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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2023] CSIH 12
XA36/22
Lord Justice Clerk
Lord Tyre
Lady Wise
OPINION OF THE COURT
delivered by LORD TYRE
in the Appeal
by
FEDERICO GARCIA LPEZ DE LA TORRE
Appellant
against
SCOTTISH LEGAL COMPLAINTS COMMISSION
Respondent
Appellant: Party
Respondent: Irvine; Anderson Strathern
23 February 2023
Introduction
[1]
In July 2021 the appellant submitted a complaint to the respondent against his
former solicitor, Mr Hamish Lindsay. Mr Lindsay was a partner in the firm of Lindsay &
Kirk ("L&K") until that firm ceased to trade on 31 October 2018, and was thereafter a
2
consultant with Grant Smith Law Practice Limited ("GSL") until his retirement in 2019. The
complaint was assigned to one of the respondent's case investigators, who took the view
that it required to be treated as two separate complaints against Mr Lindsay and L&K
(Complaint A) and Mr Lindsay and GSL (Complaint B) respectively. The case investigator
proceeded to consider whether the complaints were eligible for investigation.
[2]
On 3 February 2022 the respondent issued two decisions addressing the eligibility of
Complaints A and B respectively. In relation to Complaint A, the respondent accepted one
issue for investigation as a conduct complaint but rejected three further issues, one because
it was time barred and the others because they were totally without merit. In relation to
Complaint B, the respondent accepted two issues for investigation as conduct complaints
but rejected six further issues as being totally without merit. The appellant now appeals,
with permission, to the court under section 21 of the Legal Profession and Legal Aid
(Scotland) Act 2007 against both eligibility decisions. By agreement of parties the appeal has
been considered by the court on the papers without the need for an oral hearing.
[3]
In its answers, lodged in advance of the hearing on permission to appeal, the
respondent conceded that the appeal had a reasonable prospect of success in establishing
that it had acted irrationally in exercise of its discretion in relation to Complaint A (in two
specific respects) and Complaint B (in one specific respect). In its written note of argument,
the respondent accepts that the irrationality ground is made out in those respects and invites
the court to quash both eligibility decisions and remit the appellant's complaints for
consideration of new by a different case investigator. The appellant, however, seeks a
determination by the court of all of his grounds of appeal.
3
The statutory grounds of appeal
[4]
Section 21(1) of the 2007 Act provides that certain specified persons may, with the
leave of the court, appeal against "any decision of the Commission under the preceding
sections of this Part as respects a complaint" on any ground set out in section 21(4). Those
grounds are:
(a)
that the Commission's decision was based on an error of law;
(b)
that there has been a procedural impropriety in the conduct of any hearing by the
Commission on the complaint;
(c)
that the Commission has acted irrationally in the exercise of its discretion;
(d)
that the Commission's decision was not supported by the facts found to be
established by the Commission.
Background circumstances
[5]
In about 2017-18, Mr Lindsay acted on the appellant's behalf in claims related to
damage to property due to water ingress. According to a narrative annexed to the grounds
of appeal, the appellant received a payment in March 2018 from his insurers who then
instructed another firm of solicitors, DAC Beachcroft, to seek relief from Aberdeen City
Council. That firm offered its services to the appellant in pursuit of a claim for negligence
against Aberdeen City Council. On 19 March 2018, having sought and obtained advice from
Mr Lindsay, the appellant authorised DAC Beachcroft to act on his behalf but subject to a
condition that he would have the final say as to whether any sum offered by way of
compensation was adequate. He had further communications with Mr Lindsay in July and
October 2018.
4
[6]
On 31 October 2018 L&K ceased to trade and on the following day Mr Lindsay was
appointed as a consultant to GSL. The appellant was unaware that L&K had ceased to trade
until 18 April 2019 when he received a letter from Mr Lindsay advising that his old firm had
merged with GSL and intimating his own forthcoming retirement. During the intervening
period the appellant had understood that Mr Lindsay was continuing to pursue his water
damage claim.
The appellant's complaints to the respondent
[7]
The appellant's initial complaint to the respondent included an issue in the following
terms:
"Mr Lindsay terminated relationship unilaterally without providing explanation or
rendering invoice."
The case investigator contacted Mr Lindsay to obtain his observations. She then informed
the appellant that because there were two firms involved there had to be two separate
complaints. The complaint already lodged was thereafter treated as a complaint against
Mr Lindsay and L&K, and the appellant was invited to submit another claim form
containing his complaint against Mr Lindsay and GSL, which he did on 5 September 2021.
