Anonymised Summary of Opinion — Extra Division, Inner House, Court of Session

Factual and Procedural Background

The Appellant was a solicitor enrolled in 1986 but was not on the Roll as of the date of the opinion. In January 2016 the Appellant was appointed as welfare and financial attorney for two relatives (referred to in the source as JC and MAC). By April 2016 one relative (JC) had formed the view that the Appellant was misusing the Power of Attorney and, after consulting a solicitor (referred to in the source as BD), revoked the Appellant's appointment and executed new powers in favour of two other relatives. BD wrote to the Appellant on 21 April 2016 requesting an explanation for the Appellant's actings.

The two other relatives complained to the Scottish Legal Complaints Commission (the respondent in the original opinion). The Law Society of Scotland pursued professional misconduct proceedings against the Appellant before the Scottish Solicitors Discipline Tribunal, in the course of which BD gave evidence and confirmed authorship of a file note of the 20 April 2016 consultation and of the 21 April 2016 letter.

The SSDT acquitted the Appellant of professional misconduct in June 2023 and remitted consideration of possible unsatisfactory professional conduct to the Law Society.

The Appellant later complained to the respondent (the Commission) that BD had falsified his file note of 20 April 2016. The Appellant's complaint alleged that the file note was not a contemporaneous record and had been "improved" or drafted later to support BD's evidence. The Appellant asked the Commission to "verify" the file note, including by reference to electronic metadata.

The Commission (through a case investigator) agreed a summary of four complaints with the Appellant, treated them as conduct complaints where appropriate, and determined by an eligibility decision dated 16 December 2024 that Complaint 1 was eligible but that Complaints 2 and 3 were "totally without merit" and Complaint 4 was time-barred. Complaint 2 alleged falsification of the 20 April 2016 file note.

The Appellant appealed the Commission's eligibility decision under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007. The Commission conceded that the decision should be quashed because it had been taken by a case investigator rather than by a commissioner or committee (a conceded procedural impropriety), but invited the court to substitute the same substantive outcome. The court allowed the appeal on the procedural ground, proceeded to consider the substantive question itself, and concluded that complaint number 2 was totally without merit and substituted its own decision rejecting that complaint.

Legal Issues Presented

1. Whether the respondent's eligibility decision that Complaint 2 (alleging falsification of a file note) was "totally without merit" should be overturned under section 21 of the 2007 Act.
2. Whether the respondent denied the Appellant a fair hearing and committed an error of law by (a) failing to apply the "best evidence" rule, (b) failing to take into account all circumstances of the complaint, (c) fettering its discretion by refusing to seek independent verification, and (d) not affording the Appellant an opportunity to respond to BD's written comments.
3. Whether the respondent's decision was irrational such that the court should interfere.
4. Whether, having found a procedural impropriety (decision made by a case investigator rather than by a commissioner/committee), the court should substitute its own decision under section 22 of the 2007 Act.

Arguments of the Parties

Appellant's Arguments

• The eligibility decision was based on error of law because the respondent denied her a fair hearing in several respects (failure to apply the best evidence rule; failure to consider all circumstances; fettering its discretion by declining to verify the document; and not allowing the Appellant to respond to BD's written response).
• The respondent should have required BD to provide an electronic (soft) copy of the file note so that its metadata could be checked to confirm when it was created or last amended; relying on a textual comparison and BD's denial was insufficient.
• BD's conduct (delay or failure to respond to email requests, consulting colleagues rather than supplying the note, and failing to retain a soft copy) supported an inference of concealment or falsification and should have been explored.
• The respondent's approach was irrational because a falsifier would not willingly produce evidence of falsification, so refusing to seek independent verification in any case made successful complaints of falsification impossible.
• The Appellant invited the court to substitute its own decision that Complaint 2 was eligible and remit it to the Law Society for investigation.

