Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 53

XA31/16

Lord Brodie

 

 

OPINION OF THE COURT

delivered by LORD BRODIE

IN THE APPLICATION FOR LEAVE TO APPEAL

by

EDWARD PRICE

Applicant;

against

A DECISION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION

Respondents:

Act:  Party

Alt:  Morag Ross;  Harper Macleod LLP

29 June 2016

[1]        This is an application for leave to appeal against a decision of the Scottish Legal Complaints Commission (“the commission”) in terms of section 21(2)(a), 21(3) and 21(4)(a) of the Legal Profession and Legal Aid (Scotland) Act 2007.  The applicant is Edward Price.  The application is opposed by the commission. 

[2]        The applicant made a complaint directed against Miller Hendry solicitors, which was received by the commission on 17 November 2015.  The commission held it to be a services complaint within the meaning of section 2(1)(a) of the 2007 Act.  It was not time barred.  However, the commission determined that the complaint was totally without merit and accordingly rejected it, as provided by section 2(4) of the 2007 Act.  It is that decision which the applicant seeks to appeal to the Court of Session. 

[3]        In order to understand the issues it is useful to set out the factual position as it was presented to the commission in terms of the applicant’s complaint and information received by the commission from Miller Hendry.  That factual position is narrated in the commission’s determination sent under cover of its letter of 17 March 2016.  I would refer in particular to paragraphs 2.8 to 2.14.  Insofar as relevant what appears there is consistent with item 2 of the Schedule to the application (“History of Access Lane Map”). 

[4]        The applicant is the owner of Ewenburn, a property on Gwydyr Road, Crieff.  He and his wife acquired the property in 2002 but his title is derived from a grant by the Earl of Ancaster in 1966.  Adjoining Ewenburn to the north and roughly coterminous with its east to west extent is another property, Greenways.  To the east of Greenways and adjoining it, is a third property, Ardlarach.  Within Ardlarach and running along its southern boundary is a lane terminating in a cul-de-sac located at the north eastern corner of Ewenburn and the south eastern corner of Greenways.  The layout of the properties and the lane is shown in a plan which is within item 2 of the Schedule to the application. 

[5]        It is possible to take vehicular and pedestrian access to Ewenburn and Greenways from Drummond Terrace Crieff by way of the lane (although a vehicle cannot be driven beyond the cul-de-sac and into Ewenburn).  The applicant maintains that he has a right to do so by virtue of his title.  He further maintains that he has acquired a servitude right of vehicular parking in the cul-de-sac by virtue of positive prescription or at least that it is strongly arguable that he has acquired such a right, in the event of the point being challenged.  In his complaint to the commission and in his application to this court, the applicant specifies the basis of his contentions in relation to rights and access and parking but, as I shall explain, I do not consider that it is relevant for present purposes whether he is right in his contentions or not. 

[6]        At the relevant time, which is towards the end of 2014 and the beginning of 2015, the proprietor of the Ardlarach was Ardvreck School.  The school agreed to sell Ardlarach, including the solum of the lane but retaining right of access over it, to the then tenant.  Miller Hendry acted for the school in the transaction. 

[7]        On learning of the proposed sale the applicant instructed solicitors and raised the question as to the extent of the rights of the applicant and the proprietors of Greenways over the lane.  The applicant’s position was, as I have indicated, that his title gave him a right of access and that a right of parking had been acquired by prescription.  In or about January 2015 it would appear that there were prospects of the matter being settled by the express grant of servitude by the school in favour of the applicant and the proprietors of Greenways.  However, whereas the school was prepared to grant a right of vehicular and pedestrian access by way of deed it was not prepared to include a servitude of parking.  It would appear from the material enclosed with the application that at that point negotiations as among the parties broke down.  I take the sale of Ardlarach to have been completed by a conveyance by the school to the purchaser without the issue of the extent of rights over the lane being resolved. 

[8]        Based on these factual circumstances the applicant made a complaint against Miller Hendry to the commission in the following terms: 

“(1)      Miller Hendry inappropriately advised their client, Ardvreck School to demand that the owners of Greenways and Ewenburn prepare Deeds of Servitude and be responsible for all the legal costs.  Yet Miller Hendry were well aware that Servitude Rights were well established, having advised the owners of Greenways in 2002 and 2004.  By their actions, Miller Hendry showed a complete lack of professional judgment, and indeed common sense for the sole objective of satisfying their client’s wishes which was to deny the owners of Ewenburn and Greenways the right to park in any part of the access lane.  

