Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Legal Profession and Legal Aid (Scotland) Act 2007

Type Act of the Scottish Parliament

Publication 2007-01-19

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — The Scottish Legal Complaints Commission

Establishment

The Scottish Legal Complaints Commission

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(1) There is established a body to be known as the Scottish Legal Complaints Commission (referred to in this Act as “the Commission”).

(2) Schedule 1 makes further provision about the status, constitution, proceedings etc. of the Commission.

Conduct or services complaints against practitioners

Receipt of complaints: preliminary steps

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(1) This section applies where the Commission receives a complaint by or on behalf of any of the persons mentioned in subsection (2)—

(a) suggesting—

(i) professional misconduct or unsatisfactory professional conduct by a practitioner other than a firm of solicitors or an incorporated practice;

(ii) that a conveyancing practitioner or an executry practitioner has been convicted of a criminal offence rendering the practitioner no longer a fit and proper person to provide conveyancing services as a conveyancing practitioner or, as the case may be, executry services as an executry practitioner,

(a complaint suggesting any such matter being referred to in this Part as a “conduct complaint”);

(b) suggesting that professional services provided by a practitioner in connection with any matter in which the practitioner has been instructed by a client were inadequate (referred to in this Part as a “services complaint”),

...

(1A) The Commission must, subject to subsection (3) and sections 3 and 4 and any provision in rules made under section 32(1) as to eligibility for making complaints—

(a) determine whether the complaint constitutes—

(i) a conduct complaint,

(ii) a services complaint, and then

(b) take the preliminary steps mentioned in subsection (4).

(2) The persons are—

(a) as respects a conduct complaint, any person;

(b) as respects a services complaint—

(i) any person who appears to the Commission to have been directly affected by the suggested inadequate professional services;

(ii) the Lord Advocate;

(iii) the Advocate General for Scotland;

(iv) any judge (including a sheriff);

(v) the Auditor of the Court of Session;

(va) the auditor of the Sheriff Appeal Court,

(vi) the Auditor of any sheriff court;

(vii) the Scottish Legal Aid Board;

(viii) any relevant professional organisation.

(2A) A determination by the Commission under subsection (1A)(a) must include a determination of whether (and if so to what extent) the complaint constitutes separate complaints falling within more than one of the categories and if so which of the categories.

(2B) Where, for the purposes of subsection (1A)(a), it appears to the Commission that the complaint may constitute both—

(a) a conduct complaint, and

(b) a separate services complaint,

it must consult, co-operate and liaise with the relevant professional organisation and have regard to any views expressed by the organisation on the matter before making a determination under subsection (1A)(a) as respects the complaint.

(2C) A relevant professional organisation must co-operate and liaise with the Commission in relation to subsection (2B).

(3) The Commission is not to take the preliminary steps mentioned in subsection (4), and is not to take any further action under any other provision of this Part, in relation to any element of a conduct complaint which is about a practitioner acting in a judicial capacity in a court or tribunal specified by order by the Scottish Ministers.

(4) The preliminary steps are—

(a) to determine whether or not the complaint is frivolous, vexatious or totally without merit;

(b) where the Commission determines that the complaint is any or all of these things, to—

(i) reject the complaint;

(ii) give notice in writing to the complainer and the practitioner that it has rejected the complaint as frivolous, vexatious or totally without merit (or two or all of these things).

Existence of specified regulatory scheme

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(1) Where any element of a complaint referred to in section 2(1) is capable of being dealt with under a specified regulatory scheme, the Commission is prevented from dealing with the element but only to the extent that the element is capable of being dealt with under the specified regulatory scheme.

(2) Where the circumstances referred to in subsection (1) apply, the Commission must give notice in writing to that effect to—

(a) the complainer and the practitioner;

(b) such other persons as may be specified by the Scottish Ministers by order.

(3) Notice under subsection (2) must specify under which specified regulatory scheme the Commission considers the element is capable of being dealt with.

(4) Where the circumstances referred to in subsection (1) apply, notice under subsection (2) must in addition specify that the fact that the Commission is prevented by subsection (1) from dealing with the complaint to the extent that the complaint is capable of being dealt with under the specified regulatory scheme does not prevent the Commission taking the preliminary steps referred to in section 2(4) and dealing with the complaint under any provision of this Part to the extent that it is able.

(5) In this section “specified regulatory scheme” means a scheme specified as such by the Scottish Ministers by order.

Complaint not made timeously or made prematurely

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(1) Where a complaint referred to in section 2(1) is not made timeously, the Commission is not to take the preliminary steps referred to in section 2(4) in relation to it, and is not to take any further action under any other provision of this Part (except this section), in relation to it.

