Appellant : JA Brown; Francis Gill & Co

First Respondent : Johnston QC; Anderson Strathern LLP

Second Respondent : Duncan; Balfour + Manson LLP

3 April 2012

1. Facts

[1] The appellant is a solicitor. The first respondents are responsible for the preliminary assessment, or sifting, of complaints about a solicitor's conduct in terms of section 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007. Before a complaint can be sifted, it requires first to have been timeously made in terms of the Rules of the first respondents dated 2009. Rule 4(6) provides that the first respondents will not accept a complaint, where it is made after the expiry of one year from the date of the misconduct complained of, "unless the [first respondents consider] that the circumstances are exceptional".

[2] An allegation of misconduct was made against the appellant in relation to events occurring before 18 May 2010, when a financial compliance inspection of the appellant's firm by the second respondents revealed a potential deficit on the firm's client account of about £232,000. The second respondent's Guarantee Fund Committee met on 13 January 2011 and determined to make a complaint. The appellant was advised of this on 10 March, but the complaint was not submitted to the first respondents until 14 June 2011.

[3] The complaint form, which was intimated to the appellant, read simply that the appellant:

"may be guilty of professional misconduct or unsatisfactory conduct regarding alleged breaches of Rules 4 and 6 of the Solicitors (Scotland) Accounts etc Rules 2001 through overcharging of fees to various client ledgers so creating a deficit on the firm client account".

However, it was accompanied by a letter which stipulated the amount involved and that the sum was made up of overcharging on thirteen different client files. It also gave some information on the background, including the date of the inspection, the invitation to the partners of the firm, including the appellant, and then to the appellant alone, to attend the Committee interviews on 1 and 22 July 2010. The appellant had not attended these interviews and, on the latter date, his practising certificate was suspended under section 40 of the Solicitors (Scotland) Act 1980. Further details of the Committee meetings in September, October, November 2010 and January 2011 were given; it being said that it was at the final meeting that a decision was made to make the complaint. The accompanying letter was not copied to the appellant but it is not disputed that he was aware of the nature and extent of the allegations summarised in the complaint form.

[4] By letter dated 24 June 2011, the first respondents intimated to the second respondents their intention:

"to make a decision not to accept the complaint for investigation on the grounds that it has been made outside the time limits".

They invited a response on this and, in particular, whether:

"There are exceptional circumstances that prevented you from submitting your complaint earlier...".

A similar, but not identical letter, was sent to the appellant intimating the first respondents' intention and requesting any comments before any decision was made. It stated that the second respondents had been asked to outline:

"any exceptional circumstances which prevented them from submitting the complaint at an earlier stage".

[5] The appellant made no comment. By letter dated 28 June 2011, which was not copied to the appellant, the second respondents submitted that "the subject matter to which the complaints pertain is of such a serious quality" that the first respondents ought to exercise their discretion to allow the complaint to be considered given the "overwhelming public interest in investigating these matters". There was no explanation proffered for the lateness of the complaint.

[6] On 21 July 2011 the first respondents intimated that they were accepting the complaint and, in accordance with the statutory scheme, remitted it to the second respondents to investigate. The letter narrated that, "on the face of it, the complaint appears to be time barred". It was recognised that the second respondents could have complained timeously but had failed to do so. The letter continued:

"However, the [first respondents are] mindful of the severity of the allegations and the need to protect the public should the petitioner's practising certificate be reinstated. In the circumstances, the [first respondents recommend] that the need to establish the specifics of the complaint and the gravity of the allegations should be considered to be an exceptional reason for accepting the complaint even though it has not been made within [the first respondents'] time limits".

It is against that decision that the current appeal is taken.

2. Submissions

(a) APPELLANT

[7] The principal ground of appeal was that the first respondents had erred in law in holding that, on a proper construction of Rule 4(6), a bare and unsupported assertion by the second respondents, that the misconduct complained of was grave, was sufficient to amount to exceptional circumstances. Such circumstances were referable not to the nature of the complaint but to the reasons why the complaint came to be made out of time.

