Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 32

XA166/14

Lord President

Lord Justice Clerk

Lord Menzies

OPINION OF THE LORD PRESIDENT

 

in the Single Bill on behalf of the Applicant

in the application by

 

TAYLOR CLARK LEISURE PLC

Applicant;

against

 

THE COMMISSIONERS FOR HER MAJESTY’S REVENUE AND CUSTOMS

Respondents:

For the applicant:  Simpson QC;  Burness Paull

For the respondents:  Young QC;  Solicitor to the Advocate General

For the Faculty of Advocates:  The Dean of Faculty (Wolffe QC), Ms Hood

For the Law Society of Scotland:  Lindsay QC;  Balfour & Manson

 

23 April 2015

 

Introduction

[1]        The applicant seeks leave to appeal against a decision of the Upper Tribunal (Tax and Chancery Chamber).  The application will be heard on 1 May. 

[2]        The applicant has enrolled the following single bill. 

“On behalf of the applicant, and given her involvement in the matter since 2009 leading ultimately to the hearings before the First Tier Tribunal and the Upper Tier Tribunal, and for the assistance of the court, for the court to exercise its discretion to grant permission for Ms Philippa Whipple QC, barrister, One Crown Office Row, London, England to appear and represent the applicant before your Lordships in the Inner House at the application for leave to appeal hearing scheduled to take place on 01 May2015 and for any subsequent appeal hearing or such other order as your Lordships deem fit.”

 

The applicant has amended the motion to the effect that, if Ms Whipple should appear before this court, her appearance should be subject to the conditions that (i) she is assisted by a practising member of the Faculty of Advocates; and (ii) there is lodged in process a certificate by the Bar Council of England and Wales vouching Ms Whipple’s status as a practising Queen’s Counsel and her good standing.  Such a certificate would vouch that Ms Whipple was adequately covered by professional indemnity insurance.  The second of these conditions would be unnecessary in my view.

[3]        The single bill is opposed.  In view of the significance of it, we invited the Dean of Faculty, as leader of the Bar, and the Law Society of Scotland, as representing solicitors who have rights of audience in this court, to make written submissions to us and, if so advised, to appear at the hearing. 

 

The background
[4]        The present litigation concerns the applicant’s entitlement to repayment of Value Added Tax said to have been overpaid for many years.  The case was heard by the First Tier Tribunal and by the Upper Tribunal in Edinburgh.  Before both Tribunals Ms Whipple appeared with Mr Philip Simpson, of the Scottish Bar.  The proposed appeal seems to involve a straightforward question as to the meaning of section 80 of the Value Added Tax Act 1994.  Ms Whipple is a specialist in VAT law and, having conducted the case in the Tribunals, is familiar with the issues.  The single bill craves the court inter alia “to exercise its discretion to grant permission for [Ms Whipple] to appear.”  In presenting it, Mr Simpson QC, as he now is, refrained from using the expression “rights of audience”.  He said that he merely sought permission for Ms Whipple to appear.  In my view, the distinction is meaningless.  In reality this motion is about rights of audience. 

[5]        Because Ms Whipple is qualified in a different jurisdiction within the United Kingdom and not in a different member state, she is not entitled to appear by virtue of article 5 of Directive 2005/36/EC as implemented by the European Communities (Regulation of Professional Qualifications) Regulations 2007 (SI No 2781).  Had she been subject to the 2007 Regulations in this matter, her right of appearance would have been conditional on her providing inter alia evidence of her professional status and qualifications, evidence of professional indemnity insurance and proof of nationality. 

[6]        If Ms Whipple had no legal qualification and was acting gratuitously, and if the applicant had no other legal representation, this court would have discretion to permit her to appear (Rules of the Court of Session 1994, chap 12B). 

[7]        If a member of the Scottish Bar were instructed to appear before a court in England and Wales, that member would be entitled to apply to the Bar Council of England and Wales for temporary admission to the Bar.  In such an event the individual would have to provide a certificate from the Dean of Faculty confirming his status as a practising member, the date on which he began to practise; and his fitness to be called to the English Bar; and would have to pay a fee. 

