Suspended solicitor could not validly serve writ in own cause, court rules
A solicitor whose practising certificate had been suspended was not entitled to serve an initial writ even in a cause on his own behalf, and no decree in absence could be taken on the writ as there had been no valid citation, the Inner House has ruled.
Three judges refused a reclaiming motion against the decision by Lord Jones to grant reduction of a decree for £150,000 with interest obtained by Thomas Murray, solicitor in an action against Neil McKechnie, a former client. Decree had been obtained in absence; reduction was granted on the basis that whereas Mr Murray had purportedly served the initial writ on Mr McKechnie by recorded delivery post, at the time his practising certificate as a solicitor had been suspended and the service was in his capacity as a party litigant, and postal citation could only be validly effected under the relevant legislation by a solicitor who was entitled to practise.
On appeal Mr Murray argued that an enrolled law agent or solicitor was entitled to effect service in an action to which he was a party, and there was no additional requirement that any such solicitor must be in possession of a valid practising certificate. The sheriff clerk and sheriff had been fully aware of the circumstances.
Delivering the opinion of the court, Lady Clark of Calton, who sat with Lord Menzies and Lord Brodie, agreed with the Lord Ordinary. The legislation, the Citation Amendment (Scotland) Act 1882 and the Execution of Diligence (Scotland) Act 1926, provided for service by an "enrolled law agent", but it was plain from the structure of the legislation that a difference had been recognised between enrolment and entitlement to practise in any particular sheriff court. As originally enacted, it appeared that mere enrolment as a law agent would not of itself entitle a law agent to practise in any particular sheriff court; and the 1926 Act, s 4 had specifically imported into the term “enrolled law agent” the concept of “practising”, and the legislation had to be so interpreted.
On a further ground of appeal, correspondence by Mr McKechnie with the sheriff clerk explaining why he was unable to defend the action, could not constitute "appearance" such as might cure the defect in citation, especially when it postdated the decree; and if it had, any decree would not have been in absence.