Scottish Court of Session Decisions

The Small Debt Act of 1837 (1 Vict. c. 41), sec. 14, provides—“That no procurators, solicitors, nor any persons practising the law shall be allowed to appear or plead for any party without leave of the court upon special cause shown, and such leave, and the cause thereof, shall in all cases be entered in the book of causes kept by the sheriff-clerk.”… Section 15 provides—“That any defender who has been duly cited, failing to appear personally, or by one of his family, or by such person as the sheriff shall allow, such person not being an officer of court, shall be held confessed, and the other party shall obtain decree against him; and in like manner, if the pursuer or prosecutor shall fail to appear personally, or by one of his family or by such person as the sheriff shall allow, such person not being an officer of court, the defender shall obtain decree of absolvitor unless in either case a sufficient excuse for delay shall be stated, on which account, or on account of the absence of witnesses, or any other good reason, it shall at all times be competent for the sheriff to adjourn any case to the next or any other court-day, and to ordain the parties and witnesses then to attend.”

The Law Agents Act of 1873 (36 and 37 Vict, c. 63), provides by sec. 2—“From and after the passing of this Act no person shall be admitted as a law agent in Scotland except in accordance with the provisions of this Act. Every enrolled law agent shall be deemed to be admitted, and, subject to the provisions of this Act with respect to stamp duty and subscribing the roll of law agents appointed to be kept for the Court of Session, and the several Sheriff Courts respectively, shall be entitled to practise in any court of law in Scotland.” Section 13 provides—“A roll of agents practising in any Sheriff Court shall be kept by the sheriff-clerk in such form as the Lord President of the Court of Session may direct, and every enrolled law agent who has paid the stamp duty exigible by law on admission to practise as an agent before a Sheriff Court, shall be entitled to subscribe the said roll, and the sheriff-clerk shall be paid a fee of five shillings for such subscription, and every agent shall, in subscribing the said roll, deliver to the sheriff-clerk a note specifying his place of business, and shall deliver a similar note so often as he shall change the same.” Section 16 provides—“From and after the 1st day of February 1874 no person shall be allowed to practise as an agent in the Court of Session or any sheriff court until he shall have subscribed the roll of agents practising before such court, or after his name shall have been struck off such roll, unless the same shall have been subsequently restored thereto.”

James Milne, enrolled law agent, Fraserburgh, Aberdeenshire, presented this petition in the Sheriff Court at Peterhead, to have James Leslie, writer, Fraserburgh, interdicted from “practising as a law agent for or on behalf of any litigant or litigants, in any of the courts to be held at Fraserburgh or elsewhere within the city or county of Aberdeen, by the Sheriff of Aberdeen, Kincardine, and Banff, or his Substitutes, until such time as he shall have legally qualified himself so to do, and to grant interim interdict.”

The pursuer was a law agent duly qualified and enrolled in pursuance of the provisions of the Law Agents Act of 1873. He had subscribed as such the roll of law agents kept for the county of Aberdeen in terms of the Act, and he practised as an agent in the Sheriff Court of that county. The defender was a notary-public, and practised as such in Fraserburgh. The pursuer averred that the defender had never been legally admitted as a law agent in any court of law in Scotland, and was not qualified to act in that capacity; that he had never been enrolled as an agent pursuant to the provisions of the Act of 1873, nor was he entitled to be so enrolled. He further averred that the defender had unwarrantably, illegally, and publicly assumed the name of a solicitor, or at least usurped the functions of a law agent in or in connection with the Sheriff Courts of the county of Aberdeen held at Fraserburgh by the Sheriff or his Substitutes, and had been in the habit of conducting cases therein as an agent for or on behalf of litigants, whereby the pursuer had sustained, and would sustain, serious loss and damage. The defender in answer admitted that he occasionally appeared in small debt causes “by leave of the Court.” In answer to this admission the pursuer replied that it was ultra vires of the Court to give the defender leave to appear in Court as an agent.

The pursuer pleaded—“(1) The defender not having signed the roll of law agents kept for the county of Aberdeen, and not being qualified to do so, he is not entitled to practise as an agent in

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the Sheriff Court of the said county, and should therefore be prohibited from so doing. (2) The defender having unwarrantably and illegally assumed the name of a solicitor, or at least usurped the functions of a law agent, the pursuer is entitled to interdict against him in terms of the prayer of the petition, with expenses. (4) Separatim—The leave of the Court, even if it had been granted to the defender, being ultra vires, cannot be pled by him as a defence to this action.”

