigator; there is no duty to seek independent verification (e.g., metadata) at eligibility stage.
  • Held the “best evidence” rule was misconceived in this context: it governs the preference for primary over secondary evidence, not a duty to procure “better” primary evidence or to conduct investigations.
  • Found no procedural obligation to invite the complainer to comment on the practitioner’s response at eligibility stage.
  • Determined that a comparison of the 21 April 2016 letter and the file note disclosed no objective basis to suspect falsification; indeed, the note’s omission of some items tended to undermine the allegation of later fabrication.
  • Concluded that the appellant’s subjective belief and inferences from BD’s non-response could not provide the necessary objective foundation; hence the complaint was “totally without merit”.

Analysis

Statutory Framework and the Eligibility Sift

The decision turns on section 2(4) of the 2007 Act: upon receiving a complaint, the SLCC must determine, at the threshold stage, whether it is “frivolous, vexatious or totally without merit” and, if so, reject it. Conduct complaints otherwise proceed to investigation by the professional body (Law Society/Faculty).

Appeals lie on restricted grounds under section 21(4): error of law, procedural impropriety, irrationality, or lack of factual support. The court may substitute its own decision under section 22(1).

Precedents Cited and Their Influence

  • AS v SLCC [2020] CSIH 19, 2020 SC 433 (paras 30–32):
    Establishes the very low threshold at eligibility stage and the policy assumption that conduct complaints should, in general, be investigated by professional bodies, not resolved by the SLCC. Here, the Court acknowledged this low threshold but emphasised it does not eliminate the sifting function where a complaint is “obviously unworthy” of investigation.
  • Law Society of Scotland v SLCC [2010] CSIH 79, 2011 SC 94:
    Lord Malcolm’s articulation (para 49) of “totally without merit” as covering hopeless complaints where further inquiries could make no difference, contrasted with mere “unlikely to succeed”. Lord Kingarth’s “red-headed thief” example (para 35) underscores that the SLCC must at least ascertain the basis for an allegation; if the stated basis is plainly irrational, the complaint can be rejected at the threshold. The Court applied these principles to hold that a bare suspicion of falsification, unsupported by objective material, sits in “totally without merit” territory.
  • Saville-Smith v SLCC [2012] CSIH 99 (para 17):
    Reiterates the rationality standard when reviewing the SLCC’s discretionary decisions. While pertinent, the Court’s substitution of its own decision meant it did not rest its disposition on public law review standards alone.
  • Levy & McRae Solicitors LLP v SLCC [2025] CSIH 23, 2025 SLT 1025 (para 44):
    Notes the “institutional respect” owed to the SLCC as a specialist body within its sphere. The Court acknowledged this context but ultimately exercised its own substitution power given the conceded procedural flaw and the clarity of the merits.
  • Wilson v SLCC [2024] CSIH 40, 2025 SLT 1:
    Decisive on process: eligibility decisions must be taken by a commissioner or committee per paragraph 13(2)(a) of Schedule 1 to the 2007 Act. This case framed the concession that the SLCC’s procedure in Horsley was improper, catalysing the quashing and substitution sequence.
  • Benson v SLCC [2019] CSIH 33 (para 8):
    Clarifies the SLCC’s sifting/gatekeeping role: if it is entirely clear that available evidence cannot support the complaint, dismissal at eligibility stage is appropriate. Horsley sits squarely within this principle—the alleged falsification had no evidential foothold beyond suspicion.

Legal Reasoning

1) The SLCC’s role: sift, not investigate

The Court was emphatic that the SLCC’s function at eligibility stage is a sifting exercise. It is not an investigative authority tasked with gathering or testing evidence. This directly answered the appellant’s contention that the SLCC ought to have sought “verification” of the file note’s metadata, or to have compelled BD to produce an electronic copy. The SLCC is to make evidence-based decisions from what is provided—not to embark on a fishing expedition to create a case for either party.

2) The “best evidence” rule is inapposite at eligibility stage

The appellant anchored her challenge in the “best evidence” rule, arguing the SLCC should have pursued the “best” or “original” electronic version to test authenticity. The Court rejected this outright. Properly understood, the best evidence rule polices the use of secondary evidence where primary evidence is available (e.g., original documents vs copies). It is not a warrant for administrative bodies to conduct investigations to obtain additional or “better” primary evidence. Invoking the best evidence rule to demand metadata verification thus misconceived the rule and the SLCC’s function.

3) No duty to solicit the complainer’s reply to the practitioner’s response

The appellant also argued she had been denied a fair hearing because the SLCC did not invite her to comment on BD’s response. The Court found no procedural entitlement of that kind at the eligibility stage. Eligibility is not an adversarial hearing but a threshold sift. The SLCC is entitled to proceed on the documents; it need not orchestrate exchanges of rejoinders before sifting.

4) The “objective basis” requirement for serious allegations

The centre of gravity in the Court’s analysis is the requirement that even serious allegations (like falsification) must be supported by some objective basis to surpass the eligibility threshold. A mere belief—however sincerely held—will not suffice. Applying the Law Society and Benson authorities, the Court assessed:

  • Document comparison: The 21 April 2016 letter set out six concerns attributed to JC. The file note addressed four directly, referenced the missing personal documents (touching on another concern), and was silent on one (Honda Accord registration). If the note had been later fabricated to bolster testimony, one would expect fuller alignment with the letter; the omissions cut against the falsification theory.
  • Conduct inferences: BD’s failure to provide an electronic copy or respond to emails did not trigger any legal presumption, nor was he under an obligation to do so. Seeking advice before responding did not create a basis to infer wrongdoing.

