Scottish Court of Session Decisions

[1] This is an action of interdict raised by the pursuer in the Sheriff Court at Edinburgh. The pursuer craves the court to interdict the defenders, the Council of the Law Society of Scotland,

On 19 March 1999, the Sheriff dismissed the action as irrelevant. The pursuer appealed to the Sheriff Principal. On 21 June 1999 the Sheriff Principal refused the appeal and adhered to the Sheriff's interlocutor of 19 March. The pursuer has appealed to the Court of Session.

[2] Section 40(1) of the Solicitors (Scotland) Act 1980 provides as follows:

Subsection (2) provides that on being satisfied by the solicitor that he is able and willing to comply with the applicable provisions, the Council, unless they are of opinion that the solicitor is liable to disciplinary proceedings, "shall terminate the suspension from practice of the solicitor and shall restore to him any practising certificate held by him for the practice year then current." A practice year means a year ending on 31 October. Subsection (3) makes provision for a solicitor to appeal against a decision to withdraw his practising certificate, and provides that "on any such appeal the court may give such directions in the matter...as it may think fit...".

[3] After events which need not be narrated in detail, the pursuer on 21 April 1998 sought interim interdict before service, in terms of the crave. The Sheriff granted warrant to cite the defenders, but meantime refused interim interdict. On 24 April, the pursuer's practising certificate was withdrawn by the defenders, in exercise of their powers under section 40(1) of the 1980 Act. On 15 May 1998 an appeal against the withdrawal of the pursuer's practising certificate was lodged seeking a direction to the defenders to restore his practising certificate to him, and meantime to give such a direction ad interim. Following upon an order for intimation and service, answers were lodged in that appeal in July 1998, but no further procedure appears to have taken place.

[4] Before the withdrawal of the pursuer's practising certificate on 24 April 1998, it appears that he had appealed against the refusal of interim interdict; but on 19 May 1998, when that appeal was due to be heard (after a previous adjournment) the appeal against refusal was dropped.

[5] From what we were told by the pursuer and appellant, who presented this appeal on his own behalf, he had been told some days before the appeal in terms of section 40(3) was lodged that two possible courses were open to him, it being suggested that he should allow officials of the Law Society to visit his office. It seems at least possible that this was with a view to section 40(2) coming into operation. At all events, the pursuer would not allow such a visit. The appeal under section 40(3) having been lodged the appeal against refusal of interim interdict was dropped, and these proceedings were sisted. However, shortly thereafter the sist was recalled. In August 1998, the pursuer sought summary decree, which was refused. He appealed against that decision, but that appeal was subsequently abandoned.

[6] The terms of the crave are perhaps somewhat ambiguous, covering any withdrawal of his practising certificate, and any appointment of a judicial factor, at any time while Mr. Cumming is Chief Accountant, even if these acts were not on his recommendation, and at any time in the future while he is in office. If that were the scope of any intended interdict, there would plainly be problems, partly because the defenders might be interdicted from fulfilling statutory obligations, and partly because, looking to the future, there is no apparent basis for apprehending any wrongful withdrawal or appointment. However, the pursuer confirmed that this was not what he sought. The withdrawal which he apprehended, when he raised the action, was that which occurred on 24 April 1998. That withdrawal was wrongful because of the circumstances which led up to it. It was that event which he had wanted to prevent, by interdict, before it occurred. And his concern was still only with that event. He was not trying to seek interdict against future actings of the defenders. What he now wanted was that the defenders' decision of 24 April 1998 should be reversed, and his practising certificate restored. The action related to the same wrong as originally, although a different remedy was appropriate once the wrong had been committed. The appeal should be upheld, and proof of the wrong allowed: there was an injustice which should be undone.

[7] We shall return to the question of remedy after considering Mr. Hill's submissions in relation to other aspects of the appeal. He explained that he would not concern himself directly with what had been said by the Sheriff Principal, when upholding the Sheriff: he would concentrate upon what had been done by the Sheriff himself. He emphasised that he had not been, and would not be, intending to cast aspersions upon any court. And putting matters in context, he pointed out that his feeling that there had been an injustice arose in a number of ways. The background to the case and the fact that he was seeking interdict against these defenders had meant that he had no choice now but to act for himself, as solicitors would be unwilling to act for him in the circumstances. When the matter came before the Sheriff, he had not been given a fair hearing. It was clear from all that the Sheriff said that he had prejudged the matter. As the matter is put at head 3(a) of the Grounds of Appeal, "the sheriff's approach was to trash the appellant's case in its entirety." In particular, he drew our attention to page 2 of the Sheriff's Note where the Sheriff says this:

The Sheriff also speaks generally of "the confused nature of the averments". In these circumstances, Mr. Hill submitted that the Sheriff had indeed rejected his case wholesale, so that there was no need to look at any particular criticisms.

