One of the key themes of the Scottish Government’s legislative programme is ensuring it provides an accessible and affordable justice system. As part of the government’s plans, businesses will soon be able to represent themselves at all levels of court action in Scotland where they can show that they are unable to pay for legal representation.
Under the present system, an individual can represent him or herself in any court. In contrast, companies and other types of business must be represented by a lawyer. The only current exception to that rule is in the small claims court (for money claims up to £3,000) where a director, partner or other authorised person may be allowed to represent that business in court.
Under the new rules that come into effect on 28 November 2016, companies can be represented by a director or secretary of the company and partnerships can be represented by a partner if the court is satisfied that:
(a) the business is unable to pay for the services of a legal representative to conduct the proceedings,
(b) the lay representative is a suitable person to conduct the proceedings, and
(c) it is in the interests of justice to grant permission.
The rules require an application to be made to the court requesting permission for the representative to deal with one or more specified hearings (e.g. a procedural hearing, trial, etc.). But the rules also allow the court to withdraw that permission of its own accord or on the application of any other party to the proceedings and to find the representative responsible for the other party’s court costs if the lay representative acts unreasonably (e.g. by failing to properly prepare for a hearing or being disruptive in court).
The impetus for this change has been representations made to the Scottish Government arguing that the current rules have grave consequences for small businesses who may struggle to afford legal representation where an individual (even a sole trader) can deal with their own case without that cost.
But it is clear from its policy memorandum that the Scottish Government did not intend to simply open the floodgates and allow anyone to represent anyone else in court. It recognised that in certain cases it will be inappropriate for anyone other than a lawyer to represent a business in court. For instance, where complex legal issues arise, the court should be entitled to expect to have the benefit of qualified legal representation to allow it to reach an accurate decision.
Will this lead to the end of court lawyers? Thankfully(!), no. Critically, these rules will only be able to apply to businesses who can show that they cannot afford legal representation. But it is perfectly possible that the rules will be further relaxed in future to allow any business to be represented by its directors, employees and other non-lawyers. That has certainly been the position in the employment tribunal and in the English courts for some time. But for now, I think I am safe to hang on to my court gown!