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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Clark Advertising v. Scottish Enterprise Dunbartonshire [2004] ScotSC 41 (09 June 2004)
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Cite as: [2004] ScotSC 41
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Clark Advertising v. Scottish Enterprise Dunbartonshire [2004] ScotSC 41 (09 June 2004)
CA780/03
JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC
in the cause
CLARK ADVERTISING LTD
PURSUERS
against
SCOTTISH ENTERPRISE DUNBARTONSHIRE
DEFENDER
Act: Mr T A Clark (Party).
Alt: Conn, Anderson Fyfe, Solicitors.
GLASGOW, 9 June 2004.
The Sheriff Principal having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor complained of dated 4 February 2004; finds the pursuer and appellant liable to the defenders and respondents in the expenses occasioned by the appeal (excluding therefrom the expenses of the cross-appeal) and remits the account thereof when lodged to the auditor of court to tax and to report thereon; remits to the sheriff to proceed as accords.
NOTE:
[1] According to article 1 of condescendence the pursuer in this action "is the firm of Clark Advertising a business partnership of Trevor Alexander Clark and Mrs Rosemary Ann Clark spouses having the trading address of 73 Southbrae Drive, Jordanhill, Glasgow". The subject matter of the action arises out of the grant of a commercial lease of business premises by the pursuer as landlord in favour of the defenders Scottish Enterprise Dunbartonshire as tenants.
[2] The action was raised as a commercial action in terms of Chapter 40 of the Ordinary Cause Rules. At a Case Management Conference on 4 February 2004 objection was taken to Mr Trevor Clark appearing to represent the pursuer. After hearing submissions the sheriff pronounced an interlocutor sisting the cause to enable the pursuer to obtain legal representation, and granted leave to appeal. At the hearing of the appeal the pursuer was again represented by Mr Clark, accompanied by Mrs Clark.
[3] In holding that the pursuer, as a firm and as such an artificial entity, required to be legally represented, the sheriff took into account a passage to that effect in the 2nd Ed of Macphail Sheriff Court Practice para 1.32 and the cases of McBeth & McLagan v McMillan, 1914 SC (J) 165 and Strathclyde Regional Council v Sheriff Clerk, Glasgow, 1992 SLT (Sh Ct) 79. In the first of these cases the High Court of Justiciary refused to allow a firm of solicitors, appealing against a conviction for failing to pay National Insurance contributions, to be represented by one of the partners of the firm. In the second case, my predecessor Sheriff Principal Macleod QC declined to allow the Treasurer of a Youth Club to represent that organisation in an action of forthcoming. He observed that whilst a party litigant was in a special position as "the natural person litigating" he was "quite different from artificial persons who can litigate only by being represented". In the present case the sheriff considered that he was bound by these decisions and that he could not innovate on an established rule relating to rights of audience.
[4] Mr Clark lodged a Note of Appeal and subsequently added to it by a note headed "Revised First Note of Adjustments". Together they run to 22 paragraphs and the contents contain the thrust of Mr Clark's argument on the question of representation. These arguments contain certain observations regarding the propriety of the actings of the defenders and their solicitor in challenging his right to appear. I am entirely satisfied that it was neither vexatious nor improper for this matter to be raised. Any defender, faced with a substantial claim, is entitled to raise an issue of the propriety of his opponent's representation; even if the defenders had not raised the point it would have been incumbent on the court to be satisfied that an established rule of procedure was being observed.
[5] Notwithstanding the extensive nature of the grounds of appeal I consider that the solicitor for the defenders was well founded in submitting that there were in essence six tranches to it. Of these, three can be dealt with readily. The first is a suggestion that the defenders acquiesced in Mr Clark "acting as a party litigant for the pursuer". This arises because in the course of correspondence to Ms Annabel Goldie MSP a director of the defenders wrote that "Mr Clark had referred the matter to the courts" and affirmed that it was his right to do so. It is in my view quite impossible to view that as acquiescence in the pursuer firm not being properly represented; even if it was the court would not be bound by acquiescence in conduct if it is adjudged to be unlawful. Secondly, it is maintained that special consideration should be given to the fact that this is a commercial action "which has its emphasis on modern and streamlined court practice and fast efficient economical dispute resolution" (sic). The argument continues: "Denial of the right for a suitably prepared and very well informed party litigant to appear is inconsistent with this objective". One cannot help but observe that experience has shown that many party litigants who perceive themselves to be "suitably prepared and well informed" have the tendency to elaborate their position to the point of obfuscation. In the present case the pleadings, which run to some 58 pages and involve 55 articles of condescendence can scarcely be designed to achieve a swift and economical result whatever their merits in terms of exactitude. Be that as it may there is simply no justification for relaxing the rules relating to representation for cases which are brought under Chapter 40 of the Ordinary Cause Rules. The definition of "commercial action" covers a range of cases of a type which tend to be dealt by those having particular expertise in what is generally regarded as a more complex area of the law. Relaxation of the rules as to representation might well have the opposite effect than that of creating an efficient procedure. Thirdly, an argument was advanced that it would be "legally competent though perhaps somewhat cumbersome and contrived" for the pursuer to assign its contractual rights in its relationship with the defender to Mr Clark. That argument can, I consider, be shortly dealt with on the basis that no such assignation has taken place.
