Introduction

This decision arises at debate (a procedure akin to a relevancy challenge) in an action brought by a practising solicitor, Mr Adrian Russo (the pursuer), against the Council of the Law Society of Scotland (the defender). The action was conceived as an adjunct to ongoing professional conduct proceedings before the Scottish Solicitors’ Discipline Tribunal (SSDT), which concern a letter Mr Russo sent to a former client, Ms Judith Donkor, dated 22 January 2020.

The pursuer sought a declarator that, on 8 January 2020, Ms Donkor breached her contract with him and tacitly withdrew instructions, thereby terminating the solicitor–client relationship as at that date. He argued that the declarator was necessary because the defender, in the SSDT complaint, treated the 22 January 2020 letter as having been sent to a current client. The defender sought dismissal on two grounds: (i) the action was unnecessary (no practical utility), and (ii) the pleadings were irrelevant because any alleged repudiation on 8 January 2020 was unknown to and unaccepted by the pursuer at the time.

The case sits at the intersection of contract doctrine on repudiation and acceptance, the court’s jurisdiction to pronounce declarator, and the forensic relationship between civil proceedings and solicitor disciplinary processes.

• Parties: Pursuer: Mr Adrian Russo (party). Defender: The Council of the Law Society of Scotland (represented by the Dean of Faculty).
• Key issue: Can a civil declarator retroactively fix the termination date of a solicitor–client relationship where the supposed breach/repudiation was unknown to and unaccepted by the solicitor at the time—and does such a declarator have practical utility for ongoing SSDT proceedings?
• Relief sought: Declarator that the contract was breached and instructions withdrawn on 8 January 2020, thereby terminating the relationship as at that date.

Summary of the Judgment

Lord Richardson dismissed the action. He held that the pursuer’s case was legally irrelevant because, on the pursuer’s own averments, the alleged breach/repudiation by Ms Donkor on 8 January 2020 was neither communicated to nor accepted by the pursuer at the time (he only learned of it in August 2023). Under settled law, an unaccepted repudiation is legally ineffective—“a thing writ in water.” Even if the pursuer proved all averments, he would not be entitled to the declarator sought.

Beyond relevancy, the Court held the action was unnecessary: a declarator fixing 8 January 2020 as the termination date would have no practical effect on the SSDT complaint. At the time of writing the 22 January 2020 letter, the pursuer believed he was still acting, and the propriety of that letter does not depend on whether the recipient was technically a client. Moreover, default decrees previously obtained by the pursuer against Ms Donkor do not bind the Law Society (a non-party) and cannot rewrite the historical fact that the letter was sent.

The Court sustained the defender’s second plea-in-law and dismissed the action, reserving expenses.

Key Holdings

• Repudiation must be accepted to have legal effect. An unaccepted repudiation—particularly one unknown to the innocent party at the time—does not terminate a contract.
• No practical utility, no declarator. The Court will not entertain a declarator that has no practical effect on the real controversy (cf Wightman v Secretary of State).
• Decrees in absence do not bind non-parties. Default decrees between a solicitor and client do not create res judicata against the Law Society and cannot alter third-party rights or the historical fact of actions taken (e.g., sending a letter).
• Client status is not determinative of conduct complaints. A letter sent to a non-client can still ground a valid conduct complaint, and non-clients can make complaints (McSparran McCormick; Legal Profession and Legal Aid (Scotland) Act 2007, s 2(2)).
• Disciplinary forum remains the proper venue. Issues about the circumstances and status of the relationship can be ventilated before the SSDT under the Sharp test (whole circumstances), without collateral civil declarators.

