Professional briefing

Transcription

001 Cover1104rev
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Vol 56 No4 APRIL 2011
www.journalonline.co.uk
THE MEMBER MAGAZINE FOR THE LAW SOCIETY OF SCOTLAND
Loss
beyond
value?
Jury awards could force
a rethink of damages
for bereavement
Court at the
business end
Sheriff’s tips on
commercial procedure
The price of
education
Meeting the needs
of autistic children
ALSO INSIDE: LAND AGREEMENTS / OUTSOURCING / PI TRUSTS / RENEWABLES
See the magazine online: www.journalonline.co.uk Online recruitment: www.lawscotjobs.co.uk
002-3 Contents1104rev
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Contents Vol 56 No 4 April 2011
Contact
Journal
staff and
contributors
16 Court hearings with a difference
Regular items
4 Update
Forthcoming CPD dates
5 Editor
6 People
7 President
Reflections on report to the AGM
8 Opinion
Carl Watt: Workplace equality
9 Registers
Awards; masterclass; offices
10 Letters
The Society; CV writing; parking
15 Current consultations
28 Professional news: Society
(More in the box below)
33 Notifications
Entrants to the profession
37 Professional practice
37
38
39
40
Trainee advice
Legal process outsourcing
Ask Ash
Risk: employee supervision
42 Professional briefing
42
44
45
46
47
48
49
Criminal court
Licensing
Insolvency
Planning
Discipline Tribunal
Websites
Book reviews
50 In House
EU procurement green paper
52 Property lawyer
52 Competition law and land
55 Renewables agreements
58 Sidelines
Manus; Six; Archive
60 Classified
62 Recruitment
PUBLISHERS
The Law Society of Scotland
26 Drumsheugh Gardens
Edinburgh EH3 7YR
t: 0131 226 7411
f: 0131 225 2934
e: [email protected]
w: www.lawscot.org.uk
President: Jamie Millar
Vice President: Cameron Ritchie
Chief Executive: Lorna Jack
20 Parents winning battles
52 Competition beyond the bids
EDITORIAL OFFICE
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DISCLAIMERS
The views expressed in the Journal
of the Law Society of Scotland are
those of invited contributors and
not necessarily those of the Law
Society of Scotland. The Law
Society of Scotland does not
endorse any goods or services
advertised, nor any claims or
representations made in any
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accepts no liability to any person for
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On no account may any part of this
publication be reproduced without
the written permission of the
copyholder and publisher,
application for which should be
made to the publisher. © The Law
Society of Scotland, 2011
ISSN: 0458-8711
12 Impact of jury awards
Features
12 Measure of loss
22 Financial responsibilities
A recent rush of jury awards in fatal
accident cases could force the courts
to rethink non-patrimonial damages
Overcoming official doubts as to the
use of personal injury trusts by
guardians of adults with incapacity
16 Business approach
23 Flying the flag
A sheriff’s guide to practice before
the commercial court, for those not
yet familiar with its flexibility
Introducing the Scottish Arbitration
Centre, launched last month
24 Cloud high
20 Meeting special needs
Total Net
Circulation: 11,477
Kenneth Norrie’s family law review
turns to education and the autistic
Special feature on a business venture
that offers an IT platform to support
smaller firms in particular
(issue specific May 10)
Av. Net Circulation:
11,044 (Jul 09-Jun 10)
Subscription Information:
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Non Practising Certificate
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www.lawscotjobs.co.uk
Society news>
Turn to pages 28-33 for AGM report;
Faculty of Advocates; complaints; pro bono;
law reform; law reports; Family Law
Association. Website: www.lawscot.org.uk
April 2011 theJournal / 3
004 Update1104rev
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CPD EVENTS
Please view website for further details
APRIL
21
26
27
World IP Day 2011 – Edinburgh
ILG Seminar – Contract Law
CPD for New Lawyers: A Practical Guide to
Civil Legal Assistance – Edinburgh
MAY
3
5
4
10
10
10
11
17
17
17
19
19
19
24
24
26
31
tbc
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ILG Seminar – Business Continuity Planning
Corporate Homicide – The Effect of the Corporate Manslaughter and
Corporate Homicide Act 2007 – Glasgow
Neuro-Linguistic Programming for Lawyers – Edinburgh
ILG Seminar – Bribery Laws
Legal Risks Conference – Edinburgh
Writing Skills for Professionals: Writing for Impact – Glasgow
Family Business Conference – Dunblane
Charity Law – Dunblane
Working with the Media – Glasgow
ILG Seminar – Emerging Thinking Conference
Damages – Glasgow
ILG Seminar – Education & Training Roadshow
CPD for New Lawyers: Court of Session –
Commercial Practice – Edinburgh
Duties of a Company Secretary
Written Pleadings in the Sheriff Court – Glasgow
CPD for New Lawyers: A Practical Guide to
Civil Legal Assistance – Glasgow
Will Drafting Essentials
Immigration & Asylum
Win that Tender Now!
JUNE
2
2
16
21
24
30
Client Relations Partner Roadshow – Dumfries
CPD for New Lawyers: Advocacy Skills – Inverness
Client Relations Partner Roadshow – Aberdeen
Buying & Selling Rural Property
New Partners Practice Management Course – Dunblane
Employment Law – Glasgow
Please visit our website for seminars details and future dates for CPD for
New Lawyers. This series has been specifically designed for law students,
trainee solicitors and solicitors with up to five years’ PQE. Diploma
students on the Student Extra scheme can attend these free of charge.
Most courses will incur a small charge for all other individuals.
tbc
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Advocacy Skills
The Lawyer as Employer
Trusts & Executries for Paralegals
Business Development
Business Planning for Growth
Commercial Property Paralegals
Mental Health & Incapacity
Registered Paralegal Roadshow
Transfer of Wealth – Executries, Pension, Pre-nups etc
Contract Law
SEPTEMBER
6
29
tbc
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Annual Conference – Glasgow
Medical Negligence Conference – Edinburgh
The Lawyer in Business
Client Care for the Older Client
Practical Project Management
Anti-Money Laundering RS/Accounts Rules
One Stop Shop Road Show
Consolidated Practice Rules
Client Relations Roadshow
Criminal Conference, Double Jeopardy
Licensing Conference
Manual Bookkeeping & Accounts Rules
Personal Injury Conference
Construction Law
OCTOBER
28
tbc
tbc
tbc
tbc
tbc
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tbc
ILG Annual Conference & Dinner – Edinburgh
Anti-Money Laundering RS/Account Rules
One Stop Shop Road Show
Consolidated Practice Rules
Client Relations Roadshow
Human Rights Act
So you want to be an ABS?
Family Law, Forced Marriage
The Lawyer in Finance
The Lawyer in Management
New Partners Practice Management
*ILG seminars are open only to In-house Lawyers Group Members.
Videolinks available to Aberdeen, Angus, Glasgow, Fort William,
Inverness, Isle of Skye, Lerwick, Moray, Motherwell, Scottish Borders
and Stornoway.
FOR FURTHER INFORMATION
Details of venues, speakers, programmes and CPD hours are available on our
website www.lawscot.org.uk/update. Update’s aim is to continue to produce
good quality, affordable training for our members and to help develop a
comprehensive portfolio of events to support our members’ needs. If there are any
events you would like us to run in 2011, or any comments you have about the
Update events programme, please let us know. Also, if you are interested in
speaking at any of our events, we would be more than happy to hear from you.
Update Department,The Law Society of Scotland,
26 Drumsheugh Gardens, Edinburgh EH3 7YR.
Legal Post, LP1 Edinburgh 1.
Web: www.lawscot.org.uk
Email: [email protected]
Telephone: 0131 476 8201 Fax: 0131 476 8118
005 Editorial1104rev
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Editorial
Voting is flavour of the month, and there are
decisions to be taken on more than one front
Popular will
Constitutional issues
Efforts to put in place a new
constitution for the Society continue,
after the motion before the AGM to
rescind the current model in favour of
the draft version failed to receive the
backing of two thirds of those voting.
As we go to press, the Scottish Law
Agents Society, which exercised a
substantial proxy vote against the
proposals, is due to meet the Society
in the coming days to see whether
common ground can be reached on
the outstanding areas of dispute.
Also as we were going to press, the
Society published on its website the
opinion of senior counsel on the
extent to which the constitution as it
stands is compliant with the 2010 Act.
It appears that it is lacking only as
respects the appointment of nonsolicitors as full members of Council.
One could argue that in that case it
would be simpler just to amend the
present scheme. On the other hand its
drawbacks are well known, and it
presumably follows from what
counsel says that the objections to the
new model regarding conflict of
interest on the part of the Society in
relation to the Master Policy and
Guarantee Fund, if it becomes a
regulator of legal services providers,
would apply equally under the
current scheme if it remained in force.
Assuming such objections are well
founded: under the 2010 Act, any
approved regulator can opt for access
to the Guarantee Fund. And we know
from last year’s referenda that
members want the Society to be able
to regulate ABSs. So if we are not to
re-run the ABS debate, one would
hope that the issues can be narrowed
sufficiently for a more generally
acceptable document to emerge.
Where Scots law thrives
The Scottish Young Lawyers
Association can hardly have dared to
hope, when it decided to pursue the
idea of holding an annual lecture,
Editor
Peter Nicholson
If we are not to
re-run the ABS
debate, one
would hope
that the issues
can be
narrowed
sufficiently for
a more
generally
acceptable
document to
emerge
that it would make quite such an
impact as it achieved when Lord
Hope, Deputy President of the UK
Supreme Court, delivered the
inaugural address on 1 April.
Generous media coverage followed
his lecture, which provided some
revealing insights into the workings
of the court, as well as a rejoinder to
those who allege that the court and
the UK Government between them
are pushing towards a universal
appeal jurisdiction in Scots criminal
law where none existed before.
While careful to avoid matters of
direct political controversy, Lord Hope
made it quite clear (a) that that is not
what is being proposed; and (b) that
the Supreme Court has neither the
desire to achieve nor the resources to
cope with such an outcome.
And he declared in as many words
that “there is not much for us to fear
from the Supreme Court”, even in
areas of the law where there are
marked differences between Scotland
and England, as the justices adopt the
practice of allowing a leading role to
those most familiar with the subject
matter of the case under appeal,
whether that be in relation to Scots law
or a particular area of English law.
As for Cadder, whatever you think of
the decision, said Lord Hope, it was a
good example of the way the court goes
about its business, and “we would have
been failing in our duty if we had not
dealt with the case in that way”.
Political comment on this and
other cases indeed led Lord Hope to
suggest that it was because they can
be relied on to be independent and
impartial that such decisions are
properly left to the judges.
Perhaps the main matter that calls
for comment is that Lord Hope
should have felt it necessary to make
these remarks at all. In my respectful
opinion, they were both timely and
reassuring, and deserve a wide
circulation to counter much of the illinformed political posturing over the
court’s work in general and Cadder in
particular. His concluding remarks,
that Scots law has been strengthened
by the existence of the appeal
jurisdiction, and if it is to compete
with other systems it must look
outwards and not inwards – just as it
did when in its formative stage – were
especially pertinent.
It’s the economy…
With the Holyrood election campaign
heading for its climax, party battles
and pledges on the justice front are
certain to be dominated by populist
pronouncements on knife crime or
prisoner release, rather than the
endemic issues of access to justice
that the profession would probably
prefer to put at the top of the agenda.
But perhaps, given the ongoing pain
of the recession and, increasingly, the
public spending cuts, lawyers will be
paying as much attention as anyone
to the parties’ various proposals for
getting business and the economy
moving in the right direction, so far
as that is within the Scottish
Government’s power.
Read Peter Nicholson’s blog, and others
at www.journalonline.co.uk/blogs
Follow the Journal on Twitter at twitter.com/jlsed
006-7 People and President1104rev
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People
Intimations
for the people
section should
be sent to:
Denise Robertson,
Registrar’s Dept.,
The Law Society
of Scotland,
26 Drumsheugh
Gardens,
Edinburgh EH3 7YR
Email:
deniserobertson@
lawscot.org.uk
Onthemove
Far left: Fiona
Campbell, Macleod
& MacCallum. Left:
Alison Edmondson,
SKO
fyi
Send your
raphs for the
og
ot
ph
:
people section to
t
ec
nn
co
r@
pete
.co.uk
communications
BROWN & McRAE, Fraserburgh
and Turriff, advise that Iain P
McRae has retired from the
partnership with effect from
31 March 2011.
Alison Butters, Joint President
of the SCOTTISH PARALEGAL
ASSOCIATION (SPA), has joined
DMD LAW LLP, Edinburgh as a
private client paralegal.
David Kidd intimates that he
resigned as a member of
BIGGART BAILLIE LLP on
22 December 2010.
6 / theJournal April 2011
Mary Kidd, formerly in sole
practice under the name STUART
KIDD WS, and David Kidd are
pleased to announce that
effective from 1 April 2011 they
are practising in partnership in
Edinburgh under the name
STUART KIDD WS.
KW LAW, Livingston and
Bathgate, are pleased to
announce the assumption of
their associate Kirsty Elizabeth
Cargill as a partner in the firm
with effect from 1 April 2011.
Ms Cargill practises principally
in the field of family law and
is based at the firm’s
Livingston office.
LESLIE WOLFSON & CO,
Glasgow, are delighted to
announce the assumption of
their associate, Paul Ockrim, as a
partner of the firm with effect
from 1 April 2011.
MACLEOD & MacCALLUM,
Inverness, are delighted to
announce the appointment of
Graham Laughton as an associate
in the Court department. In
addition, Fiona Campbell has been
accredited as a specialist in family
law. Fiona is also an accredited
family law mediator and is a
collaborative family lawyer.
Family law specialists SKO,
Edinburgh, are delighted to
announce the appointment of
Alison Edmondson as a director
with effect from 10 March 2011.
Alison is accredited as a family
law mediator and is also a
trained collaborative family
lawyer. She can be contacted on
0131 243 2583 or by email at
alison.edmondson@sko-family.
co.uk and is based at SKO’s offices
at Forsyth House, 93 George
Street, Edinburgh EH2 3ES.
SMITH & VALENTINE, Girvan
and McCORMICK &
NICHOLSON, Newton Stewart,
intimate that with effect from
1 April 2011, they have formed
GALLOWAY & AYRSHIRE
PARTNERSHIP LLP. The
members of the LLP are the
current partners of SMITH &
VALENTINE, Stewart Sheddon &
Veronica Love, with the welcome
addition of Shirley McNeill. They
will continue to trade under the
names SMITH & VALENTINE and
McCORMICK & NICHOLSON.
006-7 People and President1104rev
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President
Preparing for the AGM revealed how much work went
on at the Society in the year under review – and it continues
Ever-eventful year
As well as carrying out the important
business of the day, an annual general
meeting also provides a fitting
opportunity to reflect on the
achievements and challenges of the
past year. Yet when preparing for last
month’s AGM, I found it difficult to
know where to begin.
Even in hindsight, the past year or
so has been particularly eventful for
the Society and the solicitors’
profession. Although the economy
began its slowdown several years ago,
conditions have remained tough for
many firms. Solicitors in the property,
banking and corporate sectors have
suffered reductions in fee income.
Those in the public and legal aid
sectors have endured significant cuts in
public spending. And the year ahead
could be even more challenging.
The debate on alternative business
structures continued throughout 2010,
with the early months of my term of
office dominated by the passage of the
Legal Services (Scotland) Bill through
the Scottish Parliament. Strongly held
views were expressed for and against
ABS, though independent referendum
votes among the profession clearly
backed the Society both applying to
regulate any new structures (81%) and
retaining its dual representative and
regulatory role (73%).
Support and development
The Society has put considerable
effort into supporting members
during the downturn, while also
working hard to promote the interests
of solicitors and the public during
the parliamentary process. But our
representation and support team has
done much else besides.
Alongside the time-consuming
business of responding to the ABS
reforms, our law reform staff have
ensured that the voice of the profession
is heard at the heart of the decisionmaking process at Holyrood,
Westminster and Brussels, responding
to 64 consultations last year and
working on more than half as many
bills. A manifesto has been produced
for next month’s Scottish Parliament
elections and we look forward to
President
Jamie Millar
We remain
convinced of
the need for
change – not
least to allow
non-solicitor
voting
members of
Council, as
confirmed by
counsel’s
opinion – but
likewise must
listen carefully
to the views of
those who
question our
proposals
continuing to work with the
Government and others on the
implications of the Cadder judgment
and Lord Gill’s review of the civil courts.
In education and training, we have
moved forward in revising the route
to qualification for solicitors, with
16 accreditations taking place for
universities proposing to offer new
programmes; offered support to new
lawyers experiencing difficulties in the
downturn; and developed the schools
debating tournament into the biggest
competition of its kind in the country.
At the same time, we launched the
new Registered Paralegal scheme,
further developed our system of CPD,
and took forward an extensive project
to review the accounts rules and
consolidate the practice rules.
Recently, the Society persuaded
the Scottish Legal Complaints
Commission to use its reserves to
reduce the annual levy on solicitors
and, following our representations,
Lloyds Banking Group allowed
those unfairly removed from its
conveyancing panel to reapply.
Unfinished business
Of course, challenges remain, not least
the continuing economic uncertainty
and the prospect of further public
spending cuts, for instance, to the legal
aid budget. Last month’s AGM failed
to produce a conclusive outcome to
the constitutional reform process, with
a majority of members voting in
favour of rescinding the current
constitution but not the required twothirds majority.
One of the concerns raised centred
on a note emailed to members giving
reasons why we wanted or needed to
reform the constitution. In particular, a
reference was made to the need to
change the constitution to create a new
regulatory committee. This was
described by some members as
misleading. Although we believed only
a new constitution would provide the
committee with sufficient autonomy, it
was decided to seek senior counsel’s
opinion on the specific issue, to remove
any ambiguity. The opinion concluded
that we do have the necessary powers in
our current constitution for Council to
create this regulatory committee.
Regrettably, our original view –
although given in good faith – was
therefore inaccurate in this respect. It is
important that members are aware of
this correction as we continue to
consider the best way ahead. We remain
convinced of the need for change – not
least to allow non-solicitor voting
members of Council, as confirmed by
counsel’s opinion – but likewise must
listen carefully to the views of those
who question our proposals.
Throughout the year, the Society has
remained determined to listen and
engage with our members, both in our
day-to-day work and at a series of events
and meetings with bar associations and
faculties around the country. That
determination remains, whether
considering the best way forward on the
constitution, legal aid, access to justice,
the political reform process, or any
other issue of importance.
Looking ahead, we have a special
general meeting next month to
approve the consolidated practice rules
and new accounts rules. These rules
will then need to be replicated into
the regulatory scheme for licensed
providers to ensure the level playing
field between traditional practices
and new forms of providers of legal
services which the membership clearly
expects its Council to put in place.
Work continues on the preparation of
that regulatory scheme, with input
from the Scottish Law Agents Society
to the working party.
Much has been done and yet
there is much still to do. The work
continues and will continue after I
hand over to Cameron Ritchie.
008 Opinion1104rev
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Opinion
It’s time for Scottish legal firms to catch up with their counterparts
south of the border in promoting respect for diversity in sexual orientation
Coming out – on top
Addressing Stonewall’s “Coming Out
for Equality” conference in November,
Frank Mulholland QC, Scotland’s
Solicitor General, explained exactly
what hate crime legislation means for
employers, including the recently
implemented Offences (Aggravation
by Prejudice) (Scotland) Act 2009.
This wide-ranging Act provides that
all offences may now be aggravated by
prejudice relating to disability, sexual
orientation, or transgender identity,
giving the same consideration to these
forms of aggravation as is already given
to religious and racial intolerance.
Mr Mulholland noted: “There are an
infinite number of potential breaches
of the legislation and employers have
to be vigilant and constantly examine
and update policies and practices to
guard against this.”
He went on to say: “Forms of hate
which are ignored, tolerated or
promoted in the workplace leave an
employer open to civil and criminal
sanctions”, before pointing out the
potential costs in reputational
damage and financial penalty.
These risks are reason enough to
ensure your workplace is diverse and
inclusive to people from all walks of
life. However, embracing diversity
also benefits your business in lots of
ways, including staff productivity,
recruitment and retention.
Concealing one’s sexual orientation
at work reduces productivity;
Stonewall research shows that people
perform better when they can be
themselves. Employees need to be
able to communicate and build
supportive, co-operative relationships
with colleagues and clients (“Peak
Performance”, Stonewall, 2008).
Businesses clearly marketing their
products, services and themselves as
employers to lesbian, gay and bisexual
(LGB) people benefit from being able
to recruit and retain the best people
from the widest pool of talent.
Becoming a Stonewall Diversity
Champion and competing for a place
in our Workplace Equality Index
(WEI) are both extremely effective
ways to send the signal that gay people
Carl Watt
not only exist within your business but
that they are valued, included and
welcomed. The WEI is free to all
employers to enter and is the definitive
national benchmarking exercise
showcasing Britain’s top employers for
LGB staff. Members of the programme
also appear in our recruitment guide,
reaching the next generation of
employees and career switchers.
Networking with clients on diversity
initiatives and events – which may
currently be a factor in your CSR
strategy – also promotes this message
and can strengthen client relations and
bring in new business. The public sector
procurement market is worth 15% of
GDP or £220 billion (HM Treasury,
2010). The Equality Act requires private
sector companies to demonstrate their
diversity credentials in winning
public sector contracts.
Lesbian, gay
and bisexual
consumers are a powerful, lucrative
but oft-overlooked market, estimated
to be worth between £70-81 billion in
Britain. Polling evidence from
YouGov has shown that they, their
friends and family are more likely to
buy a product or service from a gayfriendly company.
These commercial benefits have been
widely recognised by the legal sector in
England, where there are currently 46
legal Diversity Champions. We now
have a specific English legal sector top
10 of LGB-friendly employers, and
seven of the whole top 100 are legal
firms. This includes Baker & McKenzie
LLP, who received the Most Improved
Employer award for their awarenessraising initiatives for staff, policy
changes, and engagement with the
wider LGB community, boosting both
their reputation and their brand.
Jenny Barrow, the firm’s head of
diversity & CSR, said: “Not only does
[the award] reflect the work we have
done in this area over a number of years,
it is also a result of the outstanding
contribution of our BakerLGBT network
members. Our continued participation
in the Stonewall Workplace Equality
Index has helped us maintain our focus
on progressing in this area as well as
providing an auditing tool that is
relevant to all diversity strands.”
But in Scotland there is no such
competition from top performing legal
organisations. In fact, no Scottish legal
firms are members of the Diversity
Champion programme or take part in
the WEI. Frank Mulholland said: “It is
for all of us to create a culture of respect,
not just because it is the right thing to
do but because, as employers, it benefits
our business.” The business case has
been recognised down south – when
will Scotland’s legal sector follow?
Carl Watt is Director
of Stonewall Scotland
Stonewall Scotland lobbies for justice
and equality for gay, lesbian, bisexual and
transgender people across Scotland.
More information on our Diversity
Champions programme can be found at
www.stonewallscotland.org.uk/workplace
“It is for all of us to create a culture
of respect, not just because it is the
right thing to do but because, as
employers, it benefits our business”
009 Registers1104rev
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10:24
Page 9
Registers
Registers of Scotland was
both a sponsor and a winner
at the Scottish Legal Awards 2011
In the awards
Once again, RoS sponsored the
Scottish Legal Awards to
promote excellence and to raise
the profile of our website,
ros.gov.uk, where business
information, guidance and best
practice examples can be found.
The awards were presented at a
black-tie ceremony on Thursday
17 March at the EICC. We offer our
congratulations to everyone who
was successful on the night, and in
particular to the winners of the
ros.gov.uk Residential Property
Team of the Year award: Maloco +
Associates. The firm was
commended for their great team
approach, the standard of
supporting testimonials submitted,
and their personality, which shone
through their nomination.
It was also an exciting
evening for RoS, as for the first
time we were included in the
nominations. We won The Law
Society of Scotland Fundraising
Achievement of the Year award.
RoS is dedicated to supporting
charitable causes and our staff
nominate a charity to support
each year. Their efforts for
Alzheimer Scotland from
September 2009 until
September 2010 helped to raise
over £20,000. Our total was
achieved through sponsored
events, sales, and a diverse
range of individual initiatives
with all staff able to contribute.
For 2010-2011, we are
supporting St Columba’s
Hospice in Edinburgh.
Development
land specialist
masterclass
conveyancing and registration
of development land and
subsequent transactions
involving the land.
Applications to register a
development or a transaction
against a development, raise
specific legislative, mapping and
other registration requirements
that, if ignored, can result
in expensive remedial
conveyancing or the issue of a
qualified land certificate. The
masterclass provided an
opportunity to highlight key
areas that present the greatest
risk to obtaining a clear title and
which mitigate against speedy
processing of registration
applications. We also outlined
the services on offer to support
best practice and to reduce the
financial and title risks.
Details of the next masterclass
can be found on our website
ros.gov.uk, as can an outline of
the products and services that
RoS can offer to reduce risk for
solicitors and their clients.
We recently hosted a masterclass
in Edinburgh, with participation
from the Law Society of
Scotland, Ordnance Survey and
Lloyds Banking Group, aimed at
solicitors who represent builders
or developers. The seminar
focused on reducing the risks
associated with the
ARTL UPDATE –
as at 17 Mar 2011
39,626 transactions have
taken place
584 solicitors’ firms are
currently on the ARTL system
28 lenders are currently on
the ARTL system
13 local authorities are using
the system.
For up-to-date information
and a full list of participating
practices and companies,
go to: ros.gov.uk/artl
If you would be interested in attending,
please contact Celeste Wilson (email
[email protected];
Meadowbank House
upgrade under way
Our office at Meadowbank
House in Edinburgh is currently
undergoing a refurbishment
project to improve facilities and
accommodate a relocated
Customer Service Centre.
Meadowbank House is a
typical 1970s office building,
now in need of an upgrade to
bring it into line with current
standards. The basic building is
sound, providing a good base
for RoS in the years to come.
The site is generous enough to
allow us to build an extension
(see illustration) that will provide
additional floor space, access at
street level, and enable us to
combine our Edinburgh-based
customer and registration
services on one site.
Work started at the end of
February and will last for
around two years. We expect
to relocate our Customer
Service Centre to Meadowbank
House during 2012.
Another benefit will be an
improvement to our building
energy performance rating,
with more efficient lighting, a
new heating and cooling
system, and a green roof
of sedum planted on the
extension.
