NEIL JAMES MCKECHNIE AGAINST THOMAS HUGH MURRAY
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 4
A650/10
Lord Menzies
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in the Reclaiming Motion
NEIL JAMES McKECHNIE
Pursuer and Respondent;
against
THOMAS HUGH MURRAY
Defender and Reclaimer:
Pursuer and Respondent: Fairley QC, Cartwright; Urquharts
Defender and Reclaimer: Party
15 January 2016
The history of litigation between the parties
[1] The defender and reclaimer (“the reclaimer”), an enrolled solicitor, purported to raise and pursue an action in the sheriffdom of Tayside, Central and Fife at Stirling seeking damages of £150,000 and interest from the pursuer and respondent (“the respondent”). The respondent was a former client of the reclaimer. The details of the protracted disputes between the parties and the nature of the action raised by the reclaimer are not relevant to the issues raised in this reclaiming motion. After sundry procedure, a decree in absence was pronounced against the respondent on 10 June 2010 and extracted on 25 June 2010. The sheriff granted decree in favour of the reclaimer for payment to him by the respondent of the sum of £150,000, together with interest and expenses. Thereafter a charge for payment was served on the respondent on 2 July 2010.
[2] In September 2010, the respondent raised an action in the Court of Session for production and reduction of said pretended decree dated 10 June 2010 and of said charge. On 3 February 2015, the Lord Ordinary allowed an amendment to the pleadings of the respondent. The amendment introduced, for the first time, a new ground for reduction on the basis that the initial writ was not validly served on the respondent and the respondent did not enter the sheriff court process. The factual averments which underpinned this new ground of reduction were to the effect that the reclaimer purportedly served the initial writ on the respondent on or about 19 March 2010 by first class recorded delivery post; that at the time of service the reclaimer did not hold a valid practising certificate and the service by the reclaimer was in his capacity as a party litigant and not as a solicitor. These averments were made under reference to section 3 of the Citation Amendment (Scotland) Act 1882 (“the 1882 Act”) and section 4 of the Execution of Diligence (Scotland) Act 1926 (“the 1926 Act”).
[3] Following the amendment procedure, the Lord Ordinary granted an unopposed motion to discharge the hearing previously set down and to allow evidence to be led and argument advanced restricted to the issue, introduced by the amendment, as to whether the reclaimer had validly cited the respondent, as defender in the sheriff court action.
[4] Thereafter the Lord Ordinary heard evidence, led on behalf of the respondent, from a witness from the Law Society of Scotland’s Registrar’s Department. Her evidence, insofar as relevant, was to the effect that the reclaimer had been suspended from holding a practising certificate as a solicitor between February 2006 and February 2011. The reclaimer’s name remained on the roll of solicitors during that time. No other evidence was led.
[5] The Lord Ordinary having considered the evidence and submissions on behalf of parties relating in particular to the provisions of the 1882 Act, the 1926 Act and the Solicitors (Scotland) Act 1980 (“the 1980 Act”), concluded that postal citation may be validly effected under the statutory provisions only by a solicitor who is entitled to practise. At the relevant time the reclaimer was a solicitor but he was not entitled to practise and the Lord Ordinary concluded therefore that there was no effective service on the respondent. The Lord Ordinary also considered whether communication by the respondent to the sheriff clerk’s office might be regarded as “entering appearance” for the purposes of the Sheriff Court Ordinary Cause Rules (“OCR”) 5.10(1). He answered this question in the negative.
[6] The Lord Ordinary found in favour of the respondent and granted decree of reduction of said decree and charge. The Opinion of the Lord Ordinary and the full reasons for his decision are reported in [2015] CSOH 24.
The reclaimer’s grounds of appeal
[7] There are two grounds of appeal. The first ground is to the effect that the Lord Ordinary erred in concluding that there was no valid service because the reclaimer did not hold a practising certificate when he purported to cite the respondent and serve the action on him.
[8] The second ground of appeal is that the Lord Ordinary erred in concluding that any defect in citation was not cured in terms of OCR 5.10(1) in that the respondent by his response in correspondence did “appear” in the cause.
