CRO: time limit for making complaints

by Mary McGowan

Explanation of the Society's policy on time limits and when complaints will be accepted though made later

The Journal, March 2006, page 38

A number of solicitors have raised questions about the important recent change to the Society’s policy on accepting complaints for investigation. I thought that this would be a good opportunity to clarify the Society’s position.

The Solicitors (Scotland) Act 1980, as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, does not set down any time limits on accepting complaints for investigation. However, the Council of the Law Society will, from time to time, issue guidelines on this matter.

After a review in 2001, it was agreed that the same time limit should apply for both complaints alleging professional misconduct and those alleging inadequate professional service. This limit was set at two years and therefore, in practice, the Society will consider any complaint made either within two years of the business being concluded or within two years from the date the complainer first became aware of the concerns giving rise to the complaint. The time limit may be relaxed in exceptional circumstances.

The Society’s guiding principle remains that it is best to investigate complaints as soon as possible after the event, as memories are fresh and paperwork is intact and available. This will give the best chance of a fair and thorough investigation and will enable the Society to deal with the complaint within a reasonable length of time.

Following a recent Scottish Solicitors’ Discipline Tribunal case, the Society has further refined its policy to make it clear that in making complaints outwith the two year time limit, complainers will need to demonstrate that they took all reasonable steps to find out whether they could make a complaint. This brings into play questions of reasonableness and the exercise of due diligence.

For example, if the Society receives a complaint alleging inadequate professional service about a conveyancing transaction that took place 10 years ago, the complainer will need to give details of how they became aware of the grounds for the complaint. If it is something the complainer should reasonably have known about or, acting reasonably, have taken steps to find out, the complaint will not be investigated.

Please note that this does not affect the time limits for endowment complaints. The time limit, in line with the Financial Services Authority, remains three years from the date of the complainer receiving the second letter from the insurance company warning of a potential shortfall.