APPEAL BY THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND AGAINST THE SCOTTISH LEGAL COMPLAINTS COMMISSION (SLCC)

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 36

XA142/16

 

Lady Paton

Lord Glennie

Lord Turnbull

OPINION OF LADY PATON

in the appeal

by

THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND

Appellant

against

THE SCOTTISH LEGAL COMPLAINTS COMMISSION (SLCC)

Respondent

under

 

Section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 and rule 41.25 of the Rules of the Court of Session 1994

 

Appellant:  Connal QC, Thorburn, solicitor advocates;  Pinsent Masons LLP

Respondents:  O’Neill, solicitor advocate;  Brodies LLP

9 June 2017

SLCC complaints procedure after Anderson Strathern
[1]        The Scottish Legal Complaints Commission (“the Commission”) was brought into existence by the Legal Profession and Legal Aid (Scotland) Act 2007 (“the 2007 Act”).  It replaced the legal services ombudsman.  The Commission’s purpose is to provide a readily accessible, transparent, and effective system of dealing with complaints concerning the legal profession.  The Commission’s powers and duties are set out in the Act.  Section 21 provides certain rights of appeal against decisions of the Commission. 

[2]        The Commission acts as a single gateway for all such complaints.  It has the power and the duty to classify complaints as a “conduct” complaint or a “services” complaint.  Section 2(1), read with section 46(1), provides definitions of those complaints.  A conduct complaint is one:

“suggesting –

1. professional misconduct or unsatisfactory professional conduct by a practitioner other than a firm of solicitors or an incorporated practice;
2. that a conveyancing practitioner or an executry practitioner has been convicted of a criminal offence rendering the practitioner no longer a fit and proper person to provide conveyancing services as a conveyancing practitioner or, as the case may be, executry services as an executry practitioner …”

 

A services complaint is one:

“suggesting that professional services provided by a practitioner in connection with any matter in which the practitioner has been instructed by a client were inadequate …”

 

[3]        Once a complaint has passed an initial sifting procedure at the Commission (excluding inter alia time-barred cases and cases clearly without merit:  section 2(4) of the 2007 Act), any conduct complaint is to be sent to the relevant professional body, for example the Law Society or the Faculty of Advocates, to be dealt with by the body’s internal disciplinary procedures.  A services complaint remains with the Commission, where it is investigated and decided upon, sometimes resulting in an award of monetary compensation to the complainer. 

[4]        As explained in an affidavit by Neil Stevenson, the Chief Executive of the Commission, a practice developed of classifying some complaints as “hybrid”, i.e. involving both conduct and services:

“ … If the conduct element was more significant (“Hybrid Conduct First” complaints), then the conduct issues within the complaint would be passed to the professional organisation (in reality usually the Law Society of Scotland) to investigate and determine.  Once the Law Society had reached its decision on conduct, the SLCC would then investigate the service element.  Where the service element of the complaint was deemed more significant (“Hybrid Service First” complaints), the SLCC would investigate the service element first [and then the Law Society would investigate the conduct element]”. 

 

[5]        In 2016, in the course of an appeal by an advocate in terms of section 21 (Bartos v Scottish Legal Complaints Commission 2015 SC 690), the Inner House raised doubts about the competency of that practice in any case involving a “single complaint” or “single issue”.  As was pointed out in paragraphs [6] and [8]:

“[6]  … the statutory provisions … on their face at least, envisage that a single complaint must be classified as either a conduct complaint or a services complaint, and dealt with accordingly.  If that is correct, the so called hybrid approach could apply only if and when a complainer raised more than one issue … This would avoid the situation which has occurred here, with the Commission requiring the Faculty [of Advocates] to investigate whether Mr Bartos acted without instructions and the Faculty deciding in the negative, and quite separately, although retaining an oversight role as to the Faculty’s process, the Commission investigating exactly the same issue and deciding that the correct answer is yes …

 

[8] … on the face of it, there is at least a question as to whether the procedure adopted in the present case accords with Parliament’s intention as expressed in the Act … it is considered proper to raise the issue since the Commission and the professional bodies may wish to reflect on the validity of the current practice.  If appropriate, and if so advised, it can be raised as a live issue for determination in a future case.”

 

[6]        The question was raised as a live issue in the subsequent case of Anderson Strathern LLP v The Scottish Legal Complaints Commission 2016 SLT 967.  The Inner House ruled that the 2007 Act did not give the Commission the power to classify a “one issue” complaint as a hybrid complaint.  As was explained in paragraphs [27] to [29]:

“[27] … we are of the opinion that if a complaint, or a part of a complaint, suggests a failure in proper professional conduct, a view taken by the Commission that it could also be seen as raising a service issue does not justify the course taken in Bartos.  Instead the Commission must decide whether to classify it as a conduct or a services complaint.  The real mischief, which may need addressing, is the disparity between the compensation powers available to, on the one hand, the professional organisations, and, on the other hand, to the Commission …

 

[28] … [what is contemplated is] a single issue complaint being on a single track.

 

[29] … a complaint can be sent down more than one route only when it can be treated as constituting both a conduct complaint (or complaints) and a separate services complaint (or complaints) …”

 

[7]        A “single issue” complaint was explained as having arisen from one set of facts, as follows:

“[26] Turning to the terms of the Act, there is no mention of a ‘hybrid’ complaint.  There is, for understandable reasons, recognition that a complainer might lodge a complaint which consists of separate parts or elements, one or more of which raises conduct issues, and one or more of which raises services concerns.  It is envisaged that such a complaint could be subdivided and dealt with according to the proper classification of its constituent parts.  No doubt such a complaint might be called a hybrid complaint – but it differs materially from the complaint so categorised in Bartos [where the complaint was that “Mr Bartos falsely stated during the hearing on 7 October 2010 that it was [the client’s] wish that the case be dismissed, despite having no instructions to do so”].  That complaint did not have separate elements, therefore it could only be categorised as hybrid on the basis that a suggestion of professional misconduct could also be seen as a suggestion that an inadequate professional service had been provided, in that if a service is adequate, the client’s interests will not be damaged in the way alleged by the complainer.” 

 

[8]        In compliance with the Inner House ruling in Anderson Strathern, the Commission began dealing with new complaints by classifying them as either conduct or services (i.e. one or the other) and not as hybrid.  However there remained a number of existing complaints already classified as hybrid and progressing through the system on that basis.  The Commission adopted a practical approach to those cases, involving inter alia (i) re‑categorising certain existing hybrid complaints as either conduct or services complaints, and sending intimation of the re‑categorisation to the relevant parties;  (ii) in some cases where a determination had already been made by the Law Society on the conduct element of the complaint, simply closing the file in relation to the service element and taking no further steps (paragraph 19.1.1 of Miss O’Neill’s written submissions concerning the nobile officium).

[9]        The present appeal concerns a purported re‑categorisation on 6 October 2016 of a “Hybrid Service First” complaint.  The initial categorisation, as contained in a letter dated 30 March 2016 (to the practice partner of the legal firm concerned) explained:

“We have categorised the complaint as hybrid (meaning that it constitutes both service and conduct elements) and have advised both the complainer and the named practitioner accordingly … The SLCC will investigate the service aspects of the complaint first …”

 

The decision in Anderson Strathern became available on 31 August 2016.  After considerable discussion and advice, the Commission sought to comply with the ruling in Anderson Strathern by sending the practice partner a letter dated 6 October 2016 stating:

“This complaint constitutes a service complaint”. 

 

It is the Law Society’s position that the 2007 Act does not give the Commission power so to re‑categorise a complaint.  In particular it is the Law Society’s position that the Hybrid Service First complaint had been duly intimated in March 2016;  that intimation imposed upon the Law Society a duty to investigate the conduct element of the complaint;  the Law Society had been “awaiting confirmation that the Commission had completed its investigations when it received the decision of 6 October 2016” (paragraph 26 of the appeal);  and the purported decision of 6 October 2016 “removes from the appellant the ability to investigate and deal with the conduct element of the complaint” (paragraph 3 of the appeal).

[10]      The Law Society and the Commission have co‑operated in trying to find a solution, and have engaged in many discussions, but ultimately it proved necessary to seek a court ruling.  Accordingly appeals against the re-categorisation decisions have been taken by the Law Society in terms of section 21 of the Act.  This case is one such appeal. 

 

The appeal:  questions for the court
[11]      The appeal prepared on behalf of the Law Society sets out the circumstances.  In compliance with Rule of Court 41.25, the appeal then poses questions of law as follows:

“1.  Does the Commission have power as a matter of law to ‘re-categorise’ or ‘re-determine’ the determination made by it on 30 March 2016 [i.e. the Commission’s original decision that the case was a ‘Hybrid Service First’ complaint].