Changes
to eServices
support hours
staff are available to support
you from 8am until 5pm,
Monday to Friday. The contact
number for the eServices
Support remains 0845
6070160.
Please note that this change
will not affect the availability of
ARTL, RD, eForms, SHP or SSSI.
Please note that opening hours
of our eServices Support Desk
have changed. Our eServices
If you want to follow the progress
of the project you can check out our
Facebook page (Registers of Scotland)
or Twitter account (@RoStweets), and
of course our website ros.gov.uk, where
you will find a link to the full plans.
Wedding day
office closure
Customers please
note that Registers of
Scotland’s offices will be
closed on Friday 29 April,
the day of the Royal
Wedding. We will be open
for business as usual on
Monday 2 May.
tel 0141 306 1512).
010-11 Letters1104rev
6/4/11
16:33
Page 10
Letters
Don’t break
up the Society
I have read with considerable concern
articles in the Herald that the Glasgow
Bar Association wants to break up the
Law Society of Scotland.
I have been in practice over 30
years. I can’t admit to being a luvvie
of the Society and have often railed
against it for all sorts of reasons,
including that it has historically
appeared sometimes to have been
Edinburgh-centric.
But I would be greatly concerned if
that is all the GBA is concerned about
– a parochial concern of protecting
the vested interest of Glasgow
solicitors suffering from the axing of
legal aid fees in the Glasgow
stipendiary magistrates’ court.
While I appreciate that could have
a huge impact on some solicitors at
the criminal bar in Glasgow, I do not
accept that it or the circumstances
giving rise to it could in any way
justify breaking up the Society.
I would hope that any desire of the
GBA’s to seek the Society’s demise
would be driven by wider and deeper
considerations – in which case I very
strongly urge the GBA to hold back and
think this right through before they do
anything. If they don’t they could be
letting a genie of a particularly nasty
kind out of the bottle.
The world has certainly changed
greatly since the Society came into
being in 1949 – human rights
allowing freedom of association,
competition in all areas of commercial
life, and of course consumerism and
all the rights that go with that.
The Law Society may be inherently
conflicted as it is both regulator of the
legal profession and its representative
– it was even more conflicted until
consumer service complaints were
taken over by the Scottish Legal
Complaints Commission (SLCC).
One major feature of commercial
life now is the burgeoning of
regulation and the professional
regulators whose job it is to
interpret and enforce the regulations
that cover a particular industry.
If the GBA is successful in any
attempt to break up the Law Society of
Scotland, what does it propose to take
its place? If it is left to the politicians in
Holyrood they will simply legislate to
impose their own style of regulator on
us. There is a grave danger, in my view,
that we could end up with a regulator
like the Financial Services Authority.
And if solicitors want to know what
the FSA is like as regulators, just ask
the mortgage brokers and IFAs you do
business with – they will soon tell you.
The regulatory regime devised and
operated by FSA seems to pay scant
regard to the human rights of those it
regulates, let alone the concept of
natural justice. I have given up trying
to explain the FSA’s regime to solicitors
who are used to the quaint notions of
the presumption of innocence, the
credibility of witnesses and the balance
of probabilities – these concepts are
conspicuous by their absence in the
world of FSA regulation.
Why am I worried that we get an
FSA-style regulator? Well, because
the politicians sought to foist on us
a complaints ombudsman along
the same lines as the Financial
Ombudsman Service, which deals
with complaints against IFAs. It
can award compensation up to
£100,000 and the IFA has no right
of appeal whatsoever.
And the only reason the SLCC is
limited to compensation awards of
£20,000 and solicitors have a right of
appeal against its decisions is because
the Society wrested those concessions
very unwillingly from the politicians.
I do not believe that a Law Society
with only a representative function,
or a society with other than a
national franchise, could have
achieved that while retaining the
confidence and securing the
agreement of the politicians.
So, GBA, before you go a step
further please think through what
will replace the Law Society of
Scotland before you set about
destroying it.
You may not like the Society, and it
has its faults, but what may follow
could be infinitely worse.
Alasdair Sampson, Newmilns, East Ayrshire
So, GBA, before you go a
No pleasing
step further please think
some people?
through what will replace
We read of 165 signatories to a public
the Law Society of Scotland letter objecting to the Law Society of
Scotland’s continued role vis à vis
before you set about
Scottish solicitors. Purely observing
developments as an ordinary member
destroying it
of the Society, I am saddened thus to
read of a potential “split” in the
professional body of solicitors.
One cannot help feeling that the
losing side in the ABS debate last
year has never really accepted the
democratic decision of the majority.
In what some saw as a generous
concession to that side, an Access
to Justice Committee was set up
and peopled with some of the
leading lights in the anti-ABS
argument. Some of us were unhappy
with the seemingly narrow selection
010-11 Letters1104rev
6/4/11
16:33
of members of the committee and
never felt that we had received an
adequate explanation for this, a
number of its members being on the
Labour movement side of Scottish
politics and predominantly west of
Scotland in base. And some among us
may even have been tempted to
question whether a Law Society which
already had a Legal Aid Committee, a
Civil Litigation Committee and a Law
Reform Committee really needed yet
another committee. However, we kept
our counsel and waited to see what
would ensue.
It was indeed not long ere the
Access to Justice Committee was back
in the headlines, involved in a spat,
including a complaint to the Press
Complaints Commission, with a Tory
spokesman on legal affairs following
a press headline on the committee’s
proposals to merge some of the
functions of the Scottish Legal Aid
Board and of the Scottish Legal
Complaints Commission. This idea
at the time seemed to me anyway ill
thought-out and prematurely
circulated to the press.
More generally, some of us who
had hoped to see minutes of the
Access to Justice Committee posted
on the Society’s website have been
disappointed to see no such posting,
so that members of the Society
have been unable to read of the
Committee’s deliberations during its
existence so far.
We then read of another well
publicised row where the convener of
the committee felt that he was being
“gagged” in some way by the Society
in relation to criticism of the Scottish
Legal Aid Board, and had resigned
from the post, to be followed by
Page 11
Send your
letters to:
Email: journal
@connect
communications.
co.uk
or by post to:
The Editor,
The Journal,
Studio 2001,
Mile End,
Paisley PA1 1JS
f: 0141 561 0400
Parking fines: a fascinating topic
I read Ashley J Swanson’s letter about parking charges (alias “fines”) with
interest. The subject is surprisingly fascinating in its complexity, with seeming
criminal, contractual, unjust enrichment and delictual angles, too numerous
even to list here. It seems extraordinary that there has not been more
interest in the matter, but modesty does not prevent me from
recommending the article entitled “Parking’s Fine: the enforceability of
‘private’ parking schemes”, to be found in the 2007 volume of the Juridical
Review at pp1-25, which discusses (but certainly does not exhaust) the
difficulties of the law, both statutory and common law (including such
inadequate decisions as there have been).
Robin M White, School of Law, University of Dundee
other members of his committee in
their entirety.
We now learn that there may be a
breakaway move by largely west of
Scotland-based legal aid solicitors to
set up a rival body to the Society, and
that some of the impetus for this
move mirrors concerns expressed by
the more prominent members of the
Access to Justice Committee, as well
as a minority of members of the
Society’s Council, in their grounds
of resignation.
Any split in our profession is likely
to weaken solicitors in Scotland, and
I for one do not want to see a rival
body set up, whereby all solicitors
would be the losers. I would certainly
have grave misgivings if any rival
organisation were to go on to have
the rather controversial and, to me,
unsatisfactory history of the Access to
Justice Committee, for whom there
seemed to be no pleasing it. Scotland
needs a united solicitors’ body to
represent its members professionally,
and thereby its members’ clients. We
will not achieve that by disunity or by
losing our professional dignity.
Most solicitors in most parts of
Scotland do still want to be
represented by the national Law
Society of Scotland and do not wish
to be members of a highly politicised
pressure group of some kind, narrow
and sectional in its geography and
composition and more resembling a
trade union-like body, if that option
is being proffered as an alternative to
the Society. Is the Glasgow Bar
Association or similar new creature
likely to be able to represent solicitors
in all areas of work, far less all areas of
Scotland? I very much doubt it.
There may also be a lesson for the
Society in the history since last year’s
vote on ABS – that you can only go so
far in placating a minority group that
is determined to do and have things
its own way.
Angus Logan, Edinburgh
How not to write a trainee CV
Exactly who are the people
advising would-be trainees on
the content of their CVs? Apart
from the occasional appalling
English (for which these advisers
cannot be blamed), I am
depressed by the regular flow of
letters which all appear to have
been produced from the same
style bank.
Almost without exception they
flatter me by referring to the
“excellent reputation” of my firm
or the “range of legal services”
which I provide. This flattery is
quite ineffective when it is
obvious that they do not know
me or my firm from Adam and
that they have no idea as to the
range of services which I provide.
Why would someone interested
in criminal law look for a job
from someone who last
conducted a trial 20 years ago?
The latest effort which I received
said that the applicant was
“attracted to my firm”, and then
proceeded to insert my firm’s
name, unfortunately omitting to
fully delete the name of the
previous firm to which he had
written (and presumably had
also been attracted), thus
combining my name with part of
the name of another firm in the
town. His CV went on to tell me
that he had “high level IT skills”
and “fine attention to detail”.
Would someone please tell
these advisers that I am much
more likely to be attracted to a
CV which stands out from the
crowd, rather than one
which is indistinguishable
from all the rest?
John Gilbertson, John W Gilbertson
Ltd, Glenrothes
012-15 Feat Damages1104rev
6/4/11
10:28
Page 12
Feature Damages
6/4/11
10:28
Page 13
A recent upsurge in jury awards of damages for bereavement
discloses a trend which means that the courts may have to rethink their
own valuation of such cases, and parties’ solicitors the forum in which they
are brought. David Wilson discusses the implications
I
n recent months there has been a
dramatic shift in the valuation of
bereavement awards. Eight highprofile jury awards in five cases
have significantly increased the level of
awards in wrongful death cases.
In terms of s 1(4) of the Damages
(Scotland) Act 1976, as amended, each
qualifying relative is entitled to make a
separate claim for “grief and sorrow of
the relative caused by the deceased’s
death”, and “the loss of such nonpatrimonial benefit as the relative
might have been expected to derive
from the deceased’s society and
guidance if the deceased had not died”.
Given that in the previous decade
Scots law saw only two jury awards for
bereavement, the phenomenon of
eight awards in less than four months,
with more likely to follow, represents a
major step change.
Recent cases
First, in Young v Advocate General for
Scotland, 27 October 2010
(unreported), the mother aged 57
and sister aged 29 of a 22-year-old
soldier killed in a Nimrod aircraft
accident were awarded £90,000 and
£60,000 respectively for loss of
society. The latter award is particularly
significant as it represents the only
award for bereavement suffered by a
sibling since they acquired the right
to claim in 2006.
Young was followed by two further
Nimrod cases. In Dicketts v Advocate
General for Scotland, 3 November 2010
(unreported), parents aged 62 and 66
were each awarded £98,000 for the loss
of their 27-year-old son. In Swarbrick v
Advocate General for Scotland, 19
January 2011 (unreported), a mother
aged 53 was awarded £100,000 for the
loss of her 28-year-old son.
Since the Nimrod cases, two
decisions have shown these awards to
be unexceptional. In Thomson v
Dennis Thomson Builders Ltd, 2
February 2011 (unreported), a father
claimed for the loss of his son, James
Thomson, aged 26, who was killed
when a canister of expanding foam
exploded and struck him on the
chest, rupturing his heart. Liability
was admitted as the canister
constituted work equipment within
David
Wilson
the meaning of the Work Equipment
Regulations. In running the case the
defenders had perhaps hoped that a
jury might be less sympathetic to Mr
Thomson, who was suing his own
company for a strict liability breach.
However, the jury awarded the sum of
£90,000 to the father for his loss.
Finally, in Hamilton v Ferguson
Transport (Spean Bridge) Ltd, 16
February 2011 (unreported), a 67year-old retired teacher whose wife
was killed on a Highland road as she
drove to attend a “thank you” lunch
for volunteers was awarded £80,000.
Their daughter of 17 was awarded
£120,000.
Both Thomson and Hamilton are
being appealed by the defenders.
What is the trend?
In his recent article, “A Pattern of
Awards – Juries and the Bereaved”,
2011 SLT (News) 37, Andrew
Hajducki QC highlighted a number
of significant trends. First, juries are
willing to award higher levels of
damages than ever before for
bereavement, and significantly higher
awards than judges. Secondly, the
recent award levels are remarkably
similar. Thirdly, the traditional
hierarchy of awards between different
classes of claimants has been eroded.
There are two main reasons why
juries may be willing to sanction ever
higher awards. Premature and sudden
death is more shocking to the general
public than ever before. The defeat of
many fatal diseases in the 20th century,
together with the prolonged break
from world war, has mercifully made
loss through premature death a relative
rarity compared with past times.
Secondly, we have what I would call
the Tommy Sheridan effect. Juries are
not informed and generally not aware
Premature and sudden
death is more shocking to
the public than ever before...
[it is] a relative rarity
compared with past times
of previous jury awards in fatal cases.
However, most people are aware of the
award to Mr Sheridan of £200,000 for
defamation of his character. The appeal
is still pending on this decision;
however, I suspect that it is one of the
few awards to have entered the public
consciousness. In addition, the public
are bombarded with stories of the large
sums earned by some professional
footballers and other celebrities. It is
perhaps these sums therefore that
provide a benchmark for many jury
members to judge awards by.
The consistency of the awards is, on
the face of it, truly remarkable given
the subjective nature of the awards
and the arbitrary nature of juries.
Counsel and solicitors have
traditionally been understandably
reluctant to attach any particular
significance to an individual jury
award. After all, each jury consists of a
unique group of 12 individuals who
come together to take a very arbitrary
decision in order to value the
unquantifiable, based on the specific
facts laid before them and their own
undefined prejudices.
It should not be forgotten that a
jury award of five years ago stood
apart until last autumn. In Gillies v
Lynch 2006 Rep LR 138 a mother was
awarded £80,000 for the death of her
daughter. For years it was suggested
that this could be discounted as a
rogue decision based on exceptional
circumstances. Medical evidence was
led that the mother was stuck in a
mental state that her daughter had
died six months before. In hindsight
the award, £93,000 when inflation is
taken into account, is not so
remarkable.
Turning to the third trend, the
award of £60,000 for a sibling in
Young and £120,000 for a daughter in
Hamilton presents another dilemma
for lawyers. The traditional approach
is best summed up by Lord Glennie
in Weir v Robertson Group
(Construction) Ltd 2006 Rep LR 114:
“There is an established hierarchy of
awards. An award to a widow is likely
to be significantly higher than an
award to parents or children of the
Continued overleaf >
6/4/11
10:28
Page 14
Feature Damages
Continued from page 13 >
deceased. There are good reasons for
this. The husband and wife will have
developed and grown together
throughout their marriage, both
physically and emotionally. The loss
of a spouse will be particularly hard
to bear. Within the range of other
relatives, much will depend upon age
and vulnerability”.
Recent juries do not seem to agree,
and I suspect they represent the
opinion of the general public. How
many of us would not feel the loss of
a child, or a young child’s loss of a
parent, as acutely as that of a spouse?
For most of us the loss of a child is
truly the unimaginable.
The willingness of juries to award
significantly higher payments to what
the judicial system has previously
characterised as second-tier claimants
will add significantly to the value of
the overall claim, due to the recent
increase in the categories of those
entitled to sue. The definition of
“immediate family” who are entitled
to claim under s 1(4) has, since
4 May 2006, included:
the deceased’s spouse or
civil partner;
the deceased’s opposite sex or
same sex cohabitant;
the deceased’s parents
and children;
any person accepted by the
deceased as a child of the family;
any person who accepted the
deceased as a child of the family;
any sibling of the deceased or
person brought up in the same
household as the deceased and
accepted as a child of the family in
which the deceased was a child; and
any grandparent or grandchild of
the deceased.
In a footnote to his recent article,
Andrew Hajducki also suggested that
grandparents and grandchildren who
accepted the deceased into their
family was “an area which needs to
be looked at”.
Effect on judicial awards
The current body of judicial awards
suggest damages levels considerably
below those of the recent jury awards.
In the case of Shaher v British Aerospace
Flying College Ltd 2003 SLT 791 the
deceased, an adult, only son in a
close-knit Muslim family, was killed in
a flying accident. The Inner House set
the s 1(4) award at £20,000.
Shortly after Shaher came Weir v
Robertson Group (Construction) Ltd
2006 Rep LR 114. Following Shaher,
the judge awarded a 36-year-old
widow £35,000 for the loss of her 34year-old husband. Thirdly, in Murray’s
Executrix v Greenock Dockyard Co Ltd
2004 SLT 1104 the court awarded an
adult daughter £10,000 for the loss of
her father. These and similar cases
have set the benchmark for offers and
settlements in cases without juries in
recent years. While there have been
no decisions by judges dealing with
grandparents, grandchildren and
siblings since they became qualifying
relatives in 2006, the insurers,
applying the hierarchy approach,
have tended to offer these relatives
between £5,000 and £20,000.
Consequently, the sums awarded
by juries in the recent cases seem on
average to be about four times what
can be expected from a judge. This
discrepancy is unlikely to stand. The
perceived wisdom among lawyers for
pursuers has always been to ask from a
jury a sum set at a level that the public
will consider reasonable, and
sufficiently inflated above the judge
level without reaching the level that
can be appealed for being excessive.
The rule of thumb often applied is that
a jury award two and a half times what
could be awarded by the judge may be
considered excessive. It is therefore not
surprising that both Thomson and
Hamilton have been appealed. The
appropriate form of appeal is by way
of a motion for a new trial on the
basis of an excess of damages.
In addition to these appeals the
The sums awarded by juries
in the recent cases seem
on average to be about
four times what can be
expected from a judge
same dilemma has been presented to
the court from a different angle. In a
case heard in March in the Court of
Session, the pursuers argued that
the Lord Ordinary should assess
bereavement awards in line with the
recent jury awards. The matter, at the
time of writing, is still at avizandum.
So, on one hand, we will see the Inner
House being told that the jury awards
are excessive in light of existing judicial
awards, and on the other a Lord
Ordinary being told that previous
judicial awards are inadequate as a
result of recent jury awards.
It remains to be seen whether
the Inner House will consider the
Thomson and Hamilton awards to be
excessive. The reasoning of the Inner
House in Shaher itself provides us
with some guidance. The Lord
Ordinary at first instance had set the
level of damages at £35,000. While
the Inner House felt there were
insufficient examples of jury awards
at that level, it was conceded by Lord
6/4/11
Marnoch: “In the result we find
ourselves persuaded that the four
bereavement awards made by juries
in recent years do disclose a pattern
which demonstrates that in this
general area judges have indeed
become ‘out of touch with awards
made by juries in the exercise of their
proper function’”.
In the current appeals the Inner
House will be faced with considerably
more evidence of jury awards than in
Shaher. I suspect there will be even
more jury decisions to consider by the
time the issue is addressed. As we have
seen in Shaher, the courts are reluctant
to interfere with a general pattern of
jury awards. After all, Lord Hope
famously stated in Girvan v Inverness
Farmers Dairy 1998 SC(HL) 1 at p 7,
that the “overall philosophy” of
Scottish practice is that the assessment
of damages is first and foremost a
matter for a jury. However, if the level
that juries might be prepared to go
to is left unfettered by a carefully
calculated sum sued for, are we in the
midst of a revolution as opposed to
the end? Would a jury, for example,
think twice before awarding £250,000
to parents who have lost their only
child? At what point will the Inner
House control the apparently
relentless increase in jury awards?
Practical implications for solicitors
With such a gulf between the sums
offered by insurers and, at time of
writing, awarded by judges on one
hand, and likely jury awards on the
other, the litigation of fatal claims in
the Court of Session in front of a jury
must be the default position for any
adviser acting for the bereaved. There
are several implications to this.
First, in a significant number of
fatal claims the issue of liability will
be clear cut and the issue of loss
restricted to s 1(4) claims. Therefore,
solicitors could expect to receive
offers in line with Shaher relatively
promptly, and the temptation for
some to accept such offers could be
significant, especially where the client
may not be eligible for legal aid or
before-the-event insurance. However,
I would caution that such an
approach could, unless justified by
the particular facts of a case, or the
express dictates of the client, be
tantamount to flirting with
professional negligence.
Secondly, until there is a levelling
between judicial and jury awards, the
pivotal moment in many fatal claims
will be the decision whether or not to
seek allowance of issues. Of course,
not all fatal claims are suitable for
10:28
Page 15
juries. Juries may be harder on
contributory negligence issues. For
example a judge will routinely
discount a claim by 25% for failure to
wear a seatbelt, following Gawler v
Raettig [2007] EWHC 373 (QB). A jury
may be less discerning. Similarly,
accepting a lift from someone over
the limit may lose the pursuer the
sympathy of the jury. Clearly, therefore,
agents on both sides would do well
to thoroughly investigate and test
contributory negligence issues before
deciding whether a jury is appropriate.
Finally, agents should be aware of
the huge gulf that has opened up
between Scots and English law. In
England there is a statutory limit of
£11,800 for bereavement awards.
Also cohabitants are only entitled
to claim for either loss of support
or bereavement if they had been
cohabiting for two years.
Consequently, a fatal claim in
England could be restricted to
£11,800 whereas in Scotland the
claimants could be entitled to
hundreds of thousands of pounds. It
is a continuing source of wonder how
very few English lawyers are aware
of the very different approach in
Scotland. This is perhaps a concern
when it is not unusual for English
firms simply to deal with Scottish
cases extrajudicially. Another
consideration is the potential rise of
forum shopping. Many fatal claims
may have allowed a choice of
jurisdiction, especially where the
defenders were domiciled in
Scotland. In the recent decision of
Young, for example, had the family
raised the action against the Ministry
of Defence in their native England
their award would have been limited
to the statutory ceiling of £11,800.
Until such time as the gulf between
judicial and jury awards is narrowed,
it is likely that in the great majority
of fatal cases, seeking allowance of
issues in the Court of Session will be
the default position. Unless there are
compelling reasons for negotiating
an extrajudicial settlement based
upon judicial levels of damages, or
for litigating in the sheriff court, such
an approach might be considered to
carry unacceptable risk to the
adviser’s professional indemnity
cover. While the outcome of the first
judicial consideration of the current
jury trend is still outstanding it is
difficult to predict when this
difference will be resolved.
David Wilson is a solicitor advocate
and partner with Digby Brown LLP,
Glasgow
Brian Dempsey’s monthly survey
of consultations that might be of
interest to practitioners
… the point
is to change it
Police reform
The Scottish Government would like to know whether we
really need eight police forces with all the duplication of
costs, or whether a single force would undermine current
accountability to local communities. See document at
www.scotland.gov.uk/Resource/Doc/34141 7/0113500.pdf
Respond by 5 May to [email protected]
Compulsory purchase
With Glasgow Council and dozens of police putting Mrs
Jaconelli out of her home in the interests of the
Commonwealth Games, compulsory purchase is in the
news. Government guidance is considered to be out of
date; views are sought on replacements. See document at
www.scotland.gov.uk/Resource/Doc/341578/0113608.pdf
Ownership and control of law firms
The Government seeks views on who should be included in
the definition of “regulated profession” for the purposes of
s 49 of the Legal Services (Scotland) Act 2010, which will
determine who may own a majority or controlling share
in a firm providing legal services. See the document at
www.scotland.gov.uk/Resource/Doc/ 341031/0113258.pdf
Interpretation of contracts
The Scottish Law Commission begins its review of contract
law in the context of the Draft Common Frame of Reference,
seeking comments on its Discussion Paper on Interpretation
of Contract (no 147). The SLC takes the view that while there
has been some judicial development in this area, there is a
need for a clearer and more consistent approach. See
document via www.scotlawcom.gov.uk/consultations
Prior rights in succession
The Government proposes to increase the amounts a
surviving spouse or civil partner is entitled to under “prior
rights” where the deceased has left no will (e.g. the
financial limit of the interest in the dwellinghouse will rise
from to £300,000 to £470,000, thus significantly
disadvantaging surviving children). The proposed rise in
the limit for the simplified procedure of confirmation to
small estates is from £30,000 to £36,000. See the
document at www.scotland.gov.uk/Resource/Doc/
342116/0113827.pdf
016-19 Feat Commercial Procedure1104rev
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Feature Commercial procedure
Commercially
S
heriff court commercial
procedure (Ordinary Cause
Rules, chapter 40) has now
been operating for 10 years.
Available in Glasgow, Aberdeen,
Inverness and the Borders courts, it has
become a popular means of litigating
and, following the Gill review, many of
its features are likely to be applied to
other classes of action.
Commercial procedure involves
case management by a single sheriff,
who has a wide discretion both in
procedure and in the types of orders
available. One innovative feature,
now shared with some personal
injury actions, is the use of telephone
conferences instead of court
appearances, and these have proved a
valuable tool. Over the years a body
of experience has built up, on both
sides of the bench, but little practical
guidance has been published for
those practitioners who have limited
opportunity to appear.
This note is intended to provide
such guidance to those unfamiliar
with the procedure, and in particular
case management conferences
(CMCs). It is written on the basis of
experience of Glasgow Sheriff Court;
practice may vary elsewhere. It is not
intended as a practice note, but rather
to give some insight into the
procedure and how best to use it.
Focusing the dispute
In commercial proceedings, parties
should be more proactive and focused
than in the traditional model, in
which they may remain at arms’
length and limit communication with
each other. The court will encourage
parties to avoid delay, unnecessary
conflict and wasted effort. The
relationship between the parties is
now regarded as an area in which the
court can legitimately take an interest.
Parties may be open to criticism if
they refuse to talk to each other
without good reason.
Experience shows that, in the
majority of complex cases, discussion
allows the parties to be clear on
where they agree, and disagree. That
in turn leads to a clearer focus on
their own preparation and ultimately
Commercial procedure in the sheriff court, where
available, has proved popular with regular users, but many
solicitors remain unfamiliar with how it works. Sheriff Nigel
Ross shares some practical tips with the uninitiated
what procedure is best suited to the
case. You don’t have to agree with
each other’s case, and you don’t have
to try to settle the case. What is
required is that you focus where the
dispute actually lies, what points are
not disputed, and where the case is
going next. Failure to do so may
result in court sanctions, such as
awards of expenses or refusal of
further adjournments.
