That might seem a strange thing for a solicitor to say, but the idea is rooted in the notion of access to justice. So, individuals can represent themselves, should they wish to do so, and there are rules in place to allow companies and other non-natural persons to have someone other than a solicitor represent them in appropriate circumstances.
In the recent decision of Hastings v Day 41 Ltd [2025] SAC (Civ) 26, the Sheriff Appeal Court delivered a significant ruling on the conditions under which a company (or other non-natural person) may be represented in court by a lay person, rather than a solicitor. The case is a reminder that the courts take a strict, measured approach to lay representation, and that those seeking to rely on it must meet a high evidentiary bar.
Background
The appeal arose in the context of an action brought by a liquidator, Colin Hastings, seeking to recover over £625,000 which had been paid to Day 41 Ltd (formerly MacLellan Property Ltd) by Cloudstream Technology Ltd (in liquidation).
Day 41's solicitors withdrew from acting, which prompted the company to lodge an application to have its sole director, Ian MacLellan, act as its lay representative under section 97 of the Courts Reform (Scotland) Act 2014.
The legal test
Under section 97(3) of the 2014 Act, a non-natural person can only be represented by a lay person if:
1. It cannot afford legal representation;
2. The proposed representative is suitable; and
3. It is in the interests of justice.
Suitability is considered at s.97(4), which excludes individuals who have a personal interest in the proceedings beyond that normally held by a director or officer.
The findings
The court rejected MacLellan’s application on all three grounds:
- Inability to pay: Day 41 had earlier claimed to have net assets over £1 million to oppose an application to find security for costs. Its claim of serious financial difficulty was unsupported and the test was not accordingly met.
- Representative's suitability: MacLellan had a personal interest in the action (being director, shareholder, and involved in related proceedings) and had previously been found in contempt in a similar case, undermining his overall suitability.
- Not in the interests of justice: The complexity of the case, combined with MacLellan’s lack of legal training and the unreliability of his evidence, meant it would not be in the interests of justice for him to appear.
Key takeaways
- The court will closely examine applications for lay representation, especially with respect to financial capacity and personal interest.
- Company directors with a personal interest in the outcome are unlikely to meet the suitability test. The court will be keen to maintain the distinction between the interests of the company and the personal interests of the director.
- Contradictions in financial disclosures, even across different proceedings, can damage credibility.
- The court will not permit lay representation as a way for parties trying to escape the consequences of the past or avoid legal fees without justification.
This case reinforces that while the Scottish courts permit lay representation for companies, the legal test applied in determining an application can be a high bar to meet. People considering lodging an application for lay representation should carefully consider all elements of section 97 before lodging, as they will be subject to careful consideration.