 

(2)        Miller Hendry failed to ensure that the Ardvreck School management made the purchaser of Ardlarach fully aware of the area effected by the burdens he would inherit as evidence by the letter from the purchaser to our solicitor 24 March 2015 in which the purchaser wrongly stated that we do not have any access rights over either his property or the access lane to the side of his property which remains in the ownership of the school.  By their actions , Miller Hendry were in breach of the Law Society of Scotland’s Rules of Conduct as set out in section 1.4.1 and 1.4.3. 

 

(3)        Miller Hendry failed to ensure that Ardvreck School management were fully aware of their own obligations in terms of the law relating to sections 10(1), 10(2) and 76 (2) of the Title Conditions (Scotland) Act 2003 which came into effect in 2004.” 

 

[9]        I would understand the reference to the Law Society of Scotland’s Rules of Conduct as being a reference to section B1.4 of the Law Society of Scotland’s Practice Rules 2011.  The relevant paragraphs of the rule are in the following terms: 

“1.4.1 You must act in the best interests of your clients subject to preserving your independence and complying with the law, these rules and the principles of good professional conduct.

 

1.4.3 You must at all times do, and be seen to do, your best for your client and must be fearless in defending your client's interests, regardless of the consequences to yourself (including, if necessary, incurring the displeasure of the bench). But you must also remember that your client's best interests require you to give honest advice however unwelcome that advice may be to the client and that your duty to your client is only one of several duties which you must strive to reconcile.” 

 

[10]      Put shortly, the applicant’s complaint is accordingly that Miller Hendry did not advise their client and intimate to the purchaser of Ardlarach in terms which coincided with the applicant’s understanding of the legal and factual position:  that being that he had a right of access over the lane without any need for it to be confirmed by an express grant and that his rights included a servitude of parking.  His references to the Title Conditions (Scotland) Act 2003 are to provisions upon which he would rely as supporting his position. 

[11]      When the commission receives a complaint in terms of section 2(1A)(a) of the 2007 Act it must first determine whether the complaint constitutes a conduct complaint or a services complaint.  Here the commission has determined that the complaint is a services complaint.  As a services complaint it must be by or on behalf of any of the persons identified in section 2(2)b of the Act.  For the applicant to be such a person he must be a “person who appears to the commission to have been directly affected by the suggested inadequate service”:  see section 2(2)(b)(i).  Although not addressed directly in the commission’s determination I shall assume for present purposes that the commission has considered the applicant to qualify under section 2(2)(b)(i).  The respondent therefore came under a duty to take what are referred to in section 2(4) of the 2007 Act as “preliminary steps” which are to determine whether the complaint is “frivolous, vexatious or totally without merit”.  If it determines that the complaint is any of these things, the commission must reject the complaint.  Here the commission has determined that the complaint is totally without merit and accordingly rejected it. 

[12]      The applicant wishes to appeal against that decision to this court in terms of section 21 of the 2007 Act.  Section 21 gives a right of appeal to persons including the applicant but only with the leave of the court, hence the present application.  The competent grounds of appeal are those set out in section 21(4) of the 2007 Act.  They are: 

(a) that the commission’s decision was based on an error of law; 

(b) that there has been procedural impropriety in the conduct of any hearing on the complaint; 

(c) that the commission has acted irrationality in the exercise of its discretion;  and

(d) that the commission’s decision was not supported by the facts found by the commission. 

[13]      In his written application the applicant founds on grounds (a), (c) and (d).  In paragraph 5.3 he also states that the classification of the complaint as a services complaint was not supported by what appears in paragraphs 2.7, 2.24 and 2.30 of the determination. 

[14]      The commission has lodged answers and a note of argument.  The answers take issue with various matters of incidental fact but also advance substantive points in that it is said that the commission correctly assessed the complaint as a services complaint and that the function of the commission was not to determine whether there existed a servitude right of parking but to determine whether the applicant’s complaint should be investigated. 

