8 - Party Litigants

Summary

In general terms any person has the right to conduct their own cause in court. There is no requirement on the part of a natural person to instruct a solicitor or advocate to appear on the party’s behalf.

Non-natural persons

The general rule has exceptions. Prior to 28 November 2016, a party to an action who was a ‘non-natural person’ such as a company, limited liability partnership, other type of partnership or unincorporated association required to be legally represented. It was commonplace for company directors to try to appear in court to represent their company only to be met with a refusal on the part of the court to hear them.

The Courts Reform (Scotland) Act 2014 makes provision whereby a lay representative can, in certain circumstances, conduct proceedings on behalf of a non-natural person. Specific rules apply to simple procedure cases. Provided the court is satisfied that the conditions set out in s. 96 of the 2014 Act are complied with, no formal application process is required in a simple procedure case.

For all types of case other than simple procedure, ss. 97 and 98 set out the criteria that require to be fulfilled before permission will be granted by the court to allow the lay person to represent the non-natural person. In essence there must be an inability on the part of the non-natural person to be able to pay for legal representation, the lay representative must be a suitable person and it must be in the interests of justice to grant permission.

A prescribed form, with authorisation document, requires to be lodged with the court, which, if granted, will allow lay representation as follows:

The judge or sheriff may determine the application in chambers and can impose such conditions on the exercise of functions by the lay representative where necessary to do so in the interests of justice.

In any type of cause, including simple procedure, if the lay representative acts unreasonably in the conduct of the proceedings and an award of expenses is made against the non-natural person, the court may find the lay representative and the non-natural person jointly and severally liable for those expenses.