Scots lawyer who was suspended from practising fails in damages action against former client as writ was not validly served

Judges in the Inner House of the Court of Session upheld the decision of the Lord Ordinary, who concluded that at the relevant time the solicitor was not entitled to practise and therefore there was “no effective service”.

Lord Menzies, Lord Brodie and Lady Clark of Calton heard that the defender and reclaimer Thomas Murray had purported to raise an action seeking damages of £150,000 from the pursuer and respondent Neil McKenchnie, a former client.

After sundry procedure, a decree in absence was pronounced against the respondent in June 2010 and a sheriff granted decree for payment to the reclaimer by the respondent of the sum of £150,000, together with interest and expenses.

A charge for payment was served on the respondent the following month, but in September 2010 he raised an action in the Court of Session for production and reduction of the decree, on the ground that the initial writ was not validly served and that he did not enter the sheriff court process.

It was argued that the reclaimer purportedly served the initial writ on the respondent in about March 2010 by first class recorded delivery post, but that at the time of service the reclaimer did not hold a valid practising certificate and therefore the service by the reclaimer was in his capacity as a party litigant and not as a solicitor.

The Lord Ordinary, having considered the evidence and submissions on behalf of parties relating to section 3 of the Citation Amendment (Scotland) Act 1882, section 4 of the Execution of Diligence (Scotland) Act 1926 and the Solicitors (Scotland) Act 1980, concluded that postal citation may be validly effected under the statutory provisions only by a solicitor who is entitled to practise.

The Lord Ordinary also considered whether communication by the respondent to the sheriff clerk might be regarded as “entering appearance” for the purposes of the Ordinary Cause Rules (OCR) 5.10(1), but answered that question in the negative.

The first ground of appeal was 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.

The second ground of appeal was 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.

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 he was also a party pursuer in the case.

Under reference to the 1906 case of Addison v Brown, it was argued that 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, and there was no additional requirement that any such solicitor must hold a valid practising certificate.

In these circumstances, service was validly effected, having regard to the terms of the 1882 Act, the 1933 Act and the 1980 Act and the suspension of the reclaimer’s practising certificate at the relevant time was not relevant.

However, counsel for the respondent argued that both grounds were “ill-founded”.

It was not disputed that the reclaimer’s name remained on the solicitors’ roll at the relevant time of service, but it was submitted that he was not entitled to practise as his name was not included in the appropriate list under section 20 of the 1980 Act.

In any event the documentation showed that the reclaimer did not describe himself as a solicitor when he purported to cite the respondent and that he appeared to have done it only in his capacity as a party litigant.

Counsel also submitted that the second ground of appeal was “misconceived”, bearing in mind that the reclaimer obtained a purported decree in absence.

It was plain from the principal letter in the correspondence relied on by the reclaimer, which pre-dated the decree in absence, that the respondent explained why he was unable to defend the action and that could not be construed as “appearance”.

Delivering the opinion of the court, Lady Clark of Calton said: “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.

“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.”

In relation to the second ground of appeal, the judges observed that it was not disputed that the respondent did not appear in person and did not instruct solicitors to appear on his behalf and that the reclaimer relied on the letter written by the respondent to the Clerk of Court prior to decree in absence.

Lady Clark continued: “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).”

She added: “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.”