Submissions by the reclaimer
[9] The reclaimer adopted his detailed written note of argument and expanded this in his oral submissions in support of the two grounds of appeal. In summary, it was submitted that the reclaimer was included on the roll of solicitors in Scotland and was entitled to effect service on the respondent even if the reclaimer was also a party pursuer in the case. Under reference to Addison v Brown (1906) 8F 443, Lord McLaren at 447, an enrolled law agent or solicitor was entitled to effect service in an action to which he was a party. The relevant legislative provisions originating in the 1882 Act required only that the solicitor be on the roll of solicitors in Scotland, in other words an enrolled solicitor. There was no additional requirement that any such solicitor must be in possession of a valid practising certificate. The reclaimer made reference to the 1882 Act, section 3 and emphasised the reference therein to the words “or by an enrolled law agent”. That term was defined in the Execution of Diligence (Scotland) Act 1926. Having drawn attention to the historical provisions in the Solicitors (Scotland) Act 1933, section 50 (now repealed), reference was made to the Solicitors (Scotland) Act 1980, in particular sections 2(a) and sections 7 and 8. The reclaimer submitted that the relevant reference is to a general roll in the form of an alphabetical list of all enrolled solicitors. The action against the respondent was served by the reclaimer, a party litigant who was also a solicitor named on the roll of solicitors at the time service was effected. In these circumstances, service was validly effected having regard to the terms of the 1882 Act, the 1933 Act and the 1980 Act. The suspension of the reclaimer’s practising certificate at the relevant time was not relevant. The sheriff clerk and sheriff were fully aware of the circumstances and had concluded that service had been validly effected by the reclaimer. It is plain from the statutory provisions that what is important for the purposes of service is enrolment in the general roll of solicitors and not inclusion in the roll of solicitors holding practising certificates. The structure of the 1980 Act supports the submission of the reclaimer.
[10] In relation to the second ground of appeal, the reclaimer referred to OCR, Rule 5.10(1) which states:
“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 defects in such citation”.
The reclaimer submitted that it was not disputed that the respondent received the originating writ. He referred to the letters between the respondent and the sheriff clerk in particular the letter (6/17(21) of process) in which the respondent stated:
“…if given the opportunity, I will strongly defend myself and may well counter-sue the pursuer, as well as other individuals who have acted unlawfully against me”.
The respondent and the sheriff clerk entered into detailed correspondence over a lengthy period of time about the writ served by the reclaimer as demonstrated in 6/17 of process. The reclaimer submitted that the respondent’s actions in response to the citation and his continued correspondence with the sheriff clerk were sufficient to amount to “appearance” for the purposes of Rule of Court 5.10(1). The Lord Ordinary erred in law in concluding that the respondent did not “appear” in the case. The correct conclusion was that there was “appearance” by the respondent and this had the consequence of curing any defect in citation in terms of the relevant rule of court.
Submissions by counsel for the respondent
[11] Counsel adopted his written note of argument and supported the conclusions and reasoning of the Lord Ordinary in relation to both grounds of appeal which he submitted were ill-founded. He submitted that the principal point raised by the reclaimer is a narrow point of statutory interpretation which is easily answered if attention is directed to the correct legislation. The starting point is the 1882 Act, section 3 which represented a change in the law which entitled an enrolled law agent to serve a summons in the manner set out in the Act. There is no definition in the 1882 Act of “an enrolled law agent”. Such a definition is however provided in the 1926 Act, section 4(b) which makes specific reference to “law agents practising in any sheriff court of the sheriffdom in which the summons, warrant or judicial intimation is to be executed”. It is not sufficient qualification for the purposes of the definition in the 1926 Act merely to be named on the roll of solicitors. Said roll includes both practising and non-practising solicitors or law agents. This is plain from the consolidation provisions in the Solicitors (Scotland) Act 1980 which distinguishes between the roll of solicitors as defined in section 7, the issue of practising certificate defined in section 14 and the duty to supply lists of solicitors holding practising certificates in section 20. Reference was also made to section 65 which defines “solicitor” and defines “law agents” to include solicitors. Counsel did not dispute that the reclaimer’s name remained on the roll of solicitors at the relevant time of service but submitted that the reclaimer was not entitled to practise as his name was not included in the appropriate list provided under section 20 of the 1980 Act.