[8] The appellant outlined the history of the practice adopted towards the prosecution of tardy complaints by the second respondents in proceedings before the Scottish Solicitors Disciplinary Tribunal prior to the creation of the first respondents. This had involved a vague and informal policy of five, and later two year, time bars (Campbell Riddell Breeze Paterson, SSDT, 28 April 2005, reversed on other grounds at [2007] CSIH 1; and Ritchie Robertson, SSDT, 23 August 2007). However, it was accepted that, under the modern legislative regime, the only issue was the proper construction of Rule 4(6), which was clear and unambiguous.

[9] Since the system of complaints was substantially penal in nature, the requirement for the Crown to show "cause" before being permitted to bring a criminal prosecution outwith the statutory twelve month time limit provided a useful analogy. Thus, a two stage test ought to be applied (HM Advocate v Swift 1984 JC 83, LJG (Emslie) at 88; Early v HM Advocate 2007 JC 59, LJ-C (Gill) at 55). The first respondents had to be satisfied: (first) that there were exceptional circumstances; and (secondly) that they should exercise their discretion in favour of allowing the complaint to be considered although late, having regard to all the circumstances. At the first stage, the gravity of the offence could not be a relevant consideration (Early (supra), LJ-C at para [30]). The focus ought to be on whether there were reasons for the time limit being missed and whether those reasons were potentially excusable. In this appeal, there were no reasons advanced for the complaint being made late.

[10] The competing approach was that gravity was a factor to be considered in determining whether exceptional circumstances existed. The word "exceptional", construed as an ordinary, familiar adjective described a circumstance which was such as to form "an exception, which is out of the ordinary course, or unusual, or special, or uncommon". Something which, whilst not necessarily "unique or unprecedented or very rare" was not one that was "regularly, or routinely or normally encountered" (R v Kelly (Edward) [2000] 1 QB 198, Lord Bingham CJ at 208).

[11] The phrase "exceptional circumstances" was encountered in the General Medical Council (Fitness to Practise) Rules Order of Council 2004. Rule 4(5) of these Rules time barred cases unless "the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed". This too involved a two stage approach. However, since any complaint relating to fitness to practise was necessarily a serious one, something beyond gravity was required (R (Peacock) v General Medical Council [2007] EWHC 585 (Admin), Gibbs J at paras 32-34).

[12] The test of "exceptional circumstances" presented a significant hurdle. On this alternative analysis, the whole circumstances had to be considered "in the round". Whilst it was possible for the gravity of the offence alone to be considered sufficient, that gravity would have to be of a wholly exceptional character (R (Gwynn) v General Medical Council [2007] EWHC 3145 (Admin), Sullivan J at paras 43-44). The only circumstance put forward by the second respondents was the gravity of the misconduct alleged and that was insufficient of itself to surmount the hurdle.

[13] The appellant's subsidiary grounds of appeal were, first, that the first respondents had not identified where, in the scale of gravity, the misconduct fell. The complaint had only contained a bare allegation of a breach of the Accounts etc Rules through the overcharging of fees to various clients. There was no factual basis for the conclusion reached by the first respondents that the misconduct had been exceptionally grave.

[14] The appellant secondly submitted that the first respondents had erred in law in relation to the appellant's practising certificate. That certificate had been suspended on 22 July 2010 and had expired on 31 October 2010. No application for a further certificate had been made and, if one were to be made, it could be rejected in terms of section 15 of the 1980 Act on the basis of the current complaint. Thus the idea that rejecting the complaint acted as a bar to refusing the appellant a certificate was wrong in fact. The second respondents had not put this forward as a reason for allowing the complaint late.

