EXTRA DIVISION, INNER HOUSE, COURT OF
SESSION
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Lord Macfadyen
Lord Johnston
Lord Wheatley
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[2008] CSIH
23
XA 18/07
XA19/07
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OPINION OF THE COURT
delivered by LORD MACFADYEN
in the causes
(1) CULTURAL
AND EDUCATIONAL DEVELOPMENT ASSOCIATION OF SCOTLAND,
Pursuers and Appellants;
against
GLASGOW CITY COUNCIL,
Defenders and Respondents;
and
(2) GLASGOW EID MELA,
Pursuers and Appellants;
against
GLASGOW CITY COUNCIL,
Defenders and Respondents.
_______
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Act: Cowan, Solicitor Advocate; Simpson & Marwick.
Alt: Heaney; Edinburgh Council Legal Services.
6 March 2008
Introduction
[1] In these
actions the pursuers are voluntary associations who claim in terms of the Race
Relations Act 1976 ("the 1976 Act") to have suffered discrimination at the
hands of the Glasgow City Council in connection with applications which they
made for grants. In the first action the
pursuers are the Cultural and Educational Development Association of Scotland
("CEDA"), on whose behalf it is averred that they are a Scottish charity whose
members are British citizens of Pakistani origin. In the second action the pursuers are Glasgow
Eid Mela ("GEM"), on whose behalf it is averred that they were originally
represented by thirteen Pakistani/Muslim organisations and formed an
independent organisation on 5 January 2002.
[2] The initial
writ in the action at the instance of CEDA was not signed by a solicitor on
their behalf but was signed by three lay persons, namely Faid Mallick ("Mr
Mallick"), designed as "General Secretary of CEDA of Scotland", another person
designed as "Chair Person of CEDA of Scotland" and a third person designed as
"Member of Public".
[3] The initial
writ in the action at the instance of GEM was likewise not signed by a
solicitor, but was signed by three lay persons, namely Mr Mallick, designed as "Founder,
Ex Chairperson and Member of GEM", another person designed as "Chairperson of
GEM" and a third person designed as "Member of Public and Ex Executive Member
of GEM".
[4] On 7
July 2006 at
an options hearing in the CEDA action, Mr Mallick sought to appear on the
pursuers' behalf. The Sheriff dismissed
the action on the grounds (1) that the initial writ had not been signed by
a solicitor and was therefore fundamentally deficient, and (2) that Mr Mallick
was not entitled to represent the pursuers in court.
[5] In the GEM
case an options hearing took place on 23 June 2006 when Mr Mallick sought to appear for
the pursuers. The hearing was continued
to enable him to seek legal advice. At
the continued options hearing on 18 August 2006 the pursuers were represented by a
solicitor. The action was dismissed on
the ground that the initial writ had not been signed by a solicitor.
[6] The
interlocutors of 7 July 2006 (in the CEDA action) and 18
August 2006 (in
the GEM action) were appealed to the Sheriff Principal. The appeals were heard together. By interlocutors dated 19
December 2006,
the Sheriff Principal refused both appeals.
The Sheriff Principal subsequently issued a Note dated 30
March 2007
containing his reasons for refusing the appeals.
[7] When the
appeals called together on the summar roll, leave was sought on the pursuers' behalf
to withdraw certain concessions of law which had been made before the Sheriff
Principal (see paragraph 2 of his Note).
The defenders offered no opposition to that motion, and we therefore
granted it.
The issues in the
appeals
[8] The principal
issue, which is common to both appeals, and falls into several parts, is (a)
whether a voluntary association is entitled to represent itself in ordinary civil
proceedings in the sheriff court; (b) whether it follows that the initial
writs, signed on the pursuers' behalf by members or officers, were validly
signed; (c) if they were not, whether the defect fell short of fundamental
nullity and could therefore competently be excused under Ordinary Cause Rule
2.1(1); and (d), if so, whether the discretion conferred on the sheriff by that
rule should have been exercised in the pursuers' favour in each case. The secondary issue, which flows from part
(a) of the principal issue, is whether, in the CEDA case, the sheriff (i) erred
in not allowing the pursuers to be represented by Mr Mallick, and (ii) in any
event erred in not allowing a continuation of the options hearing to enable the
pursuers to be legally represented.
The principal issue
[9] Mr Cowan, who
appeared before us for the pursuers, took as the starting point of his
submissions the following passage in Macphail, Sheriff Court Practice, third edition, paragraph
1.35:
"In ordinary causes in the sheriff
court the only persons who are permitted to appear and conduct cases are
members of the Faculty of Advocates, solicitors and parties who are natural
persons. The latter, when conducting
their own causes, are known as party litigants.