[15]      The applicant represented himself at the hearing on his application on 29 June 2016.  Miss Ross appeared for the commission.  The applicant made the following points.  He had tried to get a reasonable settlement of the access and parking issues but he had totally failed.  His only recourse therefore had been to file a complaint with the commission.  Its response had been perfunctory, a five minute conversation to agree the terms of the complaint after which the applicant heard nothing despite him sending an email until receipt of the determination.  He could not believe the terms of the determination.  It was extremely biased.  It contained misleading statements some of which were simply not true.  He drew particular attention to the sentence in paragraph 2.16 of the determination, relating to events in or about January 2015: 

“Eventually, as a gesture of goodwill, the School offered to pay the costs of the Deed of Servitude but because the Deed did not allow for parking, Mr Price did not sign the Deed and the School sold their property to their sitting tenant without an agreement in place.”

 

He found the performance of the commission as a public body (albeit one drawing funding from a levy of the profession) very unsatisfactory.  Such a body “should not tell lies”.  As for the conduct of Miller Hendry, this was yet another example of solicitors failing to apply sound professional judgement and common sense.  Having provided an account of recent difficulty he had had with the proprietor of Ardlarach over the lane, the applicant then went on to narrate contact he had had with the solicitors acting for the commission. 

[16]      In her reply Miss Ross began by confirming that there had been contact between the applicant and her instructing solicitors but explaining that the solicitors had required to emphasise that they could only discuss the present procedure rather than the underlying dispute.  She responded to the applicant’s submission focussing on paragraph 2.16 of the determination.  She accepted that her understanding was that the school had not offered to pay the applicant’s legal expenses in preparing a deed of servitude, rather it had not insisted in the applicant paying the school’s expenses (as might be thought to have been the expected course where the school was making an otherwise gratuitous grant in the applicant’s favour).  The sentence pointed to by the applicant was not untrue or indeed misleading. Miss Ross then submitted that, with all respect, the application proceeded on a number of misunderstandings on the part of the applicant.  Essentially there were three layers of dispute here which the applicant had confused:  first, the existence or otherwise of servitude rights in respect of the lane;  second, what it was reasonable to expect Miller Hendry to do when acting for the school;  and, third, what was to be expected of the commission when considering the applicant’s complaint.  What was the issue for this court was whether in deciding that the applicant’s complaint was totally without merit, the commission could be said to have erred in one of the ways set out in section 21 (4) of the 2007 Act.  In Miss Ross’s submission, that simply could not be said.  The application should be refused. 

[17]      It is not necessarily an answer to a complaint in terms of section 2 of the 2007 Act that the solicitor complained about never acted for the complainer.  Where the complaint is one of professional misconduct any person may complain and where the complaint is a services complaint any person who appears to have been directly affected may complain.  However, that the solicitor complained about never acted for the complainer but, rather, acted for another person or persons whose interests did not coincide with those of the complainer and may have conflicted with them (as is the case here), that sets the context.  A solicitor’s duties and professional obligations are primarily, albeit not exclusively, owed to his client.  As Lord Drummond Young explained in McSparran McCormick v Scottish Legal Complaints Commission 2016 SLT 510 at paragraph 48, the purpose of employing a solicitor is to obtain the benefit of legal advice and analysis and put the results of that analysis to other persons.  In doing so, while the solicitor will be expected to maintain his professional independence and perhaps to be critical of the position his client is inclined to adopt, where there are possibly conflicting other interests and, particularly where the other party involved has the benefit of his own legal advice, it is not the function of a solicitor to act as an arbiter or mediator either in relation to the relevant law or to the relevant facts.  His function is to act in the best interests of his client.  I would see all that as reflected in those parts of the Law Society’s Rules of Practice which are referred to by the applicant. 

[18]      The applicant criticises the commission for determining that his complaint was a services complaint.  Miss Ross pointed out that in terms of section 2 (1) (a), (1A) (a), and (2B) the commission must classify any complaint as a conduct complaint or a services complaint or both. A conduct complaint must relate to an individual practitioner. No individual had been identified here. There is simply no basis within the grounds set out at section 21(4) of the 2007 Act (or otherwise) for holding that the commission was not entitled to make the determination it did. 