[15] Thirdly, the appellant complained of procedural unfairness, amounting to a breach of natural justice, in the first respondents dealing with the issue on the basis of the second respondents' letter of 28 June 2011, without affording the appellant an opportunity to respond to the terms of that letter. The appellant could not have anticipated that the second respondents' would advance an argument that gravity alone was sufficient to excuse the delay. He could not have provided any meaningful comment without notice of the second respondents' position, especially as they had only been asked to specify circumstances which had prevented the second respondents making the complaint on time. It was not necessary to review the authorities (eg Inland Revenue v Barrs 1961 SC (HL) 22)) since what required to be made was an intuitive assessment of the fairness of the procedure adopted (R v Secretary of State for the Home Department ex parte Doody [1994] 2 AC 531, Lord Mustill at 560).

[16] Finally, the appellant complained of the inadequacy of the reasons given for the decision (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345). That part of the reasons about the need to establish the specifics of the complaint applied in all cases. The part concerning gravity did not narrate what was so grave or the criteria for the assessment of gravity.

(b) FIRST RESPONDENTS

[17] The first respondents contended that words of Rule 4(6) fell to be interpreted according to their plain meaning in their context. They had been adequately explained by Lord Bingham CJ in R v Kelly (Edward)(supra). If his dictum were followed, it could be seen that the first respondents had been entitled, in the exercise of their discretion, to find that exceptional circumstances existed. The historical background relative to the second respondents' practices before the introduction of the 2007 Act was neither relevant nor helpful. The approach taken in criminal procedure (Swift (supra) and Early (supra)) was not of assistance. There was no reason to import a two stage test. The context and language of the statute were different and should not be read across from a court to a lay tribunal or commission.

[18] The first respondents, as a specialist tribunal, ought to be given a degree of latitude in reaching decisions within their field of expertise. The decision was a discretionary one and that could only be reviewed if it were seen to be "irrational" (2007 Act s 21(4)). The first respondents were entitled to take into account the subject matter and the gravity of the misconduct alleged in determining whether the circumstances were exceptional. There was no basis for confining them to the facts surrounding the lateness of the complaint.

[19] Although an explanation for the delay might have been expected, the first respondents were entitled to be satisfied on exceptional circumstances by virtue of the gravity of the misconduct alone ((R (Gwynn) v General Medical Council (supra), Sullivan J at paras 44-45). The first respondents formed a gateway for all complaints. They had significant experience in judging whether the circumstances of a given complaint were exceptional. They recognised these circumstances when they see them.

[20] In relation to the subsidiary grounds, there had, first, been no error in the assessment of the gravity. The respondents had been entitled to form a preliminary view (Council of the Law Society of Scotland v Scottish Legal Complaints Commission 2011 SC 94). This exercise was not conducted on the basis of a full investigation, but as part of the sifting process intended to remove cases which plainly do not warrant investigation. Where the first respondents took the view that a complaint required investigation, it ought to proceed further and the first respondents were entitled to make that decision based upon the nature of the complaint, even it were lodged outwith the time limit set by the Rules.

[21] The first respondents had not erred in relation to the relevance of the practising certificate. They had referred to the need to protect the public "should" the apellant's practising certificate be reinstated and had not proceeded on the basis that it might not be. This was not given as a reason for the decision but as something which the first respondents had had to bear in mind.

[22] The first respondents had not been under any duty to invite any submissions prior to reaching their decision on time bar. All that they required to do was to make it known to the appellant, as they did, that the second respondents were being invited to comment on the provisional view that the complaint was out of time and to outline any exceptional circumstances. It was made clear to the appellant that the matter had not been decided and that then was the time to make any comments. That was all that was required having regard to the context and subject matter (Doody (supra), Lord Mustill at 560; CCSU v Minister for the Civil Service [1985] AC 374, Lord Diplock at 411). If it were being said that he might have contended that gravity was not a consideration, that would have made no difference to the outcome. If he were right about that, he would succeed in this process in any event.

