Chink of light in damage limitation case

HOW far should a lawyer be allowed to go to protect his or her professional reputation? To the extent of becoming involved in a litigation, so any slur on their name could be met head on?

Such a novel situation arose in a case before Lady Clark in the Court of Session and, although she ultimately did not provide a definitive answer, the broad hint was that it might well be permitted.

An unnamed QC sought “leave to intervene” in an action between a hotel and a firm of solicitors. The hotel is suing over an earlier case in which it faced a damages claim by a woman who slipped on wet tiles and fell down stairs in a leisure club. The solicitors had acted for the hotel, and the advocate had been instructed.

Lady Clark was told that the QC had no interest in the outcome of the action, but feared that during it allegations might be made against him. He wanted to intervene to “protect his professional reputation”.

Some doubt was cast on the competency of such intervention. It was pointed out to the judge that even in criminal cases, an incriminee being accused of a crime was never represented separately.

Lady Clark took this view: “It was not disputed as a matter of law that the absence of a procedure for intervention in the Rules of Court did not mean that there was no inherent power of the court to grant the application.

“It was also not in dispute that in private law in civil proceedings in Scotland, there was no known example of the grant of an application similar to the present application. That, of course, did not decide the question as to whether the application could and should be granted in the present case.”

The judge was not convinced, on the pleadings in the case, that the QC’s fears about an attack on his professional reputation were justified. That was sufficient, she said, for the application to intervene to be refused.

“I consider the application is ill-founded and I do not therefore find it necessary to deal with the issue of competency. If I had been persuaded of the merits of the application, I might have been slow to refuse a remedy on competency grounds in circumstances where it is accepted that the court has wide-ranging inherent powers,” added Lady Clark.