Jonathan Mitchell QC

Historically, only Scottish solicitors and advocates have had rights to conduct litigation, and rights of audience, in Scottish courts. European lawyers have some limited rights, which have not proved important in practice. Since sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 came into force in March 2007, however, it has been possible for members of other bodies to seek both rights of litigation and rights of audience. The Lord President’s Guide On Making An Application gives a full account of the procedure. An application must be accompanied by a draft scheme indicating the code of conduct required of members, a complaints procedure, disciplinary procedures and sanctions. The Lord President and Scottish Ministers must both approve the scheme before it can come into effect, and have powers to withdraw rights if they feel that the body is in breach of that scheme. There have been significant differences of opinion as to the approach to such applications and as to the threshold to be applied.

Two such applications have been made; by the Association of Commercial Attorneys, for construction law related cases, and ICAS, for executry work. This note deals only with the first application, as the second has not yet been dealt with.

The Association of Commercial Attorneys is a relatively small group of specialists in construction law who are not solicitors. It lobbied for many years for the relative sections of the 1990 Act to be brought into force, and was behind the freedom of infomation decision in Scottish Ministers v Scottish Information Commissioner, 2008 CSIH 8, in January 2007, which led to their commencement. It made its application in June 2007. This was approved in principle by the Lord President in October 2008. There were issues of detail thereafter, but on 21 and 22 April the Scottish Government and the Lord President respectively approved the final scheme. The Lord President has now stated that the necessary Act of Sederunt to give effect to this is being drafted and should be in force by mid-May. Presumably, necessary changes to sheriff court rules will be made simultaneously. Also on 21 April, the Faculty of Advocates added the Association to the list of bodies whose members are entitled to instruct counsel under direct access arrangements.

The scheme is lengthy and will now doubt be published elsewhere in the near future¹. It confers these rights on members of the Association.

(a) The right to conduct litigation in construction litigation in the sheriff court, including an appeal to the sheriff principal:
(b) In construction litigation in the sheriff court which the member is conducting which is proceeding by way of a small claim or a summary cause, including an appeal to the sheriff principal, a right of audience;
(c) In construction litigation in the sheriff court which the Member is conducting which is proceeding by way of an undefended ordinary action, a right of audience in relation to a motion for decree or an appeal arising therefrom.

The first obvious gap is rights of audience in defended ordinary actions. Presumably advocates, or solicitors, will be instructed for appearances. In effect, it is rights of litigation rather than rights of audience which are affected. The second is that the scheme does not, at present, extend to the Court of Session at all, as it had been envisaged it would. Nevertheless, this is potentially a significant shift in legal work away from solicitors.

The practical effects of this change are to some extent unforeseeable. The ACA scheme is approved on a sort of probationary basis, for three years initially. It has an obvious potential to bring down costs in this very expensive class of litigation if it works well. There are many indications that the business plan of its members is to undercut solicitors very substantially. It is likely, if it flourishes, not only to be made permanent, but also to be extended to the Court of Session.

Update, 5 May 2009

The Scheme (the Act of Sederunt (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) (Association of Commercial Attorneys) 2009); the amendments to the Sheriff Court rules (the Act of Sederunt (Sheriff Court Rules Amendment) (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) 2009); and the  fees rules (Act of Sederunt (Fees of Members of the Association of Commercial Attorneys in the Sheriff Court) 2009) were published today, to come into force on 20 May.

1. It has now been published: Act of Sederunt (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) (Association of Commercial Attorneys) 2009. [back]

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