In preparing a dispute for court, it
is recognised that there is a balance to
be struck between two extremes. One
is that the pursuer raises an action
without warning to the defender and
having done little preparation. The
other is that parties commence
litigation-by-correspondence, with
exhaustive solicitors’ letters, full
production of documents, and much
(possibly unrecoverable) early
expense. Although it is difficult to
generalise, parties will be expected to
have taken any reasonable and
available steps to avoid litigation
(such as a lawyer’s letter giving
adequate detail of the claim), but will
not be expected to have carried out an
informal litigation. The aim is to
encourage responsible use of
litigation, enforced by awards of
expenses where appropriate.
Some useful tools
Commercial procedure is not only
flexible but can be innovative,
provided this genuinely assists the
It is unlikely, for example,
that an order to attend
ADR would be made where
the conditions for ADR
do not exist
focusing and just resolution of the
dispute. You will be able to suggest
for consideration various procedural
routes to advance the case. Some of
those in use since 1994 in the Court
of Session commercial court have
been adopted. These include:
at an early stage, orders to
exchange relevant documentation
and information;
where parties are not agreed on
procedure in a complex action,
requesting each party to prepare a note
of issues (to identify the main disputes
and how these are to be addressed);
each party preparing a note of
further procedure (for example,
separate proofs on liability and
quantum, or preliminary
debate issues);
once a debate is requested, the
lodging and exchange of notes of
argument giving an informative
summary, identifying authorities
(akin to rule 22);
ordaining parties to instruct their
respective experts, or agents, or
principals, or a combination of these,
to meet and confer on identified issues;
joint notes of agreed evidence;
ordaining the parties to engage in
alternative dispute resolution (an
express power in terms of rule
40.12(3)(m));
ordaining a joint report by the
parties’ experts, or remit to a person
of skill.
In each case, the court will attempt
to seek a consensus about the best
way to proceed. It is unlikely, for
example, that an order to attend ADR
would be made where the conditions
for ADR do not exist.
Case management by phone
After the initial writ is served, and
defences drafted, a case management
conference will be allocated.
The introduction of telephone
6/4/11
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Page 17
driven
conferences has been so successful
that, at least in Glasgow, all CMCs
(where lawyers are instructed) are
routinely allocated for an initial
telephone hearing. Any party may
request a court hearing, but such
requests are extremely rare. The Inner
House has expressed reservations on
the basis that court proceedings
should be public (Jackson v Hughes
Dowdall [2008] CSIH 41), but the
European jurisprudence has since been
considered and discussed in the Gill
review (chapter 6). The review
considered that there is no bar to
conducting proceedings by telephone
or other means, provided certain
safeguards remain in place (p 159,
para 63), and the Scottish Government
has approved the recommendation
that such procedure be encouraged.
Over time, it has become clear
that CMCs work extremely well in
relation to short points of procedure
(such as amendment, or recovery of
documents), discussion of strategic
issues (such as remit to a person of
skill), or the merits of various types of
procedure or disposal. By contrast,
conducting lengthy or detailed
proceedings by telephone is a tricky
and unrewarding task. Particularly
where more than two parties are
involved, substantial or lengthy issues,
such as motions for summary decree,
are best dealt with by court hearing in
the traditional manner. As a result,
most telephone CMCs are procedural
in nature, and are available on a
flexible basis according to the needs of
the case. A building dispute or other
complex action may require several
CMCs, in order to monitor and
progress the parties’ preparation both
of the factual and legal disputes.
Simple enforcement of a contractual
invoice may require only one.
The court will balance the
competing interests of speed and
proper presentation. It avoids the risk
in ordinary procedure that the case
loses momentum and starts to drift in
the “black hole” between a traditional
options hearing and further
substantive procedure. The sheriff will
Litigation by email
Another area of
innovation is email
contact with the
sheriff. The court is
likely to permit legally
represented parties to
contact the sheriff
direct by email (but
not telephone) at any
time. It is a well used
facility, and is used to
request CMCs be
arranged, to give an
initial indication of a
discussion to be had
at the next CMC, or to
postpone or continue
CMCs.
It is to be used
responsibly, but
experience has shown
that practitioners are
almost invariably
highly professional in
their approach. Direct
contact helps to limit
delay, and the next
step in procedure to
be speedily identified.
It allows parties to
focus on the real
disputes, and have
them considered by
the court at short
notice. Obviously, if
matters are purely
procedural, such as
lodging documents or
enrolling motions,
contact should be
made with the clerks
in the usual manner.
Due to the demands
of commercial
procedure, a case
involving a party
litigant will not
normally be appointed
to, or allowed to
remain on, the
commercial roll.
Exceptions have been
made where, for
example, a solicitor
has withdrawn from
acting and another is
not yet appointed.
Email facilities are not
normally used, and
CMCs will require to
call in court rather
than be conducted
by telephone.
It is important to
bear in mind that an
email to the sheriff is a
submission to a court.
Every party is entitled
to know what is being
said by every other
party, and to
comment if need be.
Accordingly, there is
no “private” email
communication and a
degree of formality is
appropriate. All emails
to the sheriff must be
copied to the other
agents, and to the
allocated clerk of
court. The sheriff is
contacted as “sheriff”
and agents’ surnames
are used.
Note that court fees
do not disappear
simply because a clerk
is bypassed! For
example, a motion
made direct to the
sheriff during a
telephone CMC will
still attract a fee.
Documents or
amended pleadings
can be attached to
emails, and these will
be treated as lodged
at the court. The clerks
will be able to advise
on these matters.
6/4/11
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Feature Commercial procedure
require to be satisfied that parties are
making meaningful progress.
Provided they are, it may be
acceptable that the preparation
period be extended and the court
maintains a “hands off” approach. By
contrast, a simple debt recovery may
not justify any extended procedure,
and the matter can be appointed to
an evidential hearing at the first or
second CMC. In such cases there is
likely to be a clear saving of litigation
time. In the case of an (apparently)
dilatory defence, the CMC is a useful
way of eliciting a direct explanation of
the defender’s position, and
discussion of the merits.
Juggling business
Contrary to common belief, the
commercial sheriffs are still required
to carry out a full range of shrieval
duties, civil and criminal. Their wider
workload is restricted from time to
time to allow them to attend to
commercial duties. This means that
CMC allocation must, to some extent,
dovetail with their other duties.
In Glasgow, CMCs are allocated on
a flexible basis, at such intervals and
on such dates as suit the parties’
reasonable requirements. Each
commercial sheriff has a CMC day
every three weeks or so, where CMCs
are allocated at intervals of 15 or 30
minutes. Between these dates, there
are frequent ad hoc arrangements for
CMCs, and most days will have at
least one CMC allocated. These tend
to be arranged directly between the
sheriff and parties, and most likely
held at 9.30am, to allow the sheriff to
take court business from 10am.
Accordingly, while experience
shows that CMCs rarely last more
than half an hour, and frequently
only 10 minutes or so, parties may
need to bear in mind that time
allocated may be insufficient. This can
be accommodated, but should be
mentioned to the clerk in advance. If
a hearing is likely to be very lengthy,
or involve reference to much
documentary material or authority, it
is likely to be more efficient to
arrange a hearing in court.
When and how
Because of the focused nature of a
telephone hearing, it is important that
parties take some time to work out
what their aims are. Parties often
discuss matters directly with each
other in advance, to make sure they
understand the competing positions,
resolve any minor misunderstandings,
and identify the procedure to be
proposed. Such an approach is
valuable and to be commended. It is
open to the parties, at the CMC, to
suggest innovative methods of
advancing the dispute, and having
thought this through in advance
frequently pays dividends.
Because, as they have evolved,
CMCs have become primarily
administrative in nature, they can
be convened at any stage of
proceedings, and on the request of
parties or of the court, sometimes at
fairly short notice. Efforts will be
made to accommodate the principal
agents’ diaries, but exceptionally it
may be necessary to allocate a date
when one or other principal agent
cannot attend. To maximise
flexibility, such attendance is
unlikely to be the most important
consideration, and an appropriately
briefed alternate will normally be
able to provide adequate cover. The
sheriff will make allowances for
logistical difficulties.
Where an important step in process
is required, such as a motion for
summary decree, or a significant
opposed motion, a court hearing is
likely to be convened, allowing
sufficient time for preparation.
Clear the line
The sheriff will initiate the CMC by
telephoning parties at the arranged
time. This relatively informal
arrangement tends to work well, but
can be a challenge if matters do not
go smoothly. The clerk will have a
note of your direct line number; this
will be marked in the process. If you
are not at your nominated phone at
the right time the sheriff will have to
chase you via your switchboard,
which can be a vexing experience,
and may delay both your case and
the subsequent court timetable.
Every sheriff has learned to hate
muzak while being kept on hold.
The following general practice is
recommended:
Use a direct number if possible, to
avoid the delay of going through a
switchboard, and redirect your other
calls. The sheriff’s call is likely to be
on time.
If you have to change extensions,
email the sheriff and clerk in good
time (bearing in mind emails may
be delayed).
If you have to use a switchboard,
make sure the operator is briefed (the
prizewinner so far is the telephonist
who asked: “Sherry who?”).
Conducting CMCs by mobile
phone is an exceptional arrangement,
and to be discouraged, as it frequently
doesn’t work. Most often, agents
don’t answer, presumably because
they don’t hear the ringtone, and the
CMC has to be aborted. Also, sound
quality and reception are frequently
problematic.
Do not, unless compelled, use a
speakerphone. The sheriff needs to
use one, and if others do so the effect
is of having a conversation at
opposing ends of an empty aircraft
hangar. In addition, background
noise is an issue.
Recording the outcome
Sheriffs tend to conduct telephone
CMCs without the assistance of a
clerk, and therefore require to draft
the interlocutors. The sheriff has
limited opportunity to write full
notes when matters are canvassed in
discussion rather than in formal
submissions, and for that reason is
likely to conclude the CMC by
rehearsing with parties the proposed
content of the interlocutor. This
allows parties to raise any further
points, if so advised, before it is
formally drafted and signed. A
practice has also grown up of, where
6/4/11
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Page 19
Because of these factors, telephone
conversations are not particularly
suitable for a tripartite discussion
about lengthy or complicated matters.
It is difficult to refer to authorities or a
substantial number of documents,
and it is not possible for the parties to
have an extrajudicial conversation as
they could in court. If there is a
substantial motion, the CMC will
most likely be adjourned to a court
hearing. One benefit of parties
speaking to each other beforehand is
that the focus for discussion at the
CMC can be identified.
As a general indication, if
you find yourself pausing
for breath for the third
time, you have probably
spoken too long!
appropriate, appending a note to the
interlocutor. These notes are not part
of the interlocutor, but record the
salient points of the CMC for
subsequent reference. They also serve
as a reminder to the sheriff of the
discussion had.
The draft interlocutor is emailed to
the clerk, who will prepare the
interlocutor in a format for signing.
It will be issued by post to parties
shortly thereafter, and should
therefore be available to parties soon
after the hearing.
Effective submissions
Because the CMC is a court hearing,
some formality will be appropriate,
but not to excess. The sheriff should
be addressed as “sheriff”. Parties
refer to each other as they would in
a courtroom.
The object of the CMC is to advance
the case, to identify further procedure,
and to allow parties and the court to
understand each other fully. For this
reason, it will rarely be helpful to adopt
the traditional court-style submission
of starting at the beginning, rehearsing
the facts at length, and eventually
reaching a conclusion. Unlike in court,
it is difficult or impossible for others to
interrupt, or make a sotto voce
comment, or convey their own
reaction. Nor can you assess the
reactions to what you are saying, to
judge whether it is necessary to labour
the point, or to guide the other parties
through a lengthy series of documents.
For this reason, it is a good idea to
commence with the conclusion of
your submission, and then to explain
it as succinctly as possible. That
should mean everybody else
understands your position and, more
importantly, can respond succinctly
to a succinct point. As a general
indication, if you find yourself
pausing for breath for the third time,
you have probably spoken too long!
Motions for expenses
Motions for expenses are mostly
(except where unopposed or
reasonably straightforward) left to a
court hearing. Experience shows that
arguments by telephone about
expenses can materially hamper, and
in some cases derail, the principal
discussion. They often quickly break
down into examination of the
minutiae. This, at the best of times, is
an exacting task for the sheriff, who is
unlikely to have been involved in the
finer detail of parties’ communications
or ongoing relations. If an award of
expenses is considered important,
parties are likely to be invited to
arrange for a court hearing.
One word of caution – if motions
for expenses are used as primarily
tactical moves against an
economically-disadvantaged party, or
as simply another means for parties
to wage war, the sheriff may conclude
that commercial procedure is not
appropriate and return the matter to
the ordinary roll. In general, you will
require to present cogent reasons to
persuade a sheriff to allow a prima
facie just case to be defeated by purely
economic factors.
Future development
Commercial procedure to date has
been well patronised by agents, which
has been assumed to be a sign of a
successful and useful procedure. It is
designed to be adaptable and flexible
to meet the changing requirements of
litigation and to take advantage of the
possibilities afforded by technology.
As such it will continue to evolve.
There are no doubt issues to be
addressed and improvements to be
made. If any solicitor identifies such
issues or improvements, they should
feel able to contact the court clerk in
writing, and these will be duly
considered on their merits.
Nigel Ross is a sheriff at Glasgow
Sheriff Court
020-21 Feat Family Law1104rev
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Page 20
Feature Family law
In his latest quarterly family law commentary, Kenneth Norrie
turns to the educational needs of autistic children, and recent case
law on the duties of an education authority in meeting these needs
Autism and
the good society
I
t is a mark of a decent society
that its laws and policies aim to
provide all of its children with
the opportunity to develop
their talents to the highest degree
possible. State provision of education
is the central tool by which society
furthers this aim. Good education is
expensive, but its value to society as a
whole far exceeds the enhancement
of earning power enjoyed by those
who are educated best.
The good society knows this, even
if the Big Society does not. Scotland
fulfils its obligations in this regard by
imposing a duty on local authorities to
secure adequate and efficient provision
of school education (Education
(Scotland) Act 1980, s 1), and to bear
the costs. Now, some children are
more expensive to educate than others,
because they have support needs
additional to those of the “normal”
child. To rely on parents to meet
additional educational costs would
deny many children with additional
needs the opportunities available to
other children.
peal held
The Court of Ap
These additional costs therefore
needs
ial
ec
that the sp
also fall to society as a whole, via
pplant
su
t
no
d
di
e
regim
the local authority: Education
status,
ild
looked-after ch
ant
(Additional Support for Learning)
nd
te
at
with its
(Scotland) Act 2004, s 4. This is so
benefits
even although the Supreme Court
has held that the failure of a local
authority to identify and provide
suitable additional educational
facilities for an autistic child is not
necessarily an infringement of the
child’s ECHR right to education,
entitling the child to damages: A v
Essex County Council [2011] 1 AC 280.
However, even when suitable
fyi
facilities are identified and are
available, contentious litigation may
follow if the parents and the local
authority cannot agree that the child
truly needs these facilities, or where
the parents wish a more expensive
provision to be made available for
their child than the local authority
considers appropriate. This is
illustrated in two recent cases with
similar factual backgrounds.
Placing requests and resources
City of Edinburgh Council v MDN
[2011] CSIH 13 arose from a placing
request made by parents who wished
their child to be placed at a particular
residential school which they
believed would better meet his needs
than his current day school. The child
suffered from autism spectrum
disorder, with pronounced learning
difficulties and highly challenging
behaviour both at home and at
school. The local authority had
refused the placing request, preferring
the much cheaper option of keeping
the child at his existing day school.
The authority founded on the fact
that while sched 2, para 2 to the
2004 Act obliges local authorities to
give effect to placing requests and,
where necessary, to meet
the fees and other
necessary costs of the
child’s attendance at
the requested school,
para 3 disapplies that
duty where it is not
reasonable, having
regard both to the respective
suitability and the costs of the
placement, to place the child in the
requested school. In the present case,
the local authority decided that it
was not reasonable, taking account
of the costs, to place the child in the
residential school. The Additional
Support Needs Tribunal for Scotland
overturned that decision, and the
authority appealed to the Court
of Session.
The costs of the residential school
that the parents preferred were around
five times the costs of the day school
preferred by the local authority, but it
had better facilities for managing the
child’s behaviour, and a range of
activities more suited to his interests.
The tribunal concluded that the local
authority had failed to show that it
was “not reasonable, having regard
both to the respective suitability and
the costs of the placement, to place
To rely on parents to meet
additional educational costs would
deny many children with additional
needs the opportunities available
to other children
020-21 Feat Family Law1104rev
6/4/11
10:49
Page 21
provisions had been identified that
the residential school could provide
for the child. The court acknowledged
the important point that education,
particularly for children with
additional support needs, requires
to be looked at holistically, taking
account of the structures and support
mechanisms in the child’s life, for
these have a profound influence
on whether and to what extent
educational or developmental
benefit actually accrues to the child.
the child in the specified school”. The
local authority appealed on the basis
that this seriously underplayed the
cost factor and that the tribunal had
assumed that suitability of provision
always trumps cost, but the Inner
House found that the tribunal had
clearly discussed the cost implications
and appropriately balanced them with
their assessment that the support
needs of the child were appreciably
more likely to be met at the residential
than at the day school. So there was
no error in the tribunal’s approach.
Another ground of appeal was the
allegation that the tribunal had failed
to address what educational needs the
child actually had that were to be met
at the residential school. This ground
too was rejected. The Education
(Additional Support for Learning)
(Scotland) Act 2009 had amended
the 2004 Act to extend the definition
of additional support to include noneducational support, and in the
present case various non-educational
Educational provision
and looked-after children
Another autistic child was at the centre
of the English case of RO v East Riding
of Yorkshire Council and Secretary of State
for Education [2011] EWCA Civ 196.
After a long and bitter dispute,
involving various complex court
proceedings under the (English)
Education Act 1996 and the
Children Act 1989, the parents
had been successful in having
their child placed in a
residential school which,
though expensive, would
best meet their child’s
severe special educational
needs (“SEN”, in the
English terminology).
The respite care that the local
authority had been providing
while the child was at home
was withdrawn as being no
longer necessary, and the local
authority argued that this meant
the child was no longer, in terms of
the 1989 Act, a looked-after child.
The significance of this was that the
child would not be able to access the
aftercare provisions in the Act on his
attaining the age of 18. The parents
sought to have his “LAC status”
restored, for that purpose alone.
This depended on the child being
accommodated under s 20 of the
Children Act 1989, but the local
authority argued that the statutory
authority under which they were
providing him with accommodation
was the Education Act 1996, and
provision under that Act did not give
the child “LAC status”.
This is not the first time that
English local authorities have
attempted to avoid their child care
obligations by arguing that the child
was being accommodated other than
under s 20 of the 1989 Act (see R(G)
v Southwark LBC [2009] 1 WLR 1299,
where Baroness Hale said that
councils could not “sidestep” their
duties under the Children Act by
labelling an issue as a housing
problem rather than a child law
problem). Following this in the
present case, the Court of Appeal
accepted that the two regimes (SEN
and LAC) lie side by side and that
neither takes precedence over the
other; but it further held that since
the child’s social and educational
needs had driven the placement, it
could not be said that the SEN
placement supplanted rather than
supported the LAC regime.
The gateway to LAC status is being
accommodated and its purpose is to
ensure the child’s welfare is preserved
and promoted. It was impossible to
see the placement at the residential
school in purely educational terms
since its residential nature was a
response to the parents’ inability to
cope with the child in social terms. So
the child remained a looked-after
child who, in the fullness of time,
would be able to access the aftercare
provisions to help him into adult life:
that “is as it should and was meant to
be”, said Rix LJ at para 126.
The Scottish approach
How would this play out in Scotland?
Section 17(6) of the Children
(Scotland) Act 1995 includes within
the definition of “looked-after child”,
any child who is being provided with
accommodation under s 25 of that
Act (the equivalent of s 20 of the
1989 Act). The local authority is
obliged by s 25 to provide
accommodation to a child when (a)
no one has parental responsibility for
the child, (b) the child has been
abandoned or lost, or (c) the person
who has been caring for the child is
prevented from providing suitable
accommodation. It is not
immediately obvious that a child
being accommodated in a residential
school because of additional support
needs comes within (c), but the
policy of the English cases, to prevent
local authorities being able to
sidestep their responsibilities by
classifying the case as one thing rather
than another, is sound and ought to
be followed here.
Parents may be said to be
“prevented” from accommodating a
child if they cannot ensure appropriate
education without a residential
placement away from home. So the
child in City of Edinburgh is a lookedafter child. This is as it should be, for
it ensures equal opportunities are
provided to all children as they move
into adulthood, and it advances the
good society.
Kenneth McK Norrie is a Professor of
Law at the University of Strathclyde
022-23 Feat PI trusts and Arbitration1104rev
6/4/11
10:51
Page 22
Feature Personal injury trusts
Guardians
of the PIT
Following the recent Journal feature on personal injury trusts, Karen Phillips and
Emma Gilpin highlight an issue relating to trusts for incapable adults
The article “Personal injury trusts:
benefits and pitfalls” (Journal,
February, 26) highlighted that difficult
legal issues can arise from setting up a
personal injury trust (PIT) when a
guardian is appointed to an injured
adult under the Adults with Incapacity
(Scotland) Act 2000 (“the 2000 Act”).
We were recently instructed by Mrs F,
who had been appointed welfare and
financial guardian to her seriously injured
husband. She received compensation
and was advised to consider placing it
in trust so that her husband would
continue to be eligible for means-tested
assistance. When originally appointed,
Mrs F did not seek powers to set up a
trust on her husband’s behalf.
Application to the court was therefore
necessary to vary the guardianship order.
As in previous cases, we wrote to
the Office of the Public Guardian
(OPG) with the details and asked it to
confirm (as it had done previously)
that it had no objections. This time the
response was different.
The OPG indicated that sheriffs took
differing views as to the competency
and appropriateness of conferring
powers via the 2000 Act to establish
trusts, and as a result it would not be
able to provide the letter of confirmation
requested. In relation to competency,
the OPG pointed to s 64(6) which, it
stated, “prohibits a guardian from
surrendering or transferring his
functions to ‘another person’”. It added:
“One must assume that this would
include trustees, even if the financial
guardian were to be one of them.”
The OPG pointed out that “placing
the funds in trust would also move a
substantial part of the adult’s estate
out of the protections offered by
caution and the supervisory provisions
falling to the Public Guardian under
the 2000 Act”.
If these concerns were reflected by
sheriffs generally, this would be a
significant obstacle to setting up PITs
in many cases. Paradoxically it would
leave mentally incapable adults in a
worse position – so far as the benefits
of PITs are concerned – than injured
adults who have capacity, and persons
under 16 (whose parent or guardian
would have power under s 13 of the
Children (Scotland Act) 1995 to
create a trust).
In addressing the sheriff in this case,
arguments were advanced as to why
it was competent to give a guardian
powers to set up a trust, including:
Mrs F would not be “surrendering
or transferring” any of her powers.
“Surrendering” implies giving up or
relinquishing. But a decision by a
guardian to place the settlement
funds into a trust is an exercise of
her powers rather than a giving up
of her responsibilities in respect of
A decision by
the adult’s financial affairs. She
a guardian to
retains those powers and
place the
responsibilities. One important role
settlement
of a guardian is to “stand in the
funds into a
shoes” of the adult. If capable, the
trust is an
adult/injured party would have been
exercise of
entitled to establish a trust and to
powers rather
transfer assets into it.
than giving up
On a plain reading, s 64(6) relates to
responsibilities
a guardian surrendering or transferring
in respect of
their responsibilities to “another
the adult’s
person”. As with many cases
financial affairs
involving PITs, it was proposed that the
guardian also be appointed a trustee.
It did not, therefore, involve
her “surrendering” her functions.
It is also not the case that the
trustees assume the guardian’s
also
Trustees would
responsibilities: these remain as
uciar y
fid
to
t
ec
bj
su
be
imposed by the court in respect
essional
duties, and prof
of the remaining funds.
ld be
ou
w
es
ste
tru
The argument that the adult
red by indemnity
ve
co
would be deprived of the protections
insurance
fyi
of caution does not sit well with the
move away from caution
requirements and the changes to
the rules allowing for caution to be
dispensed with; the trustees would
also be subject to fiduciary duties and
could be made accountable for any
breaches. Professional trustees would
be covered by their professional
indemnity insurance.
In this case, the sheriff expressed
concern that this was a serious issue
which should perhaps be considered
by the Court of Session. However, the
application was unopposed; the OPG
made no submissions to the court and
did not seek to become a party.
The sheriff took a pragmatic
approach: he allowed the minute and
granted the powers sought, but
subject to his approving the terms of
the trust deed and conditional upon
the inclusion of a provision requiring
there always to be a trustee who was
a solicitor or accountant with personal
injury cover, although interestingly not
a professional trustee company.
The future
Although the power to establish a
trust was granted in this case (and, we
believe, in others since), this issue
remains one which has not been
directly opined upon by the courts.
It is perhaps unlikely that this will
happen until an application is
opposed on these grounds or
an organisation with an interest
becomes involved. In the absence of
clarification from the courts or in
legislation there remains a risk that an
application will be refused on the
grounds of incompetency.
Karen Phillips and Emma Gilpin are
senior solicitors in the private client and
public law teams at Brodies LLP
022-23 Feat PI trusts and Arbitration1104rev
6/4/11
10:52
Page 23
Feature Arbitration
The Scottish Arbitration Centre opened its doors last month.
Andrew Mackenzie explains its origins and its objectives
Arbitration outreach
The Scottish Arbitration Centre
was formally opened by Fergus
Ewing MSP, Minister for
Community Safety, along with
Jim Mather MSP, Minister for
Enterprise, Energy and Tourism,
on 17 March in its stunning
premises at Dolphin House in
the heart of Edinburgh’s historic
Old Town. But how did we get
here, and what is the vision for
the future?
As part of the Scottish
Government’s commitment to
provide businesses and lawyers
with the infrastructure they
need to make Scotland an
international centre for
arbitration, it brought forward the
Arbitration (Scotland) Act 2010.
That legislation provides a clear
platform for the new Centre.
Furthermore, the Business Experts
and Law Forum, established by
the Government, was clear that
Scotland should be aiming to
market itself internationally as an
arbitration forum offering highquality arbitrators, facilities and
legal support.
A specific proposal for a
Scottish Arbitration Centre was
presented by Brandon Malone,
solicitor advocate, on behalf of
the Government’s steering group
at a meeting last September
between Mr Ewing and
representatives of the bodies
authorised to act as Arbitral
Appointments Referees (AARs)
under the new Act. Mr Ewing
confirmed the full backing
of the Scottish Government.
