Professional briefing

Transcription

Vol 52 No 5 MAY 07
THE MEMBER MAGAZINE FOR THE LAW SOCIETY OF SCOTLAND
ember
PPA* M e of the
n
Magazi 2006
Year lishers
al Pub
*Periodic n Scotland
o
ti
ia
c
o
Ass
MacKinnon’s
message
Incoming President’s
priorities
Mergers
and motives
Where cross-border
unions might lead
Ten years
in Labour
Decade of revolution
in employment
Setting
thebar
Professional standards move to the top of the agenda
ALSO INSIDE: CAREER V FAMILY / OMBUDSMAN / ACCESS RIGHTS / MONEY LAUNDERING
For online recruitment, daily news updates and searchable archive, visit www. journalonline.co.uk
Contents Vol 52 No 5 May 2007
www.journalonline.co.uk
Contact
Journal
staff and
contributors
12 Invaders over the border – which way?
Regular items
5 Editor
Standards and the Society
7 President
Strategy for moving forward
9 Opinion
Jamie Gilmour: Judiciary Bill
24 Professional news: Society
(More in the box below)
29 Notifications
Entrants to the profession
30 People
Firms and lawyers on the move
32 Professional practice
32 Business development
34 IT: spam and e-marketing
36 Risk: IP/IT issues
38 Professional briefing
38
40
41
42
43
44
45
Civil court
Family
Employment
EU
Discipline Tribunal
Websites
Book review
39 Current consultations
46 In-house
Committee roadshow
48 Property lawyer
48 Access rights
51 Unauthorised alterations
52 Sidelines
Abby Solvitor, Alistair’s letter,
Jennifer, Hearsay, Six of the Best
56 Classified
59 Update
Forthcoming CPD dates
PUBLISHERS
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President: Ruthven Gemmell
Vice-President: John MacKinnon
Secretary: Douglas Mill
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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
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On no account may any part of this
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copyholder and publisher,
application for which should be
made to the publisher. © The Law
Society of Scotland, 2007
ISSN: 0458-8711
60 Recruitment
33 pages of legal appointments
Member of PPA Scotland
22 Introducing your next President
14 Mushroom growth in employment law
48 Boundary between access and trespass
Features
10 Standards are go
18 Career or family?
Richard Smith on the likely shape of
the Complaints Commission, and
how the profession should prepare
Fiona Westwood and others who
have been through it say yes, you can
have both – if you stand your ground
12 Size does matter
20 Watching the workforce
Peter Nicholson looks at the
implications of cross-border mergers
as Golds joins Irwin Mitchell
Bruce Caldow asks how far an
employer can legally go
14 Changed landscape
Incoming President John
MacKinnon has ambitions for the
Society and the profession
David Christie on the shaping of
employment law in the last decade
Total Net Circulation: 10,501
(issue specific May 06)
Av. Net Circulation: 10,330 (Jul 05-Jun 06)
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22 Man from the High Street
Society news>
Turn to pages 24-29 for new Council
members, law reform work, money
laundering and client concerns.
Website: www.lawscot.org.uk.
May 07 theJournal / 3
Editorial
The formulation of standards, and the Society’s new internal
agenda, will keep people busy in the coming months
Fresh start
Standards on the agenda
As I write, we are still approaching
polling day, and I shall resist the
temptation to speculate on the justice
agenda that might be followed under
the new Scottish Executive, and look
instead at what will definitely be on the
profession’s agenda in the coming
months.
It is not a coincidence that the
question of professional standards is
raised by at least three different
contributors in this issue. As the
Society’s President has been flagging
up for some months now, the
existence of defined standards of
service will be an essential tool for the
working of the new Complaints
Commission, advertisements for
membership of which are expected to
appear this month, and if the Society
and its members cannot agree these,
the Commission will be obliged to
define them itself.
The article by Richard Smith,
interim chief executive of the
Commission, on this topic is worth
reading also for the clues it provides
as to how the Commission will
operate – with some reassurance that it
will be taking seriously the need to be a
cost effective, quality driven body that
will command respect, if not affection.
Some point out, correctly, that the
Society has been setting standards for
years, for example through the codes of
conduct. However now is the time to
take a fresh look at how these should
be expressed for the benefit of both the
public and the profession, and ensure
that they are fit for purpose as a
benchmark against which levels of
Editor
Peter Nicholson
professional service can be judged by
an independent body.
Reinventing itself
Not unrelated to this, the Society has
been taking a look at itself recently,
recognising that its current structures,
set on its inception in 1949, may not
be adequate for the fast-changing
times of the present century. A
presentation to the April Council
meeting showed both a recognition
that change is needed if the Society is
to keep the profession onside over the
next few years, and a deep desire
throughout Council to achieve the
organisational capability and level of
responsiveness that will help bring
this about.
It will take some time for the detail
to be worked out, but the vision is in
place and if the goodwill and work
that have been put in to date are
sustained, the Society will be able to
claim that it is practising what it
preaches in striving for levels of
excellence.
Flying south
One question that will soon demand
attention by legislators and regulators
alike is the extent to which Scotland
should respond to the “ABS”
provisions of the Clementi reforms in
England & Wales – permitting interdisciplinary partnerships or other
forms of association, including the
ownership of legal practices by other
corporate or investor interests.
As this month’s feature on crossborder mergers indicates, the bigger
Scottish firms are considering their
position, and no options appear to be
ruled out if it is a question of
maintaining their competitive position
against southern competitors who are
to be permitted to attract additional
capital in this way. The complications
in carrying on a Scottish practice while
operating in a way in which a purely
Scottish firm could not, are such as
probably to require legislative
intervention in any event. One way or
another the issue will have to be faced.
One year on
We have now had a full year of issues
since the Journal’s redesign was
launched last June. We are delighted
that the feedback received has been so
positive, but we continue to look for
new content that will appeal to readers,
or reach any sectors of the profession
that might like to see more to reflect
their own work. Our door – or rather
our email inbox – is always open.
Now is the time to take a fresh look
at how the profession’s standards
should be expressed for the benefit
of both the public and the profession
President
The Society is now pursuing initiatives
which will shape it, and the profession,
for many years to come
Strategic advance
President
Ruthven
Gemmell
The profession
already has
standards and
core values, but
these require to
be codified in a
sensible way to
develop
minimum levels
which can be
built upon by
practice units of
different sizes
and disciplines
In many ways, putting together a
summary of my year as President is a
relatively straightforward task, such has
been the dominance of the Legal
Profession and Legal Aid (Scotland)
Bill, now Act. A look through my
earlier Journal columns indicated just
how much time and effort was spent
dealing with the proposals, from the
initial consultation right through the
Justice 2 evidence sessions to the
conclusion of the legislative process.
The Society, along with many
lawyers, shared a number of serious
worries over issues such as cost, human
rights compliance and maintaining the
distinction between service and
conduct complaints. There was,
however, no more fundamental
concern to me, and to many others,
than the independence of the
profession. Thanks to the combined
efforts of the Society and the profession
at large, the measures finally enacted
were a considerable improvement on
those first put forward. In this respect,
huge credit must go to the bill team at
the Society and all those solicitors, and
others who, by making their strongly
held views known to the Scottish
Executive, ensured a better piece of
legislation for Scotland.
Once the process was over it did,
however, allow more time and effort to
develop three other important themes
which are likely to have a lasting effect
on the profession and the Society.
In pushing forward the aim of
improving communication, it was
pleasing that the education and
training consultation was the biggest
ever carried out by the Society, with an
excellent level of response from both
the profession and the public. This will
help to fashion a constructive debate
on how lawyers of the future are
educated, trained and obtain entry to
the solicitors’ branch of the profession.
Now the likely legal framework is
known, at least for the next few years,
with the establishment of the Scottish
Legal Complaints Commission, this
has allowed the Society’s Council and
Executive to develop a strategy which
can dictate its future direction and
development as an effective, relevant
and innovative organisation leading a
successful and prosperous profession
that provides best advice to clients and
protects the public interest.
This strategy is based on defining
and communicating the standards of
excellence that already exist across the
profession, and building stronger and
productive relationships with solicitors
and the different sectors of the
profession and its “stakeholders”. As
has been said repeatedly, in all that it
does, the Society must protect the
public interest in its drive towards
excellence and integrity so as to
reinforce the badge of solicitor and so
become the regulator of choice.
This is a very exciting and inspiring
strategy and my thanks are due to the
Council members on the working
group – a practitioner from one of the
largest firms, one from a medium sized
firm, a sole practitioner and an inhouse lawyer – together with a very
able team from the Society’s Executive.
The Council enthusiastically
endorsed the principles of this strategy,
and I know my successor John
MacKinnon and his deputy Richard
Henderson also agree that, in
demanding the best possible service for
clients, we must also safeguard the
reputation and interests of the
profession and its core values. Their
commitment to this project will ensure
considerable continuity in the years
ahead, and I wish them well in their
determination to drive this and other
worthwhile objectives forward.
A major plank of this strategy is the
implementation of enforceable
standards, and I draw readers’ attention
to the article on p 10 by Richard Smith,
the Interim Chief Executive of the
Scottish Legal Complaints
Commission. It is quite clear that the
Commission will be constituted and
begin work in earnest within the next
six months, and to the extent that they
perceive there is a vacuum or a lack of
enforceable standards in place, it is
likely they will dictate what these are to
be. The profession already has
standards and core values, but these
require to be codified in a sensible way
to develop minimum levels which can
be built upon by practice units of
different sizes and disciplines. This is
appropriate, not just because of the
creation of the Commission, but as
part of the recognition of the Society’s
own worth and value, and should lead
to proposals being put to the autumn
General Meeting of the Society.
I have received invaluable help and
advice from many people, all of
whom deserve my thanks. I know
John and Richard will benefit from
equally wise counsel and assistance,
and wish them well.
Opinion
The Executive’s further proposals for a Judiciary
(Scotland) Bill continue to show a failure to understand
the concept of judicial independence, and to threaten
its application in practice
Court plans
with little appeal
Following last year’s consultation
document, mistitled “Strengthening
Judicial Independence in a Modern
Scotland” (Journal, June 2006, 16), in
February the Scottish Executive issued a
document entitled “Proposals for a
Judiciary (Scotland) Bill”. Again only
90 days were allowed for responses.
The document is in two parts. Part 1
sets out the Executive’s plans in relation
to, amongst other matters, judicial
independence, the role of the Lord
President, a statutory Judicial
Appointments Board, judicial conduct,
and removal from office. Part 2 is a
draft bill dealing with the bulk of the
plans, apart from (pending further
discussion) judicial involvement in
running the Scottish Court Service.
Some of the Part 1 narrative has,
disappointingly, a dismissive air when
referring to objections and concerns
over the consultation paper. In relation
to a call by the Faculty of Advocates
and the Law Society of Scotland for a
more thorough assessment by an
independent inquiry, the document,
commenting that this would take time,
states: “this view was not, however
universally held and, on balance, we
have decided that an independent
inquiry is not necessary”.
Regarding the proposal to introduce
a statutory guarantee of judicial
independence, despite this having been
a constitutional convention for some
400 years, the paper states: “The
balance of view overall favoured some
provision being made.” This balance is
difficult to find in the responses to the
consultation, unless there is a plethora
of confidential responses. Meekly, it is
suggested that “it would not be right” if
Scotland were the only part of the UK
where the Executive was not fully
bound by such a statutory guarantee.
The role of the Lord President is not
Jamie
Gilmour
Jamie Gilmour is a
part-time sheriff. A
fuller version of this
article can be read at
www.journalonline.
co.uk/submissions .
yet part of the bill, but the intention is
to make him or her “Head of the
Judiciary in Scotland”, with a range of
statutory responsibilities. While some
of these are admirable, particularly in
relation to arrangements for general
deployment of the judiciary,
disciplinary powers, and arrangements
for welfare and training, the Lord
President (worryingly described as
“head of the courts”) is to become
responsible for securing the efficient
disposal of business in Scottish courts.
(On a detailed note, a proposed power
to deploy a sheriff on a compulsory
basis ignores the principle that every
judge and sheriff enjoys judicial
independence, which is not some
corporate asset.)
The document indicates it is likely
that the Court Service should be
overseen by a non-executive board
chaired by the Lord President and
including other judicial members. A
chief executive, reporting to the board,
would be accountable to ministers in
the Scottish Parliament. This is
something of a fiction when it is the
Lord President and the board who
would be responsible for performance,
delegating authority to the chief
executive. The judiciary should be
completely divorced from the Scottish
Court Service. Running the Service is an
Executive function. In short the general
proposal on the Lord President flies full
in the face of the constitutional
convention of judicial independence.
Turning to the provisions for the
Judicial Appointments Board, those
concerned should take on board
Sheriff D J Cusine’s observations, 2007
SLT (News) 9. Amongst other things he
highlights what other countries have
done in relation to legal representation
on judicial selection boards. If the
position elsewhere is of concern to the
Executive in relation to a statutory
guarantee of judicial independence,
perhaps the same should apply in
relation to selection boards.
The proposals for removal from
office give particular cause for concern.
The Sheriffs Association, we are told,
was “strongly opposed” to altering the
arrangements in s 12 of the Sheriff
Courts (Scotland) Act 1971, since any
change to a tribunal system would
undermine security of tenure and
consequently independence of the
office of sheriff. With further
dismissiveness, the document
concludes: “this concern was not
shared by all respondents”, so change
there will be. One does not need to be
a lateral thinker to deduce that if any
judge or sheriff appears before such a
tribunal, his or her career is effectively
over, regardless of the conclusion
reached. Astonishingly, the draft bill
does not provide any form of appeal –
a right available to every accused
person who appears before a judge.
The whole elaborate procedure is
proposed despite the fact that since
1689 no Court of Session judge has
been removed from office. It will
undermine the relationship between
bar and bench, and illustrates a lack of
understanding of the concept of
judicial independence.
In conclusion, the proposals
document largely ignores major
criticisms made in response to the
consultation document, particularly in
relation to the draft provisions for
removal from office of judges and
sheriffs, and the role of the Lord
President as “head of the courts”. It is
an invasion on the doctrine of judicial
independence. The Scottish Executive
and those advising it would do well to
reconsider their position on the need
for an independent inquiry.
Feature Standard setting
As the Scottish Legal Complaints Commission takes shape,
Richard Smith explains how its draft operating model is being
shaped, and how the legal profession can act in its own and
the public’s interests by defining standards for service quality
Under
commission
W
illiam Penn
advised that you
should “avoid
popularity; it has
many snares, and no real
benefit”. Avoiding popularity is
the least of my worries. When I
was asked to lead the
implementation of the Scottish
Legal Complaints Commission,
I was aware of the strong words
and stronger opinions
exchanged during the progress of
the bill. The opinions still exist
but I am grateful to the Law
Society of Scotland and the
Faculty of Advocates that the
strong words have been replaced
by a constructive dialogue.
I recognise that many in the
legal community regard the new
Commission as a threatening and
unwelcome imposition. It is not
my job to justify the Act. The bill
was passed and the Commission
will be operational by October
2008, if not before. My role is to
help the new commissioners
establish an organisation that
efficiently and effectively executes
its statutory responsibilities.
The core function of the new
Commission is to investigate and
resolve service complaints. My
intention is that the Commission
adopts and maintains the highest
investigative standards. We will be
neutral, thorough and
professional. We will follow best
practice and learn from the
experience of proven investigative
organisations like the Scottish
10 / theJournal May 07
Public Services Ombudsman.
We will take an inquisitorial
approach, make no assumptions
and will only allow facts to drive
the conclusions.
Acting with discretion
I recognise the concerns expressed
about how the Commission will
use its discretionary powers. I
cannot pre-empt the Commission
but, in my opinion, it will not
achieve credibility, nor serve the
interests of the public, if it acts
unwisely and without due care.
It will need to apply its discretion
in a logical, transparent and
sustainable manner. Only a
foolish football referee hands out
a red card for the first foul –
otherwise there may be no players
left on the pitch by half time.
In operational terms, my
intention is that the Commission
proves itself to be a disciplined,
process-driven organisation and
that it gains respect, if not
popularity, for the quality of its
investigations. I also commit to
keeping the costs of the new
Commission as low as possible
without compromising capacity
or capability. We will certainly
be looking to maximise shared
services and other organisational
efficiencies.
In terms of policy, I think that
the Commission may well take a
more expansive view of service, as
opposed to conduct. I think the
Commission will, hopefully
without compromising its
neutrality, see service primarily
through the eyes of the consumer.
Technical excellence will remain
hugely important, but it will not
be the only factor. The important
questions are, what are the
appropriate standards of service
and who should define them?
Badge of quality
I believe that it would not be in
the interests of the public, or the
legal profession, for the
Commission simply to impose
service standards on solicitors and
advocates. A standard imposed is
not a standard owned. Ideally, the
minimum acceptable standards
for service, as expected by the
Commission, should be lower
than those voluntarily adopted
by the profession. That way a
practitioner deemed to have fallen
below the standards expected by
the Commission would also have
fallen further below the standards
of their own profession. However,
if the legal profession cannot
agree and commit itself to suitable
standards, then the Commission
will have no choice but to define
them. The new commissioners
will be in place from October.
The profession has a window
of opportunity.
One of the quoted problems
with setting standards across the
profession is the range of different
propositions offered by solicitors.
How can we have the same
standards if we are so different?
One answer is that the Society
could adopt a base set of service
standards that apply to all its
members – irrespective of the
client or the circumstances. This
ties in with Ruthven Gemmell’s
promotion of universal standards
to protect the excellence and
respect of the solicitor’s “badge”.
In addition to these base
standards there could be another
universal commitment to
properly define, communicate
and maintain the service
standards of the practice. In other
words, all solicitors commit first
to the Law Society of Scotland
base standards and then secondly
to the higher and/or additional
standards of their practice. This
would give the public strong and
consistent assurance, but would
also allow for clear differentiation
of service by practices.
The Commission will see
nothing wrong with such
differentiation of service,
providing the minimum
standards are met and preferably
exceeded. The key is ensuring that
the client is always made aware of
and understands the service they
are funding. I find it difficult to
imagine the Commission
upholding a complaint if the
practitioner has simply done what
they clearly said they would do.
If you want a Lada, buy a Lada. If
you want a Lamborghini, buy a
Lamborghini. If you want a
Lamborghini, don’t buy a Lada
and then complain that it doesn’t
do 0-60 in 4 seconds.
I urge the Society to take up
quickly and seriously the
challenge of defining its own
service standards. Not guidance
but clear, measurable and
appropriate standards.
Model approach
It is my intention to present the
commissioners with a draft
operating model for the new
organisation in October. This
model will contain the suggested
process, definitions and working
practices. It will also include
suggested guidelines for the use of
the Commission’s discretionary
powers. I have invited the Society,
the Faculty of Advocates and other
members of the implementation
steering group to work with me
on the draft operating model and
I am grateful for their support.
Edgar Allan Poe said that there
are very few occasions when
“mere popularity should be
considered a proper test of merit”.
Even if this Commission never
achieves popularity, I hope that it
can become a force for good. To
identify and address poor practice.
To inform, help and reassure the
public. To recognise and promote
good practice. To work with and
encourage the legal profession.
And, by doing all these things
well, to contribute to a reduction
in complaints.
Richard Smith is Interim Chief
Executive of the Scottish Legal
Complaints Commission
More on Standards>
Please turn to p 22 for the
interview with incoming President
John MacKinnon
Feature Cross border mergers
Cross-border mergers are in the news following the tie-up
between Golds and Irwin Mitchell. Do they represent an
English takeover, or a new opportunity for Scots firms in
a big and lucrative market? Peter Nicholson met some
of those with experience of how they work
Two into
one can go
merger to create a legal
powerhouse”; “realising
the opportunities that a
deregulated market will
offer”. With such phrases the merger
between Glasgow-based Golds and
English regional giant Irwin Mitchell
was blazed to the world on 12 March.
But does it mark the beginning of a
new era in the ownership of the legal
profession, or is it just the latest step in
the growing level of cross-border
capability as firms compete for the big
corporate clients?
The press releases from Irwin
Mitchell, as the merged firm is to be
known, played up the firm’s strategy,
“as the UK’s largest and most diverse
supplier of commoditised legal
services”, of positioning itself to be able
to respond to the opportunities for
investment presented by the Legal
Services Bill for England & Wales,
currently under scrutiny in the Lords.
However Mark Higgins, one of two
Golds partners given a senior role in
Irwin Mitchell under the merger, plays
down this angle for the time being.
“It wasn’t the main motive”, he
asserts. “The structure and timing of the
bill is still in the air.” As indeed it is,
with the government having recently
admitted that implementation will not
take place before 2010, and probably
not till the following year. In fact some
in Scotland who wish to see an equality
of opportunity here, have suggested
that this provides a window to get
ahead of the game – one of many
matters waiting in the in-tray of the
new Scottish Executive.
“A
Increased capability
Higgins does not deny his firm’s
interest in the subject, but maintains
that business growth drivers were
principally behind the merger, with the
small size of partnership in Golds
looking for ways of bringing in capital
to fund further expansion. “We had
reached a natural break in the history
of Golds. The main reason for
choosing to merge was that it gave us
access to a scale and to resources across
the UK to grow the business. Already
since the merger was announced, new
opportunities have come up that we
wouldn’t have been able to take
advantage of before.”
To some people Golds remained a
“conveyancing factory”, an image Craig
Marshall, now regional managing
partner of Irwin Mitchell in Scotland, is
very keen to shake off. “We moved on
from that some years ago – 90% of our
work now comes from institutions or
referrals from large organisations.”
There is undoubtedly a trend
towards achieving a cross-border
capability in order to serve the blue
chip corporate client, whether on your
own – if the size of your firm will
support such a venture – or via a
merger. Malcolm McPherson, senior
partner of HBJ Gateley Wareing, a firm
born last year from another cross-
border marriage, says the combined
firm has delivered results. “It’s worked
very well and we’ve had a number of
pieces of work and got on to a number
of panels where independently we
wouldn’t have got the opportunity.
And where work was coming to us for
Scotland only in the past, it now comes
for the whole of the UK and we can
choose where best to resource it.” With
increased scale between their
Edinburgh and Birmingham offices
providing the human resource, and the
financial wherewithal, to invest in
projects which HBJ could not have
tackled on its own, “It just allows us to
be more ambitious.”
Freedom to act
McPherson for one is not reticent
about the likely impact of the English
bill. Having long argued that legal
practices need to be able to raise equity
from beyond the partner pot, he is
“100% in favour of the business
opportunity” the bill represents. Would
it provide an added impetus to further
cross-border mergers? “I don’t think it
will just be an impetus; it will be a
decisive factor. There’s no question that
opportunities lie in the English
jurisdiction that don’t lie in the Scottish
one.” He predicts also that if the bill
goes through without Scotland doing
something similar, Scottish firms that
can do so will organise themselves so
as to become English regulated.
“I do think that will happen. And I
have in discussions with others, in
firms of equivalent size to ours, heard
that that is something that people are
considering, are reflecting upon now.
You cannot be put in a position where
your business may be prejudiced going
forward by the legislation or the
regulation in your jurisdiction when
you have the clear opportunity to move
elsewhere and free yourself up to make
the best business decision for yourself.”
International forces
The Golds/Irwin Mitchell news made
some waves, but there are those already
in Scotland as part of a much bigger
international presence. One of the first
was CMS Cameron McKenna, whose
five UK offices, including Aberdeen and
Edinburgh, are part of a fully integrated
practice covering 10 countries, many in
eastern Europe, and a wider “CMS
alliance” with a presence in a further
16. Stephen Millar, an energy partner
in the Aberdeen office, comments that
while the firm has “probably kept a
relatively low profile for a number of
years as a result of being a London
headquartered firm”, it is proud of its
cross-border tradition and there is
Society backs the move south
The Law Society of Scotland, which is
closely following the Legal Services Bill,
continues to maintain its stance that a
proper model for external ownership has
yet to be devised. “In its current form the
English bill is unbelievably complicated in
its language, but lacks real substance as
to when an external party should be
regarded as someone fit to own a share
in a law firm”, comments Bruce Ritchie,
Director of Professional Practice at the
Society.
But that does not prevent the Society
from encouraging expansion south of the
border by Scottish firms.
“The Society regards mergers such as
Golds/Irwin Mitchell as a positive
development”, says Ritchie. “It sees itself
as facilitator as much as regulator in
order to allow Scottish solicitors access to
the much greater legal services market in
England.” The Society, he explains, is
“entirely comfortable” with the new firm
being English based. PII cover will be
“You cannot be
put in a position
where your
business may
be prejudiced
going forward
by the
legislation or
the regulation
in your
jurisdiction
when you have
the clear
opportunity
to move
elsewhere”
arranged under the English regime,
which means no added risk for the
Scottish Master Policy – a good thing
because the new firm (which claims to be
fourth largest in the UK by number of fee
earners) weighs in at much larger than
any in Scotland at present.
