Complainers should be asked to put their money where their mouth is - Andrew Stevenson
Lest it be thought that the idea is unprecedented, let us look at South Australia. The general population of the state is about 40 per cent of ours. Its Law Society is about a third of the size of Scotland’s. The SLCC received 1146 complaints in 2021/22 whereas the South Australian Legal Profession Conduct Commissioner received 380, about a third of that figure.
However, the regulators of solicitors in South Australia clearly possess more understanding than their Scottish counterparts of why it is appropriate and fair to expect a refundable fee from complainants. The Legal Practitioners Act 1981, as amended, allows the Commissioner to fix and require the payment of fees. Unlike the unbalanced system that prevails under the SLCC, the fees in South Australia encompass complainants as well as lawyers.
Since November 2020, anyone wishing to complain about a lawyer in, for example, Adelaide must pay a sum of 110 Australian dollars, including goods and services tax of ten per cent. This total happens to equate to about £60 sterling. Importantly, the sum is refunded to the complainant in the event of the lawyer being found to have been at fault.
The 2022 Annual Report of the South Australian Commissioner explains that “The introduction of the fee to lodge a complaint was intended to ensure that a complainant is serious about making a complaint.”
The Commissioner may waive payment of the $110 where the complainant is on benefits or would struggle to pay. Prisoners, juveniles, seniors and those who have recently been in receipt of legal aid are exempted. This all means that poverty is not a barrier to access to a system of redress. The system is clearly not intended primarily to be a form of raising funds. In fact, in 2022, the fees were waived for most complaints in South Australia. In 2022, the first full year following introduction of the complaint fee, the sum of $12,200 was ingathered, excluding GST. That is around £7,000. If the SLCC did likewise the equivalent would be about £20,000. But the policy would also deter frivolous or opportunistic claims and free up the resources that they consume. Also, in accordance with the “polluter pays” principle, where a complaint fails the person who brought it contributes to the cost that he himself has created.
The South Australian system is eminently fair and sensible. Charging a fee of £60 or $110 is bound to deter some complaints that are spurious or vexatious, thereby freeing up the commission to deal more expeditiously with meritorious cases. The 2022 Report states:“It is reasonable to assume that the introduction of that fee has had some impact on the total number of complaints received.” That stands to reason.
In his 2022 Report the Commissioner considered that “a not insignificant amount of resources of my Office are applied to dealing with what are ultimately unproved or unmeritorious allegation about legal practitioners” and that this “obviously impacts on the time it takes to determine genuine and reasonable complaints and investigations”. It is in the public interest to ask complainers to put their money where their mouth is.
By sharp contrast, any complaint in Scotland, even one that is frivolous or malicious, will be to the inescapable detriment of the solicitor. This happens in two ways. Firstly, the SLCC budget is met entirely by the legal profession with no contribution whatsoever by the taxpayer. Secondly, there is the unremunerated time and energy that have to be devoted by the solicitor to answering a complaint. On the other hand, the complainant faces no financial hit whatsoever. Regardless of whether he is an opportunist or not he has literally nothing to lose.
South Australia is to be commended on applying common sense and fairness to their system of complaints against lawyers. Scotland should follow suit.
Andrew Stevenson is Secretary, Scottish Law Agents Society
Want to join the conversation? Please or to comment on this article.