 

College of Justice Act 1532, c51
[8]        The College of Justice Act 1532 established the College of Justice and is the foundation of this court.  It says this:

“That na man enter to pley, bot parties conteined in their summoundes and their procuratoures, gif they will ony have.” (Glendook, The Laws and Acts of Parliament Made by King James the First, and his Royal Successors, Kings and Queen of Scotland in two Parts, Part 1 (1681), at 217)

 

Submissions in support of the Single Bill

[9]        The single bill rests on two propositions: (1) that this court’s inherent power, the existence of which is not in dispute, entitles it to grant the single bill; and (2) that in the circumstances it should exercise its discretion in the applicant’s favour.

[10]      On the first point, Mr Simpson contends that the decision of this court in Secretary of State for Business, Enterprise and Regulatory Reform v UK Bankruptcy Ltd (2011 SC 115 (the UK Bankruptcy case)) that it was not within the inherent power to extend rights of audience rests on a misunderstanding of the Act 1532 c 51.  He submits that the provisions of that Act are equivalent to subordinate legislation; and that no other statutory provision precludes the court’s granting of rights of audience to any suitable person in its discretion.  He accepts that, on that view, in a medical negligence case the court could allow a party’s case to be presented by a surgeon.

[11]      On the second point Mr Simpson relies on Ms Whipple’s expertise and on her involvement in the case from the outset.  He also points out that if he were to lead in the appeal, the instruction of new counsel to assist him would cause duplication of work and wasted costs; that the point in issue relates to a section in a UK-wide statute; and that the litigation proceeded in Scotland only for reasons of procedural convenience. 

[12]      Mr Simpson too is an expert in tax matters.  He confirmed that the applicant does not suggest that if he were to lead in the appeal, the applicant’s case would not be presented competently or properly; or that the applicant’s article 6 rights would be infringed.  He accepts that the granting of the motion would have the strange result that the case for the appellant would be presented by a counsel who is not a silk in Scotland but with a junior who is. 

 

The decision in the UK Bankruptcy case

[13]      In this case this court concluded that its inherent power did not extend to the granting of rights of audience in this court.  It held that the Act 1532 c 51 is not in desuetude; that from that and several subsequent statutes it is clear that whenever rights of audience in this court have been extended, that has been done by the legislature and not the court.  It concluded that the possibility of further extension of rights of audience should be a matter for the Parliament, after due process of consultation, rather than by ad hoc judicial decision (at paras [7]-[8]; [33]-[37]; [39]-[43]). 

 

Conclusions

Does the inherent power extend to the granting of rights of audience in this court?

[14]      In my opinion, the decision of this court in the UK Bankruptcy case (supra) was sound.  I am confirmed in the conclusions that I expressed in that case by the fact that in section 30 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Parliament gave power to the Secretary of State to make regulations regarding the granting of rights of audience to practitioners from England and Wales and Northern Ireland, but that that power was not exercised. 

[15]      Counsel for the applicant submits that we erred in that decision by failing to recognise that the Act 1532 c 51 was merely subordinate legislation.  In that case we relied, as the court had relied in Gordon v Nakeski-Cumming (1924 SC 939), on the version of the Act 1532 c 51 set out in the Glendook Duodecimo edition of 1681 of the Acts of the Parliament of Scotland.  Counsel has pointed out that that provision was not part of the Act of 1532.  It was one of the rules duly made by the Lords of Session under powers delegated to them by James V (Hannay, Acts of the Lords of Council in Public Affairs 1501-1554 (1932) p 373; Acts of Sederunt of the Court of Session 1532-1553 (1811), Ilay Campbell, ed, p 2).  These rules were later ratified by James V by letter of 10 June 1532 and by statute of 1540 c 93 (sc College of Justice Act 1540;  Hannay, op cit, p 377ff).   Moreover, the rules were later amended by the court by Statut of Sessione in 1590 to the effect of increasing the authorised number of advocates to 50 (Hope’s Major Practicks, Stair Society, vol 4 (1938), ed Clyde).  In keeping with that view, the Statute Law Database omits the rule from its published version of the Act 1532 c 51.  From this counsel for the applicant concludes that we are free to modify the rule by the use of the inherent power.

[16]      I accept the force of Mr Simpson’s interpretation of the sources; but in my view his conclusion does not follow.  The question whether the rule has the status of primary or secondary legislation is neither here nor there.  What matters is that, subject to certain statutory modifications in the modern era (cf UK Bankruptcy case, paras [13]-[16]), the rule has, by common understanding over the centuries, been part of the law of Scotland.  In my view, it is now an established principle of the Scottish constitution. 