The merged firm, Ritchie adds,
“represents the first true multi-national
practice [MNP] created from a merger
between firms in Scotland and England”,
i.e. a single firm rather than two firms
operating under an umbrella LLP – the
current structure at HBJ Gateley Wareing,
for example. Nor does the Society stand
to lose financially: apart from the Master
Policy and Guarantee Fund, it regulates
individuals and not firms, and individual
Scottish solicitors continue to take
out Scottish practising
certificates. (With the
Guarantee Fund there
is a reciprocal
arrangement under
“probably less of a taboo now” to
having its head office in the City.
As another indicator of market
drivers at work, this time to Scotland’s
benefit, due to Aberdeen’s status within
the oil sector the CMS office there is a
hub in its own right, as much of the
work carried out serves operations in
western Europe, Russia or west Africa.
Millar regards the merger trend as
inevitable, “and probably good news
for a lot of clients and a lot of firms. It’s
quite nice to say that we’ve been doing
it for a long time. It’s certainly what the
clients like, being close to them and
having big capability”.
Market-led consolidation, he points
out, is taking place at local as well as
national level. “I think the whole legal
profession is becoming a much more
structured business sector where the
drivers of overhead and consistency
and greater coverage are becoming
greater and greater factors to be taken
into account.” And even if change can
be “scary” at the time, “I think one
thing I’ve learned living in Aberdeen, is
that generally change comes along,
quite often things are uncertain at
times, but in the end of the day there
will be a lot of good comes out of it.”
Finding the right merger partner can
be a matter of moving in the right
business circles. HBJ and Gateley
Wareing were introduced by a
corporate banker who had worked
with both firms and recognised a
potential cultural fit. Golds and Irwin
Mitchell began collaborating when on
the panel of an insurer client and
discovered a shared approach to
which the Society continues to inspect
the Scottish offices of English-registered
firms; any dishonesty by a Scottish
solicitor in such an office would come
under the Scottish Fund.) The Society
actually benefits to the extent that
currently, under the Solicitors (Scotland)
Act, MNP partners who are not Scottish
solicitors have to be registered foreign
lawyers in Scotland, paying an annual
fee, and the firm faces a one-off
application for MNP registration. Scottish
partners in English firms, by contrast, are
viewed as “unregistered European
lawyers” unless based in England, as the
rules there currently stand.
If a Scottish firm were to switch to
being regulated by English rules they
could not describe themselves as
“solicitors” in Scotland, nor could they
carry out work in the three reserved
areas, even if the individual
solicitors continue to hold
Scottish practising certificates.
business, including their commitment
to commoditisation – the volume
processing of particular types of legal
work – in which each firm had a name
in separate but complementary fields.
Whatever the catalyst, the common
interest for Scottish firms is a share of
the big money increasingly to be made
in the English market as compared
with the Scottish. Malcolm McPherson
reports that “Several partners in the
biggest Scottish firms have said to me
that their growth in London is far
outpacing Scotland, and that’s good.”
More often than not now, these firms
have a presence in London, and for
mid-ranking firms with ambitions to
join them, merger is an obvious
strategy. Indeed opportunities could lie
further afield. Irwin Mitchell, for
instance, which currently has two
Spanish offices, has one debt
management client with operations in
20 countries. As Mark Higgins
comments, “Before Irwin Mitchell,
Golds could not realistically have dealt
with work outside the UK. Now, as
Irwin Mitchell, we can.”
In short, one way or another the
English market is set to exert a strong
gravitational pull on Scottish legal
firms, and whether or not they actively
plan to open their equity to outside
investors, they will increasingly find
themselves in a position to do so as
and when the legal position in England
permits. Scottish legislators,
policymakers and stakeholders alike
will come under increasing pressure in
the new parliamentary session to come
up with a clear strategy in response.
Feature Employment law
In the 10 years since the present government came to power
the climate of employment law has undergone a profound
change. David Christie suggests that there are both good and
bad features to the new landscape, and that for all the
protests by employers, most of the changes are here to stay
Ten years
of labour
I
f a week is a long time in politics,
10 years is an eternity in
employment law. Employment
law has moved far and fast since
New Labour came to power in 1997.
Indeed, it is difficult to think of any
other field of law which has been the
subject of such an ambitious, relentless
and far-reaching legislative programme.
Ten years ago, there was no national
minimum wage. No legislation fixing
maximum working hours or providing
for paid holidays. The employment
provisions contained in the Disability
Discrimination Act had only just come
into force and had yet to have any real
impact. In most cases, people had to
be employed for two years before they
would gain the right to claim unfair
dismissal. The compensatory award in
unfair dismissal cases was capped at
£12,000. In practice, the threat of an
unfair dismissal claim was little
deterrent to larger employers.
Fast forward 10 years and the
changes are stark. This article looks at
the some of the forces that have shaped
employment law over the last 10 years.
Specifically, we will consider the
expanding role of consultation in
employment relationships, the
changing profile of legal risk, the
impact of demographic pressures and
the continuing European influence.
The importance of dialogue
Consultation obligations within
employment law have taken off under
New Labour. While it is true that
consultation has long been an
important part of the law on
redundancies, health and safety matters
and the transfer of undertakings,
consultation has become much more
important over the last decade and is
now deeply embedded in much of our
employment legislation.
There are some obvious examples of
how the present government has
expanded the importance of workplace
consultation. The Information and
Consultation of Employees
Ten years of change
Perhaps the most obvious change is that
employment law is a much bigger field than
it was. There has been a massive increase in
both the amount and frequency of
employment legislation. Employment law
has grown in terms of volume and
complexity, but also in terms of coverage.
Employment law in 2007 covers more than
just “employees”. Many other categories of
worker are also covered by at least some
employment legislation. As a result,
assumptions which employers used to be
able to make about atypical workers
representing relatively low legal risks are no
longer safe.
A second change, related to the first, is
that the laws prohibiting workplace
discrimination and harassment have been
expanded, almost beyond recognition. In
1997, there was already legislation
prohibiting discrimination on the grounds
of sex, race and disability. In 2007, we
now have laws designed to tackle
discrimination against part-time and
fixed-term workers as well as
discrimination on the grounds of sexual
orientation, religion, belief and – from
October last year – age. A new freestanding prohibition against sexual
harassment has been introduced, existing
discrimination laws have been
strengthened and new equality duties are
now being imposed on the public sector.
A third change is that the law governing
the termination of employment has been
transformed. Dismissing employees in
2007 is a much more difficult, dangerous
and potentially costly exercise than it was
10 years ago. In part, this is due to changes
made to unfair dismissal law: specifically,
the reduction in the qualifying service
period in most cases to one year and the
raising of the statutory ceiling on the
compensatory award. It is also due to the
fact that, over the last 10 years, many more
employment protection rights come into
existence from day one of the employment
relationship. With the introduction of age
discrimination legislation (which applies to
all workers, regardless of their age or
length of service), it has become very
difficult for any dismissal by an employer to
be any entirely free of legal risk. Even
retirement, once a relative safe haven for
employers, has become a potential
flashpoint for claims.
Some of the increased difficulty
associated with the termination of
employment is as a result of the statutory
procedures governing discipline and
dismissal which were introduced by the
government in 2004. It is widely accepted
that these procedures have given rise over
the last three years to many problems
which have outweighed their benefits. The
entire system of statutory dispute resolution
is now thankfully the subject of review and
the statutory procedures may be repealed.
More on employment in this issue>
Bruce Caldow, 20: “Monitor – at your own risk”
Jane Fraser, 41: “In pursuit of simplicity”
Regulations 2004 set out a statutory
model for dialogue in the workplace.
The revised TUPE Regulations 2006
contain enhanced notification
requirements and seek to promote pretransfer consultation. Even the widelycriticised statutory procedures
governing discipline, grievances and
dismissals may be looked on as an
attempt (albeit perhaps unsuccessful)
to force employers and employees to
talk to each other before they end up at
an employment tribunal.
Other examples of the increased
importance of consultation are less
obvious. For example, the Disability
Discrimination Act 1995 (introduced
under the previous Conservative
administration, but greatly extended
under the present government) has
dramatically changed the way in which
employers manage long-term absence.
Partly as a result of the statutory
obligation to make “reasonable
adjustments” in respect of disabled
workers, many employers now adopt a
much more consultative approach
towards absence management than
was the case 10 years ago.
Sometimes, the government has
preferred to inject new consultation
rights into the employment
relationship rather than create more
substantive legal rights. Take flexible
working, for example. The government
has not created a formal right to
flexible working; but it sought to
promote flexible working by
introducing a system by which
employees can request a flexible
working arrangement from their
employers. This model has been
criticised, but the government
adopted a superficially similar model
under the age discrimination laws in
relation to requests by workers to carry
on working beyond their retirement
dates. Under the current drafting of the
Employment Equality (Age)
Regulations 2006, employers are
allowed to refuse requests for postretirement working though, bizarrely,
without having a statutory obligation
to explain why.
It is also worth observing that most
of the government’s attempts to
promote consultation within
employment relationships have been at
an individual level. The government
has shown no great enthusiasm for
consultation at a collective level; and
indeed there has been no great
enhancement of collective rights
generally over the last 10 years.
Legal risk: a changing profile
The period from 1997 to 2007 has seen
a gradual expansion of the legal risks
associated with employment law. Ten
years ago, most of the legal risks
centred on dismissal. Now the risks
increasingly apply throughout the life
cycle of the employment relationship.
Many of the employment rights
fyi
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in much of our
employment law
created over the last 10 years can be
enforced while the employee remains
in employment. Indeed, it is possible
for employment-related claims to arise
even before the employment
relationship has formed. For example,
a decision not to shortlist a job
candidate for interview may be enough
to found a discrimination claim. The
introduction of age discrimination
legislation heightens this risk. While it
is still early days, what we may see over
the next few years is a sharp growth of
claims arising at recruitment stage. This
would be consistent with the Irish
experience, where age discrimination
legislation has been in force for a
number of years.
This expansion of legal risk – from
recruitment and selection all the way
through the employment relationship
to termination – represents a
significant change in how employers
must approach questions of
employment law. It heightens the need
for HR and line managers alike to be
trained on how their activities may
create legal risks for their employers
and what steps can be taken to
minimise these risks in practice.
Demographic pressures
In recent years, demographic pressures
have affected both the substance and
presentation of UK employment
policy. The UK population is ageing.
The baby boom generation, born in
Feature Employment law
confused motives, inadequate
consultation and insufficient
guidance. It has even been argued
that, in places, the regulations
actually enshrine and promote age
discrimination rather than
prohibit it. One suspects that, like
the Disability Discrimination Act
1995 before it, the age
discrimination legislation will be
the subject of considerable
amendment and enhancement
over the next few years.
the aftermath of the Second
World War, is reaching retirement
age. With a significant proportion
of the UK workforce due to leave
the job market in the next few
years, employers are facing some
serious challenges. How do they
cope with the expected skills
shortages? Can they re-structure
their benefits packages in order to
retain the right mix of skills and
experience? How do they manage
and incentivise an ageing
workforce?
Changes in the age profile of the
UK population formed a major
part in how the government sold
the age discrimination legislation
to a largely sceptical business
community. In arguing that age
diversity was good for business,
the government was able to tie a
business benefit to legislation
which it was compelled by
European law to introduce in any
event. The age discrimination
legislation may be seen, at least in
part, as an attempt to promote
better retirement planning.
Elsewhere, the government has
sought to use employment
legislation in an attempt to
encourage people to have families
while trying at the same time to
dissuade working parents from
leaving the job market altogether.
A raft of so-called “familyfriendly” rights has been
introduced over the last 10 years,
including a right for working
parents to request a flexible
working arrangement from their
employers. Acknowledging that,
with an ageing population, many
workers now have caring
responsibilities towards both their
children and their parents, the
right to request flexible working
arrangements has now been
extended under the Work and
Families Act 2006 to those workers
with caring responsibilities
towards adults.
The European influence
Europe continues to exercise a
powerful influence over the
content and timing of the UK
employment agenda. This has
been particularly noticeable in
relation to the discrimination
field. What is interesting here is
that the government’s actions
often lag behind its public
statements. TUPE is a good
example of this. While most
employment lawyers would agree
that TUPE 2006 is an
improvement on its 1981
predecessor, the legislation was
much delayed and, when it finally
came into force, it did not do
much more than codify existing
European case law. The 2006
Regulations, while welcome,
certainly fall considerably short of
the government’s stated aims for
TUPE reform in the late 1990s.
The present government is, of
course, much more sympathetic to
the European employment agenda
than the previous Conservative
administration. Yet, often, it
implements its European
obligations in the same halfhearted and dilatory manner.
The age discrimination
legislation is a case in point. The
original promise of age
discrimination legislation came in
New Labour’s 1997 election
manifesto. Nothing came of it
during the first parliament, except
a voluntary code of practice which
was widely ignored. What finally
shuddered into force in October
2006 was a piece of legislation
which suffered from bad drafting,
“It’s the mileage, not the years”
Inevitably, after 10 years of a
frenetic legislative agenda in the
employment field, there is much
to criticise. Few would dispute the
point that there has been rather
too much employment legislation
introduced since 1997. Some of it
has been introduced with too little
thought (e.g. the 2004 dismissal
and grievance procedures), some
with too little consultation (e.g.
the 2006 age discrimination
legislation) and some with
inordinate delay (e.g. TUPE 2006).
Since 1997, the cumulative
growth in employment law has
been massive and has presented a
steady stream of PR opportunities
for those law firms which practise
in employment law. It is small
wonder that DTI announcements
of a further round of employment
law reforms produce jaded yawns
among beleaguered HR
departments. After whipping
ourselves up into a frenzy about
age discrimination last year, even
employment lawyers failed to get
overly excited about the Work and
Families Act 2006.
Employment law has become a
field for specialists; and while this
no doubt benefits those of us who
make a living out of employment
law, it does raise broader questions
about the affordability of, and
access to, specialist legal advice. It
simply does not seem right that
employment law has become such
a complex discipline that even
small employers need to seek
specialist legal advice to deal with
basic day-to-day employment
problems. Access to specialist legal
advice for employees is even more
problematic; and the difficulties
associated with this have no doubt
helped to fuel the growth of “no
win, no fee” claims firms.
Despite these very real
criticisms, the New Labour
employment law project has been
successful in some senses. One
measure of its success will be its
ability to withstand a change of
government. Controversial as
some of the reforms were at the
time, few of them are likely to be
overturned by a successor
government.
Another benchmark of success
is the fact that, for the most part,
UK employers have absorbed a
decade’s worth of employment
legislation and altered their
management practices
accordingly. Despite various
alarmist fears, the UK economy
has not been destroyed by the
introduction of a national
minimum wage or by workers
having rights to paid holidays.
The business community may
not have liked much of the
government’s employment law
agenda but it has, for the most
part, coped with it.
Changing culture
Perhaps most fundamentally, the
past 10 years of employment
legislation have significantly
altered the culture of working
relationships in the UK. This
cultural change has taken place
without any significant transfer of
power to the trade unions and
without completely alienating the
business community.
What, of course, has not been
achieved is any sense of simplicity
or stability. When the incoming
government first announced its
plans for employment law reform,
it spoke in terms of more
conciliatory employment
relationships and of bringing
about a new era of “fairness at
work”. In 1998, Tony Blair
announced that he wanted “to
draw a line under employment
law” and achieve a new industrial
relations settlement. This seemed
over-optimistic at the time and
seems amusingly so in retrospect.
Any kind of “settlement” within
this fast-moving field seems
impossible for as long as
employment law remains a
political battleground of
conflicting ideas, principles and
aspirations. Employment law is
and will likely remain a turbulent
area, where the competing
demands of business, society and
our wider European obligations
must jostle for political priority.
David Christie is a partner with
Proactive Employment Lawyers,
Aberdeen
Feature Women lawyers
Despite efforts to achieve more flexible working patterns,
many women in particular still find it difficult to combine
career and family. Fiona Westwood, a graduate of the 1970s,
surveyed her contemporaries to see what lessons can be
passed on to younger professionals today
Career
v Family?
T
his article looks at the
careers of women
lawyers who graduated
in the 1970s and who
have successfully combined
pursuing a legal career with
having children in their late 20s
and early 30s. I accept the
premise that this article is sexist.
However, my excuse and reason
for writing this piece is that I
would like to offer my personal
experience and that of my peers
as evidence that it is possible to
have both a worthwhile career in
the law and a family.
The question of combining a
career and a family is currently
very topical. The Equalities Review
reported in March that at current
rates it would take until 2085 to
close the pay gap between men
and women. The Daily Telegraph,
covering that report on 1 March,
reported John Cridland, deputy
director of the CBI, as saying: “It’s
a fact of life that women have
difficult choices when balancing
family and work.” Research from
the Centre for Longitudinal
Studies, based at the Institute of
Education in London, published
in late April found that graduates
who do become mothers are
having fewer children and later.
Currently 40% of graduate
women are childless at the age of
35, and 30% forecast that they
will still be childless when they
reach the likely end of their childbearing years at 45. This appears
to indicate that this generation of
women who want both a
worthwhile career and children
are facing very difficult and
apparently competing pressures.
pressures mean that any
combination would at best be
professionally damaging, if not
nigh impossible. Many female
associates and partners, having
worked hard to achieve that status,
are worried about how they will
be able to tackle the increasingly
difficult task of managing their
Then and now
work demands with a meaningful
Women were in the minority in
home life. Many managing
law classes 30 years ago, with such
partners I listen to are anxious
sentiments as expressed by the
about how their firm will be able
Dean of Law and Accountancy at
to balance the work/life needs of
Glasgow University at his
their valuable and highly
welcome address, that
trained people, with client
“the women are only
demands 24 hours a
here to find
day seven days a week.
husbands”, not
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female lawyers to see if
wanted to work as
they could provide useful
equals with our male
information about the
colleagues and have a worthwhile
challenges they had overcome and
career. Today women are in the
how they had managed to cope.
majority in law classes, yet
progression for them through the
Examples and profiles
normal career paths to
I was well aware of my own
partnership and senior positions
experiences of working as an
is still relatively rare.
equity commercial property
Many of the trainees and young
partner with two children under
professionals I speak with are
nine. I had continued to work part
concerned that they will have to
time after my first pregnancy, and
choose between having a career
although financially not
and children, as current work
rewarding given the reduced
fyi
earnings and the cost of child care,
I had kept my skills and
knowledge current and as a result,
when I returned to work full time,
I did so as a partner. I wondered
whether other women lawyers my
age had devised other ways of
balancing both career progression
and child rearing.
I sought out women lawyers, all
of whom had reached a senior
position in their area of practice,
like me over 50 and who had had
their children in their late 20s and
early 30s. They were willing to talk
to me openly and frankly about
the work-related problems and
domestic worries they had faced.
Some of us had experienced
personal loss, marriage
breakdowns, significant health
problems and professional
challenges. All of us had worried
about the effect our working had
had on our children.
The interviewees had worked in
private practice and the public
sector, in litigation, private client,
commercial and property areas of
work. As always with busy people,
many had taken on additional
commitments, such as charity and
pro bono work. We have all
reached the top role in our
professional specialism, at the
same time as managing
pregnancy, birth, pre-school,
school, adolescence and beyond.
Practical tips:
Setting your own
boundaries
Some of us took a career break
of up to 10 years, some took only a
few weeks off and returned to work
full time, and some returned part
time. In all cases, as soon as the
youngest child had entered
primary education, we were back
at work. A range of childcare was
used including housekeepers, au
pairs and nurseries. Family help
was important but not essential, as
we all had put in place the
appropriate paid help and support
that we had felt would work for
our family situation.
The interviews disclosed that
there was no real difference
between the public and private
sector approach, as all lawyers were
expected to work full time with
limited time off for maternity.
Interestingly, there was no
distinction between practice areas,
with a high percentage of the
interviewees undertaking court
work, which in theory would have
seemed more difficult to juggle
with family commitments.
Lessons learned
It was apparent that despite the fact
that we had all worked out for
ourselves what suited us, there was
a lot of similarity between what we
had experienced and the solutions
we had devised.
First and foremost, all of us
agreed that our clients were quite
comfortable with our working
commitments and availability and
did not seem to resent that we
were not available 24 hours a day.
However, most of us had
experienced problems with our
peers, who seemed to think that
we lacked commitment to our job,
without any direct evidence to
support that view. Indeed, we felt
that we had made a positive
decision to continue with our
professional career and as such
made a significant investment in
time and money to achieve that.
However, most of us had been
guilty of feeling we had to prove
our worth and in a number of
instances had put pressure on
ourselves to demonstrate our
commitment by agreeing to do
more work than we were required
to do. This in turn had created
stress and tensions around our
family commitments.
We all felt that working to time
constraints had improved our
effectiveness, as we had had to be
both well organised and selfdisciplined. We also felt that we
were able to blend the learning
from both roles and transfer the
skills gained in one to the other,
especially in our dealings with
clients and partners.
Looking back with the benefit of
hindsight, we had not taken
enough time to reward ourselves
for doing two difficult and
demanding roles simultaneously. I
suggested that the interviewees ask
their offspring what they had
thought of the experience of
having a working mother.
Reassuringly, all our children were
proud of what we had achieved
and felt that our experience had
rubbed off on them.
For men too
Hopefully this article has helped to
provide some examples of what is
possible. Whilst I said at the outset
that this article is sexist, I do not
intend to diminish the problems
facing men in our profession who
want to combine having a career
and a healthy family life. I hope
therefore that it provides
illustrations to all of us of the
importance of having a rewarding
and fulfilling life.
Summarising the discussions
that I had, I would offer the
following suggestions:
Be confident of your own
value in both roles. Make
sure that you ask for what
you are worth, and agree the
parameters of any time
constraints.
Demonstrate your
commitment to your job by
making a deliberate point of
showing what you can do
and have achieved, especially
for clients.
Find your own balance
between work and family
commitments. Work out
your own requirements and
boundaries, and stick to
them.
Don’t just look at the
financial side of the
equation. There will be other
rewards that derive from
combining the two roles,
such as maintaining and
developing your professional
skills and networks.
Be proud of what you are
combining.
Fiona Westwood, a solicitor with 20
years’ experience of private practice,
has run her own management and
training consultancy, specialising in
working with the professional sector,
since 1994. Her first book, Achieving
Best Practice – Shaping Professionals
for Success, was published by McGrawHill in 2000; her second, Accelerated
Best Practice – Implementing Success
in Professional Firms, was published by
Palgrave Macmillan in 2004.
www.westwood-associates.com
Feature Employee monitoring
A recent survey revealed a common practice by employers
of tracking employees’ online activities, even when not work
related. But how far can this be taken without infringing the
right to privacy? UK case law has not fully accepted European
authorities, as Bruce Caldow explains
Monitor – at
your own risk
I
n March the results were
released of a poll
concerning employers’
monitoring and analysis of
employees’ “online footprints”.
Conducted by polling company
YouGov, the poll questioned the
extent to which businesses
would “Google” the names of
applicants for jobs and of current
employees, as well as looking at
their online activities on social
networking sites such as
MySpace and Bebo. Although
not fully publicly available, the
main reported findings,
discussed below, suggest that
employers’ monitoring of
personal activities on the
internet is prolific. But to what
extent is such monitoring
unlawful?
Uncertain limits
There are many ways for
employers to monitor employees’
activities within the workplace.
Use of computer systems is easily
traceable and usually this can be
carried out lawfully. The same
may be said for video surveillance,
GPS tracking (e.g. for delivery
drivers), remote listening (e.g. in
call centres) and even credit
referencing (e.g. the financial
sector). Some employers take
more intrusive approaches, for a
variety of purposes. Drug and
alcohol tests are routine, some
public sector employers are
requesting and analysing details of
their employees’ sexual
orientation (for equality
monitoring), and there are even
reports of one employer utilising a
high-tech system to monitor
employees’ toilet habits, to ensure
high standards of hygiene and
thus a safe place of work (“How
can your boss monitor you?”, 12
March 2004, www.bbc.co.uk).
There is obvious good reason to
regulate employees’ activities in
the workplace, and the law affords
the means for employers to do so,
through measures including the
Data Protection Act 1998, Human
Rights Act 1998, Access to Medical
Records Act 1998, Regulation of
Investigatory Powers Act 2000, the
Telecommunications (Lawful
Business Practice) (Interception of
Communications) Regulations
2000, the Information
Commissioner’s Employment
Practices Code, and OFTEL
Guidance on the Recording of
Telephone Calls at Work. The
extent to which employers may
lawfully monitor employees’
activities away from the workplace
and outwith working hours is far
more debatable. The frequency
and extent of monitoring has led
to debate and concern that
employers’ activities are becoming
too intrusive and employees’
privacy is in danger.
Tracking footprints
Traditionally, the scope of an
employer monitoring an
employee’s activities away from
the workplace would typically
involve some form of covert
physical surveillance, such as in
McGowan v Scottish Water,
EATS/0007/04, unreported or
Jones v University of Warwick
[2003] 3 All ER 760 (CA). A new
way to investigate personal
activities of employees or
potential employees can include
looking at their “online
footprint”: analysing information
that can be accessed on the
internet. This is not tracing the
sites visited by employees on
company computers during
working hours; rather it is
searching out personal material
posted online for non-work
related reasons, such as
information uploaded to blogs
(online diaries), or pages on sites
such as MySpace and Bebo, or
elsewhere.