The defender pleaded—“(1) The averments of the pursuer are insufficient to support the conclusions of his action. (2) The action being irrelevant, the defender is entitled to absolvitor.”

The Sheriff-Substitute ( Brown) on 22nd October 1887 pronounced this interlocutor:—“Finds that the pursuer has a sufficient title to sue the present action: Finds that the defender has not subscribed the roll of agents practising before the Court of the Sheriff of Aberdeen, Kincardine, and Banff, at Fraserburgh, or elsewhere within the city or county of Aberdeen, and therefore is not entitled to practise in said Court: Therefore ordains the defender to abstain from the acts complained of: Further instructs the Clerk of Court to refuse the privileges of an enrolled law agent to the defender, &c.

Note.—The only point which I have felt to present any difficulty in connection with this case is one not raised by the pleadings, but I think requiring serious attention, viz., the question of the jurisdiction of the Court to entertain such an application. The doubt is suggested by the repeal of the Procurators Act of 1865, the 25th section of which gave right to any procurator to complain to the Sheriff in whose court he is entitled to practise against any person practising in such court who is not a procurator thereof, and to the provisions of the Law Agents Act of 1873, placing law agents within the jurisdiction of the Court, that is, the Court of Session. It may plausibly be contended that it was the intention of the Legislature, especially by the repeal of the Act of 1865, to make the whole question of the status, not only of procurators, but of persons professing to act as such, subject to the supervision of the Supreme Court only. It was pleaded by the pursuer in this case that the provision in the Act of 1865 was to be read as declaratory of the then existing law, and it is just the repeal of the statute, without substituting anything in its place in this matter, that raises the question whether the Procurators Act of 1865 was a true expression of the law when it passed. I have come to the conclusion, however, although not without difficulty, that the Act does not remove the right of a person possessing the necessary title and interest to have his rights protected by proceedings in the inferior court, and that what the Law Agents Act of 1873 makes privative to the jurisdiction of the Court of Session are questions affecting the title to be placed on the register of enrolled law agents, or the liability to be struck off that roll by reason of misconduct. But the defender in this case is admittedly not an enrolled law agent, and therefore the question raised does not fall within either of the categories just stated, but simply is, whether the pursuer is entitled to be protected from patrimonial loss caused by another engaging in practice in the court without having qualified his right to do so. I do not think that the concluding section of the Act of 1873 touches the question, for that obviously conserves only the right of inferior judges in so far as that is necessary to maintain the discipline of their courts, but I do not see that the right of the Sheriff to give such redress as the pursuer seeks here is withdrawn, either by express enactment or necessary implication.

In the light of the foregoing remarks it appears clear that the only matter which can be regarded as falling within the merits of the case is the simple fact whether or not the defender is an enrolled law agent, and that is not matter of dispute. In the view I take of the question of jurisdiction it is not within my province to decide whether as a notary-public he has any right to be put upon the register, the ground of action to which I have given effect simply being that until he has been put upon the roll the defender does not qualify the right to practise. It is proper, however, that I should say, with reference to a part of the argument addressed to me on his behalf, that so far as I am aware there is no practice of sanctioning the appearance, either in the Small Debt Court or the Debts Recovery Court, of a person to act professionally who does not possess the qualification and the title of a law agent. Under both Acts there are certain classes of persons who are entitled in their absence to represent the parties to the suit, among which the pursuer is obviously not included, and the ‘leave of the court’ is not extended to anyone who, apart from such permission, has not the right to practise. The defender has from time to time appeared in the Court at Fraserburgh, but only on the assumption that he was entitled to exercise the privileges of a law agent, and it is this unlawful practice which the pursuer now challenges and seeks to bring to an issue.

The form of action which the pursuer has adopted to put an end to what, quite relevantly, as I think, he represents to be an invasion of his rights, has given me some consideration, and in the end I have come to be of opinion that it should not be the course followed. In a question of interdict it is an essential element in the course of action proposed to be interdicted and prohibited that it shall be illegal and wrongful. But any acts performed with the sanction of the Court, such as appearing in judicial proceedings without objection from any quarter, do not possess that character of illegality and wrongfulness that is necessary to bring them within the category of acts that may be interdicted. The reason is obvious—a court of law cannot interdict itself, and it seems to follow that it cannot interdict any act performed under its sanction or authority. In my opinion the actings here complained of must come to an end, but my view is that the decree should not take the form of an interdict but that of an order of Court.

