PETITION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION AGAINST DONALD RODERICK MURRAY AND ANOTHER [2022] ScotCS CSIH_46 (11 October 2022)

PETITION OF THE SCOTTISH LEGAL COMPLAINTS COMMISSION AGAINST DONALD RODERICK MURRAY AND ANOTHER [2022] ScotCS CSIH_46 (11 October 2022)

The Legal Profession and Legal Aid (Scotland) Act 2007 does not override legal professional privilege by necessary implication; privilege may only be set aside by express statutory provision or necessary implication, and neither is present. The client is entitled to assert privilege, and solicitors may not disclose privileged communications or documents to the Commission in the absence of waiver or statutory override.

Citation
[2022] ScotCS CSIH_46
Parties
Petitioner: The Scottish Legal Complaints Commission; Respondent: Donald Roderick Murray; Respondent: James Anthony McCusker; Intervener: The Faculty of Advocates; Intervener: Law Society of Scotland
Jurisdiction
Scotland
Judgment Date
11 October 2022
Procedural Posture
Petition / Opinion of the Court on Statutory Interpretation
Outcome
Petition refused
Legal Topics
Legal Professional Privilege, Statutory Interpretation, Confidentiality, Waiver of Privilege, Complaints Against Legal Practitioners
Legal Profession Regulation Administrative Law Legal Professional Privilege Statutory Interpretation Confidentiality Waiver of Privilege Complaints Against Legal Practitioners

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Parties

The Scottish Legal Complaints Commission

Petitioner

Donald Roderick Murray

Respondent

James Anthony McCusker

Respondent

The Faculty of Advocates

Intervener

Law Society of Scotland

Intervener

Procedural Posture

Petition / Opinion of the Court on Statutory Interpretation

Legal Issues

  1. 1 Whether the Scottish Legal Complaints Commission can compel production of documents covered by legal professional privilege under section 17 and schedule 2 of the Legal Profession and Legal Aid (Scotland) Act 2007
  2. 2 Whether legal professional privilege is overridden by necessary implication in the 2007 Act in the context of third party complaints

Ratio Decidendi

The Legal Profession and Legal Aid (Scotland) Act 2007 does not override legal professional privilege by necessary implication; privilege may only be set aside by express statutory provision or necessary implication, and neither is present. The client is entitled to assert privilege, and solicitors may not disclose privileged communications or documents to the Commission in the absence of waiver or statutory override.

Court Disposition

Petition refused

Orders

  • Case put out By Order for further procedure regarding any necessary appointment of a commissioner or further proceedings.