Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 24

A650/10

OPINION OF LORD JONES

In the cause

AB

Pursuer;

against

CD

Defender:

Pursuer:  Fairley QC; Cartwright;  Urquharts

Defender:  Party

27 February 2015

Introduction

[1]        AB seeks production and reduction of:  (i) a decree in absence, which was pronounced against him in the sheriff court at Stirling on 10 June 2010 and extracted on 25 June 2010, whereby the court granted decree in favour of CD for payment to him by AB, in the sum of £150,000, together with interest and expenses;  and (ii) a subsequent charge for payment, which was served on 2 July 2010.

[2]        When this action was raised in September 2010, the sole ground for reduction which was pleaded on AB’s behalf was to the effect that he was mentally unwell when he received the initial writ in the sheriff court action and he was, therefore, not fit to instruct a solicitor or to act as a party litigant.  It was averred that neither a notice of intention to defend nor defences were lodged.  On 20 June 2013, the Lord Ordinary allowed parties a proof before answer of their respective averments on record.  A six day proof was subsequently set down to commence on 3 February 2015.  On 7 January 2015, on the unopposed motion of AB, the Lord Ordinary allowed a minute of amendment to be received, and appointed CD to lodge answers thereto, if so advised, within seven days.

[3]        When the matter came before me on 3 February 2015, senior counsel for AB moved the court to open up the closed record and to allow it to be amended in terms of the minute of amendment as adjusted, and answers thereto.  The minute of amendment contains a new ground for reduction.  Against the background of an existing averment that CD is “a former Scottish solicitor”, it is averred that, following proceedings before the Scottish Solicitors Discipline Tribunal, his entitlement to practise as a solicitor in Scotland was suspended for a period of five years from February 2006.  The initial writ was purportedly served on AB by CD, on or about 19 March 2010, by first class recorded delivery post.  AB believes and avers that, as at March 2010, CD did not hold a valid practising certificate.  In these circumstances, it is averred, the writ was purportedly served by CD in his capacity as a party litigant and not as a solicitor.  As a party litigant, he was not entitled to serve the writ by post.  Reference was made to section 3 of the Citation Amendment (Scotland) Act 1882 and section 4 of the Execution of Diligence (Scotland) Act 1926.  Accordingly, so run the averments, the initial writ was not validly served on AB.  He was not, therefore, validly cited as a party to the action.  He did not enter the sheriff court process.  In due course, CD enrolled for decree in absence.  By letter, dated 13 May 2010, he was invited to attend a hearing on 10 June 2010 to address the sheriff “on the competency of service” of the writ.  It is believed and averred that CD did so and that he persuaded the sheriff to pronounce decree in absence.  It is averred that, in these circumstances, decree should not have been granted.

[4]        In support of his motion to amend, counsel advised me that it had been difficult to obtain clear instructions from AB, because of his continuing mental ill-health.  In a report, dated 2 December 2014, which was prepared on sole and conscience by Dr Karen Bett, locum consultant psychiatrist, AB’s condition is described as “a recurrent depressive disorder”.  I was told that, until recently, AB’s recollection was that he was cited by sheriff officers.  It was only when the sheriff court process was recovered under specification, towards the end of December 2014, that it emerged that CD had posted the initial writ to AB on 16 March 2010.  Counsel submitted that CD would not be prejudiced by the proposed amendment, because all of the new averments of fact were, and always had been, within his knowledge.

[5]        In opposing AB’s motion, CD, who appeared in person, pointed to the length of time that had passed since this action was raised (on 23 September 2010) and to the lateness of the amendment.  I took the view that, having regard to the whole circumstances, it was in the interests of justice to allow the pleadings to be amended, and I did so.  In light of that decision, counsel for AB moved me to discharge the six day hearing that had been set down, and to allow evidence to be led and argument advanced on the issue whether AB had been validly cited as defender in the sheriff court action.  That motion was unopposed and was granted.

The evidence

[6]        Only one witness was led for AB, Denise Robertson, of the Law Society of Scotland’s Registrar’s Department.  She described herself as a manager, dealing with the roll of solicitors.  She had been engaged in that work for 25 years.  She confirmed that CD had been suspended from holding a practising certificate as a solicitor between February 2006 and February 2011.  His name remained on the roll of solicitors during that time.  A solicitor who is suspended, she said, “cannot do anything that a solicitor does”.  The witness was not cross examined, and no evidence was led by CD. 

Submissions for AB

[7]        Counsel addressed me on the terms of a number of provisions in the Citation Amendment (Scotland) Act 1882, the Execution of Diligence (Scotland) Act 1926, the Solicitors (Scotland) Act 1933 and the Solicitors (Scotland) Act 1980.  The essence of his argument was that, because CD was suspended from practice when he purported to cite AB by post, there was no effective service.  Such defect in citation was not cured by AB, because he lodged neither a notice of intention to defend nor defences. 