 

2.  Is the Commission’s decision to ‘re-categorise’ or ‘re-determine’ the determination of 30 March 2016 ultra vires et separatim wrong in law et separatim unreasonable and irrational;  and

 

3.  Esto the Commission does have the power as a matter of law to ‘re-categorise’ or ‘re-determine’ the determination made by it on 30 March 2016, was the Commission wrong in law et separatim unreasonable and irrational in categorising the complaint as service only in its decision of 6 October 2016?”

 

At a procedural hearing on 31 January 2017, it was decided that the appeal hearing would be restricted to questions 1 and 2.  No answer was required in respect of question 3.

 

Submissions for the Law Society
Preliminary matters
[12]      On behalf of the Law Society, Mr Connal QC emphasised that what was sought was the correct legal position.  One could not always be driven by what was pragmatic or practical.  The Commission was a body created by statute, and was confined within the bounds of the statute.  The initial decision in terms of section 2 (i.e. whether the complaint was a conduct or services complaint) was a significant point in the process.  Section 2 was a separate, self-contained provision.  The categorisation was important for complainers and practitioners.  A complainer was more likely to receive an award of compensation from the Commission, while the possibility of being struck off by the professional body was what concerned practitioners.

[13]      The Commission had in effect a statutory “quasi-judicial function” (paragraph 87 of Bartos).  The decision taken in terms of section 2 was a final decision, subject only to the procedure outlined in section 15, or an appeal in terms of section 21.

 

The statute
[14]      Once a complaint was categorised as a conduct complaint, sections 6 and 47 of the 2007 Act made it plain that the complaint must be investigated by the relevant professional body (in the present case, the Law Society).  It was the professional body’s duty to do so.  There was no other option.  Accordingly once that process was in play, there was no mechanism in the 2007 Act by which that obligation resting on the Law Society could be removed.  The Law Society was obliged to investigate the complaint.  Thus the Commission’s attempt, without any statutory power or authority, to re-categorise a hybrid complaint as a services complaint amounted to an unauthorised attempt to remove from the Law Society a complaint which the Law Society was duty-bound to investigate.

[15]      The mirror‑image existed with services complaints.  In terms of section 9(1), the Commission must investigate such complaints.  Once a complaint was categorised as a services complaint, the Commission was obliged to investigate it.  Again therefore the Commission’s attempt, without any statutory power or authority, to re-categorise a hybrid complaint as a conduct complaint amounted to an unauthorised attempt to remove from the Commission a complaint which the Commission was duty-bound to investigate.

[16]      The one provision which permitted a change of course was section 15, but section 15 was (correctly) not relied upon by the Commission in the circumstances which had arisen here.  Section 15 came into play where a professional body, in the course of investigating a purported conduct complaint, realised that the complaint should properly be processed as a services complaint (“where a relevant professional organisation at any time during … its investigation, of a conduct complaint remitted to it under section 6(2)(a), considers that it is reasonably likely that the complaint (or any element of it) may instead constitute a services complaint” (emphasis added)).  In those circumstances, the professional body was empowered by specific statutory provisions (section 15(1)(a) to (d)) to “re-categorise” the complaint and to send the complaint and supporting material to the Commission.  The mirror‑image was a realisation by the Commission that “it is reasonably likely that the complaint (or any element of it) may instead constitute a conduct complaint”, and specific statutory provisions (section 15(2)(a) to (d)) empowering the Commission to send the complaint to the relevant professional body.  The key theme of section 15 was that one category (for example, conduct) completely replaced the other category (services).  The word “instead” excluded any other interpretation.  Accordingly section 15 did not provide a solution where a single issue complaint had been categorised as hybrid (both conduct and services). 

[17]      Mr Connal submitted that where Parliament, rightly or wrongly, had gone to such lengths to set out in detail a provision for revisiting the categorisation of a complaint, the inference was that there was no other opportunity to revisit the categorisation.  Subject to section 15, the decision in terms of section 2(1A) was final.  In keeping with the brocard expressio unius est exclusio alterius, it could be assumed that Parliament had chosen its words very carefully (cf Lord Hope’s approach in Cadder v HM Advocate 2011 SC (UKSC) 13).  There was nothing in the statute which permitted the Commission to do something at its own hand.

[18]      The other provision permitting a change of track was section 21.  That section provided for an appeal against “any decision of the Commission under the preceding sections of this Part”.  Thus a right of appeal was made available to certain specified parties against any decision of the Commission, including, for example, a decision in terms of section 2(1A), or section 15.  There was a strict time-limit of 28 days (section 21(3)).  In answer to a suggestion from the bench that an appeal to the Court of Session could be made in the present case “of consent” in terms of section 21, with all the hybrid decisions in a schedule, concerns were expressed about whether such an appeal would be permitted out of time.  The fact that the Commission was not one of the parties specified in section 21 as having the right to appeal might also prove an obstacle.  Furthermore there was the question of interested parties (for example, complainers, practitioners, and indeed the Law Society with its vested duty in terms of sections 6 and 47 to investigate the complaint).  Thus on the face of the statute, neither section 15 nor section 21 provided an answer to the present problem.

[19]      Paragraph 12 of Schedule 1 was cited by the Commission as a general enabling power which might assist in the present circumstances.  But the Law Society’s submission was that the paragraph 12 power could not be used to cut across the clear provisions of the categorisation process.  The incidental power outlined in paragraph 12 could not permit the Commission to take a case away from a professional body.  The Commission relied upon R (Commissioner of Police of Metropolis) v IPCC [2016] PTSR 891 paragraph 34:  but the Law Society’s position was that a provision such as paragraph 12, concerning an incidental power, could not assist in the present case.

 

The influence of case law
[20]      The Law Society’s submission was that categorisation decisions made by the Commission prior to the decision in Anderson Strathern should be presumed to be valid, unless and until some legal process overturned them.  There was no need to attempt a categorisation such as “void” or “voidable”.  What had occurred in Anderson Strathern was what commonly occurred in an appeal court or the Supreme Court, namely that the higher court explained that the previous understanding of the law was wrong:  it was not a “change” in the law.  Previous decisions should therefore be treated as valid, and late appeals should not be allowed if the only justification was that the later decision (Anderson Strathern) had upset the law.  An analogy could be drawn with the approach of the Supreme Court in Cadder v HM Advocate 2011 SC (UKSC) 13 (particularly paragraphs 56, 58-59, 98-99, 100 and the references to A v The Governor of Arbour Hill Prison).  On the basis of the structure of the Act, the categorisation decision under section 2 was final, in a context where no timeous appeal was made in terms of section 21, and section 15 was not applicable.  It was possible that someone in an ongoing hybrid complaint might raise an appeal challenging the process, but that did not mean that the Commission had the power to re-categorise at present, as it sought to do.  By analogy, the decision under section 2(1A) had consequences and created obligations which remained in place.  Anderson Strathern did not rule that those decisions were null or that they “flew off” (cf R v Jogee [2016] 2 WLR 681, paragraph 100;  Serious Organised Crime Agency v O’Docherty [2013] EWCA Civ 518, 2013 CP Rep 35, paragraphs 19-20, 34, 36-37, 57, 64, 68-70;  Archid Architecture and Interior Design v Dundee City Council 2014 SLT 81;  R v Hertfordshire County Council ex parte Cheung, The Times 4 April 1986;  R (Ali) v Secretary of State for Justice [2014] 1 WLR 3202 paragraph 32).  A particular stage had been passed and had not been appealed.  The categorisation decision could not be revisited.  Decisions taken on an erroneous view of the law remained valid unless and until set aside by a court or a decision-maker with the power to do so.  The Commission did not have the power.  The only proposition that the Commission could offer was set out in paragraph 22.4 of its note of argument, as follows:

“22.4 In light of Anderson Strathern the [Commission] had the power, if not also a duty, to correct its error in relation to hybrid complaints …”

 

But the Commission did not have the power at its own hand to re-categorise cases already classified as hybrid.

[21]      That was sufficient for the resolution of the appeal.  Additional judicial observations on the standing of past cases would be welcomed.

[22]      In anticipation of arguments likely to be presented on behalf of the Commission, senior counsel made the following points.

[23]      In relation Commissioner of Police of Metropolis v IPPC [2016] PTSR 891, the policeman in that case relied on a “legitimate expectation” of finality.  Such a concept was usually relevant where there were no specific statutory provisions regulating matters, only the common law.  Furthermore, the Court of Appeal’s decision concerned the statute governing the IPCC.  One could not necessarily use the construction of that statute to assist with the proper construction of the 2007 Act. 

[24]      The decision in R(Mackaill) v IPCC [2014] EWHC 3170 (Admin) arose from an application to the court for a judicial determination.  The court duly gave a determination based on the particular circumstances and the particular disciplinary scheme.  That decision could not assist the Commission in the present circumstances.