[19]      I turn to the applicant’s contention that he should be granted leave to appeal against the commission’s decision to treat his complaint as totally without merit.  To succeed in an appeal, if granted leave, it would be for the applicant to show that the commission’s decision was based on an error of law, was irrational or was not supported by the facts.  At this stage, which is the stage of considering an application for leave, it is for this court to decide whether the applicant has a realistic prospect of success in his proposed appeal:  see Baird Matthews [2015] CSIH 68, Lord Drummond Young at paragraph 3.  I have no hesitation in concluding that this test is not met in the present case.  Once it is understood that it was no part of Miller Hendry’s duties to arbitrate on the strengths of the applicant’s claims to have rights of access over and parking on the lane, far less to advocate the strength of these claims to their clients and the solicitors acting for the purchaser of Ardlarach;  and that, similarly, it was no part of the function of the commission to assess the strength of the claims, the substance of the applicant’s proposed appeal falls away.  The applicant may be entirely correct in his assessment of the law as it applies to the facts of the case but if that is so the action to be taken in the light of that and in the light of the attitude of the other parties is entirely a matter for him and his own legal advisors.  Essentially that is the point made by the commission at paragraph 2.33 of its determination.  I am quite unable to detect any error of law or irrationality or error in fact on the part of the commission which vitiates its decision to reject the applicant’s complaint as totally without merit. 

[20]      The applicant accused the commission of bias.  That is a serious allegation.  Were such an allegation made to this court by counsel the court would expect a clear basis for the allegation to be set out.  Here there is simply no basis set out.  The applicant also accused the commission of making an untrue and indeed lying statement in paragraph 2.16 of its determination.  I would accept that the sentence in question might have been better framed in order to make clear that the school’s concession was only in relation to their expenses and not those of the applicant but equally I accept Miss Ross’s observation that subject to the ambiguity introduced by the use of the expression “the costs”, as opposed to “their costs” the sentence is not inaccurate.  What it is not is a lie.  Again, had counsel described such a sentence as a lie in the circumstances of this case, the court is likely to have been very critical.  

[21]      The application is refused.

[22]      Miss Ross moved for the commission’s expenses consequent on having to oppose the application, being the fees of solicitors and counsel.  When called on the applicant opposed the motion on the ground that he was not a lawyer, that he had been led to believe that his liability and potential liability was limited to court fees and that he was unable to pay.  In responding to that Miss Ross pointed to what appeared in the applicant’s written note of argument for the hearing:  

”I want the very substantial expenses incurred in labour and material to be recovered from Miller Hendry and the SLCC.  An additional provision is also necessary to fund legal action which may be required to prevent [the proprietor of Ardlarach] from implementing the plan described in his letter of 24^th March 2015”.

 

[23]      With some hesitation I make an award of no expenses due to or by.  I am aware that in so doing I am throwing quite unnecessarily incurred expense amounting to a sum in four figures on to a public body which insofar as not publically funded is funded by the profession whose conduct its function is to investigate.  The usual rule is that in appeals, as is generally the case in this court, expenses follow success, in other words the unsuccessful party pays, unless some circumstance strongly points in another direction.  Here I consider that Miss Ross was justified in being sceptical about the applicant’s assertion that he had not been aware that he was at financial risk beyond court fees, although even if true that is not a relevant consideration; those who litigate are expected to know the law.  That applies to party litigants as well as to counsel.  The applicant was articulate and well able to express himself both orally and in writing.  He appeared to be intelligent.  He referred to his high level business experience.  As Miss Ross pointed out he was intent on seeking financial recovery from other parties.  He repeatedly stressed the wisdom of avoiding going to court in that this is likely to benefit lawyers rather than their clients.  And yet it is clear that in this matter he has directed his energies and resources in an entirely misguided manner and in doing so has involved others in trouble and expense which includes the commission’s legal expenses in this appeal.  None of this has advanced resolution of what may be a real and difficult problem over parking in the cul-de-sac and it never had any prospect of doing so.  The usual course for the court to follow would be to mitigate the commission’s expenses by an award in its favour, so requiring the applicant to bear, at least in part, the cost which he has caused so unnecessarily to be incurred.  However, I have been unwilling to contribute to the applicant’s self‑inflicted harm and have considered my discretion is wide enough at this preliminary stage in the appeal in relation to a matter originating in a complaint against members of the legal profession to depart from the usual rule.