(2) Where a complaint referred to in section 2(1) is made prematurely, the Commission need not

(a) make the determination referred to in section 2(1A)(a) in relation to it;

(b) take the preliminary steps referred to in section 2(4) in relation to it, and

...

(3) For the purposes of subsection (1) or section 9A(3), a complaint is not made timeously where—

(a) rules made under section 32(1) fix time limits for the making of complaints;

(b) the complaint is made after the expiry of the time limit applicable to it;

(4) For the purposes of subsection (2) or section 9A(2), a complaint is made prematurely where—

(a) the complainer has not previously communicated the substance of it to the practitioner, the practitioner's firm or, as the case may be, where the practitioner is an employee of another practitioner that other practitioner (referred to in this Part as the “employing practitioner”) and given the practitioner, the firm or the employing practitioner what the Commission considers is a reasonable opportunity to deal with it;

(b) rules made under section 32(1) either—

(i) do not provide for circumstances in which the Commission will take the steps and further action referred to in that subsection; or

(ii) do provide for such circumstances but none is applicable in relation to the complaint.

(5) Where the circumstances referred to in subsection (1) or (2) apply, the Commission must give notice in writing to the complainer and practitioner to that effect.

(6) Where the circumstances referred to in subsection (2) apply, notice under subsection (5) must specify whether or not the Commission is proceeding to take the preliminary steps referred to in section 2(4).

Determining nature of complaint

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Complaint determined to be conduct complaint

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(1) This section applies where, or to the extent that, the Commission—

(a) determines under section 2(1A)(a) that a complaint is a conduct complaint, and

(b) proceeds to determine under section 2(4) whether the complaint is frivolous, vexatious or totally without merit and determines that it is none of these things.

(2) The Commission must—

(a) remit the complaint to the relevant professional organisation to deal with (and give to the organisation any material which accompanies the conduct complaint);

(b) give notice in writing to the complainer and the practitioner by sending to each of them a copy of the determination under section 2(1A)(a) and specifying—

(i) the reasons for the determination;

(ii) that the conduct complaint is being remitted under this section for investigation and determination by the relevant professional organisation;

(iii) the relevant professional organisation to which it is being remitted;

(iv) that the relevant professional organisation is under a duty under this Act to deal with the conduct complaint.

Services complaint: notice

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(1) This section applies where, or to the extent that, the Commission—

(a) determines under section 2(1A)(a) that a complaint is a services complaint, and

(b) proceeds to determine under section 2(4) whether the complaint is frivolous, vexatious or totally without merit and determines that it is none of these things.

(2) The Commission must give notice in writing to the complainer and the practitioner by sending to each of them a copy of the determination under section 2(1A)(a) and specifying the reasons for the determination.

Services complaint: local resolution or mediation

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(1) This section applies where the Commission—

(a) determines under section 2(1A)(a) that a complaint by or on behalf of a person referred to in section 2(2)(b)(i) is a services complaint, and

(b) proceeds to determine under section 2(4) whether the complaint is frivolous, vexatious or totally without merit and determines that it is none of these things.

(2) Where the Commission considers that either—

(a) the complaint has been made prematurely (within the meaning of section 4(4)); or

(b) the practitioner, the practitioner's firm or the employing practitioner has made no attempt, or an insufficient attempt, to achieve a negotiated settlement with the complainer,

the Commission may, by notice in writing to the complainer and the practitioner refer the complaint back to the practitioner, the practitioner's firm or, as the case may be, the employing practitioner requesting that the practitioner, the firm or the employing practitioner attempt to achieve such a settlement.

(3) Where the Commission refers a complaint back to the practitioner, the practitioner's firm or the employing practitioner under subsection (2), it may, by notice in writing, require the practitioner, the firm or the employing practitioner to give, before the end of such period being not less than 21 days as the notice specifies, an account and explanation of the steps which the practitioner, firm or employing practitioner has taken to attempt to achieve a negotiated settlement.

(4) Where the Commission considers it appropriate to do so, it may, by notice in writing to the complainer and the practitioner, offer to mediate in relation to the complaint.

(5) The Commission may enter into mediation in relation to a complaint only if both the complainer and the practitioner accept the offer made under subsection (4).

(6) The Commission must discontinue mediation in relation to a complaint if either the complainer or the practitioner withdraws consent to the mediation and may do so in any other circumstances; and, if mediation is discontinued, the Commission must give notice in writing to the complainer and the practitioner of its decision.

