DAVID LILBURN AGAINST A DECISION TAKEN BY THE SCOTTISH LEGAL COMPLAINTS COMMISSION

Factual and Procedural Background

The Applicant, currently detained in The State Hospital, instructed a solicitor in early 2017 to pursue a claim against an insurance company for breach of contract relating to sickness benefits. The solicitor engaged counsel and obtained an opinion unfavorable to the Applicant's claim. The Applicant sought legal aid funding for a consultation with counsel, which was refused by the Scottish Legal Aid Board ("SLAB"). Subsequent correspondence between the Applicant and the solicitor involved requests for further action, including a reconsideration of SLAB's refusal, which the solicitor declined to pursue. The Applicant lodged two complaints with the Scottish Legal Complaints Commission ("the Respondent") alleging ineffective communication and failure to follow instructions regarding the SLAB reconsideration. The Respondent rejected both complaints as totally without merit. The Applicant then sought leave to appeal this decision to the Court of Session.

Legal Issues Presented

1. Whether the Respondent erred in law by failing to properly and fully investigate the Applicant's complaints.
2. Whether there was procedural impropriety in the Respondent's handling of the complaints.
3. Whether the Respondent acted irrationally in exercising its discretion to reject the complaints.
4. Whether the Respondent's decision was unsupported by the facts established.
5. Whether the solicitor was obliged to apply for reconsideration of SLAB's refusal to fund a consultation with counsel.
6. Whether the solicitor failed to communicate effectively with the Applicant during the relevant period.
7. Whether the letters allegedly sent by the solicitor were fabricated.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed the statutory framework under the Legal Profession and Legal Aid (Scotland) Act 2007, emphasizing the Respondent’s role to preliminarily sift complaints and reject those that are frivolous, vexatious, or totally without merit. The Court reiterated that the level of investigation at this stage is necessarily limited and that a realistic prospect of success is the applicable threshold for further consideration.

The Court gave institutional respect to the Respondent’s expertise and discretion in handling complaints against solicitors, noting that the Respondent had detailed the factual background and correspondence thoroughly in its decision. The Court found no error in the Respondent’s conclusions that the solicitor had completed the work agreed under legal aid, was not obliged to seek reconsideration of SLAB’s refusal, and that no binding private fee agreement had been reached.

Regarding communication, the Court accepted the Respondent’s finding that any shortcomings were not serious enough to breach service standards. The Court also found the Applicant’s allegation of fabrication of letters unsupported by evidence and noted the practical difficulties and confidentiality concerns in investigating the solicitor’s computer records.

Overall, the Court found the grounds for appeal lacked a realistic prospect of success, with no procedural impropriety, irrationality, or factual misapplication by the Respondent.

Holding and Implications

The Court REFUSED the Applicant’s application for leave to appeal against the Respondent’s decision to reject the complaints as totally without merit.

This decision means the Respondent’s rejection of the complaints stands, and the Applicant’s appeal will not proceed. The Court’s ruling adheres to established principles respecting the specialized role of the Respondent and confirms that preliminary complaint sifting requires only limited investigation. No new precedent was established, and the ruling primarily affects the parties by concluding the complaint process at this stage.