Barrister court ban

Judgment in test case is seen as defending Scottish justice system

SCOTLAND’S most senior judges have blocked a bid by an English barrister to argue a case in the country’s highest civil court for the first time since its foundation in 1532.

In a major test case, The Lord President, Lord Gill, and Lord Justice Clerk, Lord Carloway, ruled that the London-based lawyer should not have the right of audience in the Court of Session.

Sitting with colleague Lord Menzies, their decision is seen by some as an attempt to defend the Scottish justice system from creep- ing Anglification. Their ruling follows a controversial speech in which Lord Carloway described the new UK Supreme Court, which has the power to overturn decisions of its much older Edinburgh equivalent, as “remote and far removed” from realities of Scots Law.

The three judges formally refused an application from Philippa Whipple, QC, a specialist in VAT law, which is the same north and south of the Border.

Ms Whipple has already appeared in the action at tribunals held in Edinburgh and wanted to represent a firm at a further appeal to the Court of Session.

Lord Carloway said: “It is impor- tant in any legal system that there are settled rules concerning rights of audience which are applicable in all cases. Such rules are in place in Scotland.”

Under EU conventions, Ms Whipple would have been able to argue the case were she qualified as a barrister in another European country. However, no English barrister has been allowed at a Scottish supreme court since their foundation centuries before the Treaty of Union without first re-qualifying in Scotland. This ensures that they are accountable for their conduct to Scottish watchdogs, including the age-old Faculty of Advocates.

Ms Whipple was acting in the case of Taylor Clark Leisure, which claims to have overpaid VAT for many years. Her involvement in the matter dates back to 2009.

Philip Simpson, QC, for Taylor Clark, argued the Court of Session had “inherent power” to regulate its procedure and to permit persons to appear and make oral submissions. He maintained that the court should exercise its discretion to allow her to appear.

During an earlier hearing Lord Gill had pointed out that if the move was allowed she would effectively be his leader in the appeal.

The senior judge had added: “But you are a QC in this court and she is not. So you as silk would be led by a person who is not a silk in this jurisdiction.”

In yesterday’s judgment Lord Gill said he remained of the view the court should not take it upon itself to grant ad hoc rights of audience, still less to exercise its inherent power, where Parliament gave itself that power but refrained from exercising it. The Lord President pointed out that Ms Whipple did not seek admission as an advocate in Scotland as other English barristers have done. She would not therefore be subject to legal services legislation in Scotland or the jurisdiction of the Scottish Legal Complaints Commission or the Dean of Faculty.

Lord Gill said: “In my opinion it would be inimical to the interests of this court if litigants were free to bring in counsel of their choice from other jurisdictions”.

The senior judge said it was conceded Taylor Clark’s interests will not be prejudiced if it is represented by Mr Simpson.

Lord Carloway said: “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 require the refusal of the present application,” he said.

‘‘ The interests of justice in Scotland require the refusal of the present application