On appeal the Sheriff ( Guthrie Smith) on 11th November 1887 recalled the interlocutor and dismissed the action.

Note.—The parties to this action are both engaged in the practice of the law in Fraserburgh. The pursuer, who is a law agent enrolled under the Act 36 and 37 Vict. cap. 63, asks the Court to interdict the defender, who is merely a notary public, ‘from practising as a law agent for or on

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behalf of any litigant or litigants in any of the courts to be held at Fraserburgh or elsewhere within the city or county of Aberdeen by the Sheriff of Aberdeen, Kincardine, and Banff or his Substitutes, till such time as the defender shall have legally qualified himself so to do.’ It is perhaps a sufficient answer to the application that the defender neither admits that he has practised, nor apparently does he claim the right to practise, in the ordinary Court of the Sheriff or Debts Recovery Court. He has no interest to make so broad a claim, for the simple reason that at Fraserburgh no ordinary court is held; and although there is now a monthly court for both small debt and debts recovery cases, it is only as regards the Small Debt Court that he claims the same privilege as other practitioners. That privilege, however, is very limited, for no one except the parties themselves is entitled to appear in any case without the leave of the court. The Small Debt Act, sec. 14, enacts ‘that no procurators, solicitors, nor any persons practising the law, shall be allowed to appear or plead for any party without leave of the court on special cause shown, and such leave and the cause thereof shall in all cases be entered in the book of causes kept by the sheriff-clerk.’ If the defender is not a procurator I am not sure that he may not be quite accurately described as a ‘solicitor’ (for in Scotland that is not a nomen juris with a fixed technical meaning), and in any case I have little doubt that, being a notary accustomed to give advice and frame deeds, and entitled (under Aiken v. Kirk, 3 R. 595).to charge the same ad valorem and other fees as the members of any incorporated society of law-agents, the defender is a person practising ‘the law’ within the meaning of the statute. I cannot therefore interdict him from exercising such rights as the statute gives him in the Small Debt Court; and in the Debts Recovery Court there is no dispute between the parties requiring to be settled by interdict—the right not being claimed.

I am also not satisfied that the pursuer has either title or interest to make the application. The parties are two rival practitioners, but the pursuer fails to show what benefit he will gain by the defender being driven from the field. The usurpation of a practice may be a breach of law, but it is for the public authority to enforce the law, and no private citizen is entitled to complain of its violation without showing that it directly affects him in his personal and patrimonial rights. Interdict then becomes an appropriate remedy, for it is better to prevent a wrong than leave the party to a claim of damages after it is accomplished. But here no damage is relevantly averred or is indeed conceivable, unless we are to suppose that the pursuer has a grant of monopoly.

In former times we were familiar in Scotland with exclusive trading corporations within burgh, the privileges of which were sometimes enforced by interdict, but always (so far as I am aware) by the corporation itself—never by an individual member. But the object of the Procurators Act was not to create a monopoly, or to call into existence a species of trades union of lawyers. The preamble of the Medical Act (21 and 22 Vict. cap. 90) explains the motive and purpose of all this kind of legislation. It rests on the expediency of enabling persons requiring medical or legal aid ‘to distinguish qualified from unqualified practitioners.’ The object was the protection of the public, and this is enforced by its being enacted in the case of medical men that a practitioner who falsely describes himself as a duly qualified physician, &c., shall be liable to a penalty of £20, which is recovered in Scotland by the Procurator-Fiscal or ‘any other person’ in the mode pointed out by sec. 41. The Procurators Act is not so severe. It first declares that an agent possessing a certain qualification may be enrolled in the roll kept by the Sheriff-Clerk of the Court where he wishes to practise for the sum of five shillings (sec. 13), and then it enacts that ‘no person shall be allowed to practise as an agent in the Court of Session or any Sheriff Court until he has subscribed this roll’ (sec. 16). This provision it is of course the duty of the Court to enforce—but as the Sheriff has no access to the roll he is entitled to assume that when audience is claimed by some one whose name is not on the roll the Sheriff-Clerk will duly inform him of the fact. It is not to be supposed that this official will neglect his duty in this respect, and if that be so, I fail to perceive what useful purpose the proposed interdict will serve. Evidently the time to enforce the statute is in open court when the claim to appear and plead is actually made, and it is probably this consideration which induced the Legislature to omit from the present Law Agents Act the provision in the repealed Procurators Act of 1865, that any law-agent might sue out an interdict against an unqualified petitioner. The title of a member to inform the Court of Session of any act of misconduct with a view to the exercise of discipline on a party already on the roll is a different matter. I therefore think that the present application is altogether incompetent, and I abstain from issuing the order on the defender which has been granted by the Sheriff-Substitute, because the Act of Parliament is itself a sufficient standing order on the subject.”

