APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 21 OF THE LEGAL PROFESSION AND LEGAL AID (SCOTLAND) ACT 2009 B McSPARRAN McCORMICK
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 4
XA99/14
OPINION OF LADY SMITH
In the application for leave to appeal under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2009
by
McSPARRAN McCORMICK
Applicants:
11 December 2014
Applicants: Brown, advocate; Ian Anderson, solicitor
Respondent: McIlvride QC; Harper Macleod LLP
Introduction
[1] This application relates to a complaint made to the Scottish Legal Complaints Commission (“SLCC”) by a firm of solicitors. The complaint is about the conduct of another solicitor.
[2] Today, the applicants seek leave to appeal to this court against a determination by SLCC that their complaint is totally without merit: Legal Profession and Legal Aid (Scotland) Act 2007 (“the 2007 Act”), sections 2(4) and 21. The effect of SLCC’s determination is that the complaint will be taken no further. In particular, it will not be remitted to the Law Society of Scotland (“LSS”) for their consideration (see the 2007 Act, section 6).
The proposed grounds of appeal
[3] There would be two grounds of appeal. First, that SLCC erred in law in its application of the decision of this court in the Law Society of Scotland v The Scottish Legal Complaints Commission 2011 SC 94 and, secondly, that their determination was not supported by the facts.
Background and parties’ contentions
[4] The applicants previously acted for Mr Leslie Wilmot. He died in March 2008. His estate was wound up on the basis that he had died intestate, in accordance with a Deed of Variation agreed between his children in or about December 2008. The applicants acted in the winding up and distribution of the estate of the late Mr Wilmot at that time. In March 2014 they received a letter dated 5 March from JBM Solicitors Limited. The author was Mr McGeechan, solicitor. Justin Wilmot, a son of the deceased and Caroline Callaghan, a former co-habitee of the deceased (who was asserting that she had been married to him), were clients of Mr McGeechan. He referred, in his letter, to there being a copy of a will executed by the deceased in 1990 and to it having been shown to an accountant (Mr O’Hara) by Justin Wilmot at a meeting when the Deed of Arrangement was signed. The letter included the following statements:
“Justin Wilmot gave a copy of the Will of Leslie Wilmot to Mr O’Hara. This Will appears to have been ignored by Mr O’Hara. The Will of Leslie Wilmot was prepared by your firm and appears to be properly executed. Your firm would, therefore, be aware of the existence of the Will whilst acting in the Deed of Variation.
It appears that the Deed of Variation was a fraud.”
Whilst the letter ends by saying:
“It may be that our clients are misinformed or that there is a genuine and legal explanation or reason. If this is the case please provide it as soon as possible”,
in a letter sent the same day to Messrs Clark Boyle, Solicitors, who acted for another member of the family, Mr McGeechan stated that the Deed of Variation:
“…appears …to be evidence of fraud on the part of those who benefited from the Deed significantly and it raises questions about the actions of the law firm… involved.”
He added that he had been instructed to lodge a formal complaint with the applicants’ professional body and that he would be interested to know if Clark Boyle’s client can assist as a witness in what will be a larger action regarding the Deed of Variation and the will, to correct the “fraudulent distribution” of Mr Wilmot’s estate.
[5] As I have already observed, it was the applicants who acted in the distribution of Mr Wilmot’s estate.
[6] Put shortly, in these letters Mr McGeechan alleged that the applicants had, in some way, been involved in fraud. He made the allegation not only directly to them but also to another firm of solicitors. The applicants say that the allegations of impropriety on the part of the appellants read as being the result of conclusions drawn by him based on what he says a solicitor would know in such circumstances. That approach is, in the circumstances, understandable. The allegations of fraud appear to have been based on the existence of a copy of a 1990 Will showing the signature of the deceased. That is the only basis given by the author of the letter for the inference of fraud that is articulated. It does not, the applicants say, read as a simple rehearsal of a client’s instructions; it reads as being more than that.
[7] It seems to be accepted that, on the information before SLCC, Mr McGeechan made no attempt to make inquiry of the applicants or anyone else about the whereabouts of the original will prior to writing the letters.
[8] The applicants’ position is, further, that even if the allegation of fraud was made by the clients, such an allegation is so serious that there is a real possibility that LSS, on a remit of this conduct complaint, would decide that the solicitor, nonetheless, had a professional responsibility to refrain from repeating it in the absence of facts from which that inference could properly be drawn. In those circumstances, LSS may well, it is said, conclude that there had at least been unprofessional conduct, if not misconduct. It was not only the seriousness of the allegation that was significant. The matter of mutual trust and confidence amongst solicitors fell to be considered.
[9] There was, on the basis of information provided by the applicants, a simple explanation, the possibility of which one might have thought would have occurred to most if not all solicitors, namely that the deceased had by 2008 departed from the terms of the 1990 Will. That is, on the applicants’ account, in fact correct. They say that Mr Wilmot, whose relationship with Caroline Callaghan had ended in 1994 following which she had remarried, had departed from the 1990 Will and it had, on the client’s instructions, been destroyed.