[25]      Paragraph 22.4 of the Commission’s note of argument (quoted in paragraph [20] above) was erroneous.  The fact that there was inconvenience or difficulty was not an adequate response to the question of finding the power whereby the Commission could re‑categorise at its own hand.  In relation to paragraph 22.8 of the note, it was accepted that section 15 in a sense provided for re‑categorisation (by the Commission or the professional body, depending upon which was dealing with the complaint) but that was a specific power arising “at any time during [the] … investigation” of the complaint, and provided for the substitution of conduct for services, and vice versa.  Section 15 was not capable of dealing with existing hybrid cases, and the Commission very properly did not rely upon it.

[26]      In conclusion, the Commission had no power in terms of the 2007 Act or Anderson Strathern to treat previous hybrid categorisations as if they had not occurred, or to re‑categorise at its own hand existing cases previously classified as hybrid.  The court was invited to allow the appeal, to answer the first question of law in the negative, and the second question in the affirmative (with the qualification that the court need not decide that the Commission’s decision was unreasonable or irrational).  No answer was required to the third question.

[27]      It was agreed that neither party would seek expenses in relation to the appeal hearing.

 

Submissions for the Commission
[28]      On behalf of the Commission, Miss O’Neill invited the court to answer the first question in the affirmative, and the second question in the negative.  The key question was:  what was the proper and lawful means by which to respond to the decision in Anderson Strathern in relation to live complaints classified as hybrid where the final determination had yet to be made.  The Commission sought only to re-categorise cases where no final determination had been made by either the Commission or the professional body.  Past or closed cases were not being reconsidered (cf paragraph 60 of Cadder v HM Advocate).

[29]      If the court found that it was not lawful for the Commission to re-categorise the hybrid cases, the Commission would welcome guidance on the lawfulness of continuing on a “two‑track” basis.

[30]      The Commission did not contend that decisions in cases classified as hybrid were void ab initio, or a complete nullity;  nor that cases finished and decided years ago were vulnerable to being opened up.  The Commission was content to accept that previous determinations subsisted unless and until overturned.  But following upon Anderson Strathern, the Commission’s position was that it was unacceptable for existing hybrid cases to continue on two tracks. 

[31]      The decision in Anderson Strathern, together with the statutory scheme, meant that the Commission had the power to correct its error in a way permitted in administrative law.  Appropriate steps could and should be taken to bring the Commission’s processes into line with the law following upon Anderson Strathern.  The court in Anderson Strathern recognised that the process of categorisation was integral to the overall procedure and the handling of complaints (paragraphs [24]-[25], [27] and [29]).  If, during the investigation of a complaint, the investigating body discovered that the case had been allocated to the wrong track, then the case could be put on the right track (section 15 of the 2007 Act).  Overall, the scheme in the 2007 Act justified the correcting of an error.  The scheme made clear that the categorisation of a case under section 2 did not result in a rigid or untouchable result as Mr Connal contended, but rather was part of the overall handling of a complaint.  The categorisation might be regarded as provisional, because it was open to change.

[32]      Examining, therefore, the scheme in the 2007 Act, it could be seen that in terms of section 2, the Commission was solely responsible for deciding whether the complaint was a conduct complaint or a services complaint.  That particular categorisation was not described as “quasi‑judicial” in Bartos.  In paragraph [88] of Bartos, the court observed that the Commission had a “statutory quasi‑judicial function”, in that it made adjudications upon disputes, and could make orders providing for financial compensation in questions of considerable importance:  but there was no decision that the function contained in section 2 was “quasi‑judicial”.  A complaints-handling scheme was not equivalent to orders of a court, and accordingly any analogy between decisions under section 2 and court orders (with which Cadder was concerned) was not apt. 

[33]      The court in Anderson Strathern recognised that the categorisation of complaints was important to ensure a proper investigation.  But the decision under section 2 could not be described as truly final:  the Act recognised that the category into which a case was placed had to be kept under review.  Whichever body was seized of the complaint had continually to assess whether the categorisation was appropriate (section 15, an inherent part of the scheme).  If there was a decision to change track, parties had to be notified, and had a right of appeal.  Section 15 showed that the categorisation in section 2 was not immutable.  While it was accepted that the Commission could not use section 15 as a basis for re-categorising live cases categorised as hybrid, the Commission relied upon section 15 to show that the categorisation under section 2 was not final.

[34]      The question at issue was:  what could be done to correct the mistake made in respect of live complaints categorised as hybrid?  There could be no doubt, following upon Anderson Strathern, that a legal error had been made in each case classified as hybrid.  Any timeous appeal against the hybrid categorisation would, following Anderson Strathern, be bound to succeed.  Thus the Commission had adopted the following approach.  (a) In cases still within the 28 days allowed for an appeal (section 21), the Commission took the view that the cases should be re‑categorised immediately, rather than waiting for an appeal to be made.  (b) In cases where the 28‑day time-limit had just expired, the Commission took the same approach.  (c) In cases where investigation had not yet begun, the Commission took the view that there was a high risk that the court would allow a late appeal under section 21.  Also the Commission considered that to continue with cases categorised as hybrid and therefore proceeding on two tracks would be contrary to the intention expressed by the court in Anderson Strathern:  hence the present appeal.

[35]      While there had been previous appeals under section 21 concerning a variety of matters, this was the first appeal following upon the decision in Anderson Strathern.  There were similar appeals in approximately 18 cases, currently sisted.  All the parties who would be affected by re‑categorisation had been notified of the appeal proceedings, the reason for them, and their right to appeal under section 21.

[36]      In R v Hertfordshire County Council ex parte Cheung, The Times, 4 April 1986, an error in law over the meaning of “ordinarily resident in the UK” resulted in two students wrongly being refused grants.  The error came to light in a subsequent case (The Queen v Barnet LBC, ex parte Shah [1983] 2 AC 309).  The Court of Appeal observed that –

“a public law decision which is made upon an erroneous view of the law is just as valid and effective as one which is made ultra vires, unless and until it is reversed by the decision maker (assuming that he has power to do so) or it is quashed by a competent court in appropriate proceedings.”

 

Thus the Commission was not trying to overturn decisions made on the back of hybrid determinations:  a line had been drawn. 

[37]      The Commission had therefore exercised its discretion in determining which cases to re‑categorise in accordance with the requirements of good public administration.  It would have been open to the Commission to wait for appeals to be raised (either within the 28‑day time limit, or just outside the limit):  but the Commission had operated on the basis that it had an inherent administrative law power to make a re-categorisation:  cf the power found in the statutory scheme in R (on the application of Commissioner of Police of Metropolis) v IPCC [2016] PTSR 891, particularly paragraphs 20, 26 (ii), (v), (vi), (vii), (ix) and (x), 43, 60, 87 and 88.  It was accepted that there was nothing in the 2007 Act akin to section 10 of the 2002 Act (page 897).  There was no “general function” concerning the handling of complaints.  However there were compelling reasons for the re‑categorisation, and importantly, the statutory scheme in the 2007 Act allowed for some re‑categorisation.  The Commission should not be forced to await appeals:  it had to take steps to regularise matters.  It would be odd if a lacuna in the statute had the result that no appeal procedure could take place simply because there was no third party complainer.  It would be unfortunate if complainers and practitioners had to be put to the expense of getting formal court orders.  Complainers could not be requested to submit fresh complaints as (i) that would be understandably unpopular with members of the public complaining about the legal profession;  (ii) there would be related expense;  (iii) appeals would be time-barred;  and (iv) in any event re‑submission and re-categorisation of a fresh complaint would not satisfy the Law Society, whose position was that it was formally seized of the complaints classified as conduct and services, and that standing its statutory obligation in terms of sections 6 and 47 of the 2007 Act, the Law Society was duty-bound to investigate the complaint lodged previously (and classified as hybrid).

[38]      It was appropriate for this court to consider pragmatic solutions.  In R(Mackaill) v IPCC [2014] EWHC 3170 (Admin), such an approach had been adopted by the court.  In that case the IPCC, despite an apparently empowering provision in paragraph 15(5) of the relevant scheme (quoted in paragraph 12 of the opinion), took the view that it did not have the power to re-determine an investigation concerning police conduct.  The matter came before the Queen’s Bench, which adopted a pragmatic approach (paragraph 88 of the opinion).  This court should similarly look at pragmatic solutions.  There was no doubt that the hybrid classification was unlawful, and that an appeal brought by someone entitled in terms of section 21 would, subject only to the court’s granting relief in respect of the 28‑day time-bar, succeed.  If a complaint had already been determined, no doubt the court would refuse that time-bar relief.  But where a complaint was live, and the subject of investigation, there could be no objection to the Commission taking steps pro‑actively to put the case “back on track” (cf London and Clydeside Estates Limited v Aberdeen District Council 1980 SC (HL) 1, Lord Hailsham at page 30, Lord Fraser at page 35).