[12] In any event counsel submitted that it appears from the documentation that the reclaimer did not describe himself as a solicitor when he purported to cite the respondent. The reclaimer appears to have done this only in his capacity as a party litigant. He did not purport to act as a solicitor in the citation process.
[13] Counsel submitted that the second ground of appeal is misconceived bearing in mind that the reclaimer obtained a purported decree in absence. It is plain from the principal letter in the correspondence relied on by the reclaimer, which pre-dated the decree in absence, that the respondent explained in said letter why he was unable to defend the action. The full terms of said letter cannot be construed as “appearance”. Later correspondence between the respondent and the sheriff clerk which post-dated the decree in absence of 10 June 2010 cannot assist the reclaimer’s submission. It was not disputed that the respondent never appeared in person at any diet.
[14] Counsel invited the court to refuse the reclaiming motion and to adhere to the interlocutor of the Lord Ordinary.
Consideration of the first ground of appeal
[15] We do not consider that the decision in Addison v Brown, relied on by the reclaimer, is of assistance. That case dealt with factual circumstances in which notice of an interlocutor granting interim interdict was served by registered letter by an enrolled law agent in the cause to which he was himself a party. The objection to the validity of the citation based on non-compliance with the 1882 Act did not involve any issue about the entitlement to practise of the law agent and was restricted to the objection that the law agent was himself a party to the cause. That objection was not upheld by the court. In the present case, the objection to the validity of the service of the writ is not based on the fact that the reclaimer was both an enrolled solicitor and a party to the cause, the objection is that the reclaimer did not have a practising certificate at the relevant time and therefor was not authorised under the relevant legislation to serve the initial writ on the respondent.
[16] We consider that parties are correct to identify the starting point for consideration of the relevant legislation as section 3 of the 1882 Act which states:
“In any civil action or proceeding in any court …any summons or warrant of citation of a person, whether as a party or witness, or warrant of service or judicial intimation, may be executed in Scotland by an officer of the court…or by an enrolled law agent, ….”.
The term “enrolled law-agent” is not defined in the 1882 Act but the term is defined specifically in the 1926 Act, section 4 which states:
“For the purposes of section three of the Citation Amendment (Scotland) Act 1882, the expression ‘enrolled law agent’ shall mean –
(a) in the case of a summons, warrant or judicial intimation issued from the Court of Session, a law agent whose name is on the roll of law agents practising before such court kept in pursuance of section 12 of the Law Agents (Scotland) Act 1873; and
(b) 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 thirteen of the said Act, of law agents practising in any sheriff court of the sheriffdom in which the summons, warrant or judicial intimation is to be executed”.
The Law Agents (Scotland) Act 1873 (“the 1873 Act”) was an Act designed to amend the law relating to law agents practising in Scotland. In section 1, the terms “Law Agent” and “Enrolled Law Agent” are defined. “Law Agent” includes “Writers to the Signet, Solicitors in Supreme Courts, procurators in any sheriff court, and every person entitled to practise as an agent in a court of law in Scotland”. “Enrolled Law Agent” means “…any Law Agent enrolled pursuant to the provisions of this Act”. It is plain from the structure of the 1873 Act that at least from the date of enactment, a difference was recognised between enrolment and practice in any particular sheriff court. In terms of section 13 of the 1873 Act, it was necessary for an enrolled law agent to pay stamp duty and to subscribe to the roll in any sheriff court before being entitled to practise in terms of section 2. As originally enacted therefore, it appears that mere enrolment as a law agent would not of itself entitle a law agent to practise in any particular sheriff court. The 1926 Act, section 4 specifically imports into the terms “enrolled law agent” in the 1882 Act the concept of “practising” and in our opinion the legislation must be so interpreted.
[17] We were not given an exhaustive historical analysis of the development of the legislation after the 1873 Act in relation to the regulation of solicitors. We observe however that the same distinction, albeit in a more complicated form, is to be found in the Solicitors (Scotland) Act 1933. This was an Act which consolidated the law relating to solicitors and notaries public in Scotland. Section 7 deals with admission, registration and enrolment of solicitors. Sections 20 and 22 relate to lists to be kept of practising solicitors and the requirement to make certain payments and to subscribe to the said list before a person is entitled to practise. Section 21 makes provision in sub-paragraph 2 for a person to be struck off the list of practising solicitors in circumstances where he has been struck off the roll of solicitors or suspended from practice.