Respondent's Arguments (Company A)

• The Commission conceded a procedural irregularity: the eligibility decision was taken by a case investigator rather than by a commissioner or committee, so the decision as made was vitiated and must be quashed; however, the respondent submitted the substantive conclusion was correct and invited the court to substitute the same outcome.
• The Appellant's allegation was based on unvouched belief and a textual comparison with the 21 April 2016 letter; that amounted to no more than the sort of unsupported allegation the Commission may dismiss as totally without merit.
• At eligibility stage the Commission's role is a sifting or gate‑keeping role, not an investigatory one; it need only consider whether there is any proper basis for investigation. It was not obliged to retrieve electronic evidence or to require BD to produce a soft copy where he said none existed.
• There was no legal obligation on BD to produce an electronic copy and his failure to respond to some emails did not give rise to an adverse inference. The Appellant carried the onus of providing some proper basis for an investigation into alleged dishonesty.
• The investigator's textual comparison of the file note and the letter and reliance on BD's explanation was a rational exercise that a reasonable public body could have reached.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in two stages. First, it accepted the conceded procedural impropriety (the eligibility decision had been taken by a case investigator rather than by a commissioner or committee) and allowed the appeal on that ground. Second, having quashed the flawed decision, the court exercised its power under section 22 of the 2007 Act to decide the substantive eligibility issue afresh.

The court emphasised the statutory framework: the respondent (Company A) performs a sifting or gate‑keeping role at the eligibility stage and is not an investigatory body. Under section 2(4) of the 2007 Act the Commission must determine whether a complaint is frivolous, vexatious or totally without merit; the threshold for eligibility is low and conduct complaints are normally remitted to the relevant professional body. The court applied the guidance in the authorities that a complaint is "totally without merit" where it is hopeless on its face and further inquiries could make no difference.

The court examined the Appellant's asserted basis for the falsification complaint. The Appellant's suspicion rested on three features: (i) a textual comparison between the file note of 20 April 2016 and the 21 April 2016 letter (the Appellant considered the letter and note insufficiently similar or that the note was composed later), (ii) BD's conduct in not providing an electronic copy or responding to certain emails, and (iii) BD's alleged consultation with colleagues about how to respond.

The court carried out the basic comparison relied upon by the case investigator. It identified six discrete concerns set out in the 21 April letter and found that four of those were directly mentioned in the file note; the others were either referenced in different terms or plausibly omitted from the note despite being fresh in the author's mind. The court considered that, if the note had been composed much later as an afterthought, one might expect it to have incorporated all of the letter's material; the absence of some items therefore did not support an inference of later fabrication.

Regarding BD's conduct, the court held there was no legal obligation on BD to produce an electronic copy and that nothing adverse could reasonably be inferred from his failure to respond to particular emails or from seeking advice. The court stressed that the Appellant's position amounted to a subjective belief and that a mere subjective belief, unsupported by objective evidence, cannot sustain a complaint of serious dishonesty.

The court rejected the Appellant's "best evidence" argument. It explained that the best evidence rule addresses the admissibility hierarchy of evidence (preference for primary over secondary evidence) and does not require the respondent to conduct investigations or to obtain primary evidence afresh at the eligibility stage. To require the Commission to recover additional evidence would conflate the sifting role with an investigatory role which Parliament did not assign to the Commission.

Having considered the documents and the parties' submissions, the court concluded there was no objective vouching for the Appellant's suspicion and no basis on which further inquiry would be likely to make a difference. On that basis, Complaint 2 met the statutory description of being "totally without merit."

Holding and Implications

Holding: The court ALLOWED the appeal on the limited procedural ground that the eligibility decision had been taken by a case investigator rather than by a commissioner or committee, set that decision aside, and then, with the parties' consent, exercised its statutory power under section 22 to decide the substantive question itself.

The court SUBSTITUTED its own decision that Complaint number 2 (alleging falsification of the 20 April 2016 file note) is totally without merit and therefore rejected the complaint.

Implications:

• Direct effect: Complaint 2 is dismissed as totally without merit; no referral to the professional body (Company B) will be made in respect of that complaint. Complaint 1 had been found eligible and was to be remitted to the Law Society for investigation (as recorded in the respondent's eligibility decision); Complaint 4 was time-barred and Complaint 3 was also found totally without merit by the respondent.
• Procedure: The decision underlines that eligibility determinations of the type addressed in Schedule 1 must be taken by the appropriate decision-makers within the Commission (commissioner/committee) and that decisions taken by an unauthorised decision-maker may be quashed for procedural impropriety.
• Substantive precedent: The court's reasoning reiterates established principles governing the Commission's gate‑keeping role: the low threshold for eligibility, the meaning of "totally without merit," and the limited investigatory role of the Commission at the eligibility stage. The court did not create a novel legal test; it applied existing authorities and concluded no further investigation would have been likely to assist the Appellant on Complaint 2.

The court reserved questions of expenses for later determination.