Substitution (Not Remittal) Where an SLCC-Remitted Conduct Complaint Is “Totally Without Merit” and Procedural Fairness Is Breached

1. Introduction

In Appeals by The Faculty of Advocates and XY against a decision of The Scottish Legal Complaints Commission ([2026] CSIH 39, Extra Division, Inner House), the Court of Session considered challenges by (i) The Faculty of Advocates and (ii) XY, a practising advocate, to an eligibility/remittal decision of the Scottish Legal Complaints Commission (SLCC).

The underlying complaint arose from sheriff court proceedings in which the complainer (a non-party to these appeals) alleged, in substance, serious professional misconduct by the advocate—namely access to stolen documents, improper use of court process to recover them, and reliance on “fraudulent invoices”. The SLCC categorised the matter as a professional conduct complaint and remitted it to the Faculty for investigation.

The central issues were: (a) whether the SLCC’s use of its “Sprint protocol” produced procedural unfairness and legal error at the eligibility stage; (b) whether the complaint should have been filtered out as “totally without merit” under the statutory sift; and (c) if the SLCC decision was unlawful, what remedy the court should grant—remittal to the SLCC or dismissal of the complaint.

2. Summary of the Judgment

The court held that the SLCC decision was unlawful (a point not disputed by the parties by the time of decision) and, crucially, that the only reasonable and rational outcome was dismissal of the complaint. It therefore:

  • Quashed the SLCC decision; and
  • Dismissed the complaint (rather than remitting it to the SLCC for a fresh eligibility decision).

Expenses were awarded to each applicant against the SLCC on the ordinary party-and-party basis (not agent-and-client, client-paying).

3. Analysis

3.1 Precedents Cited

Wilson v SLCC 2025 SLT 1

The SLCC’s “Sprint protocol” was adopted after Wilson v SLCC 2025 SLT 1. The judgment describes the protocol’s policy aim: to simplify and accelerate eligibility decisions, responding to concerns that eligibility had become too investigative rather than a sift of plainly unmeritorious complaints.

In [2026] CSIH 39, the court did not mount a broad condemnation of the Sprint protocol as such (the Faculty expressly disavowed a general attack). Instead, the case illustrates a limiting principle: whatever streamlined process is used, the statutory sift and basic fairness must still be satisfied. The court’s reasoning treats Wilson as contextual background for the protocol, not as authority permitting eligibility decisions divorced from natural justice or statutory requirements.

3.2 Legal Reasoning

(a) The statutory framework: sift, appeal grounds, and remedies

Three features of the Legal Profession and Legal Aid (Scotland) Act 2007 drove the outcome:

  • Section 2(4)(a): the SLCC must filter out complaints it judges to be “totally without merit”. The court treated this as a real sifting duty, not a formality.
  • Section 21(4): on appeal, the court may grant relief where statutory grounds are met (the SLCC accepted that the decision could not be defended, acknowledging lack of supporting evidence and that the dishonesty allegations differed from what had been put to the advocate previously).
  • Section 22(1): the court may make such order as it sees fit, including substituting its own decision, not merely quashing and remitting.

(b) Procedural unfairness at the eligibility stage

The Faculty and the advocate argued that the Sprint protocol operated, in this case, to exclude an opportunity for the advocate to make representations at eligibility—despite the fact that the complaint involved serious dishonesty allegations, was unsupported by evidence, and (as the SLCC accepted) had shifted in nature from earlier communications.

The court’s decision reinforces that streamlining cannot override natural justice. Even at a sift stage, a process which remits serious allegations without an opportunity to correct obvious factual misunderstandings (where such correction is readily available) risks unlawfulness.

(c) Why dismissal (substitution) rather than remittal was appropriate

The judgment’s most practically significant point is remedial: having found the SLCC decision unlawful, the court did not regard remittal as the default outcome. Instead, it examined whether any useful or fair purpose would be served by sending the matter back.

The court identified foundational defects in the complaint:

  • A major misunderstanding: the sheriff court interlocutors showed the commission and diligence was sought by the defender, while the advocate acted for the pursuer.
  • A further mistaken assumption about who lodges documents in court process (counsel versus instructing solicitors).
  • The “fraudulent invoices” allegation was vague, lacked specification, and was unsupported, amounting (at most) to an unparticularised insinuation of dishonesty.

The court also weighed the procedural history: the complainer had not engaged meaningfully during the appeal (despite being offered opportunities), and had provided no further support for the allegations. In those circumstances, the court concluded: there could be only one rational outcome—dismissal as totally without merit.

Importantly, the court treated remittal as not merely pointless but disproportionate and unfairly prejudicial to the practitioner: it would effectively provide the complainer a further opportunity to “build” a case that had, to date, no proper foundation. This is a clear statement that remedial discretion under section 22(1) includes attention to finality, proportionality, and fairness to the practitioner, not only to the complainer’s interest in having a complaint examined.

3.3 Impact

  • Practical remedy precedent: where the only rational conclusion on the material is that a complaint is totally without merit, the Inner House may substitute dismissal rather than remit to the SLCC for a re-run eligibility decision.
  • Constraint on “Sprint” processing: streamlined eligibility mechanisms must still secure basic fairness, particularly where dishonesty is alleged and where an obvious factual correction is readily available.
  • Reinforcement of the sift’s purpose: the judgment underscores that the SLCC’s “gateway” role includes filtering out unsupported, vague, or misconceived complaints—without drifting into a merits investigation, but also without remitting allegations that lack any proper foundation.
  • System design lesson: the postscript highlights the structural tension in the 2007 Act—SLCC supervision and sifting versus professional body determination of conduct. The judgment signals that achieving “balance” cannot be used to justify abandoning either statutory sift or natural justice.

4. Complex Concepts Simplified

  • “Eligibility decision”: the SLCC’s threshold assessment of whether a complaint should proceed (including whether it should be remitted to a professional body for investigation) or be rejected at the outset.
  • “Totally without merit” (s 2(4)(a)): a statutory test requiring rejection of complaints that lack any proper basis. It is not a full trial of the facts, but it does require more than accepting serious allegations as bare assertions.
  • “Natural justice”: basic procedural fairness—commonly including a fair opportunity to respond where decisions adversely affect a person’s interests, especially where allegations are serious.
  • “Reduction”/quashing and “substitution”: quashing sets aside an unlawful decision; substitution is when the court replaces it with the decision that should have been made (here, dismissal of the complaint).
  • “Commission and diligence”: a court procedure for recovery of documents or evidence; misunderstanding who sought it was central to the complaint’s collapse.

5. Conclusion

[2026] CSIH 39 is significant less for condemning a streamlined eligibility protocol in the abstract, and more for clarifying two concrete rules: (1) the SLCC’s statutory sift—particularly the duty to exclude complaints that are “totally without merit”—must be performed compatibly with natural justice; and (2) where the record shows the complaint is misconceived, unsupported, and rationally dismissible, the court may properly quash and substitute dismissal rather than remit, especially where remittal would be disproportionate and unfair to the practitioner.