B AGAINST A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION

Factual and Procedural Background

In early 2012, the Law Society appointed a judicial factor to a firm of solicitors in a northern town ("Highland Law Practice" or "HLP") which was immediately wound up. A client of HLP, referred to as the Complainer, had ongoing litigation handled by HLP. The judicial factor sought solicitors to take over client files and funds to minimize prejudice. The Appellant, a solicitor not registered for legal aid and unable to provide litigation services, agreed to take over HLP's chamber business but could not handle the litigation files. At the judicial factor's suggestion, the Appellant employed a solicitor ("M") registered for legal aid to handle the litigation work. All files and papers were transferred to the Appellant's firm around March 2012 without client mandates, with the understanding that the Appellant's firm would notify clients.

Approximately five months later, M left the Appellant's employment abruptly without notice and without arranging for transfer of the litigation files. The Appellant, unable to provide litigation or legal aid services alone, arranged for another firm ("ML") to take over the litigation files immediately. ML was to notify clients of the change and inform them of their right to choose a solicitor.

In October 2018, the Complainer lodged a complaint with the Scottish Legal Complaints Commission ("the Commission") alleging, among other issues, that her file had been transferred to ML without her mandate. The Commission found the file transfer occurred around August 2012 and that the Complainer was quickly made aware of it. Although the complaint was made more than five years after the event, the Commission admitted it for investigation on the basis of exceptional circumstances under the relevant rules.

The Appellant applied for leave to appeal the Commission's determination to admit the complaint, which was granted. The Appellant and the Commission initially agreed the appeal should be allowed and the complaint dismissed as without merit, but subsequently sought to withdraw that agreement and instead argued the complaint was time-barred and should not be admitted for investigation. The appeal proceeded without opposition from the Complainer or the Law Society, and the Commission did not resist the appeal.

Legal Issues Presented

1. Whether the complaint regarding the transfer of the Complainer’s file without mandate was time-barred under the Scottish Legal Complaints Commission 2016 Rules, specifically rule 7(4) concerning exceptions to time limits.
2. Whether the Commission erred in law in admitting the complaint for investigation despite the lapse of the statutory time limit.
3. The proper interpretation and application of section 21(5) of the Legal Profession and Legal Aid (Scotland) Act 2007 regarding the Commission’s role and obligations in appeal proceedings.
4. The procedural question of whether interested parties (the Complainer and the Law Society) should be notified and served with the appeal when the Commission does not resist it.

Arguments of the Parties

Appellant's Arguments

• The complaint about the file transfer was made more than six years after the event and was clearly time-barred under rule 7 of the 2016 Rules.
• There were no exceptional reasons or circumstances to justify accepting the late complaint under rule 7(4).
• Even if the file transfer without mandate constituted misconduct, mitigating circumstances existed due to the difficult situation following M’s abrupt departure.
• The Complainer and the Law Society did not lodge answers and thus had no locus to resist the appeal; therefore, informing them of the Commission’s non-resistance was unnecessary.
• Service of the appeal on interested parties who did not oppose the application for leave was not required, promoting efficiency and avoiding unnecessary expense.
• The Appellant requested the court exercise its power under section 22(1) to substitute its own decision rather than remit the matter back to the Commission, to avoid restarting the complaint process.

Commission's Arguments

• The Commission agreed the appeal should be allowed and that the complaint was time-barred, acknowledging it had erred in admitting the complaint initially.
• The Commission did not consider it necessary to inform or involve the Law Society or the Complainer in the settlement, as neither had lodged answers to the appeal.
• Section 21(5) of the 2007 Act requires the Commission to be a party to appeal proceedings but does not oblige it to lodge answers to applications for leave to appeal or to appeals it does not resist.
• Requiring the Commission to lodge answers when not resisting appeals would cause unnecessary expense and was not mandated by statute or precedent.
• The Commission emphasized that lodging answers serves a useful purpose even when not resisting, such as enabling it to enter joint minutes and explain its position.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework under the Legal Profession and Legal Aid (Scotland) Act 2007 and the Scottish Legal Complaints Commission 2016 Rules, focusing on the time limits for bringing complaints and the exceptions thereto. It found that the complaint was made well beyond the one-year limit and that none of the exceptions in rule 7(4)—exceptional reasons, exceptional circumstances, or public interest—were satisfied.

The court acknowledged the difficult factual situation faced by the Appellant but concluded that this did not amount to exceptional circumstances justifying the late complaint. It accepted the Commission’s revised position that the complaint was time-barred and should not be admitted for investigation.

On procedural matters, the court interpreted section 21(5) of the 2007 Act as requiring the Commission to be a party to appeal proceedings, but not necessarily to lodge answers to applications for leave or to appeals it does not resist. The court emphasized the importance of notifying interested parties (such as the Complainer and the Law Society) when the Commission does not resist an appeal to ensure fairness, especially when the court may substitute its own decision, which is final and not subject to further appeal.

The court invited representations from interested parties after receipt of the joint minute and, upon consideration of their responses, found no basis to alter its conclusion. It underscored the distinction between service of applications for leave to appeal, which should be served on all interested parties, and service of appeals, which may be dispensed with if an interested party unequivocally indicates no need for service.

Holding and Implications

The court ALLOWED the appeal and substituted the Commission’s decision with a finding that the complaint regarding the transfer of the Complainer’s file was time-barred and should not be admitted for investigation or further action.

The direct effect is that the complaint will not proceed, and no investigation will be undertaken by the Commission on this issue. The court did not establish any new precedent beyond clarifying procedural expectations regarding the Commission’s role in appeals and the necessity of notifying interested parties when the Commission does not resist an appeal. The decision finalizes the matter, as there is no further right of appeal against the court’s substituted decision.