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URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_129.html
Cite as: 2019 GWD 1-4, [2018] ScotCS CSOH_129, [2018] CSOH 129

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OUTER HOUSE, COURT OF SESSION

[2018] CSOH 129

A240/16

OPINION OF LADY PATON

in the cause

ALISTAIR JOHNSTONE and DUNEDIN DESIGN LIMITED

against

DR SUSAN MARJORY SHEPHERD

Pursuers

Defender

13 December 2018

Pursuer: Party

Defender: Duthie; Davidson Chalmers

[1] Alistair Johnstone is the first pursuer, and a limited company of which he is the

director, Dunedin Design Limited, is the second pursuer. The pursuers seek payment

averring work done in relation to a property in Edinburgh. Today’s hearing is a legal debate

on the defender’s first plea-in-law directed to the relevance and specification of the

averments.

[2] The first pursuer Mr Johnstone appears as a party litigant. There is no representation

for Dunedin Design Limited, the second pursuer. In terms of section 97 of the Courts

Reform (Scotland) Act 2014 and the Act of Sederunt (Lay Representation for Non-Natural

Persons) 2016 (SSI 2016 No 243), it is open to Mr Johnstone to apply to the court for

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permission to conduct the proceedings on behalf of Dunedin Design Limited. In terms of

paragraph 3(1) of the Act of Sederunt, such an application “is to be made” in the form set

out in the schedule.

[3] At the beginning of today’s hearing, after some debate, the court adjourned to allow

the defender’s agents and the clerk of court to compile the necessary form on Mr Johnstone’s

behalf. He has approved of the terms of the application and has signed and initialled it and

it is lodged now as number 35 of process. In that application the following matters become

clear. Dunedin Design Limited are in a position to pay for legal representation.

Mr Johnstone himself has a personal interest in the proceedings as he is the first pursuer,

hence his deletion of a paragraph in the declaration part of the form. As Mr Johnstone

explained to the court, his position is that certain papers have been removed from his

possession which makes it very difficult for him to prove his case and that is why he is

without legal representation.

[4] In my opinion, insurmountable obstacles arise from Mr Johnstone’s application.

First, in terms of section 97(3)(a) the court must be satisfied that Dunedin Design Limited is

unable to pay for lawyers to conduct these proceedings. That is not the case here as

Mr Johnstone has frankly acknowledged.

[5] Secondly, the court must be satisfied that Mr Johnstone is a “suitable person” to

conduct the proceedings, see section 97(3)(b), section 97(4)(d) and also section 97(5). These

provisions emphasise that he must not have a “personal interest” in the subject matter of the

proceedings and, as the legislation and the Act of Sederunt make clear, Mr Johnstone does

have a personal interest in the present case as he is the first pursuer. Had he not been the

first pursuer he would have been eligible to make an application to the court to represent

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Dunedin Design Limited but he is, as it happens, the first pursuer and he is not therefore a

suitable person.

[6] A third matter, which is perhaps less important and more easily remediable, is that

in terms of section 97(4)(c), the court must be satisfied that “the lay representative is

authorised by [Dunedin Design Limited] to conduct the proceedings”. In this case,

however, there is no authorising document signed on behalf of Dunedin Design Limited.

This is a matter which could no doubt be rectified, but the other two matters cannot.

[7] In all the circumstances therefore it would not be competent for the court to grant

permission to Mr Johnstone to act on behalf of Dunedin Design Limited in today’s debate,

and so the application is refused.

[8] Following upon this ruling Mr Duthie, counsel for the defender, moved the court to

dismiss the action at the instance of the second pursuer, Dunedin Design Limited, in respect

that the company failed to appear at today’s procedure roll hearing and accordingly is in

default. Reference was made to Rule of Court 20.1(1)(b) and 20.1(3). The matter is

ultimately one for the discretion of the court.

[9] Having given Mr Johnstone an hour to consider his position, the following

submissions were made by him. He contended that the matter of being unable to represent

Dunedin Design Limited had only been brought to his attention in the last few days. Had he

known earlier, say some three or four weeks earlier, he would have put things in action

before now. In relation to the difficulty in finding legal representation, Mr Johnstone

pointed out that one new lawyer approached had indicated that it might be best to seek

another commission in an endeavour to recover documents and thus obtain the evidence

that he required.