The popularity of online
communities is staggering. Their
use and capability is everincreasing and according to
studies, over two-thirds of users
are adults. Whilst users largely
More on employment in this issue>
David Christie, 14: “Ten years of labour”
Jane Fraser, 41: “In pursuit of simplicity”
intend to use their Bebo or
MySpace website for personal
reasons, employers are putting the
information to good use and for
other reasons. As reported by
YouGov in a poll commissioned
by business networking firm
Viadeo, one fifth of the 600
employers polled admitted to
using the internet to check out
prospective candidates. This
affected over half of the decisions
made, with 15% of employers
rejecting prospective employees
because of their “online
footprint”. One quarter of all
human resource managers polled
allowed their decision making to
be thus influenced, and regularly
used the internet to “Google” the
names of employees. If the
information is publicly available,
can there be invasion of privacy?
jurisprudence. In Avocet Hardware
plc v Morrison, EAT/0417/02/DA,
unreported, the Halford principle
requiring a warning that
monitoring may take place, to
avoid invading privacy, was
rejected by the Court of Appeal,
who said it was implicit in
working in a call centre that
monitoring would take place.
Equally, decisions have been
inconsistent with the tenor and
direction of European authorities.
For example, in Pay v Lancashire
Probation Service, EAT/1224/02/
LA, unreported, material posted
on internet sites was said to be in
the public domain and therefore
not protected by article 8.
However, this approach to article
8 and “privacy” is firmly at odds
with decisions such as Niemietz v
Germany (1992) A 251-B.
A foreign principle
There is no legislative measure
specifically concerned with
privacy, far less privacy in the
workplace and employee
monitoring. The possibility of
creating a freestanding legal right
to “privacy” was considered and
dismissed by the Younger Report
of 1972 (Cmnd 5012). Instead,
the law is drawn from more
general sources. Of course, the
Human Rights Act is available and
article 8, the right to privacy, is
most readily cited where disputes
over “privacy” are concerned.
In the same decade that the UK
rejected the possibility of
legislation, the subject rose to
prominence after article 8 was
successfully relied on before the
European Court of Human Rights
(ECtHR) in Klass v Germany
(1978) 2 EHRR 214. Since then,
article 8 has been pled before UK
courts in support of employment
disputes, with varying degrees of
success. Halford v United Kingdom
[1997] IRLR 471 was the
watershed case for the topic of
workplace privacy, where Ms
Halford successfully argued that
her article 8 right to privacy had
been infringed by her employer
eavesdropping on her personal
telephone line at her place of
work. Since Halford, workplace
practice has changed, and
although a number of cases have
been taken in which article 8 has
been relied on, it has invariably
been without success.
The tendency of the courts has
been to distinguish the European
Personal and private
It is clear from that decision that a
narrow approach is wrong when
defining “private life” further to
article 8, as “it would be too
restrictive to limit the notion of an
inner circle in which the
individual may live his own
personal life as he chooses and to
exclude therefrom entirely the
outside world not encompassed
within that circle. Respect for
private life must also comprise to
a certain degree the right to
establish and develop
relationships with other human
beings” (para 29). Privacy in
article 8 is much wider than may
be thought, according to the
European authorities: it includes
“the physical and moral integrity
of the person, including his or her
sexual life” (X and Y v Netherlands
(1985) A 91, para 22), the quality
of private life as affected by the
amenities of the home (Power and
Rayner v United Kingdom (1990) A
172, para 40) and the right to
establish and develop
relationships with other human
beings (Niemietz v Germany, para
29), including determination of
an individual’s identity (Mikulic v
Croatia, 7 February 2002, paras 5155). All of these are potentially
relevant to privacy, in terms of
having a personal life away from
the workplace.
The UK courts have upheld
actions fortified by article 8
arguments, such as in Douglas v
Hello! Ltd [2001] 2 All ER 289
(CA) and Campbell v MGN Ltd
[2004] UKHL 22 (an intrusion
occurring in a public place; the
other than the site containing a
Scottish case of X v BBC 2005
picture of Ms Sanderson. They
SCLR 740 (OH) is also notable in
took the view that her actions, in
this regard). The principle
publicising information online
observed is similar to the
about her place of work, were
judgment of the ECtHR that the
disloyal and the cause of
right of privacy is “the right to live
difficulties with colleagues. The
as far as one wishes, protected
tribunal disagreed, awarding Ms
from publicity” (X v Iceland
Sanderson approximately one
(1976) DR 5, 86), provided that
year’s wages (which she can add
in the circumstances a legitimate
to the reported £500,000
expectation of privacy exists
secured through a two-book
(Brüggeman and Scheuten v
deal signed following her
Germany (1977) DR 10; N v
dismissal).
Portugal (20 February 1995); Friedl
The French courts may not be
v Austria (1995) A 305-A). The
the appropriate forum for
extent to which a
litigation for Scots“Respect for
legitimate expectation
based employment
private life must relationships, but it
of privacy exists in the
also comprise
employment
should be remembered
to a certain
relationship, however,
that for public sector
degree the
is a matter of
workers recourse could
right to
considerable debate.
be had outwith
establish and
The Information
Scotland, to the ECtHR.
Commissioner is of the develop
Lynette Copland, an
relationships
view that an
employee of
expectation of “privacy” with other
Carmarthenshire
human beings” College in Wales,
does exist concerning
material posted on the
obtained a judgment
internet and social
from the court dated 3
networking sites, in the context of
April 2007 against the UK
the employment relationship.
Government (the college’s funder)
Consequently, an employer’s
that Ms Copland’s right to privacy
monitoring of such information
under article 8 had been infringed
could become intrusive and
by the college’s near-constant
unlawful. This view, expressed to
monitoring for 18 months of her
the writer in researching a separate
emails, websites visited and
paper on this topic, is formed
correspondence on college
from an analysis of the Data
equipment, unbeknown to her.
Protection Act and the
Employment Practices Code,
Risky business
because in collecting the
If, as is apparent, the right to
information online, the employer
privacy can be infringed by an
is processing and retaining data. It
employer’s actions in the
also makes practical sense in that
workplace, employers must be
information may be publicly
cautious in venturing into
accessible on the internet, but it
monitoring of employees’ actions
still needs to be searched out and
in their personal life, even if
retrieved. The Commissioner’s
conducted in the public domain.
forthcoming practice note on
It is very questionable that
social networking sites is eagerly
“private” and “privacy” mean
anticipated.
simply behind closed doors or
away from the public eye, as the
Je blog, tu blogs…
decision of the EAT in Pay
In a recent case in France
suggests. There is, it is submitted, a
concerning online activities, an
considerable risk that employers
industrial tribunal ruled in late
could find trouble in conducting
March that the writer of an
online monitoring of personal
anonymous blog had been
activities, no less by falling foul of
unfairly dismissed from her post
the data protection principles and
with accountants Dixon Wilson
potentially invading the
in Paris. The firm discovered that
employee’s privacy. The message is
Catherine Sanderson, the
clear to employers: when
blogeuse, had posted on her webfollowing in the online footprints
log www.petiteanglais.com
of individuals, tread carefully.
entries about working for them
Bruce A Caldow is a partner in
in Paris, although they were not
Harper Macleod LLP, Glasgow
named or readily identifiable,
Interview John Mackinnon
The Society intends to respond to the challenge of
setting the standards for the future, both for itself and for
the profession, President-Elect John MacKinnon tells
Peter Nicholson as he prepares to take up office
Raising the
standard
H
e may be your
Standard bearers
typical traditional
“Think standards” could become
High Street
something of a mantra for the
solicitor, but the
Society in the coming months.
Law Society of Scotland’s next
Certainly it appears set to
President is under no illusions as
permeate a large part of the
to the significance of the changes
Society’s work. One instance is the
facing the profession or how it
likely shakeup of education and
needs to respond.
training (both pre- and postHaving lived and worked in
qualifying), once the analysis of
Fraserburgh since completing his
the online consultation is
Aberdeen LLB and Edinburgh
complete. As John MacKinnon
training in 1970, John
points out, “This again raises the
MacKinnon readily
question of standards,
identifies with the
standards for
perspectives of
qualification, standards
Scotland’s
for continuing
numerous small
professional
Jock Smith, John
’s
firms. Eleven years
development… it
on
nn
Ki
Mac
on Council have
seems there’s no
predecessor on
came
however kept him
getting away from
Council, also be
Law
well up to speed
standards!” So there’s
President of the
d
with the increasing
a closer link with
Society of Scotlan
pace of change in recent
complaints than you
times.
might think? “Exactly. And
Now, with the setting up of the
we’ve got to get home to the
Scottish Legal Complaints
profession the importance of
Commission to take place
standards.”
during his year in office, he is
At the same time, the
very clear as to the current
maintaining of high standards
number one priority for action.
should not present as too much of
“I want to progress the setting
a culture shock to most firms.
of standards for the profession as
Asked how tough it is for the High
Ruthven Gemmell outlined at
Street firm today as compared
the AGM, making sure that the
with other points in his career,
profession is informed about the
MacKinnon points to how
expectations of the Commission
competitive everything now is, in
and is ready and able to deal
Fraserburgh as elsewhere. “It all
with the Commission when it
comes back again to providing a
opens its doors.”
good service. You have to really
fyi
work hard for it, but I don’t think
it’s any more difficult than it was
before.” And he accepts that the
findings of recent Cost of Time
Surveys, indicating that smaller
firms have generally been doing
quite well for themselves, are a fair
reflection of the position on the
ground.
In parallel with setting the
benchmarks for the profession to
thrive in changing times, the
Society has also recognised the
need to re-examine its own future
direction. A working group was
reporting to the April Council
meeting on both fronts.
MacKinnon is prepared to
contemplate major structural
change. “The profession has
changed dramatically since I
joined the Council, with 30%
now being in-house lawyers, it’s a
younger profession and more
women are coming in. I believe
we must consider whether our
Council setup still properly
represents the profession as it
exists today.
“However, there is still
uncertainty over the costs of the
new Complaints Commission
and the impact on our
membership when the
Commission starts to raise its
general levy. For its part, the
Society must ensure that all
sections of the profession are
getting value for money in terms
of service and membership.”
Regime change
MacKinnon accepts also that the
gap between the big and small
firms has grown in the last 10
years, but believes that the badge
of Scottish solicitor is held in high
regard at home and abroad,
whether that is a sole practitioner
or a solicitor in a large city firm..
“If we can come back again to
standards and to the brand of
solicitor, and if we can add
standards of excellence to core
values, to our Guarantee Fund for
dishonesty claims, to our
professional indemnity insurance
for negligence claims, I would
hope that all firms could continue
to identify with the Society and
the ‘Scottish solicitor’ badge.”
The bigger firms, as MacKinnon
is well aware, are closely watching
the progress at Westminster of the
Legal Services Bill, with its
provisions for alternative business
structures under which ownership
of legal firms will no longer be
reserved to solicitors. Those with
cross-border interests in particular
are concerned to see a continued
level playing field as they
compete for work with their
English counterparts; the recent
merger between Golds and Irwin
Mitchell is one example of the
type of arrangement through
which they may be able to take
advantage of a more liberal
regime south of the border.
MacKinnon is sympathetic to
their position, but recognises the
potential downside. “On the other
hand there is the effect on the
independence of the profession in
Scotland, the effect on our core
values, the effect on the high street
and the effect on the high street
practice. So I suppose it’s a
question of finding a balance
between the two.”
And the impact on the high
street? “My concern would be that
if you have these financial
institutions or whoever it is
allowed to operate as solicitors,
they will cherry pick the profitable
areas of work. The small high
street practice will be left with
the rest.”
Again the Society is closely
monitoring the situation through
a working party on the English
bill, and through meetings with
the big firms and the Executive to
discuss possible developments.
MacKinnon recognises the
contribution made by the larger
firms to the profession, for
example through training the
great majority of new solicitors. In
addition, he comments, “ The
strength of the Society – and in
many ways the profession – is its
diversity of membership. That is
something we should preserve.”
Information empowers
What could prove to be a
watershed year in some respects,
will in others have a familiar ring.
“For its part, the Society must
ensure that all sections of the
profession are getting value
for money in terms of service
and membership”
Coming from a practice which
still offers legal aid work,
MacKinnon can only promise that
the Society will continue to keep
up the pressure on the Scottish
Executive for action to reverse the
decline in availability of publicly
funded legal services. “As Ruthven
mentioned at the AGM, we’re now
seeing the advice deserts become a
reality, from a number of letters to
the Society from MSPs on behalf
of constituents in rural areas who
cannot find a lawyer.”
Another pledge is to maintain
the impetus, begun by Caroline
Flanagan in her presidential year
and continued by Ruthven
Gemmell, of the Society’s
communications drive. “I think
our communications have
improved greatly. The use of
emails, e-zines, the website, and
the online Journal have all been a
great success. We must continue
that improvement. There is so
much good work being done by
Douglas [Mill] and his team at
the Society and by the committees
which nobody ever hears about,
and we need to tell people about
that.”
This, he appreciates, will be all
the more important in helping
smaller firms especially come to
terms with their future life under
the Complaints Commission, not
only through the media just
mentioned but also by continuing
the series of roadshows. “We
organised the roadshows
regarding the bill, making them
aware of what was happening. I
think the concerns are still there as
to how the Commission will
operate. Solicitors are good at
adapting to change, but we have
to keep them informed.”
Though admitting to having
taken some time to adjust to the
role of Vice President – he
acknowledges a debt to Ruthven
Gemmell, whom he succeeds, as
well as to Douglas Mill and the
Society’s executive – John
MacKinnon relishes the challenge
of the top post. He identifies with
the sentiment of Colin Tyre, the
current CCBE President
interviewed in last month’s
Journal, in considering it likely to
be the greatest honour to come
his way. Curiously, Jock Smith, his
predecessor as Council member
for Peterhead, Fraserburgh and
Stonehaven, also attained the
presidency – not that when
MacKinnon took up the Council
seat he ever imagined it leading to
the same place. However, perhaps
he has himself demonstrated his
assertion that solicitors are good
at adapting to change.
“These are challenging and
changing times but overall we
have a great opportunity to be
proactive rather than reactive. And
if we all work together then I am
confident about the future of the
profession.”
John MacKinnon factfile
Born: Uig, Isle of Skye
Educated: Portree High School and
Aberdeen University
Training: W & J Burness, Edinburgh
Admitted solicitor: 1970
Subsequent career: spent with
Brown & McRae, Fraserburgh
Practice area: Private client (wills,
executries, powers of attorney,
guardianships, with some residential
and commercial conveyancing, and
partnership work)
Council service: Member since 1996;
convened Practice Management and
Professional Practice Committees; one
year as Treasurer; Vice President
2006-07
Other interests: Skiing, reading,
church work, golf and hillwalking.
Family: Two grown-up children
Professional news Society
Election of
Members of
Council 2007
I, Douglas Russell Mill, Secretary of the
Law Society of Scotland, Returning Officer
for the purpose of the election of
members of the Council of the Society,
hereby give notice that the undernoted
persons have been duly elected as
members of the Council of the Law
Society of Scotland for the following
constituencies:
Arbroath & Forfar: Hamish Watt, The
Watts Legal Practice, 55 High Street,
Montrose.
Campbeltown, Dunoon, Oban,
Rothesay and Fort William:
Alexander Murray, MacArthur Stewart
& Co Ltd, Boswell House, Argyll
Square, Oban.
Cupar: Alistair Morris, Pagan Osborne,
12 St Catherine Street, Cupar.
Dunfermline: Eileen Anne Sumpter,
Stevenson & Marshall, 41 East Port,
Dunfermline.
England & Wales: Catherine B
Hackney, Eddowes Waldron, 12/14 St
Peter’s Churchyard, Derby.
Glasgow & Strathkelvin: Alison M
Atack, Kidstons & Co, 1 Royal Bank
Place, Buchanan Street, Glasgow;
Gerard Brown, Livingstone Brown, 84
Carlton Place, Glasgow;
Austin Lafferty, Austin Lafferty Ltd, 2nd
Floor, Mercantile Chambers, 53
Bothwell Street, Glasgow;
James Millar, Brodies LLP, 2 Blythswood
Square, Glasgow;
Francis McAuley, Lynch & Co, 5 North
Gower Street, Ibrox, Glasgow;
Grazia Robertson, Liam Robertson &
Co, 46 Carlton Place, Glasgow;
Walter Semple, Walter Semple & Co,
Aspect Court, 116 West Regent Street,
Glasgow.
Paisley: Stuart Naismith, Stirling &
Mair Ltd, 28 High Street, Johnstone.
Perth: Farhat Adams, A & R Robertson
& Black, Bank Street, Blairgowrie.
Douglas R Mill, The Secretary,
1 May 2007
Guard independence,
Dean tells entrants
The independence of the legal
profession is the fundamental value
which permits solicitors to perform
their vital function of protecting and
defending their clients’ interests, new
solicitors were told at the Society’s
recent Admission Ceremony.
Addressing the ceremony, the Dean
of the Faculty of Advocates, Roy
Martin QC, said that despite
perceptions to the contrary in some
quarters, there was no essential
difference between litigation or
advocacy and other forms of legal
practice. “At its heart, the role of the
lawyer is to protect and defend the
clients’ interests, and at whatever
stage the lawyer is acting, that is what
he or she is doing.”
Recalling that 30 years ago he too
had been admitted as a solicitor
before moving to practise at the bar,
Mr Martin told the 16 female and six
male entrants: “I did not know then,
and you do not know now, how any
legal career will work out but what I
do know is that admission as a
solicitor provides a vast range of
opportunities for professional and
personal fulfilment.”
The Dean went on to highlight
what he saw as “a danger that
interests which do not properly
recognise the importance in a
civilised society of an independent
legal profession are taking steps
which have already undermined, and
will continue to undermine, that
independence to the ultimate
detriment of all members of society”.
The challenges to that
independence, he said, were first, the
decline of legal aid so that people in
some parts of Scotland no longer had
access to legally aided advice because
it was uneconomic to provide;
secondly, the increasing power
and activities of competition
and consumer lobbies
who “simply do not appear willing to
acknowledge that members of the
legal profession owe duties to the
court and to the interests of justice
which set them apart from all others
who provide consumer services”; and
thirdly, the increasing influence of
government in the regulation of the
legal profession.
However he advised his audience
not to conclude that he was
pessimistic for the future. “The legal
profession is regarded as one of the
oldest professions in the world, and I
believe that that is because it fulfils a
fundamental human need.” Whatever
might be done to regulate or to
deregulate the organisation of the
legal profession, there would always
be a need for independent
individuals who had an intimate
knowledge and experience of the law.
First reported on www.journalonline.co.uk
News
in brief
Trainee salaries
Effective from 1 June
2007, the Society’s
recommended rates of
remuneration for
trainees are increased
to £15,000 for a first
year trainee and
£18,000 for a second
year trainee.
Scottish Land
Court Reports
2006
The two volumes of
the Scottish Land
Court Reports for
2006, detailing all the
leading legal as
opposed to factual
decisions of the court
last year, have now
been published.
Copies are available,
price £50, from the
Principal Clerk,
Scottish Land Court,
126 George Street,
Edinburgh EH2 4HH (t:
0131 271 4360; LP 14
Edinburgh).
Correction
In the articles on the
Cost of Time Survey in
the March and April
editions of the
Journal, the winner of
last year’s prize draw
was named as Charles
Stanley. This should
have read Charles
Sharkey.
Roy Martin QC
Professional news Law reform
The Law Reform Department and one of its
subcommittees secured important amendments to
the Adult Protection Bill, and the Department is now
scrutinising the proposed Judiciary (Scotland) bill
Society shapes
the changes
Adult Support and Protection
(Scotland) Act 2007
The Adult Support and Protection
(Scotland) Act 2007 received
Royal Assent on 21 March,
marking the culmination of a trio
of Scottish statutes designed to
protect vulnerable adults,
beginning with the Adults with
Incapacity (Scotland) Act 2000
and then the Mental Health (Care
and Treatment) (Scotland) Act
2003. Most of the provisions in
the 2007 Act are expected to be in
force towards the end of this year,
although an important provision,
inserting a new section in the
Social Work (Scotland) Act 1968,
came into force on 21 March.
As with the earlier legislation,
the Society was closely involved,
via the Mental Health and
Disability Subcommittee,
throughout both the consultation
and drafting stages of the 2007
Act. The Society provided
substantial written evidence on
the bill, as well as meeting officials
and accepting an invitation to
provide oral evidence to the
Health Committee of the Scottish
Parliament, during the course of
2006. As a consequence, the Act
was considerably amended and, it
is widely accepted, is a great
improvement on the bill.
The Society submitted a
number of amendments at both
stage 2 and stage 3 of the
consideration of the bill by the
Scottish Parliament, many of
which were subsequently
adopted. Amongst these were
amendments concerning the
consent of the “adult at risk” to
orders made to do with their
welfare. There were also changes
to provisions amending the 2000
Act. For example, the Society
successfully argued that the
procedure of revocation of a
welfare power of attorney requires
similar protections to those in
relation to granting the power.
Part 3 of the 2000 Act, dealing
with access to funds, has been
entirely replaced. The Parliament
accepted the Society’s suggestion
of a simplified renewal procedure
for applications to the Public
Guardian relating to access. This is
now incorporated in the amended
Part 6.
The Society is very grateful both
to members of the Scottish
Executive and the Scottish
Parliament concerned with the
bill for their consistent openness
and helpful liaison throughout
the development of the
legislation.
A more detailed article on the
2007 Act, by Adrian Ward,
convener of the Society’s Mental
Health and Disability
Subcommittee, will appear in the
June edition of the Journal.
Judiciary (Scotland) Bill
Earlier this year, the Scottish
Executive released plans for a
Judiciary (Scotland) Bill. The bill
has the potential to substantially
change the relationship between
the judiciary and the government,
and the Executive claims that the
proposals will strengthen the
independence of the judiciary.
Amongst these proposals is the
suggestion to place the Judicial
Appointments Board on a
statutory basis and to modernise
the disciplinary procedures for
sheriffs. The plans go further,
however, and the discussion paper
accompanying the draft bill
explores the idea that the role of
the Lord President will be
changed to allow for playing a
greater part in the governance of
the Scottish Court Service.
The Law Society of Scotland has
formed a working group to
consider the proposals, under the
convenership of Alan McCreadie,
Deputy Director of Law Reform.
The group boasts considerable
and varied expertise across
professional practice, civil
procedure, and criminal law, and
includes Professor Pamela
Ferguson of Dundee University,
an expert in criminal law and
procedure. The group is meeting
regularly to develop the Society’s
views further to the May 2006
response to the consultation
entitled “Strengthening Judicial
Independence in a Modern
Scotland: a consultation on the
unification, appointment,
removal and management of
Scotland’s judiciary” (available in
the Public Information section on
the Society’s website).
The working group intends to
make representations to the
Executive in due course and to
strongly support the
independence of the judiciary,
encouraging provisions in the bill
enforcing this aim. The group has
so far identified a number of
possible contradictions in the
draft bill relating to judicial
independence. The group believe
that parliamentary committees,
MSPs and the Scottish Executive
should not be in a position to
interfere with judicial
independence and that any
guidance should be followed
optionally.
The proposed changes in the
bill to the role of the Lord
President have also given rise to
areas of concern for the group. In
their view, there is inadequate
consideration given to the
administrative and organisational
skills required in the proposals by
a Lord President taking on broad
and involved administrative
functions. The worry is that the
role would no longer fully utilise
the advanced legal skills and
experience of any lawyer likely to
be appointed to this position. The
group will suggest that the
Executive consider introducing a
role of chief executive or judicial
assistant. In short, judges should
be left to judge.
Sam Condry, Law Reform
Department
More on the Judiciary Bill>
See also, on the Judiciary (Scotland)
Bill, the Opinion column in this
issue (p 9)
Professional news Money laundering
Morag Newton and James Ness provide an update on the
proposed new Money Laundering Rules, and a reminder of
good practice in keeping yourself in the clear
Money laundering
to change again
D
raft Money Laundering
Regulations 2007 have
been issued to implement
the Third Money Laundering
Directive. The consultation period
on the draft regulations has
ended and we await the
outcome. Probably the highest
profile issue raised in relation to
the directive which was not
addressed by the draft regulations
relates to the definition of
“beneficial ownership”, the
difficulty of knowing how to
comply in many trust situations
and the fact that failure to comply
carries criminal sanctions. While
the Society awaits the outcome of
the consultation, we are also
engaging with the Treasury and
with other regulators.
The government has established
the Joint Money Laundering
Steering Group (JMLSG), an antimoney laundering supervisors’
forum, of which the Society is a
member. One of the main aims of
the forum at this early stage is to
ensure each sector has sound and
coherent guidance which is
consistent across all sectors. There
is guidance already published by
the JMLSG which is approved by
the Treasury. The guidance has a
general section dealing with items
that may affect all sectors,
followed by sector-specific
guidance. There seems little point
in reinventing the wheel, and the
Society has proposed that the
JMLSG guidance is adopted with
additional guidance for areas such
as professional privilege, which are
“sector-specific”.
