Scotland: Solicitor needed right to conduct litigation
The Competition Appeal Tribunal (CAT) has struck out a challenge to the rules of the Faculty of Advocates, the Scottish Bar, over a restriction on who can instruct barristers.
It found that the Faculty was entitled to require that barristers not take instructions from solicitors who did not have the right to conduct litigation independently.
Patrick McAuley qualified as a solicitor in 2015 and held a practising certificate (PC) for two years.
When he returned to practise in 2024, the Law Society of Scotland placed a supervision condition on PC that he could not be a manager, meaning he could only practise under the supervision of a solicitor in Scotland with an unqualified PC.
The Court of Session rejected his challenge to putting the restriction on his PC decision earlier this year. Mr McAuley has appealed to the Supreme Court.
The solicitor has also launched employment tribunal proceedings against his previous employer. The tribunal dismissed or struck out his claims, which were not specified, but he has been granted a full hearing at the Employment Appeal Tribunal.
He wanted to instruct an advocate on both cases but the Faculty of Advocates’ rules state that instructions may only be accepted from Scottish solicitors or other persons authorised to conduct litigation in Scotland.
Mr McAuley would only be authorised to conduct litigation if employed under the supervision of another solicitor, because of the condition on his PC. As he was not, he would have to instruct a solicitor without such a condition to then instruct counsel.
Mr McAuley argued that this was an abuse of a dominant position contrary to the Competition Act.
The CAT noted that at no point did he attempt to instruct a solicitor.
It held that the refusal to accept instructions was, as the Faculty argued, made in compliance with a legal requirement and so did not breach the Competition Act.
This was that the Faculty’s rules were made pursuant to the obligations of the Court of Session imposed by the Legal Services (Scotland) Act 2010, which delegated its authority to the Faculty.
The CAT stressed that advocates could still communicate with and advise solicitors with restricted PCs.
It also rejected Mr McAuley’s argument that, until he had exhausted all rights of appeal against his PC restriction, he should be treated as having an unrestricted certificate.
Having concluded that the solicitor had “no reasonable grounds” for making his claim, the CAT struck it out.
Earlier this year Mr McAuley successfully removed Scottish silk Ian Forrester KC, a member of the Faculty of Advocates, from the CAT panel hearing his case, after the tribunal identified a risk of unconscious bias.