Subsequent consultations and
discussions established that
there was support from all the
AARs for such a Centre.
Model arrangement
The Centre is a non-profit
company limited by guarantee,
made up of the Law Society
of Scotland, the Faculty of
Advocates, the Chartered
Institute of Arbitrators, the Royal
At the opening (from left): chairman
Brandon Malone, Fergus Ewing MSP,
Jim Mather MSP, Neil Stevenson
(Law Society of Scotland)
Institution of Chartered
Surveyors, and the Scottish
Ministers. All the members have
nominated directors and will put
in seedcorn funding, and the
Scottish Government has also
seconded, for a limited period, a
member of staff to act as chief
executive officer.
Professor Sir David Edward QC
has agreed to be the Honorary
President of the Centre. His
distinguished career in law and
academia, not least his work as a
judge of the European Court of
Justice, will provide the Centre
with an internationally respected
figurehead.
The Centre’s objects will be to:
promote domestic and
international arbitration under
Scots law;
promote Scotland as a
place to arbitrate;
increase the number of
arbitrations under Scots law;
increase the level of business
for arbitration advisers; and
increase the number of
appointments for arbitrators
based in Scotland.
The structure of the Centre
will be based on the Arbitration
Institute of the Stockholm
Chamber of Commerce. The
Swedish centre is an independent
arbitrator-appointing body. It
maintains its own rules, and does
not have a panel of arbitrators
but operates through an
appointments committee.
However, the Scottish board
will be responsible for all major
decisions of the Centre, and
no final decision on this has
been taken.
The Centre will have a website
as its “shop front”, promoting
the Centre and providing
information about its operation,
the 2010 Act, and the different
rules available, including the
Scottish Short Form Arbitration
Rules produced by CIArb. It will
provide styles for arbitration
clauses for parties, and their
legal advisers. The site is being
developed, but our temporary site
can be located at www.scottish
arbitrationcentre.org.
Collaborative commitment
We have a very small budget, so
the Centre will need to be a very
tightly run ship. It is hoped that
some funding might be secured
through grants or sponsorship.
However, this cannot be relied on
in the current financial climate.
The Centre intends to profit
from businesses using it to
arbitrate in Scotland, by hiring
equipment and taking a
percentage of the room rental.
We also hope to raise revenue
through providing training.
The establishment of the
Centre sees unprecedented
collaborative working between
the five members of the company.
The commitment of the
nominated directors should also
be recognised, especially that of
the chairman, Brandon Malone.
Furthermore, we are fortunate,
thanks to EDI Group Ltd and the
City of Edinburgh Council, to
have premises rent-free.
Over the next few months,
the Centre aims to develop a
sustainable business model to
allow it to become a key part of
the environment to support
arbitration in Scotland, building
on the 2010 Act. Together they put
Scotland at the forefront of the
international arbitration scene.
The Centre will encourage
companies based in Scotland to
adopt arbitration as a confidential,
flexible alternative to settling
disputes in court, using an expert
in the relevant field, and to do so
in Scotland under Scots law. It will
also aim to attract international
work to Scotland for arbitrators
and the legal profession,
particularly in areas such as
energy, bringing benefits to the
wider Scottish economy.
With its distinguished legal
tradition, innovative legislation
and the Scottish Arbitration
Centre, Scotland is well placed
to compete as an attractive
and cost-effective venue for
arbitration on the global stage.
Andrew Mackenzie, solicitor,
is chief executive of the Scottish
Arbitration Centre, on secondment
to the Centre from the Scottish
Government Justice Directorate.
w: www.scottisharbitrationcentre.org
024-27 Feat Outsourcing1104rev
6/4/11
10:53
Page 24
Feature Outsourcing
The cloud?
It’s down to
earth...
6/4/11
10:53
Page 25
In a special feature on outsourcing support for the legal office, the Journal focuses
on a business partnership that has harnessed the latest IT to offer a platform for
law firms facing the challenges of the 21st century – and some client experiences
O
utsourcing has
been a much
debated topic in
recent times.
Applied to the legal sector, it
often refers to large-scale deals
where city firms ship quantities
of work and/or back office
administration to places where it
can be carried out more cheaply.
But the potential advantages
can be even greater for legal
practices of a much smaller
scale: the technology now exists
to enable the average high street
firm to offload many of the
tasks that otherwise eat into
valuable fee-earning time,
providing expert help at a level
that would otherwise be out of
reach to most.
Here in Scotland, legal
software providers LawWare
and outsourcing business The
Cashroom Ltd have collaborated
to offer solicitors the means to
take that step into the future – a
step that many predict will be
essential if the profession is to
meet the challenge posed by
increased client expectations
combined with new competitive
threats in the changing legal
market place.
Light through the cloud
In a nutshell, LawWare offers a
cloud computing solution,
which it has christened
LawCloud. The uninitiated
should not let the term “cloud
computing” fog the brain: it’s
simply the popular name for
outsourcing tasks through the
internet that you would
otherwise have to employ people
and invest in IT systems to carry
out within your office.
Launched in February 2011,
LawCloud offers online the topof-the-range Enterprise version of
the LawWare case management
software that has been adopted
by 180 law firms in Scotland
since the business was
established in 1998 by managing
director Warren Wander.
Trials in the preceding months
resulted in 25 firms already being
live on LawCloud by the time of
the official launch. One of them is
BBM Solicitors, a startup practice
established at the turn of the year
by brothers Eric and Alasdair
Baijal, taking on high-end
commercial and litigation work at
offices in Wick and Edinburgh.
“When we decided to set up
our own practice, we wanted an
IT system that enabled us to
share data and gave us easy
access via a laptop if we were in
court”, says Eric. “We had already
decided to go for a paper-light
system, scanning any mail,
saving it to client files, and doing
without paper file copies of
correspondence. Our previous
firm used LawWare. We didn’t
know about LawCloud, but
when we talked to Warren and
had a demonstration we were
very impressed – even Jennifer,
our associate, who has worked in
a big firm with a heavy duty case
management system.”
6/4/11
10:53
Page 26
Feature Outsourcing
Startup support
LawWare’s initial motivation for
developing a “cloud” solution,
Wander explains, was the
realisation that, especially in the
recent economic climate, the cost
of server infrastructure could
easily be prohibitive for small
law firms seeking a technology
solution and was a marked
disincentive for firms looking to
upgrade their existing systems.
Baijal agrees.
“For the smaller firm not doing
a huge quantity of work it is
certainly cost effective not to have
to invest in a server. LawCloud
also has the attraction that you
can add or remove individual
users very easily if people join or
leave the firm, and you just start
or stop paying for them as they
do. It would be a long time
before we would be able to take
on a dedicated IT manager, so it’s
an efficient use of management
time with much less impact on
fee-earning work than if we tried
to run it ourselves.”
Another advantage for Baijal
was the speed of set-up,
especially for a practice starting
from scratch. “We were up and
running probably within 72
hours. And Warren was a great
help as an IT consultant without
asking anything extra.”
Remote working is easier too,
compared with the VPN (virtual
private network) link that he had
previously used for accessing
data while out of office. “Now,
provided I have a broadband
connection, my access to client
files is as good as when I am in
the office.”
Remote money
BBM also subscribes to The
Cashroom, a Scottish company set
up in 2008 which now provides
outsourced cashroom services to
clients throughout the UK.
“We do everything an in-house
cashroom does, only we do it
remotely, without the need for
lawyers to employ and manage
cashiers and accountants, and all
for a fixed monthly fee”, says The
Cashroom director Catherine
O’Day. “We are confident that the
fee will be less than the
equivalent employment costs,
and you don’t have the hassle of
employing people.”
The service is provided
remotely, with Cashroom staff
dialing into each firm’s practice
management system. Once there
they can function just as if they
were in the room next door.
Depending on the practice
management system used, law
firm staff complete their own
entries, which are emailed to The
Cashroom and posted by its staff.
If the firm needs a cheque, the
request is sent to The Cashroom,
posted there, and the cheque is
printed out remotely in the law
firm’s offices.
Baijal explains that BBM has a
particular cashier assigned to the
firm with a named substitute if
she isn’t available: “it isn’t just a
random person from a pool who
does the work, and although she
has other responsibilities, she has
a good understanding of our
business”. People are assigned on
the basis of experience, so BBM
have someone with a
background in litigation.
Family needs
Another client is niche
Edinburgh family law firm
Sheehan Kelsey Oswald, set up
in late 2008 and already top
rated in Scotland by the major
directories. SKO also required
help in starting from scratch ITwise, and something that would
support fee-earners having to
provide rapid responses to
clients facing crises in their lives.
“We needed a system that would
allow us to have client files that
integrated with financial record
keeping, enabling us to see and
time-record work done”, says
Susan Oswald, one of the
founding directors of the firm’s
holding company, and the firm’s
designated cashroom partner.
“They were very hands-on at first
– it was a new system and we
had to establish and agree
procedures.”
SKO was not only The
Cashroom’s first startup client
but the first to be incorporated as
a limited company rather than
set up as an LLP; however close
working at the outset established
the necessary procedures, ironed
out any teething difficulties and
delivered a system that Oswald
describes as “fairly slick”.
“The difference from a
traditional cashroom”, she
comments, “is that you have
information available on screen,
hour by hour, about client files –
not just work done but the value
of work in progress; you can look
at the ledger and see what outlays
are waiting to be paid, and when
the client was last sent a fee note
(and paid one). Our system helps
avoid the client being presented
with a big bill at the end and
makes things more manageable
for both firm and client.”
She adds that monthly
management accounts are very
easy to produce. “The Cashroom
produce them but it’s very
straightforward, because the
figures are accurate and up to
date. This helps us when we
report to our bank, who are
always very impressed by the
standard of our reports. We have
6/4/11
10:53
Page 27
For the smaller firm not doing a
huge quantity of work it is
certainly cost effective not to
have to invest in a server
LawWare users but not yet
through LawCloud, Oswald
believes that in a couple of years
the firm is likely to be looking to
dispense with its expensive
server in favour of the cloud. “I
think it’s the way ahead; it would
be a great boon.”
an excellent relationship with
our bank – it helps that we
are a successful firm, but we
had to build relations from
starting up.”
A further, not insignificant
point is that The Cashroom will
keep the firm right as respects
Law Society of Scotland
inspection and compliance.
Changed world
Other early adopters of the
LawCloud system were Stewart
Brymer and Scott Brymer of
Brymer Legal Ltd. Established in
2009 to deal with general
business law and specialist
opinion work, the company did
not want to be tied down to
expensive servers and high levels
of administrative support. “I had
spent 30 years in a traditional
law firm environment and it was
time for a change,” says Stewart
Brymer. “Client needs were
changing and it was time to do
something about it. LawCloud
has enabled us to compete on
more of a level playing field than
I had anticipated. Indeed, one
could argue that we are
significantly better off given that
we do not have expensive IT and
large city centre buildings to pay
for and maintain.”
All the firms interviewed agree
on the importance of security of
information, and the robustness
of the service offered. LawCloud
data is backed up automatically,
held in a state-of-the-art UK data
centre, and covered by a robust
disaster recovery plan. “We
discussed this with the Law
Society of Scotland to check
compliance, and had a look at
what provision was made”, says
Baijal. “I can only say that we
were satisfied with what we were
offered. With cloud computing
security is always an issue; you
just have to look at each
provider on their merits.”
“It is also about quality of
support”, Scott Brymer adds, “and
we have found that LawWare
understand the legal profession
and the sort of IT challenges that
solicitors can create.”
The pressure for change now
facing the profession has been
quietly building for several years,
but the recession has brought
things to a head. “Because of the
recession clients have less
money”, says O’Day. “Stated
simply, clients want more for less,
and they want it more quickly.”
With more and more legal
advisers providing traditional
legal services in innovative ways,
more cheaply and more quickly
than before, outsourcing could
be the response for a larger
proportion of the profession
than you might have thought.
028-29 Society AGM report1104rev
6/4/11
16:45
Page 28
Professional news Society
Searching for a constitution
The Society seeks
agreement on
amendments to
current statute
after it fails to be
rescinded
The search for a new
constitution for the Law Society
of Scotland was continuing as
the Journal went to press, with
talks due to be held between the
Society and the Scottish Law
Agents Society (SLAS) on
whether amendments could be
agreed to the draft put to the
Law Society’s AGM on 25 March.
At that meeting a motion to
rescind the current constitution
from midnight on 31 May,
subject to the passing of the draft
scheme laid before the meeting,
failed to achieve the necessary
two thirds majority, voting
(including proxies) being 820 for
to 743 against, with nine
abstentions.
As a result, the Society’s office
bearers withdrew the following
motion on the agenda, for
adoption of the new scheme; but
in truth the debate had already
canvassed the principal issues
and objections.
Vice President Cameron
Ritchie, moving the motion to
rescind, said the new draft would
allow the governance of the
Society “to be brought into the
21st century”. It had been three
years in the planning, the Society
had listened to members
through consultations and a
members’ survey, and it was
better to go for a new model
than to try and amend the
existing one. If the motion failed
to pass, the Society would have
to come back and try again.
Supporting, his successor elect
Austin Lafferty said it was the
profession’s members that
would make it survive and
prosper, by coming to meetings,
keeping themselves informed
and taking part in the Society’s
work. That was what would
Platform party (from left): Registrar
David Cullen, President Jamie Millar,
Chief Executive Lorna Jack, Vice
President Cameron Ritchie
make the constitution work.
Walter Semple, however,
moving the negative, described
the draft as “entirely
unsatisfactory” on three grounds.
Many drafting criticisms
remained unaddressed; there was
a significant question whether it
was actually needed for the
creation of the new Regulatory
Committee required under the
Legal Services (Scotland) Act
2010, as claimed in a letter by
Council members including the
President in a letter to Glasgow
constituents nine days before the
meeting; and most importantly
because of the conflict of interest
that would result if the Society
became a regulator of legal
services providers under the Act.
Members would not have to be
consulted on rules to regulate
such providers, but would have to
share with them the Master Policy
and Guarantee Fund, and both
would be put at risk.
As the debate proceeded, most
voices from the floor were critical.
Mike Dailly (Govan Law Centre)
said the Society was a
membership organisation but the
new constitution would reduce
the rights of members and went
against the modern movement
towards more transparency and
democracy. Craig Bennet,
speaking as a SLAS council
member and as an individual,
said there was no level playing
field if ordinary members needed
a two thirds majority to pass a
motion compared with the
Council’s simple majority; and
the article 16 provision on
standing orders “may be a recipe
for governance by stealth”. Former
President David Preston pointed
out that non-practising members
of the Society were “systematically
disenfranchised” from standing
as or voting for Council
members, but might have much
to contribute at a time when
pressures on business are
increasing and people’s time is
restricted. George MacWilliam of
the Highlands Faculty also
criticised various effects on
members’ rights and added that
there was an issue over elections
to Council from different parts of
his area.
Although John Loudon
(Lindsays) emphasised the need
for change and the improvements
in the new draft over the current
model, and Past President Ian
Smart reminded the meeting that
this was not a re-run of the ABS
debate and there was a risk that
some big firms could choose to
be regulated by others, leaving
smaller firms with greatly
increased costs of supporting the
Master Policy and Guarantee
Fund, the mood of the meeting
was swinging against the
proposed scheme.
The Society indeed got into
difficulties over the statement in
the Glasgow letter, after Director
of Law Reform Michael Clancy
advised that the existing
constitution would permit the
Society to set up a regulatory
committee – though not to admit
non-lawyer members to Council
as also envisaged by the 2010 Act.
Calls since the meeting for the
President to resign for misleading
members have resulted in the
Society seeking senior counsel’s
opinion on the correct position
(see Stop Press box).
After the vote, Craig Bennet
said that SLAS, which exercised at
least 523 proxies at the meeting,
were “not wreckers” and
undertook that SLAS would work
with the Society to make sure
that a constitution was produced
that was “fit for purpose”.
A further General Meeting has
been set for Friday 27 May in the
George Hotel, George Street,
Edinburgh. The original purpose
was to consider the proposed
consolidated practice rules and
revised accounts rules, but the
Society hopes to have a further
version of the constitution to put
to the meeting also.
A commencement order (SSI
2011/180) has also been made
which among other things brings
the provisions of the 2010 Act
relating to Council and the
Regulatory Committee into force
in June.
028-29 Society AGM report1104rev
6/4/11
16:45
Page 29
Society “listening and engaging”: Millar
The Society is a listening and
engaging body, going out
proactively to meet with
members throughout Scotland,
and supporting them whenever it
can, the President, Jamie Millar,
stated in his address to the AGM.
Describing the last 12 months
as “particularly eventful”, and
also particularly challenging for
many of his colleagues, the
President predicted that
solicitors in Scotland would find
the next year equally
challenging as the economic
situation continued to affect the
property and corporate markets
as well as the public sector.
Millar reminded the meeting
that the Legal Services Act was
now a reality and that in last
Remember the
Benevolent
Fund
Craig Bennet, convener of the
Scottish Solicitors Benevolent
Fund, made his annual plea for
solicitors to remember the Fund
both as an object of their charity
and as a source of help for
those in need.
Careful fund management
and better investment
performance had resulted in
increased reserves despite a drop
in income. Donations from
people renewing their
subscriptions, of CPD speakers’
fees, and from the annual golf
outing were important sources
of income.
Eleven individuals had
benefited from grants, mostly
solicitors’ widows in straitened
circumstances, but one had been
a newly redundant solicitor with
a young family, who had been
able to call on the Fund for help
in the interval until they found
another position.
Takeup of the Tod
Endowment, which provided
holiday assistance for stressedout solicitors, however remained
“worryingly low”.
year’s first referendum, over
80% of those voting had
supported the principle of the
Society being a regulator of the
new legal services providers.
Work in hand included the
projects to review the accounts
rules and consolidate the practice
rules; the new route to
qualification and the 16 university
accreditations to go with that;
the successful Registered
Paralegal Scheme; and the
ongoing work of the law reform
team to ensure the profession’s
voice was heard at Westminster
and Holyrood. On the
representation side, the Scottish
Parliament manifesto had been
well received by the media and
the political parties; Lloyds
Banking Group was readmitting
firms unfairly excluded from its
conveyancing panel; and the
Scottish Legal Complaints
Commission had accepted the
case for using its reserves to
reduce the annual levy.
Thanking the various
departments of the Society’s
executive for making these things
possible, Millar then paid tribute
to his Vice President Cameron
Ritchie, Past President Ian Smart,
Council members serving and
retired, and all others who serve
on the Society’s committees, for
their commitment: “Together,
they are a group who care about
the profession and its future.”
It would be wrong, he added,
not to mention the events of the
last few weeks. Referring to the
recent very public disagreements
concerning the Society, he said
he respected the strongly held
view of the 30% who disagreed
with the Society continuing its
dual role, but it was regrettable
that some solicitors seemed so
quick to condemn professional
colleagues and subject them to
suspicion and accusation. We
were still united in using the
badge “Scottish solicitor”, and
that meant working to the
highest professional standards.
When one solicitor challenged
those of another, the standards
of the whole profession were
called in question, and he
appealed for debate in a spirit of
trust and decency.
Stop press:
President’s
statement
(6 April)
Counsel’s opinion
has confirmed that
the Society already
has power to create
a 2010 Act-style
Regulatory
Committee. The
President has sent a
statement by email
to members
clarifying the
position, regretting
the earlier
misstatement, but
reaffirming his
intention of seeing
the reform process
through before he
demits office: see
www.journalonline.
co.uk/News/
1009573.aspx
Finances on sound footing
Despite cutting its spending, the
Society achieved a financial surplus of
almost £1 million in the year to
31 October 2010, treasurer David
McClements (above) reported in
moving adoption of the accounts.
Membership had increased slightly and
spending had been tightly controlled,
enabling a further reduction in the
practising certificate fee to £550.
He assured the meeting that the
Society was not building up excessive
reserves: a deficit is budgeted for the
current year, and provision had to be
made for pension scheme liabilities
under the FRS 17 accounting standard.
The deficit on the Journal caused
by the drop in advertising had
increased, but every effort was being
made to reduce it and the Society
remained of the view that it was of
benefit to members.
Speaking for the Audit Committee,
Bruce Beveridge commented that the
auditors’ most recent report
supported the committee’s own
assessment that the Society’s financial
procedures had improved.
On the Guarantee Fund,
committee convener Alistair Morris
reported that its financial position
had improved as grant approvals
during the year had been below
expectations. However, there were still
claims exceeding £2 million
intimated against the Fund, and the
level of reserves needed to be
considered alongside the level of
potential risk. The committee was
aware of the level of mortgage fraud
and the possible claims arising as a
result, and had to take all these
matters into account in setting the
members’ contribution.
The £1.25 million cap in the Legal
Services Act on individual grants from
the Fund, however, greatly reduced
the potential exposure.
030-33 Professional News1104rev
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Complaints
update:
disclosing
information
According to counsel’s
opinion received by the
Society, no privileged
information should be
disclosed during disciplinary
investigations initiated by
third parties without
obtaining express written
consent from the client.
The opinion advised that
although the Society and
Scottish Legal Complaints
Commission can demand
certain explanations and
documents, this does not
extend to confidential or
privileged matters without
a court order.
Mary McGowan, the
Society’s Head of Regulation
Liaison, has written to client
relations partners with details
of the opinion. She said: “I
am aware from conversations
with CRPs that the issue of
how to respond to third
party complaints is of
paramount concern. On the
one hand, they have a duty
to maintain confidentiality
and, on the other, a duty to
answer complaints.
“CRPs should act with
extreme caution to ensure
any privileged information or
documentation is not
disclosed to the SLCC or
others without the specific
written consent of its owner,
which is usually the client.”
Solicitors with any
concerns should contact her
at the Society, or the SLCC.
Meanwhile, the Client
Care Committee has issued a
reminder to the profession
that the Society receives
notification of convictions
and administrative penalties
against solicitors. The
committee considers such
convictions and, as has
happened in a number of
recent cases, can then
submit a conduct complaint
to the SLCC, which will
decide whether it is eligible.
Dean waives cab rank
rule in civil legal aid cases
The cab rank rule for advocates
will not be enforced in respect of
civil legally aided cases instructed
after 1 April 2011. The acceptance
of instructions in these cases will
be a matter for the individual
member of Faculty.
The Dean of Faculty, Richard
Keen QC, gave this advice in a
notice to members dated 10
March, as a result of the Civil
Legal Aid (Scotland) (Fees)
Amendment Regulations 2011,
which came into force on 1 April.
The regulations remove the
discretionary power of the
Auditor of Court to increase fees
in the relevant table to take
account of complexity, difficulty
or other particular circumstances,
so as to provide reasonable
remuneration for work
undertaken.
Although counsel rarely sought
taxation, the opportunity to do so
ensured that the Scottish Legal
Aid Board paid reasonable levels
of fees to counsel in order to
avoid the Auditor and have a level
of reasonable rates established.
This system was generally
recognised, according to one
solicitor advocate, as being a fair
one and solicitors found they had
little difficulty in securing suitable
counsel to appear for legally
aided persons in the courts.
In his notice the Dean states
that as a result of the
amendments, “it can no longer be
assumed that the fee rates set out
in the new Tables of Fees are
implicitly reasonable. From 1
April 2011, members may take it
that whether or not the fees set
out in the Tables of Fees
constitute reasonable
remuneration for work instructed
will be a matter for each
individual member concerned. If
any member considers that in any
case in which he receives
instructions the new Tables of
Fees do not provide for a
reasonable fee then, as a
generality, no professional duty to
accept instructions will arise”.
See also www.journalonline.co.uk/
extras/1009574.aspx
Official lineup at the LawWorks Scotland
launch. Chairman Ian Moffett is on the right
LawWorks Scotland
up and running – official
LawWorks Scotland was officially
launched on 10 March at an event
in Parliament House, Edinburgh.
The new charity, set up by
solicitors and other stakeholders
from the charity sector with
support from the Law Society of
Scotland, will co-ordinate and
develop provision of pro bono
help, signing up individuals and
legal firms as members offering
financial and practical support.
Elish Angiolini QC, a
longstanding supporter of pro
bono initiatives, will become the
charity’s first patron when she
demits office as Lord Advocate
following the May Holyrood
elections.
Speaking at the event, she said
she regarded the introduction of
LawWorks in Scotland as a
welcome step forward by the legal
profession. “In today’s economic
climate, more so than ever,
people are facing challenges in
housing, employment, health
issues and other social problems.
Affording legal advice is even
more difficult than normal. While
pro bono legal services are never a
substitute for legal aid, they are
invaluable in helping to ensure
that people are treated fairly and
have their rights respected.”
Ian Moffett, chairman of
LawWorks Scotland, said: “There
are already many Scottish
solicitors and firms providing pro
bono legal services. However,
many more would like to but are
not quite sure how to get
involved. We want to encourage
more lawyers to take part and
help put them in contact with
those most in need.”
Several firms and one in-house
team have already signed up, and
Moffett hoped many more would
follow. “While we will operate as
an independent charity, we have
the support of the long
established LawWorks in London
– almost every major law firm in
England & Wales is a member of
LawWorks and we want to see the
same thing happen in Scotland”,
he said.
www.lawworksscotland.org.uk/
6/4/11
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Law reform update
Work continues on numerous
consultations despite the election period
Scotland Bill
The Constitutional Law Committee
continues to be active with this bill,
which is currently awaiting report stage
in the House of Commons. This is likely
to take place after the Scottish
Parliament elections on 5 May.
Winning smiles
The Society’s Update team were winners at the 2011 Scottish Legal Awards,
taking the Training Provider of the Year category. Pictured flanked by
hostess Catriona Shearer and guest entertainer Keith Farnan are Sarah Prior,
Katy Lyon, Sarah Jayne Scott and Lynsey Kay.
Student pro bono success
Scottish students were among the
winners at the LawWorks &
Attorney General Student Awards
2011, coming first and second in
the “Best Contribution by an
Individual Student” category.
The winner was Alasdair
Stewart of the University of
Strathclyde Law Clinic. He joined
the clinic during his first year at
university, eventually becoming
deputy student director and
currently student director. He
developed a groundbreaking
online case management
system for the clinic and has
also dedicated his time and
expertise to help other
Student essay
competition
runs again
Law students have a chance to
win a rare opportunity to work
in the legal department of the
Scottish Parliament if they can
put into writing which aspects
of Scots law should be
recommended for change
after the next election.
