Description
A firm, Kerr Stirling LLP, brought an appeal under
s. 21, Legal Profession and Legal Aid (Scotland) Act 2007 against a decision of the Scottish Legal Complaints Commission (SLCC) to investigate a complaint against it on the grounds of time bar and procedural fairness. The conduct complained of was the refusal of a solicitor of the firm to accept responsibility as instructing solicitor for payment of the balance of the professional fees of an expert witness.
Appealed allowed and decision of the SLCC to investigate the claim quashed. SLCC remitted to consider whether the circumstances were exceptional, in terms of Rule 4(6), entitling them to accept the complaint. Held; The SLCC erred in law in finding that the complaint was not out of time. They failed properly to understand the true nature of the complaint. The decision was not one which could be said to have been reasonably open to them on, or supported by, the information before them. Whether the fact that correspondence was sent to a layman might prevent time running under Rule 4(7), Rules of the Scottish Legal Complaints Commission 2009 was not decided by the Court as the matter had not been addressed during the proceedings, although it was noted,
prima facie, the Rules refer only to excusable ignorance of the occurrence of the relevant conduct, which did not apply in the present case. It was unnecessary to deal with the issue of alleged procedural unfairness, however the court noted,
obiter, that there may be cases in which fairness dictates that the solicitor complained of should be afforded the opportunity, as is the adopted practice of the SLCC, to make representations, or to provide further information, in respect of a question of whether a complaint has or has not been made within the time limit. In the present case the Court was not persuaded that any such obligation arose or that a failure to afford the firm the opportunity to make representation, or to provide further information, made any material difference.
