Solicitor conditionally restored to roll loses challenge against restriction on practising certificate

About this case:

• Citation:
  [2025] CSIH 7
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Doherty

Patrick McAuley, whose name was removed from the roll at his request in 2020, was restored to the roll subject to a condition that he would not practise as a manager in a practice unit for a period of 12 months. He submitted that the court should direct the respondent to issue a practising certificate free of conditions, or alternatively to remit the application to be considered of new.

The petition was considered by Lord Doherty, Lady Wise, and Lord Armstrong. The petitioner appeared as a party litigant while Breen, advocate, appeared for the Law Society as respondent.

Thousands of case notes

The petitioner first qualified as a solicitor in 2015 and maintained his practising certificate subscription until 2017. His name was removed from the roll of solicitors at his request on 31 October 2020. After he applied for restoration in July 2024, the respondent restored him to the roll subject to the condition. The practical effect of the condition was that, although he could practise as an employed solicitor, the petitioner could not become a partner, sole practitioner, or director or member of an incorporated practice.

In the minute of the sub-committee’s consideration and determination of the petitioner’s application, the respondent took the view that achievement of the regulatory objectives of the Solicitors (Scotland) Act 1980 would be best served by the imposition of the condition. The stated aim of the condition was reducing risk to clients which could arise from the petitioner engaging in private practice without appropriate supervision, given the comparatively restricted extent and nature of his most recent work experience.

The petitioner advanced nine grounds of challenge to the decision, including non-compliance with the Companies Act 2006, sections 248 and 249 of which applied to the respondent as a “body corporate”, and various procedural improprieties. Additionally, the purpose of the condition was not one of the respondent’s objects in terms of section 1(2) or 1(3) of the 1980 Act, and the committee failed to take into account the full extent of his legal experience, which included the publication of thousands of case notes on the internet.

Counsel for the respondent submitted that none of the arguments advanced by the petitioner were well-founded. On a fair reading of the minute, it was clear that the sub-committee had properly exercised the discretion conferred on the respondent by section 15(1). The reasons for the decision were both intelligible and adequate, and submissions that there had been breached of articles 6 and 14 as well as Article 2 Protocol 1 ECHR were misguided.

No improper purpose

Lord Doherty, delivering the opinion of the court, first dealt with the 2006 Act argument: “The first submission is based on an error. The respondent is not a company incorporated under the Companies Acts. Sections 248 and 249 of the Companies Act 2006 do not apply to it. The minute of 8 August 2024 is the record of the sub-committee’s decision and reasons. It is entirely appropriate that the court has regard to it.”

He added on the statutory objectives of the respondent: “It is plainly in the interests of the profession, their clients, and the general public that inexperienced solicitors and those who have not practised recently may be granted a practising certificate subject to a condition or conditions for a period. Oversight by a practitioner with more recent experience of practice may be prudent for the protection of clients. The sub-committee were entitled to have regard to that consideration when exercising their discretion. They did so. In doing so they were not acting for an improper purpose.”

Assessing the ECHR arguments, Lord Doherty said: “In our opinion Article 2 of Protocol No 1 is not engaged. The petitioner’s case does not concern access to an educational institution. Nor has he been denied official recognition of the educational qualifications that he has completed. On the contrary, his educational qualifications have been officially recognised. What has occurred is that, because of the petitioner’s limited recent experience of legal practice, a condition has been attached to his practising certificate.”

He concluded: “The petitioner has not identified any material matter which he maintains would have been addressed in oral representations which was not referred to in his written application. In any case, if, contrary to our view, any of these matters infringed the petitioner’s Article 6 rights, those defects have now been cured by this court’s review of the sub-committee’s decision - the review being by a court with full jurisdiction.”

Having rejected all of the petitioner’s grounds of appeal, the court affirmed the respondent’s decision and refused the petition.