[8] In support of this analysis of what the Sheriff had done, reference was made to page 14 of the Sheriff's Opinion, where he says that "If the action is to be dismissed as irrelevant, as opposed to certain averments being excluded from probation, it remains the case that it is necessary to look at all the pursuer's averments as a whole. I have no doubt at all that in this case it is necessary to look at the pursuer's averments as a whole and see whether the action must necessarily fail if all the averments were proved." These words follow upon a reference to Jamieson v. Jamieson 1952 S.C. (H.L.) 44, Lord Normand at page 50. It was suggested, as I understood the pursuer, that the Sheriff had effectively misapplied what Lord Normand was suggesting, and had rejected the pursuer's pleadings upon a broad view. Moreover, it was pointed out that the pursuer was alleging malice. With a matter of that kind, it was submitted that special caution should be observed before dismissing the action without proof, as had been observed in Jamieson in relation to divorce actions based on cruelty. What was required in the present case, rather than rejection upon the basis of the pleadings, was evidence upon the matters averred. Proof should be allowed.

[9] In relation to remedy, the pursuer's explanation as to what he now seeks makes it unnecessary to consider much that was dealt with in the courts below. But there are two questions relating to remedy which remain critical. In dealing with them, a convenient starting point is to be found in what was said by the Sheriff. First, the Sheriff at page 16 of his Note says this:

And secondly, at page 19, he says that it is clear that the pursuer's real complaint relates to the defenders' withdrawal of his practising certificate on 24 April 1998. He goes on to say this:

[10] As regards the first of these matters, the pursuer did not suggest that interdict would normally provide an appropriate remedy, once the act identified as wrongful had been done. But he pointed out that when the action was raised, the act had not yet been done, and interdict would therefore have been a normal remedy. That being so, the defenders had acted at their peril, and could be obliged in the present process to reverse what they had done. The basis for this submission is to be found in Burn Murdoch on Interdict at page 91, and in certain cases there cited: Glen v. Caledonian Railway Company (1868) 6 McPh. 797, Grahame v. The Magistrates of Kirkcaldy (1882) 9 R (HL) 91 and The Clippens Oil Company Limited v. The Edinburgh & District Water Trustees (1897) 25 R. 370.

[11] In relation to the second matter, the pursuer's submission was again based upon the fact that withdrawal of his practising certificate had been subsequent to the raising of the action. When the action was raised, there was no alternative remedy available, by appeal or otherwise. He could not be expected to await the withdrawal of his certificate, and then appeal. The remedy of interdict existed precisely to meet that situation. And while interdict might not be appropriate in cases where the person affected had already had an alternative remedy, before having recourse to seeking interdict, an action for interdict which had been appropriate when raised was not rendered inappropriate by subsequent events, which might carry rights of appeal or the like.

[12] In dealing with the first point, counsel for the defenders submitted that what was said at page 91 in Burn Murdoch, and the cases there cited, provided no sound basis for what the pursuer was seeking to do in the present case. In Glen, following upon recall of an interim interdict, a company were able to pay a dividend, and had done so. That being so, the Lord President, at page 799 said "In these circumstances this reclaiming note asks us to interdict the doing of that which has been already done. We have had no example produced to us of an interim interdict having been granted against a thing already done, and I cannot recall to my mind that an attempt to procure such an interdict was ever previously before the court...An interim order is usually asked because it will have an immediate effect; but what we are asked to do here is to grant an interdict which can never have any effect. Therefore the first part of the prayer is incompetent. It asks the court to do what it never has done, and never will do, in such circumstances." In principle, the case was authority for interdict being inappropriate where an act has been completed. The Lord President had also said what is quoted in Burn Murdoch: "No doubt there is this peculiarity in a process of suspension and interdict, that on the termination of the cause the complainer may be entitled to perpetual interdict against a thing which has been done during the dependence of the process. But that is a final judgment on the merits, which takes that form owing to the peculiar nature of the process of suspension and interdict." But that was a matter which the court did not require to decide in Glen; nor was any example given, of circumstances in which it would still be appropriate to grant a permanent interdict, against "a thing already done". If something had been done and completed, interdict as such would never be the appropriate order, since interdict of its nature related to future actings. If the interdict sought concerned actings of a particular kind which might occur at any time in the future, permanent interdict might remain appropriate, notwithstanding breach during the currency of the process, and some additional remedy might be required to reverse what had already been done.

