Appeal by the Council of the Law Society of Scotland v. The Scottish Legal Complaints Commission [2010] CSIH 79

This appeal by the Law Society of Scotland under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 against a decision by the Scottish Legal Complaints Commission, concerned whether a complaint made against Mr Alastair Dean, solicitor, of the Alastair Dean Law Practice Ltd was “totally without merit”, within the meaning of section 2(4)(a) of the 2007 Act. The appellants contended the respondent should have rejected the complaint, and should not have remitted the complaint to them for investigation.

In July 2009, the solicitor had sent a letter to the complainers, the factual allegations of which they refuted, and the tone of which they deemed “aggressive, threatening and intimidating”. The letter informed the complainers that if they continued to access land belonging to the solicitor's client, court action would be contemplated. Following receipt of the complaint by the respondents, their initial conclusion and recommendations documented that the solicitor in question was acting under client instructions and was simply narrating facts as to put to him by his client. At that stage, the respondents deemed the letter to be a standard letter from solicitor to another party when they are being advised that they are doing something they should not be doing, asking them to desist and narrating what could happen if they carried on doing the same thing. At that stage, the respondents concluded the complaint should be deemed totally without merit.

Subsequently however, and in spite of these initial recommendations, the respondents proceeded to determine that the complaint should not be rejected on the grounds that it was totally without merit, and that it should be remitted to the appellants for investigation and determination as a conduct complaint in accordance with section 6 of the 2007 Act.

On appeal to the Inner House, the respondents submitted that the term “totally without merit”, in terms of section 2(4)(a) of the 2007 Act was a low threshold and only allowed complaints to be rejected at this stage, if it would be an “abuse of process” for it to continue. While accepting the test was of a low threshold, the court was not persuaded by the latter submission, noting that the Act did not import a notion of “abuse of process” into the test, and that it was unhelpful to put gloss on the language of this clear statutory provision.

As regards the content and nature of the letter sent on July 2009, the court deemed the letter to be of standard fare where adversarial proceedings are contemplated by a client, and refuted the suggestion that the solicitor had an obligation to verify the veracity of the facts communicated to him by his client, when fulfilling his instructions. On this basis, the court considered that the respondents had erred in law, and had proceeded on a misunderstanding of the role and duty of the solicitor when handling the complaint.

The appeal was accordingly allowed and the court substituted the decision of the respondents for the decision that the relevant complaint was totally without merit in terms of section 2(4)(a).

Lord Malcolm provided a dissenting opinion from that of the body of the court, noting that he would have refused the appeal, as the complaint may have raised issues which may have been of interest to the professional body, insofar as it regulated conduct and standards of the whole profession. The complaint was therefore, in his view, not totally without merit, and was worthy of investigation due to the general issues of concern it raised for the profession as a whole.