We will keep you advised as
matters progress.
What is the “new regime”?
The Money Laundering
Regulations 2007 are scheduled
to come into force on 15
December 2007.
The aim of the regulations is
to have the most appropriate
and proportionate measures to
deter, detect and disrupt money
laundering and the financing of
terrorism.
A major difference is a move
away from a “tick box” system to
a risk based and proportionate
system. To assess risk in relation
to types of client, types of
business and in individual cases
takes a greater understanding of
the objectives of the anti-money
laundering regime; and greater
knowledge of how money
launderers operate, and how
they interact with Scottish
solicitors, requires senior
management within firms to
take a much more active role
than they may have done
previously. Future articles will
address these issues in more
detail, as well as providing
information and guidance on
the draft regulations.
Next month we will consider
customer due diligence in more
detail, which incorporates both
verification of identity and
knowing your client, and
introduces the concepts of
enhanced and simplified due
diligence.
Where to find it:
Implementing the Third Money
Laundering Directive: Draft Money
Laundering Regulations 2007:
www.hm-treasury.gov.uk
JMLSG Guidance:
www.jmlsg.org.uk
How to identify money
laundering issues
Most solicitors know instinctively
when something feels wrong
about a transaction. If your
instincts are giving you any
warnings about a client or
transaction, ask yourself the
following questions:
Has there been any reluctance
on behalf of the client to provide
adequate ID? A common theme
amongst money laundering
problems that reach the
Professional Practice helpline is
endless promises to provide ID,
which is then provided at the last
minute and given little or no
scrutiny.
Why has the client at a late
stage advised that a third party
will be stepping into their shoes
in the transaction/providing the
funds? Both of these events are
clues that should be a concern.
Does the client appear to have
a deep understanding of the
money laundering regulations?
This is beginning to appear as a
concern, on the simple principle
that some criminals are very good
at being criminals.
Is the client proposing a
transaction which is unnecessarily
complicated? The stock
explanation for complexity
involving five offshore companies,
each with further layers of
corporations as directors and
shareholders, two family trusts and
a telegraphic transfer of money
from a bank account in Nigeria is
that it is for "tax reasons". Ask to
see the tax advice upon which the
whole proposal is based.
Why have I been chosen for
instructions on this particular
matter? Another common thread
with money laundering problem
cases is solicitors being engaged
to do work outwith their normal
sphere of expertise. Do not be
flattered but consider the money
laundering implications and also
issues of general risk
management.
Why is a client so disinterested
in the proposed level of fee? If a
significant sum of money is being
laundered, criminals tend to
regard fees as irrelevant.
What to do if you are unhappy
with the proposed
transaction/client
Depending on when you identify
that there is an issue, you have a
variety of options:
You are not satisfied as to
ID/the basis of the transaction/the
client at a very early stage. You
are not obliged to take on any
particular client or piece of
business, and if they cannot
satisfy you as to the nature of the
business and their identity you
should decline to act.
You realise something is not
right during the course of the
transaction. In terms of the
regulations you should raise your
concern in writing (including
email) with your money
laundering reporting officer
(MLRO). This effectively passes
responsibility for reporting to
your MLRO and it is their
responsibility to make a decision
on whether to report and how
you are to proceed. If you are the
MLRO, or you unsure how to
proceed, feel free to call the
Professional Practice Department
(0131 476 8124).
The problem arises at the last
possible moment. This situation is
often engineered by professional
money launderers. Do not put
yourself or your firm in jeopardy
out of misplaced loyalty to the
client. If a transaction fails to settle
on schedule despite heavy
contractual penalties, that is likely
to be due to failure on the client's
part to comply with money
laundering regulations. Even if it
leads to a complaint/claim, that is
preferable to an accusation of
criminal conduct on your part.
Preventative measures
Training
Properly trained staff are a legal
requirement under the directive,
but they are also your first line of
defence. They could identify
problems at a very early stage.
Procedures
Robust procedures, which cannot
readily be overwritten by anyone
(including partners), are a
significant protection. Even if your
firm is unfortunate enough to be
the victim of a money laundering
fraud, the fact that you have robust
procedures in place is a significant
defence to a suggestion that you
were actively involved.
Terms of business
Robust clauses in terms of business
letters relating to money laundering
are strongly recommended. Such
clauses limit the amount of cash
that can be paid through the firm,
highlight that transactions can be
disrupted/delayed by failure to
provide ID/source of funds, etc.
Where a transaction has been
refused consent by SOCA, it is not
tipping off to remind the client of
your terms of business where you
warned them of the consequences
of their actions.
Most solicitors have ample
work, but even if you do not, you
should turn away questionable
business. If in doubt, err on the
side of caution.
Morag Newton is Director,
Guarantee Fund, and James Ness is
Deputy Director, Professional Practice
at the Law Society of Scotland
News
in brief
Border and
Immigration
Agency launches
From 1 April the
immigration functions
of the Home Office
have been taken over
by a new agency, the
Border and
Immigration Agency.
This will in future deal
with applications to
live and work in the
UK. New fees and
forms have been
introduced, which
should be used for all
future applications;
these can be accessed
on the BIA’s website
www.bia.homeoffice.
gov.uk .
The agency is
based at 8th Floor
(Long Corridor), Lunar
House, Wellesley
Road, Croydon
CR9 2BY.
Benevolent Fund
golf outing
This year’s golf outing for the Scottish
Solicitors Benevolent Fund will take
place at the highly acclaimed
Roxburghe Hotel & Golf Course near
Kelso on Friday 17 August. Once again
the Legal Post (Scotland) Ltd have
kindly agreed to sponsor the event.
Entries are invited for teams of four,
from faculty, society and association
teams to challenge the defending
champions, North Berwick, over a
magnificent course which is ranked as
one of the best inland courses in
Britain, with facilities to match.
Entry forms and further information, including
accommodation rates at The Roxburghe Hotel,
are available from Ross D Ireland, Williamson
& Henry, 13 St Mary Street, Kirkcudbright
(LP-1 Kirkcudbright; t: 01557 330692; e: rireland@
williamsonandhenry.co.uk). Book early to avoid
disappointment. Last date for entries is 20 July.
See also Hearsay, p 54
Franco-British Lawyers’ Society
The next seminar organised by the
FBLS Scottish committee will be on
11 June 2007 in the Law Society of
Scotland’s offices, on the subject of
French Succession Law. The speakers
are Jérôme Le Breton (notaire) and
Patrick McKay (avocat), both
specialists in this area.
Further events in 2007 include a
seminar on Sport and Law
(September) and, in October, at
Parliament House, an event on The
Accountability of the Judge, with
speakers Dale Simon, Head of Office
for Judicial Complaints (England)
and Vincent Lamanda, Premier
Président de la Cour d’Appel de
Versailles. This will be followed by the
Society’s Annual Dinner.
Full details of events in Scotland, France and
England are at www.fbls.org . For any questions
about the events, or to join the FBLS, contact
Myra Reid (t: 0131 650 2038; e: [email protected]).
Professional Practice Committee
New Guidelines on Electronic
Communications were approved by the
Professional Practice Committee in
March, and can be read on the Society’s
website at www.lawscot.org.uk/
Members_Information/
rules_and_guidance/guides/Rules/
FaxEmail/faxdocs.aspx .
The guidelines, which are extensive,
cover practice management issues
relating to email use; professional
undertakings and contracts entered into
by email; statutory obligations
including the Data Protection Act,
Regulation of Investigatory Powers Act,
Human Rights Act, and which
professional rules apply when
professional services are provided
electronically from countries within the
EU; and good email practice including
storage of emails, and absent staff.
Professional news Ombudsman
Specialist accreditations
Agricultural
Re-accredited: ROBERT C TURCAN,
Turcan Connell (accredited 10 January
2002); ADAM R GILLINGHAM, Turcan
Connell (accredited 13 March 2002).
Child
Re-accredited: LINDA GEORGE, Linda
George Family Law (accredited 27
February 2002); ELSPETH BLACK,
Corrigall Black (accredited 19
September 1996).
Construction
Re-accredited: CHRIS J ARNOLD,
Shepherd and Wedderburn
(accredited 7 February 2002); DAVID
S ARNOTT, MacRoberts (accredited 20
February 2002).
Discrimination
AMANDA JONES, Maclay Murray &
Spens LLP; STEPHEN MILLER,
MacRoberts (both accredited 1
February 2007).
Family
KAREN GAILEY, Maxwell Maclaurin;
RACHEL SHEWAN, Morton Fraser LLP
(both accredited 15 February 2007);
SUSAN MACLEOD, Anderson
Strathern (accredited 22 February
2007).
Re-accredited: DOUGLAS WALKER,
Nelsons (accredited 27 February
2002); STEPHEN J BRAND, Thorntons
Law LLP (accredited 29 January
1997); CAROLINE GRAHAM, Macleod
& MacCallum (accredited 29 January
1997); JUDITH MEIL, Taggart Meil
Mathers (accredited 24 January
2002); SUSAN J WIGHTMAN, Kippen
Campbell (accredited 29 January
1997).
Incapacity and mental
disability
JOHN QUINN, Freelands (accredited
31 January 2007); ALLAN K
MACINTYRE, Caesar & Howie
(accredited 12 March 2007).
Insolvency
Re-accredited: JOHN CLARKE, CCW
LLP (accredited 7 February 1994).
Intellectual property
DAVID GOURLAY, McClure Naismith
(accredited 1 February 2007).
Medical negligence
SUSAN GRANT, Digby Brown
(accredited 14 March 2007).
Personal injury
BRUCE R SHIELDS, Thompsons
(accredited 17 April 2007).
Re-accredited: SUSAN GRANT, Digby
Brown; FRANK HUGHES, Anderson
Partnership (both accredited 17
March 2004).
Trust
Re-accredited: JOHN M H BIGGAR,
Tods Murray LLP (accredited 7
February 2002); ROBIN FULTON,
Turcan Connell (accredited 14 March
2002); FRANK W FLETCHER, Bird
Semple (accredited 7 February 2002).
In a two-part series about dealing with client concerns,
Philip Yelland, the Society’s Senior Director of
Regulation, and Jane Irvine, the Scottish Legal Services
Ombudsman, set out some of the key issues firms need
to consider to deal effectively with client concerns.
In this second part Jane Irvine considers why this is
set to become increasingly important
Dealing positively
with client concerns
A brief history of complaint
handling
Traditionally complaints were
viewed as allegations of
misconduct against an
individual providing a service at
the point of delivery. The courts
have recognised misconduct as a
serious matter, so it is not
surprising that facing an
allegation can provoke a
defensive reaction, particularly
if the individual subject to it is
left to deal with it alone.
The modern approach is to
view complaints as
opportunities for learning, as an
element of client feedback that
can lead to an improved service.
When complaints arise, the
reaction should be to look at
whether systems and processes
within the firm or company
could be improved, rather than
simply examining how an
individual should be punished.
The demand for a choice of
means of redress by consumer
organisations has also
increased. Consumers now
expect to receive a prompt
response, an apology where
justified and details of any
changes made, rather than
payment of money after a
lengthy investigation.
Consumers do still want
monetary redress where
appropriate, but their focus has
shifted from wanting to punish
individuals. Those regulating
complaints handling have
evolved accordingly.
Relevance to the Scottish
legal profession
Many changes have been made
within the Scottish legal
profession. It was recognised in
1989 that complaints could be
made about inadequate
professional service separately
from misconduct matters. New
forms of redress, including
rectification and requiring
solicitors to take positive action,
have been in existence for some
time. Increasingly, firms also issue
apologies. The profession now
faces further change with the
abolition of the Scottish Legal
Services Ombudsman and
creation of the Scottish Legal
Complaints Commission.
However, the way service and
misconduct complaints are
handled has not significantly
differed in recent years.
What will the further
changes be?
The Society’s current complaint
system is generally geared towards
providing redress if service
complaints are proved on the
balance of probabilities. There is
little the Society can do to
encourage a settlement by
agreement; resources do not
stretch to provision of mediation
services and, despite the best
efforts of all involved, the Society
is simply not regarded by many
complainers as a neutral third
party. There is little opportunity to
encourage learning by the
profession where IPS is not
proved but it is quite clear things
have not gone well. The
Ombudsman cannot suggest that
apologies are issued, or easily
intervene to settle disputes. Whilst
we cannot second guess the way
the new Commission will elect to
work, the new Act does give some
strong clues.
It seems likely from the
framing of the Legal Profession
and Legal Aid (Scotland) Act –
particularly Part 1, s 8 – that the
new Commission will encourage
much greater emphasis on resolving
complaints locally or agreeing as
many issues as feasible, with only
intractable disputes moving through
to a final determination. The new
Commission will have powers to
refer complaints back to
practitioners so a negotiated
settlement can be achieved, to
mediate disputes and, potentially, to
charge firms that do not resolve
disputes themselves.
The new Commission will also
have powers to charge firms where
documents need to be recovered,
and to levy interest on late
payments. Again, these measures are
designed to encourage early
attention to, and resolution of,
complaints.
New powers granted to the
Society, which will allow errors to be
picked up early and corrective
measures to be imposed, should
encourage lessons to be learned. The
Society will be able to identify
unsatisfactory conduct and impose
different learning sanctions,
including the power to order
retraining in appropriate cases.
How will all this impact
on firms’ client care?
Letters of engagement: A way of
ensuring there are fewer areas of
dispute is to provide clear letters of
engagement. These are likely to
become increasingly important if
disputes are to be resolved by
explanation. If they set out clearly
what was to be done for what fee,
there is less scope for disputes to arise
through misunderstandings. This also
makes it easier to identify when a
service has been deficient, or explain
why this is not the case. In the
experience of the Society and the
Ombudsman, misunderstandings
about fee levels and form of service
lead to a high percentage of
complaints.
Client relations partners: The role of
the client relations partner will
become more important, as one aim
of the new provisions is to
encourage local resolution of
disputes. Moreover, if complaints to
the new Commission escalate, client
relations partners will be forced to
make an objective decision about
the merits of a complaint at a much
earlier stage. Client relations partners
provide a logical focal point for
improving communications with the
profession in an effort to promote
good practice and better client care.
Firms’ complaint systems: Modern
complaints handling demands a fast
and open response to complaints.
Those subject to complaints must
show a willingness to learn from them
and to listen to clients. Firms will have
to consider complaints constructively
from day one and be prepared to
reach agreement by negotiation. Sole
practitioners may have to think of
ways of bringing in neutral third
parties to assess their actions, while
larger firms will have to ensure that
client relations partners encourage an
objective review of issues.
Profession as a whole: Consumers
now expect service providers to act
responsibly when concerns are
raised. If the Scottish legal
profession communicates well with
clients and responds constructively
to criticism, it will add to overall
quality of service provision.
Prepare now
The new Commission offers real
opportunities for more constructive
complaints handling, but it also
presents new challenges for the
legal profession. Preparation now
is the key.
From the Brussels office
Two current proposals each raise
questions about whether they are within
the powers of the EU
IP: Parliament backs
criminal sanctions
A proposal from the European
Commission to criminalise
commercial scale infringements of
intellectual property rights and to
set minimum levels of criminal
sanctions across the EU was largely
approved by the European Parliament on 24 April. The Parliament decided
to focus the measure on cases of counterfeiting and piracy, and remove
patents from its scope. Following a seminal ruling of the European Court of
Justice from September 2005, this is the first time that the Commission has
proposed a directive prescribing levels of criminal sanctions. According to
the directive, member states would have to provide maximum prison
sentences of at least four years and fines of up to at least 300,000 euro for
the most serious offences. The proposal is also being examined by member
states, some of which remain sceptical about its legal base in the Treaties.
Fair trial rights: decision time
Justice Ministers met on 19-20 April regarding the procedural safeguards
proposal, a framework decision designed to put in place minimum
standards for suspects and defendants in criminal proceedings. Presented in
April 2004, the proposal has caused controversy in the Council of Ministers
as some member states do not believe the EU has the jurisdiction to deal
with these measures. Others believe that there needs to be strong evidence
that the proposal offers “added value” compared to the European
Convention on Human Rights.
The original proposed comprehensive package of rights is long gone and
the ministers were presented with two alternatives. The first was a pareddown version of the original proposal, limited to general provisions on the
right to information, the right to legal assistance free of charge, the right to
interpretation and the right to translation of documents. The second was a
binding framework decision limited so that it would only be applicable in
cross-border cases involving a European arrest warrant. Despite being a
German Presidency priority, no agreement was reached by ministers and it
will now be up to Justice Ministers at the Council to make progress.
Obituary
WILLIAM McNAB (retired solicitor), Gourock
On 29 March 2007, William McNab, formerly employee with the
Procurator Fiscal Service, Greenock.
AGE: 91
ADMITTED: 1946
Notifications
Entrance certificates
issued during March/April 2007
COCHRANE, Gail
Gwendoline, LLB(HONS),
DipLP
GREEN, William John,
LLB(HONS), DipLP
MILLER, Gary William
Victor, LLB, DipLP
MOWLEM, David Lonsdale,
LLB(HONS), DipLP
PORTER, Ross James, LLB,
DipLP
SCOTT, Kirsten Lindsay,
LLB(HONS), DipLP
Applications for admission
March/April 2007
DORAN, Katherine Ellen
Clarissa, LLB(HONS),
DipLP
GLOVER, Joanne Lindsay,
LLB(HONS), DipLP
HILL, Susan Margaret,
LLB(HONS), DipLP
JORDAN, Hannah Lucy,
LLB(HONS), DipLP
LODGE, Lianne Margaret,
LLB(HONS), DipLP
McCURRY, Ciara Maria,
LLB(HONS), DipLP
MARTIN, Kirsty Jane,
LLB(HONS)
O’NEILL, Mary Frances,
LLB(HONS), DipLP
PIKE, Craig Andrew, LLB,
DipLP
RUSSELL, Craig Scott,
BA(HONS), LLB, DipLP
SHAND, Antonia Elizabeth,
LLB(HONS), DipLP
People
Onthemove
Sheila Barker, Bonar MacKenzie WS
BONAR MACKENZIE WS,
Edinburgh, are delighted
to announce that Sheila
Barker has been
assumed as a partner of
the firm with effect from
1 April 2007. The firm
further intimates that
David Flint resigned as a
partner with effect from
31 March 2007.
BAILLIES, Dundee, are pleased to
intimate the appointment of Alastair
Derrick (previously a partner with
SHIELD & KYD, Dundee), as a
consultant, with effect from 1 May
2007.
Nicola Benz, Scottish solicitor and
senior associate with the IP &
Technology Group of the law firm
FRORIEP RENGGLI, intimates that
she has recently been assumed as a
full member of the Zürich and Swiss
Bar Associations, entitled to practise
Swiss law in her own name using the
title “Rechtsanwaltin”. Nicola was
the first foreign lawyer in
Switzerland to achieve this by
demonstrating that she had regularly
and effectively practised Swiss law
for more than three years under the
bilateral treaties on the free
movement of lawyers between
Switzerland and the EU. Nicola can
be contacted at +41 44 386 60 00
and [email protected] .
BLACKADDERS, Dundee, Forfar,
Kirriemuir, Carnoustie and
Blairgowrie, intimate that Ewan
Kenneth Miller has resigned as a
partner of the firm with effect from
31 March 2007.
Lisbeth-Ann continue to work within
the firm’s property divisions,
EDINBURGH + LEITH PROPERTY
and EDINBURGH + LOTHIANS
PROPERTY.
GILDEAS, Edinburgh, are pleased to
announce that their assistant Jennifer
Rae has been promoted to an
associate of the firm with effect from
1 April 2007.
GILLESPIE GIFFORD &
BROWN, Dalbeattie,
Dumfries, Castle Douglas
& Kirkcudbright,
intimate the retiral of
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pleased to announce that
appointment of two new
as of 23 April 2007 their
solicitors to the firm: Roddy A S
Dunfermline office is operating
MacLeod has been appointed as an
from new premises, Crescent House,
associate based in the Castle Douglas
Carnegie Campus, Dunfermline, Fife
office and Hannah E MacLeod has
KY11 8GR (tel 0845 22 33 001;
been appointed as an assistant based
www.ccwlegal.co.uk).
in the Kirkcudbright office.
THE COMMERCIAL LAW PRACTICE
HAY CASSELS, Hamilton, intimate
LLP, Aberdeen, are pleased to
that David Scott Kydd has resigned as
announce that Fiona Mitchell and
a partner of the firm with effect from
Anne Margaret O’Neill have been
1 April 2007 but shall continue to be
assumed as partners with effect from
associated with the firm as a
1 April 2007.
consultant. In addition their
WM CRATE & CO, Dalry, are pleased
assistant, Caroline Magowan, has
to announce the appointment of
been promoted to the position of
Martha Louisa Christina Blackwood
associate with effect from 1 April
as an associate with the practice.
2007.
Martha is dual qualified in both
McVIES WS, Haddington intimate
Scottish and English law and can be
that Gordon David Symon and
contacted on tel 01294 832108 or at
Edward Andrew Danks have resigned
[email protected] .
from the practice and returned to
ELP SOLICITORS, Edinburgh and
their North Berwick office, PARIS
South Queensferry, are pleased to
STEELE WS, on a full-time basis with
announce that on 6 April 2007 Laura
effect from 1 May 2007.
McFadzean (formerly Gray) has been
MACPHEE & PARTNERS, Fort
assumed as a partner of the firm and
William and Oban, hereby intimate
Lisbeth-Ann Pay has become an
that C Michael Jarvie has retired from
associate of the firm. Both Laura and
fyi
the partnership with effect from 19
April 2007.
MAXWELL MACLAURIN, Glasgow
and Edinburgh, and STEPHENS,
Bo’ness, are pleased to announce the
merger of their two firms. The
combined firm continues to be
known as MAXWELL MACLAURIN.
Phyllis Stephen, the former sole
principal of STEPHENS, has been
assumed as a partner of MAXWELL
MACLAURIN and is based in the
firm’s Edinburgh office at 30 Stafford
Street (tel 0131 220 4020; fax 0131
220 4030; email pstephen@
maxwellmaclaurin.co.uk . They are
further pleased to announce that
Gillian Brown has been assumed as a
partner of the firm with effect from 1
April 2007 and Karen Gailey has
been promoted to associate.
MILLER SAMUEL LLP, Glasgow, are
delighted to announce the
promotions of Real Estate associates,
Hazel Weir and Ian Bowie, and
Employment associate Carolyn Miller
to partners. Caroline Summers, a
partner in the Real Estate
department, will shortly be
emigrating to Switzerland with her
family. Caroline left the partnership
on 29 March 2007. Caroline joined
Miller Samuel in 2002. The firm
wishes her well in this exciting new
venture.
Andrew A Murchison, formerly
trading as ANDREW A
MURCHISON, Inverness, Rod K
Maclean, formerly a partner with
MACLEOD & MACCALLUM,
Inverness, and R Murray McCheyne,
formerly a partner with MUNRO &
NOBLE, Inverness, are pleased to
announce that with effect from 1
May 2007 they have formed a new
partnership called MURCHISON
LAW. The new firm operates from 5
Ardross Terrace, Inverness IV3 5NQ
(tel 01463 709992; fax 01463
Intimations
for the people
section should
be sent to:
Denise Robertson,
Record Dept.,
The Law Society
of Scotland,
26 Drumsheugh
Gardens,
Edinburgh EH3 7YR
Email:
deniserobertson@
lawscot.org.uk
713722; general email address
[email protected]).
MORGANS, Dunfermline, are
delighted to announce that Donna
Marie Whyte, senior associate, has
been assumed as a partner with effect
from 1 April 2007.
MURRAY DONALD DRUMMOND
COOK LLP, St Andrews, Anstruther,
Cupar and Leuchars, are pleased to
announce the assumption of Alistair
Lang as a new partner in the firm as
from 1 April 2007. Alistair is based at
the firm’s St Andrews office at
Kinburn Castle, St Andrews, Fife
KY16 9DR (tel 01334 477107; fax
01334 476862).
PAULL & WILLIAMSONS, Aberdeen,
wish to intimate that, with effect
from 6 April 2007, three of their
assistants, Gary G Chapman, Steven
G Mitchelhill and Colin N McKenzie,
were appointed associates and with
effect from the same date Douglas
Murray retired as a partner.
PINSENT MASONS, Edinburgh and
Glasgow, are delighted to announce
the promotion to partner of Yvonne
Dunn, Outsourcing, Technology &
Commercial, and Neil Hogg,
Property. Additionally, we are
pleased to announce the
promotion to senior associate of
Caroline Catto, UK Construction &
Engineering, and William Malcolm
and David Woods, both
Outsourcing, Technology &
Commercial, all with effect from 1
May. We are also pleased to
announce that Hugh Bruce-Watt, a
partner within our Property group,
will relocate from London to
Scotland, based at our Edinburgh
office, 18-22 Melville Street, with
effect from 1 May.