[8]
In the course of email correspondence with the appellant, the case investigator made
a number of amendments to the wording of the summary of his complaints. Her
explanation for this, in an email dated 20 October 2021, was that
"...we consider some of the changes you've requested to the summary have the
potential to make your complaint less clear. It's important that the summary is
accurate and complete. However, it is also important that what you're complaining
about can be properly understood by all of the parties involved... For this reason,
the SLCC has the final say on what is included in the summary of complaint..."
5
In his emails the appellant gave reasons for his disagreement with the case investigator's
amendments. He also took issue with the idea of the respondent having the final say on
what was included in the summary of complaint.
[9]
One of the amendments with which the appellant disagreed was the deletion from
the summary of Complaint A of what has come to be referred to as the "unilateral
termination" issue, set out at paragraph [7] above. In an email dated 3 November 2021, the
case investigator explained the deletion as follows:
"In circumstances where a firm has ceased to trade, neither the firm nor any of its
solicitors is permitted to continue to act for clients. Accordingly, withdrawing from
acting on behalf of clients cannot suggest professional misconduct, unsatisfactory
professional conduct or inadequate professional service. For this reason, reference to
Mr Lindsay withdrawing from acting on your behalf hasn't been included in the
summary."
The respondent now accepts that the deletion of this issue was irrational, and that the reason
given by the case investigator did not address the essence of the complaint which was about
failure to explain the termination or issue an invoice. The deletion prevented the respondent
from considering whether this complaint was eligible for acceptance for investigation.
[10]
Another contentious amendment made by the case investigator was the re-wording
of one of the issues in Complaint A in a manner which suggested that the appellant's file
had been passed from L&K to GSL. The appellant's position was that he did not know
whether it had been passed or not, and there was material in the respondent's possession
which indicated that it had not. To this extent, the respondent accepts that its consideration
of eligibility proceeded on what may have been a factually incorrect basis.
[11]
By the end of the process of amendment, the summary of complaints in Complaint A
stated as follows:
"1.
Mr Hamish Lindsay, and/or Lindsay & Kirk, failed to communicate
effectively with me when the firm ceased trading and my file was passed to Grant
6
Smith Law Practice Limited, as Mr Lindsay did not explain the situation clearly to
me, including with regard to what would happen with my case.
2.
Mr Hamish Lindsay, and/or Lindsay & Kirk, failed to communicate
effectively with me by not clarifying unequivocally Mr Lindsay's role as my solicitor
after the involvement of a third-party solicitor, when Mr Lindsay declined to accept
payment for outstanding fees in a face to face meeting with me on 17 July 2018 and
thereafter,
3.
Mr Hamish Lindsay, and/or Lindsay & Kirk, failed to communicate
effectively with me and to act in my best interests, by failing to inform me of
discussions which took place on 4, 15, 16 and 23 October 2018, between Mr Lindsay
and a third-party solicitor in relation to my case.
4.
Mr Hamish Lindsay, and/or Lindsay & Kirk, failed to act in my best interests
by obstructing the provision of the full file to a third-party solicitor on 15 and
23 October 2018."
[12]
The summary of complaints in Complaint B stated as follows:
"1.
Mr Hamish Lindsay, formerly of Grant Smith Law Practice Limited and/or
Grant Smith Law Practice Limited failed to communicate effectively with me when
he terminated our relationship unilaterally without providing explanation or
rendering an invoice,
2.
Mr Hamish Lindsay, formerly of Grant Smith Law Practice Limited and/or
Grant Smith Law Practice Limited failed to communicate effectively with me by not
informing me of the progress of the case and by not responding to my email sent on
22 April 2019.
3.
Mr Hamish Lindsay, formerly of Grant Smith Law Practice Limited and/or
Grant Smith Law Practice Limited failed to communicate effectively with me by not
explaining clearly the situation in regard to my case, once the firm in which Mr
Lindsay had previously worked for, dissolved and/or merged with Grant Smith Law
Practice Limited.
4.
Mr Hamish Lindsay, formerly of Grant Smith Law Practice Limited and/or
Grant Smith Law Practice Limited failed to communicate effectively and to act in my
best interests by not informing me of conversations between him and a third party
solicitor regarding my case on 16 and 25 January 2019, on 12 and 15 February 2019,
on 30 April 2019, on 16 and 17 May 2019 and on 16 and 26 September 2019.
5.
Mr Hamish Lindsay, formerly of Grant Smith Law Practice Limited and/or
Grant Smith Law Practice Limited failed to act in my best interests by obstructing the
provision of the full file to a third party solicitor on 25 January 2019 and on 15
February 2019.