[13] Clippens Oil Company was an example of such a situation. Interdict had been sought against laying down a pipe. Interim interdict having been refused, the pipe was completed pendente lite. The laying of the pipe was found to be illegal. Thereafter, the complainers presented a supplementary Note, in which they craved the court to ordain the respondents to remove the pipe and make good the ground. The court ordered removal in terms of the supplementary Note. The case was therefore an example of interdict not being an appropriate remedy, if the apprehended wrong has been completed pendente lite. It might be that where interdict had originally been the appropriate remedy, and had ceased to be so because the apprehended wrong had been completed, the court might be willing in the same process or in some supplementary process to consider and grant a different remedy. But the present pursuer's crave remained unchanged. He appeared to envisage an eventual interlocutor which, although in the form of interdict, would in some way constitute an order to reverse the withdrawal of the practising certificate. An interdict would not do that, and would not be an appropriate remedy for a past completed act. If, on the other hand, as in Clippens Oil, the pursuer wished to establish that the withdrawal was illegal, with a view to some remedy other than that craved, he should have identified that remedy. Grahame showed the need for new or additional proceedings, if a remedy other than interdict was required in order to reverse steps which had been taken pendente lite.

[14] In any event, however, counsel for the defenders submitted that once the pursuer's practising certificate had been withdrawn, there was an alternative remedy available, and it was not open to him to seek interdict. Reference was made to Burn Murdoch at pages 112 and 180 and the cases there cited: Green v. The Lord Advocate 1918 S.C. 667 and Dante v. The Assessor for Ayr 1922 S.C. 109. In Green, the Lord Justice Clerk observed, at page 673, that the legislature had "provided a special code" for dealing expeditiously with cases of the type in question. Interdict was refused so as to enable the question to be decided by the summary and more expeditious procedure which the legislature had authorised. In Dante, the pursuer had brought an action concluding for declarator that he was not a tenant or occupier, in the sense of the Lands Valuation Acts, of certain subjects, and was not liable to be rated or assessed in respect thereof. He also sought interdict against such an assessment. At page 121, the Lord Justice Clerk notes that there was nothing on record about the assessing statutes. He goes on to say:

[15] There is no doubt, in our opinion, that interdict of its nature is prohibitory and not rectificatory. But it is to be noted that in Grahame, at page 94, Lord Watson set out the law in the following terms:

While this issue was not argued and determined in Grahame and was not fully argued in the present case, we proceed upon the basis that this is a correct statement of the law. It is, however, clear from what his Lordship there says, and from what he goes on to say thereafter, that the final decree of interdict which had been obtained was not seen as being capable of being put into execution, or enforced, in a rectificatory way, as if it were an order for removal of the buildings which had been erected pendente lite. A new application for an order for removal was required, although in that application it would be, as his Lordship said, "too late for the respondents to resist the granting of the order upon considerations which either were, or might have been, competently pleaded by way of answer to the note of suspension and interdict." Interdict was, as we understand it, still entirely appropriate, to prevent any future erection of buildings. The matter having proceeded to final decree of interdict, with that justification, it could not subsequently be argued that buildings erected pendente lite, or indeed before the litigation, should be allowed to remain. The decision upon the question of interdict would thus determine these earlier questions. But what the respondent had done at his own risk could be reversed only if a new application was made.

[16] In the present case the decree which is sought, of interdict, is no longer one which is being sought for any remaining prohibitory purpose. It would not merely be incapable of execution and enforcement as a means of rectifying what has already been done: it would be incapable of execution or enforcement in any way at any time. Proof that the withdrawal of the certificate was wrongful would not therefore have the dual purpose or result, of establishing that certain acts should be forbidden for the future, and that certain acts were wrong in the past. It would have the latter purpose only. In such circumstances, it does not appear to us that it is competent to seek the remedy of interdict not as an end in itself, but merely as a context for establishing the wrong, which would then be founded upon in seeking a rectificatory remedy for what has already been done. In such a situation, that latter and appropriate remedy must be sought in itself, although no doubt upon similar averments of wrong, and upon the basis that in withdrawing the certificate the defenders were taking the risk that they had no right to do so.