Stephen J Semple hereby intimates
that with effect from 31 January 2007
he has resigned from DUFFY
TOSHNER & CO and commenced
practice on his own account as
STEPHEN J SEMPLE, 3 Grenville
Drive, Cambuslang, Glasgow G72
8DS (tel 0141 641 3438; mobile
0779 9690475).
Lisa Fowlie, Nicola Dagg, Todds Murray LLP
TODS MURRAY
LLP, Edinburgh
and Glasgow, is
delighted to
announce the
assumption, with
effect from 1 April 2007, of Lisa Fowlie as a
partner (LLP member) in the firm and the
promotion of Nicola Dagg to associate. Both Lisa
and Nicola are experienced practitioners in the
firm’s Commercial Property department.
THE PRG PARTNERSHIP, Glasgow,
Kirkintilloch, Clydebank and
Erskine, is pleased to announce the
assumption of its associates, Jennifer
McCulloch and John Sullivan, as
partners of the firm from 1 April
2007. Jennifer is based in the firm’s
main office at 12 Royal Crescent,
Glasgow and John is based at 111
Cowgate, Kirkintilloch.
Murray Sinclair has been appointed
Solicitor to the SCOTTISH
EXECUTIVE and will succeed
Richard Henderson who retires on
24 May 2007. Murray joined the
Solicitor’s Office of the SCOTTISH
OFFICE in 1989.
STEWART & McISAAC, Elgin
intimate that Stephen Andrew
Harper resigned from the partnership
on 31 March 2007, on taking up a
position with STEWART & WATSON,
Banff.
STEWART & WATSON, Turriff and
elsewhere, are pleased to announce
that Stephen Andrew Harper has
joined the firm as an associate with
effect from 2 April 2007. He was
previously a partner with STEWART
& McISAAC, Elgin and is to be
based at the main office at 1 St
Catherine Street, Banff.
STODARTS, Hamilton, are delighted
to announce that with effect from 14
June 2007, their assistant Ruth
Leonard will become an associate of
the firm.
Roderick Williamson Urquhart,
Solicitor-Advocate, latterly
Procurator Fiscal for Dingwall and
Portree, announces that he resigned
from the PROCURATOR FISCAL
SERVICE on 31 March 2007 and has
commenced a criminal defence
practice as RODERICK
URQUHARTS SSC, 6 Beinn View,
Conon Bridge, Dingwall, Ross-shire
IV7 8DG (tel/fax 01349 866844;
email [email protected];
website
www.roderickurquhart.co.uk).
J & G WILSON, Kinross and
Kirkcaldy, intimate that Douglas D
Gifford has retired from the firm with
effect from 31 March 2007.
Professional practice Business development
Debbie Atkins challenges solicitors to
consider whether they are prepared for
the demands of winning and keeping
business in today’s competitive world –
and whether their attitudes towards others
will take them forward
Winning
ways
In March 2006, my father died. He had
been seriously ill for quite some time,
but nothing prepared me for the end,
when it came. I thought he would go
on forever and in the weeks that
followed his death I struggled to hold
everything together. During this time
my mind raced in many directions…. I
laughed, I cried and I reflected on the
life of a man who was, amongst all
other things, a fair, decent and genuine
human being.
He was also a very successful man,
but I do not draw on his many and
varied achievements from the world of
business, sport and the military (the
latter two in his early years), as this,
whilst interesting, would serve no
purpose here. What I remember is a
man of principle. A man who always
had time for people, at all levels, and
who never, despite his seniority,
became self important. Why is this of
relevance to an article on business
development? The answer is simple:
self-importance is a failing which can
get in the way of too many people
(young and old) in the professional
service sector and one which, until it is
recognised and addressed, can hold
some back.
Sincerity shows
Reading these words, you might
recognise these failings straightaway,
no doubt being able to recall one or
two examples of such characteristics
being displayed. For example, the
partner who says good morning to his
fellow partners and those he rates, but
ignores the filing clerk and secretary
passing on the way to their desks.
Another who dismisses the suggestion
from a junior member of staff merely
because it came from them. The
trainee or junior assistant who, having
gained straight A grades throughout
school and having spent four or five
years at university achieving an
honours degree enabling them to
embark on their legal career, does not
feel they have anything to learn about
giving out name badges at the start of a
client event hosted by their firm.
Another who dismissively believes
they are more important and more
valuable to the business than a
secretary who has worked for the same
firm for over 10 years. Of course, they
might well be, in some cases, but it is
not a given.
My father believed and taught me
that absolutely everyone is
important. Value that and you value
your people.
The key message, in terms of
business development, is this – be
sincere in all you do. If not, your
insincerity and lack of genuine
concern will show through and it will
betray you. If, on the other hand, you
do genuinely care about the clients
and people with whom you are
dealing, this will also be evident, and
the warmth and friendship which will
flow from conversations and meetings
will be sincere – because it is – and
connections will be made. You can’t
pretend to be interested. Your mask
will slip. It is not about being able to
solve every problem for everyone you
meet, nor about impressing them, just
about taking the time to (actively)
listen, to learn more about them and
their issues, to celebrate their success
and to be pleased to be able to share
some time together.
School of hard knocks
Some people select those they are
going to take time to get to know and
only devote this kind of attention to
them. Fair point – it is important to be
strategic; however, a smile, a nod, or a
quick hello in passing does not take
much effort, nor does it disrupt or
affect one’s work pattern in any way.
Making time to know your staff and
colleagues and what matters to them
will add to the good working
environment of your business, and
being nice to, and knowing, the staff in
your key clients’ businesses will pay
dividends as well.
My father truly believed that one
needed to be “blooded young” in
business. What he meant by that was
that one needed to have taken a few
knocks. If one has passed everything
with flying colours, be that exams, a
university degree or appraisals from
managers, and has gone on to gain
promotions with ease, there is a
danger that whilst this person is clearly
successful they do not have an edge, a
sharpness, a hunger for success, which
can only be born out of the taste of
failure. Knowing the shock and distress
of failing at something, or losing a
contract or valuable profits, or that
perhaps the business is just not
coming through the door: so long as
the impact is felt, it develops a
keenness never to let this happen
again.
For so many in the professional
service sector, this sense of failure is
absent from their lives. The impact of
losing a client or tender bears little
relevance to their lifestyle. They are
cushioned from the reality and
therefore do not feel the real pain. For
a large number, the work has always
landed on their desk and they have
done it. They have not had to go out
and find new business to ensure the
school fees and mortgage are paid and
that there is food on the table. The
hunger is therefore missing.
Know your game plan
Many may read this and believe this
day will never come, when a
“professional” need worry themselves
about this kind of concern. I would
disagree. The professions are changing
at a remarkably quick rate. Clients are
more discerning, competition is fierce,
and just as employees no longer feel
there is benefit in staying in the same
firm throughout their career (in fact
this can now be seen as a positive
disadvantage), so too clients often feel
that a change of professional adviser
can be a good thing also. With clients
shopping around and tenders
becoming commonplace, those
working in the professional service
sector need to move with the times and
hone their business development skills
to ensure they are best placed, (a) to
retain the profitable work which they
already have, both ensuring that they
keep their clients happy and fight off
any unwanted attention from
competitors, and (b) to maximise any
opportunities which present
themselves in order to win new work.
The right impression: Ten top tips
Find ways to keep your
clients informed of legal trends
and changes which might
affect them. Proactively make
suggestions. Be invaluable.
Actively seek feedback.
Consider how best you can
add value to the relationship.
Don’t take it for granted.
Always have a list of your
current clients. Colour code
them into priorities for action.
Think about why clients
might instruct YOU rather than
someone else. If you are not
sure, then try to find out by
talking to your existing clients.
Always say “thank you” to
those who refer work to you.
If you promise to do
something, be sure to do it. Be
careful not to overpromise.
Think of yourself as an
ambassador for your firm. You
represent your firm at all times.
Make a good impression.
Smile! – be approachable
and nice to be around.
Physically, and mentally,
polish your shoes!
Don’t miss
in this
section
Business
development:
The right attitude
32
IT: Is there a
remedy against
spam?
34
Risk management:
IP/IT issues
36
The day of the professional acting a
bit like – dare I say it – “a sausage
factory”, sitting at his or her desk
churning out the work which happens
to land on it, are long gone, or going
fast. Complacency is the greatest
danger some face. Professionals now
require to shape their careers, decide
on their specialism or specialisms and
work hard to keep and win the work
they want, both for now, today, and for
the future. They need to have personal
business development plans to ensure
they use their time wisely, and to know
clearly what they want to achieve and
to work towards getting it. I have a
favourite question which is, “If I could
wave my magic wand and grant you a
wish, what would it be?” Would you
be able to tell me what business you
want and who is going to pass it to
you? If not, how can you ever go after
it? You have to know what you want,
plan how to get it and work through
that plan to make it happen. Without
that you are living on hopes and
dreams.
Lip service?
And finally, ending this where I began,
nothing prepared me for the loss I felt
when my father passed away. I thought
he would go on forever, but in truth I
had been given lots of warning signs.
He was extremely ill and I know now
that whilst I paid lip service to this fact,
I did not allow myself truly to believe
that anything could happen to take
him from my present world. I didn’t
face the truth or consider a future
without him being there. In the same
way, I believe that some in the
professional service sector pay lip
service to the fact that they now have
to actively address their business
development skills to ensure they keep
their key clients and continue to win
new work. Many are doing so, and
doing so very effectively, but some, like
me with my dad, have not grasped the
reality and are not prepared. They are
labouring under the misapprehension
that being a quality lawyer is
enough…
Debbie Atkins LLB(Hons),
DipLP is Director of Client Relations
Management & Business Development
for Tods Murray LLP
t: 0131 656 2244;
(A version of this article first appeared in
PM Forum, the professional marketing
magazine for the UK, in March 2007. A
version with a more extensive list of tips
for various business situations can be
read at www.journalonline.co.uk/
submissions.)
Professional practice IT
Anti-spam legislation has generally been characterised by
its ineffectiveness, but the risk of adverse publicity from
action by recipients makes it worth a client’s while taking
precautions, says Valerie Surgenor
Toothless
against spam?
Despite the legislative efforts of
the likes of the European Union
and the United States, spam (or
unsolicited commercial email) is
very much part of our electronic
everyday life.
Prior to the introduction of the
UK Privacy and Electronic
Communications (EC Directive)
Regulations in December
2003, many surveys in the
UK showed that
marketing companies
Heavy fines for
were either blissfully
ails
sending junk em
unaware of the new
sive
as
m
a
d
ha
ve
ha
in
regulations or were
deterrent effect
ally
tic
undeterred from
ac
pr
a,
ali
str
Au
continuing in their use of
Hence the
eliminating them
email for marketing. With
reason why, against
headline-grabbing statements
this backdrop of apparent
such as “95% of email is junk”
hopelessness, the recent case of
(BBC news online, 27 July 2006),
Gordon Dick raises interest
we are now in a situation some
amongst (some) lawyers and
four years later where little has
those in the marketing and
improved, with the exception of
advertising world. In what is
the ever necessary anti-spam
thought to be only the second
software and firewalls. Indeed this
case of its kind in the UK (and the
electronic calamity is mirrored
first time a court has awarded
worldwide: the situation in the
damages), a British company was
USA is no better, with most email
ordered to pay a total of
marketing failing to be compliant
£1,386.66 in damages and costs
with the federal CAN-SPAM Act
plus interest, after sending two
2003 (as reported on www.
junk email, or spam, messages to
marketingtoday.com/emarketing).
one man’s private email account.
fyi
So-called “opt-out” boxes are
something of a grey area and
are a very confusing element
of the regulations
Biting back
Transcom Internet Services
(“Transcom”) sent the offending
emails to Gordon Dick’s personal
account in February 2006. Mr
Dick decided to write to Transcom
and made enquiries on a number
of counts including asking
Transcom, by sending him the
emails, on what basis they had
not breached the Data Protection
Act 1998 (“DPA”) and the Privacy
and Electronic Communications
Regulations, and asked them to
remove any personal data they
held about him. It would appear
that Transcom’s responses to such
enquiries were not satisfactory,
and Mr Dick proceeded to raise a
small claim action in the sheriff
court against Transcom for the
sending of unsolicited
commercial email in breach of the
DPA and the Privacy and
Electronic Communications
Regulations. Whilst Transcom
deny sending spam, decree was
granted in Mr Dick’s favour after
Transcom did not turn up at the
January hearing.
Following the success of his
action, Mr Dick has now set up his
own website,
www.scotchspam.org.uk, to
provide advice to others in their
pursuit of the senders of
unsolicited email, and to “make
the spammers pay for their
actions”, as it is put on his home
page. His site contains a full and
detailed account of his own case
with Transcom and provides the
reader with useful information
about data protection and the
regulations generally. Along with
this the site provides template
letters to get the reader on their
way should they want to pursue
the matter further. I suspect that
Mr Dick expects more traffic on
his website as others take on
board his comments.
The limits of legislation
But we have to ask why it has
taken four years for the rules
governing the sending of
commercial junk email to
individuals finally to bear fruit in
the UK courts? At the time the
regulations were introduced, they
were viewed as lacking sufficient
bite; worse still the UK
Information Commissioner, the
regulations’ enforcer, said that the
permitted fine was not big enough
to deter dedicated spammers.
The biggest issue facing the
application of the regulations
(and therefore their effectiveness)
is the fact that they fall
considerably short of what is
required. They have no
worldwide scope (and of course
never could). If marketers wish to
send emails to different EU
member states, they must comply
with each country’s legislation,
but with the majority of spam
today coming from the USA,
China and Russia (the UK is only
the tenth biggest source of junk
emails worldwide), the
regulations are powerless to assist.
The astonishing growth in the
number of junk emails has
stimulated calls for harsher
penalties for offenders, and
perhaps we are starting to see a
trickle of movement abroad on
this front. Heavy fines have had a
massive deterrent effect in
Australia, resulting in the practical
eradication of Australian junk
emails (BBC news online, 21 April
2005). In 2006 an Australian firm
and its director were fined a total
of £2.2 million for sending over
230 million spam emails over a
two year period in contravention
of Australia’s Spam Act 2003. With
fines of up to $200,000 (AUS) a
day for the sending of junk emails,
this certainly makes the UK’s
maximum fine of £5,000 seem
like a drop in the ocean.
Unwelcome publicity?
Whilst the Transcom case clearly
demonstrates the Scottish courts’
willingness to find against
spammers, one has to wonder if
the level of the award serves as any
real deterrent or whether, as with
breaches of data protection
legislation, it is the adverse
publicity which is more feared
than anything else. The Gordon
Dick case has certainly served as a
gentle reminder of this, given that
the level of discussion about the
case well outstrips the award by
the Scottish courts.
Perhaps only when we see hefty
worldwide financial and criminal
penalties enshrined in law will we
see any improvement in this area.
Until then we will all have to
continue to rely on ever more
sophisticated technological fixes
such as anti-spam software and
firewalls, and take the risk of
genuine emails being accidentally
filtered out. The greatest deterrent
however is probably the adverse
publicity of findings against UK
companies.
So how can your clients avoid
any adverse publicity – what are
the essential dos and don’ts?
Opt-in or opt-out
Provide the recipient with a (free)
way of refusing future
communications (i.e. tell the
recipient where they can write so
they can opt out), and never
conceal your identity.
When sending unsolicited
emails to individuals the recipient
should previously have consented
to receiving such communications
– this is known as the “opt-in”.
This “opt-in” rule can be
overcome where:
the sender has obtained an
individual’s contact details
through the course of a sale or
negotiation of a product or
service;
the unsolicited marketing
emails relate to the promotion of
a similar product or service; and
the individual has been given
the opportunity to refuse the use
of their email address for
marketing purposes. If the
individual did not refuse initially,
each subsequent email must also
give the recipient the opportunity
to refuse future marketing emails
(at no extra charge).
The crucial aspect of the
regulations, for email marketers, is
that where the “opt-in” rule
exception does not apply, the
recipient must have given his or
her prior consent to receiving the
email.
Prior consent can take many
forms and may include a
subscription, or ticking a box. The
regulations do not state that the
only method of consent is by
ticking a box: this is merely an
“appropriate method”.
So-called “opt-out” boxes are
something of a grey area and are a
very confusing element of the
regulations. According to the
Information Commissioner, optout boxes are not likely to indicate
consent unless their context
requires otherwise – a position
that is not helpful to those seeking
to use email marketing as one of
their tools. However, provided you
include a consent statement
within your data protection notice
or “fair processing” statement
accompanying your opt-out box,
this is likely to be regulationscompliant. So, for example, where
the “opt-out” box is accompanied
by a clear explanation, this may be
taken as an indication of an
individual’s consent.
The Information
Commissioner’s Office “Guidance
for marketers on the Privacy and
Electronic Communications (EC
Directive) Regulations 2003”
suggests: “By submitting this
registration form, you will be
indicating your consent to
receiving email marketing
messages from us unless you have
indicated an objection to receiving
such messages by ticking the
above box.” This may, of course,
reduce its effectiveness for the
marketer – but equally an opt-out
box tucked away in small print at
the foot of a page in French will
probably mean the recipient has
not consented to receiving future
marketing emails!
Happy e-marketing.
Valerie Surgenor is an associate
with MacRoberts, Glasgow
More on combating spam>
Please turn to p 44 of this issue for the
website review, “The spammed bite
back”
Professional practice Risk management
Drawing on his experience in private practice, Stuart Skelly
of Marsh illustrates some of the risks which arise for
practitioners in IP/IT work and observes that few if any
of these risks are exclusive to IP/IT
Riskreinvented
they might have of the legal process
involved in, say, buying a flat or house
for the first time. Add to this
complexity and strangeness the fact
that, by its nature, IP is intangible (and
the concepts therefore more difficult
for clients to “get a handle on”), and
the IP lawyer faces challenges which
are more pronounced than in certain
other areas of practice, in
communicating with clients.
IP/IT is one of the fastest evolving areas
of the law. The speed of development
of IP/IT law, fuelled by such factors as
globalisation, consolidation of media
companies, internet piracy and
responses to phenomena like YouTube
and MySpace, means that it remains
very much a specialist area. In most
respects, however, the relevant risk and
risk management issues are those that
arise in almost all areas of practice.
Managing the client
In my days in private practice, I noticed
that IP clients (as in many other areas
of practice) often fell into identifiable
categories in terms of the particular
risks associated with each. For example,
self employed authors of copyright
material were in my experience rarely
familiar with contracts. While this was
not in any way a fault on their part or
any criticism of them, it did mean that
they could have unrealistic ideas of
budgets and how long work (e.g.
drafting a publishing agreement)
would take. Designers of websites, on
the other hand, tended to be very
technically focused and did not always
give sufficient consideration to the legal
compliance of the sites they created, or
make allowance in project budgets for
“legalling” of the finished product.
For first time applicants for patents,
for example small inventors, or people
starting new businesses with a large IP
component, their appointment with
their IP lawyer might well be their first
exposure to legal work of any kind.
This could be a potentially confusing
experience for such a client, given the
complexity of this area of the law (one
new business startup might require
advice on issues as diverse as
patenting, passing off, registered trade
marks, copyright, databases and
designs, on both UK and European
levels, as well as data protection and ecommerce law), and one moreover of
which they probably have no
contextual knowledge – unlike the
experience and general knowledge
Risk management point: As with all
clients, expectations as regards timescales,
fees and the work involved need to be
managed from the outset and any
misunderstandings identified before they
escalate into dissatisfaction and potential
complaints. These are issues which should
be addressed from the client/transaction
vetting stage onwards, and covered when
scoping the instruction with the client as
part of the terms of engagement
adjustment process prior to starting
the work.
Clients’ responsibilities
As with all practitioners, IP solicitors
can use terms of engagement to clarify
clients’ obligations in the engagement,
as well as their own. For example, when
reviewing software licences the IP
lawyer must be careful to flag up to
their licensee clients the importance of
the clients describing in as much detail
as possible the performance standards
required of the system in the
specification included in the licence
agreement. It is a standard feature of
such agreements for the licensor (the
software developer) to seek to exclude
from the licensor’s indemnity any
standard of merchantability,
satisfactoriness or system performance
(e.g. average downtime, response times
etc) not stated in the specification.
The fitness of a software package for
a particular client’s purposes is not
something which any solicitor can
warrant, so practitioners need to make
clear to the licensee that it is the
licensee’s responsibility to ensure that
everything they want the system to be
capable of is contained within the
specification and that this is something
the licensee will have to satisfy
themselves on.
Risk management point: Such advice
setting out the client’s responsibilities
regarding the drafting of the specification
might be included on a checklist of relevant
points as a prompt to the solicitor when
acting for licensees of software. The advice
to the client should be recorded in writing
on the file either in the form of a letter or a
full attendance note.
Critical dates
Although critical dates may not feature
as heavily in IP/IT work as they do in,
for instance, litigation, they do arise in
relation to assignations of trade marks
(and patents). Clients, and their
solicitors, sometimes forget that once
an assignation of such IP has been
signed (by statute it has to be in
writing) by the grantor, it must then be
sent to the Trade Marks Registry (part
of the UK Intellectual Property Office –
UKIPO) for recording. If this is not
done within six months of the date of
transfer, certain important remedies for
infringement of the IP are not available
to the assignee in respect of prerecording infringements. Also, if an
assignation is not registered then it will
be void against an assignee in good
faith under a later assignation. For both
of these reasons it is in the assignee’s
interest to arrange registration of the
assignation document as soon as
possible after the date of signing, and
in any event no more than six months
thereafter.
Risk management point: As always,
critical dates need to be identified correctly,
verified and diarised effectively with
countdown warnings as appropriate.
Drafting
As with other areas of practice, use of
templates in drafting IP/IT
documentation is commonplace,
requiring the usual controls over the
hazards which this can entail (e.g. out
of date, inaccurate, unapproved or
incomplete styles).
On a risk assessed basis, certain
provisions in particular may well justify
being checked by a second pair of eyes,
to help ensure that the proposed
wording gives accurate effect to the
client’s instructions. In the context of
IP/IT for example, when drafting
licences of patents of scientific
techniques and inventions (often
created by university academics),
particular care needs to be taken over
the definition of the income stream on
which royalties will be calculated, and
the specification of the field of use of
the licensed technology being
authorised by the licensor.
Instructions may sometimes be
difficult to translate from academic,
scientific language, and the IP lawyer
must also be aware that academic
clients may be as unfamiliar with the
terminology of IP law as the solicitor is
with the client’s technical terms.
Avoid the known traps
All areas of practice have their own
particular snares, and IP/IT is no
exception. Two of the potential pitfalls
for the IP practitioner are the
provisions in the Patents Act 1977 and
the Trade Marks Act 1994 which create
the delict of issuing groundless threats
of enforcement action for the
infringement of patents and registered
marks. This means that, amongst other
necessary considerations, practitioners
instructed in contentious patent or
trade mark matters, acting for the
alleged owner of the IP, need to check
that the relevant patent or trade mark is
in fact registered in the name of their
client before issuing any cease and
desist letters containing threats of
proceedings.
Risk management point: It is generally
accepted that the safest course when
issuing such letters is not to mention any
threat of court action, but rather just to
indicate that the IP is registered (giving
the registration number) and that your
client is the registered proprietor.
Post-completion issues
As in many areas of practice, it is
important for practitioners in IP/IT to
be clear that the allocation of any postcompletion responsibilities, including
those involving critical dates, has been
agreed with the client. For example,
once a trade mark has been registered,
it stays on the register for 10 years.
Thereafter, if the mark owner wishes to
keep the mark, the owner must apply
to have it renewed at 10-yearly
intervals. These issues can pose a risk
(of an argument, if not a claim) to
firms which have not adequately
specified, or excluded, any ongoing
commitment they may have to IP
clients after the initial engagement has
been concluded.
Risk management point: If a law firm
has assisted the mark owner in its
Critical dates... arise in
relation to assignations of
trade marks (and patents)
application, one possible approach to
future critical dates is for the firm’s signoff letter to the client at the end of the
registration process to advise the client of
these time periods and make clear
whether the firm will diarise the renewal
date with countdown reminders, and will
be contacting the client nearer to the time
or asking the client if they want the firm
to instruct the renewal on their behalf.
Training
Back to where we started, like many
areas of practice IP/IT is not an area
suitable for the inexperienced without
close supervision. Even for experienced
practitioners, firms need to be
particularly alert to how fee earners are
staying abreast of developments. The
complexity and the frequently
transnational nature of IP/IT work
mean that it is an area where the risks
that arise from applying out-of-date
thinking are particularly acute.
Risk management point: Firms’
training and development plans in this
area will necessarily address the need to
keep up to date with developments on an
ongoing, day-to-day basis.
Stuart Skelly and Marsh
Stuart Skelly is a former solicitor in private practice who works in the
FinPro (Financial and Professional Risks) National Practice at Marsh, the
world’s leading risk and insurance services firm. To contact Stuart, email:
[email protected] .
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.