7
6.
Mr Andrew Duthie and/or Grant Smith Law Practice Limited unduly delayed
for over 6 months in responding to my emails of 6 December 2020 and 9 June 2021
requesting whether or not the firm had my will.
7.
Mr Andrew Duthie and/or Grant Smith Law Practice Limited unduly delayed
for over 8 months in responding to my queries of 6 December and 15 June 2021 as to
whether or not the firm held any files regarding my unfinished case that Mr Hamish
Lindsay, formerly of Grant Smith Law Practice acted on my behalf.
8.
Mr Hamish Lindsay, formerly of Grant Smith Law Practice Limited and/or
Mr Andrew Duthie of Grant Smith Law Practice Limited and/or Grant Smith Law
Practice Limited failed to unambiguously confirm the consultant status of Mr
Hamish Lindsay, formerly of the Grant Smith Law Practice Limited from the date he
started work for the firm until his voluntary removal from the solicitors' roll in
2020."
The respondent's decision on eligibility
[13]
As regards Complaint A, the respondent decided:
Issue 1 was a conduct complaint. It was accepted for investigation.
Issue 2 was a services complaint. It was rejected as time barred.
Issue 3 was a services complaint. It was rejected as totally without merit.
Issue 4 was a conduct complaint. It was rejected as totally without merit.
[14]
As regards Complaint B, the respondent decided:
All of the issues were conduct complaints.
Issues 4 and 7 were accepted for investigation.
Issues 1, 2, 3, 5, 6 and 8 were rejected as totally without merit.
[15]
In Complaint B, the respondent's reason for rejecting Issues 1 and 3 (which were
considered together) was that these issues were being investigated in the context of
Complaint A, and it was of no benefit and an inappropriate use of resources also to
investigate them in the context of Complaint B. The respondent now concedes that that
8
conclusion was irrational because Issue 1 had been deleted by the case investigator from
Complaint A.
Orders sought by the appellant
[16]
In his note of argument the appellant seeks the following:
(i)
An order quashing the respondent's decisions dated 3 February 2022;
(ii)
Complaints A and B to be remitted to the Commission for consideration anew by a
different case investigator;
(iii)
Payment of the expenses of this appeal and of the application for leave to appeal.
A fourth crave for an order for payment of compensation by the respondent is not now
insisted upon.
[17]
As already noted, the respondent has conceded that the decisions must be quashed
and that the two complaints should be remitted to it for consideration afresh by a different
case investigator. Having proposed settlement of the appeal on terms contained in a draft
joint minute to which the appellant has declined to agree, the respondent does not concede
liability for the expenses of the appeal.
[18]
The appellant's submissions are set out at length in a note of argument and a
supplementary note of argument lodged shortly before the date when the appeal was due to
be heard. Having regard to the concessions made by the respondent, the opinion of the
court on the merits of these submissions will make no difference either to the disposal of the
appeal or to any subsequent consideration by the respondent of the appellant's complaints:
these will be remitted to the respondent for reconsideration and all of the conclusions of the
first case investigator will be disregarded. This has been explained to the appellant at
9
previous hearings but he has insisted on the appeal proceeding. We shall briefly express our
views on his submissions which, except as conceded by the respondent, are without merit.
The appellant's grounds of appeal
Error of law: section 21(4)(a)
[19]
The appellant submitted that in reaching its decision the respondent failed, in
relation to the question of whether his file was transferred from L&K to GSL to have regard
to material evidence and to take account of relevant matters; that the respondent provided
inadequate reasons for amending the wording of his complaint, for moving the unilateral
termination issue from Complaint A to Complaint B and for splitting the issues between
Complaints A and B; that the respondent failed to treat the complaints alike; and that the
foregoing procedures were unfair in that they were to the detriment of the appellant and the
benefit of Mr Lindsay. We reject these submissions, none of which identifies any error of
law. While it is the case that irrationality may in some circumstances be a species of error of
law in relation to decision-making, the actions of the case investigator which are conceded to
be irrational in the present case are not errors of law but rather errors in the exercise of the
respondent's discretion in attempting to identify and summarise the nature of the
appellant's complaints. As such they fall within section 21(4)(c) and not section 21(4)(a). In
other respects the appellant's submission amounts to no more than disagreement with the
respondent's finding that he was not a client of GSL.
