Patrick Henry McAuley for leave to appeal a decision of the Scottish Legal Complaints Commission (Court of Session)

Factual and Procedural Background

Judge Matthews delivered the opinion of the court on an application by Appellant for leave to appeal a Company A decision dated 16 May 2025 that a complaint against Appellant was not "frivolous, vexatious, or totally without merit" under section 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007. Leave under section 21 of the 2007 Act requires satisfaction that there is a "real prospect of success" or other compelling reason for hearing the appeal.

In August 2024 Plaintiff complained to Company A about Appellant. Company A found the complaint eligible in September 2024 and referred it to Company B for investigation. Appellant applied for leave to appeal that eligibility decision and was refused in February 2025. Subsequent correspondence from Appellant in February 2025 formed part of the complaint: repeated accusations (including allegations of fraud, racism, conspiracy to falsify documents, defamation, harassment), threats to publish commentary and leaflets, and an allegation concerning Appellant's conduct in an application for a practising certificate (failure to disclose a tribunal decision described as "scandalous, vexatious, and unreasonable"). Company D (a corporate body associated with Plaintiff) was also referenced in the complained-of conduct.

Legal Issues Presented

1. Whether leave to appeal should be granted under section 21(4) of the 2007 Act on grounds that Company A's decision was based on an error of law, procedural impropriety, irrationality, or was unsupported by the facts found.
2. Whether Company A has power to act as gatekeeper under section 2 and the applicable standard for dismissing complaints as "totally without merit".
3. Whether Company A (through a Case Investigator rather than a commissioner) had authority to make the eligibility decision and whether that engaged Article 6 ECHR.
4. Whether the complaint required pecuniary loss or other injury to be eligible (the "worth £0.00" argument).
5. Whether a corporate or unincorporated body (or a complaint made on its behalf) may be a valid complainer under section 2.
6. Whether Company A may consider complaints containing alleged criminality or multiple discrete complaints within a single submission.
7. Whether procedural safeguards (notice of a Preliminary Eligibility Decision, specification of evidence) were observed.
8. Allegations of institutional bias or discrimination raised by Appellant and whether Convention rights were engaged in the regulatory scheme.

Arguments of the Parties

Appellant's Arguments

• Company A lacked standing/title and interest to process a complaint worth "£0.00" (de minimis), invoking principles from inter partes litigation.
• The eligibility decision required pecuniary loss or other injury to meet professional misconduct thresholds (invoking Sharp).
• Procedural defects: failure to send notice of a specified regulatory scheme or a Preliminary Eligibility Decision; insufficient evidence in the eligibility report; wrong decision-maker (a Case Investigator rather than a commissioner) breaching Article 6; lack of reference to "quality assurance".
• Complaint was vexatious, motivated by improper collateral purposes (relating to other litigation), and/or made by an entity without legal personality; multiple discrete complaints could not be considered together.
• Company A had no jurisdiction to consider alleged criminality (CV fraud) and the complaint was thereby vexatious; matters were res judicata or otherwise moot regarding practising-certificate issues.
• Allegations that Company A was institutionally biased (anti-Catholic) and that the regulatory regime breached Convention rights (Article 2 Protocol 1), with an intention to pursue further domestic or international proceedings if not accepted.

Respondent's (Company A's and Company B's) Arguments

• Company A is a statutory gateway body established by the 2007 Act; concepts of standing/title/interest in inter partes litigation are inapplicable to its statutory function.
• The section 2 role is a sifting function with a low threshold for eligibility; "totally without merit" is a high test to dismiss complaints and referral to Company B is appropriate where merits may exist.
• No statutory requirement for a Preliminary Eligibility Decision to be sent to the practitioner; however, practitioners should be afforded an opportunity to provide an immediate answer where possible.
• Delegation to Case Investigators for section 2 decisions is permissible; only peremptory dismissals require commissioner authorisation, and Article 6 is not engaged because sifting does not decide civil rights—appeal rights to the court exist.
• Corporate or unincorporated bodies fall within the statutory definition of "person"; Company A may rely on apparent authority for internal decision-making.
• Reference to alleged criminality does not preclude consideration of professional standards; policies direct how to handle such references without determining criminal guilt.
• No evidence of institutional bias was shown on the material before the court.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by restating the settled principles governing section 2 decisions: Company A's role is to sift complaints, not finally determine them; dismissal as "totally without merit" requires that referral to Company B would be a waste of time; the "totally without merit" test is high, producing a low threshold for eligibility; absent error of law or procedural impropriety the court should not substitute its view unless Company A acted irrationally; institutional respect is due to Company A.

The court addressed each of Appellant's 14 pleas-in-law:

• Plea 1 (standing/title/interest): rejected—standing principles for inter partes litigation do not apply to Company A's statutory sifting function.
• Plea 2 (necessity of pecuniary loss): rejected—no authority supports requiring pecuniary loss for eligibility; conduct causing no monetary loss may still depart from standards (examples given).
• Plea 3 (failure to send specified regulatory scheme notice/PED): court assumed PED not received but found no statutory obligation to send PED and no prejudice shown; Company B is better placed to assess merit.
• Plea 4 (decision-maker/Article 6): delegation to Case Investigators for section 2 remittals permissible; Article 6 not engaged because sifting does not determine civil rights and appeal to the court exists.
• Plea 5 (absence of "quality assurance" reference; investigator gathering evidence): no statutory requirement to refer to quality assurance; sifting is procedural and not a merits decision.
• Pleas 6–7 (vexatious motive, collateral advantage, sectarian motive): court found no on-face evidence meeting vexatious criteria and emphasised that motive allegations without evidence do not defeat referral; Company B may investigate further.
• Plea 8 (complainer lacking legal personality): rejected—statutory wording ("any person") includes corporate and unincorporated bodies; interpretation Act support; Company A may assume internal authority.
• Plea 9 (singular "complaint" precludes multiple issues): rejected—definition of "complaint" and interpretation rules permit multiple elements; practical necessity of grouping complaints endorsed.
• Plea 10 (jurisdiction over alleged criminality): court held Company A may consider professional-standard aspects of allegations even where criminal conduct is alleged; it cannot determine criminal guilt but may frame professional issues accordingly.
• Pleas 11–12 (lack of evidence in eligibility report): court observed the complaint relied on Appellant's own correspondence and filings; no requirement that an Appendix accompany an eligibility report at sifting stage.
• Plea 13 (entire complaint frivolous/vexatious/res judicata): reiterated low threshold for eligibility; res judicata not applicable to section 2 sifting.
• Plea 14 (Convention/ECHR claims, institutional discrimination): court treated these as repetitions of earlier pleas, held the regulatory scheme compliant when viewed as a whole, found no evidence of anti-religious bias on material before it, and noted Appellant will have full opportunity to defend in Company B's investigatory process and before Company E if necessary.

The court concluded that Appellant's challenge did not properly engage section 21(4) grounds and that there was no real prospect of success.

Holding and Implications

DISMISSED: Leave to appeal is refused.

Implications: The direct effect is that the Company A eligibility decision of 16 May 2025 stands and the complaint remains remitted to Company B for investigation. The court applied established section 2 principles and declined to set a new precedent altering the sifting threshold or the delegation arrangements; any broader Convention or discrimination issues may be explored at investigative or tribunal stages. The question of expenses is reserved for subsequent written submissions.