Professional briefing Civil court
Sheriff Lindsay Foulis’ latest civil court roundup
looks at points arising from service on a party’s
solicitors, diligence on the dependence and
certification of experts, among others
Technical
but essential
Citation through agents
may be weakened when defences are
In Comhairle Nan Eilean Siar v Collins
lodged. Lord Emslie considered that
2007 GWD 11-203, one of the issues
before a defence weakened the claim
considered in an appeal against the
sufficiently that it was no longer
refusal of a reponing note was
appropriate for the diligence on the
whether there had actually been
dependence to remain in force, the
proper citation of the defender. The
defence had to be sufficiently
initial writ had been served by
substantial that it weakened the
recorded delivery to his solicitor’s
prima facie claim. This was a question
place of business. These solicitors had
of fact and degree, and vouching and
been authorised to accept service.
documentary evidence could be
Notwithstanding this, no docquet of
considered for that purpose.
acceptance of service was endorsed on
the principal initial writ. Accordingly
Summary decree
there had been no proper service
In Slessor v Vetco Gray UK Ltd [2007]
upon the defender. The endorsation
CSOH 59 the decision of Lady Paton
of such a docquet by the
represents an example of a
solicitors was essential if
motion for summary
Lord Glennie
service was accepted by
decree not being used to
solicitors on behalf of their decided that
deliver a knockout blow,
if a person had but rather to dispose of
client. The purported
been refused
service did not conform to
issues that had no prospect
to be allowed
the terms of s 3 of the
of success. The motion was
to be a
Citation Amendment
successful, thus restricting
(Scotland) Act 1882, which witness, it was issues to contributory
impossible
required citation at a
negligence, potential third
for the court
defender’s place of
party liability, and
to certify that
residence or business. This
quantum. This selective
person as an
point may appear
approach is sometimes
expert witness forgotten.
technical, but these
technical matters can on
occasion result in decrees
Remit to the sheriff court
in absence being refused, or if
In R v Highland Council [2007] CSOH
granted, subject to being reponed,
51; 2007 GWD 9-158 Lord Uist
causing much frustration of agents
refused a motion to remit an action
and parties!
for reparation to the sheriff court. The
action involved novel and difficult
Diligence on the dependence
questions of law, including those
In F G Hawkes (Western) Ltd v Szipt
relating to the public and common
Ltd [2007] CSOH 57, the issue was
law duties incumbent on the
whether diligence executed on the
defenders, the retrospective operation
dependence could remain in force in
of the Human Rights Act 1998, and
light of the defence lodged. A good
the defenders’ duties in respect of the
arguable case as disclosed in a writ
pursuer’s practice of religion. The
Update
Since the last article
Strain v Premier
Custodial Group Ltd
(March article) has
been reported at
2007 SLT 262,
Beriston Ltd v
Dumbarton Motor
Boat and Sailing
Club (March) at
2007 SLT 227,
Peacock Group plc v
Railston Ltd (March)
at 2007 SLT 269, S v
D (September 2006,
as Surowiak v
Dennechy) at 2007
SLT (Sh Ct) 37, and
McFarlane v Scottish
Borders Council
(September 2006) at
2007 SCLR 143.
reason for the motion appeared to be
at least in part that legal aid had not
been granted for proceedings in the
Court of Session but rather in the
sheriff court. Lord Uist refused the
motion. In light of the issues raised
the Court of Session was clearly the
appropriate forum. Entitlement to
legal aid and a party’s personal
circumstances were not factors to be
considered under the phrase “nature
of the action” in s 14 of the Law
Reform (Miscellaneous Provisions)
(Scotland) Act 1985.
Lord Uist observed that the
decision of the Scottish Legal Aid
Board seemed somewhat perverse
when the issues raised were clearly
novel and complex. Would I be
mistaken in imagining that the
Board’s decision here suggests that
there are certain formulae which are
slavishly followed when applications
for legal aid are considered? If the
formula is satisfied, legal aid is
granted; if not…!
Appeals in family cases
Really as a postscript to an appeal in
respect of inter alia residence and
contact, the Inner House reiterated in
Stewart v Stewart, 23 March 2007 that
in most cases more was achieved by
lodging a minute for variation of an
order than appealing a decision on
these issues.
Don’t miss
these
essential
briefings
Civil court:
Roundup
38
Family: Pension
sharing tips on
divorce
40
Brian Dempsey’s monthly survey
of consultations that might be of
interest to practitioners
… the point
is to change it
Pension tax relief
The government is acting to try to
ensure that tax-free pensions
savings are not in fact used as
savings schemes: “the clear
purpose of tax privileged pension
savings is to produce an income in
retirement and is not a mechanism
to accumulate tax relieved capital
that can be passed down on
death”. As a result the
government is changing
something called the “alternatively
secured pensions”, which all
sounds very complicated.
Employment:
The Gibbons
Review
41
EU: Prospects for
class actions
42
Certification of experts
The decision of Lord Glennie in
O’Donnell v MacLean [2007] CSOH
62 is a sequel to an earlier decision
in which his Lordship refused to
allow a late list of witnesses insofar
as it related to certain expert
witnesses of the pursuer. The subject
matter of the present motion was
one seeking certification of certain
persons as experts, including the
experts detailed on the notice which
was not allowed to be lodged late.
Lord Glennie decided that if a
person had been refused to be
allowed to be a witness, it was
impossible for the court to certify
that person as an expert witness. The
present situation was quite different
from one in which an expert witness
was not called to give evidence for
whatever reason. The fact that the
expert in question might have been
of assistance to the party seeking
certification was irrelevant. The issue
was whether it was reasonable to
instruct the person as an expert
witness.
In Grant v Grant, 13 March 2007
Sheriff Pyle observed when dealing
with a motion for uplift that the
purpose of the motion was to reward
solicitors for special responsibilities
imposed on that person in the
conduct of the litigation.
The usual caveat applies.
Discipline Tribunal
43
Website review:
Action against the
spammers
44
See “Current consultations” at
www.hmrc.gov.uk/consultations/index.htm .
Asylum experience
The Independent Asylum
Commission is looking for evidence
about the experience of asylum
seekers in the UK. Views are
particularly welcome from Scotland
as the experience may be, to some
degree, different, at least from that
in London and south east England.
Respond by 13 June.
Easier waste regulation?
SEPA and the Executive want views
from industry on making waste
regulation simpler and more
streamlined.
Respond by 22 June to Gary Gray, Area
1-J Victoria Quay, Edinburgh EH6 6QQ or
To submit evidence or find out more see
[email protected] .
www.independentasylum
Book review:
Civil Jury Trials
45
commission.org.uk .
Respond by 1 November.
English civil courts
The Department of Constitutional
Affairs is running several
consultations on various aspects of
civil business in England and Wales.
These might be worth a look for a
number of reasons, including any
cross-jurisdictional problems and
pinching any good ideas they have
for use here. Perhaps the most
interesting is on “Civil Court Fees”
which closes on 25 June, but there
are others including fast track trial
costs, and personal injury claims.
Planning
Following the Planning etc (Scotland)
Act 2006, the Executive is open to
views on a “performance assessment
framework” for land use planning.
Respond by 22 June to Rosie Leven,
Planning Division SEDD, Area 2-H Victoria
Quay, Edinburgh EH6 6QQ or
[email protected] .
Public inquiries
A reminder that the consultation on
the conduct and procedures of
public inquiries noted last month is
open until 15 June.
See the document at
See links at www.dca.gov.uk/
consult/confr.htm .
www.scotland.gov.uk/Resource/Doc/
170166/0047518.pdf .
Professional briefing Family
Pension sharing
tips on divorce
Points to bear in mind to help prevent problems in trying
to enforce a pension sharing order
The prospect of gaining a pension
sharing order which is not capable of
implementation is a family law
practitioner’s worst nightmare, and I
am sure I am not alone in being manic
about checking and double checking
every possibility before finalising an
agreement or minute for decree.
Retaining a compendium of pension
sharing tips within easy reach of all
family law practitioners is highly
recommended.
We have now been living with the
principle of pension sharing since the
Welfare Reform and Pensions Act 1999
came into force on 1 December 2000.
Rectification, or remedial steps, are
often not possible. The 1999 Act
simplified matters for solicitors in
establishing that the cash equivalent
transfer value within 12 months of the
date of separation would provide a
valuation figure upon which to base a
pension share, using a prescribed
formula in order to derive the relevant
date valuation. As a decree of divorce,
or qualifying agreement, is providing
for an entitlement which occurs in the
future, practitioners have to be certain
that it will be capable of
implementation.
Things you need to know
When seeking to establish what
information is required with a view to
obtaining a pension sharing order, or
qualifying agreement, a number of
questions require to be asked of the
scheme. These are not exhaustive:
Ask whether the non-member
can remain in the scheme, at
an early stage in your
enquiries. If there is an
option to transfer out of
the scheme, establish
this also. If there is a
choice, your client
needs suitable expert
advice, or at least advice
that it should be
obtained.
Many schemes
will consider
your court
order/
qualifying
agreement
unenforceable
in the event
that it includes
interest
Establish whether the normal
retirement date would apply to the
recipient of the pension credit. This
becomes even more important when
dealing with schemes where early
retirement is an option, such as police
and army service schemes. Do not
assume that the recipient of a pension
credit will be able to take the pension
at the same time as the pensioner. The
chances are that the recipient will
require to wait until they are 65.
Establish what charges the trustee
will make, and whether these require
to be paid up front.
Establish, at the outset, whether the
scheme is willing to accept a pension
sharing order which attracts interest,
or a qualifying agreement which
provides for interest. Many schemes
will consider your court
order/qualifying agreement
unenforceable in the event that it
includes interest. Such schemes do
not accept that an order has sufficient
clarity if they require to calculate the
sum to be debited/credited if interest
is to be paid. Practitioners should
think about making separate
provision for interest to accrue as an
independent capital payment payable
directly from the pensioner.
Be aware that many civil service,
public service and private pension
schemes now insist on completion of
their own internal forms. These usually
require the signature of the pensioner,
and the birth certificates of both
parties. Although the forms replicate
exactly the same information normally
provided in a qualifying
agreement, schemes can be
belligerent in refusing to
implement the pension
share until the forms
are completed. Once
decree of divorce has
been granted, the
prospect of recovering a
transferor’s signature in
order to implement the
pension share is not always practical.
On occasions, practitioners have to
insist that implementation proceed
without completion of these internal
forms, and be certain of their client’s
right to do so. Ideally, however,
practitioners would wish to avoid
reaching an impasse, and it is always
prudent to ascertain whether there is a
form to be signed before a court order
is granted, or qualifying agreement
signed.
If you cannot get a detailed
response from the trustees of the
scheme, you should nominate a
specialist pension adviser to recover
and interpret the rules and
regulations pertaining to that
particular scheme, so as to eliminate
the possibility that something will
prevent implementation.
And remember…
Intimation of a pension sharing order
must be made within two months
from the date of extract of decree of
divorce. It is not, as some claim, from
the date of decree. If in doubt, read s 28
of the 1999 Act.
Do not underestimate the value of a
State Earnings Related Pension share.
Have your client complete a form BR20
at an early stage, and ask for a similar
state pension forecast from your
opposition. Take the difference in value
into account, on an offset basis, if there
is no state pension sharing
order/agreement.
Do not forget that if you are
attempting to incorporate a fallback
provision in a pension sharing clause,
always be aware that unless the
pension scheme is party to the contract
it is not competent to impose an
obligation on the pension trustees.
Unless it is something the pensioner
can implement, it is a meaningless
obligation.
Fiona Sasan, Morton Fraser Family Law
Team
Professional briefing Employment
What are the prospects for the Gibbons report being able
to simplify employment dispute resolution procedures?
In pursuit of simplicity
Gibbons
Review:
how to find it
Links to both the
terms of reference
and the report of the
Gibbons Review can
be found on the
DTI website at
www.dti.gov.uk/
employment/
Resolving_disputes/
gibbons.review/
index.html
They were supposed to make our lives
and those of our clients so much more
straightforward – “It’s as simple as 1-23”, said the DTI literature. They were
also intended to bring about early
resolution of workplace disputes
without resort to the employment
tribunal. Instead, hardly a week goes by
without an employment tribunal or
employment appeal tribunal decision
on the interpretation of the legislation.
What can I be talking about? What else
but the statutory minimum dispute
resolution procedures.
Introduced via the Employment Act
2002 and the Employment Act 2002
(Dispute Resolution) Regulations
2004, practitioners agree that the
intention behind the procedures was
sound. However, the number one
recommendation from the Michael
Gibbons review report “Better Dispute
Resolution” echoes what the majority
of us have been saying for some time:
“Repeal the statutory dispute resolution
procedures set out in the Dispute
Resolution Regulations.”
What went wrong
Gibbons suggests that parties have
tended to focus on getting the
procedures right – for fear of being
barred from proceedings or being
punished by uplifts in compensation –
and have lost sight of what should be
the ultimate goal: resolution of the
problem. The procedures were also felt
to be counter-productive in some
organisations because, as soon as
something had to be put in writing,
this formalised issues which previously
could have been resolved “over a pint
in the pub”.
The report therefore recommends a
switch in focus which will see the
production of new, simple (where have
we heard that before?!), nonprescriptive guidelines on grievances,
discipline and dismissal. Employers
will then be challenged to commit to
early dispute resolution through greater
use of in-house mediation in particular.
Failure to behave reasonably in
attempting to resolve the dispute will
then be taken into account should the
matter end up in tribunal.
Multiple-claimant cases are
identified as an area where potential
savings can be made, in terms of
tribunal time and both government
and party money. Tribunals are to be
encouraged to engage in active, early
case management. There will also be a
review both of the circumstances in
which tribunal chairmen can sit alone,
and whether tribunals have
appropriate powers to deal with weak
and vexatious claims.
New forms of help
Having considered how to support
employers and employees to resolve
more disputes internally, the report
goes on to recommend that more
active assistance should be given
where an internal solution has not
been reached. A new, simple (that
word again!) process is mooted for
claims involving pure monetary
disputes over the likes of wages,
Too much to ask
redundancy or holiday pay. These
The most wide-ranging of all 17 of Mr
would be determined without the
Gibbons’ recommendations is no 11,
need for a hearing.
which begins: “Simplify employment
A helpline is then suggested as a way
law…” It is perhaps telling that while
of providing claimants and
all the other points made above
respondents with quality advice on the
translate into questions in the DTI
realities of tribunal claims and the
consultation process triggered as a
potential for alternative
result of the Gibbons report,
dispute resolution. Gibbons Employers
the question not asked is:
recommends that claimants will then be
“Should employment law
challenged
would access the tribunal
be simplified?” Speculating
to commit to
application process via this
on the reasons for the
helpline, and that a free early early dispute
omission is only likely to
resolution
dispute resolution service,
lead to the conclusion that
through greater it is because the answer is so
including mediation where
appropriate, should be made use of in-house
obviously “yes”, and an
mediation in
available prior to a claim
answer to the
being lodged if a situation is particular
supplementary question as
likely to benefit from it.
to how this could be
Perhaps pointedly, the suggestion is
achieved is more likely to prove elusive.
made that the government should pilot
The consultation process on the
any such approach. This new vision
other aspects of the Gibbons report is
would also result in the abolition of the
open until 20 June 2007 and can be
fixed periods of Acas conciliation
accessed here: www.dti.gov.uk/
which were introduced at the same
consultations/page38508.html .
time as the dispute resolution
Although it does not deal with the
procedures.
overall simplification of employment
law, practitioners will welcome the
And the tribunals?
opportunity to shape the future of the
Finally, the Gibbons report moves onto
employment tribunal system and the
the employment tribunal system itself,
accompanying dispute resolution
which it is said should be made – yes,
procedures. While “simplicity” is a big
you’ve guessed – “simpler”, but also
ask, the valuable contribution of those
“cheaper” for users and the
with practical knowledge of the current
government. This would be achieved,
systems will go a long way to help
in part, through streamlining the claim
achieve this ultimate aim.
and response process, removing
Jane Fraser, Head of Employment,
unnecessary and legalistic detail, and
Pensions and Benefits, Maclay Murray
also by unifying time limits and the
& Spens
grounds for their extension.
Professional briefing EU
The European Commission is actively pursuing
plans to facilitate court actions by collective groups
First in the class
Considerable column inches have been
devoted recently to the subject of “class
actions” in the UK and the rest of
Europe, and to moves by the European
Commission to support or facilitate
them. While governments and the
Commission mull over potential
changes to legislation, changes in
practice continue to take place in
various legal markets.
Bulgaria’s new Commissioner
Meglena Kuneva took office at the turn
of the year and soon afterwards
announced her intention to look at the
area of collective redress for consumers.
The Commission does not want,
however, to fuel claims that it is seeking
to import a US-style litigation culture
to Europe. It has been careful in its
language, referring to representative or
collective actions, and careful to draw
the distinction between these and class
actions. In short, the former involves a
representative body bringing an action
on behalf of those harmed, whereas
the latter involves a named claimant
bringing an action on behalf of the
class to which they belong and which is
certified by a court.
Similar caution has been shown by
the Commission in the area of
competition law, where a 2005 green
paper on damages actions discussed
the possibility of collective actions. At
the time of writing, the European
Parliament was about to vote on its
response to this initiative. The
perception that only lawyers “in their
Learjets” benefit from moves to
facilitate such actions is not
uncommon. Indeed, in many cases the
loss to individual consumers might not
be significant, but it is still a loss that
deserves compensation.
Parallel developments
Over the next year or so, the
Commission departments working on
consumer and competition law issues
should develop a more coherent
approach. At the moment, those
working on consumer matters are
playing catchup, having just
commissioned a detailed study to look
at collective redress across Europe. It is
hoped that sufficient preliminary
results will be available before the end
of the year to feed into the
Commission’s follow-up white paper
on damages actions for antitrust
violations, which will set down the
Commission’s future plans for action.
Almost in parallel in the UK, the
Office of Fair Trading recently
published its own consultation
entitled “Private actions in
competition law: effective redress for
consumers and business”. The results
will inform the UK input to the
Commission white paper. It talks of
making changes in the UK to facilitate
more private competition law actions,
including representative actions, in
order to create a “compliance culture”
rather than a litigation one. Last year,
the Department of Trade and Industry
(DTI) also consulted on
representative actions in the
consumer protection field, but we are
still waiting for its follow-up.
And of course, discussion of class
actions has not been absent in
Scotland. The Scottish Law
Commission made recommendations
in 1996 and again in 2003; and the
Scottish Consumer Council made the
case, notably in a 2003 report on a class
action procedure. So far these have
been to little effect, but it remains to be
seen whether the review by Lord Justice
Clerk Gill will have any impact on this
aspect of access to justice. While the
practice of bringing test cases in
Scotland may be seen as an alternative
to collective actions, European
legislation will undoubtedly provide
for increased use of representative
actions.
The pace of change
One also has to wonder whether
Europe’s legislators can keep up with
developments in various jurisdictions.
The situation varies between
countries. In Sweden, the Group
Proceedings Act entered into force in
2003, making it possible to bring a
private individual class action as well
as organisation actions and public
actions, while in France proposals are
The
Commission
does not want,
however, to fuel
claims that it
is seeking to
import a USstyle litigation
culture to
Europe. It has
been careful
in its language
on the table for a law on recours
collectif to protect consumers.
In other jurisdictions, courts and
lawyers are making the running. Only
recently in Germany a Düsseldorf court
broke new ground in German antitrust class action procedure by allowing
a Belgian company – Cartel Damages
Claims – to pursue a claim on behalf of
29 aggrieved customers of cement
companies involved in a cartel.
One of America’s leading litigators
has recently established a London
office and is apparently eyeing possible
UK collective actions based on cases
already underway in the US. English
firms have put adverts in local papers
seeking claimants to join an action for
damages in relation to the replica
football shirts price-fixing cartel. New
forms of “litigation funding” are also
emerging, with third parties such as
banks or hedge funds giving their
financial backing to claims in return for
a share of the damages.
For the moment in Brussels, it is a
matter of watching this space, but the
practice of taking collective actions is
clearly developing throughout Europe.
Only time will tell whether the courts
and public authorities can keep up
with developments and guard against
the type of excessive litigation
witnessed in the US.
Andrew Laidlaw, Internal Market Policy
Executive, Law Society Brussels Office, and
Jamie McDonald, trainee on secondment
from Shepherd and Wedderburn LLP
Professional briefing Discipline Tribunal
This month’s cases deal with embezzlement of clients’ funds,
failure to respond to the Society and misleading a client
Scottish Solicitors
Discipline Tribunal
Audrey Perella
A complaint was made by the
Council of the Law Society of
Scotland against Audrey Perella,
solicitor, formerly of 9 Strathmore
House, Princes Square, East Kilbride,
Glasgow and now at 4 Ardencaple
Drive, Helensburgh (“the
respondent”). The Tribunal found
the respondent guilty of
professional misconduct in respect
of her embezzlement of clients’
funds and her breach of rule 4 of the
Solicitors (Scotland) Accounts Rules
1997. The Tribunal ordered that the
name of the respondent be struck
off the Roll of Solicitors in Scotland.
The respondent did not appear
and was not represented at the
Tribunal. The Tribunal heard the
evidence of a witness for the
complainers and was referred to
various documentation. It was clear
from the evidence that the
respondent had breached the
Accounts Rules and had embezzled
£25,546.74 of clients’ money. The
Tribunal found the respondent’s
conduct in embezzling money from
clients a complete breach of trust.
The respondent’s conduct was
disgraceful and dishonourable and
brings the legal profession into
disrepute. The Tribunal had no
hesitation in striking the
respondent’s name from the Roll of
Solicitors. The Tribunal ordered that
publicity be deferred until after the
conclusion of any criminal
proceedings against the respondent
so as to avoid prejudice to any such
criminal proceedings.
Michael Gerald Rourke
A complaint was made by the
Council of the Law Society of
Scotland against Michael Gerald
Rourke of Messrs Robert Thomas &
by advising him that he was seeking
Caplan, Solicitors, 365 Victoria
information from other hospitals
Road, Glasgow (“the respondent”).
when he was in fact making no such
The Tribunal found the respondent
enquiries, and his continuing to
guilty of professional misconduct in
make no such enquiries up to the
respect of his failure to respond
conclusion of the proceedings on 30
timeously, openly and accurately to
January 2003; his failure between 12
the reasonable enquiries made of
May 1999 and 30 January 2003 in
him by the Society. The Tribunal
his representation of his client by
censured the respondent.
his failure to keep his client
The Tribunal considered that this
adequately informed of the progress
was a very unfortunate case and
of his court action, and his agreeing
wondered if it was really necessary
to the court action against Argyll &
for the matter to have been brought
Clyde Health Board being dismissed
to the Tribunal. The Tribunal
and the defenders assoilized
has however stated on
with expenses against his
numerous occasions
client without his client’s
that failure to respond
knowledge or
ses
For findings on ca
to the Society hampers
instructions; and his
95
decided since 19
them in the
failure between 4 March
l’s
visit the Tribuna
performance of their
2005 and 7 October
website at
statutory duty and
2005 to respond to the
k
www.ssdt.org.u
amounts to professional
reasonable enquiries of
misconduct. In this case
the Society or comply with
the respondent accepted that
the notices served upon him.
his failure to respond was not
The Tribunal censured the
inadvertent and there were a
respondent.
number of letters which he ignored.
The Tribunal noted that the
The Tribunal considered there was
matters in this complaint arose
no alternative but to find the
during the same timescale as those
respondent guilty of professional
which had already been dealt with
misconduct. The Tribunal
by the Tribunal in November 2005.
considered that this matter fell at
The Tribunal were concerned that
the lower end of the scale of
the respondent had not kept his
professional misconduct and that a
client informed and not dealt
censure was more than sufficient
properly with the court action on
penalty.
his behalf. He had also failed to
respond to the Society, which brings
Mark John Stalker
the profession into disrepute. The
A complaint was made by the Law
Tribunal however noted that the
Society of Scotland against Mark
public was already protected by the
John Stalker, solicitor, Flat 1C
five year aggregate restriction
Nicolson Court, 36 Nicolson Street,
imposed by the Tribunal in
Greenock (“the respondent”). The
November 2005 and the Tribunal
Tribunal found the respondent
saw no purpose in extending this
guilty of professional misconduct in
restriction or imposing any penalty
respect of his misleading his client
other than a censure.
fyi
Professional briefing Web review
Websites set up by those who have taken court action
against senders of unwanted emails are worth a look
The spammed bite back
Although I have only recently (Journal,
November 2006) covered the topic of
spam (or junk) email, it’s time for an
update.
Scotching spam
Although I did make mention of the
Privacy and Electronic
Communications (EC Directive)
Regulations 2003 in the last review, the
only route for redress I outlined to you
was a complaint to the Advertising
Standards Authority – an option
described by one anti-spam activist as
“a waste of time for everyone involved”
(Nick Brooke of etyries.com).