The pursuer appealed, and argued—(1) Under the Small Debt Act the Sheriff had beyond doubt right to allow anyone to practise, systematically or occasionally, whether qualified or unqualified, and law agents were really under special disqualifications, because the Sheriff could only allow them to practise on “special cause shown.” The result was that by the tacit leave of the Sheriff a whole swarm of unqualified practitioners took to practising in the Small Debt Courts. The Act of 1873 was accordingly passed in order to remedy this state of matters, and section 16 provided that no person should practise as an agent, i.e., act professionally in the Small Debt Court or any other of the Sheriff's courts unless he was on the roll in terms of that Act. It did not repeal the 14th section of the Small Debt Act, which enabled the Sheriff to give leave to persons to practise upon special cause shown, but it provided that in addition to having the leave of the Sheriff the person seeking to practise in the court professionally for gain must be a qualified law agent. In fact, it struck at unqualified practitioners such as the defender. (2) The pursuer had a perfectly good title to maintain this action. True, it was a qualified title—on cause shown and with leave of Sheriff—but he had an undoubted right to practise in causes in which the Sheriff considered the assistance of a law-agent desirable. He had therefore

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an interest to prevent what was unlawful. The result of the defender continuing to practise would be competition with the pursuer. In early cases the rights of a notary-public to be protected against unqualified persons had been recognised— Mitchell v. Gregg and Others, December 7, 1815, F.C.; Procurators of Paisley v. Craig, March 8, 1823, 2 S. 249. The right at common law of an incorporated law agent to have an unfit person's name removed from the roll of law-agents had been recognised in the case of the Incorporated Society of Law Agents in Scotland v. Clark, Dec. 3, 1886, 14 R. 161. An additional reason for holding this process of interdict to be competent was disclosed by the fact that the Act of 1873 imposed no pecuniary penalty for doing what the defender was here attempting to do. The defender ought, then, to be interdicted from practising in the Small Debt Court, and ought to give an undertaking that he would not practise in the Debts Recovery Court.

The defender replied—(1) While he admitted that he could not legally appear in the Debts Recovery Court, and therefore did not require to give the undertaking asked, yet he had a right to appear in the Small Debt Court with the leave of the Sheriff. This right depended on the 14th section of the Small Debt Act. He appeared not in the character of a law-agent, but of “such other person as the Sheriff may allow other than an officer of the court.” But (2) even assuming he could be debarred from so practising, even with the leave of the Sheriff, the remedy of interdict was not the appropriate one. [ Lord Young—The remedy sought was just asking the Sheriff to interdict himself from giving leave.] The only cases to be found in the books were cases of actions at the instance of incorporated societies. The case of the Incorporated Society of Law Agents in Scotland v. Clark, supra cit., dealt only with the right of a law agent to have the roll kept up to a certain standard. Again, the only power ever given to an agent to interdict the practice of another was one which was conferred by the Procurators Act of 1865 (28 and 29 Vict. c. 85), sec 25, which was to this effect—“Any procurator shall be entitled to complain to the Sheriff in whose court he is entitled to practise against any person practising in such court who is not a procurator thereof; and the Sheriff shall, on such complaint being proved to his satisfaction, interdict such person from practice.”… This section with the rest of the Act had been, however, repealed by the Law Agents Act of 1873. The proper time to object was when the appearance was made. The Sheriff might then refuse to hear the complaint if he thought fit. The question for him really was, whether it was for the public advantage— Gray v. Society of Advocates in Aberdeen, March 6, 1841, 3 D. 813.

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