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

Factual and Procedural Background

The Applicant sought leave to appeal an eligibility decision made by the Scottish Legal Complaints Commission ("the Commission"). The Law Society of Scotland (hereafter "Company A") lodged a complaint against the Applicant. The Commission (hereafter "Company B") determined the complaint was not premature, not time-barred, and not frivolous, vexatious or totally without merit.

The complaint was framed in three paragraphs, described by the Commission as issues one, two and three. Issue one concerned correspondence between the Applicant and (a) Company A and its agents, (b) the court and court staff, and (c) Company B, said to be apt to draw the profession into disrepute. Issue two concerned a passage in a supporting document to the Applicant's practising certificate application, which the complainer characterised as a threat to raise proceedings under the Equality Act 2010 to influence the Practising Certificate Sub Committee. Issue three alleged aspects of the Applicant's conduct in Employment Tribunal proceedings on or around 8 May 2025, also said to be apt to draw the profession into disrepute.

The opinion was delivered by Judge Carmichael, sitting with Judge Matthews and Judge Braid, and considers whether there is a real prospect of the Applicant successfully arguing that the Commission erred in law or acted irrationally in its eligibility decision.

Legal Issues Presented

1. Whether there is a real prospect of success in arguing that correspondence relied on by Company A (issue two) could never amount to a departure from professional standards such that the complaint should have been rejected as frivolous, vexatious or totally without merit.
2. Whether Company B was the true originator of the complaint and thus disqualified from adjudicating.
3. Whether Company B falsified or misdated documents leading to an insufficiency of time for the Applicant to respond to the preliminary eligibility decision.
4. Whether conduct resulting in no financial loss ("settled for £0.00") can amount to professional misconduct or unsatisfactory professional conduct.
5. Whether the person who submitted the complaint on behalf of Company A had authority to do so.
6. Whether the complaint was premature because Company A did not first give the Applicant an opportunity to respond.
7. Whether the preliminary eligibility decision and supporting documents were properly served and whether the Applicant had a fair opportunity to answer.
8. Whether there was any quality assurance or check on the eligibility report.
9. Whether the decision to remit the complaint to Company A taken by an employee rather than a committee or member was competent.
10. Whether the remitted complaint was not a complaint because it contained multiple discrete issues.
11. Whether there was a "competent evidence bundle" underpinning the eligibility report.
12. Whether the overall complaint was frivolous, vexatious or totally without merit.

Arguments of the Parties

Applicant's Arguments

• The passage in the supporting document (issue two) merely indicated an intention to challenge an unfavourable decision under the Equality Act 2010 and the Human Rights Act 1998, which is lawful and cannot constitute a "threat" amounting to misconduct.
• Company B was the true originator of the complaint (citing Cannon, Petitioner) and so could not properly adjudicate.
• Company B falsified or misdated the dispatch of the preliminary eligibility decision, resulting in an unacceptably short period to consider a voluminous bundle.
• The complaint had "settled for £0.00" so could not amount to professional misconduct or unsatisfactory professional conduct.
• The individual who lodged the complaint on behalf of Company A lacked authority.
• The complaint was premature because Company A did not first seek the Applicant's response on all matters.
• The preliminary eligibility decision was not properly served and the Applicant lacked a fair opportunity to respond.
• There was no quality check on the eligibility report; no competent evidence bundle; and the decision to remit was taken by an employee rather than an authorised committee or member.
• The whole complaint was frivolous, vexatious and totally without merit.

Respondents' Arguments (as recorded)

• Company A was the complainer; Company B had not initiated a complaint of its own motion and was entitled to consider a complaint brought to it.
• There is no dispute that the package was delivered on 22 July 2025; there is no statutory requirement as to how a preliminary eligibility decision must be packaged, and the manner described did not amount to procedural irregularity.
• Conduct resulting in no financial loss can nonetheless amount to misconduct; the Commission's approach to prematurity, quality assurance, and the contents of the eligibility report were consistent with statute and policy.
• The Commission provided the Applicant with an extensive volume of documents, including the material relied upon for issues one to three, such that there was documentary underpinning for the eligibility decision.
• The Commission's procedures and remit permitted an employee to take the relevant decision in the circumstances described.

Table of Precedents Cited

Court's Reasoning and Analysis

The court assessed whether the Applicant's grounds disclosed a real prospect of success on appeal under the low threshold applicable to eligibility decisions. Applying the test explained in Levy & McRae, the court focused on whether correspondence in the terms complained of could never amount to a departure from professional standards.

On issue two (the passage in the supporting document), the court accepted there was a real prospect that the Applicant could argue successfully that drawing attention to statutory remedies and human rights was not a "threat" amounting to misconduct. Consequently, permission to appeal was granted on that point.

On the other pleas:

• The argument that Company B was the originator of the complaint failed because Company A was the complainer and Company B cannot initiate complaints of its own motion (Cannon).
• The contention that Company B falsified the dispatch date and thereby deprived the Applicant of a fair opportunity to respond was addressed alongside related pleas; delivery on 22 July 2025 was not disputed, there is no statutory requirement as to packaging, and the manner of service did not amount to procedural irregularity. The court noted the Applicant did not provide an immediate and instantly verifiable complete answer to the complaint.
• The submission that conduct producing no financial loss cannot be misconduct was rejected as misconceived (relying on reasoning in [2026] CSIH 12).
• The argument that the individual who lodged the complaint lacked authority failed because both the individual and Company A qualify as "any person" under the Act.
• Pleas concerning absence of quality assurance, absence of an appendix, decision taken by an employee, multiplicity of issues in the complaint, and lack of a "competent evidence bundle" were rejected as not having a real prospect of success; the Commission had provided the Applicant with documentary material supporting the eligibility decision and the Act imposes no requirement for explicit references to quality assurance or an appendix.
• The overall plea that the complaint was frivolous, vexatious and totally without merit failed except insofar as issue two raised a real prospect of success; the low threshold for eligibility remained decisive.

Holding and Implications

Permission to appeal was granted in part. The court granted leave to appeal solely on the ground relating to issue two (the challenged passage in the Applicant's supporting document and whether it could ever amount to misconduct). All other pleas and grounds of appeal were dismissed as lacking a real prospect of success.

Implications: The Applicant may proceed to appeal the narrow point identified (issue two). The remainder of the eligibility decision stands for present purposes. The opinion does not purport to establish a broader new precedent beyond the Court's application of established tests for permission to appeal in eligibility matters.