Sheriff dismisses petition in case with solicitor without practising certificate

The pursuer, known as FF, sought payment of £10,572.57 from a company, known as AFMS Ltd, of which he was a creditor.

The petition was considered in Glasgow Sheriff Court by Sheriff John McCormick, who considered that the case raised concerning issues and thus issued a decision note.

Stated he was a commercial attorney

On 30 April 2020, a Mr M signed and served a statutory demand for payment on “AFMS” (not AFMS Ltd) for the specified sum. On signing the statutory demand, Mr M designed himself as “solicitor”. He later signed and lodged electronically an initial writ craving the liquidation of AFMS Ltd. A potential liquidator agreed to act in the event of the petition’s success.

On review of the papers, it became apparent that the statutory demand had been served with the name of the company misspelt and designated “a firm” instead of a limited company, and not in compliance with the terms of the Insolvency Act 1986. Further, Mr M’s name was not on the published list of practising solicitors.

Upon being asked about his identity, Mr M replied that he had been a practising solicitor some 19 years ago, that his name remained on the roll as a non-practising member, and that he was a “commercial attorney”.

The court was provided with an up to date list of commercial attorneys in Scotland, which consisted of five names. Mr M’s name did not appear on that list. After further enquiry, Mr M replied in the negative when asked if he was or had ever been a commercial attorney.

On 1 July 2020 Mr M emailed the court to advise that he was unaware that he was not entitled to sign an initial writ on behalf of a third party without a practising certificate, and he had misunderstood the term “commercial attorney.” On 3 July 2020, he emailed again to state that he was advised by a solicitor that he was able to sign the initial writ.

The statutory demand was not paid or disputed by the defender.

Misleading veneer

In his decision note, Sheriff McCormick noted that the defender did not lodge answers to the petition, saying: “It may be that its directors are content to have a liquidator appointed. It is not for me to speculate. At all odds the statutory demand for payment was not served correctly on the defender. What flows from that error is incompetent.”

Noting it would not be unreasonable for the recipient of the demand to conclude that Mr M was a practising solicitor, he said: “This case raises public protection issues. I will not ignore that. The court and each party to a litigation is entitled to expect that a representative lodging a writ is qualified to do so within the terms of [the Solicitors (Scotland) Act 1980]. After vacillating on his status, Mr M claims that he is.”

He continued: “A wrongfully convened defender may have remedies over and above an award of expenses against a pursuer in circumstances such as this. If there was negligence, that pursuer may seek indemnification from his or her representative. Problems might arise about whether, and to what extent, a representative, such as Mr M, is insured. More generally, whether an award of damages in favour of a party would truly compensate for the reputational issues arising from, for example, an advertised (but incompetent) petition for liquidation, is quite another matter.”

Sheriff McCormick concluded: “Solicitors with practicing certificates spend time and expense on continuing professional development and, where events go awry, their regulatory professional body and insurers provide a route for the aggrieved. Standards are thereby maintained. The same may not be said about those trading on a misleading veneer of competence, status and public confidence which the selective use of the professional title ‘solicitor’ engenders, all while choosing not to maintain a practicing certificate (with the accompanying regulation and public protection).”

For these reasons, Sheriff McCormick dismissed the petition as incompetent, with no expenses due by either party.

The sheriff also sent copies of the interlocutor and his decision note to the pursuer, the defender, Mr M, the proposed liquidator who had consented to act in the event of the petition being granted, and the Registrar at the Law Society of Scotland for their consideration. The Lord Advocate was also informed so that he might “take whatever action, if any, he considers appropriate in the public interest.”