Courting disaster

Andrew Smith QC (Friends of The Scotsman, 9 September) contends that the ruling by the Dean of the Faculty of Advocates to the effect that counsel can now appear in court without the assistance of the instructing solicitor, implies that “Scotland’s bar is the ‘go to’ place for specialised and competent court advocacy.”

Many clients, having experienced that “specialised” and “competent court advocacy”, would contend otherwise. For them, the “competent court advocacy” reflected floundering ineptitude, flailing incompetence, woeful preparation, timid submissions, comical insights, irrelevant points, excessive deference, incoherent thinking, pompous posturing, impotent metaphors, a shaky grasp of the law and an impressive flair for very slothful adjustments to important points of law that were left totally unconsidered, during the period of preparation for the ultimate implementation of 
“specialised” and “competent court advocacy”.

Alarmingly, that display of talent took place during the time when the assistance of the instructing solicitor was compulsory. Now that it’s voluntary, the quality of the “competent court advocacy” is sure to soar. It is submitted that if clients were armed with the knowledge that advocates and QCs were immune from suit regarding their performance (however negligent) in court, the Scottish bar would rapidly be known as the “place to avoid at all costs”.

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If clients knew that the Court of Session (in 1876) conferred immunity on advocates and that such immunity has been supported by the faculty ever since, they might conclude that they would be better off representing themselves – knowing that if they did, they would not be immune from suing themselves in the event of negligent representation.

Thomas Crooks

Dundas Street