FREE CHAPTER from ‘A Practical Guide to Conducting a Sheriff Court Proof’ by Andrew Stevenson


This term derives from the fact that solicitors are appointed by the Court of Session, not by the government. Incidentally, if a sheriff ever reminds you that you are an officer of the court it is a bad sign, just as if a sheriff reminds a witness that he is under oath.

As regards one’s duty to the court Rule B1.13.1 of the Law Society of Scotland Practice Rules 2011 states that; “You must never knowingly give false or misleading information to the court. You must maintain due respect and courtesy towards the court while honourably pursuing the interests of your clients.” The latter part of this latter sentence recognises there is another capacity in which the solicitor acts, namely as agent for a client. However, the situation is more nuanced than may initially be apparent.

Breaching a duty arising from one’s status as an officer of the court could in theory give rise to a complaint by the court itself. Section 2 of the Legal Profession and Legal Aid (Scotland) Act 2007 allows “any judge (including a sheriff)” to make a complaint to the SLCC. In practice, such a complaint is more likely to be threatened than made. What is more problematic is reputational damage to the solicitor as a result of uncomplimentary comments made by the court. Sometimes these make their way into reported case decisions. This looks bad. It should be avoided at all costs. Case reports often avoid naming and thereby embarrassing a sheriff who has “misdirected himself” or “fallen into error” to use another euphemism or similarly made himself vulnerable to being overturned, but they are not nearly as protective of solicitors.

As an officer of the court as well as never “knowingly” giving misinformation to the court you must not do so recklessly or carelessly. So if you are asked a question by the sheriff and you do not know the answer never guess. That can end in tears.

Knowingly in the context of a proof is allowing evidence or information that you know is false to be led. So if in a divorce case your client informs you of the existence of an asset or an income stream that he does not want his wife or the court to know about it you cannot facilitate or turn a blind eye to his endeavours to mislead the court into thinking that the asset or income does not exist by, for example, his failing to declare it on the disclosure Form F13A.

If, as once happened to me, a witness of your client admits to you, his guilty conscience having compelled him to do so, that he has lied during a proof you need to disclose this to the court. Doing nothing makes you an accessory to the deceit.

Although you cannot knowingly or carelessly mislead a court by allowing false evidence or information to be put before it, this does not mean that you are expected to believe everything your client tells you. In fact, it is far healthier not to do so but to keep an open mind instead. One of the hallmarks of a good lawyer is to put himself into the shoes of the opponent and to think about how he would conduct the litigation if Destiny had placed him in the opposing corner. (A similar approach is to conjure up the image of the proof calling in a week’s time. This focusses the mind on the most urgent preparations still be to done.)

You are perfectly entitled to lead evidence which you personally believe to be a pack of lies; as long as the client has not told you that it is a pack of lies. Equally, there is absolutely nothing unethical in asking the court to do something that you personally think would be disastrous; such as moving the sheriff to award child contact to a convicted abuser. If you feel that you cannot stomach doing this, which would be perfectly understandable, do not act; there are plenty of other lawyers out there who will.

Never assume that your client is being truthful. Instances arise all the time where the only conclusion is that someone is lying.

If you are asked to present a hopeless case or try to prove a case that you personally think is nonsense do not say “I don’t believe you” but “I am concerned that the court will not believe you.” Then say why. Your own opinion as to somebody’s credibility or reliability is irrelevant. It does not matter what you think, what matters is your assessment of what the sheriff is likely to think.

Being an officer of the court does not mean that you have to avoid standing up to a sheriff. Remember that if sheriffs were infallible there would be no need for the Sheriff Appeal Court. There are plenty of seminars and talks with titles such as “How not to annoy your sheriff”. My view of this is that there is nothing wrong per se with annoying a sheriff. In general, sheriffs should not be getting angry. Compared to many in this world they do not really have a great deal to get angry about. A sheriff is paid £143,095 per annum, hears cases between 10am and 4pm and has generous holidays and a good pension.

The best sheriffs are cool, calm and collected. It is not your job not to annoy a sheriff. Whether it is wrong to do it depends on why the sheriff is getting annoyed. So if the sheriff is annoyed because you are asking daft questions, or bullying a witness, that is fair enough.

If, on the other hand, if you are trying to conduct a proof, you want to call a witness, the sheriff appears to have made up his mind already and is getting annoyed because you carry on regardless, that is not fair enough. You might need to get that evidence in to support an appeal.

As an adjunct to the adage that you should never interrupt an enemy who is making a mistake, it can be an effective tactic not to object to the opposing solicitor who is annoying the sheriff. Do not take this too far, however, or you will attract anger for not objecting.

The Law Society Practice Rule B1.13, headed “Relations with the Courts” says, amongst other things that “You must maintain due respect and courtesy towards the court while honourably pursuing the interests of your client.”

The Practice Rules pertaining to solicitor advocates say (at C4.4.19) that “you must be fearless in defending your client’s interests, regardless of the consequences to yourself (including, if necessary, incurring the displeasure of the bench.)” That enjoinder to be fearless should apply, and I think that it does apply, to solicitors generally.

Incidentally, as an officer of the court you must cite caselaw that is relevant even if it does not help your case (in which scenario you must try to differentiate the facts of the case from your own). This obligation is not one which burdens;

Party litigants

They are not “officers of the court”, of course, and they are not bound by any practice rules. One should never generalise, nor underestimate them. Some can be difficult to deal with, belligerent and paying little or no attention to rules or etiquette. Some can be articulate, persuasive and well prepared. You will find that they get away with many defaults but will object to yours more than another lawyer would do. To be fair, they often see the answer to the question “Are you objecting to the production, lodged one day late?” as being “Sure, why wouldn’t I?”. After all, they view the sole purpose of being there as to win the case, they care not about falling out with lawyers and know not that the sheriff is almost certain to repel their objection.

Check to see whether they have lodged anything (list of witnesses, productions, statements, letters to the judge etc) because you cannot assume that they will have intimated anything. Turning up to find page after page of productions or a ten-page email explaining their position just wastes time.