Scottish Sheriff Court Decisions

BANK OF SCOTLAND v. IAN MITCHELL [2001] ScotSC 21 (8th November, 2001)

Bank of Scotland v Ian Mitchell.

The Sheriff, having resumed consideration of the cause, refuses to grant a warrant for citation on the foregoing writ.

NOTE:

I was surprised to have my attention drawn by the Sheriff Clerk in Dundee to a communication from a firm of solicitors in Stratford-upon-Avon enclosing an Initial Writ at the instance of the Bank of Scotland against Ian Mitchell, who is alleged to owe the potential pursuers money and who resides within this court's territorial jurisdiction, together a cheque from those English solicitors in payment of the fee for the warrant, all accompanied by a letter which read, inter alia:-

"We enclose herewith the Initial Writ and should be obliged if you would issue a Warrant for service. Our cheque is enclosed herewith in respect of the dues of Warrant and we should be grateful if you would return the Writ and Warrant to our Scottish Agents, Maclay Murray and Spens, as indicated on the Writ itself."

The Writ, which contained pleadings germane to the recovery of a credit card debt, purported to be signed by someone whose signature I could not make out, but the designation was the firm name and address of Messrs. Maclay, Murray & Spens, Solicitors, Glasgow. I considered that these circumstances called for some explanation, standing the provisions of the Solcitors (Scotland)Act, 1980, as amended, and the European Communities (Lawyer's Practice)(Scotland) Regulations, 2000.

Mr. Frood of Messrs. Maclay, Murray & Spens duly addressed me in chambers and I was grateful to him for his frank and concise exposition of the circumstances. He told me that his firm considered that their clients were Messrs. Geoffrey Parker Bourne, the English solicitors from Stratford-upon-Avon, who, in turn, were instructed by a firm of debt collectors who were instructed by the pursuers. When litigation was required to recover the debt, it had been the former practice of the debt collection agency concerned to instruct a firm of solicitors in Edinburgh called Pearsons, who had developed or had had commissioned a software package to "customise" Scottish debt collecting. This firm had dissolved and the solicitors in Stratford-upon-Avon had acquired the software and were using it, they having previously been instructed in England and Wales to undertake litigation on behalf of the debt collectors, who considered that it was "more economic" to "centralise" debt collection. On the demise of Messrs. Pearsons, Messrs. Maclay, Murray and Spens had been asked if they would be prepared to act as Scottish agents. They had agreed to do so. What now happened was that the writs were "drafted" by Messrs. Geoffrey Parker Bourne and "revised" by Messrs. Maclay, Murray and Spens. The English solicitors sought the warrants and the writs were then returned to Messrs. Maclay, Murray and Spens for service. Having served them, Messrs. Maclay, Murray and Spens then returned the writs to Stratford-upon-Avon where Messrs. Geoffrey Parker Bourne undertook the task of checking the expiry of induciae and whether Notices of Intention to Defend were lodged - they were checking with sheriff clerks around Scotland, in other words, and, if no appearance had been entered, Messrs. Geoffrey Parker Bourne would print off a Minute for Decree and return the writ to Messrs. Maclay, Murray & Spens to sign the Minute and return the writ to the court with a request for an extract. If a Notice of Intention were lodged, Messrs Maclay, Murray & Spens would then be instructed to deal with the defended proceedings.

I pause simply to draw attention to the fact that nowhere in this narration of the practice adopted was the word "assignation" mentioned. It therefore appeared to me that Messrs. Maclay, Murray and Spens were acting, insofar as they were acting at all, as the agents of the agents of the agents of the pursuers, hardly a satisfactory relationship between solicitor and client for the proper conduct of litigation.

The immediate question for me, however, was whether the foregoing system as applied to the writ before me disclosed any impropriety of such significance that it would be wrong to grant a warrant for service. Mr. Frood submitted that there was no such impropriety, though he was frank enough to recognise that the system was far from satisfactory. He drew my attention to the decision of my learned colleague, Sheriff I.D. MacPhail, in Dana Limited v Stevenson 1989 SLT (Sh.Ct.) 43, which he told me was the only authority he could trace on the application of Section 32 of the Solicitors (Scotland) Act, 1980, which section he considered was in point in the present circumstances. That case concerned the drafting of a summary cause writ by a person who was not a solicitor. At 44D-F the learned sheriff explained his conclusion that he could not sign the summons as it had been unlawfully drafted by reference to the then applicable provisions of Section 32, which precluded the drafting or preparation of writs other than by a solicitor on the roll of the Law Society of Scotland and with a current practising certificate from them, or by counsel. The drafter of the writ, who was an office manager, did not fall within the then applicable list of exceptions to that provision as he was receiving remuneration for his work, part of which was the drafting of summonses.

