Christine O’Neill, solicitor advocate, acted for the Scottish Legal Complaints Commission (SLCC) in defending an appeal to the Inner House of the Court of Session by the Law Society of Scotland. The Law Society was also represented by solicitor advocates. The case involved arguments about an unusual and difficult legal question: when is a regulator entitled to alter decisions that it has taken in live cases where its previous course of action has been found by the courts to have been wrong?
The background to the case was a decision by the Court of Session in an earlier case. The court had decided that when the SLCC was carrying its role in managing complaints about lawyers it had to decide whether a complaint was a complaint about service or about conduct. The legislation establishing the SLCC did not allow a complaint to be about both service and conduct – or in the language of the SLCC ‘hybrid’. That left SLCC and the Law Society with a dilemma – what was to happen to other complaints that were still in the system but had been wrongly categorised as hybrid? The SLCC took the view that it should correct the mistake and began to ‘re-categorise’ those complaints. The Law Society argued that this was outside the SLCC’s powers and that existing cases should simply be allowed to make their way through the system – with a single complaint being assessed for conduct issues by the professional body and service issues by the SLCC.
The court – comprising Lady Paton, Lord Glennie and Lord Turnbull – agreed that live cases couldn’t follow ‘two tracks’ and had to be dealt with as either a service or a conduct matter. The judges were divided though on the appropriate mechanism for achieving that. Lady Paton was of the view that the SLCC wasn’t entitled ‘at its own hand’ to embark on a re-categorisation exercise but could do so if the Court made an order requiring that. Lords Glennie and Turnbull were prepared to imply into the legislation governing the SLCC a power to re-categorise in the very specific circumstances of this case.
This is a significant case about the powers and duties of statutory bodies and how they should respond when the courts have found an earlier course of conduct to have gone wrong. What can then be done will depend crucially on the statutory framework under which they operate.