Saddiq Ahmed against Kamall Ahmed (Court of Session)

Factual and Procedural Background

The deceased died intestate in 1996, survived by nine children, two of whom are the parties in this case acting as executors dative appointed in 1998. The deceased owned various heritable properties, some of which had been repossessed by a bank prior to his death. The bank later disposed of these properties to family members under a "first refusal" basis. In April 2023, the Defendant applied for confirmation as co-executor without informing the Plaintiff, listing several properties in the estate inventory including those repossessed or not belonging to the deceased. Confirmation was granted in May 2023. The Plaintiff then sought reduction, suspension, and interdict against the Defendant's actions based on alleged material errors in the confirmation application and inventory. Interim suspension and interdict were granted. The case proceeded with conflicting requests for procedure, culminating in a hearing before the Lord Ordinary who fixed an 8-day proof before answer and refused the Defendant’s application for a lay representative. The Defendant appealed the procedural decisions.

Legal Issues Presented

1. Whether the Lord Ordinary erred in refusing the Defendant’s application for appointment of a lay representative who is an enrolled solicitor without a practising certificate.
2. Whether there was procedural unfairness in the refusal of an adjournment following refusal of the lay representative application.
3. Whether the Lord Ordinary erred in fixing a proof before answer rather than allowing a debate on preliminary pleas.

Arguments of the Parties

Defendant's Arguments

• The interpretation of Rule 12B.1(2)(a) excluding all solicitors from lay representation was incorrect and would unjustly restrict access to justice, breaching Convention rights.
• The Lord Ordinary misapplied the precedent in Aslam v Glasgow City Council by considering prior disciplinary findings and past client relationships of the proposed lay representative, which were irrelevant.
• The refusal to allow an adjournment to find another lay representative was unfair, particularly to a litigant in person.
• The fixing of a proof before answer was inappropriate; the case should be disposed of by debate on preliminary pleas including relevancy and specification issues, as reduction and suspension remedies were either inappropriate or had alternative procedures.
• The urgent disposal order requiring preparation on a compressed timetable was unfair and appealable only to the UK Supreme Court, but no proper appeal was lodged.

Plaintiff's Arguments

• The Lord Ordinary correctly applied the law excluding solicitors from lay representation regardless of practising certificate status.
• The prior disciplinary history and prior involvement of the proposed lay representative justified refusal of his appointment.
• The Defendant, an experienced businessman, was capable of self-representation without lay assistance.
• The proof before answer was appropriate given the disputed factual issues concerning the Defendant’s clandestine confirmation application, the estate administration, and inclusion of improper properties in the inventory.
• Obtaining an eik (objection) to the confirmation would not resolve the fundamental factual disputes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Aslam v Glasgow City Council [2016] CSIH 78	Test for appointment of lay representatives under Rule 12B and suitability considerations.	The court applied the test to conclude the proposed lay representative would not assist the court due to prior involvement and confidentiality issues.
McKechnie v Murray 2016 SC 339	Distinction between enrolled solicitors and practising solicitors under the Solicitors (Scotland) Act 1980.	The court relied on this precedent to interpret the definition of "solicitor" for lay representative exclusions, confirming enrolled solicitors without practising certificates are still solicitors for these purposes.
Devlin v Chief Constable of Strathclyde Police [2007] CSOH 103	Discretion of court in refusing a hearing on the procedure roll and allowing proof before answer.	The court referenced this case in discussing judicial case management and the discretion to refuse a debate in ordinary civil actions.

Court's Reasoning and Analysis

The court analysed the statutory and procedural framework for lay representation, concluding that Rule 12B and the underlying legislation exclude enrolled solicitors, regardless of practising certificate status, from acting as lay representatives. The court found no error in the Lord Ordinary’s refusal of the proposed lay representative, Mr de Maine Beaumont, both on legal grounds and due to his prior involvement in related family disputes and disciplinary history. Regarding procedural fairness, the court held that the Defendant was aware of the risks of refusal and was not unfairly treated by the refusal of an adjournment, especially as he did not request one.

On the issue of procedure, the court acknowledged the Defendant’s desire for a debate on preliminary pleas but emphasised the evolving judicial practice favouring active case management and the use of proof before answer when factual disputes are substantial. The court found that the Lord Ordinary erred in refusing to appoint the cause to the procedure roll for a debate on relevancy pleas, as a successful relevancy challenge could narrow the issues for proof. Therefore, the interlocutor allowing proof before answer was recalled and the case was appointed to the procedure roll, with directions for lodging notes of argument on preliminary pleas.

Holding and Implications

The court ALLOWED IN PART the Defendant’s appeal by recalling the Lord Ordinary’s interlocutor allowing proof before answer and associated orders, and directing that the cause be appointed to the procedure roll for debate on preliminary pleas.

The court upheld the refusal to appoint the proposed lay representative, confirming the legal interpretation that enrolled solicitors are excluded from lay representation under the relevant rules and statutes. No procedural unfairness was found in the conduct of the Lord Ordinary. The decision promotes judicial case management and ensures that preliminary legal issues may be addressed by debate before proceeding to proof, potentially streamlining the litigation.

No new legal precedent was established beyond the proper application of existing rules and principles. The direct effect is that the Defendant’s application for lay representation is refused and the procedural route for the case is adjusted to allow debate on preliminary pleas.