CHAPTER THREE – CAPACITIES, OFFICERS OF THE COURT AND PARTY LITIGANTS
Identifying conflicts of interest is an essential element of risk management. Getting into such a conflict is bad enough even without it causing any actual detriment or damage. Early identification so helps locate where risks lie and where grievances might arise. These interests can usefully be regarded under the headings which correlate to the different capacities under which the solicitor is acting in the context of a proof. Lawyers are good are envisaging and taking precautions against worst case scenarios that might face their clients, whether that be in carrying out due diligence in conveyancing or lodging a caveat at court, but too often fail to apply the same pessimistic cynicism when it comes to covering their own backs.
In preparing for and conducting a proof a solicitor is always acting in at least two of several legal capacities simultaneously. He or she;
- Is always an officer of the court.
- May be a direct agent for one of the litigants.
- May be conducting the proof as a sub-contractor for another solicitor who is acting for the litigant.
- Is a renumerated employee or self-employed in a business that needs to make a profit (unless one is in the unusual position of acting as amicus curiae or undertaking the work pro bono).
- May be a recipient of funding from the Scottish Legal Aid Board, an insurance company or a trade union.
- Is the colleague of the opposing solicitor (if there is one) and even if the opponent is a party litigant or is represented by an unqualified person there is a duty to that person to act fairly and candidly. Remember that clients come and go but that solicitors have long memories. Getting one over on another solicitor might taste sweet at the time, but beware karma in the long term. There is enough angst in this cruel world without members of the profession making life difficult for each other. Court practitioners generally know others within a locale or specialist area, and it is not difficult to gain a bad reputation. Those who pride themselves on being “Rottweiler” lawyers are generally merely rude and unpleasant. Better to be a Border Collie; intelligent, inquisitive and efficient.
Each of these capacities has its own interests, and these can conflict. Indeed, in 3) above there is a potential conflict within that one capacity.
In the context of risk management, one can see that these capacities suggest and indicate where the risks lie and who is likely to complain. It is prudent to steel oneself and to ask that unsettling but crucial question; “Who is likely to complain and why?”
Let us look at these capacities in more detail, starting with the one that always applies, namely being and officer of the court.
This term derives from the fact that solicitors are appointed by the Court of Session, not by the government. Incidentally, is it never a good sign where a sheriff feels it necessary to remind a solicitor that he is an officer of the court. In terms of a warning not to overstep the mark it is akin to the situation where 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 S.L.C.C. 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. 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 one must not do so recklessly or carelessly. Sheriffs ask questions of agents all the time. Guessing an answer can end in tears.
“Knowingly” in the context of a proof is allowing the presentation of evidence or information that one knows to be false or where the client or witness has said that it is false. So if in a divorce case the client informs his lawyer of the existence of an asset or an income stream that he does not want his wife or the court to know about one 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 the author a witness confesses that he has lied during a proof one must disclose this perjury to the court. Doing nothing makes the lawyer an accessory to the deceit.
Although one cannot knowingly or carelessly mislead a court by allowing false evidence or information to be put before it, this does not necessitate the kind of suspension of disbelief necessary to enjoy a stage play. On the contrary, it is foolishly naïve to believe everything that the client says. In fact, it is far healthier not to do so but to keep an open mind instead. The client might actually be speaking with a forked tongue; plenty of them do. On a similar topic, lawyers are meant to be independent of their clients and their beliefs and causes. A “human rights lawyer” (whatever that actually means) who champions a political viewpoint and selects only clients who share or serve it is not demonstrating independence.
One is perfectly entitled to lead evidence which one personally believes to be a pack of lies; as long as the client has not said that it is a pack of lies. Equally, there is absolutely nothing unethical in asking the court to do something that one personally thinks would be disastrous; such as moving the sheriff to award child contact to a convicted abuser. Most right- minded people would baulk at the idea of defending a paedophile. It is meant to be instilled in lawyers that they are independent of the clients, that everyone is entitled to the services of a solicitor and that we all have a human right to a fair trial. Plenty of criminal practitioners will advise that they are content to assist those whom they would never dream of inviting over for dinner. Not all colleagues are able to detach themselves however, and this is understandable. If one cannot stomach the prospect of helping someone unsavoury or obnoxious do not act; there are plenty of other lawyers out there who will.
As regards assessing credibility, remember that the only opinion that matters is that of the court. To that extent one’s own view is irrelevant. This needs to be impressed on clients. Some will expect the lawyer to believe or “believe in” them and there are those who think that the lawyer who does not do so should not act. This is nonsense.