[39]      In conclusion, the first question of law should be answered in the affirmative;  the second question in the negative.

 

Final reply for the Law Society
[40]      The decision that a complaint was hybrid stood, unless reversed by the decision‑maker.  It was still unclear where the power to reverse the decision lay.  The decision stood;  it could not be ignored, until it was set aside.

[41]      In relation to remedies:  section 21 appeals were available;  a judicial review might be necessary if someone wished to appeal but had no right to do so in terms of the statute;  as for section 15, as a result of the way in which that section was framed (particularly with the words “instead of”), it was very difficult to see how it could operate in the present circumstances.  The court’s question relating to a petition to the nobile officium had not been considered by parties, given the structure of the 2007 Act.  The suggestion of inviting fresh complaints gave rise to difficulties as outlined in paragraph [37] above, and possibly more.  It was the Law Society’s position that the professional body, once advised of a complaint concerning both conduct and services, was duty-bound to investigate it.

 

Discussion
Whether a statutory power exists
[42]      In my opinion, on a proper construction of the 2007 Act, the Commission does not have the power to re‑categorise at its own hand a previously categorised hybrid complaint as being either a conduct complaint or a services complaint (as the Commission endeavoured to do in its letter of 6 October 2016).  Accordingly I propose that the appeal be allowed, and that the questions of law be answered as follows:

Question 1:  No.

Question 2:  Yes, with the proviso that the court has not found it necessary to deem the decision “unreasonable and irrational”.

Question 3:  Not argued, and no answer required.

[43]      I have reached this view for the following reasons.

[44]      The 2007 Act is a precise and prescriptive statute.  Careful provision is made for every step and stage in the procedure.  Mandatory language is used (for example “must”).

[45]      In particular, the categorisation of complaints as “conduct” or “services” comprises several prescriptive provisions which do not, in my view, allow for any categorising or further categorising outside those provisions.  The relevant sections are sections 2, 4-6, 15, and 21.

[46]      Where a complaint does not concern someone acting in a judicial capacity (section 2(3)), is not made in the context of a specified regulatory scheme (section 3), is timeous (sections 4(1) and 5), and not premature (section 4(2) and (5)), the Commission must determine whether the complaint constitutes a “conduct” complaint or a “services” complaint, i.e. one or the other (section 2(1A)(a) and Anderson Strathern).  The Commission must then determine whether the complaint is frivolous, vexatious or totally without merit (section 2(1A)(b) and 2(4)).  These types of complaint are to be rejected, and notice given in writing to the parties (section 2(4)).

[47]      A complaint which survives the initial sifting and categorisation is then, in terms of the Act as explained in Anderson Strathern, to proceed along one or other of two mutually exclusive tracks, i.e. either a “conduct” track, or a “services” track.  No power is given to any person or body (such as the Commission, the complainer, the practitioner, or the professional body) to alter the track on which the case has been set, other than by two very specific provisions, sections 15 and 21.

[48]      Section 21 permits the persons defined in sub-paragraph (2) (a) to (e) (excluding the Commission) to obtain leave from the Court of Session to appeal to that court against any decision of the Commission under the preceding sections of Part 1 of the 2007 Act.  The possible grounds of appeal are defined in section 21(4) as: 

1. the Commission’s decision was based on an error of law;
2. there has been a procedural impropriety in the conduct of any hearing by the Commission on the complaint;
3. the Commission has acted irrationally in the exercise of its discretion;
4. the Commission’s decision was not supported by the facts found to be established by the Commission.

Although not able to appeal itself, the Commission is to be a party to the appeal (section 21(5)).

[49]      The Commission’s decision to re-categorise a hybrid complaint by letter dated 6 October 2016 has been appealed by the Law Society on the basis of section 21(4)(a) – error of law.  It is notable that section 21 does not specify or restrict the powers of the Court of Session or the remedies available to that court when dealing with an appeal in terms of section 21:  see, further, paragraph [60] below.

[50]      Section 15 envisages a complaint proceeding along one track or the other (i.e. either “conduct” or “services”).  The section empowers the investigating body, such as the Law Society or the Commission, to form the view that it is reasonably likely that the complaint has, in effect, been placed on the wrong track and should be transferred to the other track.  This might be regarded as a power to re-categorise, but it is very much a special, restricted, and clearly defined power, limited to the particular circumstances outlined in section 15.  The wording of section 15 reflects the ratio in Anderson Strathern in that the wrongly‑categorised complaint referred to is either a “conduct” complaint or a “services” complaint (and not a hybrid complaint comprising both conduct and services).  The statutory language permits a services complaint to be transferred to be a conduct complaint “instead of” the services complaint.  Similarly a conduct complaint may be transferred to be a services complaint “instead of” the conduct complaint.  The Commission do not rely on section 15 in the circumstances which have arisen following Anderson Strathern, and I consider that the Commission is correct not to do so.

[51]      As for paragraph 12 of Schedule 1 of the 2007 Act, that, in my opinion, is a provision empowering the Commission to take certain incidental administrative steps, such as opening a bank account, signing cheques, providing offices, seeking legal advice, and other similar necessary steps.  I agree with Mr Connal QC that, properly construed, it cannot be read as providing a power which overrides or cuts across the carefully-worded powers set out in the Act.

[52]      In my opinion therefore, standing the precise and prescriptive nature of the 2007 Act, there is no room for the re-categorisation of a complaint at some other time or in some other circumstances not referred to in the statute.  It is not in my view possible to construe the 2007 statutory scheme as permitting such a step, even when that statutory scheme is construed from an administrative viewpoint, and against the background of the guidance given in Anderson Strathern.

[53]      I accept, of course, that other statutory complaints schemes may, on a proper construction, yield inferences permissive of actions not specifically provided for in the statute: see for example R (Commissioner of Police of the Metropolis) v IPPC [2016] PTSR 891.  But that was a different statute;  a different statutory scheme (indeed Lord Justice Vos at paragraph 44 categorically states “I would prefer to confine the decision in this case to the regime established by the 2002 Act”);  and a statutory scheme which did not contain specific appeal procedure.  The legal arguments focused on the issue of the investigating body being functus officio and the issue of opening up closed and finalised decision.  There was also a special feature in that the particular matter complained of was just one of several strands in the case, the other strands of which were continuing to be investigated.  Thus in my opinion the reasoning and conclusion reached in that IPPC case cannot assist the Commission in the present case.

[54]      Similarly the second Police Commission case cited to the court (R(Mackaill) v IPCC [2014] EWHC 3170 (Admin)), based as it was on the particular provisions of that scheme, and the particular circumstances of that case, cannot, in my view, be relied upon to justify the Commission’s re‑categorisation of hybrid complaints in the statutory scheme under the 2007 Act.  What can, perhaps, be drawn from the decision is that an application had been made to the court, and the court, having considered all the circumstances, was able to take a pragmatic approach and issue (i) a declarator that no final report had been issued;  that three issued determinations were invalid and of no effect;  and that the investigation had not been concluded;  and (ii) a quashing of a decision, followed by a remit to the IPCC (with new personnel) for fresh consideration (paragraph 109 of the opinion).  On one view, that approach is reflected in the possible further procedure which I suggest in the present case, as set out in paragraphs [60] to [62] below.

[55]      I would add that there may be good reason for the apparently rigid statutory code in the Legal Profession and Legal Aid (Scotland) Act 2007.  In the context of complaints against the legal profession, categorisation as conduct or services has important consequences.  There may be conflicting preferences as to the appropriate investigative body.  If the Commission was able, at its own hand, to re‑categorise a complaint at any time, and on any number of occasions, the efficiency and integrity of the complaints system might be undermined, particularly if those with an interest appealed any re-categorisation.

[56]      In the result therefore, I am of the opinion that the 2007 Act does not empower the Commission to re-categorise a case as it sought to do by the letter of 6 October 2016.

 

Further procedure
[57]      In the course of the appeal, the court raised the question of proceeding by way of a petition to the nobile officium of the Court of Session.  Written submissions were provided by each party following upon the appeal hearing. 

[58]      In those written submissions, it was a matter of agreement that the nobile officium is an extraordinary jurisdiction to be employed only in exceptional circumstances and for compelling reasons (G Petitioner, 2015 SLT 461 paragraph [8]).  The nobile officium must be exercised “with extreme caution and restraint” (G Petitioner paragraph [8]).  In the context of legislation, the nobile officium may be used “where statutory machinery has failed to achieve its anticipated result and no adequate provision is made in the statute for such a breakdown” (Cumbria County Council, petitioner, 2017 SLT 34).  An application to the nobile officium is excluded where there are alternative remedies available to the petitioner (KK v The Advocate General for Scotland [2016] CSOH 127 at paragraph 22).