Analysis

1) Precedents and Authorities Cited

• Howard v Pickford Tool Co Ltd [1951] 1 KB 417 (CA): Asquith LJ’s classic statement—“An unaccepted repudiation is a thing writ in water…”—was central. Lord Richardson applied this orthodoxy to hold that a repudiation unknown to the pursuer on 8 January 2020 could not have terminated the contract as of that date. Acceptance is the juridical act that effects termination; absent acceptance, the contract endures.
• McSparran McCormick v Scottish Legal Complaints Commission [2016] CSIH 7: Cited for the proposition that a letter to a non-client can still be the subject of a valid complaint about conduct. This undercut the pursuer’s strategic focus on the precise date when the solicitor–client relationship ended.
• Legal Profession and Legal Aid (Scotland) Act 2007, s 2(2): Reinforces that complaint standing is not confined to clients; non-clients may make conduct complaints. The Law Society can pursue conduct concerns regardless of the technical client status.
• Wightman v Secretary of State 2019 SC 111, paras 22–23: Drawn upon for the “practical effect” requirement. Declarator is discretionary; the Court will decline to pronounce a declaration where it would be academic or without practical utility.
• Sharp v The Law Society of Scotland 1984 SC 129 (per Lord President Emslie): The disciplinary standard requires looking at the “whole circumstances.” The defender relied on this to contend that any nuances about the relationship could be addressed by the SSDT; there was no need for a parallel civil declarator.

2) Legal Reasoning and Step-by-Step Application

a) The pursuer’s reformulation and its consequences. The pursuer amended his case on the morning of debate to focus the declarator on alleged breach and “implicit” withdrawal on 8 January 2020. He also averred that he did not learn of the 8 January communication until August 2023. This created an insurmountable legal obstacle: without knowledge, there could be no acceptance of repudiation at the material time.

b) Repudiation doctrine applied. The Court characterized the issue as “trite”: repudiation does nothing unless accepted. The authority in Howard v Pickford Tool Co Ltd was deployed to reinforce the point that a repudiation, standing alone, neither terminates the contract nor changes the parties’ rights. Because the pursuer neither knew of nor accepted any repudiation on 8 January 2020, he could not obtain a declarator fixing termination on that date.

c) “Implicit withdrawal” of instructions rejected absent communication/acceptance. The pleadings that instructions were “implicitly” withdrawn on 8 January 2020 were legally irrelevant where there was no averment of communication to, or acceptance by, the solicitor. The solicitor’s own ignorance until 2023 was fatal.

d) No practical utility. Even if a declarator were granted, it would not affect the core dispute being litigated before the SSDT: the propriety of the letter of 22 January 2020. On the pursuer’s own case, when he wrote that letter he believed he was still acting. The assessment of professional conduct turns on the conduct and knowledge at the time. A retroactive declaration about termination on 8 January adds nothing material.

e) Default decrees do not bind the Law Society. The Court accepted the defender’s submission that the previous decrees in absence against Ms Donkor do not create res judicata against the Law Society (a non-party) and, in any event, do not undo the historical fact that the 22 January letter was written. Neither reduction nor declarator can erase the occurrence of that act vis-à-vis third parties.

f) Proper forum for remaining issues. To the extent the solicitor–client relationship’s nuances bear upon the SSDT’s evaluation under Sharp, the pursuer can advance those points before the Tribunal. That channel obviates any need for collateral civil declarator.

3) Impact and Significance

• Reaffirmation of acceptance in repudiation. The judgment crisply reasserts that repudiation is not self-executing. For solicitors and litigants, contemporaneous knowledge and explicit acceptance are essential if one intends to rely on repudiation to mark the end of a contract or retainer.
• Declarators must have concrete utility. The Court’s reliance on the “practical effect” criterion underscores a gatekeeping function: declarators are not available to secure advisory or cosmetic pronouncements intended for use in collateral proceedings, especially where they would not alter the legal assessment of past conduct.
• Limited reach of default decrees in collateral contexts. Practitioners cannot expect decrees in absence between themselves and clients to bind professional regulators or to rewrite the legal significance of historical events for third parties.
• SSDT remains the primary forum for “whole circumstances.” The judgment channels parties back to the disciplinary forum to ventilate facts relevant to professional standards. Civil courts will be cautious about duplicative or pre-emptive declarators in parallel to regulatory processes.
• Conduct complaints do not hinge on client status. The reminder that non-clients can complain and that letters to non-clients may be disciplinarily actionable curtails arguments premised on the formal existence or non-existence of a retainer at a particular date.