Now in its third year, the
essay competition, run jointly
by the Law Society of Scotland
and the Scottish Parliament,
challenges students in
Scotland in the final or
penultimate year of the LLB to
consider the question:
fledgling university clinics
throughout Scotland.
Runner-up was Ryan Whelan
of the University of Aberdeen,
who has been instrumental in
establishing the Aberdeen Law
Project to assist in bridging the
access to justice gap in the north
east of Scotland.
The projects team from the
Strathclyde clinic were also
finalists for the “Best
Contribution by a Team of
Students”.
The UK-wide annual awards
mark the achievements of law
schools and their students in pro
bono activity.
“Which of the Scottish Law
Commission’s unimplemented
reports should a committee or
a member of the Scottish
Parliament take forward to
implement after the next
election and why?”
Entries should be 2,000
words long and emailed in
Word to newlawyers@
lawscot.org.uk by 12 noon on
4 May 2011. The winner will
receive a cash prize of £500, a
three week summer
placement, and have their
winning essay printed in the
Journal. They will be invited
to receive their prize at the
final of the Donald Dewar
Debating Tournament
in June.
Pensions Subcommittee
The Pensions Subcommittee is
considering a number of consultations
including the Pensions Bill, currently
progressing through the House of Lords,
in relation to which the subcommittee is
looking at proposing amendments.
Mental Health &
Disability Law Subcommittee
The committee has recently submitted a
response to the Scottish Government
consultation on the Social Care (Selfdirected Support) (Scotland) Bill, following
a meeting attended by representatives of
the Scottish Government and others with
an interest in the bill.
Olympic Games trading
The UK, Scottish and Welsh
Governments are developing secondary
legislation to regulate advertising
activity and trading in open public
places around Olympic and Paralympic
events during the 2012 Games. This
consultation is being considered by the
Intellectual Property Law Subcommittee
and the Equalities Law Subcommittee.
Defamation and the deceased
The Obligations Subcommittee is
currently finalising a response to the
Scottish Government’s consultation,
which has also had input from the
Society’s Civil Justice Committee.
Domestic Abuse (Scotland) Bill
The bill passed stage 3 on 16 March.
The Family Law Subcommittee has been
actively involved from giving oral
evidence before the Justice Committee
and proposing amendments at stage 2.
The Society recommended, along with
others, that the bill should not include a
definition of domestic abuse. The Society
also raised concerns that the provision
which called for the removal of a means
test for legal aid for alleged domestic
abuse victims, created an inequality
between pursuer and defender. This
provision was removed at stage 2.
Forced Marriages etc
(Scotland) Bill
The bill passed stage 3 on 22 March. The
Family Law Subcommittee has played a
prominent role in its development over a
number of years and has been part of the
Scottish Government’s Forced Marriage
Network since it was set up in 2005. The
committee gave oral evidence to the
Equal Opportunities Committee and
suggested amendments at each stage of
the bill. A number of the amends
suggested by the Society and others
have been incorporated into the final bill,
including the addition of a civil
partnership provision. The Society has
also highlighted the need for an
education programme to accompany the
legislation, to help reduce the instances
of forced marriage.
Similar fact evidence
and the Moorov doctrine
Discussion paper 145 from the Scottish
Law Commission considers revising the
law relating to the admissibility of
evidence of bad character or of previous
convictions, and of similar fact evidence,
and the Moorov doctrine. The Criminal
Law Committee is reviewing this paper
and will submit a response shortly.
Carloway Review
Lord Carloway’s review published a
consultation paper on 8 April, reviewing
the law and practice in light of the UK
Supreme Court’s decision in the case of
Cadder v HM Advocate and the
subsequent passage of the Criminal
Procedure (Legal Assistance, Detention
and Appeals) (Scotland) Act 2010.The
Society’s board working group is
considering this consultation and will
submit a response.
World IP Day
Members of the Society’s IP
Subcommittee, along with the Faculty of
Advocates, are working on the final
preparations for World IP Day. A
conference will be held at the MacKenzie
Building on Thursday 21 April, focusing
on designing the future with respect to
branding and intellectual property. To
register, please visit the Society’s
website. Members will require their
website login details to book online.
Cumbernauld JP court
As from 3 May 2011, all correspondence, enquiries, and
payments of fines and penalties at Cumbernauld Justice of the
Peace Court should be made to Sheriff Clerk’s Office, Sheriff Court
House, Graham Street, Airdrie ML6 6EE (t: 01236 751121). The
court will however continue to sit at the current location at Bron
Way, Cumbernauld G67 1DZ.
6/4/11
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Page 32
Specialist accreditations
Employment
LINDSEY J CARTWRIGHT, Morton
Fraser LLP (accredited 15 March 2011);
J INNES CLARK, Morton Fraser
(accredited 29 March 2011).
Re-accredited: DAVID WALKER, Dundas
& Wilson (accredited 25 January 1996);
CAROLINE CARR, Brechin Tindal Oatts
Family
ALISON EDMONDSON, SKO Family Ltd
(accredited 15 March 2011);
MORVEN DOUGLAS, Balfour +
Manson (accredited 16 March);
GRANT A KNIGHT, Wilson Terris & Co
Re-accredited: CAROLINE J
FLANAGAN, Ross & Connel
(accredited 26 February 1996); LYNN
L HARRISON, Beveridge & Kellas
(accredited 31 January 2001); FIONA
CAREY, John Jackson & Dick
(accredited 23 March 2001);
ELIZABETH WELSH, Elizabeth Welsh
Family Law Practice (accredited 23
March 2001); RICHARD B SMITH,
Simpson & Marwick (accredited 22
March 2006).
Insolvency
JAMES LLOYD, Harper Macleod
Personal injury
Re-accredited: DAVID SANDISON,
Lawford Kidd (accredited 7 March
2003); GILBERT ANDERSON,
Andersons (accredited 26 March
2003).
Professional negligence
Re-accredited: IAIN NICOL, Nicol & Co
(accredited 30 January 2006).
Obituaries
LISA AILEEN CLARKE, Edinburgh
On 30 September 2010, Lisa Aileen
Clarke, formerly partner of the firm
Dundas & Wilson, Edinburgh.
AGE: 40
ADMITTED: 1994
ALEXANDER McINTOSH, OBE
(retired solicitor), Wishaw
On 22 February 2011, Alexander
McIntosh OBE, formerly town clerk of
Motherwell and Wishaw and latterly
chief officer (Scotland) of the Housing
Corporation, Motherwell.
AGE: 95
ADMITTED: 1939
ALEXANDER TAYLOR GOODMAN
(retired solicitor), Glasgow
On 4 March 2011, Alexander Taylor
Goodman, formerly partner of the
firm Boyds, Glasgow.
AGE: 82
ADMITTED: 1955
Family Law Association
Now in its 22nd year, the Scottish
Family Association (FLA) is
committed to the constructive
resolution of family disputes in
Scotland. It currently boasts
membership of over 300
throughout Scotland.
The FLA’s objectives include
providing a point of reference
for the public and for other
organisations on family law issues;
monitoring and promoting the
reform of family law in a manner
which serves the needs and
concerns of families; and providing
education and training in family
law and in skills necessary for good
practice. FLA is regularly consulted
by politicians and public bodies
with a view to advising, and
formulating law, policy and
procedures in respect of family law,
including the coalition
Government’s current green paper
on the future of child maintenance.
The FLA has recently
developed its website to create a
message board or “forum” for its
members to share useful
information and receive
guidance on various issues,
including relevant family case
law, styles, useful
contacts/experts, and tips about
local sheriff courts, along with a
general “Can you help?” section
for those seeking help or
reassurance from others in the
In-house lawyers:
still time to
comment
There is still time to respond to
the Society’s review of its work for
in-house lawyers – and a new
date has been set for the debate
about the support they need
going forward.
The debate is now on Tuesday
17 May at the Society’s offices in
Edinburgh. It will offer an
opportunity to discuss the
A longer version of this article is at
www.journalonline.co.uk/Extras/1009468.
aspx
Research into
the reports
Reach
Scotland
Reach Scotland is a new
national project funded by the
Scottish Funding Council and
co-ordinated by the Universities
of Aberdeen, Dundee,
Edinburgh, Glasgow and St
Andrews. Reach is a Widening
Participation into Higher
Education initiative and
specifically seeks to inform
young people from nontraditional backgrounds about
degree level study in “high
demand” professions.
Reach Tayside works with
S4-6 pupils from 17 local
schools – chosen because of
their low progression rates into
field, and a recruitment section
for family law positions.
FLA membership (£85) is open
to solicitors and reporters to the
children’s panel. Associate
membership (£30) is open to
trainees, students, advocates,
solicitors from other jurisdictions,
academics and paralegals, among
others. An application form can be
downloaded from the website.
The current secretary is Graham
Fordyce, T F Reid & Donaldson, 48
Causeyside Street, Paisley PA1 1YH
(e: enquries@ fla-scotland.co.uk).
higher education. Pupils are
introduced to law through
information/practical
workshops, campus visits,
opportunities to meet current
students and work placements.
Reach Tayside is keen to get
practising law graduates
involved in its outreach activities
and would like to hear from
local professionals.
More information is available at
www.dundee.ac.uk/reach, or
[email protected].
review, being undertaken by
Tony Guise, of Guise Solicitors,
and some of the themes arising
out of the survey sent to the
2,500 in-house lawyers in
Scotland (see Journal,
March, 34).
For further information, and
news about the review and the
debate, see www.lawscot.co.uk/
members/member-services/inhouse-lawyers.
Comments can be emailed to
The Scottish Council of
Law Reporting has
commissioned research into
the use of law reports in
Scotland, to be carried out
during the first half of 2011
by Stuart Cross and Robin
White of the Law School at
the University of Dundee.
The Council’s intention is
that the research may reveal
more about the use of law
reports in the digital
environment in which they
are most often accessed
now and, perhaps, suggest
ways in which the format,
presentation or content of
law reports may be
improved for the benefit of
users. The form of law report
with which we are now
familiar was developed in
the mid-19th century and
the Council believes it is a
good time for such an
appraisal. While all the
research will be carried out
on confidential terms, it is
intended that the results
may achieve publication for
the general benefit of
lawyers and law publishers.
Solicitors and solicitor
advocates may be contacted
by the researchers seeking to
conduct interviews.
[email protected] by 3 May.
6/4/11
15:55
Page 33
Notifications
In brief
FCO guidance for
notaries public
The Society has
received guidance
from the Foreign &
Commonwealth Office
(FCO) concerning
changes to the
minimum information
required on
documents witnessed
by notaries public. Full
details are on the
Society’s website:
www.lawscot.org.uk/
news/current-issues/
guidance-from-theforeign-common
wealth-office-tonotary-publics
Welcome to the 61
Sixty one newly qualified solicitors were admitted
to the Society at the latest Admissions Ceremony,
held on 11 March in the Signet Library, Edinburgh.
Former Justice Committee convener Bill Aitken
MSP delivered the guest address.
May date for SGM
The Society’s Special General Meeting 2011 will
be held on Friday 27 May in the George Hotel, 1921 George Street, Edinburgh, beginning at 10am.
The agenda for the meeting will be set at the
Council meeting on 28 April. The main items on
the agenda will be the consolidated practice rules,
including the revised accounts rules, and the
revised constitution.
Any questions on the arrangements for the SGM can be
addressed to the Society’s registrar, David Cullen
(e:[email protected]).
Introductory
course for
prospective
solicitor
advocates
The Society of Solicitor Advocates
is running an introductory course
for prospective solicitor advocates
on Friday 20 May 2011 at the
Law Society of Scotland, 26
Professional
bodies hustings
The Society will join
forces with the Royal
institute of Chartered
Surveyors (RICS) and
Institute of Chartered
Accountants in England
& Wales to hold a joint
hustings at RICS
Edinburgh offices on
26 April. Finance and
tax will be the central
theme. Discussion
topics include the new
Scotland Bill and
whether business
growth and the
environment are
compatible. To book a
place and for further
details please email:
katiehay@lawscot.
org.uk
Drumsheugh Gardens, Edinburgh.
The half-day event is intended
for all solicitors (civil or criminal)
considering applying for extended
rights of audience but unsure of
what is involved. Speakers include
representatives of the Law Society
of Scotland, the judiciary, and
experienced solicitor advocates
involved with the training and
qualification processes.
Contributions will be made by
senior office bearers of the
Entrance certificates
Issued during February/March 2011
BEGG, Katy
BERRY, Shavonne
FERGUSON, Struan Alexander
FLETCHER, Joanne Marie
FRASER, Alistair David
MACCRIMMON, Katie Jane
MCGUIGAN, Martina Louise
MCLAUGHLIN, Anna-Luise
MITCHELL, Amanda Anne
MORTAZAVI, Natasha
ROSE, Elizabeth Paterson
SAGEWOOD, Donna Marie
SEAWARD, Rose Alison
SHIELDS, Sandi Marie Anne
TIERNEY, Heather Isabel Mary
WAN, Roddy Chun Pui
WOSIAK, Izabella Dominika
YOUNG, Kayleigh Dawn
Applications for admission
February/March 2011
ANDERSON, Iain Craig
ANDERSON, Kirsty
BAILLIE, Stewart Alistair
James
BINGHAM, Stewart Mark
BROWN, Kendall Laurie
BROWN, Shonagh Margaret
CAMPBELL, Neil Colin
CHARRIER, Marianne Fiona
Hélène
CHRISTIE, Alison Lorna
CLARK, Susan
COYLE, Paul
DEANS, Paul Michael
DUFFY, Michael John
FLEMING, Andrew James
Graham
FORREST, Jean Young
FRASER, Craig Delargy
HIGGINS, Stephanie Frances
HOUSTON, Rebecca Jane
JACKSON, Lisa Ross
Society of Solicitor Advocates
and there will also be a panel
session dealing with practical
and topical matters relative to
practising as a solicitor advocate.
The course runs from 10am
until 1pm and costs £100,
including lunch until 2pm.
Anyone interested in attending should
contact Paul Motion, Vice President (Civil)
of the Society of Solicitor Advocates
(t: 0131 240 1114; e: [email protected]).
JAKOB, Sylvia Felicitas
KELLOCK, Mairi Mackenzie
KINGHORN, Elise Jean
LAMBLEY, Juliet Elspeth
McDADE, Lynne
McFALL, Dianne Jane
McMURRAY, Mark
MITCHELL, Amy Mary
MORRISON, John
MULLIN, Rachel Kirstie
MURPHY, Barry Charles
OGILVIE, Tracy Jane
PASSANT, Mark Iain
QUIG, Hannah Louise
ROBERTSON, Steven Grant
ROHAN, Sara Michelle
ROSS, Jemma Rachel
SLOAN, Edward Charles Paul
SUTHERLAND, Jennifer
Louise
THOMSON, Gemma
WALSH, James Matthew
Legal Services Act
commencement
The first commencement order for
the Legal Services (Scotland) Act
2010 has been made. This order
(SSI 2011/180) brings into force
various provisions of the 2010
Act between 1 April and
1 September 2011. Sections 146
to 150 came into force the day
after Royal assent.
034-36 News Lawscotjobs1104rev
6/4/11
16:49
Page 34
Recruitment lawscotjobs
It’s time for jobseekers – and those with posts
to fill – to take another look at lawscotjobs.co.uk
Doing the job
The Journal’s recruitment
website lawscotjobs.co.uk
has been relaunched in a new
upgraded version.
Designed to offer the Society’s
members the top legal vacancies
from the leading employers, the
site has been created to offer only
jobs for lawyers with the Scottish
qualification. It also caters for
members who are recruiting for
their own firm or organisation.
Candidate section
This part of the site is
dedicated to candidates.
You can register and log on
here as well as access the
latest salary survey and “jobs
by email” service.
Quick Search
The homepage search helps
you find vacancies quickly
and easily.
There is also an advanced
search function available via
the top navigation bar.
Recruiter links
These adverts link directly to
live vacancies on the site from
direct employers and
recruitment consultancies.
Built by Connect
Communications and
recruitment web specialist
Zero One, lawscotjobs has
had a considerable functionality
upgrade with new features to
assist you with your job search,
in addition to sporting a new,
clean look. The new
administration section helps you
manage your applications and
CV. There is an improved jobs by
email service. And the site now
comes complete with a specially
formatted mobile version –
mobile.lawscotjobs.co.uk – that
can be viewed on smartphones.
An enhanced New Lawyers
section offers careers advice and
lists the latest traineeship and
summer placement vacancies.
The Journal’s recent
Employment Survey (in
association with Thorpe Molloy),
showing salary and benefits
levels in both the private practice
and in-house sectors, can also be
accessed via the site.
The opposite page lists a
selection of lawscotjobs partners
who provide a range of legal
vacancies. They are a useful
resource to lawyers, whether
seeking a vacancy or recruiting,
as they can advise you on the
options open to you.
New Lawyers section
This section is provided by the
Society to assist law students
and graduates in their search
for traineeships and summer
placements.
The section lists specific
vacancies along with articles,
podcasts and case studies.
Featured and Latest Jobs
These provide quick links to
the latest vacancies on the site
and are constantly updated.
Find Jobs By…
These provide quick links to
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6/4/11
16:49
Page 35
Recruitment Specialists
Frasia Wright
Associates
Our approach is different
Tel
01294 850 501
Email [email protected]
Web www.frasiawright.com
We adapt our services to meet
the specific needs of individual
candidates from newly qualified to
partner / general counsel level. Before
we do anything or make a single
recommendation, we will take the
time to understand you and your
career aspirations. Openings arise as
a result of direct instructions, but a
good firm or organisation will often
Hays Legal
Passionate about people
The Barn, Stacklawhill, by Stewarton,
Ayrshire, KA3 3EJ
For more information please contact
Emma Taylor, Senior Account Executive.
Tel
0131 220 6474
Email [email protected]
Web www.hays.com
Michael Page
Legal
80 George Street, Edinburgh
Contact: Rick Mattison / Susan Black
Tel
0131 243 2981
Email
legal.scotland@
michaelpage.com
Web
www.michaelpage.com
Search Legal
For more information contact:
Lara Paterson – 0141 272 7801 –
[email protected]
Jill Cowan – 0131 718 8004
[email protected]
Meena Bahanda – 0141 272 7702
[email protected]
Sarah Gracie – 0131 718 8040
[email protected]
Hays Legal provides an expert view of
the Legal landscape in Scotland,
working across a national network of
offices including the major cities of
Aberdeen, Edinburgh and Glasgow.
We offer employers and jobseekers a
dedicated recruitment service for
permanent and interim positions across
all business sectors, skill sets and levels
of seniority. We support our clients with
sourcing quality candidates from our
constantly updated and maintained
database to more formal retained
create an opening for a candidate of
the right calibre and relevance who
will help to grow their business. It’s
our job to ensure that we recognise
which approach will be best for you,
and to use our knowledge and
expertise to represent you in the best
possible way. For more information
contact Frasia, Cameron or Eleanor
on 01294 850 501
managed campaigns and search
assignments.
We offer confidential, expert advice
on opportunities, compensation, career
planning and exit strategies pertinent to
professionals considering a move. A key
to our success within the Legal marke t
place in Scotland is that we ensure we
are regularly in contact with key decision
makers across all of our clients and so
have been instrumental in placing high
quality fee earners across an array of
organisations.
Recruiting legal professionals
Michael Page Legal specialises in the
recruitment of legal professionals from
Paralegals and Newly Qualified Lawyers,
to Heads of Legal and Partners.
We recruit across Private Practice,
Financial Services, Industry and
Commerce and the Public sector. We
can assist with permanent hires and
Interim options at all levels. The team in
Scotland is made up of qualified lawyers
with extensive experience in the practise
of law, both in top tier law firms and
in-house, and an excellent track record
in recruiting legal professionals across
all sectors.
We offer consultation and advice on
CV drafting, career planning, and we
can offer domestic or international
opportunities in conjunction with our
143 offices globally.
Dedicated to your career
With one of the largest dedicated
recruitment teams in Scotland,
Search legal is well placed to meet
your recruitment needs. Dealing
with the recruitment of qualified
solicitors, from NQ to partner level
and paralegals for permanent,
temporaray and contract roles
we provide a tailored service for
both clients and candidates. We
act for a variety of organisations
from small rural practices and large
commercial legal firms to local
authorities and FTSE 100 companies
across Scotland, London and the
Channel Islands.
Currently shortlisted for three
awards at www.theknowlist.com
6/4/11
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037 PP Trainees1104rev
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Professional practice Trainees
The learning curve
In this age of smart phones, social
networking and ever-increasing
expectations of availability, the
importance of effective communication
for aspiring lawyers cannot be
overstated. A good communicator will
stand out from the crowd and win the
respect and confidence of their peers,
employers, other professionals, and
ultimately clients.
As a trainee, you often have to
“think on your feet” quite literally,
and an essential element of this is
mastering how to communicate
clearly and concisely in a variety of
environments, which will invariably
be stressful.
The ability to translate technical
knowledge, analysis and experience
into simple – yet accurate – language,
which is appropriate for the
circumstances, is undoubtedly a key
skill for any lawyer and one which
trainees, in particular, should focus on.
What is the message?
The starting point with any form of
communication is to consider exactly
what you are trying to say and make
sure that that is clear in your own mind.
Consideration should then be given to
your intended audience. Put yourself in
the receiver’s shoes and always use
language they will understand.
Whether it’s a meeting, a letter, an
email or a phone call, remember to
prepare thoroughly – a good idea is
to make a list of salient points you
need to cover and then check these
off as you do so.
Don’t be scared to labour a point to
make sure you have been understood;
better this than gloss over something,
only for your advice to be lost in
translation.
It is likely that certain legal acts,
such as concluding a contract or
settling a claim, will follow on your
correspondence, so it is imperative to
make sure that all parties are clear on
the position; there really is nothing
worse than discovering that there has
been an avoidable misunderstanding
once it’s too late.
Mind your language
Communication should be kept as
simple as possible, but not of course
at the expense of accuracy. In
particular, be careful not to be
ambiguous or loose with
In his second article aimed at helping
trainees get their careers off on the right
foot, Ritchie Whyte focuses on the basics of
good communication – and the importance
of being someone people can rely on
terminology: after all, as paid
professionals, clients need to be able
to understand our advice.
This means being adaptable and
using different language and tone for
different situations to ensure that
your objectives are properly met in a
professional yet accessible manner.
Where correspondence is in writing,
it goes without saying that it should be
checked over to eliminate any errors
and firm up on clarity.
Emails, in particular,
deserve a special
mention as they
can, and will, be
misconstrued
unless you
take care when
drafting and
checking them.
The basis of trust
Reliable people are
worth their weight in
gold. As a trainee, you
would be well advised to
set your sights on gaining a
reputation for being a solid and
dependable individual who can
be relied on to “get the job done”.
A hard-work ethic is the
foundation for this, backed up by a
“can-do” attitude. Whatever you do,
don’t make promises you can’t keep,
but do be prepared to go that extra
mile to get things done on time to the
highest possible standard.
A reliable trainee will get the best
quality work because their colleagues
will have the confidence that their
instructions will be followed. It
can take months
and even years to
build that
confidence with
colleagues and clients alike, but only
a very short time to erode it. You
should therefore be prepared to work
hard to earn a sound reputation, and
then even harder to maintain it.
It may, on occasion, appear to a
trainee that their tasks are of little
significance and no great attention is
being paid to how and when they are
done. Be assured, however, that this is
not the case. The same level of care and
attention should be applied to all tasks
with a view to demonstrating to
colleagues that you have the requisite
steady mindset to be a successful lawyer.
Being seen as reliable is, in essence,
about getting a good job done, on
time. Great care should therefore be
taken to clarify instructions: exactly
what you are being asked to do and
what the time sensitivities are. Once
that is clear, some thought should be
given as to whether there are any
other points which require to be
addressed: be proactive and
use your initiative to make
sure you give yourself the
best chance of reaching
your goal.
In a busy office
environment driven
by deadlines and
targets, reliable
trainees who more
often than not
deliver, become
highly valued
members of their
teams. In these
competitive times,
it is important, even
at the inception of
your career, to be
seen as someone who
delivers results.
Don’t miss
in this
section
The learning curve:
Trainee guidance
37
Legal process
outsourcing
38
Ask Ash: Advice
column
39
Risk management:
Effective
supervision
40
Whatever you
do, don’t make
promises you
can’t keep, but
do be prepared
to go that extra
mile to get
things done
on time to
the highest
possible
standard
Ritchie
Whyte
Ritchie Whyte is
Training Partner with
Aberdein Considine &
Co. t: 01224 589 700;
w: www.acandco.com
038-39 PP Outsourcing and Ash1104rev
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Professional practice Outsourcing
Legal Services
Outsourcing:
don’t miss the boat
While the ultimate impact
of legal processes outsourcing
(LPO) on the legal profession
will take a few more years to
play out fully, 2010 showed that
its presence cannot be ignored.
The question for Scotland is
whether to be passive or active
during this industry
realignment.
Headline deals in the last 18
months by CMS Cameron
McKenna, Herbert Smith, Rio
Tinto, Microsoft etc confirmed
the robustness of the demandside of LPO; with quoted savings
of more than 40% this is not
surprising. Deals such as
Thomson Reuters’ acquisition of
Pangea3, CPA Global’s raising of
£100m in private equity funding
for its expansion, and
UnitedLex’s acquisition of
Lawscribe, showed the maturity
of the supply-side. LPO is not
going to disappear and law firms
across the UK and US are
currently determining their
strategic response.
To illustrate the opportunity
for Scotland, the point to note
is that “outsourcing” is not
necessarily the same as
“offshoring”. For example,
about 50% of the revenues of
an LPO provider such as
UnitedLex are expected to come
from onshore delivery.
The Scottish legal profession and the wider economy has a
unique, take-it-or-leave-it opportunity to create jobs and
growth by keeping legal process outsourcing within
Scotland, Edward Brooks argues
Additionally, the definition of
what constitutes LPO is pretty
wide. Examples in the UK
market include:
Third party delivery onshore –
Integreon delivers most of CMS’s
services from the UK
Third party delivery offshore –
Rio Tinto fully offshored its legal
function to CPA Global in India
In-house onshore delivery –
Herbert Smith moved services to
its own delivery centre in Belfast
In-house offshore delivery –
Clifford Chance established its
own offshore delivery centre
in India.
Market advantages
For the Scottish legal profession
the choice is:
(1) lose jobs to overseas, very
low cost offshore locations;
(2) let other UK regions such
as Northern Ireland or south
west England become the main
onshore LPO delivery hubs; or
(3) choose to grow jobs by
expanding existing capabilities and
leveraging the power of Scotland’s
comparative advantages.