Because the allegation lacked objective support and the available material tended to undercut the theory of later fabrication, further investigation could make no difference. The complaint was therefore “totally without merit”.

5) Procedural impropriety cured by substitution

The Court accepted that, under Wilson, the SLCC’s eligibility decision was procedurally improper. Nonetheless, section 22(1) allowed the Court to substitute its own decision. Having considered the matter “at large”, and noting that there were no other procedural improprieties of substance, it substituted dismissal of Complaint 2 as totally without merit.

Impact and Implications

A. Clarification of the SLCC’s non-investigative role

This decision sharpens the boundaries of the SLCC’s eligibility function:

  • No duty to obtain or verify electronic metadata, or to conduct independent document authentication, at the sift stage.
  • No implied requirement to circulate responses for rejoinder before taking an eligibility decision.
  • Complainers must bring forward the objective material they have; the SLCC will not “build the case” for them.

B. “Totally without merit” remains a real filter—even for serious allegations

While AS underscores the low bar for eligibility, Horsley confirms that complaints grounded only in suspicion, unaccompanied by objective footing, can and should be stopped at the threshold. This ensures that serious accusations like falsification do not automatically mandate an investigation absent a minimally cogent basis.

C. Post-Wilson process discipline

Administratively, the SLCC must ensure eligibility decisions are made by a commissioner or committee to avoid procedural invalidity. Horsley demonstrates that the Court may cure such defects by substitution where the merits are clear; however, the preferable course is procedural compliance at first instance.

D. Practical guidance for participants

  • For complainers: Provide objective indicia—e.g., contemporaneous contradictions, third-party attestations, forensic material you already possess. A mere demand that the SLCC collect proof (like metadata) will not suffice.
  • For practitioners: There is no eligibility-stage duty to supply metadata; nonetheless, maintaining contemporaneous, coherent records remains best practice, both ethically and to forestall suspicion.
  • For the SLCC: Continue to perform the sifting role firmly but lawfully: reject hopeless cases, record clear reasons, and ensure that a commissioner or committee takes the eligibility decisions.

Complex Concepts Simplified

What does “totally without merit” mean?

It describes complaints so hopeless that further inquiries would make no difference. It is stronger than saying a complaint is “unlikely to succeed”. If the basis for an allegation is plainly irrational or purely speculative, the SLCC may reject it at the outset.

What is the SLCC’s role at eligibility stage?

The SLCC acts as a gatekeeper. It classifies the complaint (conduct or services) and asks whether it is frivolous, vexatious, or totally without merit. It does not gather evidence or conduct investigations; those functions belong to the professional bodies once a conduct complaint passes the sift.

Is the “best evidence” rule relevant here?

Not in the way the appellant argued. The rule is about preferring original (primary) evidence over copies or hearsay when deciding a case. It does not impose a duty on a sifting body to procure further or “better” primary evidence before deciding eligibility.

Do parties have a right to reply at eligibility stage?

No general right exists at the sift stage. The SLCC can decide eligibility based on the complaint, the practitioner’s response, and any supporting material provided. Eligibility is not an adversarial hearing.

What counts as an “objective basis” for a complaint?

Tangible indicators that support the allegation, such as contemporaneous documents or inconsistencies, third-party evidence, or material forensic pointers that the complainer already possesses. Mere suspicion or inference from non-response is not enough.

Conclusion

Horsley v SLCC is an important restatement of the SLCC’s gatekeeping function and the constraints upon it. The Court quashed the SLCC’s procedurally improper eligibility decision (per Wilson) but substituted the same outcome, holding that an allegation of document falsification, unsupported by any objective material and contradicted by a sensible comparison of contemporaneous records, is “totally without merit”.

The decision clarifies that:

  • The SLCC has no investigative duty at eligibility stage and no obligation to secure electronic verification or metadata.
  • The “best evidence” rule does not require the SLCC to obtain “better” evidence before sifting.
  • There is no procedural requirement to solicit a rejoinder from the complainer to the practitioner’s response at the sift stage.
  • Even serious allegations must have an objective basis to pass the low eligibility threshold; speculation is insufficient.

In the broader legal landscape, Horsley balances the low threshold for progressing conduct complaints with a robust filter against meritless accusations. It offers clear procedural guidance post-Wilson and provides practical cues to complainers: bring forward real, objective material at the outset or risk a threshold dismissal.

Case Snapshot

  • Case: Appeal by Margaret Horsley v Scottish Legal Complaints Commission
  • Citation: [2025] CSIH 28
  • Court: Extra Division, Inner House, Court of Session
  • Panel: Lord Matthews (delivering the opinion), Lord Tyre, Lord Armstrong
  • Date: 31 October 2025
  • Disposition: Appeal allowed on procedural impropriety; decision quashed; Court substituted its own decision rejecting Complaint 2 as “totally without merit”.
  • Key holdings: No investigative duty/metadata verification at eligibility; best evidence rule inapplicable; subjective suspicion insufficient; no right to rejoinder at eligibility stage.

Case Details

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