Complex Concepts Simplified

• Debate: A preliminary hearing focusing on the legal relevancy and competency of pleaded cases, akin to a motion to dismiss on the pleadings.
• Pleas-in-law: The formal legal propositions supporting a party’s position. The Court “sustained the defender’s second plea-in-law” (irrelevancy), ending the case.
• Declarator: A court declaration stating the legal position (e.g., whether a contract exists or when it ended). Discretionary, and usually granted only if of practical utility.
• Repudiation: A party’s conduct indicating they will not perform the contract. It does not terminate the contract unless the innocent party accepts it, either expressly or by unequivocal conduct.
• “Unaccepted repudiation is a thing writ in water”: A shorthand for the rule that repudiation alone has no legal effect unless accepted.
• Tacit withdrawal of instructions: In a solicitor–client context, the idea that a client’s conduct can imply withdrawal. But to have legal effect for termination, it must be known to and accepted by the solicitor.
• Decree in absence: A default judgment entered when the defender fails to appear. It binds the parties to that action but does not automatically bind third parties or regulators.
• Res judicata: The bar on re-litigating a matter already decided between the same parties (or their privies) on the same grounds. It generally cannot be invoked against non-parties.
• Practical utility: A requirement that a court declaration have real-world consequences for the parties’ rights or obligations; purely academic declarations are refused.
• Sharp test: The standard for professional misconduct (Sharp v Law Society of Scotland): whether the conduct represents a serious and reprehensible departure from standards expected of competent and reputable solicitors, assessed in the “whole circumstances.”

Context and Timeline

• 2019: Mr Russo begins practice; alleges a pro bono retainer with Ms Donkor after she purportedly withdrew a complaint against Ms Ram.
• 8 January 2020: Ms Donkor contacts the Law Society (unknown to Mr Russo until August 2023). The pursuer later characterizes this as breach/repudiation.
• 22 January 2020: Mr Russo sends the letter forming the basis of the SSDT complaint.
• 17 February 2020: Mr Russo writes to withdraw from acting.
• 2021–2024: The pursuer obtains three decrees in absence against Ms Donkor, including, in February 2024, a declarator that the relationship ended on 8 January 2020. None involved the Law Society.
• 2025: Present action raised against the Law Society seeking a similar declarator; dismissed for irrelevancy and lack of utility.

Practice Notes and Takeaways

• Record acceptance of repudiation contemporaneously. If a client’s conduct is said to repudiate a retainer, practitioners should promptly and clearly accept or reject the repudiation in writing to fix the legal position.
• Do not rely on default declarators to influence regulators. Decrees in absence against clients have limited value in collateral regulatory proceedings and cannot rewrite facts for third parties.
• Assess utility before seeking declarator. Consider whether a declaration will change the legal analysis of conduct at the time it occurred. If not, the court is likely to refuse it as academic.
• Ventilate “whole circumstances” before the SSDT. Where the issue relates to professional standards, the disciplinary tribunal is usually the proper forum, especially under the Sharp approach.
• Client status is not dispositive for conduct complaints. Frame defenses around professional standards and the actual conduct, not solely on the existence of a formal retainer.

Conclusion

Russo v The Council of the Law Society of Scotland [2025] CSOH 92 delivers a clear, orthodox message on three fronts. First, contract doctrine: a repudiation—especially one unknown to the innocent party—does not terminate a contract unless accepted; attempts to backdate termination via declarator will fail. Second, civil procedure: the Court will not grant declarators without practical utility; the remedy is not a vehicle for securing advisory pronouncements for use in collateral disciplinary proceedings. Third, regulatory interface: default decrees between a solicitor and a client do not bind the Law Society, and the propriety of a solicitor’s letter does not depend on whether the recipient is a client; complaints may be pursued by non-clients.

In the broader legal context, the judgment discourages collateral civil litigation designed to influence disciplinary matters where the disciplinary forum is capable of considering all relevant circumstances. It also reinforces good professional practice: if termination of a retainer is to be relied upon, it should be anchored in contemporaneous knowledge and explicit acceptance, not inferred retroactively.