BAIRD MATTHEWS AGAINST A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 68
XA170/14
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in the application for leave to appeal
by
BAIRD MATTHEWS
Applicant;
against a decision of the Scottish Legal Complaints Commission
Act: Davies; Drummond Miller LLP
Alt: Ross; Harper Macleod LLP
26 May 2015
[1] The first issue that arises is whether the present application is out of time. I think that it is now accepted that it is out of time. I am not willing, however, to base my decision on this fact. It seems to me that a number of arguments have been made that deserve consideration on their merits and therefore I will not reject the application because it is out of time.
[2] As far as the merits are concerned, I entirely accept that the function of the SLCC in cases such as this is to perform a sifting function. That is clearly established by cases such as Law Society v SLCC [2010] CSIH 79 and Kidd v SLCC [2011] CSIH 75 and it is also clear from these cases that there should be no detailed consideration of the facts. Nevertheless, as is acknowledged in the opinion in Law Society v SLCC, some degree of investigation of the facts will inevitably take place for the simple reason that there must be some factual basis on which the SLCC can reach its decision. Therefore to say that there should be no examination of the facts is clearly quite impossible.
[3] As to the test that should be used, there is a conflict between the decision of the Extra Division in Williams v SLCC [2010] CSIH 73, and the later decision of Lady Smith in McSparran McCormick [2015] CSIH 4. On this matter I prefer the test in Williams, namely that there is a real, or I would prefer to say, a realistic prospect of success. What is involved under the legislation is a sifting function; some cases must be weeded out, and the criterion on which that must be done is that there should be some realistic prospect of success if the matter is allowed to proceed. This is obviously much less than a probability of success. There may be cases, as Williams indicates, where there are other compelling reasons for allowing a case to proceed, but I do not think this is a case which falls within that category.
[4] On that basis I must now consider the actual complaints that are made in the present case. I will deal first of all with what might be described as the natural justice point made by counsel for the applicant. The point was essentially that the applicant was not given an opportunity to respond to factual assertions that were made by the firm of solicitors involved, AB & A Matthews. The procedure, however, is reasonably clear that when the initial complaint is made, it is put into the form of a summary of complaint which is then sent to the applicant. That is what happened here. In the course of that process the heads of complaint made by the applicant increased from four in the original to seven in the final version. In that way, the applicant was able to increase the number of the complaints. The firm of solicitors were then invited to comment on the matter. So far as the merits of the application are concerned I consider that what was said by way of comment did not go beyond what was available in the documents. For that reason I am unable to hold that there was any breach of the principles of natural justice here. There was a criticism that the Commission took the solicitor’s correspondence at face value, but if that had not been done there would have been a failure to obtain basic information from the solicitors. Moreover, as I have noted, it seems to me that the information that was taken from the correspondence is of a relatively uncontroversial nature except perhaps on heads two and three, to which I will revert in due course.
[5] The first complaint that is substantial rather than procedural is head seven, dealing with the failure to copy the applicant into trustees’ correspondence for a period in 2011. The applicant’s letter of 13 May 2013 deals with this on page 2, where it is stated that he was treated by one of the partners of the firm, Mr Peter Matthews, as inviting him to resign as an executor. This follows a falling out among the executors. The appellant stated that when he declined to resign he was treated as having done so, and was excluded from the correspondence relating to the executry. Thereafter, the applicant states Mr Peter Matthews took no instructions from him and was not in touch with him for several weeks until persuaded by his partners to reverse his conduct. During that period Mr Peter Matthews wrote to the co‑executors with a draft letter for their approval. This was based on an opinion of English counsel in relation to the protection from legal action of the JB Young Trustees and their solicitors. It is now acknowledged that ultimately that correspondence was made available to the applicant. On this matter the duration of the lack of correspondence is not set out in the complaint; nor are the dates set out. The only actual example that is referred to by the applicant is that in a letter of 13 May 2013 which relates to a period during 2011. The solicitors acknowledged that that letter had not been sent to the applicant. The Commission in their decision at paragraphs 255 to 257 took the view that Mr Peter Matthews had been wrong not to supply the applicant with trust correspondence, because as a continuing trustee he was entitled to all trust correspondence. That is unquestionably correct as a matter of law. Nevertheless this is acknowledged by the Commission, and indeed it seems ultimately to have been acknowledged by AB & A Matthews. The fundamental point is that there was an acknowledged failure to provide correspondence for a relatively limited period. After a period of several weeks the conduct was reversed. The correspondence was provided to the applicant thereafter. Consequently I consider that the Commission were quite entitled to reach the conclusion expressed at paragraphs 256 and 257 that the matter had been satisfactorily resolved some three years before the date of their decision. On that basis the Commission held that the matter was frivolous, which is one of the criteria used in section 24 of the Act. The word “frivolous” is not perhaps the most helpful; what was involved in this case was a failure to observe a solicitor’s legal duty to provide all trustees with trust correspondence. Nevertheless the matter must, I think, be looked at in context: although there was acknowledged fault on the part of one of the solicitors it is something that had happened three years before, and it seems clear that it was resolved shortly afterwards. Had this complaint been made by itself it is conceivable that it might have been challenged as being out of time. I say conceivable as I do not need to reach a decision on that matter. But it does seem to me that no useful purpose would be served by taking this matter further beyond the indication that Mr Peter Matthews was wrong in what he did. That has been acknowledged, however. No loss was suffered by the applicant. The correspondence was provided more than two years previously. In these circumstances, while the word is perhaps not the happiest, I am persuaded that in context this head of complaint can properly be considered “frivolous”.