[6] The more substantial arguments turn in my view on questions relating to the effect of article 6 of the European Convention of Human Rights; to the force of the authorities on questions of representation in this area; and to the particular position of the pursuer as an entity comprising two natural persons. In relation to ECHR it is contended that "denial of the pursuer's right to appear as a party litigant infringes the pursuer's rights under article 6.1". That argument is developed along three lines. First, it is submitted that as a "constituent part of the pursuer" Mr Clark's right "to appear and be heard as a party litigant and to conduct the case personally is in inalienable under article 6.1". Secondly, by contrast (or perhaps more accurately by way of contradiction) it is contended that as article 6.1 applies not only to natural persons but to companies and commercial entities the firm has an inalienable right to have the case conducted for it by one or both of its partners. Thirdly and separately there is an argument relating to "equality of arms", the substance of it being that whilst on the one hand the defender has substantial resources enabling it to secure legal representation of high calibre, because of the "intimate knowledge of detail and fact accumulated personally by Mr Clark it is the pursuer's strongly held belief that its prospect of success is greatest if it conducts the case as a well prepared party litigant". This argument I regard as something of a grasp at a straw. It has from time to time been argued that the inability to obtain legal representation offends against the principle of equality of arms; it would, I consider, be a perverse feat of reasoning to hold that such inequality is created by a requirement to obtain such representation. So far as the other branches of the article 6 argument are concerned, I take the view that the true and important issue is whether a rule requiring an artificial person to obtain legal representation before litigating constitutes an undue restriction on that body (as distinct from its constituent parts) obtaining access to the courts.
[7] It is well recognised that the right of access to the courts contemplated by article 6.1 is not an absolute right but may be subject to limitations: see Ashingdane v United Kingdom, 1985 7 EHRR 528 at para 57. That case makes it clear that the extent of such limitation is a matter for regulation by the State concerned, in which a margin of appreciation is enjoyed. The limitations applied to the right of access to a court must not be such that the very essence of the right is impaired and must pursue a legitimate aim complying with the principle of proportionality: see Lester & Pannick Human Rights Law and Practice para 4.6.18. The question therefore becomes one in my view of whether the rule set out in para 1.32 of Macphail meets these requirements, that is to say whether it is necessary in a democratic society and whether it pursues a legitimate aim.
[8] There is a compelling passage in the judgment of Sir John Donaldson MR in Abse v Smith, 1986 1 QB 536 at 545 to 546 where he sets out that "limitation of the categories of persons whom courts are prepared to hear as advocates for parties to proceedings before them is...a feature of all developed systems for the administration of justice". His Lordship deals in some detail with the advantages to, and the particular requirements of, the public interest which promotes the need for such limitation. These remarks were made in relation to a question of whether a solicitor had a right of audience in the High Court in England and should no doubt be read in that restricted context. It is nevertheless a case of significance in which the justification for restricting rights of audience is fully explained with particular reference to the public interest. By contrast in the case of McBeth & McLagan v McMillan (supra) no opinions are reported, and if that case had stood alone the view might well be taken that a case before the criminal courts in 1914 should not be regarded as decisive in the present context. Equally it might be argued that the position adopted by the House of Lords in Equity & Law Life Assurance Society v Tritonia Ltd & Anr, 1943 SC (HL) 88 that in an appeal before the House no one has any right of audience except counsel instructed on behalf of a party or, when the litigant is a natural person the party himself or herself, is a rule confined to proceedings before the House. Thus the Lord Chancellor (Viscount Simon) observed (at p 90) that:
"Such a rule limiting a right of audience on behalf of others to members of the English or Scottish or Northern Irish bars, secures that the House will be served by barristers or advocates who observe the rules of their profession, who are subject to a disciplinary code, and who are familiar with the methods and scope of advocacy which are followed in presenting arguments to this House".
His Lordship did preface these remarks by reference to the "well established rule that argument...on behalf of one individual by another is only permitted if that other is briefed as counsel" but was referring to "argument at Your Lordship's bar", which might permit the interpretation that these remarks were not of wider application.
[9] The rule laid down by the House of Lords, and the justification for it were nonetheless adopted and applied in the Sheriff Court in the case of Scottish Gas Board v Alexander, 1963 SLT (Sh Ct) 27 in which it was decided that an employee of the Scottish Gas Board, who was also a member of the Faculty of Advocates, was not entitled to appear in the capacity of employee of a corporate body. That decision has never been doubted. A similar approach was taken by Sheriff Principal Macleod in Strathclyde Regional Council v Sheriff Clerk, Glasgow (supra). As I have set out, the Sheriff Principal distinguished a party litigant from "artificial persons who can litigate only by being represented". He said:
"It seems to me that the justification for requiring such a representative to be an individual who is subject to the discipline of a branch of the legal profession and familiar with law, practice and procedure of the court applies equally whether that artificial person be a corporation or an unincorporated body".