[18] The 1873 Act was repealed by section 51 of, and the third schedule to, the 1933 Act. The 1926 Act, section 4 which imports definitions from the 1873 Act into the meaning of “enrolled law agent” has not been amended and the terms of the Act in force in 2010 still make reference to the long repealed 1873 Act. Although the 1873 Act has been repealed, it is not irrelevant for present purposes. The legislation in force in 2010, when the reclaimer purported to serve the initial writ on the respondent, was the 1980 Act. Section 10 states:
“Notwithstanding the repeal by this Act of section 18(1) of the Solicitors (Scotland) Act 1933, the Council shall continue to keep in their custody the Register of Law Agents kept under the Law Agents (Scotland) Act 1873 and any relative documents transferred to their custody by virtue of section 18(4) of the Solicitors (Scotland) Act 1949”.
Section 65, the interpretation section, is also relevant. Section 65(2) states:
“(2) Unless the context otherwise requires a reference –
(a) in any enactment to law agents includes solicitors [and registered European lawyers];
(b) in any enactment to the register of law agents kept in pursuance of the Law Agents (Scotland) Act 1873 includes the roll;
….
(e) in any enactment to a solicitors’ [or registered European lawyer] being entitled to practise in the Court, or in any other court, or to act in any matter, by reasons 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”.
[19] We also note that the distinction echoed in earlier legislation is to be found in the 1980 Act. Section 4 states:
“No person shall be qualified to practise as a solicitor unless –
(a) he has been admitted as a solicitor; and
(b) his name is on the roll; and
(c) subject to section 24 he has in force a certificate issued by the Council in accordance with the provisions of this Part authorising him to practise as a solicitor (referred to in this Act as a ‘practising certificate’)”.
Section 7 makes reference to the roll of solicitors and the entitlement to any enrolled solicitor to obtain a certificate of enrolment. Section 9 makes provision for removal of the name of an enrolled solicitor from the roll of solicitors. This is in contrast, for example, to section 18 which makes provision in certain circumstances for the suspension of practising certificates. The effect of such a suspension is that a solicitor is suspended from practice as a solicitor. In our opinion the structure of the 1980 Act and, in particular sections 4 and 18, make it plain that practising as a solicitor is dependent upon inter alia the holding of a practising certificate. Admission as a solicitor and enrolment are essential to practice but are not sufficient. (1980 Act, section 4).
[20] For these reasons we are of the opinion that the Lord Ordinary was correct in his conclusion that because the reclaimer was not entitled to practise as a solicitor, he was not empowered by section 3 of the 1882 Act to validly serve the initial writ on the respondent.
[21] We consider that there may be some merit in the additional point made by counsel for the respondent, which we summarise in paragraph 12, but as we are persuaded by his principal submission, it is unnecessary to determine this point.
The second ground of appeal
[22] It is not disputed that the respondent did not appear in person and did not instruct solicitors to appear on his behalf. The reclaimer relied on the letter written by the respondent to the Clerk of Court prior to decree in absence. In our opinion the reclaimer’s submission is ill-founded. The letter must be read in its full context. It is plain from the terms of the letter that the respondent is attempting to explain why he was unable to defend the action. It is impossible to construe this letter or any other correspondence, particularly correspondence post-dating the decree in absence, as somehow constituting “appearance” by the respondent to satisfy OCR 5.10(1). In any event, as senior counsel for the respondent observed, if the respondent had entered appearance, any decree pronounced againt him would have been in foro, not in absence.
Decision
[23] For the reasons given, we consider that there was no valid service of the initial writ on the respondent and the defect in citation was not cured by “appearance” by the respondent. It was not disputed in this case that in the absence of valid citation which was not cured, no action commenced and no decree in absence could therefore competently be pronounced. In these circumstances therefore we refuse the reclaiming motion. We adhere to the interlocutor of the Lord Ordinary and reserve all matters in relation to expenses.