Submissions for CD

[8]        CD confirmed that, before granting decree in absence in his favour, the sheriff had asked to be addressed by him on the competency of service.  (See number 6/17 of process, page 25.)  He attended at the sheriff court and addressed the sheriff as requested, after which decree in absence was pronounced.  The issue was one of statutory interpretation, and the sheriff was satisfied that there had been effective service.  Under reference to section 23 of the 1980 Act, CD submitted that Ms Robertson was wrong to say that a solicitor cannot do anything that a solicitor can do, if his or her practising certificate is suspended.  Section 23 provides that any person who practices as a solicitor without having in force a practising certificate is guilty of an offence:

“Unless he proves that he acted without receiving or without expectation of any fee, gain or reward, directly or indirectly.” 

When he cited AB by post, he was not doing so for reward.

Decision and reasons

[9]        So far as is relevant to this case, section 3 of the Citation Amendment (Scotland) Act 1882 (“the 1882 Act”) provides that, in any civil action in the sheriff court, any warrant of service may be executed by “an enrolled law agent” (which is now defined by the 1980 Act to include an enrolled solicitor), by sending a registered letter by post, addressed to the relevant person and containing a copy of any document required by law in the particular case to be served.  (Later legislation provided that service might be effected by recorded delivery first-class post.  (Recorded Delivery Service Act 1962.))  The term “enrolled law agent” is not defined in the 1882 Act.  Since CD remained on the roll of solicitors in March 2010, and was, therefore, an enrolled solicitor, it might have been thought that he was qualified in terms of the 1882 Act to effect postal citation.  The matter is not, however, so straightforward. 

[10]      Section 4 of the Execution of Diligence (Scotland) Act 1926 (“the 1926 Act”), which is still in force, provides that, for the purposes of section 3 of the 1882 Act, the expression “enrolled law agent” shall mean:

“In the case of a summons, warrant or judicial intimation issued from the sheriff court, a law agent whose name is on the roll, kept in pursuance of section 13 of (the Law Agents (Scotland) Act 1873, (‘the 1873 Act’))”. 

Section 13 provided that the sheriff clerk in each sheriff court was to keep a roll of agents practising in that court.  (My emphasis)

[11]      The Solicitors (Scotland) Act, 1933 (“the 1933 Act”) created a body to be known as “the General Council of Solicitors in Scotland”.  (Section 1)  Provision was made for the transfer to the General Council of the various registers of law agents which had been kept as required by the 1873 Act.  After such transfer, it was the duty of the General Council to keep an alphabetical list of all enrolled solicitors.  Section 20(2) of the Act made provision for a list of solicitors practising in any sheriffdom to be kept in such form and in such place or places as directed by the Lord President.  The 1873 Act was repealed, and the 1933 Act provided that a reference to law agents in any public general or local Act shall be deemed to mean and include solicitors, who shall have all the rights and privileges formerly enjoyed by law agents in Scotland, and a reference in such an Act to the register of law agents kept in pursuance of the 1873 Act shall be deemed to mean and include the roll of solicitors which was to be kept in pursuance of the 1933 Act.

[12]      The Legal Aid and Solicitors (Scotland) Act, 1949 (“the 1949 Act”) introduced the provision that no person is qualified to practise as a solicitor unless he has in force a practising certificate.  (Section 19)  Section 20 of the 1933 Act remained operative, however, until the Solicitors (Scotland) Act, 1958 (“the 1958 Act”) came into force.  Section 20 was replaced by a provision requiring what was by now the Council of the Law Society of Scotland (“the Council”) to furnish, as soon as practicable after 1 December in each year, to each sheriff clerk a list of all solicitors holding practising certificates for that practice year.  (See Schedules second (Part I) and third of the 1958 Act)

[13]      The 1980 Act is a consolidating statute, and the provisions of the 1882 Act relevant to this case now fall to be read subject to its terms.  The interpretation section, section 65, provides, among other things, that a reference in any enactment:  to law agents includes solicitors (subsection (2)(a);  to the register of law agents kept in pursuance of the Law Agents (Scotland) Act 1873 includes the roll of solicitors kept at the office of the secretary to the Council (subsection (2);  to a solicitor’s being entitled to practise or act in any matter, by reason of his being enrolled in, or of his having subscribed, the list of solicitors practising in that court, shall be construed as a reference to his being entitled so to practise or act by reason of his name being included in the appropriate list provided under section 20 of the 1980 Act (subsection (2)(e)), which is a list of all solicitors holding practising certificates for the practice year then current, sent by the Council to each sheriff clerk (section 20(1)). 