[10] I should, at this point, observe that an issue arises between parties as to whether SLCC were obliged to take account of the factual explanation regarding the destruction of the original will that was subsequently provided by the applicants. They would argue that their original complaint was broad enough to incorporate it. SLCC would argue to contrary effect. I cannot, at this stage, on an application for leave, determine which is correct, but I would go as far as observing that the applicants’ position that their complaint was wide enough to embrace those facts certainly seems a tenable one to adopt.
Reasons for granting leave
[11] The applicants say that the letters contained serious allegations which have the potential to cause irreparable damage to the long established reputation which they have for honesty and propriety. They say that Mr McGeechan’s professional body, LSS, might well take the view that on these facts Mr McGeechan’s actings fell far short of the standard of conduct which can be expected of a competent and reputable solicitor (Sharp v The Law Society of Scotland 1984 SC 129). They observe that, given the standard of conduct inserted by the 2007 Act, namely that a solicitor may be found for SLCC’s purposes to have committed unprofessional conduct as well as professional misconduct, it is plain that what happened must at least have been unprofessional conduct.
[12] SLCC have, however, rejected the complaint as being totally without merit. They have done so because, they say, Mr McGeechan was entitled to accept his clients’ account and to write the letter on that basis. Two questions immediately arise: first, is that what the letters actually did? As I have already mentioned, they appear to go beyond any factual account provided by the clients which account, on the face of matters, goes no further than advising that a copy of the 1990 Will exists. Secondly, given the serious nature of the allegation, namely that a solicitor was in some way involved in fraud and that the allegation was made on the basis of an inference drawn from a fact which did not of itself demonstrate that a signed will in terms of the 1990 copy was in existence at the time of the deceased’s death, can it really be said that, even if it was the client who set the ball rolling, so to speak, this complaint is totally without merit? When answering these questions, it also, I would suggest, has to be borne in mind that the threshold set for a complaint by the phrase “totally without merit” is, as previously discussed in, for instance, Law Society v SLCC, a low one (para 23). The applicants would argue that the approach of this court in that case has plainly influenced the determination in the present case but SLCC erred in looking to it for guidance. Whilst the complaint there concerned a solicitor’s letter, the context and its terms were different; the court was satisfied that the letter in question was a standard solicitor’s letter reporting a client’s concerns. They were that, as a matter of fact, the recipients of the letter had been walking through areas of land owned by the client without having any right to do so. In those circumstances the complaint was totally without merit and ought not to have been remitted to the LSS. Here, however, the only client concern that the solicitor could report was that a copy of the 1990 Will – not the original - was in existence. I consider that, in these circumstances, it is not difficult to conclude that the appeal has real prospects of success.
[13] I am mindful of it having been said in the case of Williams v SLTC 2010 CSIH 73 that leave to appeal from the determination of SLCC should only be granted if the appeal has a real prospect of success or there is some other compelling reason why it should be heard (para 7). That is a high test, higher than arguability. It bears some similarity to the second appeals test that applies to applications for leave to appeal to this court from the Upper Tribunal (see Tribunals Courts & Enforcement Act 2007(“TCEA”), section 13(6)A and Rule of Court 41.57(2)), a test which can be justified by the need to balance the rule of law against the public interest in finality and to recognise that in cases which arise in relation to the exercise of the Upper Tribunal’s jurisdiction, within the TCEA system an appellant will, before seeking to access the court, have been afforded both first and second tier appellate review and reconsideration of the decision under challenge by specialist judges. However, no second appeals test or test requiring a hurdle of real prospects of success or other compelling reason to be overcome, has been imposed in terms of section 21 of the 2007 Act. That makes sense. SLCC is not a court or tribunal. Their determinations are not made by judicial office holders and appeal to this court will be the first occasion on which any judicial decision is made in relation to the matter at issue. In these circumstances it is, I consider, only to be expected that the legislation is in terms which left it to the court to exercise its discretion as to whether or not in all the circumstances it ought to grant leave without having regard to any higher or more restricted test. Accordingly, with respect, I have to disagree with the statement in Williams to which I have referred. I have, accordingly, considered whether I require to refer this application to a larger court. However, in the event, since I am readily satisfied that this appeal has real prospects of success, as already discussed, and that there is a compelling reason for granting leave, there is no need to do so.
[14] The compelling reason which I am persuaded exists is the interests of the solicitors’ profession as a whole in the issue of the extent to which a solicitor may pray-in-aid his client’s instructions when making an allegation of such gravity as has been made in this case. They are concerned that LSS v SLCC is being misunderstood by SLCC and, as a result, allegations of misconduct/unprofessional conduct such as in the present case, are liable to be erroneously rejected as totally without merit. I accept that, in all these circumstances, there is a compelling reason for granting leave to appeal.
[15] I will, accordingly, pronounce an interlocutor granting leave to appeal and ordering grounds of appeal to be lodged within 7 days. The applicants’ motion for expenses, made at the end of today’s hearing not having been opposed, I will also make an award of expenses in their favour.