Firms, companies and other artificial entities must always be
represented by solicitors or counsel."
(See also paragraph 4.118.)
Reference was also made to Clark Advertising
Limited v Scottish Enterprise
Dunbartonshire 2004 SLT (Sh Ct) 85, to the annotation to the Rules of the
Court of Session in The Parliament House
Book, Vol. 2, page C46, paragraph 4.2.6; and to Mushtaq v Secretary of State
for the Home Department 2006 SC 524.
Mr Cowan relied in particular on the use of the phrase "artificial
entities" in the passage quoted from Macphail. A voluntary association, he submitted, was
not an "artificial entity". Unlike a
limited company or a Scottish firm, it has no separate legal personality
distinct from its members. It is no more
than a collection of natural persons.
Yet it can sue in its own name in the sheriff court (OCR 5.7). In Strathclyde
Regional Council v Sheriff Clerk,
Glasgow 1992 SLT (Sh Ct) 79 Sheriff Principal Macleod erred in treating a
voluntary association, a youth club, as a type of artificial entity and in
holding that it could not be represented by its treasurer. The correct view was that a voluntary association
did not fall into the category of artificial entities which had to be
represented by a lawyer, but instead, as a body of natural persons, was to be
equated with a natural person who could represent himself.
[10] Mr Heaney, for
the defenders, submitted that the true rule was that only an individual natural
person who was a party to the action could appear himself, and did not require
legal representation. He cited Equity and Law Life Assurance Society v Titonia Limited 1943 SC (HL) 88 per
Viscount Simon LC at 89; Gordon v Nakeski-Cumming 1924 SC 939; Rush v Fife Regional Council 1984 SLT 391; and Clark Advertising per Sheriff Principal Bowen at paragraphs 9 to
11. The considerations discussed by
Sheriff Principal Bowen in the last-mentioned passage, in the context of a
partnership, applied a fortiori to a
voluntary association. Strathclyde Regional Council v Sheriff Clerk, Glasgow was correctly decided.
The Ordinary Cause Rules were enacted in the year following that
decision. There was the opportunity
then, or at any time thereafter, to reverse the effect of that decision if it
were thought to be wrong. No such
provision had been made.
[11] In our opinion
the submissions of the defenders are to be preferred on this aspect of the principal
issue. It is clear beyond doubt that an
individual party who is a natural person does not require to be represented by
a lawyer, but may conduct his or her own case.
Conversely, it is equally clear that incorporated companies, firms and
other non-natural legal persons can only be represented by a solicitor or
advocate. The present cases are,
however, at the instance of unincorporated voluntary associations, and the
question is whether they fall to be equated with an individual natural person,
or with a non-natural person. Mr Cowan
seized on the use in Macphail of the
expression "artificial entities", and sought to argue that an unincorporated
voluntary association did not fall within that description and therefore did
not fall into the category of party who required to be legally represented. There are, we think, two answers to that
submission. The first is that it ignores
the earlier sentence in the passage in Macphail,
where it is said that the only persons who are permitted to appear and conduct
cases are advocates, solicitors and "parties who are natural persons". A voluntary association may a grouping of
natural persons, but it is not itself a natural person; indeed it is not a
legal person at all. The second answer
to the submission is that the expression "artificial entities" is not a term of
art. It is used as no more than a
convenient description of the general category of parties who are not natural
persons. The voluntary association is an
anomaly, in that it is permitted to sue in the sheriff court in its own name
despite being without legal personality.
But there is no justification for reasoning from the fact that it is an
unincorporated group of natural persons to the conclusion that it should be
treated in the same way as an individual natural person. In Macphail
at paragraph 1.35, the rationale for the requirement that parties other
than individual natural persons must be represented by a lawyer is put in terms
of securing that the court will have before it persons bound by professional
rules and a disciplinary code on which the court may rely, and who are familiar
with the methods and scope of permissible advocacy (see also at greater length per
Sheriff Principal Bowen in Clark
Advertising at paragraphs 9 to 11).
The difficulties which courts commonly encounter where individual party
litigants conduct their own cases are eloquent of the reasons for not extending
the right of personal appearance beyond the case of the individual natural
party. The rules serve to protect not
only the opposing party and the court, but also, in the case of voluntary
organisations, the members of the association, whose interests might otherwise
be prejudiced by the actings of an individual or group of individuals pursuing
litigation not truly in the association's interests. We are not to be taken as saying that that is
so in the present case, but the risk of such an occurrence in general is part
of the justification for the rule.
