When the stakes are no longer moot (part 2)

Before we take a look at Day 2, you can read Day 1 here.

I met Ahsan the following day at 9:30am in the foyer of the court again. This time there was a legal debate. Ahsan was representing a building and construction company that was suing for an unpaid bill. Ahsan explained that this was an ordinary action as the value was more than £5,000 and this was a debate on the defender’s ‘pleas in law’. The defender was trying to have the pursuer’s case thrown out and Ahsan was arguing that the case be assigned to a proof.

Once again, we went to the civil office, where the court staff asked us to go to court 9. We met the opposing solicitor, and when Sheriff Brian Cameron entered the courtroom we all stood up. The Sheriff was more than happy for me to stay and watch the proceedings. As this was the defender’s debate, the defender’s solicitor opened up and went through the facts and the law and why the case should be dismissed. The defender’s solicitor said that there was no ‘averment’ of hours worked.

Ahsan did not interrupt but quietly sat there and made notes about what the defender’s solicitor was saying.

When the defender’s solicitor had finished, Ahsan got up and started making his submissions. Ahsan went into a lot of detail about the principles of contract law and how they applied in this case. He talked about a concept that I had heard in lectures, but I got to find out what this meant in practical terms. This was quantum meruit, which means that even if a price has not been agreed beforehand, the court can imply a reasonable price. Ahsan referred to some cases such as Avintair, Eurocopy and also Martin Bisset Bald. In relation to the absence of hours worked averment, Ahsan said that was a very simple calculation, which was in both the defender’s and judicial knowledge. All the defender had to do was divide the total price by £40 per hour.

I noticed that both solicitors were very polite to each other but at the same time, they were critical of each other’s position. Ahsan later explained that this was all part of the adversarial court system in Scotland. After the hearing, Ahsan, myself and the defender’s solicitor had a very pleasant chat in the solicitor’s robing room. Ahsan was very complimentary of the solicitor’s experience and skill, and they both agreed that they had a very good professional working relationship.

Ahsan was deferential to his opponent outside the courtroom, but assertive while advocating. They both got on really well and this made me realise that you can be an adversarial solicitor advocating strongly for your client, but at the same time have a pleasant professional relationship with your opponent. It is maybe too simplistic to say that this strengthened my desire to start my diploma and commence a traineeship as soon as possible. This is a collegiate profession I would be very proud to be a part of.

The defender’s solicitor had a nice conversation with me and gave me a lot of encouragement. I felt very motivated and spirited after my chat with her and she gave me good advice as to which areas of law to look at and what to focus on during my diploma.

After the hearing, Ahsan and I had a quick debrief. He advised me to look into quantum meruit and recommended some cases to read. I was interested to hear that Sheriff Cameron was Ahsan’s tutor in the civil litigation course during his Diploma in Legal Practice, some 14 years ago!

I was due to attend another legal debate with Ahsan in Edinburgh the following week, but this was called off the day before and was ‘sisted’ – meaning paused – for settlement. I was disappointed as this debate would include discussions about the applicability of the Consumer Credit Act 1974, specification and relevance of pleadings. However, I have heard settlement is always better than litigation, so maybe it was a good thing from the parties’ point of view.

I feel that I am more prepared for the Diploma in Legal Practice after my work experience, and shadowing Ahsan has given me a new perspective on case law. I learned that the dry text on paper was actually once pulsating with life: tired eyes, pages upon pages of written submission, scored out and re-written, red-penned and highlighted lists of authorities, anxiety before the hearing, relief after the hearing, long hours of advocacy, client expectations, and real-life issues that have significant impact on businesses, lives and the economy. Ahsan ensured that I left the experience with far more knowledge and a deeper insight than I came with.

Written by Madiha Waseem, fourth-year student at the Dundee Law School