[17] In any event, however, we are satisfied that in the circumstances of the present case, interdict has not been an appropriate remedy since the date when the certificate was withdrawn. We of course acknowledge that when the action was raised, interdict was the appropriate remedy to seek; and there can be no question of saying that the pursuer should have waited until the certificate was withdrawn before seeking any remedy. As the pursuer submitted, the availability in Scots law of the remedy of interdict demonstrates that in appropriate circumstances the law may be invoked to prevent the occurrence of an apprehended wrong. At that stage, statutory remedies which might be available if the wrong were done will not yet be in point, and cannot be seen as alternatives to seeking interdict.

[18] Nonetheless, if circumstances arise during the currency of legal proceedings, in which according to law some other remedy has become available, and is a remedy which the law requires to be exhausted before recourse to the remedy sought in the proceedings, the remedy thus sought will cease to be appropriate or competent. The question is whether that is the position in the present case.

[19] In our opinion, that is the position, and interdict is no longer appropriate or competent. The decision in Green can in our opinion be distinguished, in as much as the issue was regarded as one of ouster of jurisdiction, rather than a general principle that interdict is unavailable when there are other remedies for the same wrong. But we regard the analogy as quite close. And Dante in our view confirms the principle that there should be no recourse to interdict where there is a statutory framework which provides an unexhausted remedy for the same wrong. In that case, the point had not been taken and a right of appeal had not been used. The matter could be seen as involving acquiescence. But if there had been an appeal, and it had still been current, the court's decision would in our opinion have been the same. In the present case, the pursuer appealed in terms of section 40(3). At the time when the matter was before the Sheriff, nothing was being done to proceed with that appeal, and that remains the position. It is not perhaps clear whether that appeal could now proceed further, and we would not wish to express any view as to whether that will be possible or not. But whether that attempt to reverse the withdrawal of the certificate is regarded as still live and not yet exhausted, or is to be seen as an available means of challenge which the pursuer has not insisted in, we are satisfied that in the context of the 1980 Act, once a practising certificate has been withdrawn, subsections (2) and (3) of section 40 provide ways of reversing or overturning the decision which must be pursued in preference to other remedies at law, even if another remedy such as interdict had been sought at a stage before the withdrawal gave rise to statutory remedies.

[20] If the proceedings for interdict had a purpose running beyond the scope of the statutory remedies, seeking some lasting limitation upon what the defenders would be entitled to do in the future, then the statutory remedies would not be a sufficient alternative, and it may be that there are circumstances in which an action for interdict would be competent, because it had that wider purpose. But the fact in the present case is that one is concerned only with a single alleged wrong in April 1998. If the pursuer had sought to amend his crave, or raised different proceedings, seeking reduction or judicial review or some other remedy for the wrong which he says he has sustained through withdrawal of his certificate, we are satisfied that he would not be allowed to do so if he had either given up his right of appeal under section 40(3), or was still pursuing such an appeal. The fact that in the present case he is attempting to continue with his action of interdict, after the alleged wrong has been completed, as a means to some future rectificatory order, does not in our opinion alter the position. Interdict is not in our opinion an available remedy in these circumstances. It is not suggested that the appeal in terms of section 40(3) was in any way incompetent, or inadequate as a means of achieving what the pursuer wanted. It is evident that the court has very wide powers, where such an appeal is taken, and it is not suggested that in that process the court could not have directed restoration of the certificate ad interim, or as a final direction.

[21] In these circumstances, and in respect of these issues relating to remedy, we are satisfied that no relevant case has been made, and that the appeal must be dismissed. Having heard counsel for the defenders upon these issues, and being satisfied that refusal of the appeal was appropriate on these grounds, we did not regard it as necessary to resolve any other issues of relevancy, and did not call upon counsel for the defenders to reply to the submissions made by the pursuer and appellant in that regard. The appeal is accordingly refused. Having regard to the history of the matter, issues as to expenses may remain, and the matter is continued so that any appropriate motion can be made subsequently.