[17]      I therefore remain of the view that this court should not take it upon itself to grant ad hoc rights of audience, still less to exercise the inherent power, where Parliament gave itself that power but refrained from exercising it. 

 

The exercise of the court’s discretion

[18]      In any event, this motion is not presented ex necessitate.  It is conceded that the applicant’s interests will not be prejudiced if it is represented by Mr Simpson.  The motion is presented on the basis that Ms Whipple is the applicant’s counsel of choice. 

[19]      On the applicant’s own showing, therefore, the inherent power is not being invoked to prevent an injustice, nor to vindicate the applicant’s article 6 rights. 

[20]      Counsel for the applicant has drawn an analogy with the position of lawyers in member states of the European Union.  That, in my opinion, is an entirely separate matter.  At heart this case is about a domestic constitutional issue.  Its context is the Act of Union 1707 and the safeguard in that Act for the preservation of the Scottish legal system (art 19). 

[21]      It is understandable that the applicant’s case has been presented by way of an analogy with the situation in England and Wales; but in my view the analogy is imperfect.  In Scotland civil justice emanates from the College of Justice under the headship of the Lord President.  The College of Justice, of which the judges are the senators, includes counsel, clerks of court, macers and, in my view, advocates’ clerks.  The College provides the framework of discipline and the standards of conduct by which each member is regulated.  In this way the Court protects its own interests by having recourse against any member of the College whose conduct falls below the standards that the court requires (cf Maxwell, Practice of the Court of Session, p 24).  For more than three centuries the right of the court to determine who may be admitted as advocates, and therefore become subject to its disciplinary rules, has been delegated by the court to the Faculty itself (Act of Sederunt 25 June 1692; Stair Memorial Encyclopaedia Re-Issue, Legal Profession, paras 32. 40, 47).  Nevertheless a prospective intrant to the Bar must first petition the court for admission.  Furthermore the Faculty’s disciplinary rules are at all times subject to the approval of the Lord President.

[22]      A key feature of the College of Justice that has applied since its foundation is that counsel in Scotland hold the public office of advocate.  The public nature of the office is reflected in the duty of counsel to appear on behalf of any litigant who requests his services and tenders a reasonable fee.  It is reflected in the power of the Dean of Faculty to require counsel, in exercise of the Faculty’s tradition, to withdraw from a case if counsel should be required to defend an accused person who for any reason is without proper representation.  It is also reflected in the rules of priority that require counsel, when instructed for the Appeal Court or the Inner House, to return conflicting instructions for any lower court.  These considerations emphasise that the litigant’s right to be represented by counsel of his choice is not absolute. 

[23]      This complex of rights and public duties holds the College of Justice together and maintains standards of conduct in the justice system.  There is good reason why rights of audience should be constrained by legal rules. 

[24]      Ad hoc decisions of the kind now applied for would involve the court in granting rights of audience, on different criteria, to counsel who were not subject to the duties of those who hold the public office of advocate, and were not otherwise subject to the jurisdiction of the court. 

[25]      In this case Ms Whipple does not seek admission to the public office of advocate.  She will therefore not be subject to the Legal Services (Scotland) Act 2010 (s 120; cf Act of Sederunt (Regulation of Advocates) 2011) and therefore not subject to the jurisdiction of the Scottish Legal Complaints Commission or of the Dean.  In my view it would be inimical to the interests of this court if litigants were free to bring to it counsel of their choice from other jurisdictions.    

[26]      Counsel in Ms Whipple’s position have available to them the option of joining the Scottish Bar by the accelerated procedures that the Faculty of Advocates now offers.  That seems to me to be a sensible way to satisfy the applicant’s preferences.  Among the several English counsel who have joined the Scottish Bar by this method is a senior counsel who specialises in tax law.