However, it is crucial for the lawyer to try to predict whether the sheriff is likely to believe an account or not. The client should never be advised that his own lawyer disbelieves him, of course, but that his own lawyer is concerned that the sheriff may not. An explanation should then be provided.
Being an officer of the court does not mean that one must 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”. The author’s 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 annoyed about. A sheriff is paid £173,845 per annum, hears cases between 10am and 4pm and has generous holidays and a rather good pension.
The best sheriffs are cool, calm and collected. It is not the agent’s job not to annoy a sheriff. Whether it is wrong to do it depends on why the annoyance exists. So, the sheriff is right to become perturbed because a solicitor is browbeating a witness. If, on the other hand, it is wrong for a sheriff to get annoyed where one is seeking to call a corroborating witness, the sheriff appears to have made up his mind that the principal witness was unimpressive and he does not want to have to spend any further time hearing parole evidence. He should let the agent do his job; one might need to get that corroborative evidence heard in to support an appeal.
As an adjunct to the adage that one 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 one will cause irritation 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 probably does apply, to solicitors generally.
Incidentally, as an officer of the court one must cite caselaw that is relevant even if it does not help one’s own client’s case (in which scenario it is necessary to try to show why it does not scupper one’s own case, as where one can differentiate the facts of the case from one’s own). This obligation, which requires the solicitor to act in a manner which can be detrimental to the interests of the client, is not one which burdens party litigants.
Due to the government’s failure to resource legal aid adequately, increasing numbers of litigants are unable to afford to instruct a solicitor. Ironically, if the objective is to save public money, the prevalence of party litigants (or “litigants in person” as they are known in England) adds delay, cost and unfairness to a court action. Trained and experienced solicitors will conduct a proof in a fraction of the time it takes the average party litigant if only because they have years of learning and training and they know what is required in terms of the productions to lodge, the witnesses to call, the matters to agree and the law on which to rely. Pointing this out is no more disparaging of laypersons as it is to observe that the average solicitor would struggle to fit new brake callipers to his car or a new boiler to his central heating system. We all have our own areas of expertise.
Party litigants are not “officers of the court” and they are not bound by any practice rules. Simple Procedure Rule 1.5 explains, perhaps more in hope than expectation, under the heading “What are parties’ responsibilities?” that they “must be honest … respectful and courteous to each other, to representatives and to the sheriff” and “must not try to make a witness give misleading evidence”. They are required to approach settlement negotiations “with an open and constructive attitude.”
These exhortations, laudable as they are, ring hollow without any sanctions underpinning them. Of course, the court may use awards of expenses either as carrots or sticks, but for he who bears false witness it can be problematic for the court to apply the appropriate penalty. In the case of Your Home Partners v Kellichan and Hood [2026] SC KDY 34 party litigant pursuers created chaos, not deliberately but due to reckless use of A.I. which led the sheriff up the garden path on a wild goose chase on the hunt for statutory provisions and caselaw which transpired to be as real as unicorns. The sheriff referred in his judgment to the possibility of there having been contempt of court. That finding, which can justify extreme sanctions, is probably the only available one.
Non-existent cases were also a feature of Bakshi v James Gibb Management Ltd 2026 SAC (Civ) 38, in which the pursuer was a party litigant.
Despite instances of incompetence or irregular behaviour, one should never generalise, nor underestimate any party litigant. Remember that he is personally invested in his own case to a degree that no agent should be. That motivation can lead to the fervent devotion of time and energy in research and preparation.
Also, it is important to note that the Internet has been a massive leveller in terms of access to the law. Thirty years ago, only lawyers had access to statutes, which had to be researched in law libraries with big subscription fees. Now, anybody with a smartphone can immediately look up any Act of Parliament or subordinate legislation. The same is true of a great deal of case law. Even more significantly, despite debacles such as Your Home Partners, A.I. enables laypersons to draft court documents and submissions to a standard which can be impressive.
Some party litigants can be difficult to deal with, belligerent and paying little or no attention to rules or etiquette. The same is true, however, of some colleagues. Some party litigants can be articulate, persuasive and well prepared. One often finds that they are treated with a latitude which is matched in magnitude only by their intolerance of any of default by the opposing solicitor. To be fair, they often see no reason why they should not answer in the affirmative the question “Are you objecting to the production, lodged one day late?” 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.
Party litigants are more likely than are represented parties to fail to intimate or give notice of steps that they have taken, such as lodging a list of witnesses, productions, statements, letters to the judge and so on. It is frustrating and time consuming to arrive at court to conduct a proof only to find a previously undisclosed morass of documents which requires an adjournment of the proof for instructions to be taken.