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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Incorporated Society of Law-Agents in Scotland v. Clark [1886] ScotLR 24_151_1 (3 December 1886)
URL: http://www.bailii.org/scot/cases/ScotCS/1886/24SLR0151_1.html
Cite as: [1886] ScotLR 24_151_1, [1886] SLR 24_151_1
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SCOTTISH_SLR_Court_of_Session
Page: 151↓
Court of Session Inner House First Division.
v.
Facts:
A person practising as a law-agent, who had been convicted of an offence under the Criminal Law Amendment Act, sec. 11, and been, on the petition of the S. S. C. Society, struck off the roll of that body, was proceeded against by petition in name of the Incorporated Society of Law-Agents to have his name struck off the roll. Circumstances in which the Court refused to direct the Keeper of the Roll of Law-Agents to strike the name off the roll.
Observations on the nature of the jurisdiction of the Court in such proceedings.
This was a petition by the Incorporated Society of Law-Agents in Scotland praying the Court to direct the Keeper of the Roll of Law-Agents to strike the name of the respondent off the roll. The circumstances under which the application was made are sufficiently set out, ante,
Page: 152↓
vol. xxiii. p. 829, when the Court dealt with an application by the Society of Solicitors in the Supreme Courts in Scotland against the same respondent. The petitioners averred that they were incorporated by royal charter; that by the Law-Agents (Scotland) Act 1873, sec. 14, sub-sec. 1, it is provided that the name of any person may be struck off the rolls “in obedience to the order of the Court upon application duly made, and after hearing parties, or giving them an opportunity of being heard;” that the statements contained in the petition of the S.S.C. Society in the proceedings above referred to were true in point of fact, and that the Court in that application granted the prayer of the petition; that the respondent's name still stood on the roll of law-agents entitled to practise in the Court of Session, made up and kept under the provisions of the Law-Agents Act; and that in the circumstances the respondent was not a fit person to be allowed to continue to practise as a law-agent.
Answers were lodged for the respondent. He denied that he was a member of the Incorporated Society of Law-Agents in Scotland, or that it had any jurisdiction over him or interest in the present matter, or that the Society had authorised the petition. He alleged that the re-opening of the matter by the present proceedings was unjust and oppressive, and that even assuming his guilt, which, however, he denied, he had already been sufficiently punished; that the Society had no title or interest to present the application; and that in any event punishment by expulsion as craved was excessive.
A memorial was presented, signed by 166 Writers to the Signet, Solicitors before the Supreme Courts, and law-agents, expressing their opinion that the respondent had been already sufficiently punished, and that his name should not be struck off the roll of law-agents.
Argued for the petitioners—The offence of which the respondent had been found guilty warranted the present application, and sec. 14 of the Law-Agents (Scotland) Act 1873 specified the procedure to be followed before the name of a member was struck off the roll. The procedure had been regular, and the prayer of the petition should be granted— Solicitors of Elgin v. Shepherd, February 16, 1881, 18 S.L.R. 303.
Replied for respondent—It was not desired to raise any technical points on the question of title, as the respondent desired to have the matter determined on its merits. The membership of the Society was 500, of whom only 17 were resident in Edinburgh, while of these 8 had signed the memorial for the respondent. The respondent had already, in any view, been sufficiently punished.
At advising—
With regard to the merits of this application, and the statements made in answer, the duty of the Court is undoubtedly a delicate one. We have to consider, among other things, what effect ought to be given to a statement which has been put into process signed by 166 gentlemen known to the Court as practitioners.
In some cases in a certain class of offences I do not think the Court would be inclined to listen to any such statement, because there are offences of such a description as would completely disqualify the person who committed them from acting in the profession of a law-agent in future, and no concurrence of opinion or sympathy with the party complained of could be allowed to interfere with the duty of the Court in putting an end to the connection between the Court, so far as concerns the right to practise before it, and the person so offending.
But the offence of which the respondent here was convicted is of a peculiar kind, and seeing that so many gentlemen who are practising in this Court, or at least following the profession of law-agent within this district of country, are desirous that the punishment already inflicted upon the respondent should be held as sufficient, and imply, although they do not expressly state, that they would be willing to associate with him in future as a professional brother, the Court has come to be of opinion that in the circumstances they will not strike the respondent's name off the roll, and further that they will not make any order in the matter of expenses.
Petition refused.
Counsel for Petitioners— Guthrie. Agents— Carment, Wedderburn, &Watson, W.S.
Counsel for Respondent—Lord Adv. Macdonald, Q.C.— Rhind— Hay. Agent— Party.