 

Disposal

[27]      I propose to your Lordships that we should refuse the Single Bill.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 32

XA166/14

Lord President

Lord Justice Clerk

Lord Menzies

OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK

in the Single Bill on behalf of the Applicant

 

in the application by

 

TAYLOR CLARK LEISURE PLC

Applicant;

against

 

THE COMMISSIONERS FOR HER MAJESTY’S REVENUE AND CUSTOMS

Respondents:

For the applicant:  Simpson QC;  Burness Paull

For the respondents:  Young QC;  Solicitor to the Advocate General

For the Faculty of Advocates:  The Dean of Faculty (Wolffe QC), Ms Hood

For the Law Society of Scotland:  Lindsay QC;  Balfour & Manson

 

 

23 April 2015

[28]      I agree with Your Lordship in the chair that the application in the single bill should be refused.  The issue of whether the well-established rule concerning rights of audience was initially created by what might now be classified as primary or secondary legislation is of no moment for present purposes.  The rule has, subject to certain relatively recent statutory modifications, become entrenched as part of Scots constitutional law. 

[29]      It may be possible to draw a distinction between a systematic extension of rights of audience, building upon the constitutional foundations of this court, and the ad hoc granting of permission to appear according to the circumstances of a particular case.  Such a distinction is, however, without substance.  The former effectively regulates the latter.

[30]      Rights of audience are the subject of legislative scrutiny according to the prevailing needs of society.  Thus, in the 1990s, the then Government’s perception that there was a need for wider consumer choice in supreme courts pleaders (Hansard, HC Deb, 12 June 1990, cols 160 and 164) resulted in the extension of Scottish solicitors’ rights of audience in terms of section 24 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.  At the same time the Government took the opportunity (HC Deb, 12 June 1990, col 166; 1990 Act, s 30) to address what was considered to be “the anomalous situation, which has arisen under community law, whereby Scottish, English and Welsh lawyers are not able to obtain the same recognition as qualified legal practitioners in each other’s countries as are lawyers from other member states”.  Thus, authority was delegated to the Government to promulgate regulations in that regard (1990 Act, s 30).  It is important to note, however, that there were concerns raised at the time about the effect of such regulations on the quality of the legal profession in Scotland.

[31]      The continuing absence of regulations promulgated under section 30 of the 1990 Act is indicative of the will of Parliament.  It is not for the court to extend rights of audience independently of, and contrary to, the will of Parliament.  Even if the court had the power to modify the rule as part of its general jurisdiction to regulate its own procedure, that cannot be done by a Division of the court, especially on an ad hoc basis (Hepburn v Royal Alexandra Hospital 2011 SC 20, Lord Carloway at paras 52 – 54; Secretary of State for Business etc v UK Bankruptcy (supra), LP (Gill) at paras 39 et seq). 

[32]      For the reasons given by Your Lordship on the exercise of discretion, I agree that, had the court required to do so, that discretion ought to be exercised by refusing the application.  It is important in any legal system that there are settled rules concerning rights of audience which are applicable to all cases.  Such rules are in place in Scotland.  They exist in order to maintain a quality of representation in the court for the benefit not only of the court itself, but also the litigants appearing before it.  They are, or ought to be, known to those who instruct counsel to appear at Tribunals, whose decisions may be subject to review under this court’s jurisdiction. 

[33]      Outwith the context of the EU regulations, if a lawyer wishes to secure rights of audience to appear before the Scottish courts, there are procedures, some of an accelerated nature, which will enable him/her to do so.  It is these procedures which seek to secure a balance between the rights of the individual, and his preferred choice of representative, with those of the court and the public in general.  The interests of justice in Scotland (A v Secretary of State for the Home Department 2013 SC 542, LP (Gill) at para 38, approved in 2014 SC (UKSC) 151, Lord Reed at para 38) require the refusal of the present application.

 

 

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 32

XA166/14

Lord President

Lord Justice Clerk

Lord Menzies

OPINION OF LORD MENZIES

 

in the Single Bill on behalf of the Applicant

 

in the application by

 

TAYLOR CLARK LEISURE PLC

Applicant;

against

 

THE COMMISSIONERS FOR HER MAJESTY’S REVENUE AND CUSTOMS

Respondents:

For the applicant:  Simpson QC;  Burness Paull

For the respondents:  Young QC;  Solicitor to the Advocate General

For the Faculty of Advocates:  The Dean of Faculty (Wolffe QC), Ms Hood

For the Law Society of Scotland:  Lindsay QC;  Balfour & Manson

 

23 April 2015

[34]      I have had the opportunity of reading the Opinions of both your Lordship in the chair and the Lord Justice Clerk.  I am in complete agreement with everything therein, and there is nothing further that I wish to add.  I agree with the disposal proposed by your Lordship in the chair.