For option 3, the timing is
uniquely right as both suppliers
and buyers of LPO services are
currently seeking onshore
locations that will form longterm delivery hubs. By offering a
quality destination for legal
services, Scotland can easily
deliver the key pillars required
for outsourcing:
labour arbitrage, where
services are carried out by skilled
employees in a lower-cost location;
process excellence, where
services are re-engineered and
managed under manufacturingstyle discipline;
technology, where specific
tools are used to capture data,
automate tasks, and support
process improvement.
I emphasise the importance
and value of quality. Transferring
activities to a low-cost location
delivers one-off savings, but
these are undermined if quality
levels are not maintained. So, by
offering some labour arbitrage,
quality delivery, strong process
excellence and embedded
technology skills, Scotland could
be a major net jobs winner in the
great legal realignment.
More importantly, these are
high-value jobs, in a growing
market. Thinking further ahead,
as LPO expands throughout nonEnglish speaking countries, there
is the opportunity to create a
multilingual global legal delivery
hub, as IBM achieved for IT in
Greenock. As many LPO activities
require strong training and clear
processes, not specific legal
qualifications, creating a global
delivery hub is certainly feasible.
Decision time
Even at this early stage there is
competition from other areas of
the UK offering similar value
mixes, such as Bristol and
Northern Ireland. Scotland is at
best third out of the trap, but has
not missed the opportunity.
For the larger Scottish law
firms there are a number of
options available:
maintain their current delivery
038-39 PP Outsourcing and Ash1104rev
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Professional practice Advice
Ask Ash
How should I relate to friendly non-legal staff when a
senior partner wants to maintain a class barrier?
model as a strategic decision;
outsource selected services to a
third party (onshore or offshore);
establish a centralised delivery
centre to service their own internal
requirements;
establish a centralised delivery centre
in conjunction with other Scottish law
firms to deliver services on which there
is no competition, such as billing, IT
support, research – i.e. the areas where
they do not see competitive advantage
when bidding for work, and which
could be used to sell services to law
firms outside Scotland;
work independently with an
existing LPO supplier (or potentially
in conjunction with another Scottish
firm(s)) to establish a Scottish
delivery centre that would meet
internal requirements but also
service other clients.
It is the stated objective of several
of the larger LPOs to expand their
onshore delivery footprint, so there is
a willingness to work with a sizeable
Scottish firm. In addition to
operational and financial benefits
available, these deals can offer equity
stakes, though there is capacity for
only one or, at the most, two such
deals per location such as Scotland.
Our projections show a 34%
growth in the LPO market in 2011,
and even that takes LPO to only a
small fraction of the overall size of
the legal services market. To meet this
demand there is only a short window
of opportunity to set up a Scottish
delivery hub – it will not be an option
12-18 months from now. Given that
establishing an onshore delivery hub
takes a minimum of six months to
complete, time is of the essence. The
opportunity to take advantage of
Scotland’s natural comparative
advantages, and create a lasting, high
value legal jobs engine, has a finite
timeframe and it really is a question
of “now or never”.
Edward Brooks advises clients in the
UK and US on their legal process
outsourcing strategy and can be found
at www.thelpoprogram.com
Dear Ash,
Due to some recent
restructuring at my firm, I was
required to move departments
and although this has not
been easy at times, I have
found great support from the
secretarial staff in particular
who have made me feel very
welcome by inviting me to
lunches and to nights out
after work. However, I was
recently shocked at the
attitude expressed by one of
the senior partners. He
commented at one of our
meetings that he thought my
attitude towards support staff
was inappropriate, confirming
that solicitors should not be
seen to be socialising with
such staff and we should only
speak to support staff about
work-related issues. I thought
that such class issues had
been eradicated from the
workplace and although I do
not agree with this way of
thinking I also do not want to
jeopardise my future
progression in the
department?
Ash replies:
You are right to question such
attitudes, as we are after all in
the 21st century. Such archaic
attitudes are unfortunately
still present in the workplace,
although perhaps in less
vociferous tones.
The “them and us”
mentality is sometimes
maintained by arguably the
more insecure individuals,
who as often happens in life
tend to base their ignorance
on unfounded fear. The
senior partner perhaps
feels threatened by your
friendships with support staff
and may think that he could
in some way be undermined.
Often it is the support staff
who are made aware of
confidential matters through
access to correspondence
etc. There may also be some
envy associated with his
attitude as he may not have
been able to formulate such
bonds and may be resentful
about a new member of the
team being welcomed into
the fold so quickly.
Nevertheless, I can
appreciate that you do not
want to jeopardise your
future in the department
either. Therefore, I would
suggest that you perhaps
not make your friendships
so visible within the
department. You may just
have to learn to adapt by
perhaps emailing the
secretarial staff about
sociable matters instead and
meeting with them at the
venues for lunch etc rather
than be seen to be leaving
with them. The staff are likely
to be aware already of the
existence of the partner’s
attitudes and may therefore
be sympathetic.
You may also want to
consider the possibility of
organising a social event with
all members of the team,
including the senior partners
and the support staff. You
could try to promote the
event to senior partners as a
way for everyone to get to
know each other better
following the restructuring,
with no particular emphasis
on support staff. However,
just remember that trying to
change such attitudes may be
a thankless struggle, as they
have been around since the
dinosaurs who choose to
express them!
“Ash” is a solicitor who is
willing to answer workrelated queries from solicitors
and trainees, which can be
put to her via the editor:
peter@connectcommunications.
co.uk or mail to Studio 2001,
Mile End, Paisley PA1 1JS.
Confidence will be respected and
any advice published will be
anonymised.
Please note that letters to Ash are
not received at the Law Society of
Scotland. The Society offers a support
service for trainees through its
Registrar’s Department. For one-toone advice contact Katie Wood,
Manager in the Registrar’s
Department, on 0131 476 8105/8200,
or [email protected]
040-41 PP Marsh1104rev
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Professional practice Risk management
The right steer
A practice’s people are both its greatest resource and its greatest risk.
Calum MacLean of Marsh examines the risks and considers how effective
supervision can help manage these risks
Even the best lawyers are capable of
making mistakes. For a practice to
prosper it needs to be able to harness
and develop the skills of its people,
while minimising the associated risks.
This involves:
selecting the right employees and
partners – see the article by Olivia
Burren and Nick Worthington,
“Rainmaker or cloud on the horizon”
(Journal, October 2008, 48);
providing relevant training and
encouraging personal development –
see the article by Calum MacLean
“Training for success” (Journal,
February 2010, 37);
incorporating effective supervision
into your working practices.
“At the heart of providing a
legal service are the interests
and needs of the client. Service
standards have equal application
to individual solicitors… and to
firms. The application of these
standards requires the use of
effective systems, good training
and appropriate supervision.”
(Standards for Scottish Solicitors
booklet, Law Society of Scotland,
2009)
47% of respondents identified
supervision as one of the biggest
underlying causes of claims.
(Legal Business Risk Management
& Professional Indemnity Survey
2011, sponsored by Marsh)
supervision arrangements.
Almost everyone would agree that
supervision is important, and would
probably say that they supervise
junior colleagues effectively – but
what is the reality?
How competent?
Consider the following scenario:
Graeme Fluster was a sole practitioner
undertaking a mix of conveyancing and
private client work. A few years ago,
pressures of work caused him to employ a
two-year PQE assistant, Ian Eager,
who took on some of his residential
conveyancing work. Ian was indeed eager
to take on all the work that Mr Fluster
passed in his direction. Ian also seemed
very capable and never seemed to need to
take advantage of Mr Fluster’s “my door
is always open” assurances.
Several months later, a letter of claim
arrived from solicitors representing a
lender in a residential property
transaction. It appeared that the borrower
had defaulted on the mortgage, and after
investigation, the bank is making
allegations about failures in
reporting in accordance with the
CML Handbook.
In his letter of intimation to
the Master Policy insurers, Mr
Fluster expresses frustration
that Ian appears unable to
provide an explanation for
the apparent omission in
reporting and the fact that
Ian had at no point indicated
he was unaware or unsure of
what he should be doing.
What risk management lessons
can be taken from Mr Fluster’s
unfortunate experience?
An “open door” policy alone is
not supervision
Mr Fluster’s letter of intimation
implied that the claim should never
have happened if only Ian had
availed himself of Mr Fluster’s “open
door” policy and the practice’s
“informal culture”. An “open door”
policy is only part of the answer –
and even then, only if it is more than
a statement of good intentions.
A genuine open door policy
complements (but arguably shouldn’t
replace) active supervision.
Supervision should reflect
level of experience
Making time to supervise effectively a
new or junior colleague is important.
New or inexperienced colleagues will
require closer, more active supervision
than more experienced colleagues who
are familiar with the work and the
systems and procedures in the practice.
Ian Eager, as a relatively newly
qualified solicitor joining a new firm,
should have had, at least initially,
regular active supervision from
Graeme Fluster.
Supervision should not,
however, simply be thought
of as a process relevant only
to junior colleagues. An
experienced partner may be
equally capable of error as a
new assistant. Olivia Burren, in
the October 2008 Journal article
referenced above, suggested that,
Effective supervision makes good
business sense: in supporting the
production of good-quality work on
time it reduces the risk of claims and
complaints. While there is no “one
size fits all” approach to
achieving effective
supervision, all practices –
from sole practitioner to
multinational – benefit
from having well
designed
040-41 PP Marsh1104rev
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Page 41
even with partner lateral hires,
“Depending on the level of
experience of the new partner and the
type of work being done, it may be
appropriate to have their outgoing
post or emails read by someone else,
at least for a preliminary period.”
Providing forums for discussion of
work and workloads and encouraging
an open, supportive environment will
also help ensure that problems do
not fall below the radar.
Supervision may
take a variety of forms
Supervision doesn’t always have to
take the form of face-to-face meetings
to review/discuss work in progress.
Locating less experienced colleagues
close to whoever is responsible for
supervising them allows for less formal
supervision and allows the junior
member of staff to observe and learn
from their more senior colleague.
As well as meetings and informal
monitoring, a process of physical file
reviews is one of the ways in which
Mr Fluster might have actively
supervised Ian. File reviews are likely
to be most effective when they are
undertaken using a risk-based
approach in which “higher risk”
matters (which may be objectively
higher risk or may be categorised
as such because of the level of
experience of the colleague
concerned) are targeted for more
frequent review. Ideally, file reviews
should complement a system of
regular update/review meetings (an
agenda of discussion points, or a
meeting template focusing on key
measures) which enable the
supervisor to check progress of
particular matters at regular intervals.
Seeing incoming and outgoing
mail, and being cc’d into email
correspondence, may also provide a
useful additional check.
had been delighted at Ian’s initiative
and the additional income stream. He
was less delighted, however, when he
received a letter from McVitie Simmers
& Bronte LLP intimating a claim against
the firm for allowing a client’s claim to
become time barred.
There was a peculiarity about the
nature of the claim which meant that a
two year rather than three year statutory
time limit applied to this claim. A note
on the file showed that Ian had actually
thought about the possibility that a two
year time limit might apply but had never
actually resolved the point.
What further lessons can be learnt
from this experience?
Laying down the ground rules
Relying on Ian to take the initiative
and ask for help, or to refer a difficult
situation or share a problem, evidently
wasn’t a satisfactory approach.
It may be appropriate or necessary
to prescribe what and when and how
matters ought to be referred to a fee
earner’s supervisor. This could be
clearly communicated to new
colleagues during any induction
training, included as part of regular
reviews and tailored training, and
incorporated within transaction
checklists and office procedures.
There is a reciprocal obligation on
supervisors to ensure that they are
aware of their responsibilities and know
how to fulfil them, and supervised
colleagues should be encouraged to ask
for help when necessary.
System requirements
More recently, since the downturn in the
property market, Ian had started taking
on a number of personal injuries cases –
an area of work he had undertaken for
a time, and enjoyed, while with his
previous firm. At the time, Mr Fluster
Ability of supervisor to supervise
Again Mr Fluster was frustrated that
Ian hadn’t discussed with him the
doubts he had had regarding the
applicable time limit. But even if
Mr Fluster had been more active in
supervising Ian, would he himself
have had the relevant knowledge to
provide effective oversight of the
personal injuries activities? Unless
there was someone else in the practice
with sufficient experience to be able
to provide effective supervision, either
some other supervision arrangement
would have had to be established or
perhaps the practice should have
resisted taking on the work at all.
Effective supervision makes
good business sense: in
supporting the production
of good work on time it
reduces the risk of claims
Remote supervision
Practice management systems, case
management systems, shared diary
systems and checklists provide
structured inbuilt procedural checks
and, for sole practitioners, can provide
an element of “self audit”. Information
from practice management systems
can help monitor inactivity, last
activity, and levels of work in progress
– all of which can help inform
discussions in review meetings.
A central diary system or case
management system can flag
imminent critical dates – both to the
responsible fee earner on a file and to
their supervisor. A case management
system also can act as an intelligent
transaction checklist which both
the supervised fee earner and the
supervisor can access and review. Case
management systems can incorporate
checks and escalation/referral
arrangements that satisfy essential
supervision for certain types of work
and working practices.
Key messages
Embedding effective supervision into
the culture of your practice has many
benefits.
It helps in building clients’
confidence in the quality of services
provided to them.
It helps individuals develop by
enhancing their knowledge and skills.
It improves morale.
It improves efficiency and profitability.
For a firm’s supervision arrangements
to be most effective, they should:
start at the top and be reflected in
the culture of the practice;
be embodied within the practice’s
written procedures;
form part of induction and training;
be supported by effective coaching
and training skills of those who have
supervisory responsibilities.
Complete our online quiz and
earn 0.5 units CPD. Log on to
www.marsh.co.uk/lawsociety for
details. Contact Calum MacLean
(details below) for your user
name and password.
Calum MacLean and Marsh
Calum MacLean is a former solicitor in
private practice who works in the FinPro
(Financial and Professional Risks) National
Practice at Marsh, the world’s leading
insurance broker and risk adviser. For a
user name and password to access the
Marsh’s solicitors’ website, contact
calum.maclean @marsh.com.
The information contained in this article
provides only a general overview of
subjects covered, is not intended to be
taken as advice regarding any individual
situation and should not be relied upon
as such. Insureds should consult their
insurance and legal advisers regarding
specific coverage issues.
Marsh Ltd is authorised and regulated by
the Financial Services Authority.
042-43 PB Criminal court1104rev
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Professional briefing Criminal court
Two full bench decisions feature among the criminal
appeal cases reviewed by Charles Stoddart this month,
including the court’s disapproval of the use of desertion
pro loco to correct an omission by the Crown
No second
chance
Desertion pro loco by the court
Once a trial is underway, a court
should only desert the diet pro loco et
tempore in exceptional circumstances:
Parracho v HM Advocate [2011] HCJAC
11 (9 February 2011) makes this very
clear. There, a bench of five judges
refused an appeal where the appellant
had been tried twice: his first trial was
deserted pro loco on Crown motion
during the hearing of a defence
submission of no case to answer,
while the second trial, which had
commenced immediately thereafter,
resulted in a conviction.
Crucially, it was an appeal against
that conviction which brought the
original decision to desert under
appeal court scrutiny: although there
had been no prior attempt to bring a
bill of advocation against that
decision, it was now said that the
Crown should not have been given
the opportunity of “starting again”.
The stated reason for desertion of
the original diet was an error on the
part of the Crown by failing to lead
evidence that a DNA sample analysed
by forensic scientists was that of the
accused. It appeared that it was
It appeared that
it was intended
that the
necessary
evidential link
would be
covered by a
joint minute, but
this had been
overlooked
intended that the necessary evidential
link would be covered by a joint
minute, but this had been
overlooked. The trial judge noticed
this during the “no case” submission;
ultimately a decision to desert was
taken and a further diet on the same
indictment was ordered.
The appeal court did not support the
decision to desert, holding that where
the difficulty which has arisen is the
omission by the Crown timeously to
lead evidence on which it intends to
found, desertion would circumvent the
rule that the Crown must lead all its
evidence before closing its case. What
should have happened was that the
trial should have proceeded; the
Crown’s position was that even
without the DNA link, there was
sufficient evidence in law. Having
examined that evidence, the court
agreed and rejected a submission that
there had been a miscarriage of justice.
While it was correct that the appellant
had not been able to go to the jury on
the restricted evidential basis (as was
his intention had the submission been
concluded and refused), he had had an
opportunity to advocate the decision to
desert at the time it was made.
The plea of diminished
responsibility
When ss 168 to 171 of the Criminal
Justice and Licensing (Scotland) Act
2010 are brought into force, one
hitherto unresolved issue as to the
scope of a plea of diminished
responsibility will be addressed: does
the plea only apply in cases of
042-43 PB Criminal court1104rev
6/4/11
murder? The new law will expressly
restrict its scope to such cases, but
what of the position until then? There
is a conflicting line of authority on
the point, but in relation to a charge
of attempted murder, it appears from
HM Advocate v Kerr [2011] HCJAC 17
(24 February 2011) that the plea is
open meantime.
The case came before the appeal
court at the instance of the Crown,
which had appealed against a ruling
made at a preliminary hearing to
reject its argument to the contrary
effect. It was said that mitigation of
penalty because of the state of mind
of the accused could be achieved
without recourse to the plea in all
cases except that of murder, where the
penalty was fixed by law. In murder
cases the only way to achieve such
mitigation was to reduce the crime to
culpable homicide by reason of
diminished responsibility, and that
was as far as the law should go. For
the accused, the argument centred on
the overlap between the plea of
provocation and that of diminished
responsibility; in cases where
provocation was alleged, a jury could
not reach a conclusion about the
commission of the crime of murder
without considering the question of
provocation; a similar approach was
appropriate in cases involving
allegations of murder or attempted
murder where diminished
responsibility was in issue.
The court was persuaded that the
approach of Lord Brand in HM
Advocate v Blake 1986 SLT 661 had
been correct. That was a case of
attempted murder, where the jury had
been directed that the effect of
diminished responsibility was to
reduce the charge to the crime of
assault. There was nothing unjust or
illogical in such a conclusion, nor any
justification in principle or practice for
distinguishing between someone
whose responsibility was diminished
by reason of some mental abnormality
and someone whose culpability was
reduced by reason of provocation. The
Crown appeal was refused.
Money laundering defences
Prosecutions for money laundering
are relatively uncommon in Scotland,
but one such case has now come to its
conclusion. On 25 February 2011 the
appeal court made available its
reasons for refusing the appeal in
Ahmad v HM Advocate [2011] HCJAC
21, which had been heard a few
weeks previously. The appellant had
been convicted inter alia of an offence
under s 330(1) of the Proceeds of
11:11
Page 43
Crime Act 2002, which (broadly)
covers the situation where someone
fails to disclose to the authorities
either knowledge, suspicion or
reasonable grounds for suspicion that
a person is involved in money
laundering, where that knowledge or
suspicion came to him in the course
of a business in the regulated sector.
One of the defences to such a
charge arises under s 330(6) and (7)
of the 2002 Act: if the accused does
not know or suspect that the other
person is engaged in money
laundering and he has not been
provided by his employer with such
training as is specified by the Secretary
of State by order for the purposes of
that section. In Ahmad the appeal
court provided a useful clarification of
how this defence operates.
Specifically, it rejected an argument
that these subsections had been put
in issue in the case because there was
evidence that an officer of HM
Revenue & Customs had met with the
appellant at his business premises for
a compliance visit. At the meeting the
discussion covered many aspects of
the anti-money laundering regime,
and the question of “training” had
been mentioned. This, said the court,
was an insufficient basis for
suggesting that the Crown had
required to exclude the operation of
the subsections: the evidence had not
been led for that purpose; it did not
even accidentally put the requirement
of the subsections in issue; there had
been no cross-examination in relation
to the provision of training; and the
issue was not focused during the
evidence or in counsel’s speech to the
jury. In these circumstances the trial
judge did not require to give the jury
any directions on the matter,
although he had done so; there had
been no miscarriage of justice.
Discretionary life
and punishment parts
The decision of seven judges in Petch
and Foye v HM Advocate [2011] HCJAC
20 (1 March 2011) is so long (60
pages), raises so many issues, and
discloses so much divergence of
judicial opinion, that this column is
not the place for a full analysis. The
most that can be attempted here is to
note the ongoing controversy. Petch
had been sentenced to life
imprisonment for raping two
children, while Foye had received an
order for lifelong restriction (“OLR”)
for the assault and rape of a 16 year
old girl. What was in issue in the
appeal was the appropriate length of
the punishment part of each sentence,
Don’t miss
these
essential
briefings
Criminal court:
Roundup
42
Licensing: Tobacco
banning orders
44
Insolvency: The
prescribed part
45
Planning: Planning
obligations
and GNAs
46
Discipline Tribunal
47
Websites: Medical
information
48
Book reviews: IPL;
Criminal Evidence
and Procedure
49
a matter which turns on the proper
interpretation of s 2(2) of the
Prisoners and Criminal Proceedings
(Scotland) Act 1993, as amended.
This requires the court in such cases
to fix a period of time which it
considers appropriate to satisfy the
requirements of retribution and
deterrence (ignoring any period
which may be necessary for the
protection of the public), which the
prisoner must serve before the
question of parole can be considered.
Exactly what steps require to be
taken by a sentencer in computing
the punishment part in cases of
discretionary life or an OLR, having
regard to the statutory language of
s 2? A number of specified matters
have to be looked at in fixing the
period, and this is where difficulty has
arisen and indeed continues. As well
as taking into account under subs
(2)(a) the seriousness of the offence,
the court must assess under subs
(2)(aa)(i) what notional determinate
sentence would have been imposed
had life or an OLR not been selected;
assess what part of that period would
satisfy the requirements of retribution
and deterrence, ignoring the element
of public protection; and assess under
subs (2)(aa)(iii) the proportion of
that part which a prisoner sentenced
to it would or might serve before
being released, either on licence or
unconditionally.
How to do all of this led to a
disagreement between the five judges
in Ansari v HM Advocate 2003 JC 105,
with Lord Reed dissenting from the
view of his colleagues; and it was his
view which found favour with the
majority of the court in the instant
appeal. They thought inter alia that
the court should not consider the
manner in which the Parole Board
deals with such cases, and that the
exercise required by s 2(2)(aa)(iii) of
the 1993 Act involved taking into
account half of the notional sentence,
the seriousness of the offence having
already been taken into account
under subs (2)(a) and (2)(aa)(i). But
a variety of disagreements on this and
related points among the other judges
led the Lord Justice General and
certain of his colleagues to suggest
that a clear legislative solution was
now called for. As for the appeals,
they were remitted to a bench of three
judges for disposal in light of the
views expressed in the judgment of
the court and other relevant
considerations.
Charles Stoddart is a criminal law
author and a former sheriff
044-45 PB Licensing and Insolvency1104rev
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Professional briefing Licensing
Burning a
hole in the law
The new legislation threatening banning orders on
anyone found selling tobacco to under-18s appears
not to be as effective as was intended
While the new laws regarding the sale
and display of tobacco products are
strictly speaking not licensing, they have
a similar framework and are of
significance to anyone who advises
shopkeepers large or small. Much of the
Tobacco and Primary Medical Services
(Scotland) Act 2010 came into force on
1 April 2011. Most of the rest of it will
be effective from 1 October 2011. The
part relating to display is currently under
legal challenge by Imperial Tobacco,
and will be disregarded for the
purposes of this article.
It will be necessary for anyone
wishing to sell tobacco products to
register with the Scottish ministers.
This can be done online and must be
done by 1 October. Selling such
products will be an offence if you have
not registered, or if your registration
has been cancelled. For the first time,
it will be an offence for under-18s to
attempt to buy cigarettes, and for
persons over 18 to buy for those
under 18. Cigarette vending machines
will be outlawed.
Enforcement regime
The regime will be policed in the main
by local authorities through their
trading standards departments.
Councils are required to carry out a
programme of enforcement at least
once in every 12 months. Officers will
have the power to use under-18s for
test purchasing. They will have powers
of entry, search and seizure and the
power to issue fixed penalty notices
for breaches of the Act. A person
aggrieved by the issue of a fixed
penalty notice may make
representations – to the council which
employs the person who issued it.
How has this part of the legislation
passed the ECHR scrutiny?
It is intended to operate a “three
strikes and you’re out” policy. If a
person receives three fixed penalty
notices within two years the council
may, within two months of the last
offence, make an application to the
sheriff for a tobacco retailing banning
order (TRBO). The sheriff must
be satisfied, on a balance of
probabilities, that such an order is
necessary to prevent the commission
of further offences. It is also possible
for ancillary orders to be made
banning a person against whom a
TRBO has been made from being
connected to a person carrying on a
tobacco business at the specified
premises or seeking to control a
person carrying on a tobacco business
there. A right of appeal to the sheriff
principal is allowed.
Individual escape
I wonder whether the legislation is
as tightly worded as was intended.
Presumably most of the fixed penalty
notices will be for sale to underagers.
But where the registered retailer is an
individual, the offence is committed
only by the person making the sale, not
by the retailer. Where an offence has
been committed by a corporate body
and where it is proved that the offence
was committed with the consent or
connivance of, or was attributable to
any neglect on the part of, a relevant
individual, that individual commits the
offence and is liable to be proceeded
against. “Relevant individual” includes
directors, managers, partners, and
members of LLPs.
This is a sort of upside down
vicarious responsibility. It will control
offences regarding display, but what
of sales? Vicarious responsibility
cannot be implied: it must be
expressly stated. In liquor licensing
legislation (where s 102 of the 2005
Act is identical to s 4 of the 2010 Act),
it is quite clear that the “sale” is made
by the individual shop assistant, not
by the business owner. But what of
the individual registered retailer who
does not work on the shop floor?
How can they ever be liable to receive
a fixed penalty notice in connection
with a sale? A TRBO may only be
applied for if the person (as opposed
to the premises) has been the subject
of three or more relevant enforcement
actions. Having heard various trading
standards officers giving talks on the
new Act, and read the Government’s
explanatory notes, I do not think its
limitations are fully appreciated.
Tom Johnston, Young & Partners LLP,
Dunfermline and Glasgow
Presumably most of the fixed
penalty notices will be for
sale to underagers. But where
the registered retailer is an
individual, the offence is
committed only by the person
making the sale, not by
the retailer
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Professional briefing Insolvency
When the Government abolished
Crown preference in the Enterprise Act
2002, this did not make a great deal of
difference to the outcome of personal
insolvencies, but in corporate
insolvencies where preferential
creditors rank behind fixed security
holders but ahead of floating
chargeholders, the Government did
not wish the abolition of Crown
preference to increase the return to
floating charge creditors.