[23] The reasons given were adequate to explain the decision, having regard to its nature as a preliminary issue (R (Asha Foundation) v Millenium Commission [2003] EWCA Civ 88, Lord Woolf at para 27). They passed the intelligibility and adequacy tests in Wordie Property (supra)(see also South Bucks DC v Porter (No 2) [2004] 1 WLR 1953, Lord Brown at para 36).

(c) SECOND RESPONDENTS

[24] The arguments of the first respondents were adopted, but six additional points were made. First, the fact that the second respondents had not explained the lateness of the complaint did not foreclose the argument. The Rule did not require an explanation. The decision of the second respondents had been that there was no adequate explanation and that therefore the decision stood or fell on whether gravity could be an exceptional circumstance. It could be (Gwynn (supra); Haikel v General Medical Council [2002] Lloyd's Rep Med 415, the Privy Council at paras 14 & 15). The situation with medical complaints was different as they all had to be serious (Peacock (supra) at paras 32-35) whereas the first respondents had to sift all complaints, whether serious or frivolous.

[25] Secondly, in relation to the existence of a two stage test, the first respondents had to ask themselves whether there were exceptional circumstances. They had to identify these circumstances and to decide in which way they should exercise their discretion. Criminal cases were not a suitable analogy since, in those, the clock started ticking not from an event but from the act of the prosecutor. Thirdly, in order to succeed, the appellant had to identify either an error of law or irrationality (2007 Act s 21(4)(a) or (e). The issue then was whether it was irrational for the first respondents to conclude that the alleged misconduct was sufficiently grave as to be classified as an exceptional circumstance. The first respondents saw a range of complaints and the true question was whether or not the appellant's breaches of the Accounts etc Rules were exceptional in that context.

[26] Fourthly, in relation to the practising certificate, the first respondents had regard to a possible scenario, were the appellant to return to practice. If he were to re-apply for a certificate, that matter would go before a small Practising Certificates Committee, which did not have the ability, or power, to carry out detailed investigations. Fifthly, on the issue of natural justice, the true issue was whether the appellant had been entitled, as a matter of fairness, to a right of reply to the second respondent's letter. He was given an opportunity to do so. Finally, on the adequacy of reasons, the appellant had been well aware of the magnitude of the allegations against him.

3. Decision

[27] The first issue for the court is to determine what is involved in the assessment of whether a complaint is time barred in terms of Rule 4(6). That Rule is simply that the first respondents will not accept a complaint "unless the [the first respondents consider] that the circumstances are exceptional". Put, perhaps unnecessarily, round the other way, if, in a given case, the first respondents consider that the circumstances are exceptional, they can (and perhaps must) accept it. It is necessary to read into this Rule the idea that the exceptional nature of the circumstances make it appropriate to proceed to accept the complaint, presumably having regard to the public interest in having complaints against solicitors investigated. The fact that there is an unique feature in the complaint or its progress would not, of itself, be sufficient to permit its progress. The unique feature has to be one which is related to the appropriateness of accepting a complaint outwith the one year period.

[28] References to the approach of the High Court in determining whether it ought to allow a prosecution to proceed "on cause shown" are not unhelpful. However, it is important to observe that the provisions are statutory and they involve a penal code. Those under scrutiny in HM Advocate v Swift 1984 JC 83 and Early v HM Advocate 2007 JC 59 do require a two stage test, at least in strict theory if not in everyday practice, because of the necessity for there to be "cause" before the court can decide in all the circumstances whether to allow the prosecution to continue. The wording of Rule 4(6), which relates to "accepting" complaints although made beyond the one year limit, is undoubtedly different.

[29] The language is expressed in the context of a preliminary process designed to sift out unmeritorious complaints because of the delay in their presentation. Ordinary or common complaints will fall foul of this provision if they are tardily made. But all that the wording requires of the first respondents, before they can accept a late complaint, is a determination that there are circumstances which are exceptional. That ought to be taken, as mentioned above, as being exceptional so as to justify accepting the complaint outwith the prescribed time period. Such an exercise does not necessitate a two stage process but simply one in which the decision maker identifies whether a feature identified falls within the range of exceptional circumstances which might justify such a course of action.

