19 years later ‘rights of audience’ sections of 1990 Law Reform legislation become Act of Sederunt in Scotland

We all know the Scots justice system is somewhat slow, but nineteen years is a long time to wait on the implementation of acts of law designed to widen rights of audience in the Scottish Courts.

Yes, some 19 years later, the famous Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 have become an Act of Sederunt, only it seems because the Justice Secretary and Lord President were running out of excuses to hold back on the approval of rights of audience applications by people from outside the legal establishment.

This all somewhat conflicts with the terms of a leaked letter from Justice Secretary Kenny MacAskill to Cabinet Secretary for Finance John Swinney, dated 25 July 2007 .. where the impression was given that applications were progressing to approval … and now some two years on from that, applicants still have to deal with a barrage of obstructions from both the Government and the Scots legal establishment.

Announcement of Sections 25-29 becoming law (19 years later) :

Act of Sederunt (Sheriff Court Rules Amendment) (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) 2009 No. 164

Scottish Statutory Instruments

2009 No. 164

SHERIFF COURT

Act of Sederunt (Sheriff Court Rules Amendment) (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) 2009

Made

24th April 2009

Coming into force

20th May 2009

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971(1) and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:

Citation, commencement and interpretation

1.—(1) This Act of Sederunt—

(a) may be cited as the Act of Sederunt (Sheriff Court Rules Amendment) (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) 2009; and

(b) comes into force on 20th May 2009.

(2) This Act of Sederunt is to be inserted in the Books of Sederunt.

(3) In this Act of Sederunt—

“the Ordinary Cause Rules” means the First Schedule to the Sheriff Courts (Scotland) Act 1907(2);

“the Summary Application Rules” means the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999(3);

“the Summary Cause Rules” means the Summary Cause Rules in Schedule 1 to the Act of Sederunt (Summary Cause Rules) 2002(4);

“the Small Claim Rules” means the Small Claim Rules in Schedule 1 to the Act of Sederunt (Small Claim Rules) 2002(5).

Amendment of rules in consequence of sections 25 to 29 of the 1990 Act

2. In rule 1.2 (interpretation) of the Ordinary Cause Rules, at the end there is added—

“(6) In these Rules, references to a solicitor include a reference to a member of a body which has made a successful application under section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990(6) but only to the extent that the member is exercising rights acquired by virtue of section 27 of that Act.”.

3. In rule 1.2 (interpretation) of the Summary Application Rules, at the end there is added—

“(4) In this Act of Sederunt, references to a solicitor include a reference to a member of a body which has made a successful application under section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 but only to the extent that the member is exercising rights acquired by virtue of section 27 of that Act.”.

4.—(1) The Summary Cause Rules are amended in accordance with paragraphs (2) and (3).

(2) In rule 1.1 (citation, interpretation and application), after paragraph (4) there is inserted—

“(4A) In these Rules, references to a solicitor include a reference to a member of a body which has made a successful application under section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 but only to the extent that the member is exercising rights acquired by virtue of section 27 of that Act.”.

(3) In rule 23.3 (expenses), in paragraph (1) for “statutory table of fees of solicitors appropriate to the action” there is substituted “applicable statutory table of fees”.

5.—(1) The Small Claim Rules are amended in accordance with paragraphs (2) and (3).

(2) In rule 1.1 (citation, interpretation and application), after paragraph (4) there is inserted—

“(4A) In these Rules, references to a solicitor include a reference to a member of a body which has made a successful application under section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 but only to the extent that the member is exercising rights acquired by virtue of section 27 of that Act.”.

(3) In rule 21.6 (expenses), in paragraph (2) for “statutory table of fees of solicitors appropriate to a summary cause” there is substituted “applicable statutory table of fees”.

A. C. HAMILTON

Lord President I.P.D.

Edinburgh

24th April 2009

Explanatory Note

(This note is not part of the Act of Sederunt)

By sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, any professional or other body may, for the purpose of enabling any of their members who is a natural person to acquire rights to conduct litigation or rights of audience, make an application for that purpose to the Lord President of the Court of Session and the Scottish Ministers. Such an application must include a draft scheme, which the Lord President and the Scottish Ministers may approve. Section 27(1) of the 1990 Act provides that where such an application has been granted any member of the body concerned who is qualified under the scheme and who appears to the body to be a fit and proper person has the rights to conduct litigation or rights of audience to which that qualification entitles him or her. This Act of Sederunt amends the principal sets of sheriff court rules so as to ensure that they properly accommodate the possibility of such a person conducting litigation or exercising a right of audience in the sheriff court.

Sections 25 to 29 of the 1990 Act were brought into force in March 2007.

