Court ref: [2010] CSIH 79

This was a case in the Inner House of the Court of Session. It concerned a complaint to the Scottish Legal Complaints Commission about a letter written by a solicitor to the complainants. The letter claimed that they were going onto his client’s land in circumstances where the Land Reform (Scotland) Act 2003 did not apply and threatened legal proceedings. The complainants said that the allegations were untrue and that they had found the letter aggressive, intimidating, and threatening.

The Scottish Legal Complaints Commission had found that the complaint against the solicitor was ‘not totally without merit’ and had referred the complaint to the Law Society of Scotland for further investigation. The Law Society appealed against this decision as they considered that there was no merit in the complaint.

Lord Kingarth allowed the appeal (with Lord Reed’s agreement) and substituted a decision that the complaint was without merit. He said that the letter had been based on instructions from the client and there was no duty on the solicitor to investigate the allegations for himself. Bearing in mind the context of potential court proceedings, there had been no inappropriate threats in the letter and the language used had not been intemperate.

In a dissenting judgment, Lord Malcolm said he did not agree and thought that further investigation of the complaint by the Law Society was appropriate. He said that solicitors might not be able to avoid upsetting people to whom they write, but he did not think that the likely effect of the letter on the recipients was wholly irrelevant.