[30] The court is content to accept Lord Bingham CJ's definition of exceptional circumstances, although also made in a criminal context, in R v Kelly (Edward) [2000] 1 QB 198. He states (at 208):

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered".

Thus, in the context of Rule 4(6) the first respondents would look for unusual, special or uncommon features of a nature which ought to be regarded as capable of justifying accepting a complaint outwith the one year time limit. The court has little difficulty in holding that the gravity of any alleged misconduct can be an exceptional circumstance in this context. Although, in many cases, the feature identified may relate to some event, such as a mistake or oversight, which results in a complaint not being timeous, there must be situations where the misconduct is so grave that, even if the reason for the lateness of the complaint were wholly inexcusable, nevertheless the public interest demands that the complaint be investigated and, if well founded, the solicitor dealt with according to the profession's disciplinary rules and procedures. In this regard, the court agrees with the dictum of Gibbs J (at para 32) in R (Peacock) v General Medical Council [2007] EWHC 585 (Admin), which appears to have been followed by Sullivan J (at para 44) in (R (Gwynn) v General Medical Council [2007] EWHC 3145 (Admin). It follows that the first part of the appellant's primary contention must be rejected.

[31] The first respondents are a specialist body to whom Parliament has given the power, under the 2007 Act, to sift complaints against solicitors. Parliament has given them a specific power to make rules concerning their procedures and, in particular, to set time limits for the making of complaints and the circumstances in which these time limits may be extended (2007 Act, s 32(1), Sch 3 para 2). The first respondents have introduced a general Rule that they will not accept complaints which are older than a year unless they consider that there are circumstances which they consider to be exceptional. It is, in the first instance, for the first respondents to determine what circumstances fall into the category of "exceptional", bearing in mind the definition of that term as an ordinary English adjective (see Lord Bingham CJ (supra)). In order to have an appreciation of what is exceptional, it is necessary to know what is common or normal. As the specialist body seeing all the complaints, ranging from the frivolous to the most grave, the first respondents are in the best position to gauge when a complaint fits into the exceptional category such that, in the public interest, it should be considered even if not made in time. The first respondents must be accorded a degree of institutional respect by the court in taking decisions in this area of competence.

[32] Before considering the merits of the decision reached, it is not unimportant to note the circumstances surrounding the making of the complaint. The alleged misconduct had occurred in May 2010 and the complaint was made in June 2011. It was therefore not extremely late in the sense of being made many months or years after the deadline had passed. During the year after the discovery of the alleged misconduct, there had been some action by the second respondents in the investigation of the subject matter. This took the form of the various Committee meetings up until January 2011, even although the appellant declined to attend these meetings. Although it may be reasonable to categorise the delay thereafter as inexcusable, this was not a case where there had been no, or little, activity between the discovery of the misconduct and the making of a complaint.

[33] Although it is true that the first respondents have no published scale of gravity, the court would only be able to interfere with the first respondents' assessment of exceptional circumstances if it could be demonstrated that the decision reached was one which no reasonable institution, tasked with the sifting of complaints, could have made. This could be done if it could be shown, for example, that breaches of the Accounts etc Rules of the magnitude alleged here were commonplace in the profession or a normal incident of legal practice. There was no material placed before the court which would justify such a conclusion. Rather, the court proceeds on the basis that such breaches are, using Lord Bingham's formula, not "regularly, or routinely, or normally encountered". In these circumstances, the court is unable to detect any error of law or irrationality in the first respondents' decision or to conclude that it was not supported by facts found (2007 Act s 21(4)).