[12] Against that
general background we turn to the more particular question of whether an
initial writ at the instance of a voluntary association must be signed by a
solicitor on the association's behalf, or may be signed on its behalf by one or
more members or office-bearers. OCR
3.1(7) provides that: "The initial writ
shall be signed by the pursuer or his solicitor (if any) ...". An association is a "person" (Sheriff Courts
(Scotland) Act 1907, section 3(e)), and "pursuer" includes any person making a
claim or demand (1907 Act, section 3(n)), so an association making a claim
falls within the scope of the expression "pursuer" in OCR 3.1(7). But that is of no assistance to the present
pursuers. A voluntary association cannot
"sign" an initial writ. Signature by one
or more member or office-bearers is not signature by the association. The conclusion is, in our view, inescapable
that, since the initial writs were not signed by a solicitor on behalf of the
pursuers, they were not signed in accordance with the requirements of OCR
3.1(7).
[13] The next
aspect of the principal issue is whether the non-compliance with OCR 3.1(7) is
curable by resort to the discretionary dispensing power conferred on the
sheriff by OCR 2.1(1). That power is
expressed in the following terms:
"The sheriff may relieve a party from
the consequences of failure to comply with a provision in these Rules which is
shown to be due to mistake, oversight or other excusable cause, on such
conditions as he thinks fit."
[14] In submitting
that failure to comply with the requirement imposed by OCR 3.1(7) that an
initial writ be signed by a solicitor on behalf of a pursuer who was not an
individual natural person did not render the initial writ fundamentally null,
and therefore did not preclude the exercise of the discretionary dispensing
power conferred on the sheriff by OCR 2.1(1), Mr Cowan referred to a number of authorities. He began with Macphail, Sheriff Court Practice, paragraph 9.41 which suggests that
fundamental nullity flows from breach of a mandatory requirement of the
rules. He cited Wilson v Lothian Regional
Council, 1995 SLT 991, in which Lord Osborne, in holding that the absence
of a conclusion did not render a Court of Session summons fundamentally null,
expressed doubt as to the utility of identifying fundamental nullity by relying
on the distinction between mandatory and directory provisions. Reference was made to Colley v Celtic Pacific Ship
Management (Overseas) Limited 2001 SLT 320 for the proposition that failure
to comply with a statutory requirement leads to fundamental nullity, while
failure to comply with a rule of court does not. That is not quite what was decided in that
case. The point there was that the Court
of Session dispensing power equivalent to OCR 2.1(1) can only be used to excuse
a failure to comply with the rules of court and is therefore not available if
the defect is a breach of a statutory requirement. The case does not deal with the question of
whether some breaches of the rules of court may result in fundamental nullity
while others may not. Mr Cowan also
referred to the sheriff court cases of Secretary
of State for Social Security v Love 1996
SCLR 535, and McKie v Jack Robinson (Trawlers) Limited,
Portree Sheriff Court, 13 July 2004, unreported, but neither of these is
directly in point.
[15] In support of
the proposition that some rules are mandatory, so that breach of them results
in nullity which cannot be excused under the dispensing power, Mr Heaney cited Brogan v O'Rourke 2005 SLT 29. For
the test by which to determine whether a failure to comply with a rule resulted
in fundamental (i.e. incurable) nullity, he referred to R v Soneji [2006] 1 AC 340 and R v Clarke [2008] UKHL 8. In Soneji, Lord Steyn said (at paragraph
23):
"Having reviewed the issue in some
detail I am in respectful agreement with the Australian High Court that the
rigid mandatory and directory distinction, and its many artificial refinements,
have outlived their usefulness. Instead,
as held in Attorney General's Reference
(No. 3 of 1999) [2001] 2 AC 91, the emphasis ought to be on the
consequences of non-compliance, and posing the question whether Parliament can
fairly be taken to have intended total invalidity. That is how I would approach what is
ultimately a question of statutory construction."
In Clarke, Lord
Rodger of Earlsferry said (at paragraph 28):
"The true significance of the
decision in Soneji lies, however, in
the approval of the view that any classification into mandatory or directory is
the end of the relevant inquiry, not the beginning, and that the better test is
to ask 'whether it was a purpose of the legislation that an act done in breach
of the provision should be invalid'."
[16] We accept the
approach to the construction of procedural requirements of legislation, primary
or secondary, laid down in Soneji and
Clarke. The issue is whether the rule-making
authority, when enacting OCR 3.1(7), intended that the result of non-compliance
should be that an initial writ not properly signed is a nullity. That test is easier, in the light of the
recent authorities, to formulate than to apply.