Mr. Frood drew my attention to the amendments to Section 32 of the 1980 Act made principally by the Law Reform (Miscellaneous Provisions)(Scotland)Act, 1990, though also by the Solicitors (Scotland) Act, 1988, the Law Reform (Miscellaneous Provisions)(Scotland) Act, 1985 and the European Communities (Lawyer's Practice)(Scotland) Regulations, 2000, which in its currently amended form can be found at pages F20-21 of the Parliament House Book. He particularly focused on Section 32(2)(a) which provides that subsection 1, which makes it an offence for an unqualified person, inter alia, to draw or prepare any writ relating to any action or proceedings in any court, does not apply "to an unqualified person if he proves that he drew or prepared the writ or papers in question without receiving, or without expecting to receive, either directly or indirectly, any fee, gain, or reward (other than by remuneration paid under a contract of employment.)" He submitted that the effect of the addition of the words in brackets was that anyone in the world could draft the writ, including downloading it from the Internet, and that that would still consist with the provisions of Section 32. Drafting, could be carried out by anyone provided they did not receive a direct reward for doing so. There was no reason why I should not grant a warrant for citation.

I took time to consider the circumstances and the submission made to me in relation to them.

The Solicitors (Scotland) Act, 1980, as amended, is the primary legislation governing the regulation and conduct of the solicitor branch of the legal profession in Scotland. The starting point, in my opinion, for a consideration of the issues raised here, is section 4 of that Act. It provides that:-

" No person shall be qualified to practise as a solicitor unless-

1. he has been admitted as a solicitor; and
2. his name is on the roll; and
3. subject to Section 24 (which relates to solicitors in public service), he has in force a certificate issued by the Council (of the Law Society of Scotland) in accordance with the provisions of this Part authorising him to practise as a solicitor (referred to in this Act as a 'practising certificate.')"

It is an offence in terms of Section 23 of the Act to practise or hold oneself out as entitled to practise as a solicitor without having in force a practising certificate "unless he proves that he acted without receiving or without expectation of any fee, gain or reward, directly or indirectly. It would therefore be an offence for any solicitor not having a current certificate to pretend he could conduct Scottish litigation, whether his business was located in Scotland or elsewhere, unless he could prove that he would act without expectation of any fee, gain or reward. It was not suggested to me in the present case that Messrs. Geoffrey Parker Bourne were acting without any expectation of any fee, gain or reward. Nor was it suggested that they could be regarded as "registered European lawyers," for any purpose connected with the practice of law in Scotland.

Section 25 of the Act provides that, " Every person qualified to practise as a solicitor in accordance with Section 4 may practise as a solicitor in any court in Scotland." That is, of course, subject to the provisions about rights of audience in the High Court and the Court of Session. It is, however, true of all sheriff courts.

Section 26 seems to me to be of some potential significance in the present circumstances. It provides that:-

"(1) Any solicitor to whom this subsection applies who or any incorporated practice which upon the account or for the profit of any unqualified person-

1. acts as agent in any action or proceedings in any court, or
2. permits or suffers his or, as the case may be, its name to be made use of in any way in any such action or proceedings; or
3. draws or prepares any writ to which section 32 applies; or
4. permits or suffers his or, as the case may be, its name to be made use of in the drawing or preparing of any such writ; or
5. does any other act to enable that person to appear, act or practise in any respect as a solicitor or notary public,

knowing that person not to be a qualified solicitor or notary public, as the case may be, shall be guilty of an offence.

(2) Subsection (1) applies to any solicitor or registered European lawyer pursuing professional activities within the meaning of the European Communities (Lawyer's Practice)(Scotland) Regulations 2000, not being a solicitor or registered European lawyer pursuing professional activities within the meaning of the European Communities (Lawyer's Practice)(Scotland) Regulations 2000 who is employed full-time on a fixed salary by a body corporate or employed by a law centre.

(3) In this section "person" includes a body corporate but "unqualified person" does not include an incorporated practice or registered European lawyer pursuing professional activities within the meaning of the European Communities (Lawyer's Practice)(Scotland) Regulations 2000."