Services complaint: Commission’s duty to investigate and determine

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(1) Where—

(a) the Commission does not refer a services complaint back to the practitioner, the practitioner's firm or the employing practitioner under section 8(2) (because it considers that the practitioner, firm or employing practitioner has made a sufficient attempt to achieve a negotiated settlement);

(b) the Commission refers a services complaint back to the practitioner, the practitioner's firm or the employing practitioner under that section but—

(i) no attempt to achieve a negotiated settlement takes place;

(ii) such an attempt takes place but is discontinued or a negotiated settlement is not accepted by both the practitioner and the complainer;

(i) does not take place;

(ii) takes place but is discontinued or the outcome of the mediation is not accepted by both the complainer and the practitioner;

(d) the Commission determines under section 2(1A)(a) that a complaint by or on behalf of any person referred to in sub-paragraphs (ii) to (viii) of section 2(2)(b) is a services complaint,

the Commission must, subject to this section and section 15(2) and (5), investigate the complaint and after giving the complainer and the practitioner an opportunity to make representations, subject to subsections (2) to (4), determine it by reference to what the Commission considers is fair and reasonable in the circumstances.

(1A) The Commission may decide—

(a) to discontinue the investigation of a services complaint;

(b) to reinstate the investigation of a discontinued services complaint.

(1B) Where the Commission discontinues or reinstates the investigation of a services complaint it must give notice in writing to the complainer and the practitioner and specify the reasons for the decision.

(2) Where the complainer is a person referred to in section 2(2)(b)(i) the Commission must, subject to subsection (3), propose to the practitioner and the complainer a settlement as respects the complaint which it considers is fair and reasonable in the circumstances.

(3) Where the practitioner was, at the time the services were provided, an employee of an employing practitioner, a proposal under subsection (2) to the practitioner and the complainer must also be made to the employing practitioner.

(4) Where the practitioner and the complainer, and where subsection (3) applies the employing practitioner, accept a settlement proposed by the Commission under subsection (2) as respects the complaint, the Commission is not to determine the complaint under subsection (1).

Commission upholds services complaint

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(1) Where the Commission makes a determination under section 9(1) upholding a services complaint, it may take such of the steps mentioned in subsection (2) as it considers fair and reasonable in the circumstances.

(2) The steps are, subject to subsection (3)—

(a) to determine that the amount of the fees and outlays to which the practitioner is entitled for the services provided to the client and to which the complaint relates, is to be—

(i) nil; or

(ii) such amount as the Commission may specify in the determination,

and to direct the practitioner to comply or secure compliance with such of the requirements set out in subsection (5) as appear to the Commission to be necessary to give effect to the determination;

(b) to direct the practitioner to secure the rectification at the practitioner's own expense of any such error, omission or other deficiency arising in connection with the services as the Commission may specify;

(c) to direct the practitioner to take, at the practitioner's own expense, such other action in the interests of the complainer as the Commission may specify;

(d) where the Commission considers that the complainer has been directly affected by the inadequate professional services, to direct the practitioner to pay compensation of such amount, not exceeding £20,000, as the Commission may specify to the complainer for loss, inconvenience or distress resulting from the inadequate professional services;

(e) where the Commission considers that the practitioner may not have sufficient competence in relation to any aspect of the law or legal practice, to report the matter to the relevant professional organisation.

(3) Where the practitioner was, at the time when the services were provided, an employee (referred to in this section as an “employee practitioner”) of an employing practitioner—

(a) a direction under subsection (2)(a), (b) or (c) must be to the employing practitioner instead of the employee practitioner;

(b) a direction under subsection (2)(d)—

(i) may be to and direct either the employing practitioner or, if the Commission considers it appropriate, the employee practitioner to pay all of the compensation directed to be paid under that subsection in relation to the complaint concerned;

(ii) may be to and direct the employee practitioner to pay such part of the total amount of compensation directed to be paid under that subsection in relation to the complaint concerned as the Commission considers appropriate and if it does so, must be to and direct the employing practitioner to pay the remainder of the total amount;

(4) The Commission must, in considering what steps to take under subsection (2), take into account any—

(a) prior direction by it under subsection (2)(d) that the employee practitioner concerned or, where subsection (3) applies, the employing practitioner, pay to the complainer an amount by way of compensation;

(b) award of damages by the court to the complainer;

(c) other compensation ordered (whether by determination, direction or otherwise) by a tribunal or other professional body to be paid to the complainer,

in relation to the subject matter of the complaint.

(5) The requirements referred to in subsection (2)(a) are to—

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