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[10] In response to Mr Johnstone’s submissions, Mr Duthie pointed out that when

appearing before Lord Brailsford on 11 October 2018 Mr Johnstone made it plain to the court

that he was seeking legal representation. As a result the defender’s agents were working on

the assumption that Mr Johnstone would be successful in that search. It was only on

11 December 2018, when Mr Johnstone sent the defender’s agents an email, that it became

apparent that he had not managed to achieve legal representation and that he would be

representing himself and by inference representing the limited company. Having received

that email, the defender’s agents then responded with an email dated 11 December 2018 to

make it plain that they could not agree to his representation of the limited company. The

agents noted that Mr Johnstone had indicated to the court that he had been trying for

months to get legal representation.

[11] Taking these submissions into account, I turn to the question for the court today,

which is whether the court should exercise its discretion and dismiss the proceedings so far

as raised by Dunedin Design Limited. When exercising that discretion I take into account,

inter alia, the following matters. By email dated 11 December 2018, time 12.20, the

defender’s agents advised Mr Johnstone as follows:

“You should be on notice that, as you cannot represent the company at any hearing,

my instructions are to seek that the action against Dr Shepherd which is brought by

Dunedin Design Limited be dismissed if that company is not represented by a

solicitor when this matter calls on Thursday. Expenses against the company for that

dismissal will be sought.”

By email dated 12 December 2018, time 14.29, the defender’s agents further advised

Mr Johnstone as follows:

“Further to Lady Paton’s request at the opposed motion hearing today for the

defender to research whether it is competent for you to also represent the second

pursuer, I attach a copy of the relevant legislation: section 97 of the Courts Reform

(Scotland) Act 2014. Please take this email as advance notice ahead of the debate

tomorrow that any application you may make to represent the second pursuer

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tomorrow in terms of that section will be opposed by the defender on the basis that

you are not a suitable person for the purposes of that section of the Act.”

A copy of the terms of section 97 was attached to the email.

[12] Turning to the procedural history of the case, Mr Johnstone and Dunedin Design

Limited raised the present action in mid-2016. Considerable adjustment of the pleadings

took place. The record eventually closed on 2 August 2017. At a By Order (Adjustment)

Roll hearing on 13 October 2017, Lord Woolman stated that the pleadings required “radical

surgery” and pointed out (a) that there was no specification in the pleadings of the work

done, and (b) the length of the pleadings obfuscated the parties’ dispute. A minute of

amendment on behalf of the pursuers was subsequently lodged (albeit late) in late

November, early December 2017. A long period of answers and adjustments followed.

Some six months later at a further By Order (Adjustment) Roll before Lady Wolffe,

Mr Dawson for the pursuers indicated that he would not be moving the minute of

amendment. A procedure roll diet was then fixed for 20 June 2018. On Friday 15 June 2018,

(ie the Friday before the week in which the procedure roll diet was to take place) the

pursuers’ agents withdrew from acting. The Rule 30 procedure was then followed. At a

hearing before Lord Brailsford on 28 August 2018 Mr Johnstone appeared in person. He

indicated that he was unable to get legal representation and sought time to do so. Time was

duly given. On 11 October 2018 the case called again before Lord Brailsford. A procedure

roll diet was fixed for 13 December 2018, that is today.

[13] I note that Mr Johnstone advises that he has sought assistance from other lawyers,

without success. He explained to the court today that his main problem focuses upon the

absence of certain papers which makes it difficult to prove his case. That is the view which

his previous lawyers took and it also appears to be the view which other lawyers he has

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consulted have reached (albeit that one suggested a further, which would be a fourth,

commission to recover documents).

[14] In the exercise of my discretion and taking all these considerations into account, it is

my view that any further postponement would not succeed in resolving the difficulties faced

by Mr Johnstone. I accordingly grant the defender’s motion for dismissal of the case so far

as at the instance of the second pursuer, that is Dunedin Design Limited.