[59]      Having considered the written submissions, I have formed the view that section 21 provides the parties with the necessary access to the court, and thus provides a means of rectifying the error (cf the observations of Lord Keith at page 45 of London and Clydeside Estates Ltd).  Consequently neither a petition to the nobile officium nor a petition for judicial review is necessary, nor indeed would either be available in the particular circumstances which have arisen in this case (contrast with, for example, the circumstances in R (Commissioner of Police of the Metropolis) v IPCC [2016] PTSR 891, where the statutory scheme contained no appeal procedure, and a judicial review was necessary).

[60]      In the present appeal, it is notable that while section 21 gives clear and detailed specification of the parties who may appeal, and the grounds of any appeal, there is no restriction on the powers or remedies available to the court in such an appeal.  Indeed, section 22 of the 2007 Act specifically provides:

“(1) On any appeal under section 21(1), the court may make such order as it thinks fit (including an order substituting its own decision for the decision appealed against) …”

 

It seems to me, therefore, that one possible procedural route available to the parties in this appeal (and mutatis mutandis in other appeals which have been sisted) would be as follows.

[61]      If the court answered the questions of law as indicated in paragraph [42] above, it would be open to the court to allow the appeal, and to grant an interlocutor in inter alia the following terms:

1. Declarator that the Commission’s purported re-categorisation of the complaint by the letter dated 6 October 2016 was ultra vires;
2. Reduction of that letter dated 6 October 2016;
3. Decree ordaining the Commission forthwith (a) to re-categorise the complaint in compliance with the guidance in Anderson Strathern (i.e. by re‑categorising the complaint as either a conduct or a services complaint, and not as a hybrid complaint);(b) to issue to all relevant parties letters intimating that a re‑categorisation has now properly been made “by order of the court” (superseding the October 2016 letter).A copy of the new letter should be lodged in the appeal process.
4. Decree extending the time-limit within which parties are entitled to appeal against the Commission’s re-categorisation by order of the court – in effect, giving interested parties, if so advised, an opportunity to appeal in terms of section 21 against the new re-categorisation decision issued in terms of paragraph (3) above.The extension would be to the expiry of a period of 28 days beginning with the date on which notice of the new re-categorisation was given to the complainer and the practitioner.
5. Declarator that the Commission’s re‑categorisation of a hybrid complaint as a services complaint in terms of paragraph (3) above (or if challenged by an appeal, the appeal court’s decision that the complaint is a services complaint) absolves and exonerates the Law Society from its duty to investigate that complaint;and further declarator that the Commission’s re‑categorisation of a hybrid complaint as a conduct complaint in terms of paragraph (3) above (or if challenged by an appeal, the appeal court’s decision that the complaint is a conduct complaint) absolves and exonerates the Commission from its duty to investigate that complaint.

[62]      This procedure could be replicated in each individual appeal in the Court of Session.  Thus in each appeal currently before the Court of Session, the Commission’s authority for the re‑categorisation would be “the order of the court” (rather than at its own hand).

[63]      So far as decided and closed cases are concerned, I agree with both the Law Society and the Commission that past decided cases should not be disturbed by the ruling in Anderson Strathern or the ruling in the present case (cf the reasoning of the Court of Appeal in The Queen v Barnet LBC¸ex parte Shah [1983] 2 AC 309, quoted in paragraph [36] above, referring inter alia to R v Hertfordshire County Council ex parte Cheung, The Times, 4 April 1986;  R v Jogee [2016] 2 WLR 681 paragraph 100;  Serious Organised Crime Agency v O’Docherty 2013 CP Rep 35, paragraphs 34 and 64;  R(Ali) v Justice Secretary [2014] 1 WLR 3202 paragraph  32 and 34;  Cadder v HM Advocate 2011 SC (UKSC) 13, paragraphs [57]-[62] and [98]-[101];  Toal v HM Advocate 2012 SCCR 735).  The clarification given in Anderson Strathern is regarded as a declaration of the law as it had always stood.  It was open to any party in the past to challenge the hybrid categorisation as ultra vires, standing the wording of the 2007 Act.  No such challenge was made.  On that basis, any current attempt to open up a decided and closed case by raising a challenge concerning its categorisation as “hybrid” should not, in our view, be granted an extension of time for a late appeal by the court.  Furthermore, there is the desirability of finality and certainty in relation to past closed cases (cf the authorities referred to above).  Accordingly any application for leave to appeal late would be refused.

[64]      However in relation to uncompleted hybrid cases not yet the subject of an appeal to the Court of Session, I confirm that it would in my opinion be an error of law and ultra vires to continue with such cases on a “two‑track” basis.  It may therefore be necessary for some prima facie time‑barred appeals to be lodged, in which case the court should in my opinion exercise its discretion by extending the appeal time‑limit, and then should grant the necessary orders as outlined in paragraph [61] above.  For completeness, I confirm that I agree with Miss O’Neill (paragraph 17, last bullet point of the written submissions concerning the nobile officium) that, for the reasons discussed in the appeal and in the opinion above, the procedure in section 15 would not be available in such cases.

[65]      Turning finally to the regulatory functions of the Law Society, and its statutory duty in terms of section 6(2)(b)(iv) and 47(1) of the 2007 Act to investigate a complaint concerning conduct, in each case a decision that the complaint was a services complaint would exonerate or absolve the Law Society from further investigation into that complaint.  Similarly, in each case a decision that the complaint was a conduct complaint would exonerate and absolve the Commission from further investigation into that complaint. 

[66]      I am conscious that Lord Glennie has adopted a different approach in his opinion.  That approach has many attractions.  However I have the following reservations.  First, on a proper construction of the statutory scheme, once the case has been sent to the Law Society as a “conduct” complaint, the Law Society is obliged by statute to proceed to investigate that complaint (sections 6 and 47).  There is no easily identifiable route whereby the Law Society can be relieved of that obligation, other than the particular provisions in sections 15 and 21.  Secondly, any suggestion that the Law Society’s obligation to investigate would fly off because the Commission’s initial classification of the complaint as “hybrid” was ultra vires raises the question of the status of that erroneous decision:  was the decision void or voidable?  If void, would there be repercussions (possibly at the hand of a complainer or a practitioner) in other cases in which the Commission had made a similar ultra vires decision?  If voidable, did the decision, while in existence, have the effect that the Law Society became bound to investigate by the statutory obligation in terms of sections 6 and 47.  Thirdly, a decision by this court that the Commission has the power at any time to change its decision about the classification of a complaint, without the need to resort to sections 15 or 21, and without requiring authority from a court, would, in my opinion, be an unacceptable precedent to set in the context of the complaints procedure involving the Commission and the Law Society.  The prescriptive and detailed scheme set out in the statute was the result of considerable discussion and negotiation.  Procedures were closely defined, and various steps and stages made mandatory.  As indicated in paragraph [55] above, I consider that the scheme was purposely made precise and prescriptive, one reason being the efficiency and integrity of the system, but another being that the importance of defining clearly the rights and duties of all parties concerned in what is often a contentious and difficult area, so that no party is able to take steps other than those outlined in the statute.

[67]      For these reasons, I have not been persuaded that the alternative approach outlined by Lord Glennie should be adopted.  However, as I am in the minority, the court will dispose of the case in the manner set out in paragraphs [91] and [92] of Lord Glennie’s Opinion.

 

 

Decision
[68]      For the reasons given above, adopting the approach set out in paragraphs [91] and [92] below, the court answers Question 1 in the affirmative and Question 2 in the negative.  There will be a finding of no expenses due to or by either party.  As suggested by Lord Glennie, the case will be put out By Order for consideration of any further steps necessary in respect of Question 3.

 

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 36

XA142/16

 

Lady Paton

Lord Glennie

Lord Turnbull

OPINION OF LORD GLENNIE

in the appeal

by

THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND

Appellant

against

THE SCOTTISH LEGAL COMPLAINTS COMMISSION (SLCC)

Respondent

under

Section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 and rule 41.25 of the Rules of the Court of Session 1994

 

Appellant:  Connal QC, Thorburn (sol adv); Pinsent Masons LLP

Respondents:  O’Neill (sol adv); Brodies LLP

 

9 June 2017

Introduction
[69]      I have had the opportunity of reading in draft the opinion to be delivered by your Ladyship in the chair.  In paragraphs 1 – 41 of that opinion your Ladyship helpfully sets out the circumstances in which this appeal comes before this court and summarises the arguments presented on behalf of both parties.  I gratefully adopt what your Ladyship says in those paragraphs.  However, for reasons which appear below, I have come to a different conclusion from that reached by your Ladyship on the issue before this court and as to the ultimate disposal of this appeal.  It is therefore necessary for me to set out my reasoning and conclusions in some detail.