[6] That leads on to the first head of complaint, which relates to the failure to acknowledge the letter of 13 May 2013 and the delay in providing a detailed response to that letter. I would observe at the outset that that letter raises extremely complicated issues: multiple professional negligence claims, largely in England, potentially before the English courts, and involving the possible exoneration of trustees, an area in which the law of England is different from the law of Scotland; and also possibly involving defective legal advice and questions of what is erroneously described as prescription but is in fact the somewhat different principle of limitation in English law. These issues were complex; there is little doubt about that, and English counsel’s advice had been taken. It was on the implications of that advice that the applicant disagreed with his fellow executors.
[7] Nevertheless the letter of 13 May was followed shortly afterwards on 22 May with a meeting with Ms Fox at which the applicant explained what had concerned him and the reasons that he had written the letter. That conversation was incorporated into a memorandum that Ms Fox prepared the following day, 23 May. The memorandum was then issued to the applicant who made a number of manuscript alterations to it and a number of manuscript comments on it, and he concluded it with a note dated 23 May, the same date as the memorandum, to say that Ms Fox had got a good grasp of the background but must get the distinction between the claim and the intimation to the trustees clear. The applicant returned the copy of the memorandum with his comments, and so Ms Fox and also Mr Peter Matthews received those comments. There were further meetings, including that on 11 July to which I must revert for the purposes of heads 2 and 3 of the complaint.
[8] Ultimately the detailed response to the points that had been made by the applicant was received by him on 7 October. The complaint as it developed was that the period of five months between May and October was an unduly long period for a detailed response to the complaint. It must be said in this case there had been the meeting on 22 May, and there had been further correspondence in the form of the memorandum and the additions to the memorandum. These had been circulated to the relevant persons within the firm. I also consider it as relevant that the applicant, although a client in his capacity as executor of Ms Young’s trust, was also a former partner in the firm and was regularly in the office. For that reason one cannot expect the same degree of formality as one might find with a, for example, trustee living at some distance from the firm. There was therefore a degree of informality in the early stages after the letter of 13 May was received. It is clear that from the correspondence itself that it was necessary at that point to take further English legal advice. That does not surprise me; the issues raised in the letter of 13 May raise difficult and complex questions, many of which are governed by English law. In all the circumstances I cannot hold that there was undue delay in this matter.
[9] Furthermore the complaint as originally made was that Ms Fox failed or delayed to acknowledge and issue a response to the letter of 13 May, though in fact there were a number of responses and it was only in the course of submissions made in the court process that it was contended that the real failure was not a failure to respond in any way, but a failure to give a detailed response as a matter of substance. That was not the point that was made to the Commission. Thus the Commission were not given an opportunity to consider it, and accordingly it cannot be the subject of complaint in the present proceedings. In any event it does seem to me that the issues raised were, as I have said, extremely complicated and would require the taking of English advice. If a complaint about the time taken to provide a reply in substance had been made to the Commission then clearly investigation would have had to be made into the nature of the issues raised by the letter and the nature of the English legal advice that was required. That was not done for the simple reason that this was not the basis of the complaint that was originally made to the Commission. I am accordingly of opinion that for this reason there is no basis in the first ground of complaint and the Commission were right to reject it on the basis that it is without merit.
[10] That leaves heads 2 and 3 of the complaint, which relate to the incident, or double incident, on 11 July 2013 involving the applicant and Ms Fox. This was described as undignified, which is perhaps a reasonable way of putting matters. There are conflicting views as to what happened. A number of statements were taken immediately afterwards, which suggests that at the time when feelings were still running high quite a lot was done. There are differences in those statements, in the applicant’s own account, and in the account by Ms Fox. Whether it will ever be possible to know exactly what happened is difficult to say. Whether that matters is perhaps rather more obvious. It seems to me that in all the circumstances it was impossible to know whether Ms Fox behaved in a manner that should properly form the subject of disciplinary proceedings. In these circumstances the conclusions reached by the Commission were that the applicant was unable to recall the exact words used by Ms Fox and there was disagreement as to what happened. The Commission did not think that an investigation would uncover anything further beyond the conflicting statements that had been made already.
[11] So far as complaint 3 was concerned, the Commission considered that there was insufficient information. The applicant had stated that Ms Fox repeated her outburst but was unable to recall what she said. They thought that there was not enough to suggest that she behaved without courtesy and respect. It seems to me that, with the benefit of hindsight, it is difficult to see that there is very much at all in these two heads of complaint. No doubt feelings ran very strongly at the time; I do not doubt that for a moment. It may be that those involved still feel strongly about the matter. Nevertheless, what is involved in the investigation of a complaint against a solicitor involves a good deal of expenditure of time and effort, and indeed money, and it does not seem to me that it would be justified in a case of this nature. For that reason I consider that the Commission were justified in holding that these two heads of complaint in the light of the information that was available were totally without merit.
[12] In dealing with the three complaints I have sought to apply the principles as laid down in Kidd and Law Society v SLCC. For these reasons I will refuse the present application.