Decree in absence granted in favour of suspended Scots lawyer reduced

A judge in the Court of Session ruled that the initial writ served by the solicitor was “defective” because he had been suspended from practice when he sent the citation.

The pursuer “AB” sought production and reduction of the 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 the defender “CD” for payment of £150,000, together with interest and expenses; and the subsequent charge for payment, which was served on 2 July 2010.

Lord Jones (pictured) heard that following proceedings before the Scottish Solicitors Discipline Tribunal, CD’s 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.

The essence of the pursuer’s argument was that because CD was suspended from practice when he purported to cite AB by post, there was “no effective service”.

In these circumstances, it was averred, the writ was purportedly served by CD in his capacity as a party litigant and not as a solicitor, and as a party litigant he was not entitled to serve the writ by post.

The defect in citation was not cured by AB, because he lodged neither a notice of intention to defend nor defences.

The only witness led for the pursuer, Denise Robertson, of the Law Society of Scotland’s registrar’s department, confirmed that CD had been suspended from holding a practising certificate between February 2006 and February 2011, but that his name remained on the roll of solicitors during that time.

She told court that a solicitor who is suspended “cannot do anything that a solicitor does”.

The defender confirmed that before granting decree in absence in his favour, the sheriff had asked to be addressed by him on the competency of service.

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 Solicitors (Scotland) Act 1980, 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”.

However, the judge reduced the decreed after ruling that a postal citation may be effected only by a solicitor who is “entitled to practice”.

Lord Jones explained that section 3 of the Citation Amendment (Scotland) Act 1882 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. But 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,” the judge said.

In a written opinion, Lord Jones said: “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.”