 

The Issues and the Relevant Facts

[70]      This appeal is against a decision by the Commission to re-open and re-categorise complaints previously categorised by it as “hybrid”.  Strictly speaking, this particular appeal concerns only one such complaint, namely a complaint by VC against two solicitors, JM and AP, but it raises a point of principle potentially applicable to a large number of similar appeals.  The appeal poses three questions of law.  The first two questions raise the issue of principle applicable to many if not all of the outstanding appeals.  The third question focuses on the facts of the particular case.  We have not been asked to deal with the third question at this stage. 

[71]      The facts of this particular case are straightforward.  A complaint was made to the Commission by VC.  By letter of 30 March 2016 the Commission notified JM (and presumably AP) that it had categorised the complaint against them as “hybrid service first” (meaning that it consisted of both service and conduct elements, and that the service element of the complaint would be dealt with first) and that it had advised the complainer accordingly.  It enclosed with that letter a Determination which it had made under sections 2 and 4 of the Act, to the effect that the complaint was not premature, that it had been submitted timeously, and that the various issues raised in the complaint were not frivolous, vexatious or totally without merit. 

[72]      On 31 August 2016 the Inner House issued its decision in Anderson Strathern holding, in effect, that the 2007 Act did not give the Commission the power to classify a “one issue” complaint as hybrid.  It had to be either a conduct complaint or a services complaint – it could not be both.  In light of that decision the Commission began to review existing complaints which it had classified as hybrid and which were still in progress through the system on that basis.  In some cases, specifically cases where no determination had yet been made by the Law Society on the conduct element of the complaint, the Commission undertook an exercise of re-categorising existing hybrid complaints (ie those which it had previously categorised as hybrid) and sending intimation of that re-categorisation to the relevant parties. 

[73]      In the present case the Commission wrote to JM (and presumably also to AP) on 6 October 2016 stating that the complaint had now been categorised as a services complaint.  It enclosed with that letter a fresh Determination under sections 2 and 4 of the Act, to the same effect as the previous Determination.  No further steps have yet been taken in respect of this complaint.

 

Discussion
[74]      The exercise of categorising complaints as either conduct complaints or service complaints is an administrative exercise.  Its purpose is to determine how and by whom the complaint is to be investigated.  If it determines that the complaint is a conduct complaint, it will be investigated by the relevant professional body, in the present case the Law Society.  If it determines that the complaint is a services complaint, it will itself investigate the complaint.  But it is important to note that at the stage of categorising the complaint as either a conduct complaint or a services complaint for the purpose of section 2(1A)(a) of the Act, the Commission is exercising an administrative function and not a judicial or quasi-judicial one.

[75]      It is not now in dispute that the initial categorisation of the complaint as hybrid was ultra vires the Commission, in other words beyond its powers.  This is clear from the Anderson Strathern decision.  It is unnecessary to enter into the question of whether that initial categorisation was void ab initio or simply voidable.  It is agreed that that initial categorisation is not a nullity.  It was not contended by either party that it was.  It cannot simply be ignored, treated as never having happened.  To that extent it bears the hallmarks of voidability, but questions about whether an ultra vires decision is void or voidable are seldom of assistance and can tend to obscure a proper analysis of the issue.  In this case it is agreed that the hybrid categorisation stands until altered by some competent process.  The question for the court in this appeal is whether, now that it has been declared by the court to be ultra vires, it can be corrected by the Commission, or whether it can only be corrected on a case by case basis by some court process such as an appeal under section 21 of the Act.

[76]      The argument for the Law Society is a straightforward one.  Once the Commission has decided how a complaint is to be categorised in terms of section 2(1A)(a) of the Act, it has no power to revisit that decision.  This is so, so the argument runs, not because the Commission is functus officio, but because the Act itself leaves no room for any reconsideration of a categorisation decision once it has been made.

[77]      It will be necessary to consider the terms of the Act in due course, but it is convenient at this stage to step back and consider more generally the ability of an administrative decision maker to review and, if necessary, reconsider decisions it has made, particularly in circumstances where its original decision is shown to be wrong in law or is one which it could not lawfully have made.  As a general rule it is difficult to see why it should not have the power to do so.  The alternative is that whenever a wrong decision is made, it cannot be corrected – even when it is plainly wrong and acknowledged by the decision maker to be wrong in law or beyond its powers – except by an appeal under the appropriate appeal mechanism or by an application for judicial review, all at some expense and inconvenience both to the decision making body and to the individual aggrieved by the wrong decision.  This cannot be right.  Assume a planning authority grants a planning application on terms which it has no power to impose, and this error is pointed out to it by the applicant: surely, if it acknowledges its mistake, the planning authority can simply recall its original decision and re-issue it on the correct terms without having to go to court to have its original decision set aside.  Similarly, if a local authority refuses housing or other benefit on the basis of a misunderstanding of the relevant legislation, then, if the mistake is pointed out and accepted by it, surely it must be entitled to correct its decision itself without putting the applicant (and itself) to the expense of an appeal or judicial review.  This must be a daily occurrence; and it is in keeping with notions of sound administration that where mistakes are identified and accepted they can and should be corrected without the need for legal proceedings.  Granted there appear to be few, if any, reported cases of this having been done; but that should come as no surprise, since neither the decision maker nor the applicant in those circumstances would have any interest in challenging the new (corrected) decision. 

[78]      There is authority to support this view.  R v Hertfordshire County Council, Ex p Cheung (The Times, 4 April 1996, [1986] CA Transcript No 287 CA) was concerned with the effect of a decision of the House of Lords that, contrary to what had previously been understood to be the position, a person ordinarily resident in the United Kingdom was eligible for a student grant regardless of his immigration status.  A number of applicants, who had been denied student grants some years earlier on the basis of what was now established to be a wrong view of the law, applied for re-consideration of their applications.  Following guidance from the Department of Education, the relevant local authorities refused these renewed applications as coming too late.  The matter came before the court by way of judicial review.  The precise details of the decision are not important for present purposes.  What is important is what was said in the Court of Appeal about the power of the local authorities to reconsider their earlier decisions in light of the decision of the House of Lords showing that their earlier decisions had been made on a mistaken view of the law.  Having concluded that the local authorities had indeed at an earlier stage decided, mistakenly, that the applicants did not qualify for awards, Sir John Donaldson MR said this:

“This is not to say that, having determined that the applicants were not qualified, the authorities had no power to reconsider their decision.  I am sure that they had.  It would be strange indeed if a public authority which discovered that it had inadvertently denied a citizen a benefit to which he was entitled could not correct its error.  Indeed, I think that it would have a duty to consider exercising this power, although I also accept that it would have a discretion as to what action should be taken.  This discretion would have to be exercised in accordance with the requirements of good public administration.”

 

He went on to consider the problem caused by the earlier refusal of the court to give leave to apply for judicial review of one of the earlier decisions made by the local authorities, which meant that that earlier decision could not now be quashed.  He said this:

“A public law decision which is made upon an erroneous view of the law is just as valid and effective as one which is made ultra vires, unless and until it is reversed by the decision maker (assuming that he has power to do so) or it is quashed by a competent court in appropriate proceedings.”

 

He then said this about the view of the first instance judge that the decision of the local authorities not to open up all of the earlier decisions was Wednesbury unreasonable:

“’Stare decisis’ in the broad sense of the antithesis of ‘Order, counterorder, disorder’ is of the essence of good public administration.  If the law is changed or suddenly discovered, it is right that it should be applied in this new form thereafter, but if it is to be applied retrospectively, this must be subject to some limitation.  Quite what limitation should be applied would depend upon the particular circumstances.  In the field of private law, retrospective action is controlled by the statute of limitations and the doctrine of laches.  In the field of public law, it is controlled in the absence of any express statutory provision by the exercise of the court’s discretion.

 

I wholly accept the proposition that if a test case is in progress in the public law courts, all those who are in a similar position to the parties should not be expected themselves to begin proceedings in order to protect their positions.  I say this for two reasons.  First, it would strain the resources of the public law court to breaking point.  Second, and perhaps more important, it is a cardinal principle of good public administration that all persons who are in a similar position shall be treated similarly.  Accordingly, it could be assumed that the result of the test case would be applied to them by the authorities concerned without the need for proceedings and that, if this did not in the event occur, the court would regard this as a complete justification for a late application for judicial review.”

