Commentary on Sections Section 36: Procedure for complaints
Section 36 provides for the detailed framework for the Solicitors Complaints Committee scheme to be determined by rules to be made by the Committee. It allows the Committee the flexibility to adapt its procedures if required.
Subsection (1) provides that the rules made by the Committee under this section will determine how complaints are to be made and how they are to be investigated, considered and determined by the Committee. Procedures for making rules, including requirements as to prior consultation, are set out in section 46.
Subsection (2) requires Committee rules to establish time limits for the making of complaints and allows for the possibility of extension in circumstances specified in the rules. Subsection (3) provides for the continuation of a complaint by persons specified in Committee rules where a complainant dies or becomes unable to act.
Subsection (4) lists areas in which the Committee may wish to make rules. This list is intended to be indicative, and does not limit the breadth of the Committee’s power to make rules in other areas or to require it to make rules in the areas specified. Complaints may be more appropriately dealt with by another person or body where this is considered necessary under subsection (4)(b) examples of which may be that the complaint raises issues of professional misconduct that may be more appropriately addressed by the disciplinary processes of the Law Society, or where the complaint raises issues that may be criminal in nature, and a referral to the PSNI may be appropriate. Subsections 4(e) and (f) set out the circumstances where costs and expenses can be awarded in relation to hearings of the Complaints Committee. It is intended that making a complaint itself should be free, but the Committee will have the power to award costs against the complainant where they have acted in so unreasonably that it would be appropriate to do so. This provision should not deter genuine complainants.
Subsection (5) provides further detail about the circumstances in which rules may provide for complaints to be summarily dismissed (one of the matters listed in subsection (5)).
Subsection (6) prevents the power to make Committee rules from being used to compel disclosure which could not be compelled in civil proceedings before the High Court.
Subsection (7) provides that where an award of costs has been made in favour of the Committee, any amount due shall be payable to the Law Society. Subsection (8) gives a rule making power to authorise the Committee to provide for awards of costs to bear interest at such rate as specified in or determined in accordance with the rules. Subsection (9) provides that awards of costs may be recoverable as debts.