[14]      It is a matter of admission in this case that CD was suspended from holding a practising certificate between 3 February 2006 and 2 February 2011.  In terms of section 20(3) of the 1980 Act, the Council was required to notify each sheriff clerk of CD's suspension.  Further, his name fell to be omitted from the list of solicitors holding practising certificates which was sent by the Council to each sheriff clerk as soon as practicable after 1 December 2006 and would have remained absent from each list delivered in each year until 2011.

[15]      In summary, again so far as is relevant to the facts of this case, postal citation may be effected only by a solicitor who is entitled to practice.  When he sent the citation to AB, CD was not entitled to practice.  There was, therefore, no effective service on AB.  It makes no difference that, in terms of section 23 of the 1980 Act, CD may not have been committing an offence when he attempted to cite AB.  Because he was not entitled to practice, he was not acting in accordance with the provisions of section 3 of the 1882 Act.  Since citation of the defender marks the commencement of the action, if he was not duly cited, and if the defect in citation was not cured, no action was raised and no decree in absence could competently be pronounced.  (Macphail: Sheriff Court Practice 3rd Edition, paragraph 6.04)

[16]      As is noted in paragraph [2] of this opinion, it is averred on behalf of AB that no notice of intention to defend or defences were lodged on his behalf.  That is not contentious, and is vouched by reference to what is agreed by joint minute to be the full sheriff court process.  The significance of the averment is that rule 5.10(1) of the ordinary cause rules (“OCR”) provides that:

“A person who appears in a cause shall not be entitled to state any objection to the regularity of the execution of citation, service or intimation on him; and his appearance shall remedy any defect in such citation, service or intimation.”

[17]      Although neither counsel for AB nor CD referred to it during the hearing, the sheriff court process contains a soul and conscience letter, dated 31 March 2010, by a consultant psychiatrist, Dr Morag MacLeod, in which she expresses the opinion that, because of his depressive disorder, AB was not fit to attend court “as a witness”.  AB sent Dr MacLeod’s letter to the sheriff court under cover of an undated letter, in which he said, among other things: “I am unable to defend this action or to instruct a solicitor due to Depression caused by the Pursuer”.  By letter, dated 12 May 2010, the sheriff clerk depute responded to AB, advising him that Dr MacLeod’s letter had been placed before the sheriff, who had expressed the view that:

“Illness does not excuse failure to lodge a NID [notice of intention to defend].  If no NID is lodged, the Pursuer can ask for Decree in absence, which may be granted.”

[18]      Conscious that CD is a party litigant, I have considered the question whether AB’s communication with the sheriff court might be regarded as “appearing” for the purposes of OCR 5.10(1), because it signifies, at least, that he was aware of the proceedings and is likely to have received the citation.  In Cairney v Bulloch 1964 SLT (Sh Ct) 37 (“Cairney”), the question for determination was whether defective citation had been cured by the defender’s solicitors’ attendance at a hearing fixed by the sheriff clerk to discuss their assertion that service had been defective.  At that hearing, which was held in chambers, the sheriff held that the citation was flawed but that the presence there of the defender’s agents had cured any defect.  On appeal, the sheriff principal noted that, in their original form, under the heading “Appearance”, the sheriff court rules had provided: 

“If a defender intends to state a defence he shall (except in a summary cause) before the expiry of the induciae, lodge with the sheriff clerk a notice of appearance in the following terms". 

That provision had not been repeated in later versions of the rules.  The rules current when Cairney was decided contained a provision, rule 18, in terms very similar to those of OCR 5.10(1).  The sheriff principal posed the question for himself whether the word "appearance" in rule 18 could mean anything less than the lodging of a notice of intention to defend, which had replaced the notice of appearance.  His Lordship did not think that it could, but appears to have been of the view that, in any event, the rule in question required, at least, the attendance of the defender or his solicitors at a diet of the court.  I agree with the sheriff principal’s views.  In this case, AB’s letter to the court was to the effect that neither he nor solicitors instructed on his behalf would be attending at court.  He did not thereby “appear” in the case.  Consequently, the letter did not operate to cure the defect in citation in terms of OCR 5.10(1).

[19]      It follows that I shall repel the pleas-in-law for CD;  sustain the second and eighth pleas-in-law for AB;  reduce the decree of the Sheriffdom of Tayside Central and Fife at Stirling, dated 10 June 2010 and extracted 25 June 2010;  and reduce the charge dated and served on 2 July 2010 following on from the decree.  I shall reserve all questions of expenses.