It appears to me that there may be, in the circumstances here, on the hypothesis that the solicitors in Stratford-upon-Avon are not acting gratuitously, an offence being committed by the firm of solicitors in Glasgow by permitting the use of its name in the drawing or preparation of this writ.

Section 32, which, as I have already said, makes it an offence for an unqualified person to draw or prepare a writ relating to any action or proceedings in court, is now subject to the provisions of Regulations 6, 11, 12 and 13 of the European Communities (Lawyer's Practice)(Scotland) Regulations, 2000. Regulation 11 seems to be to be particularly relevant to the present circumstances. It provides:-

"(1) Subject to paragraphs (2) and (4), no enactment or rule of law or practice shall prevent a registered European lawyer from pursuing professional activities relating to the representation of a client in any proceedings before any court, tribunal or public authority (including addressing the court, tribunal or public authority) only because he is not a solicitor or advocate.

(2) In proceedings referred to in paragraph (1), where the professional activities in question may (but for these Regulations) be lawfully provided only by a solicitor or advocate, a registered European lawyer shall act in conjunction with a solicitor or advocate who is entitled to practise before the court, tribunal or public authority concerned and who could lawfully provide those professional activities.

(3) The solicitor or advocate referred to in paragraph (2) shall, where necessary, be answerable to the court, tribunal or public authority concerned in relation to the proceedings.

(4) A registered European lawyer shall not have a right of audience in a supreme court unless he has completed the course of training in evidence, pleading and practice in relation to that court which must be completed by any member of the professional body with which he is registered who seeks a right of audience in that court."

When I saw the writ and correspondence initially in this case, I had assumed, it seems wrongly in the light of Mr. Frood's submissions, that both his firm and Messrs. Geoffrey Parker Bourne might have wrongly concluded that they were entitled to act in conjunction in the manner contemplated by Regulation 2. Mr. Frood made it clear that he was not suggesting any such relationship and accepted without hesitation, given the terms of Regulation 2 and, in particular, the provisions of paragraphs (2), (3) and (4), that a solicitor practising in England who was not registered as a solicitor with the Law Society of Scotland could not be a European lawyer for the purposes of Regulation 11(2), England not being a member state, as such, of the European Union.

So I now return to the words of section 32. It is an offence for an unqualified person to draw or prepare any writ relating to an action or proceedings in any court. The Initial Writ in the present case is undoubtedly and uncontestedly a writ relating to an action or proceedings in any court. Any person who is not admitted as a solicitor, with his name on the roll maintained, in terms of the 1980 Act, as amended, by the Law Society of Scotland, with a current practising certificate, or a registered European lawyer, is, by implication, an unqualified person. The unidentified person whether legally qualified or otherwise and whether in the employment or a partner of a firm of solicitors in England who drew or prepared this writ is therefore, prima facie, an unqualified person. In my opinion, the qualification contained in Section 32(2)(a) to the generality that an unqualified person commits an offence by preparing such a writ, is intended to permit unqualified staff employed by solicitors who currently fulfil the qualifications for practising as a solicitor in Scotland, as set out in Section 4 of the Act, wherever they may be located, or by registered European lawyers, to draft or prepare such writs. I am fortified in this view by the provisions of Ordinary Cause Rule 3.1.(7), which require an Initial Writ to be signed either by the pursuer or his solicitor and the name and address of that solicitor to be stated on the back of every service copy of the Writ, together with the requirement of Rule 3.1(1)(a) that an ordinary cause shall be commenced by initial writ in Form G1, which form requires the writ to be signed by the pursuer or his solicitor. It is a reasonable inference that any preparation or drafting by such unqualified staff will be revised by the solicitor prior to his appending his signature. Of course, in proceedings like the present, a corporation, such as the pursuers here, can only act via their solicitors. I accept that the unqualified person could be located anywhere in the world, as was submitted to me, but they would require to be employed by a Scottish solicitor with a current practising certificate or by a registered European lawyer or to otherwise fall within the exceptions set up in Section 32(2)(a). In the present case it was clear that the unqualified person operated under the auspices of a firm of English solicitors. If they wish an opportunity to prove, in terms of Section 32(2)(a) that the writ was drawn or prepared without them receiving or expecting to receive, either directly or indirectly, any fee, gain, or reward, then I am quite prepared to avail them the opportunity to do so. Meantime, however, as I am of the opinion that I have been presented with a writ illegally drafted by an unqualified person, whose illegal drafting has been illegally assisted by a firm of Scottish solicitors who have allowed their name to be associated with this process, I shall decline to grant a warrant of citation.