If attention is directed to OCR 3.1 as a whole, it seems clear that it
contains provisions breach of which the rule-makers are unlikely to have
intended to be fatal to the validity of the writ. For example, we doubt whether a failure to
produce the writ on paper of durable quality (OCR 3.1(2)) was intended to have
fatal consequences. We likewise doubt
whether failure to comply with the latter part of OCR 3.1(7) (failure to state
the name and address of the solicitor on the back of every service copy) was
intended to result in incurable nullity.
But the intention underlying the part of OCR 3.1(7) with which we are
concerned is less easy to discern. According
to Mr Cowan's submissions, the purpose of a principal initial writ is to obtain
warrant for service. Here,
notwithstanding what we have held to be the defect, warrant had been granted,
service had been effected and defences had been
lodged. It was unreasonable to suppose
that the rule-makers intended that such a defect, coming to light only at the
options hearing, should result in incurable nullity. We have some sympathy with
that submission, but ultimately we do not consider that it can be
accepted. The underlying purpose of the
requirement that a pursuer, other than a party litigant, should have his initial
writ signed by a solicitor on his behalf, is the one
discussed above in connection with representation. We think that the intention of the
rule-makers was that an initial writ which did not comply with OCR 3.1(7)
should be vulnerable to rejection out of hand by the sheriff clerk, without the
need for the sheriff to consider the exercise of his discretion under OCR
2.1(1). If that is the intention, the
initial writ which is not properly signed is a nullity, and cannot be given
life by the fact that it happened to be warranted when it should not have been.
[17] It is,
however, unnecessary for us to peril our decision on the view that failure to
comply with OCR 3.1(7) leads to fundamental nullity. While the discretion under OCR 2.1(1) is for
the sheriff, not us, to exercise (Grier v
Wimpey Plant & Transport Limited 1994
SLT 714), it does not follow that we would be bound to remit to the sheriff if
we considered that it would be competent for him to exercise that discretion. It
seems to us, on a consideration of the Sheriff Principal's reasoning, that he
would have dismissed the actions even if he had considered it competent to
exercise the power conferred by OCR 2.1(1).
Mr Heaney sought to persuade us that on a fair reading of his Note the
Sheriff Principal did consider the exercise of the dispensing power, but we do
not consider that that is correct. The
passage to which Mr Heaney referred was paragraph 15. It is in our view clear that at that point in
his Note the Sheriff Principal was dealing with the motion to allow amendment
of the pleadings. There are, however,
two grounds on which we conclude that, if we had thought resort to the
dispensing power competent, no practical purpose would have been served by
remitting to the sheriff to consider the exercise of that power. The first is that we consider that any
reasonable exercise of that discretion would be conditional on signature of the
initial writs now by a solicitor acting for the pursuers. No offer to procure such signature was
made. That is scarcely surprising, given
the acceptance that to put the pursuer's pleadings on a proper footing, the
entire contents of the initial writs would require to be deleted and fresh
pleadings drawn. That leads on to the
second point, which is that there is no practical purpose to be served by saving
the present initial writs if they require such radical amendment. The weight of that consideration might have
been different if dismissal would have affected the issue of time bar. Before us, however, it was accepted that in
new actions the court's discretion under section 68(6) of the 1976 Act would be
available to be exercised in the pursuer's favour if it was just and equitable
to do so.
The subordinate issue
[18] The answer to
the first part of this issue follows from what we have already said at paragraph
11 above. A voluntary association cannot
be represented by a member or office-bearer, but must be represented by a
solicitor or an advocate.
[19] We consider,
however, that there is merit in the proposition that the sheriff in the CEDA
case went too far too fast in dismissing the action because CEDA were
represented by Mr Mallick. We note that
the sheriff, in paragraph (9) of his Note of 7 July 2006 refers to the "pursuers [sic]" having already been warned
regarding the need for legal representation.
But that is a reference to a warning given to Mr Mallick when he sought
to appear in the GEM action, and the warning, so far as expressed in the
interlocutor of 23 June 2006, did not focus on the potentially fatal
consequences of a lack of proper representation. It was suggested to us that the proper
practice for the sheriff to have followed would have been to sist the action to
allow the pursuers to obtain proper representation (Clark Advertising at 88F; c.f. Coatbridge
Health Studios Limited v Alexander
George & Co (Investments) Limited 1991 SC 342). We prefer the view that the proper course
would have been a continuation of the options hearing rather than a sist of the
action. But had this been the only
ground of dismissal of the CEDA action, we would have been inclined hold that the
sheriff erred. In the event, however,
because of our decision on the principal issue, the secondary issue is
academic.
Result
[20] Both appeals
are therefore refused.