 

[79]      A number of points can be taken from the passages quoted from the judgment of Sir John Donaldson MR in Cheung.  In general, if there is a change in the law, or the law is suddenly discovered to be other than it was thought to be at the time of the earlier decisions, the decision maker may reconsider its previous decisions, so long, of course, as any policy adopted by it in that regard is lawful.  This is particularly so if there has been a test case or, as with the Anderson Strathern case here, a decision establishing the correct view of the law in relation to a large number of cases.  In such situations, the decision maker does not generally need to wait for individual decisions to be challenged in court:  it would be wrong to expect all those affected by the decision individually to begin proceedings in order to protect their positions; and it would be an undesirable burden on the court system if this was required in every case before a mistaken decision could be corrected. 

[80]      This approach has been approved by the Court of Appeal in R (Ali) v Secretary of State for Justice at paragraph 34:

“The point of principle to be derived from Cheung, as the passage from the judgment of Sir John Donaldson MR, set out below and cited by the Divisional Court (at paragraph 210 of its judgment) makes clear, is that if there is a change in the law, or the law is suddenly "discovered", the decision-maker may adopt a policy for reconsideration of previous decisions, as long as that policy is lawful.”

 

[It should be noted that the relevant passage from the judgment of Sir John Donaldson MR in Cheung as quoted by Maurice Kay LJ in the Court of Appeal in Ali at paragraph 34 is incomplete and potentially misleading (as is the quotation of the same passage in paragraph 210 of the judgment of the Administrative Court reported at [2013] 1 WLR 3536):  the omission of the first ten words (“’Stare decisis’ in the broad sense of the antithesis of …”) suggests a meaning quite contrary to what the court must have intended.]

[81]      The same approach has also been applied in the Northern Ireland High Court in Magee's Application [2013] NIQB 59 at paragraph [39] where Stephens J made it clear that, although in Cheung Sir John Donaldson MR reiterated the well-established rule that a public law decision is valid and effective unless and until set aside by a court of competent jurisdiction,

“[he] was not stating that, in the circumstances of that case, a public body once it had taken a decision was functus officio and that, without its decision having been set aside by a court of competent jurisdiction, it had no power to reconsider its initial decision.”

 

[82]      As those cases make clear, it is right and consistent with good public administration that in such circumstances the decision maker should not only apply the correct interpretation of the law in the future but should consider whether and to what extent to apply it retrospectively without everyone affected by the mistaken decisions having to bring proceedings to correct them. 

[83]      There will, of course, be limits to be placed on retrospective application of the new (correct) understanding of the law to previous decisions already made, but those limits will depend upon the particular circumstances, including any relevant statutory provisions, the burden placed on the administrative capabilities of the decision-making body and, of course, the impact which any revisiting of previous decisions might have upon persons affected thereby. 

[84]      With this in mind, it is necessary to look at the provisions of the Act to see what constraints they place upon the ability of the Commission to reconsider its decisions as to the proper categorisation of complaints under section 2(1A)(a) in circumstances where its original “hybrid” categorisation has been declared by the court to be unlawful.

[85]      It is argued on behalf of the Law Society, putting the matter shortly, that once a complaint has been categorised as a conduct complaint or a services complaint, certain consequences flow which are, in effect, irreversible.  The Commission must take the preliminary steps mentioned in section 2(4), namely to determine whether or not the complaint is frivolous, vexatious or totally without merit and, depending upon such determination, to give notice of the same.  If a complaint is determined to be a conduct complaint the Commission must remit the complaint to the relevant professional organisation to deal with: section 6.  Once a conduct complaint has been remitted to the relevant professional organisation, that organisation must investigate it: section 47.  If, on the other hand, a complaint is determined to be a services complaint then, subject to the provisions of section 8, the Commission must investigate the complaint.  In both cases, the duty placed on the professional organisation or on the Commission to investigate the complaint is subject, and subject only, to the terms of section 15 of the Act, which provides an opportunity for altering the categorisation of a complaint which is in the course of being investigated.  It is agreed that section 15 can have no application in the present circumstances, since it allows the categorisation to be changed from services to conduct or vice versa, but does not give power to change from hybrid to either services or conduct.  The only other means of challenging a decision by the Commission as to how to categorise a complaint is to appeal, with leave of the court, against that decision under section 21 of the Act.  Putting the matter shortly, once the Commission has made its decision to categorise a complaint as hybrid, there is no scope for it to change that categorisation and, further, it must, depending upon the categorisation decided upon, either itself undertake the investigation or remit the complaint to the professional organisation for it to investigate.  The duty to investigate flows automatically, inevitably and irrevocably from the decision taken as to categorisation.

[86]      This argument on behalf of the Law Society appears, superficially at least, compelling.  But it overlooks two matters.  First, it overlooks the fact that the decision to categorise the complaint as hybrid has been held to be ultra vires, in other words it was not a decision which the Commission was lawfully entitled to make.  It was, therefore, susceptible to review, whether in court proceedings or otherwise, and liable to be set aside with a new, lawful, decision made in its place.  Depending on what the new decision was, that re-made decision would have the effect that a duty to investigate initially placed on the professional organisation or the Commission is removed from that body and placed on the other.  So the finality of placing the duty to investigate a complaint on one body or the other is illusory.  Secondly, it asserts that which it seeks to prove, namely that the Commission itself has no right to re-make a decision once it is told that the decision it previously made was ultra vires, or beyond its powers, but can only do so as a result of some further court process.  Since an ultra vires decision can be re-visited by someone, whether that be by the courts or by the decision maker, the proposition that it must be done by the courts and that the Commission has no right to re-make a decision except as a result of some further court process derives no support from the analysis of the statutory provisions.  Once it is recognised on the basis of the decision in Anderson Strathern that the decision to categorise the complaint as hybrid was ultra vires, and that it is within the power of the Commission to reconsider and, if necessary, re-make its previous ultra vires decision, then the argument advanced on behalf of the Law Society loses its force.  A decision of the Commission to re-categorise a hybrid complaint may, almost certainly will, result in the duty previously placed on one or other body to investigate the complaint flying off, but I see no difficulty in this.  It is simply the consequence of the Commission acting properly in response to a court ruling that its initial hybrid categorisation was unlawful and ultra vires.

[87]      What then of other possible constraints on the power of the Commission to re‑categorise complaints previously categorised by it as hybrid in circumstances where the court has held that initial hybrid categorisation to be unlawful?  It is possible to conceive of circumstances in which it would be inappropriate, and perhaps Wednesbury unreasonable, for the Commission to embark on a review of its previous decisions with a view to re-categorising them.  A decision, had it been made, to re-open completed investigations on the basis that the hybrid categorisation was ultra vires might well have been susceptible to challenge on these grounds; but we understand that there has been no attempt to re-open old cases, so the point does not arise.  A decision to re-categorise hybrid complaints which had already been partly determined by one body or the other might be susceptible to challenge, but much might depend upon the particular circumstances – the court was told that in hybrid cases where a determination had already been made by the Law Society on the conduct element of the complaint the Commission had decided simply to close the file in relation to the service element and take no further steps.  It would not be right to speculate about the possible situations in which the decision either to re-categorise or not to re-categorise complaints previously regarded as hybrid might be liable to challenge in the courts, whether by the complainer, the practitioner against whom the complaint was made, or by some other interested party. 

[88]      If such issues arise they should be dealt with on their merits in the appropriate case.  The case before this court appears to have got no further than letters (i) informing the complainer and the practitioner that the claim was categorised as hybrid and, subsequently, (ii) informing the complainer and the practitioner that the complaint previously categorised as hybrid was now categorised as a services complaint.  Apart from the Determination made on each occasion by the Commission under sections 2 and 4 of the Act to the effect that the complaint was not premature, that it had been submitted timeously, and that the various issues raised in the complaint were not frivolous, vexatious or totally without merit, nothing further appears to have been done.  In those circumstances, where nothing has happened to cause parties to incur expense or otherwise be prejudiced by such a decision, and no party other than the Law Society and the Commission has joined in this appeal, there is no reason to conclude that the Commission did not have power, as a matter of law, to re-categorise the complaint.  Whether the re-categorisation of this particular complaint as a services complaint is wrong in law, unreasonable or irrational is a matter covered by Question 3 upon which we have not been addressed.

[89]      I note the reservations your Ladyship has about the approach which I consider should be taken in this case.  These are set out in paragraph [66] of your Ladyship’s opinion.  I shall try to address them here. 

(1)   The first reservation is that, on a proper construction of the statutory scheme, once the case has been sent to the Law Society as a “conduct” complaint, the Law Society is obliged by statute to proceed to investigate that complaint and there is no easily identifiable route whereby the Law Society can be relieved of that obligation, other than the particular provisions in sections 15 and 21.  But the cases with which we are concerned have not been sent to the Law Society as “conduct” complaints, nor, for that matter, retained by the Commission as “services” complaints.   They have been sent (or retained) as “hybrid” complaints, a categorisation which has now been held to be unlawful.  Once that ultra vires decision has been corrected and replaced by a new (lawful) decision, it falls away, and whatever obligation to investigate which had been placed on the Law Society (or the Commission) as a result of that initial ultra vires decision flies off.