Procedural impropriety in the conduct of a hearing: section 21(4)(b)
[20]
The appellant submitted that the respondent had failed to act in accordance with the
rule against bias. The amendments made to the complaints by the case investigator
demonstrated bias on her part in favour of Mr Lindsay and against the appellant. By
10
moving issues into Complaint B and then making a finding that the appellant was never a
client of GSL, the respondent prevented Mr Lindsay from being held liable in respect of any
complaint accepted for investigation, because he could not be accountable for any "alleged
issues committed" while he was working for GSL. The case investigator had then delivered
contradictory eligibility decisions, one based on the appellant's file having been passed to
GSL and the other based on it not having so passed. It was submitted, under reference to
Porter v Magill [2002] 2 AC 357 that the fair-minded and informed observer, having
considered the facts, would conclude that there was a real possibility that the respondent
was biased.
[21]
Section 21(4)(b) is concerned only with procedural impropriety "in the conduct of
any hearing". The question whether administrative action by the respondent at a
preliminary stage can be categorised as having been carried out in the conduct of a hearing
has been considered on a number of occasions: see Oliphant v Scottish Legal Complaints
Commission [2014] CSIH 94; Lilburn v Scottish Legal Complaints Commission [2020] CSIH 20;
and Swindells v Scottish Legal Complaints Commission [2021] CSIH 5. In Lilburn, Lord
Drummond Young observed (paragraph 24):
"I would be reluctant to give the word `hearing' too literal a meaning in this context,
because the principle audi alteram parte is an important part of the general law, and it
is obvious that any party interested in a dispute must be given an adequate
opportunity to present his or her case. Nevertheless, the word `hearing' does
indicate that representations from interested parties must be under consideration
before paragraph (b) is engaged."
The actions of the case investigator alleged by the appellant to demonstrate bias were
carried out in the course of a dispute as to the wording of the summary of his complaints.
One of the outcomes of the eligibility investigation was that the case investigator made a
finding that the appellant had not been a client of GSL. In these circumstances it is arguable
11
that the respondent's actions took place in the conduct of a hearing. We do not, however,
require to reach a concluded view on that matter because we are wholly unpersuaded that
the circumstances founded upon by the appellant are indicative of actual bias on the part of
the respondent or that they give rise to any reasonable apprehension of bias. It is a very
serious matter to allege that a body whose statutory function is to investigate complaints
against members of the legal profession is biased in favour of those members and against the
people who make complaints. The fact that the case investigator in the present case took
actions which are now conceded to have been irrational provides no foundation for such an
allegation.
Irrationality: section 21(4)(c)
[22]
The appellant's submissions in relation to irrationality largely reiterate the points
conceded by the respondent. In addition, the appellant submitted that the respondent acted
irrationally in splitting issues between Complaints A and B using the date when L&K ceased
trading as the cut-off date. It is contended that this split failed to contemplate the possibility
of a solicitor continuing to act in a personal capacity while working for a firm. We reject this
submission. The opening of two files for complaints against two different firms was a
reasonable course of action for the respondent to take and, as its decision on the eligibility of
Complaint B demonstrates, this did not preclude opening investigations into the actings of
GSL or of Mr Lindsay acting in a private capacity.
Decision not supported by facts found: section 21(4)(d)
[23]
The appellant submitted that although the respondent's substantive investigation
had not yet taken place, there had been a fact-finding exercise in the light of which the
respondent had concluded that no client/solicitor relationship existed between the appellant
and GSL. That being so, the respondent's "decisions" to alter the wording of Complaint A
12
so as to imply that the appellant's file was transferred to GSL, to move the "unilateral
termination" issue to Complaint B, and to split the issues into two complaints were
unsupported by the finding that the appellant was not a client of GSL.
[24]
On behalf of the respondent it was submitted that the ground of appeal in
section 21(4)(d) was not engaged in respect of these matters. We agree. The reference in
section 21(4)(d) to "the Commission's decision" is properly to be read as a reference back to
the words "any decision of the Commission under the preceding sections of this Part as
respects a complaint" in section 21(1). Those words are apposite to include a decision by the
Commission on the eligibility of a complaint as well as a substantive decision taken after
carrying out an investigation, but they are not apt to cover procedural matters (such as those
founded upon by the appellant) which do not constitute a decision of the Commission as
respects a complaint. If such matters are to be challenged, then the challenge requires to be
based on irrationality and presented under section 21(4)(c).
Disposal
[25] For the foregoing reasons we shall quash the respondent's two decisions dated
3 February 2022 and remit the appellant's complaints to the respondent for determination of
new by a different case investigator. Questions of expenses are reserved.
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