It therefore required a share of the
realisations (“the prescribed part”) to
be ringfenced for unsecured creditors:
Insolvency Act 1986, s 176A. Section
176A(2) requires the liquidator,
administrator or receiver to make a
prescribed part of the company’s net
property available for the satisfaction
of unsecured debts, and prohibits
distribution of that part to the holder
of a floating charge except in so far as it
exceeds the amount required for the
satisfaction of unsecured debts.
Regulations currently prescribe that,
subject to the net property of the
company being not less than £10,000,
the prescribed part is to be 50% of the
first £10,000 and 20% of the excess,
subject to a maximum of £600,000.
Section 176A(2) does not apply if
the company’s net property is less
than £10,000 and the insolvency
practitioner thinks that the cost of
making a distribution would be
disproportionate to the benefits.
Section 176A(2) can be disapplied
even if the net property exceeds the
minimum, where the insolvency
practitioner believes the cost of
making a distribution would be
disproportionate to the benefit and
the court orders disapplication.
Proportionality rule
The joint administrators of QMD
Hotels Ltd applied by note to the
Court of Session for an order to
disapply the section. The
outcome statement estimated
that the prescribed part was
£5,699, to be divided
among unsecured creditors
with claims of £278,985.
The administrators
estimated their reasonable
costs of adjudicating on
unsecured claims and
making the distribution
at in the region of £5,000,
leaving only £699 available for
distribution. (The costs of
distribution are met from the
prescribed part.) They
submitted, therefore, that the
dividend did not justify the
expense of adjudicating upon and
Protecting the
prescribed part
Courts are applying s 176A of the Insolvency Act in a
pragmatic way to secure that unsecured creditors get at
least some dividend where possible
There was a
risk that a less
thorough
adjudication
could result in
some claimants
receiving a
small dividend
to which they
were not
entitled,
against which
all unsecured
creditors
would at least
receive
something
dealing with the claims. If the court
agreed, the floating chargeholder
would benefit by £5,699.
These issues have arisen before in
England, where the courts have held
that they should not be too ready to
disapply s 176A(2) simply because
the dividend would be small.
However, Lord Glennie, considering
the note ([2010] CSOH 168; 9
December 2010), decided there was a
need for proportionality. If the costs
of adjudication and distribution
would be £5,000, they would be
disproportionate to the benefits.
However, he thought that before
disapplying subs (2), the court should
ask whether costs on that scale were
reasonably necessary for the purpose.
Parliament intended to ensure that
there was something for unsecured
creditors. Although insolvency
practitioners have a statutory
duty to adjudicate on
claims, this had to be
carried out in a
proportionate way.
Each case would
turn on its own
facts. A rough
and ready
adjudication
might be required.
There might be
questions as to the validity of
large claims which in fairness
to other unsecured creditors
required more detailed
attention. However, that
had to be weighed
against the
potential
prejudice
to those
with good
claims if the
investigations
took up too much
time and expense.
Something better than nothing
Lord Glennie held that expenditure
of £5,000 in this case would be
disproportionate: the only persons
who might benefit from the exercise
were (1) the floating chargeholder
if the court granted the motion to
disapply s 176A(2); or (2) the joint
administrators if the court refused to
disapply the section and insisted on
adjudication. In either case the parties
who would suffer would be those
whom Parliament intended to benefit
(the body of unsecured creditors).
There was a risk that a less thorough
adjudication could result in some
claimants receiving a small dividend
to which they were not entitled,
against which all unsecured creditors
would at least receive something. On
the alternative approach, most would
get nothing even if their claims were
good. In Lord Glennie’s words, “That
makes no sense”.
The joint administrators were
ordered to make payments to the
unsecured creditors having done no
more than was necessary to effect
payment of the dividend without
carrying out further investigations
into the merits of their claims.
This seems a commonsense
approach to a difficult matter, but will
not solve the problem in other cases.
As Lord Glennie recognised, each case
will turn on its own facts. Insolvency
practitioners remain under a statutory
duty to adjudicate upon claims before
making payment and the QMD Hotels
decision will not provide authority
for insolvency practitioners to pay out
on claims without an adjudication.
They will have to put a similar note to
the court and have a similar direction
before they can safely proceed as
outlined in QMD Hotels.
Alistair Burrow, Head of Recovery and
Insolvency, Tods Murray LLP
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Professional briefing Planning
Final brick
in place
A summary of the changes brought about
by the planning obligations and good neighbour agreements regime
On 1 February 2011 the planning
obligations and good neighbour
agreements regime came into force.
This is the last of the radical reforms to
the planning system contained in the
2006 Planning Act. It is relevant to all
solicitors advising in property law.
This regime is given effect by new
ss 75-75G of the 1997 Planning Act.
It is supported by two new sets of
regulations (SSI 2010/432 and 433),
both of which came into force on 1
February. The Scottish Government has
also published an annex to Circular
1/2010 providing helpful advice.
Planning obligations replace the
system of planning agreements under
the previous s 75 of the 1997 Act. That
system has increasingly been used
by planning authorities to recover
contributions from developers towards
the delivery of essential infrastructure
such as roads, education, water, and
affordable housing. The previous
regime operated to ensure that
planning permission for a particular
development would not be issued
until a planning agreement had been
registered, and that will also be the
case for planning obligations. The
importance of registration is that
planning obligations then bind
successors in title. There was formerly
no statutory right for any party to
appeal the terms of an agreement, a
particular criticism which has been
addressed in the new regime.
The key changes are:
Section 75
This sets out a framework for
planning obligations and in
particular what they may do,
conditionality, and the extent to
which they may require monies; who
can enter into a planning obligation;
unilateral obligations; effects of
registration; and enforcement by the
planning authority of the terms of a
planning obligation.
Section 75A
This establishes a formal right for a
person against whom a planning
obligation is enforceable to apply
to a planning authority to have it
discharged or modified. Along with
the right of appeal, these are very
welcome provisions, as parties’
failure to agree could often lead to
a stalemate unless the agreement
provided for review or arbitration.
The regulations prescribe the
manner and form of an application.
The applicant must set out the
grounds on which the modification
or discharge is sought. Given that
planning authorities will require
to take account of any changes in
circumstances, it is important that
the basis for the application is clearly
set out. The authority has a duty to
notify interested parties, who have a
right to submit representations.
The authority cannot modify the
obligation otherwise than as set out
in the application, and will have
regard to the policy tests for requiring
planning obligations as set out in
Circular 1/2010.
There is a divergence of opinion
on whether this right and indeed the
right of appeal apply to planning
agreements entered into prior to
1 February 2011.
Section 75B
Where an application is refused or the
planning authority fail to give notice
of their determination within two
months (deemed refusal), the
applicant can appeal to the Scottish
Ministers. The deadline for appealing
is three months beginning with the
date of the authority’s decision or
the end of the two month period.
Depending whether the appeal
relates to discharge or modification,
ministers may discharge the
obligation; determine that the
obligation should be modified in line
with the appeal; or refuse the appeal,
in which event the obligation
continues to have effect.
Section 75C
This provides that a person who enters
a planning obligation will not cease
to have liability when they cease
to be owner unless the obligation
specifically so provides. Absent such
provision, a previous owner will have
continuing and several liability along
with the current owners. This may be a
significant liability and it is a matter
that will require to be addressed in the
drafting of the planning obligation.
There was
formerly no
statutory right
for any party
to appeal the
terms of an
agreement, a
particular
criticism which
has been
addressed in
the new regime
Sections 75D-75E
A good neighbour agreement
(GNA) is an agreement between
a landowner, a developer and a
qualifying community body. A GNA
may govern operations or activities
relating to development or the use
of land either permanently or
temporarily. The example given
in the circular is the provision of
information to the community body
regarding the nature and progress of
development on a site. The planning
authority is not a party to a GNA;
enforcement will be undertaken by
the community body.
It is considered that GNAs would
only have a role to play in major or
controversial development and it is
too early to make a prediction on
their uptake. If a GNA is registered it
will bind successors in title. There
are broadly similar provisions for
both applying to a planning
authority to modify or discharge a
GNA and subsequent appeal to
ministers; and for continuing
liability for former owners, which
will apply unless specifically
addressed in the agreement.
Alastair McKie, Partner, Anderson
Strathern LLP
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Professional briefing Discipline Tribunal
The cases this month include failures to communicate with a client
on matters arising in a court case, and failures in implementing a
mandate and providing files to the Society
Scottish Solicitors
Discipline Tribunal
David Eric Sutherland
A complaint was made by the
Council of the Law Society of
Scotland against David Eric
Sutherland, solicitor, 10-16
Exchequer Row, Aberdeen (“the
respondent”).
The Tribunal found the
respondent guilty of professional
misconduct between 8 February and
26 May 2008, while representing a
client in a court action, in respect of
his entering into an agreement to
reduce the principal sum sued for to
a figure outwith the ordinary court
and legal aid levels; his agreeing that
his client would be liable for the
expenses of a discharged diet of
debate; and his proceeding to
amend the writ without advising his
client that he was doing so and of
the consequences of the reduction
and his doing so without his client’s
instructions; between 26 May and 6
August 2008, while representing his
client in the court action, his failing
to inform his client that he had
amended the principal sum sued
for; and between 8 February and 6
August 2008, his failing to inform
his client that he had agreed that his
client would be liable for expenses
of a discharged diet of debate, that a
motion had been lodged seeking
expenses against the client and there
had been awards made against the
client for expenses in favour of his
opponents, and that his client had
been found liable for the expenses
of the amendment procedure
entered into by the respondent
without the client’s instructions.
The Tribunal censured the
respondent and fined him in the
sum of £1,000.
The Tribunal considered that the
fyi
respondent’s conduct
clearly amounted to
ses
For findings on ca
professional misconduct.
95
decided since 19
He took steps in a court
l’s
visit the Tribuna
action which led to an
website at
amendment of the
k
www.ssdt.org.u
pleadings reducing the
sum sued for and resulting
in an award of expenses against
the client without taking his client’s
instructions. There was also a serious
problem of lack of communication
to the client as to what was going on.
The Tribunal accepted that the
respondent might well have been
right in reducing the sum sued for,
but did not consider that this
significantly reduced the respondent’s
culpability in amending pleadings
without his client’s instructions. The
Tribunal, however, took account of
the fact that the respondent had
accepted his culpability from an early
stage and had attended the Tribunal
and been genuinely contrite with
regard to what had happened.
The Tribunal further took into
account the fact that his client was
not financially disadvantaged and the
respondent did not deliberately go
into an area that he was not familiar
The Tribunal
with in order to earn extra income.
has held on
The respondent was misguided in
a number of
continuing to act for the client in
occasions
respect of a matter where he did not
that failure to
have the necessary expertise, but the
respond to the
Tribunal accepted that at the time he
Law Society
thought it would only be for a short
of Scotland
period as he was actively trying to
and failure
obtain another assistant to replace
or delay in
the one who had left. The Tribunal
implementing
also considered that the respondent
mandates
had learned his lesson and that it was
amounts to
extremely unlikely that anything
professional
similar would happen again in
misconduct
the future.
Brian Travers
A complaint was made by the
Council of the Law Society of
Scotland against Brian Travers,
solicitor, Marshall Wilson Law
Group Ltd, 2 High Street, Falkirk
(“the respondent”). The Tribunal
found the respondent guilty of
professional misconduct in respect
of his delay and failure in
implementing a mandate and his
failure to provide his business file or
files to the Society and failure to
provide any explanation as to why
the papers had not been produced
timeously or otherwise.
The Tribunal censured the
respondent.
The Tribunal has held on a number
of occasions that failure to respond to
the Law Society of Scotland and
failure or delay in implementing
mandates amounts to professional
misconduct. If solicitors do not
respond to the Society it hampers
the Society in the performance of its
statutory duty and is prejudicial to the
reputation of the legal profession.
The Tribunal made a finding of
misconduct to demonstrate the
Tribunal’s continued attempts to
require individual members of the
profession to respond to their
professional body when requests are
made of them. Failure to implement
a mandate is a breach of a solicitor’s
obligations and hampers the new
solicitor in implementing a client’s
instructions, which in turn is
prejudicial to the legal profession.
The Tribunal, however, considered
that the respondent’s misconduct in
this case fell at the lower end of the
scale of professional misconduct and
accordingly found that a censure was
the appropriate sanction.
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Professional briefing Web reviews
Health check
The web review surveys online assistance
for non-medics seeking to understand
medical conditions and terminology
It’s almost five years since we last
surveyed the available free medical
information online, so it’s due a
checkup.
The sites reviewed this month are
not specifically medico-legal, or
designed to locate medical expert
witnesses. However, they may well
assist in gaining an initial
understanding of medical or
pharmacological terms in medical
records or reports, whether for
personal injury, social security,
additional support needs (education
law), criminal injuries compensation
or, of course, medical negligence.
BBC Health
www.bbc.co.uk/health
I confess up front to being a big fan of
the BBC website as a whole. To my
mind it entirely justifies the licence
fee in itself. I was not aware of
this part until a surgeon friend
recommended it recently. It is not as
in-depth as some of the other sites
reviewed, but there is still a wealth of
well-presented information.
The front page has a news and
articles focus, with prominent links to
health-related items from BBC News,
and to health programmes (radio and
television). There are also links to
higher-profile medical topics and
material on these, such as sexual
health, or weight loss.
However, the site has hidden
depths. Clicking on the various tabs
provides very useful medical
information expressed in accessible
language, complete with useful links.
The search feature allows you to
search not only by particular medical
condition, but also by part of the
body affected, age, and gender, which
is very helpful too.
There are a number of other websites in similar vein
(pun definitely intended):
NetDoctor
www.netdoctor.co.uk
Claims to be the UK’s leading
independent health website. It’s
very good and has a large
database of conditions, medicines
etc, and a separate section for
examinations, explaining the
purpose of various tests a client
may have been referred for. The
site tends to have more in the way
of articles than simple information.
RxList
www.rxlist.com
NHS Choices
www.nhs.uk
Not only is the web address very
memorable; the website is very good
as well. There is an NHSScotland site
too, SHOW (Scotland’s Health on the
Web: www.scot.nhs.uk), but it seemed
more interested in displaying its latest
press releases than health information.
The main NHS page was, to my mind,
much more user-friendly.
The information about “You and the
NHS” will only be of use in England,
but for our purposes you are only one
click away from the business end of
the website: the Health Encyclopaedia,
the Symptoms Checker and the
Medicines Information.
I was pleasantly surprised by the
amount of information available on a
simple search for a named condition –
and there are literally thousands listed.
For each you get most or all of: a video
introduction where an expert discusses
symptoms and treatment options; a
longer overview with sections on
symptoms, causes, diagnosis,
treatment, self-help and complications;
useful links (internal and external);
case studies, including video testimony
and user comments; links to
information on relevant medicines;
and information on clinical trials.
The “map of medicine” also
offered, which appears to be some
kind of flowchart used by doctors to
determine the best treatment options,
is only available to English and Welsh
residents, and I was unable to find an
equivalent on SHOW. A shame,
because it looked very interesting.
The symptom checker actually
passes you through to NHS Direct
and suggests that north of the border
you use the NHS 24 service
(www.nhs24.com). This is therefore not
Safe Medication
www.safemedication.com
These two sites do substantially
the same job: providing
information about various
medicines in response to search
queries by visitors. RxList gives
more information, but Safe
Medication has a free PDF called
My Medicine List, a useful aide
mémoire which can be completed
online. Both are based in the US,
so care must be taken in relation
to different names of medicines
which may be used.
Who writes
this column?
The website review
column is written by
Iain A Nisbet of
Govan Law Centre
All of these links
and hundreds more
can be found at
www.absolvitor.com
Absolvitor is also now
on Facebook:
http://bit.ly/absolvitor
and Twitter:
twitter.com/absolvitor
so useful for legal casework, but quite
handy if you want to know whether to
phone the out-of-hours GP.
Medicine information offers an
A-Z of medication, both brand and
generic names and over-the-counter
as well as prescription remedies.
Thousands of medicines are listed,
and the site differentiates between the
conditions being treated as well as
different preparations. Information
includes possible interactions with
other medicines, or alcohol, and
possible side effects.
Speaking of side effects, I draw to
your attention the Yellow Card
scheme (yellowcard.mhra.gov.uk),
which is “helping to make medicines
safer”. This allows anyone – even
lawyers – to register side effects
experienced while taking medication.
Run by the Medicines and Healthcare
products Regulatory Agency
(www.mhra.gov.uk), the information
is used to analyse whether there are
new or unknown risks for particular
medicines, and ensure they are used
to minimise risk and maximise
patient welfare.
If I had a “website of the month”,
NHS Choices would definitely be it.
046-49 PB1104rev
6/4/11
16:52
Page 49
Professional briefing Book reviews
International Private
Law (3rd edition)
E B Crawford
and J M Carruthers
PUBLISHER: W GREEN
ISBN: 978 0 414017757
PRICE: £45
The publication of a third edition of
any textbook tells us at least two
things. The first is that the law with
which it deals has been subject to
significant development since the
second edition. The second is that the
book has been found useful by, and
gained the respect of, the branch or
branches of the profession for whom it
is written. It is easy to see why these
things are true of Crawford and
Carruthers on International Private Law.
It is the European Union
programme to make a reality of the
area of freedom, security and justice
which is the main driver for change
in international private law, even
more than it was for the second
edition, published only five years
ago. The authors describe the EU’s
“ambitious and wide ranging
programme of harmonisation of
law”, take account of the Lisbon
Treaty, and record that European
changes have affected not only civil
and commercial jurisdiction (“the
Suggestions
for future
books
The Book Review
Editor is David J
Dickson. Books for
review should be sent
c/o The Law Society
of Scotland, 26
Drumsheugh Gardens,
Edinburgh EH3 7YR
most active and difficult area”), but
also choice of law, recognition and
enforcement of judgments, and
related procedural topics. Perhaps it
is inevitable that new editions will be
required every five years or so, given
that the relevant EU programmes are
adopted with that timescale. An
absence of significant development
during that time would represent a
failure in implementation of the
policies adopted.
Of course, change in the subject
matter of a book does not make a
new edition a good one. An excellent
second edition is, however, a good
starting point for a third edition –
and these authors had an excellent
second edition from which to start.
I road tested that second edition in
2009, when I found myself needing
to pass the Faculty of Advocates exam
in private international law, a subject
which I avoided (unwisely) at
university many years ago. The
second edition gave me the
framework and material within which
to understand (and pass) the subject.
This new edition maintains the
standard and would be as useful to
the current student as the second
edition was to me.
It is, however, far from being a
mere student text. As well as
addressing the theory of the subject
with clarity (especially in relation
to difficult areas such as renvoi),
Professors Crawford and Carruthers
offer detailed consideration of key
subjects such as jurisdiction in civil
and commercial matters, contractual
matters, cross-border insolvency, and
enforcement of foreign decrees. Each
chapter closes with a summary, which
should be of particular assistance
to the practitioner who needs the
essentials in a hurry.
The third edition of this book
is as well written and useful as its
predecessors; and it offers the only
up-to-date account of the subject
from a Scots law perspective. It seems
to me to be an essential purchase for
anyone whose clients ever go furth of
the jurisdiction.
Alastair Brown
Criminal Evidence and Procedure:
An Introduction (3rd edition)
Alastair N Brown
PUBLISHER: AVIZANDUM
ISBN: 978 1 904968320
PRICE: £48
In the preface to the third
edition of this book, Sheriff
Brown indicates that he aims to
provide practitioners with a
vade mecum on criminal
evidence and procedure.
The strengths of this erudite,
clearly written text lie in two
distinct approaches taken by the
author. The first is the holistic,
integrated approach to the
issues considered where so often
the practice and understanding
of evidence and procedure are
interwoven. The second major
strength is the explanation and
discussion of why a particular
piece of legislation was brought
into force.
This is particularly well done
when the complex issue of
sched 8 certification of copy
and business documents is
considered. Here, Dr Brown
explains the intention and
evidential value of certification
while explaining the
background with reference to
the Scottish Law Commission
report and case law. This slim
volume ought not to belie
its outstanding value to
practitioners.
This is an essential, up-todate text.
David J Dickson, Solicitor
Advocate
050-51 In House Procurement1104rev
6/4/11
16:54
Page 50
In-house Procurement
Stretching
the public purse
The European Commission has
published a green paper on the
modernisation of EU public
procurement policy. Interested
parties were invited to respond
to a large number of specific
questions on the functioning of
the procurement rules, and how
those rules could be improved.
In parallel with the green
paper, the Commission is also
undertaking a comprehensive
evaluation of the impact and
cost-effectiveness of EU public
procurement policy. The
Commission will use the results
of that evaluation and the
responses to the green paper to
come up with a proposal for
legislative reform.
Even the briefest of looks at
the green paper is enough to
show that the Commission is
contemplating the possibility of
a fundamental overhaul of
every aspect of procurement
rules and policy. The
green paper identifies
several objectives to be
achieved through this
modernisation process,
including increasing
the efficiency of public
spending and allowing
procurers to make
Big changes may be ahead for the EU public procurement
rules, in the wake of a wide ranging green paper from the
European Commission, as Kathrine Eddon explains
better use of public
procurement in
support of wider
societal goals, such as
protection of the
environment and
promoting social
inclusion.
procurement markets
are kept open across
the EU. The
Commission’s aim is
to simplify and
update the rules, to
make the award of
contracts more
flexible and, it
seems, to ensure
procurement is at
least part of the
answer to some of the
challenges faced by
procurers in dealing
with the current economic
difficulties.
Simplifying the contract
categories, perhaps replacing the
definition of “works contract”
with a simpler set of
conditions covering all
kinds of construction
activity, regardless of the
character and purpose of
the works. The current
definition is very wide
Kathrine
Eddon
Hold on to
your hats…
Among the key points
up for debate include:
A recognition
of the role of
procurement rules and policy in
helping to ensure that public
funds are used efficiently and
but quite complicated, and the
Commission sees this as leading
to uncertainty for procurers as to
what exactly is covered.
Eliminating the distinction
between Part A and Part B
services, by getting rid of the
current more lightly regulated
regime for Part B services. This
could mean that legal services,
health and social services, and
educational services would have
to be procured using a fullblown OJEU tender process.
How to provide for more
flexible and leaner procurement
procedures. The Commission’s
aim is to subject the procedures
to a thorough screening to
ensure optimum outcomes and
to reduce the administrative
burden. Aspects to be put under
the microscope include the
standard form notices published
in the EU’s Official Journal,
the contents of tender
documentation, and the
Even the briefest
of looks at the
green paper is
enough to show
that the Commission
is contemplating the
possibility of a fundamental
overhaul of every aspect of
procurement rules and policy
050-51 In House Procurement1104rev
evidence
that can be
asked for at
selection
stage.
Whether to
allow authorities
to make greater use of the
negotiated procedure. The
Commission notes the
advantages of doing this (such
as greater flexibility), but also
has concerns as to what it
perceives as the potential
disadvantages, such as an
increased risk of favouritism
towards certain bidders, and the
need for authorities to have
expert negotiation skills to get
good results.
Changing the rules on what
criteria can be used at the
selection and tender stages of
the process. The Commission
sees great advantages in
maintaining the current strict
separation between the two.
Under that system, procurers
can only look at bidder-related
criteria such as experience and
CVs at the selection stage of the
process, and not at tender
stage. The tender stage itself
must focus solely on the
bidders’ offers for that
particular contract, and not
look at issues relating to the
bidder’s capacity or experience.
In the Commission’s view,
keeping the two stages separate
guarantees fairness and
objectivity when comparing
tenders. The Commission is
not closing its mind on this
point, but warns that it will
look at proposals, for example
to allow authorities to look at
CVs and experience at the
tender stage “extremely
carefully”.
Reducing the administrative
burden for local and regional
6/4/11
16:54
Page 51
authorities, by allowing a
lighter procedural framework,
including greater use of the
negotiated procedure and
providing more flexible
procedures, such as
qualification systems
(currently only permitted
under the utilities regime).
Whether further guidance is
needed to help authorities in
assessing when the procurement
rules require them to tender subthreshold contracts (i.e. those
low value contracts which
nonetheless are of “certain crossborder interest”).
Introducing specific rules on
how to deal with major changes
to existing contracts, including
where the contractor wishes to
sell the contract to a new
provider. One point up for
debate is whether there should
be a simplified procurement
procedure to replace the
former contractor.
…but don’t hold your breath
The deadline for submitting
responses on the green paper to
the Commission was 18 April
2011. Given the slow pace of
past legislative changes to the
procurement rules, it may be a
number of years before any
legislation finally becomes “live”
in Scotland, although the
Commission intends to produce
the first proposals for new
legislation in early 2012.
A copy of the Commission’s press
release is available via this link:
http://europa.eu/ rapid/pressReleases
Action.do?reference= IP/11/88&format=
HTML&aged=0& language=
EN&guiLanguage=en
Kathrine Eddon is a senior
associate in Pinsent Masons’ EU &
Competition Group
052-57a Property1104rev
6/4/11
12:34
Page 52
Property Land agreements
Land and
the open
market
Property lawyers with business clients now have to be
alive to competition law issues when concluding any
agreements relating to land – and assess their effects on
agreements already in force. Catriona Munro explains
Competition law prohibits agreements
and conduct which restrict competition.
In a sense, property ownership does just
that: it grants an exclusive right to
occupy or use a particular piece of land,
to the exclusion of others. Ever since the
UK’s Competition Act came into force
in 2000, land agreements have been
excluded from its application. However,
that changed on 6 April 2011, from
which date competition law applies to
land agreements in just the same way as
to any other agreement.
The rules previously applicable
meant that it was automatically
permissible under the UK’s
Competition Act to restrict a tenant
of a unit in a shopping centre to
selling only, for example, shoes, and
for the landlord to agree not to allow
other premises in the development
to sell shoes. From 6 April, this
formal, automatic protection will
cease, and the effect of UK
competition law on the lease will
depend on its effect on competition.
It should be noted that hardcore
restrictions such as price fixing and
market sharing have never benefited
from the exclusion order. So, for
instance, restrictions that fix
minimum resale prices for the goods
the tenant sells, or oblige a tenant to
purchase goods or services from a
specified supplier, are not restrictions
which relate to the land and so have
always been subject to the
Competition Act’s prohibitions.
