Scottish Court of Session Decisions

Section 2 of the Law-Agents and Notaries Public (Scotland) Act 1891 (54 and 55 Vict, c. 30) provides that “Any person being neither a law-agent nor a notary-public, who either by himself or in conjunction with others, wilfully and falsely pretends to be, or takes or uses any name, title, addition, or description implying that he is duly qualified to act either as a law-agent or as a notary-public, or that he is recognised by law as so qualified, shall be guilty of an offence under this Act, and shall be liable to a penalty not exceeding the sum of ten pounds for the first offence, together with the costs of prosecution and conviction: and any such person who shall be guilty of a second or subsequent offence or offences under this section shall be liable to a penalty not exceeding twenty pounds.” … Section 3 provides that “No costs, fee, reward, or disbursement on account of or in relation to any act or proceeding done or

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taken by any person who acts as a law-agent or as a notary-public without being duly qualified so to act, or who not being so qualified gives legal advice, or frames or draws any deed, shall be recoverable in any action, suit, or matter by any person or persons whomsoever.”

Section 43 of the Stamp Act 1891 (54 and 55 Vict. c. 39) provides that—“Every person who in any part of the United Kingdom ( a) directly or indirectly acts or practices as a solicitor or law-agent in any court or as a notary-public without having in force at the time a duly stamped certificate … shall incur a fine of fifty pounds, … and shall be incapable of maintaining any action or suit for the recovery of any fee, reward, or disbursement on account of or in relation to any act or proceeding done or taken by him in any such capacity.”

An action of count, reckoning, and payment was raised by Mrs Helen Potts or Innes, 33 Richmond Place, Edinburgh, and by her husband as her administrator-in-law and for his own interest, against Alexander M'Donald, sheriff-officer, Edinburgh.

After sundry procedure the Lord Ordinary ( Kyllachy), on 28th October 1898, decerned against the defender for payment of £33 with interest, found the pursuer entitled to expenses, and remitted to the Auditor.

The Auditor made the following report:—“In obedience to a remit by Lord Kyllachy the Auditor has examined the foregoing account, and taxes the same in presence of the agents at the sum of £95, 0s. 11d.

Note.—At the audit it was contended by the defender's agents that the whole of the pursuer's expenses should be disallowed. For the period to 29th September 1898 the business was undoubtedly conducted by Mr Andrews, who had not a law-agent's certificate. Thereafter Mr Spinks, S.S.C., appears to have acted as agent, but the defender's agents allege that he merely lent his name, and that the business in point of fact continued to be done by Mr Andrews as before. In these circumstances they contend, founding on a decision by Justice North in re Sweeting, 19th January 1898, L.R., 1 Ch. 268, that there is no legal claim either by the pursuer or by her agent for any part of the expenses, whether consisting of charges or outlays.

The Auditor has not felt himself entitled, under the remit to him, to deal with such questions, but, to assist the Lord Ordinary, he may state that the taxed amount of expenses to 29th September 1898 inclusive is £77, 8s. 5d., whereof charges £43, 17s. 2d., and outlays £33, 11s. 3d., and that of the balance £9, 15s. consists of charges, and £7, 17s. 6d. consists of outlays.”

Thereafter on the 24th December 1898 the Lord Ordinary pronounced an interlocutor whereby he approved of the Auditor's report, aud decerned against the defender for payment of the taxed amount of expenses.

The defender reclaimed, and argued—It was clear that Mr Andrews was not a person “duly qualified” to act as a law-agent. One of the necessary qualifications was the possession of a certificate. That appeared from section 43 of the Stamp Act, and also from section 47. The fact that section 2 of the Law-Agents Act did not deal with the question of a certificate could not import a limitation into the general terms of section 3. The two sections dealt with different questions in a different way, and it was not competent to reason from one to the other. The reclaimer's view was supported by the English cases of Fowler v. Monmouthshire Railway and Canal Co., 1879, L.R., 4 Q,B.D. 334; in re Sweeting, L.R. [1898], 1 Ch. 268. The reclaimer did not insist in the reclaiming-note so far as regards the last two sums mentioned in the Auditor's note amounting to £17, 12s. 6d., being the expenses in the Outer House after 29th September 1893, in respect that his doing so would involve a remit to the Lord Ordinary.

Argued for respondent—The words “duly qualified” could not be interpreted by reference to the Stamp Act. Section 2 of the Law-Agents Act did not refer to the possession of a certificate as a necessary qualification for the purposes of the Act. Accordingly, the mere fact that Mr Andrews did not possess a certificate would not call into operation the penalty inflicted by section 3. Though under a separate Act he might be subject to a penalty of £50, that did not prevent him from being “duly qualified” in the sense of the Law-Agents Act — Clyne v. Clyne's Trustees, May 31, 1837, 15 S. 1051; M'Gown v. Begg, January 24, 1828, 6 S. 420. These cases applied to the Act 25 Geo. III. c. 80, which attached penalties to law-agents practising without certificates in almost the same words as those used in the Stamp Act of 1891. The English cases had no application owing to the presence of clear words of definition in the English Act.