While the relevant enforcement
agencies from the US, the UK and
Australia have entered into a
memorandum of understanding
(http://digbig.com/4srnc), I will not be
holding my breath in anticipation of
an immediate cessation of unsolicited
email. However, I have discovered that
there is another option available to the
recipient of European spam email to a
personal (not business) email address:
litigation!
The United States of America has
had its imaginatively titled CAN-SPAM
(Controlling the Assault of NonSolicited Pornography and Marketing)
Act (sic) of 2003 for a while now. Who
said President “Dubya” was all bad?
This has allowed various internet
service providers to take lawsuits
against spammers who use their email
services. See, for some examples of
cases, Yahoo!’s “spam and the law
pages” (http://antispam.yahoo.com/
spamandthelaw) and AOL’s equivalent
(http://legal.web.aol.com/decisions/
dljunk). Microsoft apparently has an
anti-spam litigation team which
numbers 65 or more.
Okay, but if you are neither an
internet service provider, nor based in
America, what is there to be done?
Direct Marketing Association
www.dmaconsumers.org/emps.html
The Direct Marketing Association (or
DMA) operates the mail preference
service http://mpsonline.org.uk/mpsr
and the telephone preference service
http://mpsonline.org.uk/tps. I have
registered for both of these, and it
does indeed dramatically reduce the
volume of junk mail and cold calling I
receive. It may be worth registering
with the equivalent email service to be
found at this website. However, since
most spam is from organisations
which (a) are not members of the
DMA, and (b) do not care about
“washing” their lists of email
addresses by removing registered
consumers, a dramatic reduction in
unwanted email is unlikely.
Scotch Spam
www.scotchspam.org
Gordon Dick, who evidently resides
somewhere within the jurisdiction of
Edinburgh Sheriff Court, takes a much
more direct approach. Direct to the
small claims desk of his local sheriff
court, that is. So annoyed was Mr Dick
with the unsolicited commercial email
he received from Transcom Internet
Services, he threatened and then took
legal action. Claiming a grand total of
£750 in damages for the inconvenience
and suffering of receiving a spam
email, Mr Dick details on his website
the exact process he went through in
finally getting and extracting a decree
for that amount, plus expenses for a
party litigant on the summary cause
scale. The website also has details of
claims which the author and others
have settled out of court. It’s (almost)
enough to make you want to turn off
your spam filter.
The website itself is well put together
and does not overload you with
information. In the grand tradition of
consumer or voluntary websites of
recent years which have offered
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
assistance in claiming for unlawful
bank charges (e.g.
www.bankcharges.info), the
Scotchspam website gives you free
sample letters to use, hints and
strategies and even suggested wording
for a small claim action.
NB – as of 24 April 2007, no
payment had been received by Mr Dick
from the spammers, despite a call from
a debt recovery company.
Spam Legal Action
http://spamlegalaction.pbwiki.com
This website is the England & Wales
equivalent of Scotchspam, but not
quite as good. It is set up by a Nigel
Roberts, who settled an anti-spam
claim in the English courts for £300.
Again, there are copies of all the
relevant documents (including the
cheque he received). This would be the
website to check if you were suing in
England or Wales. It also has a useful
set of links to other websites on a
similar theme.
The wiki format employed by the
site is all very now, very Web 2.0 – but
despite considerable media interest in
Mr Roberts’ case, there don’t seem to be
many people contributing to the site at
present. Also, the layout isn’t as clear as
it could be, there are some important
links broken and the navigation
options are only available from the
front page. Which is plain annoying.
Like spam.
Legal notice
SPAM is a registered trademark of
Hornel Foods Corporation. Use lowercase letters to indicate the electronic
junk mail instead.
Professional briefing Book review
Civil Jury Trials
2nd edition
Andrew M Hajducki QC
PUBLISHER: AVIZANDUM
ISBN: 1 904 96800 9
PRICE: £65
Suggestions
for future
books
Please send to: Alistair
Bonnington, The Law
School, The Stair
Building, University of
Glasgow, G12 8QQ
e: alistair.
bonnington@
bbc.co.uk
For generations lawyers have been
fascinated and somewhat mystified by
juries and how they work. Recent
research in New South Wales reported
that a significant proportion of jurors,
interviewed immediately after they
had delivered their verdicts, were
confused and uncertain about the
decisions just reached. But the
institution has always had its
distinguished supporters. Lord
President Cooper once remarked that
the occasional civil jury trial
introduced “a light relief into the
weary existence of the practitioner and
on that account enjoys a measure of
popularity in Parliament House”
(Selected Papers (1956), 70).
As Andrew Hajducki QC explains
in the second edition of this
excellent book, the popularity of
civil juries in the Court of Session
has waxed and waned over time. In
1815 the Jury Trials (Scotland) Act
created, for an experimental period
of seven years only, a separate Jury
Court in Scotland, independent of
the Court of Session. The institution
took root and, as Mr Hajducki sets
out in an interesting account of its
history, it survived examination by a
series of Royal (and other)
Commissions in the 19th and 20th
centuries. The 1950s and 1960s
were, Mr Hajducki suggests, perhaps
their golden age and there followed
a slow and seemingly inexorable
decline. In 1982 (for the first year
since 1816, excluding wartime) not a
single jury trial took place in the
Court of Session. A consultation
paper from Scottish Courts
Administration in 1988 asked
whether the coup de grace should be
administered, but the response was
largely in favour of retention and the
Court of Session Act 1988 preserved
the statutory basis.
Then in the 1990s civil juries started
to regain some measure of popularity.
Practitioners perhaps began to
appreciate again the potential for
generous awards of damages by juries
in certain types of cases; and the view
that a weak case might be better
brought before a jury than a judge
attracted some support. The old
authorities on “special cause” for
withholding a case from a jury had to
be dusted down. There was also an
increasing tendency for jury awards to
be reported. More publicity ensued
with a defamation action involving a
priest, the inevitable (unsuccessful)
challenge to the institution under the
European Convention on Human
Rights, and some surprisingly low
awards. All of these fluctuations in the
fortunes of the civil jury trial are
carefully charted by Mr Hajducki in
his introductory section.
What Mr Hajducki could not have
anticipated, however, since he has
sought to state the law and relevant
practice at March 2006, was the
intense glare of publicity that would
beam down on a civil jury trial fought
out over several weeks of that summer
between Tommy Sheridan MSP and
the News of the World. With every seat
taken (and long queues outside), the
tension and excitement shattered the
tranquillity of the summer vacation in
Parliament House as one dramatic day
followed another. This crackling
cocktail of sex and politics was
somewhat more high octane than the
“light relief” mentioned by Lord
Cooper. The drama may not be over
yet as the newspaper has enrolled a
motion for a new trial.
The new edition of this book is
extremely comprehensive and sets out
admirably everything that the
practitioner needs to know about the
law and practice governing the
conduct of a case that goes to a jury
trial in the Court of Session. But the
book is far more than a dry exposition
of the law; for a legal textbook it is
unusually interesting and
entertaining. In addition to providing
a historical context, the author surveys
experience in other countries, puts
forward arguments for and against
jury trials and includes advice about
advocacy and many other practical
tips. There are styles for issues and
notes of exceptions and an example of
an opening speech for the pursuer. An
appendix records recent jury awards.
There are even two lines of verse on
the Jury Court quoted from a 19th
century contributor.
To cap it all, Mr Hajducki has
established a free open-access online
noter-up, and invites readers to
contribute or comment on any new
developments affecting his subject
(see www.civiljurytrials.com).
The whole thing is, in the opinion
of this reviewer, a tour de force. It will
be of interest not just to Court of
Session practitioners, but to anyone
with an interest in the history of
Scots law.
Paul Cullen QC
In-house Commitee roadshow
ILG committee members have been gathering views
from members around the country as to how the Group
can enhance its services
Ontheroad
The In-house Lawyers Group (ILG)
committee took to the road earlier this
year to meet its members as part of a
wider review of the services the Society
offers them.
The series of informal discussion
forums in Newtown St Boswells,
Dundee, Aberdeen, Motherwell,
Inverness and Glasgow were well
attended and gave members from
across the country the opportunity to
air their views on the committee’s
work, raise concerns and make
suggestions on how to meet the
ongoing and future needs of in-house
lawyers in Scotland.
The committee has pledged to
increase the number of information
and training seminars the ILG offers,
and last year introduced
videoconferencing to help those
working outwith the central belt with
their CPD requirements. It has already
developed its own section of the
Society’s website and produced a wellreceived Guide for In-house Lawyers
(available on the site).
Enthusiastic response
Janet Hood, chairman of the ILG, said:
“This has been a highly successful
initiative. There was real enthusiasm
from those who came along and the
feedback has been invaluable – and
will help inform the work of the
committee in the coming months.
“There were common areas of
interest, and one of the main themes to
emanate from the discussions was that
of communication and ensuring that
the group is kept informed not only in
terms of legal updates and CPD, but to
ensure that as in-house lawyers, we are
fully aware of developments within the
wider profession – such as the
introduction of the Scottish Legal
Complaints Commission – and how
these may impact on our working lives.
“How we communicate as a group is
key – from hosting events like these to
writing articles in the Journal, using the
Society website and developing
videoconferencing and podcasts.”
Feedback from the roadshows about
the annual seminar programme
suggests that the choice of topics and
speakers has been a big success, with
Members in
Inverness and
the Borders,
echoing private
practice, cited
recruitment
and retention
of solicitors as
a major issue,
and one idea
currently being
investigated is
the formation
of a “people
exchange”
many enjoying the mix, which
members felt maintained their interest
across all aspects of the law and
encouraged the view that a solicitor is a
“man – or woman – of business”.
Longer and more interactive seminar
sessions, and varying the time slots to
include breakfast sessions as well as day
or evening seminars, have been
suggested, in addition to increasing the
range of topics to meet the needs of
those with differing specialisms. Details
of the 2007-08 seminars are available
online.
Remote connections
Videoconferencing has also been
highly successful as it has provided not
only excellent speakers and papers, but
good networking opportunities.
However, nothing beats a live event
Seminars: next events
The next events in the In-house Lawyers Group’s seminar programme are:
17 May: Freedom of Information/
Data Protection, at the Law Society of
Scotland with video links to Aberdeen
and Glasgow (fully booked)
22 May: Diversity/Equality, at the
Law Society of Scotland with video
links to Aberdeen and Glasgow
(speaker Rowena Arshad, EOC
Scotland). Free to members; £25
+ VAT to non-members
4 September: Shared Services
(Chris Phillips, Maclay Murray & Spens)
13 September: Residential Care
Issues: Guardianship and Capacity
(2-4pm) (Susan Mackessack, Fife Council)
20 September: Bullying &
Harassment (Kirsty Ayre, Pinsent
Masons)
27 September: Licensing
(John Loudon, Lindsays)
All the September events take place at
the Law Society of Scotland with video
links elsewhere, and begin at 6pm
(refreshments from 5.30) unless stated
otherwise.
Advance notice: The Group’s 2007
AGM, symposium and annual dinner
will be held on Friday 2 November at
The Hub, Edinburgh.
and the committee hopes to ensure
that speakers for videoconferencing
events present from a variety of
locations around the country.
While the committee’s pilot podcast
was pronounced very good, most
members felt that further podcasts
would not be cost effective. CPD DVDs
produced by Update at the Society were
viewed as the most viable alternative,
with many of those attending the
events requesting DVDs produced
specifically for in-house solicitors.
Suggestions on using the ILG pages
on the website more effectively
included the creation of a message
board to encourage online debate, and
posting papers from seminars on the
web to help members.
Better interchange
Members in Inverness and the Borders,
echoing solicitors in private practice,
cited recruitment and retention of
solicitors as a major issue, and one idea
currently being investigated is the
formation of a “people exchange”,
which would help facilitate closer cooperation between members of ILG, as
well as help meet one of the group’s
objectives which is to encourage and
develop the better training of its
members.
While debate on the best way to do
this continues, there is broad
agreement that more in-house
traineeships should be encouraged and
appropriate information circulated to
potential employers as well as those
seeking a traineeship. The committee
intends to take this forward in
conjunction with the Society’s New
Lawyers’ Co-ordinator and look at the
merits of ideas such as “growing your
own assistant” (see Journal, January
2007, 28).
Janet Hood said: “It’s clear that our
members are looking for greater
contact with the committee as well as
with their peers around the country.
The discussion forums have been
highly illuminating and I know that
the committee found them extremely
rewarding and motivating. We now
have a clearer understanding of those
we represent and what they would like
from us.”
The ILG committee meets later in May and
will be working out an action plan for the future
based on these discussions. Further comments,
on the issues raised at the roadshows or
otherwise, are welcome and should be sent to
Tricia Sim (e: [email protected]).
Watch out for further updates or log on to
the ILG section of the Society’s website –
www.lawscot.org.uk/Members_Information/
Meet the Committee
Karina McTeague
Head of Legal & Risk, and Company Secretary, Lloyds TSB Scotland plc
From time to time the in-house pages will
feature profiles of committee members
of the In-house Lawyers Group. Here we
begin with a leading banking lawyer
Work History
I started as a trainee with
Shepherd & Wedderburn, then
moved to the corporate
department where I became an
associate. A secondment inhouse to Bank of Scotland was
a defining move in my career,
as I launched myself
wholeheartedly into the
commercial role that the inhouse lawyer plays… The
highlight of my career with the
Bank of Scotland was the
hostile bid for NatWest,
followed closely by the merger
with Halifax. The roles I played
in both deals were a far cry
from being a lawyer. The most
daring career move, for me,
though, was to become an
area sales manager in the
Halifax branch network, with
responsibility for delivering on
sales targets across 12
branches… That front line
experience continues to be one
of the most valuable in my
career, giving me an insight
that not many advisers have. It
stood me in good stead when I
moved into the world of risk,
firstly in the HBOS Insurance &
Investment Division, and now
in my present post.
What’s the best thing
about your job?
I thrive on the variety, the
commercial aspect and the
sense of working as one team.
What was your worst experience
and what did you learn from it?
When I was a junior lawyer I
had to take a reluctant, and
intimidating, chief executive
through a verification exercise.
I persevered despite his
protestations. When I got back
to the office I heard the client
had called the senior partner,
who wanted to speak to me
straghtaway. I thought I was in
for a rollicking. Instead I was
complimented for the way
I handled it. I’ve taken the
feeling of trepidation with me
as a reminder that I should
always do what I think is
right – no matter how scared
I may feel.
What’s the most irritating thing
a private practitioner has ever
said to you?
Actually, I find most private
practitioners really helpful and
collegiate. I think there is a
better understanding
nowadays of how the two
parts of the profession
complement each other.
What external bodies/
organisations are you
involved with?
As well as being a Council
Member of the Society, I sit on
its Audit Committee and the
Journal Advisory Committee. I
also sit on the Legal Committee
of the Chartered Institute of
Banks in Scotland. I was on the
Legal Questions Committee of
the Church of Scotland but,
after seven extremely
interesting years, I recently
stepped down. So I’d be
interested in finding something
else to get my teeth into!
What are the benefits of being
on the Society’s Council or
committees?
Communication is fundamental
to everything we do. Being on
the Council, and the various
committees I sit on, is a great
way to understand what’s
happening in the profession as
a whole and, importantly, to
influence it. We all have the
ability – and responsibility – to
shape our profession, for now
and the future. I take the view
that if I want things to change,
then I need to take action, and
stand up and be counted.
What do you do at weekends?
My perfect weekend is a long
walk with my partner Ewan –
preferably up a wild and rugged
mountain – with a hot bath,
glass of wine and good book at
the end. When we’re in
Edinburgh, Ewan and I love
having friends round and
cooking for them. Then there’s
my garden – a great way to
unwind. I have an enduring
capacity for pottering, and
marvelling at how things grow
– despite my efforts!
Who’s your hero and why?
I have two very different heroes.
The first is the Dalai Lama – he
achieves so much by his calm,
and his principles of focusing on
the good. The second is the
explorer Ranulph Fiennes – he
allows me to dream of the
physically heroic acts I know I
could never in fact achieve, but
which I’d like to think, if ever I
was in his shoes, I’d to draw on
his strengths of sheer
cussedness and determination.
If you weren’t a lawyer what
would you have been?
I’ve always fancied being a
geologist – for the outdoor life
and travel. And, in lazier
moments, I ask myself – why
did my career adviser at school
never mention I could make a
career out of being a Master of
Wines?
inhouse.
Property Access rights
Colin Christie explores the current status of the law
of trespass in Scotland since the introduction of access
rights under the Land Reform (Scotland) Act 2003,
highlighting the need to exercise access rights
responsibly to avoid committing an offence
Access or
excess?
There have always been arguments
specific purposes, namely recreational
about the right of access in Scotland,
and educational. This means that the
which has at times conflicted with the
right granted is not simply of passage,
unclear laws of trespass. As a result of
but includes camping, picnicking, etc.
this the Land Reform (Scotland) Act
By s 2 these rights must be exercised
2003 came into being.
responsibly (lawfully and reasonably
The Scottish Executive laid a heavy
and taking proper account of the
load on itself when it published the
interests of others and the features of
draft bill in February 2001. The
the land). The presumption will
consultation elicited 3,587
be that a person is acting
responses, more than to
responsibly unless they are
any other draft bill ever
interfering unreasonably
published in Scotland.
with the rights of others,
The Trespass
65
More than 80%
breaking an existing byelaw,
(Scotland) Act 18
acted
related solely to Part 1
or disregarding guidance set
was originally en
ns
of the bill on access,
out in the Scottish Natural
to keep certain cla
al land
and 76% of those
Heritage Outdoor Access
off their ancestr
(2,222 responses) came
Code (“the Code”), which
from individual hillwalkers,
the Act imposed a duty on
mountaineers and members of clubs
Scottish Natural Heritage to draw up.
and societies. A further 14% (459)
The Code has been approved by
came from landowners, and the
ministers and the Scottish Parliament.
remainder from community councils,
The detailed guidance provided should
local authorities, recreational and
help to ensure that few problems arise.
sporting organisations and others.
However, if there is a problem, the
The 2003 Act establishes (new)
Code is expected to be a reference
rights of access in the countryside for
point for determining whether a
members of the public, including the
person has acted responsibly. For
right to be on and to cross land for
example, where a dispute cannot be
fyi
resolved and is referred to the sheriff
for determination, the sheriff will
consider whether the guidance in the
Code has been disregarded by any of
the parties. In this sense, the Code may
be said to have evidential status.
Failure to comply with the Code,
however, is not of itself an offence.
Trespass then and now
It is a perpetual myth that there are no
trespass laws in Scotland. Trespass has
long been a civil wrong remediable by
the remedies of interdict and damages,
and specific criminal offences have
been created by a series of statutes
from the Night Poaching Acts 1828
and 1844 through to the Criminal
Justice and Public Order Act 1994.
Sections 61, 63 and 68 of the 1994
Act create specific offences of trespass
in circumstances posing a threat to
public order. In McAdam v Urquhart
2004 GWD 23-501, protesters against
genetically modified crops were held
to be guilty of an offence under s 68
when they went beyond the purposes
for which the police, with the consent
of the owner, permitted them to be
Donhead Press (1995), at 214).
The 2003 Act amends s 3 to state
that the offence does not apply to
“anything done by a person in the
exercise of the access rights created by
the Land Reform (Scotland) Act 2003”,
i.e. by exercising responsible access. To
demonstrate I will use the example of
“wild camping”, which prior to the
2003 Act was potentially criminal
under the 1865 Act.
That Act, however, fails to define
exactly what “private property” is and
I believe as a result there have been
very few prosecutions against
campers. A survey of a sample of
procurators fiscal in about 1990
showed that none of them was aware
of any prosecution applied to
recreational campers. I believe
“private property” simply to be
land/property owned by another, and
I am unaware of any legal challenge
made against this interpretation.
present on the land and attempted to
disrupt the sowing of the crop. The
High Court endorsed the sheriff’s
opinion that each protester “had a
conditional licence from the police to
be present on the land provided that
he did not interfere with the sowing
process”. Once that condition was
broken they could no longer claim to
be present on the land with the
consent of the owner or anyone else.
Following this case the 2003 Act
amended the 1994 Act by adding a
new s 61(4A). In summary, the
subsection refers to persons who have
become trespassers through having
ceased to be entitled to exercise their
access rights because they have formed
a “common purpose” within s 61(1).
If the same circumstances arose
today I believe the demonstrators
would not require permission from
the farmer to be on the land (unless
there were crops growing), and their
actions would only become criminal
when they obstructed the tractor.
A more general provision is the
Trespass (Scotland) Act 1865, enacted
shortly after the time of the Highland
Clearances. The Act was initially
intended to keep certain Scottish clans,
the MacPhees for example, off their
ancestral land. At the time of its
enactment there was a call from
landowners for a law to restrict access
completely, but this was rejected by
Parliament in favour of a law
introducing measures against
encampment as there was at the time a
recognised “problem with tinkers”.
Using the 1865 Act
Section 3 of the Act provides: “Every
person who lodges in any premises, or
occupies or encamps on any land,
being private property, without the
consent and permission of the owner
or legal occupier of such premises or
land, and every person who encamps
or lights a fire on or near any road or
enclosure or cultivated land, or in or
near any plantation, without the
consent and permission of the owner
or legal occupier of such road, land or
plantation, shall be guilty of an
offence punishable as herein-after
provided”.
Reid suggests that “the 1865 Act is a
rogue piece of legislation which is so
far past its sell-by date it is surprising
that no-one has taken it to the Court
of Human Rights…. It is used far more
often than many assume, and
principally as a threat in circumstances
where police are asked to remove
someone from private land” (“The
Freedom to Roam – A Cultural and
Economic Asset”, in Sharing the Earth,
The law under canvas
The 2003 Act includes various
provisions which relate to camping.
Section 1 indicates that access rights
extend to “remaining on” land for
relevant purposes, and the Act does
not restrict the exercise of access rights
overnight. The amendment referred to
decriminalises the occupying or
encamping on private land, and
lighting a fire on or near a road,
enclosed land or plantation, as long as
the person is exercising their rights of
access. The Act thus confers broadly
inclusive rights with regard to informal
recreational camping, qualified of
course by the need for responsible
behaviour.
The Code defines “wild camping” as
“lightweight and done in small
numbers and only for two or three
nights in any one place” (at 115). In
relation to this type of activity, the
Code indicates the need to keep well
away from buildings, roads or historic
structures and to avoid litter, fire
damage or pollution. The reference to
“well away” is intentionally flexible,
reflecting the widely varying
circumstances which apply in different
“The 1865 Act is a rogue piece of
legislation which is so far past its
sell-by date it is surprising that
no-one has taken it to the Court of
Human Rights... It is used far more
often than many assume”
Property Access rights
locations. “Small numbers” are
likewise not defined.
Given a scenario where an
individual sets up an overnight
camp directly adjacent to a
domestic garden, it would
depend on the direct
circumstances whether or not
the camper was exercising his
access rights responsibly. If it
was found that he was acting in
an irresponsible way (taking
guidance from the Access
Code), the 2003 Act suggests
that he is committing an offence
contrary to the 1865 Act as he is
not within his rights as defined
by the 2003 Act.
The original intention of the
2003 Act was to confirm
people’s traditional freedom of
access to the countryside, i.e.
codifying what happened
already in practice if not in law.
“Responsible behaviour” is
detailed in the Code and an
extensive education programme
has been introduced to promote
responsible behaviour. It is
suggested that this approach,
with the potential for the Code
to be used in support of civil
remedies, which has proved to
be successful in other countries,
is far more palatable than
introducing a new criminal
offence, as was proposed in a
draft of the Act (cf Reid, cited
above, at 221).
Relevant today?
However, there is nothing in the
2003 Act to prevent an offence
under the 1865 Act being
committed by someone
exercising their access rights
irresponsibly, and in my
contention it would still be a
relevant charge against anyone
found in such circumstances.
Blackshaw suggests that “the
freedom to roam may be seen as
the long-standing general
freedom in Scotland to take
harmless responsible access to
land not in cultivation without
any need to seek consent, and
without trespass, generally
recognised by landholder and
public alike as an accepted
normal convention of society”
(“Implied Permission and the
Traditions of Customary
Access”, Edinburgh Law Review
(1999) at 368). However
“freedom” is different from
“right” and it is the latter most
people take issue with. A right is
something contained within law
and I believe the 2003 Act has
moved a long way to providing
certainty in this.
If such access is not exercised
responsibly as set out in the
2003 Act and the Code, I believe
it then becomes a trespass
whether it be with civil remedy
or an offence under the 1865 or
1994 Act if applicable.
The 1865 Act is undoubtedly
an antiquated statute which is
out of touch with our modern
society. However, there is
nothing in the 2003 Act which
removes it from the Scottish
criminal law and I therefore
suggest that it still carries the
same weight as it did before
the implementation of the
2003 Act.
The 2003 Act goes a long way
towards creating a lawful right
of access for all, but I hope to
have demonstrated that it is still
not as simple as it appears at
first glance and there remains
much clarification to be had.
Colin Christie is currently a
police sergeant with Grampian
Police based in Aberdeen and a
former LLM student at the
University of Aberdeen. This paper
derives from his LLM dissertation.