(1)

1971 c. 58; section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4), the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2), the Adults with Incapacity (Scotland) Act 2000 (asp 4), schedule 5, paragraph 13 and the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43, and was extended by the Child Support Act 1991 (c. 48), sections 39(2) and 49, the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(2) and the Bankruptcy and Diligence (Scotland) Act 2007 (asp 3), section 33. Back [1]

(2)

1907 c. 51. Schedule 1 was substituted by S.I. 1993/1956 and amended by S.I. 1996/2167 and 2445 and S.S.I. 2000/239 and 408, 2001/8 and 144, 2002/7, 128 and 560, 2003/25 and 26, 2004/197 and 350, 2005/20, 189, 638 and 648, 2006/198, 207, 293, 410 and 509, 2007/6, 339, 440 and 463 and 2008/121, 223 and 365 and 2009/107. Back [2]

(3)

S.I. 1999/929, amended by S.S.I. 2000/18 and 387, 2001/142, 2002/7, 129, 130, 146 and 563, 2003/26, 27, 98, 261, 319, 346 and 556, 2004/197, 222, 334 and 455, 2005/61, 473, 504 and 648, 2006/198, 410, 437 and 509, 2007/6, 233, 339, 440 and 463 and 2008/9, 41, 111, 223, 335 and 365 and 2009/107 and 109. Back [3]

(4)

S.S.I. 2002/132, amended by S.S.I. 2003/26, 2004/197, 2005/648, 2006/509, 2007/6, 339, 440 and 463 and 2008/121, 223 and 365 and 2009/107. Back [4]

(5)

S.S.I. 2002/133, amended by S.S.I. 2003/26, 2004/197, 2005/648, 2006/509, 2007/6, 339, 440 and 2008/121, 223 and 365 and 2009/107. Back [5]

(6)

1990 c. 40. Back [6]

Consumer Focus Scotland welcomes approval of Association of Commercial Attorneys to represent litigants in civil court

Consumer Focus Scotland has welcomed the long awaited approval of the Association of Commercial Attorneys application under the terms of Section 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, for rights of audience in the Scottish Courts.

Despite the cheer, and much needed addition of the Association of Commercial Attorneys to the access to justice debate, their practising certificate remains heavily restricted to construction law only .. at the insistence of legal establishment insiders, apparently worried their grip over Scotland’s monopolistic legal services market is slipping. (and about time too – Ed)

Consumer Focus Scotland’s Press Release :

New voice to be heard in Scotland’s courts

Consumer watchdog says group’s new right of audience helps open up Scottish courts

A significant step in opening up Scotland’s court system to competition will be taken today with the granting of rights of audience in certain cases in the sheriff courts to a new group of legal specialists who are neither solicitors nor advocates.

Scotland’s foremost consumer watchdog, Consumer Focus Scotland, is welcoming the decision to give the Association of Commercial Attorneys the right to bring cases to the civil courts.

Principal Policy Advocate with Consumer Focus Scotland, Sarah O’Neill, says people who need to turn to the courts will benefit if they’re able to be represented by professionals who are right for their particular case:

“The costs of legal advice and representation should never be a barrier to access to justice. Consumers who become involved in legal disputes need to have access to affordable and accessible legal services. By allowing new professional groups to represent their clients in the courts we are introducing greater competition, and if specialists can take cases to court themselves, rather than having to instruct a solicitor or advocate, clients benefit from a more efficient and less costly route to justice.”

The Association of Commercial Attorneys had its application for rights of audience in construction and building law cases under sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 accepted by the Lord President last month. From today the group will be the first to be allowed to break the monopoly of solicitors, advocates and, more recently solicitor-advocates.

Sarah O’Neill says it has been a long time coming:

“While not supporting any particular application, we have long argued that opening up the legal services market to greater competition meant greater choice and a reduction in the cost of legal representation. The legislation which was meant to open up this market lay on a shelf for sixteen years before the measure was finally incorporated into the Legal Profession and Legal Aid (Scotland) Act in 2006.

“Our hope is that the granting of Rights of Audience to the Association of Commercial Attorneys from today will encourage others to follow.”

Background

The Association of Commercial Attorneys was granted Rights of audience in relation to construction and building law cases under the Act of Sederunt (Fees of Members of the Association of Commercial Attorneys in the Sheriff Court) 2009, which comes into force today (20th May 2009).

Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 were commenced in March 2007. They set out arrangements by which rights to conduct litigation and rights of audience can be granted in Scotland to members of a professional or other body i.e. to bodies whose members are not necessarily legally qualified. Those wishing to be granted such rights have to apply to the Lord President of the Court of Session and Scottish Ministers.).