Appeals by The Faculty of Advocates and XY against a decision of The Scottish Legal Complaints Commission (Court of Session)

Factual and Procedural Background

Professional Body A and Appellant, a practising advocate, sought permission to appeal a decision of the Commission concerning a complaint about Appellant’s alleged misconduct while acting for a pursuer in sheriff court proceedings. [1][2]

The complaint alleged that Appellant knowingly possessed stolen documents, improperly sought their recovery through court proceedings, and lodged fraudulent invoices and relied on them in legal argument. The Commission categorised the complaint as concerning professional conduct and remitted it to Professional Body A for investigation and determination. [3]

The appeals were combined with consideration of their merits. The Commission accepted that its decision was unlawful and initially proposed that the matter be remitted for a fresh decision, but ultimately did not seek remittal. [1][4][5]

Legal Issues Presented

1. Whether the Commission’s use of the Sprint protocol produced procedural unfairness or errors of law, including failure to identify adequately the complaints remitted for investigation. [6][7]
2. Whether the Commission failed to determine whether the complaint was “totally without merit” under section 2(4)(a) of the Legal Profession and Legal Aid (Scotland) Act 2007. [8]
3. Whether the court should quash the Commission’s decision and remit the matter for reconsideration, or dismiss the complaint itself under its statutory powers. [9]

Arguments of the Parties

Professional Body A’s Arguments

• The Sprint protocol caused procedural unfairness and legal errors by failing properly to specify the complaints for investigation and by allowing the Commission to abdicate its statutory sifting responsibility. [6][8]
• Appellant should have been given an opportunity to respond, particularly because the serious allegations of dishonesty lacked supporting evidence. [7]
• Accepting the complaint without evidential support was irrational. [7]

Appellant’s Arguments

• Appellant adopted Professional Body A’s principal grounds, including inadequate identification and notice of the allegations. [10][11]
• The allegations were “outlandish and absurd” and should have been rejected at the eligibility stage because they lacked an evidential foundation. [11]
• A fair opportunity to make representations would have demonstrated that the allegations were unfounded; the court documents showed that the defender, not Appellant, sought recovery of the documents. [11]

Commission’s Position

• The Commission maintained that it had broad discretion to perform its statutory duties and could innovate on previous practice through the Sprint protocol. [12]
• It accepted that there was no supporting evidence from the Complainer and that the dishonesty allegations differed from those previously made to Appellant; these matters justified setting aside the decision. [4]
• It initially proposed remittal for a fresh decision but ultimately no longer sought that outcome. [4][5]

Table of Precedents Cited

Court's Reasoning and Analysis

The parties did not dispute that the Commission’s decision was unlawful. However, the court explained that unlawfulness did not automatically require quashing; it had to consider the statutory grounds of challenge and determine the appropriate remedy. [9]

The court examined the sheriff court interlocutors and found that the application for commission and diligence had been made by the defender, whereas Appellant acted for the pursuer. This undermined the allegation that Appellant possessed the file but nevertheless pursued recovery of the documents. [15]

The court also identified a mistaken assumption that counsel, rather than the instructing solicitor, lodges documents in the court process. It considered that much of the complaint appeared to concern a solicitor allegedly involved in handling stolen papers. [15]

The allegation concerning fraudulent invoices was vague, insufficiently particularised, unsupported by evidence, and lacking in specification and vouching. The allegation that Appellant knew of fraud was not expressly made, although it might have been implied. [16]

The court concluded that the only reasonable and rational outcome was that the complaint lacked a proper foundation. Remittal would give the Complainer another opportunity to provide support, but the history disclosed no realistic expectation that material evidence would be produced. [17]

Remittal would therefore be disproportionate and unfairly prejudicial to Appellant. The court exercised its power to make the order it considered appropriate and dismissed the complaint rather than remitting it. [17]

The court awarded each applicant expenses against the Commission on the ordinary party-and-party basis, rejecting Appellant’s request for an agent-and-client, client-paying award. [18]

In its postscript, the court clarified that Professional Body A had not pursued a general challenge to the Sprint protocol, but was concerned with its application in this case. The court emphasised that the Commission’s statutory sifting duty must be observed and that fairness and natural justice must protect both complainers and practitioners. [13][14][19]

Holding and Implications

The Commission’s decision was quashed and the complaint was dismissed. The court also awarded both applicants their expenses on the usual party-and-party basis. [17][18]

The direct effect was that Appellant faced no further investigation of the complaint. The court’s stated broader lesson was that statutory eligibility screening must respect natural justice and fairness to both the complainer and the practitioner. [17][19]