[34] However, it is nevertheless important to record that the court is concerned by the first respondents' exercise of their discretion to entertain the complaint outwith the time limit. Different considerations might have been of relevance if the court's decision had been constrained by the action or inaction of the second respondents. No attempt was made by the second respondents to explain to the court the failure to make the complaint between January and May 2011. As the consequence of the first respondents' acceptance of a complaint necessarily involves remitting it to the second respondents for investigation, it is difficult to proffer, as an acceptable excuse, that the second respondents were engaged at the earlier stages in investigating a possible breach of the Accounts etc Rules. As soon as they became aware of the breach in May 2010, the second respondents could have made the complaint and thereafter investigated it fully when it was remitted back. The failure in this case suggests at least the appearance of an inadequate system to ensure that complaints are intimated timeously to the first respondents. It is to be hoped that, if they have not already done so, the second respondents will address this deficiency; otherwise they will risk the real possibility that serious complaints against solicitors will not be processed by the first respondents and the public will be denied the protection to which they are entitled.

[35] The reasoning relative to the gravity of the complaint answers the appellant's contention that there was no basis upon which it could be asserted that the misconduct fell into a particularly serious category. The appellant had been made aware of the nature of the complaint. There can be little doubt that the first respondents are entitled to regard a deficit on a solicitor's client account of £230,000 or thereby, produced in relation to thirteen different client ledgers, as unusually grave. It is clear that the first respondents did so regard the complaint because of their reference to the need to protect the public in the event of the appellant's practising certificate being re-instated. The court does not detect any error in this reference, which, in the decision letter, was one which reminded the first respondents of their public function rather than constituting a reason in itself for accepting the complaint. The procedure commencing with a complaint under the 2007 Act is the principal route for discipline of the solicitors and the court does not regard the fact that there is a power (under the Solicitors (Scotland) Act 1980 s 15) to refuse to renew a practising certificate in certain circumstances, such as applied in the appellant's case, as undermining the force of the first respondents' observation. It would at least be questionable whether the second respondents could legitimately refuse to renew on the basis of allegations of misconduct which had not only not been proved in the appropriate disciplinary process but also where they had been rejected by the complaint sifting body.

[36] The court is unable to detect any procedural impropriety in the first respondents' processing of the complaint. Although this court would hesitate before classifying its ability to assess fairness as intuitive as distinct from reasoned, it does not consider that there was any material unfairness in the manner in which the first respondents asked the second respondents and the appellant for comments on their preliminary view that the complaint was out of time. The obligation upon the first respondents was to act fairly in the preliminary process of accepting the complaint. The first respondents did not, in terms of their Rules, require to give either party an opportunity to be heard on the issue of whether to accept a complaint under Rule 4(6). However, they elected to do so. That having been done, they were bound to give each side notice of the issue to be decided and an equal opportunity to state their respective positions. Only the second respondents made any representations. The question is whether fairness demanded that the first respondents afford the appellant a right of reply. The court answers that in the negative. The second respondents' representations did not raise any new material. Indeed, they were unable to present any excuse for the late complaint and thus relied solely on the gravity of the misconduct to justify accepting it late. It would have been for the appellant, if so advised, to put forwards reasons for not allowing the complaint to be received late, including, in contrast, the trivial nature of any alleged misconduct. He did not, of course, do so but that is presumably because such a contention would have been untenable.

[37] Finally, in relation to the reasons given by the first respondents, the court has no difficulty in holding that they would leave:

"the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it" (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, LP (Emslie) at 348).

The appellant had little difficulty in correctly identifying the reason for accepting the complaint out of time; that "the need to establish the specifics of the complaint and the gravity of the allegations" amounted to an exceptional circumstance. This clearly gives exceptional circumstances as the reason and the gravity of the alleged misconduct as the material consideration. Given the appellant's knowledge of the extent of the misconduct as intimated to him during the second respondents' investigations, he would not be in any doubt about why the first respondents had classified it in the grave category.

[38] The appeal must accordingly be refused. Expenses are expressly reserved.