The author would like to thank
Alan Blackshaw OBE, VRD, and
Robert Reid, Convener of the
National Access Forum, who were
kind enough to give their time and
opinions during its preparation.
There is nothing in the 2003
Act to prevent an offence
under the 1865 Act being
committed by someone
exercising their access
rights irresponsibly
Registers of Scotland
Performance against ministerial
registration targets to March 2007
[This performance report on turnaround times includes the financial
year to March 2007]
Ministerial target
Performance
Year end
for the period 2006-2007
1 Jan-31 March
Speed of registration
To achieve recording and registration
turnaround times in 2006-2007:
Averaging no more than 20 working days over
the year as a whole for sasine writs
17.6
working days
17.8
working days
Averaging no more than 30 working days over
the year as a whole for dealings with whole
26.4
working days
21.8
working days
Averaging no more than 100 working days for
all domestic first registrations
83.3
working days
69.6
working days
716 cases
or 21.0%
3,117 cases
or 91.6%
Stock reduction
To eliminate all pre-July 2002 casework
except where for exceptional reasons,
agreement has been reached with the agent or
where court proceedings are pending
The remaining 286
were subject to
court proceedings
or agreement had
been reached with
the agents
Registration accuracy
98.6%
98.7%
Achieving a 98% rating for overall customer
care in the annual customer satisfaction survey
of solicitors
n/a
99%
Processing 98% of all customer enquiries in
compliance with the Agency’s published
response standards
99.1%
99.0%
To achieve a registration accuracy rate of at
least 98% for applications despatched during
the previous 12 months
Customer service
To continue to operate at Charter Mark
standards by:
Year to date
Total volumes
On time
% Achieved
Standard letter enquiries
Post-registration enquiries
Copy deeds (NAS)
Office copies
C&S extracts
Pre-registration enquiries
Land Register reports
Correction cases
Sub-certs
Copy deeds (LR)
26,204
4,738
14,055
1,275
83,593
5,396
63,975
9,429
3,309
18,742
25,784
4,709
12,963
1,269
83,593
5,396
63,838
9,409
3,305
18,457
98.4%
99.4%
92.2%
99.5%
100.0%
100.0%
99.3%
99.8%
99.8%
98.5%
Total
231,030
228,724
99.0%
A detailed explanation of the registration targets – particularly that for domestic first
registrations – was given in “Keeper’s Corner” in the February 2006 edition of the Journal.
Property Unauthorised alterations
Society’s survey reveals unauthorised alterations as second
only to loan instructions as source of grief in property deals
Alterations are
no2 problem
Unauthorised alterations are one
of the top two causes of problems
for clients (whether buyers or
sellers) in conveyancing
transactions, according to 60% of
solicitors, and the problem is if
anything increasing.
These are among the main
findings of the Society’s online
survey, carried out in March, into
the scale of the problem and the
extent of the difficulties it causes.
The survey, consisting of a
dozen multiple choice questions,
attracted nearly 300 responses, a
statistically valid figure according
to James Ness, the Society’s
Deputy Director of Professional
Practice. On the findings he
added:
“While there appears to be no
clear conclusion other than that
the problem is widespread,
multifaceted and significant, it is
obvious that hardly any members
feel the problem with
unauthorised alterations is getting
better, and the delays in process
and cost consequences to the
public are significant and clear.”
Some of the main figures to
emerge in the results are:
31% report that alteration
enquiries are necessary in at least
60% of transactions, though 26%
put the proportion in the 20-40%
band
only a minority of cases are
resolved by the seller providing
additional documentary evidence,
or seller and buyer agreeing a
compromise; local authority
reinspection and consent is the
more common outcome
42% consider the volume of
enquiries to be stable, 43% say it
is increasing and only 15% report
a declining trend
33% estimate the average delay
to the conveyancing process at 510 days, 24% at 10-15 days and
18% put it at over 15 days
costs to the client (including
legal fees) from seeking
retrospective consent amount to
over £250 in 35% of cases and
between £150 and £250 in a
further 47%
only 18% consider the
retrospective consent process to be
consistently applied in all cases
(58% some of the time; 24% not
at all); similar figures apply to the
good/average/poor rating of the
information provided.
On the questions seeking
opinions as to the most common
causes of problems for clients,
only “late or incomplete loan
instructions” scored higher: a total
of 64% placed this as one of the
top two. There then follow issues
relating to appliances/heating
warranties (23%), deliberate
underpricing of the property
(16%), lack of information about
the property (11%), offers subject
to survey (10%), and finally antimoney laundering compliance
and multiple surveys, which both
scored 8%. (These figures total
200% as separate questions asked
about the most and second most
common causes of difficulty.)
“The answers to these last two
questions are particularly
illuminating and validate what
many of us have instinctively felt”,
James Ness commented.
The Conveyancing Committee
will use the findings to inform its
response to the consultation on
the purchaser’s information pack
(which does not address the
issue), and to press COSLA for a
more consistent approach by local
authorities in dealing with
enquiries.
ARTL: upgrade now for security
Those who have Adobe Acrobat Reader 7 installed for use in
automated registration are advised to upgrade if their system permits
Registers of Scotland (RoS) have advised
of a security issue identified in relation to
Adobe Acrobat Reader 7, the software
initially intended to support the digital
signature capability for ARTL.
It has been learned that in version 7.0.9
of Adobe Acrobat Reader 7 (a bug was
also found in the previous version 7.0.7),
when the ARTL smartcard is left in the
card reader after the user’s PIN number
has been entered and the digital signature
applied, the software remains functional
in the background – retaining the user’s
PIN – until the internet browser is closed
down or the user removes the smartcard
from the card reader.
This could result in a digital signature
being applied unlawfully, without the
knowledge of the ARTL user, if the user’s
computer is left unattended and unlocked
with the smartcard still in the reader.
ARTL users who have version 7.0.9
installed must remove their smartcards
straight after digitally signing electronic
documents, to prevent any security
vulnerability arising. (Policy documents
concerning smartcard usage, to be
published soon by RoS, will require this.)
It is also good practice to lock computers
whenever they are left unattended.
In late 2006, version 8 of Adobe Reader
was released. Available as a free
download from the Adobe website, this
provides improved security and RoS now
recommends version 8 for use with ARTL.
In version 8, after an ARTL user has
digitally signed and submitted an
electronic document, the Adobe software
automatically shuts down after a short
time (about 30 seconds).
While the user using Adobe version 8
should still remove the smartcard from the
card reader after a signing event, because
that is always best practice from a security
standpoint, the potential for misuse of the
smartcard is drastically reduced as the
Adobe software quickly shuts down and
no longer retains the user’s PIN.
Having taken advice from Adobe, both
RoS and their IT partner BT plc
recommend that ARTL users upgrade their
Adobe Reader software to version 8 if
their operating system allows them to do
so. They should check that upgrading will
not have any adverse impact on any other
applications in their office systems that
use Adobe Acrobat Reader.
Due to extended testing, it is now
expected that most firms will not have
access to the ARTL system until September.
Sidelines Abby Solvitor
Abby Solvitor is awed by the talents of summer
placement students in the office
Too much,
too young
Oscar Wilde famously declared that
“youth is wasted on the young”, but I
do wonder if that applies to the
Jugend of our heady times. Simply
wander innocently into the path of
one of the gothic skateboarders
outside GOMA, a wondrous mix of
faux occult t-shirts and Clearasil, to
see how much fun they are having.
Alternatively sit behind the
voluptuous damsels in perilously
tight jeans, blasting the “Krazy Frog”
for the duration of the 5.15 Glasgow
to Edinburgh to the undiluted
delight of every commuter, to see the
next generation having an
absolute ball.
In any event the teens we
generally witness come the
weekend are not exactly
burdened with the ol’
Scots work ethic (long
since died a death,
methinks), and are
fantastically oblivious to
anyone over 20. I assume
that the regular
readers of this column (just indulge
introducing single surveys and
me on this delusion, folks) are not
successfully arguing a rare legal point
exactly approaching their dotage, but
with the sheriff principal. Honestly,
surely the great Wilde himself would
my monocle nearly popped out
have to eat his orchids and realise
when she headed out of the office
that the under-20s are loving every
with a breezy “I am soo going to write
bit of their Arctic Monkeys-listening
about this in my blog”. This summer
life.
student was a trailblazer and a goThat is what I thought until I met
getter. Clearly one of a kind, I
my first summer student. Summer
thought, until the next boy wonder
students apparently manifest
who was possessed of the same
themselves in that difficult time
unyielding stealth. And so they came
between skiving double maths on a
in endless succession, immaculate
Thursday and the “I have
law-bots with personality and
to get a job, buy a semi
brains, suitably upstaging us
in Stockbridge, raise a
all with their brilliance
family, invest wisely
before heading home to
s”
ne
eli
id
Read “S
and retire to the
watch The O.C.
l
na
ur
online at www.jo
south of France at
The summer student
k/
.u
online.co
50” of the yet-to-beaffair reminds me of a
nt
rre
cu
–
ds
downloa
disillusioned. In my
dreadful sitcom called
or back issues
old firm the job of
Dougie Howser M.D. from
looking after the summer
my own mis-spent and
student was appointed to the
apparently tame youth. It was an
trainees, although we were left
American show – naturally, suitably
trailing exhausted in the wake of
saccharine and the premise was that
most of them. The first student, there
the kid was only 15 but a boy genius
for a lowly-paid four weeks, was so
and a doctor. This was supposed to
bright that her CV had more legal
impress the audience, but frankly my
expertise than our trainee
granny wouldn’t have let this pimply
contingency put together. This girl
child near her with a thermometer. It
donned a power suit like a pro, and
was also a little sad, as whilst other
multi-tasked from making coffee for
young Americans were out at prom
the whole office (possibly
or partying with Potsie and The Fonz,
grinding the beans from
earnest Dougie was stuck in ward 4
scratch) before probably
performing brain surgery. And where
fyi
And so they came in endless
succession, immaculate lawbots with personality and
brains, suitably upstaging us all
Sidelines Letter from Egypt
was the fun in that? It really took the
whole “Aren’t doctors getting
younger” adage that bit too far for
my liking. It was along the lines of
that TV advert where a baby wears a
suit and pretends to be chairman of a
nappies company, his sycophantic
staff indulging his every whim, all
horribly sinister but actually getting
near the crux of the situation.
University and school days have
apparently changed even since the
NQs amongst us were getting our
heads in books. (I would wager that
even the more vintage solicitors
rarely stepped inside a law firm until
they were pushed out into the real
world clutching their parchment.)
Summer holidays were spent resting,
as we euphemistically called it,
before getting a token job, saving up
and going backpacking or at least to
some grimy festival. The thought of
giving up even a day of a summer
which could be spent in some flearidden hostel in Turkey, collapsing
under the weight of your backpack in
the middle of a sweltering Naples, or
even just making £2 an hour cleaning
at Gartnavel was something we
would have balked at. The days of
being in a suit were far off, though
looming, and it was simply a case of
making hay while the sun shone. But
the legal profession has changed and
our summer students have realised
this early on.
Summer students are to be praised
for their focus, vying for jobs in an
increasingly competitive world, and
from what I have seen of them the
future for the law is a bright one.
However, law firms should not
smugly assume that the students
need us more than we need them,
and act as if we are doing them an
immense favour by employing them
for July. We have a responsibility to
reward these talented folk who give
up their summer of love for
experience in a firm in order to have
a chance to begin their career. At the
very least this reward should be
substantially monetary, and clearly a
good training and a few free jollies
wouldn’t go amiss either.
In fact, at the end you bigger firms
should pay for your summer students
to go round the world with a busload
of art students and see where that
ends up. But then Wilde was also
acerbic enough to realise that “as
soon as people are old enough to
know better, they don’t know
anything at all”.
Abby Solvitor is the pen name of a
practising solicitor
Eternal valley
Letter from
somewhere
else…
Alistair
Bonnington
feels the
spirit of the
Pharaohs
living on in
the Valley of
the Kings
Valley of the Kings
After Howard Carter’s discovery of the tomb of
the young Pharaoh, Tutankhamen in 1922,
well-off and aristocratic Brits flocked to Luxor –
the ancient capital city of Thebes on the banks
of the Nile. Staying at the luxurious Winter
Palace Hotel during the British winter months
(when it is pleasantly warm in Egypt), they
paid local guides to show them the incredible
sights of the Valley of the Kings. Agatha
Christie had the inspiration for Death on the
Nile while staying there. You may recall from
the film the early scenes of the opulent hotel in
which Poirot (Peter Ustinov) and the rest of the
cast met up prior to their fateful cruise.
Today, you can do just the same thing,
though it is not necessary to murder anyone.
The Nile cruise boats leave from here, sailing
either north to Cairo or south to Aswan – or
both if you have the time and the money.
Entering the Valley of the Kings, from a
distance no more than a rather hilly section of
brown desert, you pass Carter’s house. Every
day for five years, he emerged to continue his
search for an elusive tomb, which he
passionately believed to exist. Finally,
Tutankhamen’s grave was found almost
underneath the door of the tomb of one of the
numerous Pharaohs called Rameses. Part of
the point of constructing your tomb as a
Pharaoh was to secrete your mummified body
for eternity, so Pharaohs left no maps of where
they had been buried. As a result, the tombmakers regularly broke through to another
tomb by accident and had to divert their route.
These tombs of the New Kingdom were
constructed about 3,500 years ago. By this
time, pyramid-building had been abandoned –
the defect being that it was not terribly difficult
to tell where the Pharaoh was buried when
there was a structure the size of a multi-storey
block sitting in the desert! It was pretty much
an invitation for grave-robbers.
Happily, even today, some of the wonderful
murals on the corridors leading down to the
Pharaohs’ burial chambers are clear and
bright. The meaning of the symbols was
revealed when the Rosetta Stone was
discovered. So now, to Egyptologists what is
written in the tombs, on the temples and on
the obelisks is perfectly decipherable.
The whole mummification business
proceeded on the Egyptian belief in the deity
of the Pharaoh, and an eternal afterlife. The
Pharaoh did not enter the afterlife unprovided
for – he took an enormous number of personal
possessions and items which he would require
“on the other side”. In particular, he had a
wooden barque on which to sail the sacred
River Nile into one of the entrances to the next
life. It was believed that, from sunset, the gods
– including the Pharaohs – became stars and
looked down on the world from the night sky.
There are, of course, no moveable treasures
left in the tombs. Those that had not been
stolen by the tomb-robbers of antiquity or by
greedy Westerners have been removed to the
Egyptian Museum in Cairo. Occasionally, these
go on tour. I was able to see the Tutankhamen
treasures in 1971 at the British Museum.
Apart from the tombs, a visit should be paid
to the temple of the only female Pharaoh,
Hatshepsut. During her reign (1498-1483 BC)
she had to disguise herself as a man, wearing
a false beard! Appropriately, her temple is
between the Valley of the Kings and the Valley
of the Queens. Her story, depicted in murals,
shows her as starting Egypt’s trade with other
countries on the African continent.
The richness of the enormous temple at
Karnak (a couple of miles from the Valley) must
put it in the top 10 structures to see from the
ancient world. The murals here record the
achievements, wisdom and opulence of the
Egyptian civilisation. The temple should hold
two obelisks, but the French “relocated” one to
the Place de la Concorde in Paris. We Brits
were a bit light-fingered with Egypt stonework
too. Is it any wonder they slightly resent us?
When the Scot, David Roberts, made his
famous drawings of the ancient monuments in
1838, he was so overawed by the hypostyle
hall at Karnak that he despaired of being able
to express his feelings on seeing it in his
drawings. You can buy a book of these at most
tourist spots in Egypt. As so often happens,
Roberts is almost unknown in Scotland, where
he was a humble theatre scene painter.
Standing on the Luxor Corniche on the banks
of the Nile at sunset is an amazing experience.
You feel in touch with the beliefs and legends
of this ancient land as the sun seemingly
vanishes into the Valley of the Kings itself. The
desert landscape is just as it was thousands of
years ago. The Pharaohs’ view that they would
continue their existence after death seems far
from foolish when you consider their
achievements. They made paper from papyrus
reeds, invented of symbols to write on that
paper, and studied astronomy and medicine to
standards which seem sophisticated today. It is
not hard to see why the Egyptian Pharaohs are
such a continuing fascination. In that way, they
reached their stated goal – eternal life.
Sidelines
Part-time love
Jennifer Veitch finds the weight of learning
in legal textbooks a little hard to bear
Perhaps I am a bit old-fashioned, but
I’ve never thought biceps were all that
attractive in a woman. Sadly, however, I
am developing a nicely bulging pair of
them, thanks to lugging bags full of law
books up the hill to Craiglockhart every
Tuesday and Thursday.
Despite all the advances in
information technology and a growing
number of electronic databases
available for online trawling, students
still have to rely on dusty and dogeared books. And boy, are some of
them heavy.
I’d be willing to bet that the average
law tome is about three times as thick
as the average pot-boiler novel, so you
don’t need all that many books in your
bag before you’re at risk of inducing an
injury. One ill-judged swing onto the
shoulder is enough to leave you with a
back as hunched as poor old
Quasimodo.
The library at Napier lets you have
15 books out on loan at once, which is
great when you need to do a lot of
research for an assignment or an exam,
but not quite so great for your health if
you can’t borrow a wheelbarrow to get
them home.
You’ve probably read recently about
the schoolchildren campaigning for
lockers to stop them having to cart
around half their own body weight in
gym kit, musical instruments and
textbooks. Maybe the universities
should consider the same solution
before they are sued by some
ambulance-chasing – er, I mean
enterprising – law student keen to
pursue a career in personal injury.
Meanwhile, I’ve been forced to
devise my own strategies to avoid
carrying books whenever possible.
I frequently suggest that the other
half walks with me to or from my class
and then theatrically huff and puff
about the weight of my bag. It’s not
subtle, but it seems to work.
If I can’t dump them on him, I try
not to take any books to class except
when instructed that it is absolutely
necessary to do so. Even then there are
ways around it – I have been known to
reserve a copy of Blackwell’s Statutes on
Commercial and Consumer Law online,
then take it out of the library just
before a class and return it straight
afterwards.
Sometimes, however, the problem is
solved for you as the stampede to get
hold of books from the library means
you can be left empty-handed. One of
the courses my class is currently
studying relies rather heavily on a book
that is, rather unhelpfully, out of print.
I joined the library’s electronic queue
and so far I’ve managed to get a copy
out twice. The first time it was only
available on a seven-day loan, which
meant I had to do some rather frantic
speed-reading ahead of an assignment,
but the second time around I got lucky
with a 28-day standard loan.
Once that happens you find yourself
torn between renewing it to try to
make sure you’ve got it ahead of your
exam, and leaving your classmates
stuck without a copy.
At least renewing books online
delays the point at which I have to
carry them back to the library,
though this reluctance to lug
books to and fro has occasionally
cost me dear. Yesterday, for
example, I was less than a day late
in renewing six books and I
ended up paying a £3.00 fine.
Now that really hurts.
Jennifer Veitch is a freelance
journalist and a regular
contributor to the Scotsman’s
law and legal affairs pages
Above: last year’s individual and team winners with Legal Post sponsors
Not so benevolent
Think “Scottish Solicitors Benevolent Fund Golf Outing” and
you surely come up with decent chaps in garish jerseys having a
jolly time while hoping the rain holds off. But could there be a
bit of needle creeping into the annual fixture from the same old
rivalries being renewed too often? Kirkcudbright’s Ross Ireland
was pulling no punches in his press notice to the editor:
“Last year, the North Berwick team stormed to a well deserved
victory at Blairgowrie, having strengthened their team by
dropping their captain and previously under performing low
handicapper, Eddie Danks, but it is understood that Eddie will
likely be recalled to their team this year, thereby giving them
virtually no chance of retaining their title!! The organiser’s own
Galloway team hope to have last year’s individual winner and
acknowledged ‘bandit’ Joe Baxter available for selection once
again…”
Challenged to justify his choice of words, the bold Ireland
replied: “You should know by now that the defamatory
comments are half the fun of it…”, and we omit the rest in case
we get into even more trouble.
Still thinking of putting in a team? Turn to p 27. Don’t say
you weren’t warned.
…I can go higher…
It must be something about the spring, but the numbers war has
broken out again among the super-heavyweights of the Scottish
legal world. First of all Maclay Murray & Spens pitched for the
no 1 spot in partner count by taking over a large chunk of
Aberdeen’s Iain Smith & Co. Partner numbers: now 76, one
ahead, so it was reported, of arch rivals McGrigors and just one
behind Dundas & Wilson. Within a day or so, McGrigors
announced the elevation of an associate to partner in their real
estate team. Partner numbers: now 76. Was it getting a bit too
close for comfort? Where did that leave D&W? Announcing the
appointment of another six partners that same day, that’s where.
Partner numbers: now 83. Anything you can do…
Did you hear about the
German burglar who
broke into an Aachen
football ground at 3 am
and turned on the
floodlights so he could
The whoops! see in the dark? For good
corner
measure he managed to
activate the pitch sprinkler system as well…
Sidelines Six of the best
Do you have a feeling you could be doing more to make your office
eco-friendly, but aren’t sure what? Louise Farquhar has some suggestions
Six of the best...
Eco tips for the office
Perhaps at home you turn down the
heating, keep a magnificent compost
heap in the back garden and switch off
lights when you go out, but do these
earth-friendly habits follow you to the
office? If not, then have a think about
taking some easy steps towards
creating a more eco-aware workplace,
and bask in the knowledge that you are
doing the right thing and maybe even
saving some costs too!
Here are my top six ideas:
Energy audit
In today’s competitive corporate market the
businesses that are successful are those
making efficient use of energy and
resources. The Energy Savings Trust offers
free energy audits and advice to Scottish
companies to reduce usage. Easy measures
such as turning down thermostats,
changing light bulbs to low energy types
and switching off computer equipment
overnight all make substantial savings on
power use. There are also tax incentives and
financial assistance packages to help you
make the improvements.
0845 458 5040
www.energysavingstrust.org.uk
Recycling schemes
One of the easiest green policies to
incorporate into the office is a recycling
scheme. Office paper and toner cartridges
are easily turned around and there are
plenty of organisations offering containers
to separate waste and uplifting and
processing services. The Scottish Waste
Awareness Group has a Business Recycling
Directory that will direct you to providers in
your area.
01786 468 797
www.wasteawarebusiness.org.uk
Renewable energy supplier
The UK has the largest potential for
renewable energy in Europe, so by choosing
to purchase green energy not only can you
reduce your own environmental impact but
you will also be supporting the national
power industry too. Ecotricity provides
green power using clean, renewable
sources and invests the money customers
spend on building new energy sources.
They offer a hassle-free business tariff and
have an impressive list of companies on
their client list.
0800 0326 100
www.ecotricity.co.uk
Green fleets
Fleet vehicles represent a
major capital expenditure
and are an important
investment for any
business. Product selection is
a key issue and there are plenty of fuelefficient cars on the market that make great
company vehicles. The leader is the Toyota
Prius which has a hybrid engine that
dramatically cuts CO2 emissions. With an
impressive specification there is no
compromise on performance or comfort,
making this car an ideal choice.
0845 275 5555
www.toyota.co.uk
Green office equipment
Recycled office equipment is becoming a
more plausible option for companies as
technological advances make the
quality of these products
equal to new machines.
Ricoh’s photocopier is a
case in point: a laser
printer, fax and copier
in one unit that was
once a redundant machine and has
now been recycled to meet all industry
standards. It comes with a full guarantee.
0845 456 4540
www.greenyouroffice.co.uk
Videoconferencing
If the executives in your company do a lot of
air travel, the emissions from these flights
could be the most significant black mark on
your ecological footprint. For this reason
reducing business flights is a good start
when trying to be a more eco-friendly
organisation. Videoconferencing is
becoming an increasingly popular
alternative to meetings that involve travel,
and employees gain the benefits of more
family time and less time on the road.
Polycom install a range of equipment and
systems from lavish boardroom options to
smaller desktop solutions.
01753 723000
www.polycom.com
For further ideas see:
Eco Kettle
07900 242 901
www.windtrap.co.uk
Best Foot Forward
01865 250 818
www.bestfootforward.com
From the Journal archives
50 years ago
From “Dry Multures”, May 1957:
“To sum up, it would appear that
dry multures are not just a thing
of the past, together with
‘gowpens’, ‘corvees’, ‘insuckens’
and ‘outsuckens’ and the other
delightful terms which are
associated with multures, but
that, on the contrary, they may
constitute a trap for the unwary
when they do not appear in a
recorded writ.”
25 years ago
From “The law goes Forth”, May
1982: “It was very nice… to be
approached by Hazel Fowlie with
the idea of a fully
fledged ‘Law Week’. The
idea was that on five days
of the week, Radio Forth’s
four regular daytime disc
jockeys would for 10 minutes in
the course of their two-hour
stints, turn aside from the
turntable and quiz a visiting
lawyer on subjects connected
with the law or the legal
profession.”

Professional briefing

Transcription

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