(2)   The second reservation is that the idea of the obligation to investigate “flying off” in such circumstances raises the question of whether the initial ultra vires decision to categorise the complaint as hybrid was void or voidable.  If void, it might have repercussions possibly at the hand of a complainer or practitioner in cases where the decision has already been made; while, if voidable, it raises the question whether the decision, while in existence, had the effect of binding the Law Society (or the Commission) to investigate.  With respect to your Ladyship’s concerns, it is clear, and it was a matter of agreement, that the initial decision to categorise the complaints as hybrid was not void ab initio.  Neither party contended that it was a nullity.  As is made clear in the cases cited to us, in particular Cheung, it is and remains valid and effective until quashed or reversed.  It follows, in my view, that the obligation to investigate only flies off when the Commission reverses its initial categorisation and re-makes its decision.  It also follows that it is only from that moment, and not before, that the initial hybrid categorisation and everything flowing from it, including any obligation to investigate, ceases to exist.  I suggest that this need not give rise to any problems except, of course, in a case where the Commission’s decision to re-make its earlier ultra vires decision comes too late and is challenged by judicial review, but then there is potential for judicial review of the Commission’s decision whichever way this issue is decided. 

(3)   The third reservation is a concern that this analysis would set an unacceptable precedent allowing the Commission to make and re-make decisions regardless of the carefully designed and detailed scheme in the Act in terms of which decisions can only be reviewed or changed under the mechanism laid down in sections 15 and 21.  I do not share your Ladyship’s concern on this point.  This decision concerns a decision as to hybrid categorisation which the court has held (in Anderson Strathern) to be unlawful and ultra vires the Commission, and the power of the Commission in such circumstances to review its own unlawful decision and replace it by one which it has the power to make.  It goes no further than that.  I do not suggest that the Commission has the power at large to re-consider and change decisions which it has made unless they have been held to be unlawful.  That is the essential element which, I suggest, should allay your Ladyship’s concerns.

In the result, I am not persuaded by the points made by your Ladyship that I should alter the opinion I have formed of this case.

 

Nobile Officium
[90]      In light of light of the way in which I would suggest that this appeal be decided, it is unnecessary to say anything about the question raised by the court during the hearing about whether one possible solution to the problem might be a petition to the nobile officium.  Had the view been taken that the Commission had no power at its own hand to re-consider its earlier decisions and to re-categorise cases previously categorised as hybrid, it would have been necessary to consider whether section 21 provided a means of applying to the court in all live cases where the complaint had been categorised as hybrid.  The only practical difficulty appeared to be that the Commission was not one of the parties entitled to avail itself of this provision.  In most cases, no doubt, the complainer or the practitioner or the professional organisation could be relied upon to bring an appeal under that section, but there might, I suppose, remain the possibility that, for whatever reason, none of those parties wished to avail itself of that procedure.  In those circumstances there might be the necessity for the Commission to petition the nobile officium, there being no other way for it to avoid having to continue down the hybrid route even though it knew that to be ultra vires.  However, in light of the disposal which I would propose it is unnecessary to consider this point further.

 

Decision
[91]      In the result, therefore, I consider that Question 1 should be answered in the affirmative and Question 2 in the negative.  No answer should presently be given to Question 3.  So far as concerns expenses, parties were agreed that the appropriate order would be that there be no expenses due to or by either party.

[92]      I propose that the case be put out By Order for consideration of what, if any, further steps require to be taken in respect of Question 3.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 36

XA142/16

 

Lady Paton

Lord Glennie

Lord Turnbull

OPINION OF LORD TURNBULL

in the appeal

by

THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND

Appellant

against

THE SCOTTISH LEGAL COMPLAINTS COMMISSION (SLCC)

Respondent

under

 

Section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 and rule 41.25 of the Rules of the Court of Session 1994

 

Appellant:  Connal QC, Thorburn (sol adv);  Pinsent Masons LLP

Respondents:  O’Neill (sol adv);  Brodies LLP

9 June 2017

Introduction

[93]      I have had the opportunity of reading in draft both the opinion to be delivered by your Ladyship in the chair and the opinion to be delivered by Lord Glennie.  I am most grateful to each of my colleagues for that benefit.  For the reasons given by Lord Glennie, I agree with the conclusion which he has arrived at as to how the appeal before this court should be disposed of.  I only wish to add briefly to what he has said.

[94]      Like Lord Glennie, I gratefully adopt the passages in the opinion of Lady Paton in which the circumstances of the appeal and the competing arguments are set out. 

 

Discussion
[95]      In my opinion, the key to the resolution of the issue before the court lies in two features of the original decision made by the Commission to categorise the complaint made to them as a “Hybrid Service First” complaint.  The first is that the exercise of categorisation which led to the Commission’s letter of 30 March 2016 was, in my opinion, an administrative exercise. Ms O’Neill was correct in submitting that the court in Anderson Strathern did not describe the exercise of categorisation carried out under section 2 of the 2007 Act as quasi judicial.  The second feature is that the decision arrived at as a consequence of this exercise was ultra vires, or unlawful.

[96]      The import of the argument advanced by the Law Society is that an administrative decision of this sort, once made by the Commission, cannot be changed or corrected, even if the Commission recognises that it has been made unlawfully.  I cannot accept that this is an accurate statement applicable to all circumstances. 

[97]      I recognise of course the validity of the statement that a public law decision which is made upon an erroneous view of the law is just as valid and effective as one which is made ultra vires, unless reversed (assuming power) or quashed.  I also recognise, as does the Commission, that a stage may be reached where an ultra vires decision cannot be revisited.  However, that stage had not been reached in relation to the present complaint.  No final determination had been made and the Law Society had not commenced any investigation prior to 6 October 2016.  It was awaiting confirmation that the Commission had completed its investigation.

[98]      In these circumstances it is helpful to look at the background to the issue by the Commission of its letter of 6 October 2016 purporting to re-categorise the complaint.  The competency of the Commission’s practice of categorising certain single issue complaints as “hybrid” complaints was drawn attention to by the court in its decision in the case of Bartos v Scottish Legal Complaints Commission.  The court raised the issue to allow reflection on the part of the Commission and the professional bodies in order that it could be raised as a live issue, if appropriate, in a future case.  It duly came into sharp focus in the Anderson Strathern case, the decision in which was issued on 31 August 2016.  It is clear therefore that the Anderson Strathern case was in the nature of a test case for determining the vires of the Commission’s practice of categorising certain complaints as hybrid. 

[99]      In the aftermath of that decision the Commission sought to address the fact that it had made certain decisions which were now seen to have been made unlawfully.  Those decisions which had not led to a final determination were revisited and the Commission attempted to correct their mistakes by issuing new and lawful decisions.  This approach was, in my opinion, in keeping with the requirements of good public administration, as discussed in the cases of R v Hertfordshire County Council, Ex p Cheung, R (Ali) v Secretary of State for Justice and Magee’s Application.  As mentioned by Lord Glennie, the unattractive alternative would have been for the Commission to leave all the parties affected by the mistaken earlier decisions to bring individual proceedings to correct them.

[100]    The remaining question is whether there is anything in the provisions of the 2007 Act which would prevent the Commission from conducting such an exercise in good administration.  In my opinion there is not.  The principal point relied upon by the Law Society is the imposition of a duty of investigation upon it by virtue of sections 6 and 47 of the Act on receipt of a complaint remitted to it by the Commission.  The Law Society contends that once the obligation is constituted there is no statutory mechanism to permit it to be removed.

[101]    It is, in my opinion, important to note that the obligation is constituted by the remitting of “a conduct complaint”, not a “Hybrid Services First” complaint.  Secondly, the Law Society has known since the end of August 2016 that the purported determination intimated to them was unlawful.  No investigation had begun by then, nor has it yet. The Law Society would no doubt view the suggestion that it was now bound by statute to commence and conduct an investigation into the professional conduct of one of its members, with all the possible consequences which might follow for that practitioner, on the basis of a decision which all knew to have been unlawfully made, as illogical and highly unattractive. On the Law Society’s submission though, the only alternative is an appeal under section 21 of the 2007 Act, which all accept would be bound to succeed.

[102]    In these circumstances I share Lord Glennie’s view that the finality of placing a duty to investigate on either body is illusory.  I agree that the decision to re-categorise the present complaint should be seen as the Commission acting properly in response to the ruling that its initial hybrid categorisation was unlawful.  I agree that as a consequence any duty on the part of the Law Society to investigate flies off.

 

Decision

[103]    In my opinion the case should be disposed of as suggested in paragraphs [91] and [92] of Lord Glennie’s opinion.