X LLP AND OTHERS, APPLICATION FOR LEAVE TO APPEAL BY AGAINST SCOTTISH LEGAL COMPLAINTS COMMISSION [2017] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> X LLP AND OTHERS, APPLICATION FOR LEAVE TO APPEAL BY AGAINST SCOTTISH LEGAL COMPLAINTS COMMISSION [2017] ScotCS CSIH_73 (19 October 2017) URL: http://www.bailii.org/scot/cases/ScotCS/2017/[2017]_CSIH_73.html Cite as: [2017] ScotCS CSIH_73

[1] In this case the applicants, a firm of solicitors and individuals within that firm, seek

leave to appeal against the decision by the Scottish Legal Complaints Commission to admit a

number of complaints to further investigation. The Commission rejected some complaints

as being frivolous, vexatious and totally without merit, and allowed others to proceed not

having found that they fell into that category. The application for leave to appeal does not

cover all of the complaints which the Commission have allowed to proceed; but it was

explained by Ms Crawford on behalf of the applicants that those which are not now

challenged raised different types of issues from those which are the subject of this proposed

[2] The exercise carried out by the Commission is a gatekeeping or sifting exercise.

Having categorised the complaints into service complaints or conduct complaints (and in

the present case they were categorised as service complaints), the Commission has to decide

in respect of each complaint whether it is frivolous, vexatious or totally without merit; and if

it decides the complaint is any or all of these things, it must reject the complaint and notify

the relevant parties. That is a high test to be applied or, to put it another way, is a low

threshold to be crossed. It is only if the complaint is frivolous, vexatious or totally without

merit that the case will not be allowed to proceed; and that is a test which the Commission

has purported to apply in its very lengthy decision in the present case.

[3] An appeal to this court lies on an error of law made by the Commission or if it can be

said that the Commission has acted irrationally in the exercise of its discretion. Those, I

think, are the only two heads relied upon and they are the only two heads relevant to a case

where the Commission has not yet found any facts to be established. That is a high test for

the substantive appeal. It is not dissimilar to that which applies in the context of judicial

review. One has to show that the Commission did not simply get it wrong, but that it got it

wrong because it approached the matter in the wrong way as a matter of law or got it so

wrong that its decision can be categorised as irrational. So if a substantive appeal were to be

allowed, that would be a high test which would have to be overcome.

[4] The question on leave to appeal is a different one. It is whether the appeal would

have a realistic prospect of meeting that high test, or whether there is an arguable case. I do

not, for my part, think there is much difference if anything between these different ways of

expressing it. If it is said that one is lower than the other, I am prepared to accept the lower

test. But it is a low test. The important thing is to note is that it is a low test of arguability

with respect to the ability to meet the high test which would be applied on the substantive

appeal if leave to appeal were granted. In other words, the question is: is it arguable, or is

there a realistic prospect of persuading a court, that the Commission went so wrong that its

error must be categorised as an error of law or that it exercised its discretion irrationally.

[5] The Commission decision in the present case is very fully reasoned and runs to some

61 pages, or 60 if I ignore the Appendix. It is longer than might be thought necessary on a

gatekeeping exercise but, if that is a fault, it could be said to be a fault in the right direction.

The decision deals with each complaint individually and over a number of paragraphs, and

considers whether the complaint is frivolous, vexatious or totally without merit or whether

it should proceed. The Commission did not simply accept the case advanced by the

complainers, Mr and Mrs S. On a number of issues it rejected their case and held it to be

[6] The proposed appeal before this court makes criticism of the Commission’s

reasoning on those complaints which are the subject matter of this application. It is said,

putting it compendiously – and I do not mean to do an injustice to the detailed Note of

Argument and submissions put forward on behalf of the applicants – that on some matters

there was insufficient investigation by the Commission to enable it to ascertain whether

there was any sound basis for the complaint. It is said too that on some matters the

Commission did not identify with sufficient precision what the complaint was before

deciding that it merited further investigation. And there is a criticism, which perhaps

overlaps with that, of a lack of specification in some of the complaints, which was not

clarified or resolved by the Commission before holding that the complaint should be

[7] But the nature and extent of the investigation to be carried out by the Commission,

and how they go about it, is pre-eminently a matter for the Commission itself. That is made

clear in the decision of the Inner House in The Law Society of Scotland v Scottish Legal

[8] Matters of specification, so it seems to me, can be dealt with at the second stage once

the complaint is being investigated, and that will also be the time at which the more detailed

[9] In terms of the gatekeeping exercise, I see no basis for saying that the Commission

has erred in law by failing to go further in its inquiries or its consideration of the matter; or

that its decision on any of the individual issues can be categorised as irrational. I see no

arguable case or realistic prospect of the court being persuaded of that on a substantive

[10] For those reasons, I refuse leave to appeal in this case.

Scottish Court of Session Decisions