It is also worth remembering that
EU competition law, which also
applies in the UK where an agreement
affects trade between EU member
states, has never included such an
exclusion, and would already require
analysis of the competitive effects.
However, it is generally assumed that,
given the local nature of most land
agreements, EU law will not apply.
Land can be an important “input”
to a related market where goods or
services are being provided and so has
the potential to restrict competition
in such related markets. This can be
the case particularly where the parties
are competitors in a relevant market
and restrict the use of land in such a
way as to share or carve up markets
between themselves, or where a
company with strength in one market
makes access to a related market
more difficult. Longstanding case law
at EU level illustrates these principles.
For instance, in the Holyhead case
(B & I Line plc v Sealink Harbours Ltd
(IV/34.174) [1992] 5 CMLR 255) the
European Commission (EC) found
that a ferry and port operator had
abused its dominance by permitting
access to the port to a competing ferry
operator on terms which were less
Catriona
Munro
favourable than those granted to
its own ferry services. Why then,
should access to development land
be any different?
The question many property lawyers
will be asking themselves is what
difference, in practice, will the new,
tougher regime actually make? Recent
guidance from the Office of Fair
Trading (OFT) gives a helpful steer for
businesses and their lawyers when
they come to apply the new law.
What will the new regime capture?
So, when can competition law apply?
Of course, it is normally the most
blatant forms of price fixing and
market sharing cartels that hit the
news headlines beyond the specialist
competition law press. Were two
landlords to agree not to charge
below £x in rent or not to impinge on
one another’s geographic patch or
client base, these arrangements would
be illegal and potentially criminal,
even before the exclusion is repealed.
The repeal, however, may affect
commercial agreements of a much
less blatantly anti-competitive nature.
There are two main types of
prohibition under UK competition
law – the prohibition on anticompetitive agreements and the
prohibition on abuse of dominance.
The Chapter I prohibition applies to
6/4/11
12:34
Page 53
letting of land in the centre to abuse its
position on the downstream retailing
market by denying a lease to a
competitor in that market.
Restrictive land agreements will
breach the Chapter I prohibition only
where they have an “appreciable”
effect on competition in the relevant
market. An examination of an
agreement’s effect requires an
evaluation of its actual impact on
competition in the particular
circumstances of the agreement,
taking into account the products
concerned and the geographic
locality. A restrictive agreement that
has an effect in a very small
geographic area can be caught by the
Chapter I prohibition if that area
amounts to a distinct geographic
market. Depending on the particular
circumstances, the relevant market
could, for example, extend to a single
shopping development, or a wider
area covering other shopping
developments in the locality.
Generally, at combined market shares
of below 10% if the agreement is
between competitors, and 15% if the
agreement is between noncompetitors, it will be regarded as
agreements and concerted practices
by two or more undertakings. So, an
agreement would include for instance
a lease, a transfer of freehold interests,
an assignment of leasehold interest or
a licence agreement. The law applies
only to agreements made between
“undertakings”, essentially businesses
and also individuals acting in a
business capacity. Therefore,
agreements made in a private capacity
between individuals will not fall
within its scope. Unilateral action, i.e.
action taken by an undertaking
without any agreement or concert
with another undertaking, does not
fall within the Chapter I prohibition.
However, an undertaking in a
dominant position may by unilateral
conduct infringe the Chapter II
prohibition. In order to establish a
breach of Chapter II, it must be shown
that the undertaking both has a
dominant position and has abused it.
Dominance can exist in narrow product
or geographic markets. So, one might
envisage a situation very similar to the
Holyhead case outlined above, where a
landlord in a shopping centre for which
there is no realistic alternative is also a
retailer in the centre and refuses to grant
a lease to a competitor. This could, in
principle, amount to an abuse of
dominance, since the landlord uses its
dominance on the market for the
If an agreement which
restricts competition is in
fact overall beneficial to
competition, then it will
be permitted
unlikely to affect competition (but
note that these de minimis thresholds
do not apply to market sharing or
price fixing agreements).
If an agreement falls within the
scope of the Chapter I prohibition, it
may still be lawful if on balance it is
more pro- than anti-competitive in its
effects. If an agreement which, at first
blush, restricts competition, is in fact
overall beneficial to competition,
then it will be permitted.
What will this mean in practice?
From 6 April, anti-competitive
provisions within land agreements
will be treated in just the same way as
any other agreement: they will be
illegal and unenforceable if, taken in
the round, they restrict or distort
competition to an appreciable extent
and are not justified by the procompetitive effects. If the restrictive
provision cannot be severed from the
rest of the agreement, the whole
agreement will be void and
unenforceable. In some cases, even
where it is possible to sever the anticompetitive provision from the
remainder of the agreement, the
arrangement will be rendered
meaningless and commercially
unviable or, at least, less attractive
than when first negotiated.
Unenforceability of agreements,
while perhaps the most likely
consequence of the revocation of the
exclusion, is only one possible
repercussion (and certainly not the
most worrying) that companies and
individuals may face as a result of
their agreements falling foul of
competition law. Companies may in
principle face fines of up to 10% of
their annual global turnover, followon damages claims from private
parties who have suffered as a result of
an infringement, and the possibility of
time-consuming and costly, both in
terms of financial loss and
reputational damage, investigations
from the OFT and Competition
Commission. Where individuals are
implicated in the context of more
serious infringements of competition
law (where there is market sharing or
price fixing, for example where
landlords agree not to charge below a
certain rental level), disqualification
orders disallowing individuals from
acting as company directors, and even
jail terms, can be imposed.
Importantly, the new regime could
affect large and small landlords and
tenants alike. It is not only the strength
of the parties which determines
whether a restriction will have an
appreciable impact on competition,
but rather its effect on the particular
markets in which the parties operate.
Some practical examples
But what does this mean for the owner
of a shopping centre, looking to
achieve an attractive mix of outlets?
Take a city centre mall, in which the
developer is keen to secure a flagship
tenant to attract other tenants and
customers. To seal the deal, the
developer may wish to agree
exclusivity with the department store,
so that no other department stores will
be able to rent a unit in the mall.
While this may appear to restrict
competition, if the arrangement
enables the development of the
shopping centre, results in benefits to
consumers, and competition is
provided via alternative sites in the city
centre area, it is likely that it would be
6/4/11
12:34
Page 54
Property Land agreements
allowed, even under the new regime.
The difference is that it will now be
necessary, as a matter of course, to
consider the competition implications.
By contrast, consider the situation
where a café outlet agrees to pay
higher rent to the developer of an outof-town retail park, in exchange for a
guarantee that no other café will be
granted a lease in the park. This is far
more likely to be problematic from a
competition law perspective. The
assessment for landlords and tenants
alike is all about degree: what is the
market; is there scope for competition
from elsewhere; is the arrangement
more restrictive than necessary?
A restriction preventing noisy
activities, which could interfere with
performances from taking place on
land adjacent to a theatre, is not likely
to infringe competition law. Similarly,
a landlord letting office space can
normally safely agree with each lessee
in the development that all the space
will be let as offices.
Likewise, where a housing developer
has planning permission for, say, 300
houses, and chooses to build on only
part of the site and sell the rest on to
other developers, restricting the
number of houses that can be built on
the plots it sells on would be unlikely
to infringe competition law.
Following the Competition
Commission’s report on the inquiry
into groceries in 2008, it raised the
question of whether the exclusion was
still merited, observing that it was
anomalous. As a result, major
supermarkets are now subject to an
even more onerous legal regime,
where their ability to enforce restrictive
covenants and exclusivity
arrangements is restricted. With respect
to restrictive covenants, the OFT will
look at whether there is sufficient
competition before deciding whether a
restriction is enforceable. A restriction
will not be enforceable if there are
fewer than three competing outlets
within a 10 minute drive and the
market share of the retailer benefiting
from the restriction in question is 60%
or more, within the same area. With
regard to new exclusivity
arrangements, the major supermarkets
will only be permitted to enforce such
agreements for five years following the
opening of the store concerned.
fyi
What does this mean for
companies?
r
fo
The assessment
The applicability of competition
nants
landlords and te
law to land agreements means
:
degree
alike is all about
that companies will be required
e
or
m
t
en
is the arrangem
to self-assess their land
restrictive than
agreements.
Significantly, as
t?
ntex
necessar y, in co
competition law concerns the
effects of a particular provision on
competition and not the form of the
agreement, it will not be possible for
companies simply to “draft around”
this issue. The new regime will apply
equally to both new and existing
agreements, and all will need to be
assessed for any anti-competitive
effects, and modified to remedy any
potentially infringing provisions.
The thought process of
considering whether the
arrangement could be anticompetitive, when entering into a
commercial tenancy as landlord or
tenant, may initially seem unfamiliar
to the property world. However, with
the possible risks involved, it has to
become second nature.
Catriona Munro is a partner in the
EU, Competition & Regulatory Team at
Maclay Murray & Spens LLP
The Property Standardisation Group has revised its
dispositions creating new real burdens and servitudes
Easing the burdens?
The Property Standardisation
Group first produced styles of
disposition after the abolition of
the feudal system, when the
profession was struggling with
the new rules on the creation of
real burdens and servitudes
under the Title Conditions
(Scotland) Act 2003. Although
the Act made it possible to
create new real burdens and
servitudes in any deed, it is still
most common for them to be
created in a disposition or a
deed of conditions.
The PSG produced two
dispositions creating new real
burdens and servitudes, the first
creating real burdens on the
property being sold and the
other creating reciprocal real
burdens and servitudes on the
property being sold and the
retained property.
In both dispositions we set
out the new real burdens and
servitudes in schedules. This has
proved very popular with the
Keeper as it makes it much
easier for her staff to identify
the new title conditions and
dual register them.
We have recently revised the
dispositions, making it easier for
the user to select the relevant
text for the various options,
depending on whether the
disposition is for first registration,
already registered land, sale of
whole, sale of part etc.
The dispositions contain
wording dealing with:
division of a benefited
property;
importing deeds of
conditions created prior to the
appointed day;
community interests in land.
If title conditions are being
imposed on two or more
properties, the Keeper
recommends that a deed of
conditions is used, rather than
creating the title conditions in
the split-off dispositions, as this
avoids the need to carry out
multiple registrations against all
the properties affected.
John King, Registration
Director at RoS comments:
“The updated dispositions are a
welcome addition to the suite
of standard deeds suggested
by the PSG. We do recommend
the use of a deed of conditions
or deed of real burdens
wherever possible, but where
this is not appropriate the PSG
dispositions are very helpful,
ensuring that the drafter
carefully identifies the
burdened and benefited
properties (any error at this
stage can invalidate the real
burdens), and reducing the
scope for inadvertent mistakes
by using the schedules. The
styles make it easier for us to
extract and set out information
for inclusion in the burdens
section of the burdened and
benefited property title sheets
and in the property section of
the benefited proprietor’s
title sheet.”
The revised dispositions can
be found in the Title Conditions
section on the PSG website
www.psglegal.co.uk, where you
will also find a deed of real
burdens, deed of servitude and
deed of conditions. We
welcome your comments and
feedback on any of the PSG
documents – contact details are
on our website.
6/4/11
12:34
Page 55
Property Renewables agreements
The arrival of renewable energy has transformed the prospects of
many Scottish farms and estates, but potential tax problems lie in wait
unless the right form of agreement is in place. Colin Whittle, Shirley
Mathieson and Jamie Whittle explore the implications
It’s an ill wind…
During the past decade, Scotland has
witnessed an unprecedented growth
in renewable energy projects.
Stimulated by the UK Government’s
introduction of the Renewable
Obligation Certificate (ROC) scheme
in 2002 and more recently the Feedin Tariff (FIT) scheme established in
2010 (for projects under 5MW),
energy companies have invested
significant resources and technology
into the evolution particularly of
onshore wind power and hydroelectricity, of which the latter has seen
a renaissance in Scotland.
Scottish farms and estates involved
have in many instances seen a vast
increase in viability, even though
many of the early arrangements
offered by developers were generally
on less favourable financial terms
than today’s comparables. Yet whilst
the economic change of fortune to
landowners has seemed an obvious
and significant boon, on further
analysis a number of renewables
developments could have the
potential to penalise landowners
from a fiscal point of view.
This article explores some of those
fiscal traps, and highlights alternative
legal structures for renewable energy
projects that are currently being used
to mitigate capital tax exposure to
landowners.
Colin
Whittle
Shirley
Mathieson
were fewer and potential landowners
more plentiful, market conditions
favoured the developers, enabling
them to obtain agreements along
preferred lines. Many farmers and
landowners, as beneficiaries of
prospective cashflow windfalls which
in some cases represented the
difference between being able to
retain instead of sell a property, were
keen to take advantage of this
“Klondike” opportunity.
However, whilst a significant
injection of cashflow from leased
renewables projects has been
perceived as a saviour to many
landowners, that very cashflow now
potentially represents for them and
others a significant fiscal threat.
Storing up problems?
Wind farm lease arrangements
typically run for a period of around
25 to 30 years, sometimes with an
extension for up to 50 years. Hydroelectricity agreements tend typically
to last for anything between 40 and
100 years. The incidence of capital
taxation arising within those periods
is therefore almost inevitable.
From a revenue taxation perspective,
investment income arising under a
lease is potentially taxable at higher
rates of income tax – 50% top rate
from 6 April 2010 – and there is only a
limited range of expenditure that can
be set off against lease income.
For capital taxation purposes, intergenerational transfers during lifetime
will potentially attract both capital
gains tax and inheritance tax at
lifetime rates. On death, inheritance
Jamie
Whittle
Gold rush
Until recently, most developers have
secured their interests in a renewables
project on land owned by another
party via a long-term lease capable of
registration. This has been driven in
part by convention on analogous
issues in the rural economy (such as
quarrying and telephone masts), but
also because of the security that a
registered long lease can provide to
lenders. In the more pioneering days
of renewables agreements some five
to 10 years ago, where developers
6/4/11
12:34
Page 56
Property Renewables agreements
tax at the full 40% would currently
apply to a lease interest passing down
a generation.
The valuation of leased income for
capital taxation purposes is based on
capitalisation of the projected rental
income arising over a period of 25 to
100 years, or for such intervening
period as the renewables project may
apply. For example, an annual rent of
£100,000 index-linked for a 25 year
wind farm lease could represent a
capital value (depending on the age
and stage of the capital taxation
incident) of anything up to £2.5
million. At 40% inheritance tax for
death rate purposes, the capital
taxation payable (albeit over a period
of 10 years) could represent anything
up to £1 million. In such
circumstances, the higher the rent the
more punitive the capital tax.
As income, after income tax, may
already have been reduced to 50%,
the “hit” of capital taxation could be
very significant. In circumstances
where a landowner is unable to effect
lifetime transfers on favourable bases
and/or the need for income deters
any such transfers, there is the
potential (particularly where there are
two death events in a relatively short
period) for the revenue and capital
taxation to outweigh the value of the
income benefit.
In such circumstances, the
perceived benefit of a radical injection
of cashflow from a renewables project
in the short term could potentially
result in the need to sell the property
on which the project is situated in the
long term. In short, income today if
not received in a tax efficient manner
could preclude continued ownership
in the future.
Threat or opportunity
Whilst the circumstances of each
individual landowner are necessarily
different, there have been a growing
number of examples in recent years of
landowners rejecting the standard long
lease approach and substituting this
instead with a business trading
opportunity. The main aims of such a
move include seeking to claim business
property relief (currently at 100%) for
inheritance tax purposes, and, in the
event of sale or transfer, potentially
facilitating entrepreneurs’ relief or
holdover relief for capital gains tax.
There are different ways for the
landowner to participate in the trade
of a renewables project, with joint
venture initiatives being increasingly
common. One such vehicle for joint
ventures is the use of a limited
liability partnership (LLP),
conveniently available since statutory
inception in 2000.
The actual constitution of any LLP
will necessarily reflect the respective
positions of the negotiating parties.
The prospective landowning member
of the LLP may make the land
available, often by direct conveyance
to the LLP, and may undertake certain
contributory activities and
responsibilities to the renewables
project. In addition the landowner
may inject capital. The prospective
developer member of the LLP will
generally bring expertise and the
majority of investment capital.
Ideally the LLP should be
incorporated prior to lodging any
planning applications for consent,
especially in applications for consent
under s 36 of the Electricity Act 1989
where the consent will rest with the
applicant rather than with the land (as
in most other planning applications).
The particular trading activities of
the LLP members (owner and
developer) will be governed by the
particular circumstances applying to
the individual project.
Room to negotiate
As more landowners and their
professional advisers have become
aware of the potential tax
consequences of long lease
arrangements in renewable energy
projects, an increasing number of
developers appreciate the importance
of a different structural approach for
landowners’ interests. As a greater
number of developers are now
competing for prime renewables sites,
in part through the recent introduction
of the FIT scheme, the ability for
landowners to negotiate establishing
joint venture structures with
developers through the likes of an LLP
has become more commonplace.
Each project has its own particular
circumstances and needs to be
considered on its merits. However,
reconnaissance of the opportunities
for a joint venture approach to
renewable energy projects is strongly
recommended.
Colin Whittle is senior partner of R &
R Urquhart LLP in Forres; Shirley
Mathieson is a partner at Saffery
Champness, chartered accountants, in
their Inverness office; and Jamie Whittle
is a partner at R & R Urquhart LLP in
Inverness.
Registers
of Scotland
Turnaround times as
at 26 March 2011
The Keeper’s turnaround targets for
2010-2011, endorsed by Scottish
Ministers, have been informed by
the outcome from our most recent
customer survey, where our
customers have indicated that
undertaking first registration work
more quickly is their highest priority.
The targets and performance are
as follows:
Where it is in the Keeper’s power and is legally appropriate:
Target: To complete the registration of sasines writs within an
upper limit of 40 days. 80% will be completed within 20 days.
48,879 sasine writs received since 1 April 2010
47,045 sasine writs or 96.2% despatched within
20 working days
59 sasine writs or 0.1% despatched between 21 and 40
working days
1,775 sasine writs or 3.6% are currently in the arrear. No
sasine writs despatched in more than 40 days.
Target: To complete the registration of dealings with
whole carried out as ARTL transactions within 24 hours.
Of the 14,031 dealings with whole carried out as
ARTL transactions, 14,008, or more than 99.8%
were completed within 24 hours.
Target: To complete the registration of dealings with whole that
are not carried out as ARTL transactions, and standard first
registrations, within an upper limit of 120 days. 80% will be
completed within 60 days.
161,922 standard first registrations and dealings with
whole not carried out as ARTL transactions received since
1 April 2010
149,575 standard first registrations and dealings with whole
not carried out as ARTL transactions, or 92.4%, despatched
within 60 working days
1,805 dealings with whole not carried out as ARTL
transactions, and 321 standard first registrations, or 1.1%,
despatched within 61 to 120 working days
No dealings with whole or standard first registrations
completed in more than 120 working days
10,542 standard first registrations and dealings with whole
not carried out as ARTL transactions, or 6.5%, are in the arrear.
© Copyright R & R Urquhart LLP and Saffery
Champness, 2011
058-59 Sidelines1104rev
6/4/11
11:35
Page 58
Sidelines Manus Straw
Manus Straw muses on the
bricks, bungs and gongs of the
past month’s legal news
Blamer v
Disclaimer
Room at the top
Harper Macleod is proud to
announce another round of
promotions. There is a wicked theory
in Scottish legal circles that the firm
promotes employees at a slightly
accelerated rate, in order to prevent
them moving to other firms. After all,
once you’re a partner at one firm,
you’re not so likely to agree to
becoming merely an associate at
another, are you?
I’ve a good way to end this
nonsensical rumour once and for all
– give all the firm’s ranks of staff
brand new titles. That way, nobody
could compare their 20-year-old
superbabies to the old codgers that
pass for partners at other firms.
From now on solicitors would be
known as “better than associates”,
associates would be known as
“better than partners”, and
partners would be known as
“White Wizard Avatar Jedi
Master Dumbledores”.
Lead balloon
The Legal Sector Alliance says that its
member firms are “committed to
reducing their carbon footprint”,
and have “reduced their annual CO2
output by 17,500 tonnes”, an
amount “equivalent to the annual
output of a magic circle firm”. Sadly
all their good work has been undone
by their press release, which is clearly
full of hot air.
Deal or no deal
Justice Secretary Kenneth Clarke has
announced that the Bribery Act
2010 will come into force on 1 July,
after a delay from the originally
intended date of 1 April (must have
taken a pretty big bung to pull that
one off). It reminds me of the time I
did a deal with some Eastern
European chaps and was offered
some bars of gold to run away. Run
away? Me? Not likely. It was all I
could do to crawl away while
carrying those things.
You’ll have had your plea
It’s a rivalry as old as time. Sparta vs
Athens, Kramer vs Kramer, Sonic vs
Mario, and Glaswegians vs
Edinburghers. The 165 lawyers of the
Glasgow Bar Association who signed
a letter calling for the abolition of the
Law Society of Scotland stand accused
of “self-interested brick-chucking” by
their counterparts in the Edinburgh
Bar Association. I wouldn’t like to
take a side in this debate as I find it
hard to choose between the cities.
Glasgow gave us Billy Connolly,
No win, no hee-hee
Costs rules in civil cases in England &
Wales are to get the Jackson reforms.
I know that the Journal doesn’t
usually concern itself with the
intricacies of English law, so you’ll
just have to believe me when I assure
you that the politicians reckon giving
the current costs regime a different
skin, a brand new nose and enough
Propofol Plus to topple an elephant
will redress the bias towards
claimants that Jackson reported in
personal injury cases.
From now on
solicitors
would be
known as
“better than
associates”,
associates
would be
known as
“better than
partners”, and
partners would
be known as
“White Wizard
Avatar Jedi
Master
Dumbledores”
but overall Edinburgh has a lot more
jokes (even during the lull between
the MSPs beginning their summer
break and the start of the Fringe).
Even so, “brick-chucking” is a
strangely uncouth phrase for an
Edinburgher to be using. In
Edinburgh breeding is everything,
while in Glasgow it’s just something
that’s done in a bus shelter near
Sauchiehall Street after closing time.
A tale of two awards
Telling the difference is, you see, what
a hawkeyed lawyer like me is all
about. Nothing gets by me. Why, it
seems like only months ago that I was
reporting on the Law Awards of
Scotland, the premier event in the
Scottish legal calendar, but here I am
again, reporting on 2011’s Scottish
Legal Awards, the premier event in the
Scottish legal calendar. I had only just
got over last year’s crushing rejection
but it seems the chance for glory has
passed me by again. Time sure flies
when you’re keeping your head down
in the hope of a nomination.
It’s just as well there aren’t two
sets of awards (with very similar
sounding names and very similar
sounding sponsors and very similar
looking winners) which I never get
nominated for. That would make me
feel doubly inadequate.
I feel that my attention to detail has
to be rewarded at the Scottish Law
Awards soon.
Manus Straw is the pen name of a
practising solicitor
058-59 Sidelines1104rev
6/4/11
11:35
Page 59
Sidelines Six of the best
This month, rather than looking at particular products or outlets, Louise
Farquhar suggests some ways to make the office cash stretch a little further
Six of the best...
Business money saving tips
During these tough economic times it’s
even more important to keep your
business on a firm financial footing. With
income generally harder to earn and a
definite lack of leverage available from
banks, the need to watch the pennies is a
top priority. Thankfully, there are lots of
ways to make savings without unsettling
staff or upsetting customers or clients.
Here are my ideas:
Share office space
If the downturn has created one or two
spare desks in your office, consider renting
them out to other professionals. If you
can, choose people who complement your
business so you can partner with them to
expand the services you offer clients.
Alternatively, take advantage of the boom
in temporary office space schemes
available. If you only need a meeting
room occasionally, most business centres
have one to hire.
Secondhand furniture
Office furniture is notoriously expensive,
so make use of the large numbers of
surplus pieces coming on the market as
other businesses close down. Auctions,
newspaper classified adverts and
secondhand shops are the best places to
find real bargains. Make sure to choose
items in pristine condition to ensure your
corporate image remains high.
The virtual office
Working from home is no longer
considered a “soft” option, with many of
the most creative and skilled workers
demanding it as part of their employment
conditions. Huge costs can be saved
when a business moves from the high
street to have a virtual, online presence
instead. In these modern times, clients
rate a good, interactive website and
prompt telephone availability of staff
much higher than fancy offices. A high
quality network will keep workers well
connected with each other too.
Trade services
Investigate partnering with other
businesses in your area to exchange
services as an alternative to settling bills
in precious cash. Most companies,
whether they are involved in plumbing,
cleaning, waste management or
advertising, need lawyers to carry out
essential work. Offer legal services as a
swap for anything you need. A customer
referral service could also be added to
the deal.
Smart marketing
When customers are thin on the ground,
and competition for them is fierce, it is
even more important to market effectively
so you can capture as many new clients as
possible. Traditional advertising methods
can be very expensive, so a different
approach is essential. Instead of big
adverts or corporate entertaining, try
offering discount vouchers, refer-a-friend
incentives and service bundle promotions.
These methods don’t dilute the quality of
your brand but are highly successful at
retaining existing clients and pulling in
new ones.
Reduce energy costs
Significant savings can be made by
following a few easy steps to increase
energy efficiency. Turning off just one
computer at weekends and holidays can
save at least £35 per year. Similar amounts
of money can be made by switching off
lights when not needed, turning heating
thermostats down by one degree, refilling
ink cartridges rather than buying new
ones, and fixing leaky taps and flushes.
The amounts quickly add up to make the
effort worthwhile.
From the Journal archives
50 years ago
From “Typing Errors”, April 1961:
“There has recently been placed
on the market an ingenious
method for the correction of
typing errors without erasure…
The method employed is to place
a slip of a special kind of paper
over the word which has been
wrongly typed and to retype the
same word which will then
disappear. The slip is removed and
the correct word is then typed…
Whether it could be adopted for
deeds so as to avoid the necessity
of a declaration in the testing
clause is open to question.”
25 years ago
From “Diploma in Legal Practice:
Five-year review”, April 1986:
“There appear to be two schools of
thought as to the way in
which legal practice courses
should develop. One school
sees legal practice courses as
consisting of skills training with
considerable emphasis being
placed on, for example,
interviewing techniques. The other
school places greater emphasis
on attaining professional
competence in given areas of the
law. I consider that practical
skills are secondary to the main
objective of the Diploma which is
to produce diplomates with an
acceptable level of professional
competence.”

Professional briefing

Transcription

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