This view is adopted by the learned authors of Macphail in para 1.32 in their justification of the "object of the rule" that firms, companies and other artificial entities must always be represented.
[10] I confess to having a measure of difficulty with this approach. If the "object of the rule" is to secure service to the court, both in terms of maintaining its efficiency and its reliance on the probity of those who appear before it, it is hard to see why a party litigant should be treated as an exception. I respectively consider, however, that the various passages to which I have referred might have gone further in dealing with the public interest justification that an artificial legal entity must always be legally represented. It is a matter of answerability and accountability. At the extreme, it is not acceptable that cases which may have no proper foundation and which may involve ill-founded accusations should be conducted by individuals who can attempt to avoid the consequences of their actions by maintaining that they are representing the interests of a distinct legal entity, and can protect themselves by shielding behind it. Even if an opponent is possessed of substantial resources there is no reason why he should be subjected to prolonged litigation at the hand of one who purports to represent another. On a more prosaic level, there is a presumption that a legal representative has the instructions of his client and will represent the interests of that client with due regard to his duties to the court. The court cannot entertain the same confidence in the member of a firm who owes no such duties and who may in substance be representing his own interests. The rule therefore exists not merely to enhance the operation of the courts in terms of efficiency, but also to promote the integrity of justice. That, in turn, provides for the protection of potential opponents whose interests must not be lost sight of. There can be little doubt in my judgement that the existence of a rule requiring artificial entities to be legally represented is both proportionate and legitimate.
[11] In consequence I am in no doubt as to the existence of the general rule, and indeed the value the of it is acknowledged in the written submissions lodged by Mr Clark. These contain the admission "that there may be merit in defining the type of partnership that can be represented by one of its partners acting as a party litigant, possibly restricting this privilege to partnerships that are comprised entirely of partners who are themselves natural persons, and if further limitation is required, possibly restricting to partnerships where all partners are present during legal proceedings, or possibly restricting to partnerships with a defined maximum number of partners". Upon the basis of that admission it might be said that the question which arises in this case is confined to the issue of whether a partnership which comprises two natural persons can be represented by one of them in legal proceedings with the other one present. One can have some sympathy with the view that such a situation would not be radically different from that of the party litigant. I am not, however, prepared to depart from the general rule for two reasons. In the first place it is a rule derived from the highest authority and in consequence I am doubtful whether it is open to me to create exceptions. I would not, however, be disposed to do so. It appears to me that the considerations which I have outlined in terms of accountability and answerability continue to apply notwithstanding the composition of a partnership which consists only of natural persons. To create a rule providing for a maximum size of partnership in which the firm can be represented by one partner would have the potential for absurdity.
[12] In these circumstances I shall refuse the appeal and adhere to sheriff's interlocutor. There remains the matter of the cross-appeal. This was lodged at a late stage. It contains the contention that the initial writ was not competently signed because it was signed by Mr Clark, and in consequence the action ought to have been dismissed. This matter is not dealt with specifically by the sheriff in his Note although he does make reference to a "secondary submission" for the defenders which he did not consider it necessary to deal with.
[13] In my view the argument as printed in the grounds of the cross-appeal adds nothing to the principal argument in the appeal and the accepted practice where a party appears without proper representation appears to be to sist the cause for that to be cured, rather than to dismiss the action.
[14] The thrust of the argument advanced by the defenders' solicitor was, however, that the writ had been drafted unlawfully and in consequence should not have been warranted. Reference was made to Dana Ltd v Stevenson, 1989 SLT (Sh Ct) 43 in which it was held that a summary cause summons could not be warranted because it had been drafted by the employee of a limited company who was not a solicitor. That decision was founded on the terms of Section 32 of the Solicitors (Scotland) Act 1980 which makes it an offence for an unqualified person to draw a writ relating to legal proceedings. As sub-section (2) of that section makes plain this provision is directed towards preventing unqualified persons drafting writs for gain or reward and in my view has no application to the present situation. Equally an attempt was made to invoke Section 26 of the 1980 Act and to suggest that any solicitor who came into the action on behalf of the pursuer at this stage would be committing an offence by acting "as agent for an unqualified person". In my view that argument is wholly misconceived. Section 26 deals with solicitors who act "upon the account or for the profit of any unqualified person". To act for the present pursuer in this case would not involve acting upon that basis.
[15] In these circumstances I shall refuse the cross-appeal. The pursuer will be found liable to the defenders in the expenses occasioned by the appeal, excluding therefrom the expenses of the cross-appeal.